EXHIBIT 10.16.20
EIGHTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of December 31, 1996, is made by and among HARRY'S FARMERS MARKET, INC., a
Georgia corporation (the "Company"), NATIONSBANK, N.A. (SOUTH) (f/k/a
NationsBank of Georgia, National Association) and CREDITANSTALT-BANKVEREIN, New
York Branch, a banking company organized under the laws of Austria,
(collectively the "Lenders") and NATIONSBANK, N.A. (SOUTH) (f/k/a NationsBank of
Georgia, National Association), as Agent (the "Agent").
The Lenders, the Agent and the Company entered into the Amended and
Restated Credit Agreement dated as of December 30, 1994 (as amended to date, the
"Credit Agreement") pursuant to which the Lenders provided certain credit
facilities to the Company.
The Company intends to refinance the outstanding indebtedness
represented by the Citicorp Note pursuant to the terms of that certain
Application/Contract dated on or about November 6, 1996 (the "Contract") by and
between the Company, as Applicant and Nationwide Life Insurance Company
("Nationwide") and as further evidenced by that certain Real Estate Note dated
as of December 27, 1996 (the "Real Estate Note") executed by RPI in favor of
Nationwide in the initial principal amount of $2,700,000. In connection with
the transactions contemplated by the Contract, certain property currently owned
by the Company securing the Citicorp Note will be transferred to Roman
Properties, Inc., a Georgia corporation and a newly created subsidiary of the
Company ("RPI") pursuant to the terms of that certain Quitclaim Deed dated as of
December 27, 1996 by and between the Company and RPI and that certain Xxxx of
Sale dated as of December 27, 1996 by and between the Company and RPI
(collectively, the "Xxxx of Sale"). The Company will lease the property
transferred to RPI pursuant to the terms of that certain Lease dated as of
December 27, 1996 (the "Lease") by and between the Company and RPI. The
obligations of the Company arising under the Contract and the Real Estate Note
will be secured pursuant to the terms of that certain Deed to Secure Debt and
Security Agreement dated December 27, 1996 (the "Deed to Secure Debt") executed
by RPI in favor of Nationwide. The transactions contemplated by the Contract,
including, but not limited to, the creation of RPI, the transfer of assets from
the Company to RPI pursuant to the Xxxx of Sale, the Real Estate Note, the Deed
to Secure Debt, the Loan Documents (as defined in the Real Estate Note) and the
Lease are collectively referred to herein as the "Refinancing".
The parties now desire (i) that the Lenders and the Agent waive the
Events of Default that may arise under the Credit Agreement as a result of the
Refinancing and (ii) to amend the Credit Agreement to amend certain covenants
and other provisions.
In consideration of the agreements contained herein, the parties
hereto agree as follows:
Section 1. Amendment of Credit Agreement.
-----------------------------
-A-1-
(a) Section 1.1. Section 1.1 of the Credit Agreement is hereby amended
-----------
by adding the following definitions in the appropriate alphabetic order:
"'Xxxx of Sale' means collectively each of that certain Quitclaim Deed
dated as of December 27, 1996 by and between the Company and RPI and that
certain Xxxx of Sale dated as of December 27, 1996 by and between the
Company and RPI.
'Lease' means that certain Lease dated as of December 27, 1996 by and
between the Company and RPI, as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms.
'Nationwide' means Nationwide Life Insurance Company.
'Nationwide Loan Agreement' means that certain Application/Contract
dated on or about November 6, 1996 by and between the Company and
Nationwide, together with that certain Real Estate Note, and each of the
Loan Documents (as defined in the Real Estate Note), as each may be
amended, restated supplemented or otherwise modified from time to time in
accordance with their respective terms.
'Real Estate Note' means that certain Real Estate Note dated December
27, 1996 executed by RPI in favor of Nationwide in the original principal amount
of $2,700,000, as the same may be amended, restated, supplemented or otherwise
modified from time to time in accordance with its terms.
'RPI' means Roman Properties, Inc., a Georgia corporation and a
Subsidiary of the Company."
(b) Section 2.16. The Credit Agreement is hereby further amended by
------------
deleting Section 2.16(a) in its entirety and substituting in lieu thereof the
following:
"2.16. USE OF PROCEEDS
(a) The proceeds of the Loans made on the Closing Date shall be used
to refinance the amounts advanced pursuant to the Existing Credit
Agreement, the Existing Loan Documents and the Existing Term Loan, and to
pay all related fees and expenses of the transactions contemplated in this
Agreement. In addition, such proceeds provided on the Closing Date,
together with the proceeds of the issuance of the Preferred Stock shall be
used to pay in full the Xxxxxxxx Construction Loan. Subject to subsection
(b) below, subsequent Revolving Credit Loans shall be utilized for working
capital and general corporate purposes of the Company and to pay drawings,
if any, paid on the Letter of Credit; provided however, that, in no event
shall the proceeds of any Revolving Credit Loan be used to pay any
principal amount owing by the Company on the indebtedness evidenced by the
Nationwide
-A-2-
Loan Agreement or any extension, renewal or refinancing thereof,
without the prior written consent of the Required Lenders."
(c) Section 8.4. The Credit Agreement is hereby further amended by
-----------
deleting Section 8.4. in its entirety and substituting in lieu thereof the
following:
"8.4. INVESTMENTS
Make or permit to remain outstanding any Investments except (a)
Permitted Investments, (b) the ownership of the capital stock of Permitted
Subsidiaries by the Company or its Subsidiaries and (c) the ownership of
all of the shares of the outstanding capital stock of RPI by the Company."
(d) Section 8.7. The Credit Agreement is hereby further amended by
-----------
deleting Section 8.7. in its entirety and substituting in lieu thereof the
following:
"8.7. EXECUTION AND MODIFICATIONS OF CERTAIN DOCUMENTS
Amend its certificate of incorporation or by-laws in a manner adverse
to the Lenders; or amend, modify, cancel, terminate, waive any default
under or breach of, in any manner whatsoever, any Material Contract other
than in the ordinary course of business; or enter into any new agreement
that is inconsistent with the obligations of the Company or any Subsidiary
under any Credit Document. Notwithstanding the foregoing, the Company will
not amend the Stockholders' Agreement, the Lease or the Nationwide Loan
Agreement without the consent of the Required Lenders. Further, the
Company agrees that in no event shall the Company loan, owe, or in any way
transfer any sums to RPI other than the amounts owing under the Lease.
Further, the Company shall cause RPI to transfer to the Company immediately
upon the payment of rent under the Lease all amounts paid as rent under the
Lease which exceed the monthly payments of interest and principal owing to
Nationwide pursuant to the Real Estate Note."
(e) Section 8.15 The Credit Agreement is hereby further amended by adding
------------
the following Section 8.15.:
"8.15. AGREEMENTS REGARDING RPI
(a) Transfer any equipment, inventory, goods, accounts or any other
property or asset to RPI or otherwise permit RPI to own any property or
other assets other than the property described in the Xxxx of Sale.
(b) Permit RPI to incur any indebtedness or other contractual or other
obligation other than the indebtedness incurred pursuant to the Nationwide
Loan Agreement."
-A-3-
(f) Section 8.16. The Credit Agreement is hereby further amended by adding
-------------
the following Section 8.16.:
"8.16. AGREEMENTS REGARDING THE LEASE
For purposes of the Credit Agreement and each of the other Credit
Documents, the parties hereby agree that the transaction contemplated by
the Lease shall be considered to be a transfer of a leasehold estate in
land and any sublease, assignment or other transfer of any interest of the
Company in such Lease shall be considered to be a Disposition.
Notwithstanding the terms of Section 8.1. hereof, (a) the Company may
sublease any portion of the property subject to the Lease (a "Sublease") as
long as concurrently with the creation of such Sublease, the Company
collaterally assigns such Sublease to the Agent for the benefit of the
Lenders on terms acceptable to the Agent and (b) the Company shall apply
the proceeds of all Subleases pursuant to the terms of Section 2.15 hereof
only during the continuation of an Event of Default and that absent such
Event of Default the Company may use the proceeds of such Subleases for
general corporate purposes."
Section 2. Consent and Waiver. Upon the satisfaction of each of the
------------------
conditions set forth in Section 6, the Lenders hereby consent to the Refinancing
and agree to waive any Events of Default arising as a result of the violation of
Sections 8.1(iii), 8.2, 8.3, 8.7, 8.10 or 8.12 of the Credit Agreement caused by
the Refinancing.
Section 3. Reaffirmation. The Company hereby reaffirms all
-------------
representations and warranties made by the Company to the Lenders and the Agent
in the Credit Agreement and the Security Agreement on and as of the date hereof
with the same force and effect as if such representations and warranties were
set forth in this Amendment in full.
Section 4. Representations. The Company further represents that:
---------------
(a) Authorization. The Company has the right and power, and has taken all
-------------
necessary action to authorize it, to execute and deliver this Amendment and to
perform the Credit Agreement, as amended by this Amendment, in accordance with
their respective terms. This Amendment has been duly executed and delivered by
the duly authorized officers of the Company, and each of this Amendment and the
Credit Agreement, as amended by this Amendment, is a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting generally the enforcement of
creditors' rights.
(b) Compliance of Loan Documents with Laws, etc. The execution and
-------------------------------------------
delivery of this Amendment, and the performance of the Credit Agreement, as
amended by this Amendment, in accordance with their respective terms and the
borrowings thereunder do not and will not, by the passage of time, the giving of
notice or otherwise: (i) require any approval from any Governmental Agency or
violate any applicable law relating to the Company; (ii) conflict with,
-A-4-
result in a breach of or constitute a default under the articles of
incorporation or by-laws of the Company, or any indenture, agreement or other
instrument to which the Company is a party or by which it or any of its
properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Company other than in favor of the Agent.
(c) No Default. No Default or Event of Defaults exists as of the date
----------
hereof and, after giving effect to this Amendment and the Refinancing, no
Default or Event of Default will occur or exist.
Section 5. References to the Credit Agreement and the Other Credit
-------------------------------------------------------
Documents. Each reference to the Credit Agreement and any of the Credit
---------
Documents shall be deemed to be a reference to the Credit Agreement as amended
by this Amendment, and as each may from time to time be further amended,
supplemented, restated or otherwise modified in the future by one or more other
written amendments or supplemental or modification agreements entered into
pursuant to the applicable provisions of the Credit Agreement.
Section 6. Conditions Precedent. It is a condition precedent to the
--------------------
effectiveness of this Amendment that the Company deliver to the Agent each of
the following, each of which shall be satisfactory in form and substance to the
Agent:
(a) a fully-executed copy of this Amendment;
(b) a fully-executed copy of the Contract;
(c) a fully-executed copy of the Deed to Secure Debt;
(d) a fully-executed copy of the Lease;
(e) a fully-executed copy of the Xxxx of Sale and all documents entered
into in connection therewith;
(f) a Pledge Agreement executed by the Company in favor of the Agent for
the benefit of the Lenders in substantially the form of Exhibit A attached
hereto whereby the Company will pledge to the Agent for the benefit of the
Lenders all of the outstanding stock of RPI owned by the Company;
(g) an Intercreditor Agreement executed by Nationwide and acknowledged by
the Company and RPI in substantially the form of Exhibit C attached hereto;
(h) a Landlord Waiver executed by RPI in favor of the Agent for the benefit
of the Lenders in substantially the form of Exhibit B attached hereto;
(i) evidence that all obligations arising under the Citicorp Note are
indefeasibly paid in full and all liens securing such obligations have been
terminated;
-A-5-
(j) a signed opinion of counsel to the Company and RPI in substantially the
form of Exhibit D attached hereto;
(k) a certificate executed by the chief executive officer and the chief
financial officer of the Borrower, stated that (a) on such date, and after
giving effect to the transactions contemplated by this Amendment and the
Refinancing, no Default or Event of Default has occurred and is continuing; (b)
no material adverse change in the financial condition or operations of the
business of the Company or any of its Subsidiaries or the projected cash flow of
the Company and its Subsidiaries has occurred; and (c) the representations and
warranties set forth in Sections 3 and 4 hereof are true and correct in all
material respects on and as of such date with the same effect as though made on
and as of such date;
(l) that certain Seventh Amendment to Amended and Restated Credit Agreement
and Second Amendment to Security Agreement dated as of July 25, 1996 by and
among the Company, the Lenders and the Agent shall be effective in all respects;
(m) copies of all consents, approvals, authorizations, registrations or
filings required to be made or obtained by the Borrower and its Subsidiaries in
connection with the execution and delivery of this Amendment, the Refinancing
and the consummation of the transactions contemplated hereby or thereby;
(n) a copy certified by the Secretary of the Company of all corporate or
other necessary action taken by the Company to authorize the execution, delivery
and performance of the transactions contemplated by this Amendment and the
Refinancing;
(o) a copy of the articles of incorporation (certified as of a recent date
by the Secretary of State of Georgia) and bylaws (certified by the Secretary of
the Company) of the Company as in effect on the date hereof;
(p) a certificate of incumbency and specimen signatures with respect to
each of the officers of the Company who are authorized to execute and deliver
all documents contemplated by this Amendment;
(q) a certificate evidencing the good standing of the Company in Georgia;
(r) a copy certified by the Secretary of RPI of all corporate or other
necessary action taken by the RPI to authorize the execution, delivery and
performance of the transactions contemplated by this Amendment and the
Refinancing;
(s) a copy of the articles of incorporation (certified as of a recent date
by the Secretary of State of Georgia) and bylaws (certified by the Secretary of
RPI) of RPI as in effect on the date hereof;
-A-6-
(t) a certificate of incumbency and specimen signatures with respect to
each of the officers of RPI who are authorized to execute and deliver all
documents contemplated by this Amendment;
(u) a certificate evidencing the good standing of RPI in Georgia;
(v) a copy certified by the Secretary of each Guarantor of all corporate or
other necessary action taken by such Guarantor to authorize the execution,
delivery and performance of the transactions contemplated by this Amendment and
the Refinancing;
(w) a certificate of incumbency and specimen signatures with respect to
each of the officers of each Guarantor who are authorized to execute and deliver
all documents contemplated by this Amendment; and
(x) such other documents or instruments as a Lender or the Agent may
request.
Section 7. Acknowledgment. The Company hereby acknowledges and agrees
--------------
that RPI shall not be considered a Permitted Subsidiary under the Credit
Agreement or any of the Credit Documents.
Section 8. Benefits. This Amendment shall be binding upon and shall
--------
insure to the benefit of the parties hereto and their respective successors and
assigns.
Section 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 10. Effect. Except as expressly herein amended, the terms and
------
conditions of the Credit Agreement and the other Credit Documents shall remain
in full force and effect.
Section 11. Counterparts. This Amendment may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.
Section 12. Definitions. All terms defined in the Credit Agreement which
-----------
are used herein shall have the meanings defined in the Credit Agreement, unless
specifically defined otherwise herein.
[Signatures begin on following page]
-A-7-
IN WITNESS WHEREOF, the parties hereto have set forth their hands in one or
more counterparts as of the ____ day of December, 1996.
HARRY'S FARMERS MARKET, INC.
By:___________________________________
Authorized Officer
Attest:_________________________________
Name:___________________________
Title:____________________________
[CORPORATE SEAL]
NATIONSBANK, N.A. (SOUTH), as a Lender and as Agent
By:____________________________________
Name:____________________________
Title:______________________________
CREDITANSTALT-BANKVEREIN, New York Branch, as a Lender
By:_____________________________________
Name:_____________________________
Title:_______________________________
By:_____________________________________
Name:_____________________________
Title:_______________________________
[Signatures continued on following page]
-A-8-
ACKNOWLEDGMENT AND CONSENT OF THE GUARANTORS
Each of Marthasville Trading Company and Karalea, Inc. (collectively, the
"Guarantors") hereby consents to the foregoing execution and delivery of this
Eighth Amendment to Amended and Restated Credit Agreement (the "Agreement"), and
to the performance by the Company and to its agreements and obligations
thereunder and all agreements and documents entered into in connection
therewith. All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Credit Agreement. Each of the Guarantors further
affirms that neither the Agreement nor the performance of the Credit Agreement
and the other Credit Documents as has been amended to date shall limit, restrict
extinguish or otherwise impair its liability to the Agent or the Lenders
pursuant to its respective Guaranty, whether such obligations are now existing
or hereafter arise. Each Guarantor acknowledges that all of the terms and
conditions contained in such Guarantor's respective Guaranty shall continue in
full force and effect.
Dated as of the _____ day of December, 1996.
MARTHASVILLE TRADING COMPANY
By:
---------------------------------
Title:
---------------------------
KARALEA, INC.
By:
--------------------------------
Title:
--------------------------
-A-9-
EXHIBIT A
---------
FORM OF PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated as of December 31, 1996 by and between Harry's
Farmers Market, Inc., a Georgia corporation (the "Pledgor") and NationsBank,
N.A. (South), as Agent (the "Pledgee").
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement
dated as of December 27, 1995 (as amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms, the "Credit Agreement")
by and among the Pledgor, the Lenders named therein (the "Lenders") and the
Pledgee, the Lenders have made available to the Pledgor certain financial
accommodations; and
WHEREAS, the Pledgor desires to transfer certain property to Roman
Properties, Inc., a Georgia corporation ("RPI") in connection with the
transactions contemplated by that certain Eighth Amendment to Amended and
Restated Credit Agreement dated as of the date hereof (the "Amendment") by and
among the Pledgor, the Lenders and the Agent;
WHEREAS, it is a condition precedent to the effectiveness of the Amendment
that the Pledgor execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. PLEDGE. The Pledgor hereby pledges, hypothecates, assigns,
------
transfers, sets over and delivers unto the Pledgee for the benefit of the
Lenders, and grants to the Pledgee for the benefit of the Lenders a security
interest in, all of the Pledgor's right, title and interest in, to and under the
following (collectively, the "Pledged Collateral"): (a) all of the common stock,
shares, equity interest and other securities (collectively, "Securities") of RPI
as more particularly described on Schedule 1 attached hereto; (b) any additional
Securities of RPI as may from time to time be issued to the Pledgor or otherwise
acquired by the Pledgor; (c) any cash or additional Securities or other property
at any time and from time to time receivable or otherwise distributable in
respect of, in exchange for, or in substitution of, any of the property referred
to in any of the immediately preceding clauses (a) and (b); and (d) any and all
products and proceeds of any of the foregoing, together with and all other
rights, titles, interests, powers, privileges and preferences pertaining to said
property.
SECTION 2. OBLIGATIONS SECURED. This Agreement is made, and the security
-------------------
interest created hereby is granted to the Pledgee for the benefit of the
Lenders, to secure the prompt performance and payment in full of the following
(collectively, the "Secured Obligations"): (a) all Obligations and (b) any
reasonable costs or expenses incurred by the Pledgee or Pledgee's counsel
-A-10-
in connection with the realization of the security for which this Agreement
provides, including, without limitation, any reasonable costs or expenses of any
proceedings to which this Agreement may give rise.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby represents
------------------------------
and warrants to the Pledgee and the Lenders as follows:
(a) Validly Issued, etc. All of the outstanding stock of RPI has been
--------------------
validly issued and are fully paid and nonassessable.
(b) Title and Liens. The Pledgor is, and will at all times continue to be,
---------------
the legal and beneficial owner of the Pledged Collateral and none of the Pledged
Collateral is subject to any Lien other than Permitted Liens. No financing
statement under the Uniform Commercial Code of any jurisdiction which names the
Pledgor as debtor or covers any of the Pledged Collateral, or any other notice
filed in the public records indicating the existence of a Lien thereon, has been
filed and is still effective in any state or other jurisdiction, other than
Uniform Commercial Code financing statements filed in favor of the Pledgee, and
the Pledgor has not signed any such financing statement or notice or any
security agreement authorizing the filing of any such financing statement or
notice, other than Uniform Commercial Code financing statements filed in favor
of the Pledgee.
(c) Authority, etc. The Pledgor (i) has the power and authority to pledge
--------------
the Collateral in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other than
the Lien created by this Agreement and Permitted Liens), however arising, of all
persons.
(d) No Approval. No consent or approval of any Governmental Agency or any
-----------
securities exchange was or is necessary to the validity of the pledge effected
hereby.
(e) Outstanding Shares. The Securities pledged by the Pledgor hereunder
------------------
constitute 100% of the issued and outstanding stock of RPI.
SECTION 4. NO LIENS; NO SALE OF PLEDGED COLLATERAL. The Pledgor hereby
---------------------------------------
unconditionally covenants and agrees that it will not create, assume, incur or
permit or suffer to exist or to be created, assumed or incurred, any Lien on any
of the Pledged Collateral (or any interest therein), other than Permitted Liens,
and will not, without the prior written consent of the Pledgee, sell, lease,
assign, transfer or otherwise dispose of all or any portion of the Pledged
Collateral (or any interest therein).
SECTION 5. ADDITIONAL SHARES.
-----------------
(a) During the period this Agreement is in effect, the Pledgor shall not
permit RPI to issue any additional shares of capital stock or other equity
securities or interests to any Person other than the Pledgor. Further, the
Pledgor shall not permit RPI to amend or modify its articles
-A-11-
or certificate of incorporation in a manner which would affect the voting,
liquidation, preference or other rights of a holder of the shares of stock
pledged hereunder.
(b) The Pledgor agrees that, until this Agreement has terminated in
accordance with its terms, any additional Securities of an Issuer at any time
issued to the Pledgor or otherwise acquired by the Pledgor shall be promptly
delivered or otherwise transferred to the Pledgee as additional Pledged
Collateral and shall be subject to the Lien of, and the terms and conditions of,
this Agreement.
SECTION 6. VOTING RIGHTS; DIVIDENDS, ETC.
------------------------------
(a) So long as no Event of Default shall have occurred and be continuing:
(i) the Pledgor shall be entitled to exercise any and all voting
and/or consensual rights and powers accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the
terms and conditions of this Agreement or any agreement giving rise to or
otherwise relating to any of the Secured Obligations; provided, however,
that the Pledgor shall not exercise, or refrain from exercising, any such
right or power if any such action would have a materially adverse effect on
the value of such Pledged Collateral in the judgment of the Pledgee;
(ii) the Pledgor shall be entitled to retain and use any and all cash
dividends paid on the Pledged Collateral, but any and all stock and/or
liquidating dividends, other distributions in property, return of capital
or other distributions made on or in respect of Pledged Securities, whether
resulting from a subdivision, combination or reclassification of
outstanding Securities of an Issuer which are pledged hereunder or received
in exchange for Pledged Collateral or any part thereof or as a result of
any merger, consolidation, acquisition or other exchange of assets or on
the liquidation, whether voluntary or involuntary, of an Issuer, or
otherwise, shall be and become part of the Pledged Collateral pledged
hereunder and, if received by the Pledgor, shall forthwith be delivered to
the Pledgee to be held as collateral subject to the terms and conditions of
this Agreement.
The Pledgee agrees to execute and deliver to the Pledgor, or cause to be
executed and delivered to the Pledgor, as appropriate, at the sole cost and
expense of the Pledgor, all such proxies, powers of attorney, dividend orders
and other instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and/or consensual rights and powers
which Pledgor is entitled to exercise pursuant to clause (i) above and/or to
receive the dividends which Pledgor is authorized to retain pursuant to clause
(ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default,
all rights of the Pledgor to exercise the voting and/or consensual rights and
powers which Pledgor is entitled to exercise pursuant to subsection (a)(i) above
and/or to receive the dividends which Pledgor is authorized to receive and
retain pursuant to subsection (a)(ii) above shall cease, and all such rights
thereupon shall become immediately vested in the Pledgee, which shall have, to
the extent permitted by law, the sole and exclusive right and authority to
exercise such voting and/or
-A-12-
consensual rights and powers which the Pledgor shall otherwise be entitled to
exercise pursuant to subsection (a)(i) above and/or to receive and retain the
dividends which the Pledgor shall otherwise be authorized to retain pursuant to
subsection (a)(ii) above. Any and all money and other property paid over to or
received by the Pledgee pursuant to the provisions of this subsection (b) shall
be retained by the Pledgee as additional collateral hereunder and shall be
applied in accordance with the provisions of Section 8. If the Pledgor shall
receive any dividends or other property which it is not entitled to receive
under this Section, the Pledgor shall hold the same in trust for the Pledgee,
without commingling the same with other funds or property of or held by the
Pledgor, and shall promptly deliver the same to the Pledgee upon receipt by the
Pledgor in the identical form received, together with any necessary
endorsements.
SECTION 7. REMEDIES UPON DEFAULT.
---------------------
(a) In addition to any right or remedy that the Pledgee may have under the
Credit Agreement, the other Credit Documents or otherwise under applicable law,
if an Event of Default shall have occurred, the Pledgee may exercise any and all
the rights and remedies of a secured party under the UCC and may otherwise sell,
assign, transfer, endorse and deliver the whole or, from time to time, any part
of the Pledged Collateral at a public or private sale or on any securities
exchange, for cash, upon credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Pledgee in its
discretion shall deem appropriate. The Pledgee shall be authorized at any sale
(if it deems it advisable to do so) to restrict the prospective bidders or
purchasers to Persons who will represent and agree that they are purchasing the
Pledged Collateral for their own account in compliance with the Securities Act
and upon consummation of any such sale the Pledgee shall have the right to
assign, transfer, endorse and deliver to the purchaser or purchasers thereof the
Pledged Collateral so sold. Each purchaser at any sale of Pledged Collateral
shall take and hold the property sold absolutely free from any claim or right on
the part of the Pledgor, and the Pledgor hereby waives (to the fullest extent
permitted by applicable law) all rights of redemption, stay and/or appraisal
which the Pledgor now has or may at any time in the future have under any
applicable law now existing or hereafter enacted. The Pledgor agrees that, to
the extent notice of sale shall be required by applicable law, at least ten
days' prior written notice to the Pledgor of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification, but notice given in any other reasonable manner or at
any other reasonable time shall constitute reasonable notification. Such
notice, in case of public sale, shall state the time and place for such sale,
and, in the case of sale on a securities exchange, shall state the exchange on
which such sale is to be made and the day on which the Pledged Collateral, or
portion thereof, will first be offered for sale at such exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Pledgee may fix and shall state in the notice
or publication (if any) of such sale. At any such sale, the Pledged Collateral,
or portion thereof to be sold, may be sold in one lot as an entirety or in
separate parcels, as the Pledgee may determine in its sole and absolute
discretion. The Pledgee shall not be obligated to make any sale of the Pledged
Collateral if it shall determine not to do so regardless of the fact that notice
of sale of the Pledged Collateral may have been given. The Pledgee may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further
-A-13-
notice, be made at the time and place to which the same was so adjourned. In
case the sale of all or any part of the Pledged Collateral is made on credit or
for future delivery, the Pledged Collateral so sold may be retained by the
Pledgee until the sale price is paid by the purchaser or purchasers thereof, but
the Pledgee shall not incur any liability to the Pledgor in case any such
purchaser or purchasers shall fail to take up and pay for the Pledged Collateral
so sold and, in case of any such failure, such Pledged Collateral may be sold
again upon like notice. At any public sale made pursuant to this Agreement, each
of the Pledgee and the Lenders, to the extent permitted by applicable law, may
bid for or purchase, free from any right of redemption, stay and/or appraisal on
the part of the Pledgor (all said rights being also hereby waived and released
to the extent permitted by applicable law), any part of or all the Pledged
Collateral offered for sale and may make payment on account thereof by using any
claim then due and payable to the Pledgee or the Lenders from the Pledgor as a
credit against the purchase price, and the Pledgee and the Lenders may, upon
compliance with the terms of sale and to the extent permitted by applicable law,
hold, retain and dispose of such property without further accountability to the
Pledgor therefor. For purposes hereof, a written agreement to purchase all or
any part of the Pledged Collateral shall be treated as a sale thereof; the
Pledgee shall be free to carry out such sale pursuant to such agreement and the
Pledgor shall not be entitled to the return of any Pledged Collateral subject
thereto, notwithstanding the fact that after the Pledgee shall have entered into
such an agreement all Events of Default may have been remedied or the Secured
Obligations may have been paid in full as herein provided. The Pledgor hereby
waives any right to require any marshaling of assets and any similar right.
(b) In addition to exercising the power of sale herein conferred upon it,
the Pledgee shall also have the option to proceed by suit or suits at law or in
equity to foreclose this Agreement and sell the Pledged Collateral or any
portion thereof pursuant to judgment or decree of a court or courts having
competent jurisdiction.
(c) The rights and remedies of the Pledgee under this Agreement are
cumulative and not exclusive of any rights or remedies which it would otherwise
have.
SECTION 8. APPLICATION OF PROCEEDS OF SALE AND CASH. The proceeds of any
----------------------------------------
sale of the whole or any part of the Pledged Collateral, together with any other
moneys held by the Pledgee under the provisions of this Agreement, shall be
applied by the Pledgee in the following order:
(a) First: to the payment of all costs and expenses incurred in connection
with such sale or other realization, including reasonable attorneys' fees
incurred if the Pledgee endeavored to collect the Secured Obligations by or
through an attorney at law;
(b) Second: to the payment of the interest due upon any of the Secured
Obligations, in any order which the Lenders may elect;
(c) Third: to the payment of the principal due upon any of the Secured
Obligations in any order which the Lenders may elect; and
-A-14-
(d) Fourth: the balance (if any) of such proceeds shall be paid to the
Pledgor or to whomsoever may be legally entitled thereto.
The Pledgor shall remain liable and will pay, on demand, any deficiency
remaining in respect of the Secured Obligations.
SECTION 9. PLEDGEE APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
----------------------------------
constitutes and appoints the Pledgee as the attorney-in-fact of the Pledgor with
full power of substitution either in the Pledgee's name or in the name of the
Pledgor to do any of the following: (a) to perform any obligation of the Pledgor
hereunder in the Pledgor's name or otherwise; (b) to ask for, demand, xxx for,
collect, receive, receipt and give acquittance for any and all moneys due or to
become due under and by virtue of any Pledged Collateral; (c) to prepare,
execute, file, record or deliver notices, assignments, financing statements,
continuation statements, applications for registration or like papers to
perfect, preserve or release the Pledgee's security interest in the Pledged
Collateral or any of the documents, instruments, certificates and agreements
described in Section 10; (d) to verify facts concerning the Pledged Collateral
in its own name or a fictitious name; (e) to endorse checks, drafts, orders and
other instruments for the payment of money payable to the Pledgor, representing
any interest or dividend or other distribution payable in respect of the Pledged
Collateral or any part thereof or on account thereof and to give full discharge
for the same; (f) to exercise all rights, powers and remedies which the Pledgor
would have, but for this Agreement, under the Pledged Collateral; and (g) to
carry out the provisions of this Agreement and to take any action and execute
any instrument which the Pledgee may deem necessary or advisable to accomplish
the purposes hereof, and to do all acts and things and execute all documents in
the name of the Pledgor or otherwise, deemed by the Pledgee as necessary, proper
and convenient in connection with the preservation, perfection or enforcement of
its rights hereunder. Nothing herein contained shall be construed as requiring
or obligating the Pledgee to make any commitment or to make any inquiry as to
the nature or sufficiency of any payment received by it, or to present or file
any claim or notice, or to take any action with respect to the Pledged
Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Pledgee or
omitted to be taken with respect to the Pledged Collateral or any part thereof
shall give rise to any defense, counterclaim or offset in favor of the Pledgor
or to any claim or action against the Pledgee. The power or attorney granted
herein is irrevocable and coupled with an interest.
SECTION 10. FURTHER ASSURANCES. The Pledgor shall, at its sole cost and
------------------
expense, take all action that may be necessary or desirable in the Pledgee's
sole discretion, so as at all times to maintain the validity, perfection,
enforceability and priority of the Pledgee's security interest in the Pledged
Collateral, or to enable the Pledgee to exercise or enforce its rights
hereunder, including without limitation executing and delivering financing
statements, pledges, designations, notices and assignments, in each case in form
and substance satisfactory to the Pledgee, relating to the creation, validity,
perfection, priority or continuation of the security interest granted hereunder.
The Pledgor agrees to take, and authorizes the Pledgee to take on the Pledgor's
behalf, any or all of the following actions with respect to any Pledged
Collateral as the Pledgee shall deem necessary to perfect the security interest
and pledge created hereby or to enable the Pledgee to enforce its rights and
remedies hereunder: (i) to register in the name of the Pledgee any Pledged
-A-15-
Collateral in certificated or uncertificated form; (ii) to endorse in the name
of the Pledgee any Pledged Collateral issued in certificated form; and (iii) by
book entry or otherwise, identify as belonging to the Pledgee a quantity of
securities that constitutes all or part of the Pledged Collateral registered in
the name of the Pledgee. Notwithstanding the foregoing the Pledgor agrees that
Pledged Collateral which is not in certificated form or is otherwise in book-
entry form shall be held for the account of the Pledgee. The Pledgor hereby
authorizes the Pledgee to execute and file in all necessary and appropriate
jurisdictions (as determined by the Pledgee) one or more financing or
continuation statements (or any other document or instrument) in the name of the
Pledgor and to sign the Pledgor's name thereto. The Pledgor authorizes the
Pledgee to file any such financing statement, document or instrument without the
signature of the Pledgor to the extent permitted by applicable law. Any
property comprising part of the Pledged Collateral required to be delivered to
the Pledgee pursuant to this Pledge Agreement shall be accompanied by proper
instruments of assignment duly executed by the Pledgor and by such other
instruments or documents as the Pledgee may reasonably request.
SECTION 11. SECURITIES ACT. In view of the position of the Pledgor in
--------------
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar applicable law hereafter enacted analogous
in purpose or effect (such Act and any such similar applicable law as from time
to time in effect being called the "Federal Securities Laws") with respect to
any disposition of the Pledged Collateral permitted hereunder. The Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Pledgee if the Pledgee were to attempt to
dispose of all or any part of the Pledged Collateral in accordance with the
terms hereof, and might also limit the extent to which or the manner in which
any subsequent transferee of any Pledged Collateral could dispose of the same.
Similarly, there may be other legal restrictions or limitations affecting the
Pledgee in any attempt to dispose of all or part of the Pledged Collateral in
accordance with the terms hereof under applicable Blue Sky or other state
securities laws or similar applicable law analogous in purpose or effect. The
Pledgor recognizes that in light of the foregoing restrictions and limitations
the Pledgee may, with respect to any sale of the Pledged Collateral, limit the
purchasers to those who will agree, among other things, to acquire such Pledged
Collateral for their own account, for investment, and not with a view to the
distribution or resale thereof. The Pledgor acknowledges and agrees that in
light of the foregoing restrictions and limitations, the Pledgee, in its sole
and absolute discretion, may, in accordance with applicable law, (a) proceed to
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) approach and negotiate with a single
potential purchaser to effect such sale. The Pledgor acknowledges and agrees
that any such sale might result in prices and other terms less favorable to the
seller than if such sale were a public sale without such restrictions. In the
event of any such sale, the Pledgee shall incur no responsibility or liability
for selling all or any part of the Pledged Collateral in accordance with the
terms hereof at a price that the Pledgee, in its sole and absolute discretion,
may in good xxxxx xxxx reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section will apply
notwithstanding the
-A-16-
existence of public or private market upon which the quotations or sales prices
may exceed substantially the price at which the Pledgee sells.
SECTION 12. INDEMNIFICATION. The Pledgor agrees to indemnify and hold the
---------------
Pledgee and any corporation controlling, controlled by, or under common control
with, the Pledgee and any officer, attorney, director, shareholder, agent or
employee of the Pledgee or any such corporation (each an "Indemnified Person"),
harmless from and against any claim, loss, damage, action, cause of action,
liability, cost and expense or suit of any kind or nature whatsoever
(collectively, "Losses"), brought against or incurred by an Indemnified Person,
in any manner arising out of or, directly or indirectly, related to or connected
with this Agreement, including without limitation, the exercise by the Pledgee
of any of its rights and remedies under this Agreement or any other action taken
by the Pledgee pursuant to the terms of this Agreement; provided, however, the
Pledgor shall not be liable to an Indemnified Person for any Losses to the
extent that such Losses result from the gross negligence or willful misconduct
of such Indemnified Person. The Pledgor's obligations under this section shall
survive the termination of this Agreement and the payment in full of the Secured
Obligations.
SECTION 13. CONTINUING SECURITY INTEREST. This Agreement shall create a
----------------------------
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until it terminates in accordance with its terms. The Pledgor
and the Pledgee hereby agree that the security interest created by this
Agreement in the Pledged Collateral shall not terminate and shall continue and
remain in full force and effect notwithstanding the transfer to the Pledgor or
any person designated by it of all or any portion of the Pledged Collateral.
SECTION 14. SECURITY INTEREST ABSOLUTE. All rights of the Pledgee
--------------------------
hereunder, the grant of a security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement or any other Credit Document, any agreement with respect to any of the
Secured Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of the payment of, or in
any other term of, all or any of the Secured Obligations, or any other amendment
or waiver of or any consent to any departure from the Credit Agreement, any
other Credit Document, or any other agreement or instrument relating to any of
the foregoing, (c) any exchange, release or nonperfection of any other
collateral, or any release or amendment or waiver of or consent to or departure
from any guaranty, for all or any of the Secured Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Pledgor in respect of the Secured Obligations or in respect of
this Agreement (other than the indefeasible payment in full of all the Secured
Obligations).
SECTION 15. NO WAIVER. Neither the failure on the part of the Pledgee to
---------
exercise, nor the delay on its part in exercising any right, power or remedy
hereunder, nor any course of dealing between the Pledgee and the Pledgor shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power, or remedy hereunder preclude any other or the further
exercise thereof or the exercise of any other right, power or remedy.
-A-17-
SECTION 16. NOTICES. Notices, requests and other communications required
-------
or permitted hereunder shall be given in accordance with the applicable terms of
the Credit Agreement or at such other address a party may specify to the other
party by like notice. All such notices and other communications shall be
effective as governed by the terms of the Credit Agreement.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 18. AMENDMENTS. No amendment or waiver of any provision of this
----------
Agreement nor consent to any departure by the Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 19. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be
-----------------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Pledgor shall not be permitted to assign
this Agreement or any interest herein or in the Pledged Collateral, or any part
thereof, or any cash or property held by the Pledgee as collateral under this
Agreement.
SECTION 20. TERMINATION. Upon indefeasible payment in full of all of the
-----------
Secured Obligations, this Agreement shall terminate. Upon termination of this
Agreement in accordance with its terms the Pledgee agrees to take such actions
as the Pledgor may reasonably request, and at the sole cost and expense of the
Pledgor, (a) to return the Pledged Collateral to the Pledgor, and (b) to
evidence the termination of this Agreement, including, without limitation, the
filing of any releases or any termination statements under the UCC.
SECTION 21. SEVERABILITY. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such a 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, such provisions shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
SECTION 22. HEADINGS. Section headings used herein are for convenience
--------
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
SECTION 23. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original and all of which shall
constitute but one agreement.
SECTION 24. DEFINITIONS. Terms not otherwise defined herein are used
-----------
herein with the respective meanings given to them in the Credit Agreement.
[Signatures on Next Page]
-A-18-
IN WITNESS WHEREOF, the Pledgor has executed and delivered this Pledge
Agreement under seal as of this the date first written above.
HARRY'S FARMERS MARKET, INC.
By:
--------------------------------
Title:
--------------------------
Agreed to, accepted and acknowledged
as of the date first written above.
NATIONSBANK, N.A. (SOUTH),
AS AGENT
By:
--------------------------------
Title:
---------------------------
-A-19-
SCHEDULE 1 TO PLEDGE AGREEMENT
PLEDGED SHARES
--------------
---------------------------------------------------------------------------------
Issuer No. of Securities Type of Securities Certificate Nos.
------ ----------------- ------------------ ----------------
---------------------------------------------------------------------------------
Roman Properties, Inc. 100 shares Common Stock 1
---------------------------------------------------------------------------------
---------------------------------------------------------------------------------
-A-20-
EXHIBIT B
---------
FORM OF LANDLORD'S AGREEMENT
THIS LANDLORD'S AGREEMENT (this "Agreement") is made and entered into as of
the 31st day of December, 1996, by Roman Properties, Inc., a Georgia corporation
("Landlord") in favor of NationsBank, N.A. (South), as agent under the Credit
Agreement referred to below (the "Agent").
WHEREAS, Harry's Farmers Market, Inc. (the "Tenant"), currently owns
certain property, and the improvements thereon, located at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx (the "Premises") and proposed to transfer them to the
Landlord pursuant to that certain Quitclaim Deed and Xxxx of Sale each dated as
of December 27, 1996 and thereafter lease the Premises from the Landlord
pursuant to a certain lease (the "Lease"), dated as of December 27, 1996,
between the Landlord, as lessor, and the Tenant; and
WHEREAS, Tenant has entered into a certain Amended and Restated Credit
Agreement dated as of December 27, 1995 (as may be amended, restated,
supplemented or modified from time to time in accordance with its terms the
"Credit Agreement"; capitalized terms used herein and not defined herein are
used herein with the respective meanings set forth in the Credit Agreement)
among the Tenant, the Lenders thereunder (the "Lenders") and Agent pursuant to
which Agent and the Lenders have made certain loans, advances and extensions of
credit to Tenant; and
WHEREAS, Tenant has secured the Loans, advances and extensions of credit
made to it under the Credit Agreement by granting to the Agent, for the benefit
of the Lenders under the Credit Agreement, liens on and security interests in
substantially all of the property of Tenant, including, without limitation, all
inventory, machinery and equipment of Tenant whether now owned or hereafter
acquired (the "Collateral"), portions of which Collateral are or may be located
on the Premises; and
NOW, THEREFORE, in order to induce the Agent and the Lenders thereunder to
enter consent to the transfer of the Premises from the Tenant to the Landlord,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord hereby agrees as follows:
1. The Landlord hereby acknowledges and agrees that, the Agent's security
interest in the Collateral located on the Premises shall be superior to any
interest which Landlord may have therein, and Landlord will not assert against
any of the Collateral any statutory, contractual or possessory liens, including,
without limitation, rights of levy or distraint for rent, all of which it hereby
waives in favor of the Agent for the term of this Agreement.
-B-1-
2. Landlord agrees that none of the Collateral shall be deemed to be a
fixture or a part of the Premises, notwithstanding its degree of attachment to
the Premises and shall be regarded as personal property at all times.
3. Landlord confirms: (i) Landlord is the landlord under the Lease; (ii)
to the best of Landlord's knowledge Tenant is the tenant under the Lease and,
Landlord has received no notice of any assignment of the Lease by Tenant to a
third party; (iii) the Lease is in full force and effect and has not been
amended, modified, or supplemented except as set forth in the Lease; (iv) to the
best of Landlord's knowledge Landlord has no defense, offset, claim or
counterclaim against Landlord's obligations under the Lease; and (v) no notice
of default has been given under or in connection with the Lease (other than as
to defaults that have been cured), and Landlord has no knowledge of any
occurrence that would constitute such a default.
4. Notwithstanding anything to the contrary in the Lease or under
applicable law, no termination, cancellation, surrender, restatement,
modification, change, supplement or amendment of the Lease by Tenant shall be
effective without Agent's prior written consent.
5. Tenant's grant of security to the Agent for the benefit of the Lenders
in the Collateral located on the Premises does not and shall not constitute a
default under the Lease. To the extent (if any) that the Lease requires
Landlord's consent, Landlord consents to such grant of security.
6. In the event Tenant defaults in its obligations under the Lease and
Landlord intends to exercise any of its remedies thereunder, including, but not
limited to, any right of termination, Landlord will notify the Agent at the
address and in the manner set forth herein and shall give the Agent the
opportunity to cure such default within the longer of (a) thirty (30) days from
its receipt of notice of such default and (b) the time given to the Tenant under
the Lease for the cure of such default. During the foregoing cure period(s),
Landlord shall accept cure of the Default by Agent. If any default is cured,
then Landlord shall rescind the notice of default.
7. If Tenant defaults in its obligations to the Agent under the Credit
Agreement (whether or not there exists a default under and as defined by the
Lease) and, as a result, the Agent desires to exercise its remedies with respect
to the Collateral, Landlord agrees to permit the Agent, at the Agent's option:
(a) to keep the Collateral on the Premises for a period of ninety (90)
days without charge, prorated on a daily basis, without becoming personally
obligated for any other obligations of Tenant;
(b) to enter into and take possession and control of the Premises for
the remaining term of the Lease, subject to the terms and conditions of the
Lease but without becoming personally obligated for any obligations of
Tenant thereunder other than an obligation for rent, payable at the end of
each month, at a rate equal to the rental under the Lease, as then in
effect, pro rated on a daily basis;
-B-2-
(c) to assign or sublease all of Tenant's right, title and interest in
and to the Lease to any third party or parties who shall assume all of
Tenant's obligations under the Lease; and/or
(d) to enter onto the Premises, and to remove the Collateral from the
Premises, without charge, except for reasonable compensation for any damage
to the Premises caused by such removal;
and in any such event, Landlord agrees to cooperate with the Agent and not to
hinder the Agent's actions in enforcing their respective remedies with respect
to the Collateral.
8. If Tenant shall file or have filed against it a petition or assignment
in bankruptcy and pursuant to such bankruptcy filing Tenant disaffirms or
rejects the Lease, or if the Landlord terminates the Lease as a result of the
default of Tenant thereunder, Landlord agrees, upon the request of the Agent, to
enter into a new lease under the identical terms and conditions as in the Lease
for the term then remaining in the Lease with the Agent, or the designee of the
Agent.
9. If Landlord sends any notice of default under the Lease to Tenant,
Landlord shall either simultaneously therewith or within a reasonable time
thereafter send Agent a copy. Landlord shall promptly send Agent a copy of any
notice received by Landlord relating to any alleged breach or default under any
mortgage, deed of trust, security agreement or other instrument to which
Landlord is a party that may affect the Lease or the Premises.
10. Notices, requests and other communications required or permitted
hereunder shall be in writing and shall be made by personal delivery, facsimile
transmitter or certified or registered mail, return receipt requested, addressed
as follows:
(a) If to the Agent:
NationsBank, N.A. (South)
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to the Landlord:
c/o Harry's Farmers Market, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No. (000) 000-0000
or at such other address as the Agent or Landlord may specify by like notice.
-B-3-
11. This Agreement may not be modified or terminated orally.
12. This Agreement shall bind and benefit Landlord's and Agent's heirs,
successors and assigns. In connection with any refinancing, replacement or
modification of the Credit Agreement (including any increase in the aggregate
principal amount of indebtedness) or pursuant to any other change in the Credit
Agreement or the security arrangements for the Credit Agreement, Agent may
assign this Agreement to any successor or other new lender (which lender may
include Agent) (the "New Lender"). This Agreement shall, without further action
by any party, be enforceable by New Lender. Although this paragraph is self-
executing, Landlord shall, on New Lender's request, execute and deliver a
written acknowledgment confirming the foregoing in form reasonably satisfactory
to New Lender.
13. This Agreement shall remain effective until Landlord shall have
received Agent's written certification that the Credit Agreement has been
terminated and all "Obligations" (as such terms is defined in the Credit
Agreement) to Agent have been irrevocably paid and satisfied in full.
14. Landlord acknowledges that Landlord's execution and delivery of this
Agreement constituted a material element of Agent's inducement to consent to the
transfer of the Premises from the Tenant to the Landlord.
[Signatures on following page]
-B-4-
IN WITNESS WHEREOF, Landlord has set its hand and seal as of the day and
year first written above.
Signed, sealed and delivered as of the ROMAN PROPERTIES, INC.
____ day of December, 1996,
in the presence of:
---------------------------------------- By:
Unofficial Witness -----------------------------
Name:
---------------------------
Title:
--------------------------
----------------------------------------
Notary Public
My Commission Expires:
[NOTARIAL SEAL]
Consented and Agreed By Tenant
HARRY'S FARMERS MARKET, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
-B-5-
EXHIBIT C
---------
FORM OF INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT dated as of December 31, 1996 by and
among NATIONWIDE LIFE INSURANCE COMPANY ("Nationwide") and NATIONSBANK, N.A.
(SOUTH) ("NationsBank") and CREDITANSTALT-BANKVEREIN ("Creditanstalt",
Creditanstalt and NationsBank each referred to herein as a "Lender" and
collectively, the "Lenders") and NATIONSBANK, N.A. (SOUTH), as Agent for the
Lenders (the "Agent");
W I T N E S S E T H:
--------------------
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement dated as of December 30, 1994 (as amended from time to time, the
"Credit Agreement") by and among the Lenders, the Agent and Harry's Farmers
Market, Inc. (the "Company"), the Lenders have made available to the Company
certain financial accommodations on the terms and conditions set forth therein;
WHEREAS, to secure the obligations of the Company under the Credit
Agreement, the Company has granted to the Agent, on behalf of the Lenders, a
security interest in, and/or lien upon, among other things, the Lender
Collateral (as defined below);
WHEREAS, the Company intends to transfer certain property described on
Exhibit A hereof (the "Real Property") to Roman Properties, Inc., a Georgia
corporation and a wholly-owned subsidiary of the Company ("RPI");
WHEREAS, Nationwide intends to extend a loan to RPI pursuant to that
certain Real Estate Note dated as of the date hereof (the "Real Estate Note")
executed by the Company in favor of Nationwide in the original principal amount
of $2,700,000;
WHEREAS, to secure the obligations of the Company under the Real
Estate Note, the Company proposes to grant to Nationwide a security interest in,
and/or lien upon, the Nationwide Collateral (as defined below);
WHEREAS, the Company, the Lenders and the Agent intend to enter into
that certain Eighth Amendment to Amended and Restated Security Agreement dated
as of the date hereof (the "Amendment") to permit the transactions contemplated
by the Real Estate Note and for certain other purposes;
WHEREAS, it is a condition precedent to the grant by the Lenders of
their consent to transactions contemplated by the Real Estate Note that the
Lenders and the Agent enter into an intercreditor agreement with Nationwide in
form and substance satisfactory to the Lenders and the Agent;
-C-1-
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Definitions. In addition to terms defined elsewhere
-----------
herein, the following terms shall have the following meanings:
"Acceleration Action" shall mean the taking of any action following
the occurrence of an Event of Default under the relevant agreement to collect
all or a portion of the Nationwide Obligations or the Lender Obligations, as the
case may be, including, but not limited to, declaring all or a portion of such
Obligations to be immediately due and payable, accelerating the maturity or
payment date of all or a portion of such Obligations, commencing legal
proceedings against the Company or RPI, as the case may be (including the filing
of an involuntary bankruptcy petition against the Company or RPI), repossessing,
taking possession of, foreclosing upon or otherwise exercising remedies against
the Nationwide Collateral or the Lender Collateral, as the case may be, directly
or otherwise exercising any rights or remedies under the Loan Documents (as
defined in the Real Estate Note) or the Credit Documents (as defined in the
Credit Agreement), as the case may be; provided, however, that the hiring or
seeking advice of counsel, the delivery of letters short of formal demands and
the like shall not constitute "Acceleration Actions".
"Agent Event of Default" shall mean the occurrence of any Event of
Default under and as defined by the Credit Documents (as defined in the Credit
Agreement).
"Agent Pledge Agreement" shall mean that certain Pledge Agreement
dated as of the date hereof executed by the Company in favor of the Agent, as
the same may be amended from time to time, pursuant to which the Company pledged
all of its shares of RPI to the Agent for the benefit of the Lenders.
"Applicable Law" shall mean all applicable provisions of
constitutions, statutes, rules, regulations and orders of all governmental
bodies and all orders and decrees of all courts and other tribunals.
"Credit Agreement" has the meaning set forth in the first "WHEREAS"
clause hereof and shall include such agreement as the same may be amended,
supplemented or modified from time to time.
"Equipment" means all equipment (other than a "vehicle" of a type for
which a certificate of title would be required within the meaning of O.C.G.A.
Section 40-3-20), machinery, office supplies, furniture and fixtures now owned
or hereafter acquired by Company used in Company's business operations or owned
by Company or in which Company has an interest and wherever located, together
with all replacements and substitutions therefor, and all accessions and parts
now or hereafter affixed thereto or used in connection therewith; provided,
however, Equipment shall not include any equipment or other personal property
leased by Company as lessee under any of the leases described in the Credit
Agreement and in no event shall the term Equipment or
-C-2-
Collateral include any such leases or any of Company's rights thereunder. Some
or all of the Equipment may be or become fixtures on the Real Property.
"Inventory" means (a) all inventory of the Company and all goods
intended for sale or lease by the Company, or for display or demonstration; (b)
all work-in-process; (c) all raw materials and other materials and supplies of
every nature and description used or which might be used in connection with the
manufacture, packing, shipping, advertising, selling, leasing or furnishing of
such goods or otherwise used or consumed in the Company's business; and (d) all
documents relating to any of the foregoing.
"Lender Collateral" shall mean all of the Company's right, title and
interest in and to each of the following, wherever located and whether now or
hereafter existing, or now owned or hereafter acquired or arising:
(a) all Receivables;
(b) all Inventory;
(c) all Equipment;
(d) all general intangibles of the Company of every kind and nature
including, but not limited to, all contract rights, choses in action and causes
of action of the Company against any Person or property, all tax refunds owing
to the Company, all insurance policies of the Company and all rights of the
Company to receive monies thereunder and all licenses, franchises, trademarks,
trade names, trade secrets, patents, copyrights and any and all other
intellectual property of the Company;
(e) all rights of the Company as an unpaid vendor or lienor
(including, without limitation, stoppage in transit, replevin and reclamation)
with respect to any Inventory or other properties of the Company;
(f) all chattel paper, documents and instruments of the Company
including all documents of title and certificates of insurance;
(g) all books, records, files, computer programs, data processing
records, computer software, documents, correspondence and other information at
any time evidencing, describing or pertaining to or in any way related to any of
the foregoing or otherwise pertaining or relating to the business or operations
of the Company;
(h) any and all balances, credits, deposits, accounts, items and
monies of the Company now or hereafter with the Agent or any Lender or any
affiliate of the Agent or any Lender or deposited with the Agent or any Lender
or any financial institution selected by the Agent pursuant to any lock box,
deposit, escrow or other collection agreement or otherwise, and all property of
the Company of every kind and description now or hereafter in the possession or
control of the Agent or any Lender for any reason; and
-C-3-
(i) any and all products and proceeds of any of the foregoing
(including, but not limited to, any claims to any items referred to in this
definition, and any claims of the Company against third parties for loss of,
damage to or destruction of, any or all of the Collateral or for proceeds
payable under, or unearned premiums with respect to, policies of insurance) in
whatever form, including, but not limited to, cash, instruments, general
intangibles, accounts, equipment, inventory, farm products, other goods,
documents and chattel paper and all proceeds of such proceeds.
"Lender Obligations" shall mean all of the indebtedness, interest,
charges and other obligations owing to the Agent and the Lenders by the Company
under the Credit Agreement and the other Credit Documents.
"Nationwide Collateral" shall mean:
(a) the Real Property;
(b) the Improvements as defined in the Nationwide Security Deed,
including, without limitation, any and all additions to, substitutions for or
replacement of such Improvements;
(c) all minerals, royalties, gas rights, water, water rights, water
stock, flowers, shrubs, lawn plants, crops, trees, timber and other emblements
now or hereafter located on, under or above any part of the Real Property;
(d) the Appurtenances as defined in the Nationwide Security Deed;
(e) the Rents as defined in the Nationwide Security Deed;
(f) any awards or payments, including interest thereon, and the right
to receive the same, as a result of (i) the exercise of the right of eminent
domain; (ii) the alteration of the grade of any street; or (iii) any other
injury to, taking of or decrease in the value of , the Property to the extent of
all amounts which may be secured by the Nationwide Security Deed at the date of
any such award or payment including but not limited to Reasonable Attorney's
Fees (as defined in the Nationwide Security Deed), costs and disbursements
incurred by Nationwide in connection with the collection of such award or
payment; and
(g) the Nationwide Fixtures and Personal Property.
"Nationwide Event of Default" shall mean the occurrence of any Event
of Default under the Nationwide Loan Documents.
"Nationwide Fixtures and Personal Property" means those Building
Systems as defined in Section 2 hereof.
-C-4-
"Nationwide Non-Payment Event of Default" shall mean the occurrence of
any Event of Default under the Nationwide Loan Documents other than a Nationwide
Payment Event of Default.
"Nationwide Obligations" shall mean all of the indebtedness, interest,
charges and other obligations of the Company and RPI owing to Nationwide under
the Real Estate Note and the other Loan Documents (as defined in the Real Estate
Note).
"Nationwide Payment Event of Default" shall mean the occurrence of a
Monetary Default under and as defined in the Real Estate Note and the other Loan
Documents (as defined therein).
"Nationwide Security Deed" shall mean that certain Deed to Secure Debt
and Security Agreement dated as of the date hereof executed by RPI in favor of
Nationwide, as the same may be amended from time to time.
"Person" shall mean any individual, corporation, trustee, trust,
partnership, limited liability company, limited liability partnership or partner
or other person or entity.
"Receivables" means all accounts and any and all rights to the payment
of money or other forms of consideration of any kind (whether classified under
the Uniform Commercial Code as accounts, chattel paper, general intangibles, or
otherwise) for goods sold or leased or for services rendered including, but not
limited to, accounts receivable, proceeds of any letters of credit naming the
Company as beneficiary, all contract rights, notes, drafts, instruments,
documents, acceptances in favor of the Company, and all other debts, obligations
and liabilities in whatever form owing by any Person to the Company.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in the State of Georgia, as the same may be amended from time to time.
Section 2. Acknowledgment of Respective Liens. The parties hereto
----------------------------------
acknowledge and agree that the Agent has no security interest, lien, encumbrance
or other claim to any Nationwide Collateral for itself or for the benefit of the
Lenders. More particularly, the Agent hereby agrees that notwithstanding
anything in the Credit Documents to the contrary, it has no security interest in
any furnaces, steam boilers, hot-water boilers, oil burners, pipes, radiators,
air-conditioning and sprinkler systems, carpets, rugs, shades, awnings, screens,
elevators located on the Real Property (collectively, the "Building Systems").
The parties hereto also agree that notwithstanding anything to the contrary
herein or in any of the Loan Documents, Nationwide has no security interest,
lien, encumbrance or other claim to any Lender Collateral, including, without
limitation any of the Inventory, any Equipment other than the Building Systems
of the Company (no matter how such Equipment may be affixed to the Real Property
and notwithstanding that such Equipment may constitute fixtures under Georgia
law), including without limitation, any ovens, ranges, shelving, coolers,
refrigerators, freezers, bakery or kitchen appliances, cabinets, furnishings
(including any equipment, other than Building Systems, ancillary to any of the
foregoing) or any of the other personal property of the Company located in or on
the Real Property.
-C-5-
Section 3. Cure Rights. Nationwide shall furnish the Agent with a
-----------
copy of any notice provided to the Company or RPI of the occurrence of any
Nationwide Event of Default (a "Notice of Event of Default"), such notice to be
sent to the Agent contemporaneously with the sending of such Notice of Event of
Default to the Company or RPI, as the case may be.
(a) Nationwide Payment Events of Default. Upon receipt by the Agent
------------------------------------
of a Notice of Event of Default with respect to a Nationwide Payment Event of
Default, the Lenders shall have the opportunity (but not the obligation) to cure
any such Nationwide Event of Default by tendering to Nationwide, within 10 days
after receipt by the Agent of the relevant Notice of Event of Default, the
aggregate amount due with respect to, the Nationwide Obligations. Nationwide
agrees that it shall not take any Acceleration Actions with respect to the
Nationwide Obligations before the expiration of such 10-day period. In the
event the Lenders shall timely cure any such Nationwide Payment Event of Default
as provided in this Section 3(a), Nationwide shall be deemed to have forever
waived any Event of Default under the Loan Documents by reason of the occurrence
of such Nationwide Payment Event of Default, and Nationwide shall not take any
Acceleration Actions with respect to the Nationwide Obligations by reason of the
occurrence of such Nationwide Payment Event of Default. For purposes of this
Agreement, should the 10-day period referred to herein end on a holiday or any
other day that is not a business day, such 10-day period shall be deemed to end
at the end of the next business day.
(b) Nationwide Non-Payment Events of Default. Upon receipt by the
----------------------------------------
Agent of a Notice of Event of Default with respect to a Nationwide Non-Payment
Event of Default, the Lenders shall have the opportunity (but not the
obligation) to cure any such Nationwide Non-Payment Event of Default in any
manner such that the omitted performance, condition, or occurrence is completed
or substituted within 30 days after receipt by the Agent of a Notice of Non-
Payment Event of Default. If the Nationwide Non-Payment Event of Default is of
a nature which cannot reasonably be cured within a 30-day period, then such 30-
day period shall be extended to 60 days if the cure to such Nationwide Non-
Payment Event of Default has been commenced and is being diligently pursued.
Nationwide agrees that it shall not take any Acceleration Actions with respect
to the Nationwide Obligations before the expiration of such 30-day or 60-day
period, as the case may be. In the event the Lenders shall timely cure any
Nationwide Non-Payment Event of Default as provided in this Section 3(b),
Nationwide shall be deemed to have forever waived any Event of Default under the
Loan Documents by reason of the occurrence of such Nationwide Non-Payment Event
of Default and Nationwide shall not take any Acceleration Actions with respect
to the Nationwide Obligations by reason of the occurrence of such Nationwide
Non-Payment Event of Default.
Section 4. Right to Purchase Nationwide Obligations. The Lenders
----------------------------------------
shall have the opportunity (but not the obligation) at any time to purchase all
Nationwide Obligations by tendering to Nationwide the aggregate amount of all
principal of, and accrued interest on, and other fees or charges (including,
without limitation, any prepayment premium owing pursuant to the Real Estate
Note as if the Nationwide Obligations were being then pre-paid by RPI) with
respect to, such Nationwide Obligations. In such event, upon receipt of full
payment, Nationwide will endorse the Real Estate Note and assign the other
Nationwide Loan Documents to the Agent
-C-6-
or its designee, without recourse, representation or warranty. Nationwide agrees
that it shall not take any Acceleration Actions with respect to the Nationwide
Obligations before the expiration of any applicable grace period provided in
Section 3 hereof.
Section 5. Lender Collateral as Personal Property. Notwithstanding
--------------------------------------
anything in any Credit Document or Loan Document to the contrary, Nationwide
hereby agrees that none of the Lender Collateral located on the Real Property
shall be deemed to be a fixture or a part of the Real Property, notwithstanding
the degree of attachment to such Real Property and such Lender Collateral shall
be regarded as personal property at all times.
Section 6. Agent's Rights of Entry upon an Agent Event of Default.
------------------------------------------------------
Upon the occurrence of an Agent Event of Default and, as a result, the Agent
desires to exercise its remedies with respect to the Lender Collateral,
Nationwide agrees to permit the Agent to enter onto the Real Property and to
remove any Lender Collateral from the Real Property, without charge. Nationwide
will agree to cooperate with Agent and agrees not to hinder the Agent in its
efforts to remove and foreclose upon the Lender Collateral. The Agent will
agree to reimburse Nationwide for all of its reasonable out-of-pocket costs and
expenses incurred in connection with such cooperation.
Section 7. Nationwide Election of Remedies. In the event the Lenders
-------------------------------
do not cure any Nationwide Event of Default as provided in Section 3 hereof
within the time periods described therein or do not purchase the Nationwide
Obligations as provided in Section 4 hereof within the applicable cure period,
nothing herein shall prohibit Nationwide from taking any Acceleration Actions
with respect to the Nationwide Obligations. Likewise, other than limitations
set forth in this Intercreditor Agreement, nothing herein shall be construed to
restrict the ability to Nationwide to enforce the Loan Documents.
Section 8. Limitation of Agent's and Lenders' Liability. Nationwide
--------------------------------------------
acknowledges and agrees that upon any Acceleration Action taken by the Agent
with respect to the Agent Pledge Agreement, neither the Agent nor any Lender
shall be liable in any manner for any Nationwide Obligation. Further, under no
circumstances shall the Lenders or the Agent be deemed to be parties to, to have
assumed any obligation under, or in any manner to be liable with respect to any
obligation arising under that certain (a) Principal's Indemnification and
Guaranty Agreement dated as of the date hereof executed by the Company in favor
of Nationwide; (b) Environmental Indemnity Agreement dated as of the date hereof
executed by RPI in favor of Nationwide; or (c) Accessibility Indemnity Agreement
dated as of the date hereof executed by RPI in favor of Nationwide. Nothing
conferred in this paragraph 8 will limit or impair the liability of RPI for any
Nationwide Obligation.
Section 9. Further Assurances; Assignments. Each party hereto agrees
-------------------------------
to execute and record such documents and instruments as are reasonably necessary
to evidence and/or carry out the agreements set forth herein. Further, each
party further agrees that, prior to any assignment or sale of a participation in
any of its interest in the Nationwide Obligations or the Lender Obligations, as
the case may be, , it shall have the proposed assignee or participant execute an
acknowledgment in favor of the Agent or Nationwide, as the case may be pursuant
to which such
-C-7-
assignee or participant acknowledges the existence of this Agreement and the
agreements contemplated hereby and agrees to be bound hereby as if an original
signatory hereto.
Section 10. Turnover of Proceeds/Collateral. In the event any party
-------------------------------
hereto obtains, accepts, receives or retains any monies, collateral, assets or
properties of the Company, RPI or other Persons to which it is not entitled to
so obtain, accept, receive or retain pursuant to this Intercreditor Agreement,
such party shall hold such monies, collateral, assets or properties in trust for
the other party hereto and shall immediately deliver such monies, collateral,
assets or properties to such other party in the form received, together with
such endorsements as may be necessary or appropriate to so transfer such monies,
collateral, assets or properties to such other party.
Section 11. Successors and Assigns/Amendments. The terms and
---------------------------------
conditions hereof shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto. No amendment, modification or
waiver of any provision of this Intercreditor Agreement shall in any way be
effective unless the same shall be in writing and signed by the parties hereto.
Section 12. Notices. Nationwide hereby agrees to give the Agent
-------
written notice 10 days before amending or waiving any of the provisions of the
Loan Documents or taking a security interest, lien or encumbrance in any other
collateral as security for the Nationwide Obligations; provided, however, that
the Agent will have no right to consent to or approve of the same.
Section 13. Governing Laws. THIS INTERCREDITOR AGREEMENT SHALL BE
--------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 14. Counterparts. This Intercreditor Agreement may be
------------
executed in any number of counterparts, each of which shall be deemed to be an
original and when taken together shall constitute one and the same agreement.
Section 15. Headings. The headings of the several sections and
--------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or constitution of any provision of this Agreement.
Section 16. Term of Agreement. This Agreement shall continue in full
-----------------
force and effect and shall not be revocable by any party hereto until the
earliest to occur of the following: (i) the parties hereto in writing mutually
agree to terminate this Agreement; (ii) the Lender Obligations are indefeasibly
fully paid and discharged and the Credit Agreement, the Security Documents (as
defined in the Credit Agreement) are terminated; or (iii) Nationwide Obligations
are indefeasibly fully paid and discharged and the Nationwide Loan Documents are
terminated.
Section 17. Third Party Beneficiaries. Nothing contained in this
-------------------------
Agreement shall be deemed to indicate that this Agreement has been entered into
for the benefit of any Person including the Company or RPI other than the
parties hereto, and no Person other than
-C-8-
Nationwide, the Lenders and the Agent (or any assignee or participant of any of
the foregoing) shall be deemed beneficiaries of this Agreement.
Section 18. Amendment to Loan Documents or Credit Documents. Except
-----------------------------------------------
as provided in the next succeeding sentence, nothing herein prevents the parties
hereto from modifying or amending any such party's loan documents or other
agreements with Company or RPI. Nationwide hereby agrees that it will not
without the prior written consent of the Agent amend the Real Estate Note or any
Loan Document in any manner which would (i) grant to Nationwide a lien upon or
security interest in any Lender Collateral or otherwise include any Lender
Collateral as security for any of the Nationwide Obligations; (ii) cross-default
or cross-accelerate any of the Nationwide Obligations to any other agreement
other than an agreement between Nationwide and RPI; or (iii) include any
agreement, covenant or other obligation on the part of RPI or the Company such
that RPI or the Company must maintain certain financial ratios or other
financial standards. Nothing in this Agreement is intended to modify or amend
any of the Credit Documents or Loan Documents and none of the rights to modify
such documents as acknowledged in the first sentence of this Section 18 should
be construed to indicate any consent to Harry's or RPI by any of the parties
hereto to enter into any such amendment.
Section 19. Acknowledgment and Consent of Landlord's Agreement.
--------------------------------------------------
Nationwide hereby acknowledges and consents to RPI executing that certain
Landlord's Agreement dated as of the date hereof in favor of the Agent for the
benefit of the Lenders.
Section 20. Rights Not Cumulative. The rights of the parties hereto
---------------------
are cumulative and not exclusive of one another.
(Signatures to Intercreditor Agreement on next page)
-C-9-
IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor
Agreement to be duly executed and delivered as of the date and year first
written above.
NATIONSBANK, N.A. (SOUTH), as a Lender and as
Agent
By:__________________________________________
Name:_____________________________________
Title:____________________________________
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
CREDITANSTALT-BANKVEREIN, as Lender
By:_________________________________________
Name:____________________________________
Title:___________________________________
Address for Notices:
Xxx Xxxxxxx Xxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
NATIONWIDE LIFE INSURANCE COMPANY
By:_________________________________________
Name:____________________________________
Title:___________________________________
Address for Notices:
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Real Estate Investments
-C-10-
ACKNOWLEDGMENT
Each of the Company and RPI hereby consents to the foregoing
Intercreditor Agreement. Each of the Company and RPI further agrees that the
parties hereto may amend or modify this Intercreditor Agreement without the
consent of the Company or RPI. The parties to the Intercreditor Agreement will
give the Company notice of any amendment to the Intercreditor Agreement.
Further, the Company agrees that, in the event the Lenders elect to
cure any Nationwide Event of Default as provided in Section 3 hereof or purchase
the Nationwide Obligations pursuant to Section 4 hereof, any such amounts paid
by the Lenders to Nationwide shall be deemed to constitute a Revolving Loan
under the Credit Agreement, shall bear interest at the Default Rate (as set
forth in the Credit Agreement) and shall be payable upon demand of the Lenders.
Neither this Intercreditor Agreement nor any agreements or
transactions contemplated hereby shall in any respect be interpreted, deemed or
construed as making either Nationwide and/or the Agent and/or the Lenders a
partner or joint venturer with the Company or RPI or as creating any similar
relationship or entity. The Company agrees that it will not make any contrary
assertion, contention, claim or counterclaim in any action, suit or other legal
proceeding involving the parties hereto.
Terms used in this Acknowledgment and not defined herein have the
meanings ascribed to them in the foregoing Intercreditor Agreement.
Acknowledged and Agreed as of the date first written above.
HARRY'S FARMERS MARKET, INC.
By:_______________________________________
Name:__________________________________
Title:_________________________________
ROMAN PROPERTIES, INC.
By:_______________________________________
Name:__________________________________
Title:_________________________________
-C-11-
EXHIBIT D
---------
FORM OF OPINION OF COMPANY'S COUNSEL
December __, 1996
NationsBank, N.A. (South),
in its individual capacity and as Agent
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Creditanstalt-Bankverein
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
This opinion is furnished to you in connection with the entry into and
performance by Harry's Farmers Market, Inc. ("Harry's"), of that certain Eighth
Amendment to Amended and Restated Credit Agreement, dated as of the date hereof,
(the "Amendment"), by and among Harry's, NationsBank, N.A. (South), in its
individual capacity ("NationsBank"), and Creditanstalt-Bankverein
("Creditanstalt," and collectively with NationsBank, the "Lenders"), and
NationsBank, N.A. (South), in its capacity as Agent for the Lenders (the
"Agent"). We have acted as counsel to Harry's and its wholly-owned
subsidiaries, Karalea, Inc. ("Karalea"), Marthasville Trading Company
("Marthasville") and Roman Properties, Inc., a Georgia corporation ("RPI")
(Harry's, Karalea, Marthasville and RPI each sometimes referred to hereinafter
as a "Loan Party" and collectively as "Loan Parties") in connection with the
execution and delivery of the Amendment, and the consummation by the Loan
Parties of the transactions contemplated in the Transaction Documents (as
hereinafter defined). Capitalized terms used herein and not defined herein
shall have the meanings ascribed to such terms in the Amendment.
In the capacity described above, we are familiar with the articles of
incorporation and the bylaws of each Loan Party and we are further familiar with
the corporate proceedings of each Loan Party relating to the Transaction
Documents and the transactions contemplated therein. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents:
(a) the Amendment;
-D-1-
(b) that certain Pledge Agreement dated as of the date hereof executed by
Harry's in favor of the Agent for the benefit of the Lenders (the "Pledge
Agreement");
(c) that certain Landlord's Agreement dated as of the date hereof executed by
RPI in favor of the Agent for the benefit of the Lenders;
(d) that certain Intercreditor Agreement by and among Nationwide Life
Insurance Company, the Agent and Harry's;
(e) a certificate of existence, dated December __, 1996, with respect to
Harry's issued by the Secretary of State of the State of Georgia; and
(f) a certificate of existence, dated December ___, 1996, with respect to RPI
issued by the Secretary of State of the State of Georgia.
Items (a) through (d) above are referred to collectively herein as the
"Amendment Documents."
Except as to the genuineness of the signatures of executive officers of the
Loan Parties on, and the authenticity of, the Amendment Documents, in our
examination of documents for purposes of rendering the opinions expressed
herein, we have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity to originals and
the authenticity of all documents submitted to us as copies. We have also
conducted such investigations of law as we have deemed necessary to render the
opinions hereinafter set forth.
With your permission, in rendering the opinions set forth in this opinion
letter, we have assumed the following without any investigation or inquiry that
each of the Amendment Documents constitutes the binding obligation of the
parties thereto other than the Loan Parties, and each such party thereto has all
requisite power and authority to perform its obligations thereunder;
The opinions expressed herein are limited to the federal laws of the United
States and the laws of the State of Georgia.
Based on the foregoing and subject to the qualifications set forth herein, we
are of the opinion that:
1. Each Loan Party is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia and has all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as and where such is now being conducted.
2. The execution, delivery and performance by each Loan Party of the Amendment
Documents to which it is a party are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not (a) contravene any law,
rule or regulation of the State of
-D-2-
Georgia, or of the United States, or, to the extent that we have knowledge
thereof, any order, writ, judgment, injunction, decree, determination or award
presently in effect which affects or binds it or any of its properties, (b)
conflict with or result in a breach of any of the provisions of its articles of
incorporation or bylaws, (c) conflict with or result in a breach of or default
under any of the material contracts to which such corporation is a party or by
which any of its respective properties may be bound, or (d) except as
contemplated by the Amendment Documents, result in the creation or imposition of
any lien, security interest or other charge or encumbrance upon any of its
properties.
3. To our knowledge there is no action, suit, arbitration proceeding,
investigation or inquiry pending before any court, arbiter or federal, state,
foreign, municipal or other governmental department, commission, board, bureau,
agency or instrumentality or threatened against any Loan Party or their
respective businesses or assets or which questions the validity of any Amendment
Documents or any action to be taken pursuant thereto.
4. No authorization, consent or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required to be
obtained or made by any Loan Party for the due execution, delivery and
performance by any of them of the Amendment Documents to which they are parties,
except such as have been duly obtained or made.
5. Each Amendment Document to which it is a party has been duly and validly
executed and delivered by each Loan Party and each such Amendment Document is an
enforceable obligation of such Loan Party.
6. The Pledge Agreement grants to the Agent a valid security interest in the
Pledged Collateral described in such Pledge Agreement.
7. The authorized capital stock of RPI consists of 10,000 shares of no par
common stock. All of the outstanding shares of capital stock of RPI are duly
authorized, validly issued and outstanding, fully paid and non-assessable.
There are no outstanding shares of preferred stock of RPI and there are no
outstanding options, warrants, subscriptions, rights, convertible securities or
other agreements or plans under which RPI may become obligated to issue, sell or
transfer shares of its capital stock or other securities.
The addressees hereof may rely on that certain Opinion of Nelson, Mullins,
Xxxxx & Xxxxxxxxxxx, L.L.P. dated as of the date hereof to Nationwide Life
Insurance Company as if the same were addressed to the addressees hereof.
This opinion letter has been delivered solely for the benefit of the Agent and
the Lenders in connection with the transactions contemplated by the Amendment
Documents and may not be relied upon by any other person or entity or for any
other purpose without our express prior written permission. We expressly
disclaim any duty to update this opinion letter in the future in the event there
are any changes in relevant fact or law that may change or otherwise affect any
of the opinions expressed herein.
-D-3-
Very truly yours,
By:
---------------------------------
-D-4-
