EXHIBIT 10.15
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT is made this 31st day of January, 1997 by and
among CREDITANSTALT-BANKVEREIN, an Austrian banking corporation
("Creditanstalt"), as the successor agent under the Credit Agreement hereinafter
referred to (in such capacity, the "Agent"); and HFMI ACQUISITION CORPORATION, a
Delaware corporation ("Subordinate Lender").
W I T N E S S E T H:
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WHEREAS, the lenders (the "Senior Lenders") under a certain Amended and
Restated Credit Agreement, dated as of December 30, 1994, as amended (as
heretofore, now or hereafter amended, modified, restated or refinanced, the
"Senior Credit Agreement") by and among Harry's Farmers Market, Inc., a Georgia
corporation ("Borrower"), the Senior Lenders and the Agent, have agreed to
extend certain financial accommodations to Borrower, pursuant thereto, and have
secured the payment of all "Obligations" of Borrower to the Senior Lenders
arising pursuant to, and as such term is defined in, the Senior Credit Agreement
(herein collectively referred to as the "Senior Indebtedness") by retaining from
Borrower and all of its Subsidiaries (as such term is defined in the Senior
Credit Agreement) other than Roman Properties, Inc. a security interest in
substantially all of the personal property of Borrower and such Subsidiaries
pursuant to the "Security Documents," as such term is defined in the Senior
Credit Agreement; and
WHEREAS, Borrower and/or its Subsidiaries further have executed in favor
of Agent certain deeds to secure debt (herein collectively referred to as the
"Senior Deeds"; the Senior Credit Agreement and the Senior Deeds, together with
all related documentation, all as in effect from time to time, are hereinafter
referred to as the "Senior Loan Documents") with respect to their owned real
property and the improvements thereon, situated in Xxxx, Xxxxxx and Gwinnett
Counties, Georgia (herein collectively called the "Premises"), granting security
title to such Premises as additional security for the payment and performance of
the Senior Indebtedness and the Senior Credit Agreement; and
WHEREAS, Subordinate Lender has agreed to extend certain financial
accommodations to Borrower pursuant to a Secured Loan Agreement of even date
herewith between Subordinate Lender and Borrower (the "Subordinate Loan
Agreement"), and has secured the payment of all indebtedness, obligations,
liabilities of the Borrower to the Subordinate Lender arising out of the
Subordinated Loan Documents (as hereinafter defined), whether now existing or
hereafter arising, direct or indirect, absolute or contingent, joint and/or
several, arising by operation of law or otherwise (herein collectively called
the "Subordinated Debt") by receiving from Borrower and its Subsidiaries (other
than RPI) a security interest in substantially all of their respective personal
property pursuant to the Subordinate Loan Agreement; and
WHEREAS, Borrower and/or such Subsidiaries further have executed or
agreed to execute in favor of Subordinate Lender certain deeds to secure debt
(herein collectively referred to as the "Subordinate Deeds"; the Subordinate
Loan Agreement and the Subordinate Deeds, together with all related
documentation, all as in effect from time to time, are hereinafter referred to
as the "Subordinate Loan Documents"), granting security title to the Premises as
additional security for the payment and performance of the Subordinated Debt and
the Subordinate Loan Agreement;
WHEREAS, as a result of the Senior Loan Documents and the Subordinate
Loan Documents, Agent and Subordinate each hold or will hold security interests
in substantially all of the personal property of the Borrower and certain of its
Subsidiaries (such interests being hereinafter collectively referred to as
"Security Interests" and, individually, as a "Security Interest") and hold
security title to the Premises (such interests being hereinafter referred to
collectively as "Liens" and individually as a "Lien"); and
WHEREAS, Agent and Subordinate Lender wish to enter into this Agreement
for the purpose of setting forth (i) the relative priorities of their respective
Liens in the Premises and respective Security Interests in the personal property
of the Borrower and such Subsidiaries, and (ii) certain other agreements between
them with respect to their respective agreements with the Borrower and its
Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Subordinate Lender and Agent, on behalf of the Senior Lenders, agree as follows:
1. Debt Subordination. Except as set forth in Section 4 hereof,
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Subordinate Lender will not ask for, demand, xxx for, take or receive from the
Borrower, by setoff or in any other manner, the whole or any part of the
Subordinated Debt, whether principal or interest, unless and until the Senior
Indebtedness shall have been fully paid and satisfied and all financing
arrangements between the Senior Lenders and the Borrower have been terminated in
writing by Agent and/or the Senior Lenders.
2. Lien Subordination.
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(a) Agent and Subordinate Lender agree at all times, whether before,
after or during the pendency of any bankruptcy, reorganization or other
insolvency proceeding and notwithstanding the priorities which would ordinarily
result from the order of granting of any Lien or Security Interest, or the order
of filing or recording of any deed to secure debt or financing statements or any
other matter, Agent's Security Interests in all the personal property of
Borrower and its Subsidiaries (the "Collateral") and Agent's Lien on the
Premises shall constitute a first priority Lien on and Security Interest in such
property and Subordinate Lender's Liens and Security Interests in the Premises
and such property shall constitute a second priority Lien on and Security
Interest therein.
(b) Subordinate Lender agrees that it will not ask for, demand, xxx
for, take, receive, or possess from Borrower or any of its Subsidiaries, by
setoff or in any other manner, the whole or any part of the Collateral or the
Premises, or foreclose or otherwise realize upon the whole or any part of the
Collateral or the Premises, whether by judicial action or under power of sale,
by self-help repossession or otherwise, unless and until all of the Senior
Indebtedness has been paid in full and all financing arrangements between the
Senior Lenders and the Borrower have been terminated in writing by Agent and/or
the Senior Lenders.
(c) Subordinate Lender agrees that, upon any sale or other disposition
of all or any of the Collateral or the Premises, if the Agent agrees to release
its Security Interest in any such Collateral or its Lien in such Premises, or if
the net cash proceeds of such sale or disposition are being applied to the
payment of the Senior Indebtedness, Subordinated Lender shall be deemed to have
consented to such sale or other disposition and agrees to release its Security
Interest in any such Collateral and/or its Lien in any such Premises.
Subordinate Lender hereby grants to the Agent and each Senior Lender an
irrevocable power of attorney to execute and deliver any such release required
of Subordinate Lender hereunder.
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(d) Subordinate Lender hereby (i) consents to the granting of a
Security Interest by Borrower in the HFMI License Agreement dated of even date
herewith between HFMI Trust and Borrower (the "License") and the Georgia Class
Ownership Certificates (the "Certificates"), as such term is defined in the
Trust Agreement dated of even date herewith by and among Borrower, Subordinate
Lender and Wilmington Trust Company (the "Trust Agreement"), (ii) consents to
any Transfer (as such term is defined in the License) of the License and the
Certificates made by the Agent in exercise of its remedies in respect of the
License and the Certificates or made by the Borrower if the proceeds from such
Transfer are used to permanently reduce the Senior Indebtedness and (iii) waives
its Call Option (as such term is defined in the Trust Agreement) (A) so long as
the Senior Indebtedness remains unpaid, the Senior Credit Agreement has not been
terminated, and the Senior Indebtedness has not been purchased by Subordinate
Lender pursuant to Section 7(b) or Section 8 hereof and (B) in connection with
or following any Transfer described in clause (ii) above.
3. Subrogation. Except as set forth in Section 4 hereof, Subordinate
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Lender also agrees that, regardless of whether the Senior Indebtedness is
secured or unsecured, the Agent and the Senior Lenders shall be subrogated to
Subordinate Lender with respect to Subordinate Lender's claims against Borrower
and Subordinate Lenders' rights, liens and security interests, if any, in the
Collateral or the Premises and the proceeds thereof until all of the Senior
Indebtedness of Borrower to the Agent and the Senior Lenders shall have been
paid and fully satisfied and all financing arrangements between the Senior
Lenders and the Borrower have been terminated in writing by Agent and/or the
Senior Lenders.
4. Permitted Transactions. Notwithstanding anything to the contrary set
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forth herein:
(a) Borrower may make, and Subordinate Lender may accept, the regularly
scheduled payments of interest provided for in the Subordinated Loan Agreement
(without giving effect to any amendment or modification thereof which would have
the effect of increasing any such payment or accelerating the maturity thereof);
provided, however, that:
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(i) No payment may be made by Borrower on account of the interest on the
Subordinated Debt (A) upon the maturity of any Senior Indebtedness of Borrower
by lapse of time, acceleration (unless waived) or otherwise, unless and until
all principal of, premium, if any, and interest on such Senior Indebtedness are
first paid in full (or such payment is duly provided for), or (B) in the event
of default in the payment of any principal of, premium, if any, or interest on
any Senior Indebtedness of Borrower when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise (a
"Payment Default"), unless and until such Payment Default has been cured or
waived or otherwise has ceased to exist.
(ii) Upon (A) the happening of an event of default (other than a Payment
Default) that permits, or would permit, with (w) the passage or time, (x) the
giving of notice, (y) the making of any payment of the Subordinated Debt then
required to be made, or (z) any combination thereof (collectively, a "Non-
Payment Default"), the Agent immediately to accelerate its maturity and (B)
written notice of such Non-Payment Default given to Borrower and the Subordinate
Lender by the Agent (a "Payment Notice"), then, unless and until such Non-
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Payment Default has been cured or waived or otherwise has ceased to exist, no
payment by set-off or otherwise) may be made by or on behalf of Borrower on
account of the interest on the Subordinated Debt. Notwithstanding the
foregoing, unless (1) the Senior Indebtedness exists has been declared due and
payable in its entirety within 179 days after the Payment Notice is delivered as
set forth above (the "Payment Blockage Period"), and (2) such declaration has
not been rescinded or waived, at the end of the Payment Blockage Period,
Borrower shall be required to pay all sums not paid to the Subordinate Lender
during the Payment Blockage Period due to the foregoing prohibitions which were
scheduled to be payable during the Blockage Period and to resume all other
payments as and when due on the Subordinated Debt. More than one Payment Notice
may be given in any 365-day period, provided, however, that in no event,
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however, may the total number of days during which any Payment Blockage Period
or Payment Blockage periods are in effect exceed 179 days in the aggregate
during any consecutive 365-day period.
(b) The aggregate principal amount of Subordinated Debt may be reduced as
a result of Subordinate Lender contributing such Subordinated Debt to the
capital of Borrower in payment of the purchase price for shares of Series B
Preferred Stock (as such term is defined in the Senior Credit Agreement) issued
to Subordinate Lender as contemplated by Section 3.9 of the Subordinate Loan
Agreement.
5. Priority on Distribution of Proceeds. In the event of any
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distribution, division or application, partial or complete, voluntary or
involuntary, by operation of law or otherwise, of all or any part of the assets
of Borrower or the products or proceeds thereof, to the creditors of Borrower or
any of its Subsidiaries or readjustment of the obligations and indebtedness of
Borrower or any of its Subsidiaries, whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding involving the readjustment of all or any of
the indebtedness or obligations of Borrower or any of its Subsidiaries, or the
application of the assets of Borrower or any such Subsidiary to the payment or
liquidation thereof, or the dissolution or other winding up of Borrower's or
such Subsidiary's business, or upon the sale of all or substantially all of
Borrower's or any such Subsidiary's business, the distributions of proceeds of
the assets of Borrower or such Subsidiary shall be made first to the Agent for
application to the Senior Indebtedness and, following the payment of the Senior
Indebtedness in full, then the Subordinated Debt.
6. Grant of Authority to the Agent. In order to enable the Agent to
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enforce its rights hereunder in any such action or proceeding, the Agent is
hereby irrevocably authorized and empowered, in its discretion, to: (a) make and
present for and on behalf of Subordinate Lender such proofs of claims against
Borrower on account of the Subordinated Debt as the Agent may deem expedient or
proper and to receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
to apply the same on account of any of the Senior Indebtedness; (b) to demand,
xxx for, collect and receive every such payment or distribution and give
acquittance therefor; and (c) to file claims and take such other acts and
commence such other proceedings, in the Agent's own name or in the name of
Subordinate Lender, any Senior Lender or otherwise, as the Agent may deem
necessary or advisable for the enforcement of this Agreement. Subordinate
Lender shall execute and deliver to the Agent such powers of attorney,
assignments or other instruments or documents, as may be requested by the Agent
in order to enable the Agent to enforce any and all claims upon or with respect
to any or all of the Subordinated Debt and to collect and receive any and all
payments or distributions which may be payable or deliverable at any time upon
or with respect to the Subordinated Debt, all for benefit of the Senior Lenders.
7. Notice of Default; Right to Cure, Negotiate.
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(a) Generally. Agent agrees to give to the Subordinate Lender copies
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of any written notices of default which may be given under or pursuant to the
terms of any of the Senior Loan Documents, which the Agent gives Borrower,
hereafter (herein called a "Notice of Default") either concurrently with, or as
soon as practicable after, the giving of any such notice to Borrower;
(b) Specific Cure Right as to Senior Indebtedness. Agent further
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agrees, in connection with the giving of any Notice of Default to Subordinate
Lender pursuant to subsection (a) hereof, before taking any enforcement action
with respect to its Security Interest in the Collateral or with respect to its
Lien on the Premises (other than as may be deemed necessary or advisable by
Agent to perfect, protect or preserve such Security Interest or Lien), to permit
Subordinate Lender, within a period not to exceed the longer of (x) 10 days from
its receipt of such Notice of Acceleration or (y) any cure period provided in
the Senior Loan Documents with respect thereto, either to (i) cure, on behalf of
Borrower, the default or defaults in consequence of which the Agent and the
Senior Lenders have elected to take the actions described in such Notice of
Default, and, should Subordinate Lender, within such cure period, cure such
default or defaults to the satisfaction and the Agent and the Senior Lenders,
Agent agrees with Subordinate Lender to reinstate the Senior Loan Documents
effective upon such cure (to the extent no other defaults then exist thereunder)
and not take any enforcement actions with respect to the Premises or the
Collateral which, in the absence of such cure by Subordinate Lender, otherwise
then would be available to Agent or (ii) purchase the Senior Indebtedness, for
an amount equal to the then outstanding principal balance of the Senior
Indebtedness, all accrued interest, fees and charges thereon, and all costs
incurred to date of such purchase by the Agent or the Senior Lenders which are
reimbursable by the Borrower under the Senior Loan Documents, upon payment of
which amount the Agent and the Senior Lenders forthwith shall transfer, without
recourse, warranty or representation, and deliver to the Subordinate Lender, the
Senior Loan Documents pertaining to the Senior Indebtedness. For purposes of
calculating the principal, accrued interest, fees, charges and unreimbursed cost
outstanding under the Senior Loan Documents, the purchase of the Senior
Indebtedness shall be treated as if it were a repayment in full of the Senior
Indebtedness.
(c) Prior to any Transfer (as such term is defined in the License) of
the License or the Certificates made by the Agent in exercise of its remedies in
respect of the License, Agent agrees to give Subordinate Lender a fifteen (15)
day period during which Subordinate Lender shall have the right to negotiate
with the Agent and the Senior Lenders for purchase by Subordinate Lender of the
License and Certificates and Agent agrees to negotiate in good faith with
Subordinate Lender in connection therewith; provided, however, that if by the
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end of such fifteen (15) day period Agent and Subordinate Lender have not been
able to reach agreement on the terms of any such sale, Agent shall be free to
Transfer the License to any person or entity and on such terms and conditions as
the Agent and the Senior Lenders deem appropriate. In connection with any
negotiation undertaken pursuant to the foregoing sentence, the Subordinate
Lender acknowledges and agrees that the availability of the License is likely to
enhance the value of the Collateral and the Premises and that the Agent and the
Senior Lenders may negotiate for any purchase of the License by Subordinate
Lender negotiated pursuant to this Section 7(c) to also include the purchase by
Subordinate Lender of some or all of the Collateral and/or the Premises, as the
Agent and the Senior Lenders deem appropriate. Upon the Transfer of the License
and the Certificates to any person or entity other than Subordinate Lender, the
Agent shall require the transferee to acknowledge in writing that it is bound by
the terms of the License, except to the extent expressly waived by Subordinate
Lender pursuant to this Agreement.
8. Purchase Option Upon Change of Control. Upon the occurrence of a
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"Change of Control" which triggers the "Call Option," as such terms are defined
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in the Trust Agreement, Subordinate Lender shall have the option, within thirty
(30) days thereafter, to purchase the Senior Indebtedness, for an amount equal
to the then outstanding principal balance of the Senior Indebtedness, all
accrued interest, fees and charges thereon, and all costs incurred to date of
such purchase by the Agent or the Senior Lenders which are reimbursable by the
Borrower under the Senior Loan Documents, upon payment of which amount the Agent
and the Senior Lenders forthwith shall transfer, without recourse, warranty or
representation, and deliver to the purchasing party, the Senior Loan Documents
pertaining to the Senior Indebtedness. For purposes of calculating the
principal, accrued interest, fees, charges and unreimbursed cost outstanding
under the Senior Loan Documents, the purchase of the Senior Indebtedness shall
be treated as if it were a repayment in full of the Senior Indebtedness.
9. Receipt of Moneys. Except as provided in Section 4 hereof, should any
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payment or distribution or security or instrument or proceeds thereof be
received by Subordinate Lender upon or with respect to the Subordinated Debt
(other than shares of Borrower's Series B Preferred Stock) prior to the
satisfaction of all of the Senior Indebtedness owing to the Agent and the Senior
Lenders and termination in writing by the Agent and the Senior Lenders of all
financing arrangements between Borrower and the Senior Lenders, the Subordinate
Lender shall receive and hold the same in trust, as trustee, for the benefit of
the Agent and shall forthwith deliver the same to Agent in precisely the form
received (except for endorsement or assignment by Subordinate Lender where
necessary), for application on any of the Senior Indebtedness, due or not due,
and, until so delivered, the same shall be held in trust by Subordinate Lender
as the property of the Agent. In the event of the failure of Subordinate Lender
to make any such endorsement or assignment to the Agent, the Agent, or any of
its officers or employees, is hereby irrevocably authorized to make the same.
10. Instrument Legend. Any instruments evidencing any of the
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Subordinated Debt, or any portion thereof, including, without limitation, the
Subordinated Note, will, on the date hereof or promptly hereafter, be inscribed
with a legend conspicuously indicating that payment thereof is subordinated to
the claims of the Agent and the Senior Lenders pursuant to the terms of this
Agreement. Any instrument evidencing any of the Subordinated Debt, or any
portion thereof, which is hereafter executed by Borrower, will, on the date
thereof, be inscribed with the aforesaid legend.
11. Transfer of Claims. Subordinate Lender agrees not to assign or
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transfer to others any claims relating to the Subordinated Debt while any of the
Senior Indebtedness remains unpaid unless such assignment or transfer is made
expressly subject to this Agreement.
12. Term. This Agreement shall constitute a continuing agreement of
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subordination, and the Senior Lenders may continue, without notice to
Subordinate Lender, to lend monies, extend credit and make other accommodations
to or for the account of Borrower on the faith hereof, and this Agreement shall
be irrevocable by Subordinate Lender until all Senior Indebtedness shall have
been paid and fully satisfied, and all financing arrangements between the
Borrower and the Senior Lenders have been terminated in writing by the Agent
and/or the Senior Lenders.
13. Additional Agreements Among Agent, Senior Lenders and Borrower.
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(a) Subject to subsection (b) below, the Agent and/or the Senior
Lenders, at any time and from time to time, may enter into such agreement or
agreements with Borrower as the Agent or the Senior Lenders may deem proper,
extending the time of payment of or renewing or otherwise amending or altering
the terms of all or any of the Senior Indebtedness or affecting the security
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underlying any or all of the Senior Indebtedness, or may exchange, sell,
release, surrender or otherwise deal with any such security, without in any way
impairing or affecting this Agreement hereby.
(b) The Agent agrees that it shall not, without the consent of the
Subordinate Lender, amend the Senior Loan Agreement (i) to increase the
aggregate principal amount of the Senior Indebtedness above $13,500,000; (ii) to
amend the provisions of Sections 9.3 (Interest Coverage Ratio) or 9.4 (Tangible
Net Worth) to require a higher level of financial performance by the Borrower
during any period than such Sections require on the date hereof; (iii) to amend
the provisions of Section 8.7 (Operating Leases) to reduce the operating leases
that the Borrower may enter into below the level permitted to the Borrower by
such covenant on the date hereof (iv) or amend the Senior Loan Agreement to
include a covenant expressly limiting capital expenditures. If notwithstanding
the foregoing Borrower, the Agent and Senior Lenders so amend the Senior Loan
Agreement without first obtaining the consent of the Subordinate Lender, such
amendment shall not be a breach of this Agreement unless (A) Subordinate Lender
notifies the Agent of such breach prior to the end of the earliest of (x)
fifteen (15) days after the Subordinate Lender learns of such amendment, (y)
fifteen (15) days after the filing of the Borrower's first quarterly report on
Form 10-Q or annual report on Form 10-K after the date of such amendment or (z)
fifteen (15) days after the filing of any report by the Borrower on Form 8-K
which discloses such amendment and (B) such breach is not cured by the Agent
and/or the Senior Lenders within (60) days after the date the Agent receives
such notice (which cure may be effected by voiding the offending amendment). In
the event any such breach is not cured in period specified in clause (B) above,
Subordinate Lender shall have a claim against Agent for any damages suffered by
it as a result of such amendment but such breach shall not impair the
subordination provisions and the other obligations of Subordinate Lender
hereunder.
14. Subordinate Lender's Waivers. All of the Senior Indebtedness shall be
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deemed to have been made or incurred in reliance upon this Agreement, and
Subordinate Lender expressly waives all notice of the acceptance by the Agent or
the Senior Lenders of the subordination and other provisions of this Agreement,
all other notices whatsoever, and reliance by the Agent or the Senior Lenders
upon the subordination and other agreements as herein provided. Subordinate
Lender agrees that: (a) neither the Agent nor any Senior Lender has made any
warranties or representations with respect to the due execution, legality,
validity, completeness or enforceability of the Senior Credit Agreement or the
other Security Documents (as such term is defined in the Senior Credit
Agreement), or the collectibility of the Senior Indebtedness; (b) the Agent and
the Senior Lenders shall be entitled to manage and supervise their loans to the
Borrower in accordance with their usual practices, modified from time to time as
they deem appropriate under the circumstances, without regard to the existence
of any rights that Subordinate Lender may now or hereafter have in or to any of
the assets of the Borrower; and (c) neither the Agent nor any Senior Lender
shall have any liability to Subordinate Lender for, and Subordinate Lender
waives any claim which he may now or hereafter have against the Agent or any
Senior Lender arising out of, any and all actions which the Agent or such Senior
Lender, in good faith, takes or omits to take (including, without limitation,
actions with respect to the creation, perfection or continuation of the Liens in
the Premises or the Security Interests in the Collateral, actions with respect
to the occurrence of an Event of Default, actions with respect to the
foreclosure upon, sale of, release of, depreciation of or failure to realize
upon, any of the Collateral or Premises and actions with respect to the
collection of any claim for all or any part of the Senior Indebtedness from any
account debtor, guarantor or any other party) with respect to the Loan Agreement
or the other Loan Documents or to the collection of the Senior Indebtedness of
Borrower to the Senior Lender or the valuation, use, protection or release of
the Collateral.
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15. Agent's and Senior Lenders' Waivers. No waiver shall be deemed to be
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made by the Agent or any Senior Lender of any of its rights hereunder, unless
the same shall be in writing signed by the Agent or such Senior Lender, and each
waiver, if any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of the Agent or such Senior
Lender or the obligations of Subordinate Lender to the Agent and the Senior
Lenders in any other respect at any other time.
16. Application of Payments. The Subordinate Lender hereby agrees that
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all payments received by the Agent or the Senior Lenders from Borrower may be
applied and reapplied, in whole or in part, to any of the Senior Indebtedness,
as the Senior Lenders, in their sole discretion, deem appropriate.
17. Representations and Warranties. Subordinate Lender hereby represents
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and warrants to the Agent and the Senior Lenders as follows:
(a) Subordinate Lender has all requisite power and authority to
execute, deliver and perform this Agreement and without other or further action
or approval of any kind;
(b) This Agreement constitutes the valid and legally binding
obligation of Subordinate Lender, enforceable in accordance with its terms
(except that enforceability may be limited by bankruptcy, insolvency and other
laws affecting creditors' rights generally), and no consent or approval of any
other party and no consent, license, approval or authorization of any
governmental authority, bureau or agency is required in connection with the
execution, delivery, performance, validity and enforceability of this Agreement.
18. Notices. Any notices required to be given hereunder shall be sent by
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first class certified mail, postage prepaid, return receipt requested, by
facsimile or delivered by hand, and shall be deemed to have been made when
received. Notices to Agent shall be addressed to Agent at:
Creditanstalt-Bankverein
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
with a copies to: Creditanstalt-Bankverein
0 Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
and
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Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
notices to Subordinate Lender shall be addressed to Subordinate Lender at:
HFMI Acquisition Corporation
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
19. Relationship of Parties. This Agreement is entered into solely for
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the purposes set forth above, and, except as expressly provided otherwise
herein, no party assumes any responsibility to the other to advise the other of
information known to such party regarding the financial condition of the
Borrower, or regarding the Collateral or the Premises, or of any other
circumstances bearing upon the risk of nonpayment of the obligations of Borrower
under the Senior Loan Documents or the Subordinate Loan Documents, respectively.
Each party shall be responsible for managing its relationship with Borrower, and
no party shall be deemed the agent of any other party for any purpose. Agent may
alter, amend, supplement, release, discharge or otherwise modify any terms of
the Senior Loan Documents without notice to or consent of the Subordinate
Lender.
20. Refinancing of Senior Credit Agreement. In the event that the
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Borrower incurs indebtedness, the proceeds of which are use to repay the Senior
Indebtedness in full (the "Refinancing Indebtedness"), the Subordinate Lender
agrees, upon the request of the holder of the Refinancing Indebtedness, to enter
into a replacement intercreditor agreement, on the same terms and conditions as
this Agreement (a "Replacement Intercreditor Agreement"), with the holder(s) of
such refinancing Indebtedness or their representative. Upon the execution and
delivery of any such Replacement Intercreditor Agreement, any reference in the
Subordinate Loan Documents to this Agreement shall be deemed to refer to such
Replacement Intercreditor Agreement.
21. Parties. This Agreement shall be binding upon, and shall inure to the
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benefit of, the parties and their respective successors and assigns.
22. Third Party Beneficiaries. Nothing contained in this Agreement shall
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be deemed to indicate that this Agreement has been entered into for the benefit
of any person other than the Senior Lenders and the parties hereto.
23. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
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PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SUBORDINATE LENDER HEREBY (A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY
NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR THE PURPOSES OF ALL LEGAL
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PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (B) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT TO BRING PROCEEDINGS
AGAINST SUBORDINATE LENDER IN THE COURTS OF ANY OTHER JURISDICTION.
24. Waiver of Jury Trial. AFTER REVIEWING THIS PROVISION SPECIFICALLY WITH
--------------------
ITS RESPECTIVE COUNSEL, SUBORDINATE LENDER AND AGENT HEREBY KNOWINGLY,
INTELLIGENTLY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LEGAL PROCEEDING BASED ON OR ARISING OUT OF, UNDER, IN
CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUBORDINATE
LENDER OR THE AGENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SENIOR
LENDERS TO MAKE THE LOANS TO BORROWER.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
CREDITANSTALT-BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Executive Vice President
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Vice President
HFMI ACQUISITION CORPORATION
By: /s/
-----------------------------
Name:
Title:
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ACKNOWLEDGMENT AND AGREEMENT
----------------------------
The undersigned, Harry's Farmers Market, Inc., a Georgia corporation
("Borrower"), hereby accepts and acknowledges receipt of a copy of the foregoing
Intercreditor Agreement and consents to and agrees to be bound by all provisions
thereof, including, without limitation the agreements between Agent and
Subordinate Lender with respect to the payment by each to the others of certain
proceeds derived from the liquidation of the Collateral and the Premises.
Without limiting the generality of the foregoing, Borrower agrees that, (a) in
the event of any transfer of the License by Borrower made in reliance upon the
provisions of Section 2(d)(ii) of the foregoing Intercreditor Agreement,
Borrower will comply with the provisions of Section 7(c) as if Borrower were the
Agent and (b) in the event the Agent receives a notice from Subordinate Lender
pursuant to Section 13(b) of the foregoing Intercreditor Agreement, Borrower
agrees that Agent may, without Borrower's consent, void any amendment or portion
thereof which contravenes, or which Subordinate Lender alleges as contravening,
the restrictions set forth in said Section 13(b).
Capitalized terms used in this Acknowledgment and Agreement without
definition have the meanings specified in the foregoing Intercreditor Agreement
unless the context otherwise requires.
HARRY'S FARMERS MARKET, INC.
By: /s/ Xxxxx X. Blazer
-------------------------------
Name: Xxxxx X. Blazer
Title: President
[CORPORATE SEAL]
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