EXHIBIT 10.2
EXECUTION VERSION
AMENDED AND RESTATED SUBORDINATION AGREEMENT
THIS AMENDED AND RESTATED SUBORDINATION AGREEMENT (this
"Agreement") is entered into as of August 31, 2001, by and among XXX.
XXXXXX' ORIGINAL COOKIES, INC., a Delaware corporation (together with its
successors and assigns and all present and future holders of "Junior Debt"
as herein defined collectively and each, individually, "Junior Creditor"),
TCBY SYSTEMS, LLC, a Delaware limited liability company ("Systems"), TCBY
ENTERPRISES, INC., a Delaware corporation ("Enterprises"), TCBY HOLDING
COMPANY, INC., a Delaware corporation ("Parent") (Systems, Enterprises and
Parent, together with their successors and assigns collectively and each
individually, "Debtor"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its
capacity as agent ("Agent") for itself and the other financial institutions
from time to time party to the Amended and Restated Credit Agreement
referenced below ("Banks"). (Capitalized terms used herein and not defined
have the meanings respectively assigned to them in the Amended and Restated
Credit Agreement referenced below.)
R E C I T A L S
A. Systems, Enterprises, Agent and the Banks entered into a
certain Credit Agreement dated May 31, 2000, as amended by that certain
Amendment to Credit Agreement dated as of June 30, 2000 (as so amended, the
"May 2000 Credit Agreement"), pursuant to which the Agent and Banks
provided a senior secured term loan facility under the terms and conditions
set forth therein. Enterprises and Parent, along with certain of their
Affiliates, guaranteed the "Senior Debt" (as defined below) under the May
2000 Credit Agreement.
B. Systems and Parent and Junior Creditor entered into a certain
Management Agreement dated as of May 31, 2000, as amended by that Amendment
No. 1 to Management Agreement dated as of December 22, 2000 (as so amended,
the "May 2000 Management Agreement").
C. As one of the conditions precedent to the agreement of Agent
and Banks to consummate the transactions contemplated by the May 2000
Credit Agreement, Agent and such Banks required the execution and delivery
of a Subordination Agreement dated May 31, 2000 among Debtor, Junior
Creditor and the Agent (the "May 2000 Subordination Agreement").
D. The Debtor has requested that the Agent and Banks amend and
restate the May 2000 Credit Agreement in its entirety, as set forth in the
Amended and Restated Credit Agreement (as defined below) and thereby, among
other things, continue their extension of credit to Systems in the form of
a senior secured revolving loan facility. The Debtor has further requested
that the Agent and Banks consent to the amendment of the May 2000
Management Agreement pursuant to that Amendment No. 2 to Management
Agreement dated as of August 31, 2001 (as so amended, the "Management
Agreement").
E. As one of the conditions precedent to the transactions
contemplated by the Amended and Restated Credit Agreement, and to the
Agent's and Banks' consent to the Management Agreement, the Agent and Banks
have required the execution and delivery of this Agreement by Debtor and
Junior Creditor.
NOW, THEREFORE, as an inducement to Agent and Banks to extend
credit to Debtor and for other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the parties hereto hereby
agree as follows:
1. DEFINITIONS; INTERPRETATION. (a) (a) The following terms shall
have the following meanings in this Agreement:
"Advisory Fee" has the meaning set forth in Section
4(b)(ii).
"Acceleration Event" means, in respect of any Obligations
owed by Debtor, the occurrence of any of the following: (a) the Person who
is the obligee or holder of such Obligation accelerates such Obligation or
causes it to become due and payable prior to any regularly-scheduled
maturity or final payment date, or demands any sinking fund payment based
on a condition of default or insecurity, or (b) any "Indemnity Amount" (as
defined in the definition of Final Satisfaction) is demanded at any time
after Final Satisfaction of all other Senior Debt and such Indemnity Amount
is not fully paid in cash or cash equivalents satisfactory to the Agent and
Banks within five days of such demand, or (c) there arises in respect of
any swap contract to which Debtor is a party an early termination date in
respect of any or all transactions thereunder.
"Affiliate" means any Person directly or indirectly
controlling, controlled by, or under direct or indirect control with,
another Person. A Person shall be deemed to be "controlled by" any other
Person if such other person possesses, directly or indirectly, power (a) to
vote 20% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors, managing general
partners or managing members; or (b) to direct or cause the direction of
the management and policies of such Person, whether by contract or
otherwise.
"Amended and Restated Credit Agreement" means that
Amended and Restated Credit Agreement dated as of August 31,2001 among
Systems, Enterprises, Parent, the Agent, and the Banks from time to time
party thereto, as amended, modified, supplemented and restated from time to
time.
"Americana" has the meaning set forth in Section 4.
"Bankruptcy Code" means 11 U.S.C.ss.101, et seq., as
amended from time to time, and any successor statute.
"Business Day" means a day (i) other than Saturday or
Sunday, and (ii) on which commercial banks are open for business in Salt
Lake City, Utah, New York, New York, and San Francisco, California.
"Credit Agreement" means; (a) at all times prior to the
Restatement Closing Date, the May 2000 Credit Agreement, and (b) from and
after the Restatement Closing Date, the Amended and Restated Credit
Agreement, as such agreement may be amended, modified, supplemented, or
restated from time to time.
"Debtor" has the meaning set forth in the introductory
paragraph hereof.
"Debtor Relief Proceeding" means any voluntary or
involuntary insolvency, bankruptcy, receivership, custodianship,
liquidation, dissolution, reorganization, assignment for the benefit of
creditors, appointment of a custodian, receiver, trustee or other officer
with similar powers, or any proceeding for the sale, liquidation,
dissolution or other winding up of Debtor or all or substantially all of
the property of Debtor (including any such proceeding under the Bankruptcy
Code).
"Final Satisfaction" means, in respect of the Senior
Debt, that (a) all principal of the Senior Debt, together with all
interest, fees, costs and other charges accrued and owing under the Amended
and Restated Credit Agreement and any Loan Document have been paid in cash
or cash equivalents acceptable to the Agent and Banks and 91 days have
elapsed since the Agent and each Bank's receipt and application of the last
such payment; (b) each Bank's Revolving Commitment has terminated and
expired; (c) there exists no pending or threatened action, claim or
proceeding involving the Agent and Banks or any Senior Holder that has or
foreseeably may result in any claim by the Agent and any Bank for any
amount ("Indemnity Amount") against Debtor under the Amended and Restated
Credit Agreement or any Loan Document, including claims for
indemnification, reimbursement, contribution, or the like or, to the extent
such circumstances may exist, as certified by the Agent and Banks, Junior
Creditor has either (i) provided to the Agent (for the benefit of itself
and the Banks) a cash collateral pledge to secure the amount of any
reasonably anticipated claim arising therefrom, including claims for costs
or expenses, or (ii) permitted the Agent to retain its Liens under the
Amended and Restated Credit Agreement and Loan Documents to secure the
amount of any reasonably anticipated claim arising therefrom, including
claims for costs and expenses; and (d) there exists no continuing
commitment or obligation on the part of the Agent or any Bank under the
Amended and Restated Credit Agreement or any Loan Document to make further
advances or extend further credit accommodations thereunder to or for the
benefit of Debtor.
"Involuntary Payment Right" means, with respect to any
Obligation owed by any obligor, the exercise by any Person that is an
obligee or holder of such Obligation of any right of set-off, recoupment,
bankers' lien, freezing of deposit account, or similar right or remedy of
such obligee or holder against any obligor thereof or property of such
obligor.
"Junior Creditor" has the meaning set forth in the
introductory paragraph hereof.
"Junior Debt" has the meaning set forth in Section 2.
"Loan Documents" means (a) at any time prior to the
Restatement Closing Date "Loan Documents" as defined in the May 2000 Credit
Agreement, and (b) from and after the Restatement Closing Date, all
"Restated Loan Documents" as defined in the Amended and Restated Credit
Agreement.
"Management Agreement" has the meaning set forth in
Recital B hereto.
"May 2000 Credit Agreement" has the meaning set forth in
Recital A hereto.
"May 2000 Management Agreement" has the meaning set forth
in Recital B hereto.
"May 2000 Subordination Agreement" has the meaning set
forth in Recital B hereto.
"Obligations" has the meaning set forth in Section 3.
"Payment Default" means any Default or Event of Default
under Section 10.01(a) of the Amended and Restated Credit Agreement.
"Person" means any individual, trustee, corporation,
general partnership, limited partnership, limited liability company, joint
stock company, trust, unincorporated organization, bank, business
association, firm, joint venture, governmental authority or entity, or
other legal entity.
"Restatement Closing Date" means the date on which all
conditions precedent to the effectiveness of the Amended and Restated
Credit Agreement have been satisfied or waived by the Agent and Banks.
"Senior Debt" has the meaning set forth in Section 2.
"Transfer" with respect to Junior Debt, to sell, assign,
pledge, or otherwise transfer or dispose of all or any portion of or
interest in (including any participation in, title to, or the economic
benefit of) Junior Debt.
"Value Transfer" means, with respect to any Junior Debt,
the making, by payment (including in respect of any sinking fund),
dividend, distribution (including in any Debtor Relief Proceeding),
redemption, purchase or in any other manner, of any payment or transfer of
cash, securities, or other property, in full or partial satisfaction or
otherwise on account of or for such Indebtedness or other Junior Debt,
including the exercise by any Person that is an obligee or holder of such
Indebtedness of any right of set-off, recoupment, bankers' lien, freezing
of deposit account, or similar right or remedy of such obligee or holder
against any obligor thereof.
(b) The words "herein," "hereof" and "hereunder" and words of
similar import refer to this Agreement as a whole, including any Exhibits
and Schedules hereto, as the same may from time to time be amended,
modified or supplemented, and not to any particular section, subsection or
clause contained in this Agreement. Any reference to an exhibit, schedule,
section or paragraph shall refer to an exhibit, schedule, section or
paragraph of this Agreement. Wherever from the context it appears
appropriate, any term stated in either of the singular or plural shall
include the singular and the plural, and pronouns stated in the masculine,
feminine or neuter genders shall include the masculine, the feminine and
the neuter. The term "including" shall not be limiting or exclusive.
Section or paragraph headings in this Agreement are included for
convenience of reference only and are not part of this Agreement for any
other purpose. This Agreement has been jointly prepared and negotiated by
each of the parties hereto, each represented by counsel, and no party's
involvement in such preparation shall cause any ambiguity in this Agreement
to be interpreted against it.
2. OBLIGATIONS SUBORDINATED. Junior Creditor subordinates all
Obligations now or at any time hereafter owing from Debtor to Junior
Creditor (including interest thereon which may accrue subsequent to Debtor
becoming subject to any Debtor Relief Proceeding) ("Junior Debt") to all
Obligations now or at any time hereafter owing from Debtor to Agent or any
Bank under, related to, or in connection with any one or more of the Loan
Documents ("Senior Debt"). Except as set forth in Section 4, Junior
Creditor irrevocably consents and directs that all Senior Debt shall be
paid in full prior to Debtor making any Value Transfer on, or in respect
of, any Junior Debt and before Junior Creditor may accept, receive or
retain any Value Transfer on, or in respect of, any Junior Debt. Junior
Creditor will, and Agent is authorized in the name of Junior Creditor from
time to time to, execute and file such financing statements and other
documents as Agent may require (on behalf of itself and the Banks) in order
to give notice to other persons and entities of the terms and provisions of
this Agreement. As long as this Agreement is in effect, Junior Creditor
will not take any action or initiate any proceedings, judicial or
otherwise, to enforce Junior Creditor's rights or remedies with respect to
any Junior Debt, including any action to enforce remedies with respect to
any collateral securing any Junior Debt or to obtain any judgment or
prejudgment remedy against Debtor or any such collateral. This Section 2
shall constitute a continuing offer to all Persons who become holders of
any Senior Debt. The provisions of this Section 2 are made for the benefit
of all present and future holders of Senior Debt (and their successors and
assigns) and shall be enforceable by them (through the Agent) against
Junior Creditor, and any holder of Junior Debt.
3. OBLIGATIONS DEFINED. The word "Obligations" is used herein in
its most comprehensive sense and includes any and all indebtedness,
advances, debts, obligations and liabilities of Debtor heretofore, now or
hereafter made, incurred or created, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent, liquidated
or unliquidated, determined or undetermined, and whether Debtor may be
liable individually or jointly with others, including obligations and
liabilities arising from notes, repurchase agreements and trust receipts.
4. RESTRICTION OF PAYMENT OF JUNIOR DEBT; DISPOSITION OF PAYMENTS
RECEIVED BY JUNIOR CREDITOR. (a)(a) Except as set forth in subsection (b)
of this Xxxxxxx 0, Xxxxxx will not make, and Junior Creditor will not
accept, receive or retain, any Value Transfer, directly or indirectly, on
account of principal, interest or any other amounts owing on any Junior
Debt. If any Value Transfer is made by Debtor or received by Junior
Creditor in violation of this Agreement, Junior Creditor shall promptly
deliver the same to Agent in the form received, with any endorsement or
assignment necessary for the transfer of such payment or amounts setoff
from Junior Creditor to Agent, to be either (in Agent's discretion) held as
cash collateral securing the Senior Debt or applied in reduction of the
Senior Debt in such order as Agent and Banks shall determine, and until so
delivered, Junior Creditor shall hold such payment in trust for and on
behalf of, and as the property of, Agent for the benefit of itself and the
Banks.
(b) Subject to the other terms and conditions hereof, Junior
Creditor shall only be entitled to receive and retain payments (not
realized through any Involuntary Payment Right) on account of any Junior
Debt as follows:
(i) Management Fees and Expenses. Prior to an Acceleration
Event, Systems shall be permitted to pay, and Junior Creditor
shall be permitted to receive and retain, amounts in respect of
fees and expenses properly payable at such time under, pursuant to
and in accordance with the terms (including all terms relating to
deferrals of certain fees) of the Management Agreement.
(ii) Advisory Fee. Prior to an Acceleration Event, Parent
shall be permitted to make a one-time payment to Junior Creditor
solely out of the proceeds of a sale or disposition of
substantially all of the assets or Capital Stock of Americana (to
the extent such sale is permitted under the Amended and Restated
Credit Agreement) in the amount of Two Million Four Hundred
Thousand Dollars ($2,400,000), in satisfaction of an advisory fee
to Junior Creditor pursuant to Section 5.5 of the Management
Agreement ("Advisory Fee").
(iii) Tax Sharing Agreement Payments. Debtor may from time
to time after the consummation of a Permitted Xxx. Xxxxxx Merger,
make payments in respect of Obligations properly arising under the
Xxx. Xxxxxx Tax Sharing Agreement.
5. DISPOSITION OF EVIDENCE OF OBLIGATIONS. If there is any
existing promissory note or other evidence of any Junior Debt, or if any
promissory note or other evidence of Obligations is executed at any time
hereafter with respect thereto, then Debtor and Junior Creditor will xxxx
the same with a legend stating that it is subject to this Agreement, and if
asked to do so, will deliver the same to Agent for itself and the Banks.
Junior Creditor shall not, without Agent's prior written consent (on behalf
of itself and the Banks), assign, transfer, hypothecate or otherwise
dispose of any claim it now has or may at any time hereafter have against
Debtor at any time that any Senior Debt remains outstanding and/or Agent or
any Bank remains committed to extend any credit to Debtor.
6. AGREEMENT TO BE CONTINUING; APPLIES TO DEBTOR'S EXISTING
OBLIGATIONS AND ANY OBLIGATIONS HEREAFTER ARISING. This Agreement shall be
a continuing agreement and shall apply to any and all Obligations of Debtor
to Agent and Banks now existing or hereafter arising, including any
Obligations arising under successive transactions, related or unrelated,
and notwithstanding that from time to time all Obligations theretofore
existing may have been paid in full.
7. REPRESENTATIONS AND WARRANTIES; INFORMATION. Debtor and Junior
Creditor each represent and warrant to the Agent and each Bank that:
(a) Such Person has not Transferred all or any part of the
Junior Debt to any Person.
(b) Payment of the Junior Debt has not been heretofore
subordinated to any other creditor of Debtor.
(c) Junior Creditor has the requisite power and authority to
enter into and perform its obligations under this Agreement.
(d) Junior Creditor further represents and warrants to Agent
and each Bank that Junior Creditor has established adequate, independent
means of obtaining from Debtor on a continuing basis financial and other
information pertaining to Debtor's financial condition. Junior Creditor
agrees to keep adequately informed from such means of any facts, events or
circumstances which might in any way affect Junior Creditor's risks
hereunder, and Junior Creditor agrees that neither the Agent nor any Bank
shall have any obligation to disclose to Junior Creditor information or
material about Debtor which is acquired by Agent or any Bank in any manner.
The Agent may, at the Agent's and Banks' option and without obligation to
do so, disclose to Junior Creditor any information or material relating to
Debtor which is acquired by Agent or any Bank by any means, and Debtor
hereby agrees to and authorizes any such disclosure by the Agent on behalf
of itself and any Bank.
8. TRANSFER OF ASSETS OR REORGANIZATION OF DEBTOR. If any petition
is filed or any proceeding is instituted by or against Debtor in any Debtor
Relief Proceeding, any and all payments, distributions or other Value
Transfers in respect of any of Debtor's assets, whether in cash, securities
or any other property, which would be payable or deliverable with respect
to any Junior Debt, shall be paid or delivered to Agent, for itself and the
Banks, until all Senior Debt is paid in full. Junior Creditor grants to
Agent the right to enforce, collect and receive any such payment or
distribution, and to give releases or acquittances in respect of Junior
Debt in whole or part (for the benefit of itself and the Banks), and Junior
Creditor authorizes Agent as its attorney-in-fact to vote and prove the
Junior Debt in any of the above-described proceedings or in any meeting of
creditors of Debtor relating thereto.
9. INFORMATION; COOPERATION. The Junior Creditor shall furnish to
the Agent such information and documents respecting any and all Value
Transfers and the operations, properties, business or condition (financial
or otherwise) of Debtor under and in connection with the Management
Agreement as any Bank (through the Agent) may from time to time reasonably
request; and shall take such other acts as reasonably requested from time
to time by any Bank (through the Agent) in furtherance of the purpose of
this Agreement.
10. OTHER AGREEMENTS; NO THIRD PARTY BENEFICIARIES. Neither Agent
nor any Bank shall have any direct or indirect obligations to Junior
Creditor of any kind with respect to the manner or time in which Agent, on
behalf of itself and the Banks, exercise (or refrains from exercising), any
of their rights or remedies with respect to the Senior Debt, Debtor or any
of Debtor's assets. Junior Creditor understands that there may be various
agreements between the Agent and the Banks, on the one hand, and Debtor, on
the other hand, evidencing and governing the Senior Debt, and Junior
Creditor acknowledges and agrees that such agreements are not intended to
confer any benefits on Junior Creditor. Junior Creditor further
acknowledges that Agent may administer the Senior Debt and any of the
Agent's and the Banks' agreements with Debtor in any way Agent or such
Banks deem appropriate, without regard to Junior Creditor or the Junior
Debt. Junior Creditor waives any right it might otherwise have to require a
marshalling of any security held by Agent for all or any part of the Senior
Debt or to direct or affect the manner or timing with which Agent, on
behalf of itself or any other Bank, enforces any of its security. Nothing
in this Agreement shall impair or adversely affect any right, privilege,
power or remedy of Agent or any Bank with respect to the Senior Debt,
Debtor or any assets of Debtor, including Agent's or the Banks' right to:
(a) waive, release or subordinate any of Agent's or any other Bank's
security or rights; (b) waive or ignore any defaults by Debtor; and/or (c)
restructure, renew, modify or supplement the Senior Debt, or any portion
thereof, or any agreement with Debtor relating to any Senior Debt. All
rights, privileges, powers and remedies of the Agent and Banks may be
exercised from time to time by the Agent (for the benefit of itself and
each Bank) without notice to or consent of Junior Creditor.
11. BREACH OF AGREEMENT BY DEBTOR OR JUNIOR CREDITOR. In the event
of any breach of this Agreement by Debtor or Junior Creditor, then and at
any time thereafter Agent, on behalf of itself and other Banks, shall have
the right to declare immediately due and payable all or any portion of the
Senior Debt without presentment, demand, notice of nonperformance, protest,
notice of protest or notice of dishonor, all of which are hereby expressly
waived by Debtor and Junior Creditor. No delay, failure or discontinuance
of Agent or any Bank in exercising any right, privilege, power or remedy
hereunder shall be deemed a waiver of such right, privilege, power or
remedy; nor shall any single or partial exercise of any such right,
privilege, power or remedy preclude, waive or otherwise affect the further
exercise thereof or the exercise of any other right, privilege, power or
remedy. Any waiver, permit, consent or approval of any kind by Agent and
the Banks with respect to this Agreement must be in a writing signed by all
parties, and shall be effective only to the extent set forth in such
writing.
12. LIQUIDATED DAMAGES. Inasmuch as the actual damages which could
result from a breach by Junior Creditor of its duties under Section 4
hereof are uncertain and would be impractical or extremely difficult to
fix, Junior Creditor shall pay to Agent, in the event of any such breach by
Junior Creditor, as liquidated and agreed damages, and not as a penalty,
all sums received by Junior Creditor in violation of this Agreement on
account of the Junior Debt, which sums represent a reasonable endeavor to
estimate a fair compensation for the foreseeable losses that might result
from such a breach.
13. COSTS, EXPENSES AND ATTORNEYS' FEES. If any party hereto is
party to any arbitration or judicial, administrative or other informal
action or proceeding (including any Debtor Relief Proceeding) to enforce
any provisions of this Agreement, or alleging any breach of any provision
hereof or seeking damages or any remedy, the losing party or parties shall
pay to the prevailing party or parties all costs and expenses, including
reasonable attorneys' fees (to include outside counsel fees and all
allocated costs of such prevailing party's in-house counsel), expended or
incurred by the prevailing party or parties arising out of any and all such
proceedings (including any Debtor Relief Proceeding) and in connection
therewith, whether incurred at the trial or appellate level, or in an
arbitration or mediation proceeding relating to Debtor, Junior Creditor or
any other Person.
14. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be
binding upon and inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and assigns of the
parties. This Agreement may be amended or modified only in writing signed
by all parties hereto.
15. CONSTRUCTION. All words used herein in the singular shall be
deemed to have been used in the plural where the context so requires.
16. SEVERABILITY OF PROVISIONS. In the event that any provision of
this Agreement is deemed to be invalid, illegal or unenforceable by reason
of the operation of any law of by reason of the interpretation placed
thereon by any court or governmental authority, the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby, and the affected provision shall
be modified to the minimum extent permitted by law so as most fully to
achieve the intention of this Agreement. This Agreement is a separate
agreement between the Agent and Banks, on the one hand, and Junior Creditor
and each holder of Junior Debt now or hereafter existing, and shall be
enforceable against each such Person, notwithstanding any lack of
enforceability as to any other holder or Person for whatever reason.
17. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be
personally served, telecopied, telexed or sent by overnight courier service
or United States mail certified or registered and shall be deemed to have
been given (a) if delivered in person, when delivered; (b) if delivered by
telecopy or telex, on the date of transmission if transmitted on a Business
Day before 4:00 p.m. (Salt Lake City time) or, if not, on the next
succeeding Business Day; (c) if delivered by overnight courier, one
Business Day after delivery to such courier properly addressed; or (d) if
by United States mail, four Business Days after deposit in the United
States mail, postage prepaid and properly addressed.
Notices shall be addressed as follows:
(a) If to Junior Creditor:
Xxx. Xxxxxx Original Cookies, Inc.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Debtor:
TCBY Systems, LLC
c/o Xxx. Xxxxxx' Original Cookies, Inc.
0000 X. Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) If to the Agent or any Bank:
Xxxxx Fargo Bank, N.A.
as Administrative Agent
Regional Commercial Banking Xxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or in any case, to such other address as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section 17. A notice not given as provided above
shall, if it is in writing, be deemed given if and when actually received
by the party to whom given.
18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, except
that the Agent and Banks shall retain all rights arising under federal law.
19. EFFECT OF AGREEMENT. This Agreement is intended to amend the
May 2000 Subordination Agreement without novation, and, solely for
convenience of reference, to restate it. Debtor hereby reaffirms the
validity and binding effect of all terms and conditions of the May 2000
Subordination Agreement, as amended and restated pursuant to this
Agreement.
[THE REST OF THIS PAGE IS INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, Junior Creditor, Agent and Debtor have caused
this Agreement to be executed as of the date first above written.
JUNIOR CREDITOR
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
--------------------------------
Title: Senior Vice President
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AGENT
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
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Title: Vice President
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DEBTOR
TCBY SYSTEMS, LLC
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
--------------------------------
Title: Senior Vice President
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DEBTOR
TCBY ENTERPRISES, INC.
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
--------------------------------
Title: Senior Vice President
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DEBTOR
TCBY HOLDING COMPANY, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
--------------------------------
Title: Senior Vice President
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