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EXHIBIT 99.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is entered into as
of June 9, 1998 among FRESH FOODS INC., a Delaware corporation (the "Company"),
the Subsidiary Borrowers identified on the signature pages hereto (the
"Subsidiary Borrower") and such other subsidiaries of the Company as may from
time to time become party hereto (hereinafter, the Company and the Subsidiary
Borrower are collectively referred to as the "Obligors" and, individually, as an
"Obligor") and FIRST UNION COMMERCIAL CORPORATION, in its capacity as agent (in
such capacity, the "Agent") for the financial institutions from time to time
party to the Credit Agreement described below (the "Lenders").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement, dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to
time, the "Credit Agreement"), among the Company, the Subsidiary Borrowers, the
Lenders and the Agent, the Lenders have agreed to make Revolving Loans and issue
Letters of Credit upon the terms and subject to the conditions set forth
therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective Revolving
Loans and to issue Letters of Credit under the Credit Agreement that the
Obligors shall have executed and delivered this Security Agreement to the Agent
for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Credit
Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of North Carolina on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Deposit
Accounts, Documents, Equipment, Farm Products, Fixtures, General
Intangibles, Instruments, Inventory, Investment Property, Money and
Proceeds. For purposes of this Security Agreement, the term "Lender"
shall include any affiliate of any Lender which has entered into any
Interest Rate Protection Agreement entered into with respect to the
Obligations.
(b) In addition, the following terms shall have the following
meanings:
"Contracts": (a) the Asset Purchase Agreement dated as of
April 10, 1998 between Fresh Foods of North Carolina, LLC, a
wholly-owned subsidiary of Fresh Foods, Inc., and Hudson Foods, Inc.,
as the same may from time to time be amended, modified or supplemented
and (b) all other contracts and agreements to which an Obligor is a
party, as
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each may be amended, supplemented or otherwise modified from time to
time, including, without limitation, (i) all rights of such Obligor to
receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of such Obligor to damages arising out of or
for breach or default in respect thereof and (iii) all rights of such
Obligor to exercise all remedies thereunder.
"Copyright Licenses": any written agreement, naming any
Obligor as licensor, granting any right under any Copyright including,
without limitation, any thereof referred to in Schedule 1(b) hereto.
"Copyrights": (a) all registered United States copyrights in
all Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, registrations,
recordings and applications in the United States Copyright office
including, without limitation, any thereof referred to in Schedule 1(b)
hereto, and (b) all renewals thereof including, without limitation, any
thereof referred to in Schedule 1(b) hereto.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to an Obligor of any right to
manufacture, use or sell any invention covered by a Patent, including,
without limitation, any thereof referred to in Schedule 1(b) hereto.
"Patents": (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including,
without limitation, any thereof referred to in Schedule 1(b) hereto,
and (b) all applications for letters patent of the United States or any
other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any
thereof referred to in Schedule 1(b) hereto.
"Secured Obligations": (a) all Obligations and (b) all
expenses and charges, legal and otherwise, reasonably incurred by the
Agent and/or the Lenders in collecting or enforcing any Obligations or
in realizing on or protecting any security therefor, including without
limitation the security afforded hereunder.
"Trademark License": means any agreement, written or oral,
providing for the grant by or to an Obligor of any right to use any
Trademark, including, without limitation, any thereof referred to in
Schedule 1(b) hereto.
"Trademarks": (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule 1(b) hereto, and (b) all renewals
thereof.
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"Work": any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
2. Grant of Security Interest in the Collateral. To secure the
prompt payment and performance in full when due, whether by lapse of time,
acceleration or otherwise, of the Secured Obligations, each Obligor hereby
grants to the Agent, for the benefit of the Lenders, a continuing security
interest in, and a right to set off against, any and all right, title and
interest of such Obligor in and to the following, whether now owned or existing
or owned, acquired, or arising hereafter (collectively, the "Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Copyrights;
(d) all Copyright Licenses;
(e) all Deposit Accounts;
(f) all Documents;
(g) all Equipment;
(h) all Fixtures;
(i) all General Intangibles including, without
limitation, all rights under the Contracts;
(j) all Instruments;
(k) all Inventory;
(l) all Investment Property;
(m) all Money;
(n) all Patents;
(o) all Patent Licenses;
(p) all Trademarks;
(q) all Trademark Licenses;
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(r) the Lockbox Accounts, the FUCC Account and any
replacement or successor accounts relating thereto;
(s) all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks, and
related data processing software (owned by such
Obligor or in which it has an interest) that at any
time evidence or contain information relating to any
Collateral or are otherwise necessary or helpful in
the collection thereof or realization thereupon; and
(t) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing.
The Obligors and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest created hereby in the
Collateral (i) constitutes continuing collateral security for all of the Secured
Obligations, whether now existing or hereafter arising and (ii) is not to be
construed as an assignment of any Copyrights, Copyright Licenses, Patents,
Patent Licenses, Trademarks or Trademark Licenses.
3. Representations and Warranties. Each Obligor hereby represents
and warrants to the Agent, for the benefit of the Lenders, that so long as any
of the Secured Obligations remain outstanding or any Credit Document is in
effect or any Letter of Credit shall remain outstanding, and until all of the
Commitments shall have been terminated:
(a) Chief Executive Office; Books & Records. Each
Obligor's chief executive office and chief place of business is (and
for the prior four months have been) located at the locations set forth
on Schedule 3(a) hereto, and each Obligor keeps its books and records
at such locations.
(b) Location of Collateral. The location of all
Collateral owned by each Obligor is as shown on Schedule 3(b) hereto.
(c) Ownership. Each Obligor is the legal and beneficial
owner of its Collateral and has the right to pledge, sell, assign or
transfer the same. Each Obligor's legal name is as shown in this
Security Agreement and no Obligor has in the past four months changed
its name, been party to a merger, consolidation or other change in
structure or used any tradename except as set forth in Schedule 3(c)
attached hereto.
(d) Security Interest/Priority. This Security Agreement
creates a valid security interest in favor of the Agent, for the
benefit of the Lenders, in the Collateral of such Obligor and, when
properly perfected by filing, shall constitute a valid perfected
security interest in such Collateral, to the extent such security can
be perfected by filing under the UCC, free and clear of all Liens
except for Permitted Liens.
(e) Farm Products. None of the Collateral constitutes, or
is the Proceeds of, Farm Products.
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(f) Accounts. (i) Each Account of the Obligors and the
papers and documents relating thereto are genuine and in all material
respects what they purport to be, (ii) each Account arises out of (A) a
bona fide sale of goods sold and delivered by such Obligor (or is in
the process of being delivered) or (B) services theretofore actually
rendered by such Obligor to, the account debtor named therein, (iii) no
Account of an Obligor is evidenced by any Instrument or Chattel Paper
unless such Instrument or Chattel Paper has been theretofore endorsed
over and delivered to the Agent and (iv) no surety bond was required or
given in connection with any Account of an Obligor or the contracts or
purchase orders out of which they arose.
(g) Inventory. No Inventory is held by an Obligor
pursuant to consignment, sale or return, sale on approval or similar
arrangement.
(h) Copyrights, Patents and Trademarks.
(i) Schedule 1(b) hereto includes all Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks and
Trademark Licenses owned by the Obligors in their own names as
of the date hereof.
(ii) To the best of each Obligor's knowledge, each
Copyright, Patent and Trademark of such Obligor is valid,
subsisting, unexpired, enforceable and has not been abandoned.
(iii) Except as set forth in Schedule 1(b) hereto,
none of such Copyrights, Patents and Trademarks is the subject
of any licensing or franchise agreement.
(iv) No holding, decision or judgment has been
rendered which would limit, cancel or question the validity of
any Copyright, Patent or Trademark.
(v) No action or proceeding is pending seeking
to limit, cancel or question the validity of any Copyright,
Patent or Trademark, or which, if adversely determined, would
have a material adverse effect on the value of any Copyright,
Patent or Trademark.
(vi) All applications pertaining to the
Copyrights, Patents and Trademarks of each Obligor have been
duly and properly filed, and all registrations or letters
pertaining to such Copyrights, Patents and Trademarks have
been duly and properly filed and issued, and all of such
Copyrights, Patents and Trademarks are valid and enforceable.
(vii) No Obligor has made any assignment or
agreement in conflict with the security interest in the
Copyrights, Patents or Trademarks of each Obligor hereunder.
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4. Covenants. Each Obligor covenants that, so long as any of the
Secured Obligations remain outstanding or any Credit Document is in effect or
any Letter of Credit shall remain outstanding, and until all of the Commitments
shall have been terminated, such Obligor shall:
(a) Other Liens. Defend the Collateral against the claims
and demands of all other parties claiming an interest therein, keep the
Collateral free from all Liens, except for Permitted Liens, and not
sell, exchange, transfer, assign, lease or otherwise dispose of the
Collateral or any interest therein, except as permitted under the
Credit Agreement.
(b) Preservation of Collateral. Keep the Collateral in
good order, condition and repair and not use the Collateral in
violation of the provisions of this Security Agreement or any other
agreement relating to the Collateral or any policy insuring the
Collateral or any applicable statute, law, bylaw, rule, regulation or
ordinance.
(c) Instruments/Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become
evidenced by any Instrument or Chattel Paper, immediately deliver such
Instrument or Chattel Paper to the Agent, duly indorsed in a manner
satisfactory to the Agent, to be held as Collateral pursuant to this
Security Agreement.
(d) Change in Location. Not, without providing 30 days
prior written notice to the Agent and without filing such amendments to
any previously filed financing statements as the Agent may require, (a)
change the location of its chief executive office and chief place of
business (as well as its books and records) from the locations set
forth on Schedule 3(a) hereto, (b) change the location of its
Collateral from the locations set forth for such Obligor on Schedule
3(b) hereto, or (c) change its name, be party to a merger,
consolidation or other change in structure or use any tradename other
than as set forth on Schedule 3(c) attached hereto.
(e) Inspection. Upon reasonable notice, at such
reasonable times and as often as may be reasonably desired, allow the
Agent, any Lender or their respective representatives free access to
and right of inspection of the tangible Collateral.
(f) Perfection of Security Interest. Execute and deliver
to the Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of
existing documents, as the Agent may reasonably request) and do all
such other things as the Agent may reasonably deem necessary or
appropriate (i) to assure to the Agent its security interests
hereunder, including (A) such financing statements (including renewal
statements) or amendments thereof or supplements thereto or other
instruments as the Agent may from time to time reasonably request in
order to perfect and maintain the security interests granted hereunder
in accordance with the UCC, (B) with regard to Copyrights, a Notice of
Grant of Security Interest in Copyrights in the form of Schedule
4(f)(i), (C) with regard to Patents, a Notice of Grant of Security
Interest in Patents for filing with the United States Patent and
Trademark Office in the form of Schedule 4(f)(ii) attached hereto and
(D) with regard to Trademarks, a Notice of Grant of Security Interest
in Trademarks for filing with the United States Patent and Trademark
Office in the
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form of Schedule 4(f)(iii) attached hereto, (ii) to consummate the
transactions contemplated hereby and (iii) to otherwise protect and
assure the Agent of its rights and interests hereunder. To that end,
each Obligor agrees that the Agent may file one or more financing
statements disclosing the Agent's security interest in any or all of
the Collateral of such Obligor without, to the extent permitted by law,
such Obligor's signature thereon, and further each Obligor also hereby
irrevocably makes, constitutes and appoints the Agent, its nominee or
any other person whom the Agent may designate, as such Obligor's
attorney in fact with full power and for the limited purpose to sign in
the name of such Obligor any such financing statements, or amendments
and supplements to financing statements, renewal financing statements,
notices or any similar documents which in the Agent's reasonable
discretion would be necessary, appropriate or convenient in order to
perfect and maintain perfection of the security interests granted
hereunder, such power, being coupled with an interest, being and
remaining irrevocable so long as the Credit Agreement is in effect or
any amounts payable thereunder or under any other Credit Document or
any Letter of Credit shall remain outstanding, and until all of the
Commitments thereunder shall have terminated. Each Obligor hereby
agrees that a carbon, photographic or other reproduction of this
Security Agreement or any such financing statement is sufficient for
filing as a financing statement by the Agent without notice thereof to
such Obligor wherever the Agent may in its sole discretion desire to
file the same. In the event for any reason the law of any jurisdiction
other than North Carolina becomes or is applicable to the Collateral of
any Obligor or any part thereof, or to any of the Secured Obligations,
such Obligor agrees to execute and deliver all such instruments and to
do all such other things as the Agent in its sole discretion reasonably
deems necessary or appropriate to preserve, protect and enforce the
security interests of the Agent under the law of such other
jurisdiction (and, if an Obligor shall fail to do so promptly upon the
request of the Agent, then the Agent may execute any and all such
requested documents on behalf of such Obligor pursuant to the power of
attorney granted hereinabove). If any Collateral is in the possession
or control of an Obligor's agents and the Agent so requests, such
Obligor agrees to notify such agents in writing of the Agent's security
interest therein and, upon the Agent's request, instruct them to hold
all such Collateral for the Lenders' account and subject to the Agent's
instructions. Each Obligor agrees to mark its books and records to
reflect the security interest of the Agent in the Collateral.
(g) Covenants Relating to Accounts.
(i) Comply with all provisions of the Credit
Agreement relating to the establishment and maintenance of the
Lockboxes.
(ii) Comply with all reporting requirements set
forth in the Credit Agreement with respect to Accounts.
(iii) Upon the occurrence of any Event of Default
and during the continuation thereof, set aside and hold as
trustee for the Agent any merchandise which is returned by a
customer or account debtor or otherwise recovered. Unless and
until an Event of Default occurs and is continuing, each
Obligor may settle and adjust disputes and claims with its
customers and account debtors, handle
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returns and recoveries and grant discounts, credits and
allowances in the ordinary course of its business as presently
conducted and otherwise for amounts and on terms which such
Obligor in good faith considers advisable. However, upon the
occurrence of any Event of Default and during the continuation
thereof, if so instructed by the Agent, such Obligor shall
settle and adjust disputes and claims at no expense to the
Agent, but no discount, credit or allowance other than on
normal trade terms in the ordinary course of business shall be
granted to any customer or account debtor and no returns of
merchandise shall be accepted by such Obligor without the
Agent's consent. The Agent may (but shall not be required to),
at all times upon the occurrence of any Event of Default and
during the continuance thereof, settle or adjust disputes and
claims directly with customers or account debtors for amounts
and upon terms which the Agent considers advisable.
(h) Covenants Relating to Inventory.
(i) Maintain, keep and preserve the Inventory in
good saleable condition at its own cost and expense.
(ii) Comply with all reporting requirements set
forth in the Credit Agreement with respect to Inventory.
(iii) If any of the Inventory is at any time
evidenced by a document of title, immediately upon request by
the Agent, deliver such document of title to the Agent.
(i) Covenants Relating to Copyrights.
(i) Employ the Copyright for each Work with such
notice of copyright as may be required by law to secure
copyright protection.
(ii) Not do any act or knowingly omit to do any
act whereby any material Copyright may become invalidated and
(A) not do any act, or knowingly omit to do any act, whereby
any material Copyright may become injected into the public
domain; (B) notify the Agent immediately if it knows, or has
reason to know, that any material Copyright may become
injected into the public domain or of any adverse
determination or development (including, without limitation,
the institution of, or any such determination or development
in, any court or tribunal in the United States or any other
country) regarding an Obligor's ownership of any such
Copyright or its validity; (C) take all necessary steps as it
shall deem appropriate under the circumstances, to maintain
and pursue each application (and to obtain the relevant
registration) and to maintain each registration of each
material Copyright owned by an Obligor including, without
limitation, filing of applications for renewal where
necessary; and (D) promptly notify the Agent of any material
infringement of any material Copyright of an Obligor of which
it becomes aware and take such actions as it shall reasonably
deem appropriate under the circumstances to protect
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such Copyright, including, where appropriate, the bringing of
suit for infringement, seeking injunctive relief and seeking
to recover any and all damages for such infringement.
(iii) Not make any assignment or agreement in
conflict with the security interest in the Copyrights of each
Obligor hereunder.
(j) Covenants Relating to Patents and Trademarks.
(i) (A) Continue to use each Trademark on each
and every trademark class of goods applicable to its current
line as reflected in its current catalogs, brochures and price
lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (B) maintain as in
the past the quality of products and services offered under
such Trademark, (C) employ such Trademark with the appropriate
notice of registration, (D) not adopt or use any mark which is
confusingly similar or a colorable imitation of such Trademark
unless the Agent, for the ratable benefit of the Lenders,
shall obtain a perfected security interest in such mark
pursuant to this Security Agreement, and (E) not (and not
permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark may become
invalidated.
(ii) Not do any act, or omit to do any act,
whereby any Patent may become abandoned or dedicated.
(iii) Notify the Agent and the Lenders immediately
if it knows, or has reason to know, that any application or
registration relating to any Patent or Trademark may become
abandoned or dedicated, or of any adverse determination or
development (including, without limitation, the institution
of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or
any court or tribunal in any country) regarding an Obligor's
ownership of any Patent or Trademark or its right to register
the same or to keep and maintain the same.
(iv) Whenever an Obligor, either by itself
or through an agent, employee, licensee or designee, shall
file an application for the registration of any Patent or
Trademark with the United States Patent and Trademark Office
or any similar office or agency in any other country or any
political subdivision thereof, an Obligor shall report such
filing to the Agent and the Lenders within five Business Days
after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Agent, an Obligor shall execute
and deliver any and all agreements, instruments, documents and
papers as the Agent may request to evidence the Agent's and
the Lenders' security interest in any Patent or Trademark and
the goodwill and general intangibles of an Obligor relating
thereto or represented thereby.
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(v) Take all reasonable and necessary steps,
including, without limitation, in any proceeding before the
United States Patent and Trademark Office, or any similar
office or agency in any other country or any political
subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each
registration of the Patents and Trademarks, including, without
limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability.
(vi) Promptly notify the Agent and the Lenders
after it learns that any Patent or Trademark included in the
Collateral is infringed, misappropriated or diluted by a third
party and promptly sue for infringement, misappropriation or
dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement,
misappropriation or dilution, or take such other actions as it
shall reasonably deem appropriate under the circumstances to
protect such Patent or Trademark.
(vii) Not make any assignment or agreement
in conflict with the security interest in the Patents or
Trademarks of each Obligor hereunder.
(k) New Patents, Copyrights and Trademarks. Promptly
provide the Agent with (i) a listing of all applications, if any, for
new Copyrights, Patents or Trademarks (together with a listing of the
issuance of registrations or letters on present applications), which
new applications and issued registrations or letters shall be subject
to the terms and conditions hereunder, and (ii) (A) with respect to
Copyrights, a duly executed Notice of Security Interest in Copyrights,
(B) with respect to Patents, a duly executed Notice of Security
Interest in Patents, (C) with respect to Trademarks, a duly executed
Notice of Security Interest in Trademarks or (D) such other duly
executed documents as the Agent may request in a form acceptable to
counsel for the Agent and suitable for recording to evidence the
security interest in the Copyright, Patent or Trademark which is the
subject of such new application.
(l) Insurance. Have and maintain at all times with
respect to the Collateral the same types and amounts of insurance as
the Obligors are required to maintain pursuant to the Credit Agreement.
All insurance proceeds shall be subject to the Lien of the Agent
hereunder; provided that any such insurance proceeds may be retained by
the Obligors to the extent permitted under the Credit Agreement.
(m) Bank Accounts. At all times, maintain the Lockbox
Accounts, the FUCC Account and any replacement or successor accounts
relating thereto in accordance with the terms of the Lockbox Agreements
and the Credit Agreement, as applicable, and cause all amounts received
in the Lockboxes relating thereto to be deposited into the applicable
Lockbox Account or FUCC Account, as the case may be, and to be applied
as set forth in the applicable Lockbox Agreement and the Credit
Agreement, as applicable. All amounts on deposit in the Lockbox
Accounts, the FUCC Account and any replacement or successor accounts
relating thereto shall be subject to the Lien of the Agent hereunder.
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5. Special Provisions Relating to Accounts. Anything herein to
the contrary notwithstanding, each of the Obligors shall remain liable
under each of the Accounts to observe and perform all the conditions
and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to each such
Account. Neither the Agent nor any Lender shall have any obligation or
liability under any Account (or any agreement giving rise thereto) by
reason of or arising out of this Security Agreement or the receipt by
the Agent or any Lender of any payment relating to such Account
pursuant hereto, nor shall the Agent or any Lender be obligated in any
manner to perform any of the obligations of an Obligor under or
pursuant to any Account (or any agreement giving rise thereto), to make
any payment, to make any inquiry as to the nature or the sufficiency of
any payment received by it or as to the sufficiency of any performance
by any party under any Account (or any agreement giving rise thereto),
to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or
times.
6. Special Provisions Regarding Inventory.
(a) Notwithstanding anything to the contrary contained in
this Security Agreement, each Obligor may, unless and until an Event of
Default occurs and is continuing and the Agent instructs such Obligor
otherwise, without further consent or approval of the Agent, use,
consume, sell, lease and exchange the Inventory in the ordinary course
of its business as presently conducted, whereupon, in the case of such
a sale or exchange, the security interest created hereby in the
Inventory so sold or exchanged (but not in any proceeds arising from
such sale or exchange) shall cease immediately without any further
action on the part of the Agent.
(b) Upon the Lenders' making any Revolving Loan pursuant
to the Credit Agreement or the Issuing Bank issuing any Letter of
Credit pursuant to the Credit Agreement, each Obligor shall be deemed
to have warranted that all warranties of such Obligor set forth in this
Security Agreement with respect to its Inventory are true and correct
in all material respects with respect to such Inventory, including
without limitation that such Inventory is located at a location
permitted by Section 3(b) or 4(d) hereof.
7. Advances by Lenders. On failure of any Obligor to perform any
of the covenants and agreements contained herein, the Agent may, at its sole
option and in its sole discretion, perform the same and in so doing may expend
such sums as the Agent may reasonably deem advisable in the performance thereof,
including, without limitation, the payment of any insurance premiums, the
payment of any taxes, a payment to obtain a release of a Lien or potential Lien
(other than a Permitted Lien), expenditures made in defending against any
adverse claim (other than a Permitted Lien) and all other expenditures which the
Agent or the Lenders may make for the protection of the security hereof or which
may be compelled to make by operation of law. All such sums and amounts so
expended shall be repayable by the Obligors on a joint and several basis
promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall bear interest from the date said
amounts are expended at the default rate specified in Section 4.2 of the Credit
Agreement for Revolving Loans that are Base Rate Loans. No such performance of
any covenant or agreement by the Agent or the Lenders on behalf of any
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Obligor, and no such advance or expenditure therefor, shall relieve the Obligors
of any default under the terms of this Security Agreement or the other Credit
Documents. The Lenders may make any payment hereby authorized in accordance with
any bill, statement or estimate procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax assessment, sale,
forfeiture, tax lien, title or claim except to the extent such payment is being
contested in good faith by an Obligor in appropriate proceedings and against
which adequate reserves are being maintained in accordance with GAAP.
8. Events of Default.
The occurrence of an event which under the Credit Agreement would
constitute an Event of Default shall be an Event of Default hereunder (an "Event
of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and during continuation thereof, the Lenders shall have, in
addition to the rights and remedies provided herein, in the Credit
Documents or by law (including, but not limited to, the rights and
remedies set forth in the Uniform Commercial Code of the jurisdiction
applicable to the affected Collateral), the rights and remedies of a
secured party under the UCC (regardless of whether the UCC is the law
of the jurisdiction where the rights and remedies are asserted and
regardless of whether the UCC applies to the affected Collateral), and
further, the Agent may, with or without judicial process or the aid and
assistance of others, (i) enter on any premises on which any of the
Collateral may be located and, without resistance or interference by
the Obligors, take possession of the Collateral, (ii) dispose of any
Collateral on any such premises, (iii) require the Obligors to assemble
and make available to the Agent at the expense of the Obligors any
Collateral at any place and time designated by the Agent which is
reasonably convenient to both parties, (iv) remove any Collateral from
any such premises for the purpose of effecting sale or other
disposition thereof, and/or (v) without demand and without
advertisement, notice, hearing or process of law, all of which each of
the Obligors hereby waives to the fullest extent permitted by law, at
any place and time or times, sell and deliver any or all Collateral
held by or for it at public or private sale, by one or more contracts,
in one or more parcels, for cash, upon credit or otherwise, at such
prices and upon such terms as the Agent deems advisable, in its sole
discretion (subject to any and all mandatory legal requirements). In
addition to all other sums due the Agent and the Lenders with respect
to the Secured Obligations, the Obligors shall pay the Agent and each
of the Lenders all reasonable documented costs and expenses incurred by
the Agent or any such Lender, including, but not limited to, reasonable
attorneys' fees and court costs, in obtaining or liquidating the
Collateral, in enforcing payment of the Secured Obligations, or in the
prosecution or defense of any action or proceeding by or against the
Agent or the Lenders or the Obligors concerning any matter arising out
of or connected with this Security Agreement, any Collateral or the
Secured Obligations, including, without limitation, any of the
foregoing arising in, arising under or related to a case under any
bankruptcy, insolvency or similar law. To the extent the rights of
notice cannot be legally waived hereunder, each Obligor agrees that any
requirement of reasonable notice shall be
12
13
met if such notice is personally served on or mailed, postage prepaid,
to the Obligors in accordance with the notice provisions of Section
14.5 of the Credit Agreement at least 10 days before the time of sale
or other event giving rise to the requirement of such notice. The Agent
and the Lenders shall not be obligated to make any sale or other
disposition of the Collateral regardless of notice having been given.
To the extent permitted by law, any Lender may be a purchaser at any
such sale. To the extent permitted by applicable law, each of the
Obligors hereby waives all of its rights of redemption with respect to
any such sale. Subject to the provisions of applicable law, the Agent
and the Lenders may postpone or cause the postponement of the sale of
all or any portion of the Collateral by announcement at the time and
place of such sale, and such sale may, without further notice, to the
extent permitted by law, be made at the time and place to which the
sale was postponed, or the Agent and the Lenders may further postpone
such sale by announcement made at such time and place.
(b) Remedies relating to Accounts. Upon the occurrence of
an Event of Default and during the continuation thereof, whether or not
the Agent has exercised any or all of its rights and remedies
hereunder, the Agent or its designee may notify any Obligor's customers
and account debtors that the Accounts of such Obligor have been
assigned to the Agent or of the Agent's security interest therein, and
may (either in its own name or in the name of an Obligor or both)
demand, collect (including without limitation through the Lockboxes),
receive, take receipt for, sell, sue for, compound, settle, compromise
and give acquittance for any and all amounts due or to become due on
any Account, and, in the Agent's discretion, file any claim or take any
other action or proceeding to protect and realize upon the security
interest of the Lenders in the Accounts. Each Obligor acknowledges and
agrees that the Proceeds of its Accounts remitted to or on behalf of
the Agent in accordance with the provisions hereof shall be solely for
the Agent's own convenience and that such Obligor shall not have any
right, title or interest in such Accounts or in any such other amounts
except as expressly provided herein. The Agent may apply all or any
part of any Proceeds of Accounts or other Collateral received by it
from any source to the payment of the Secured Obligations (whether or
not then due and payable). The Agent shall have no obligation to apply
or give credit for any item included in proceeds of Accounts or other
Collateral until the applicable Lockbox Bank has received final payment
therefor at its offices in cash. However, if the Agent does permit
credit to be given for any item prior to a Lockbox Bank receiving final
payment therefor and such Lockbox Bank fails to receive such final
payment or an item is charged back to the Agent or any Lockbox Bank for
any reason, the Agent may at its election in either instance charge the
amount of such item back against any such Lockbox Accounts, together
with interest thereon at a rate per annum equal to the default rate
specified in Section 4.2 of the Credit Agreement for Revolving Loans
that are Base Rate Loans. Each Obligor hereby indemnifies the Agent
from and against all liabilities, damages, losses, actions, claims,
judgments, costs, expenses, charges and reasonable attorneys' fees
(except such as result from the Agent's gross negligence or willful
misconduct) suffered or incurred by the Agent because of the
maintenance of the foregoing arrangements. The Agent shall have no
liability or responsibility to any Obligor for a Lockbox Bank accepting
any check, draft or other order for payment of money bearing the legend
"payment in full" or words of similar import or any other restrictive
legend or
13
14
endorsement whatsoever or be responsible for determining the
correctness of any remittance (it being understood that this sentence
shall in no way affect the liability or responsibility of any such
Lockbox Bank).
(c) Access. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and during the
continuance thereof, the Agent shall have the right to take physical
possession of any and all of the Collateral and anything found therein,
the right for that purpose to enter without legal process and without
breach of the peace any premises where the Collateral may be found
(provided such entry be done lawfully), and the right to maintain such
possession on any Obligor's premises (each Obligor hereby agreeing to
lease warehouses and storage facilities to the Agent or its designee if
the Agent so requests) or to remove the Collateral or any part thereof
to such other places as the Agent may desire. Upon the occurrence of
any Event of Default and at any time thereafter, unless and until such
Event of Default has been waived by the Lenders or cured to the
satisfaction of the Lenders, each Obligor shall, upon the Agent's
demand, assemble the Collateral and make it available to the Agent at a
place reasonably designated by the Agent. If the Agent exercises its
right to take possession of the Collateral, each Obligor shall also at
its expense perform any and all other steps reasonably requested by the
Agent to preserve and protect the security interest hereby granted in
the Collateral, such as placing and maintaining signs indicating the
security interest of the Agent, appointing overseers for the Collateral
and maintaining inventory records.
(d) Nonexclusive Nature of Remedies. Failure by the Agent
or the Lenders to exercise any right, remedy or option under this
Security Agreement, any other Credit Document or as provided by law, or
any delay by the Agent or the Lenders in exercising the same, shall not
operate as a waiver of any such right, remedy or option. No waiver
hereunder shall be effective unless it is in writing, signed by the
party against whom such waiver is sought to be enforced and then only
to the extent specifically stated, which in the case of the Agent or
the Lenders shall only be granted as provided herein. To the extent
permitted by law, neither the Agent, the Lenders, nor any party acting
as attorney for the Agent or the Lenders, shall be liable hereunder for
any acts or omissions or for any error of judgment or mistake of fact
or law other than their gross negligence or willful misconduct
hereunder. The rights and remedies of the Agents and the Lenders under
this Security Agreement shall be cumulative and not exclusive of any
other right or remedy which the Agent or the Lenders may have.
(e) Retention of Collateral. The Agent may, after
providing the notices required by Section 9-505(2) of the UCC or
otherwise complying with the requirements of applicable law of the
relevant jurisdiction, to the extent the Agent is in possession of any
of the Collateral, retain the Collateral in satisfaction of the Secured
Obligations. Unless and until the Agent shall have provided such
notices, however, the Agent shall not be deemed to have retained any
Collateral in satisfaction of any Secured Obligations for any reason.
14
15
(f) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Agent or the Lenders are legally entitled, the Obligors shall
be jointly and severally liable for the deficiency, together with
interest thereon at the default rate specified in Section 4.2 of the
Credit Agreement for Revolving Loans that are Base Rate Loans, together
with the costs of collection and the reasonable fees of any attorneys
employed by the Agent to collect such deficiency. Any surplus remaining
after the full payment and satisfaction of the Secured Obligations
shall be returned to the Obligors or to whomsoever a court of competent
jurisdiction shall determine to be entitled thereto.
10. Rights of the Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, each Obligor hereby designates and appoints
the Agent, on behalf of the Lenders, and each of its designees or
agents, as attorney-in-fact of such Obligor, irrevocably and with power
of substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuance of an Event of
Default:
(i) to demand, collect or settle, compromise,
adjust, give discharges and releases, all as the Agent may
reasonably determine;
(ii) to commence and prosecute any actions at any
court for the purposes of collecting any Collateral and
enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Agent may deem reasonably appropriate;
(iv) receive, open and dispose of mail addressed to
an Obligor and endorse checks, notes, drafts, acceptances,
money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or
storage of the goods giving rise to the Collateral of such
Obligor on behalf of and in the name of such Obligor, or
securing, or relating to such Collateral;
(v) sell, assign, transfer, make any agreement in
respect of, or otherwise deal with or exercise rights in
respect of, any Collateral or the goods or services which have
given rise thereto, as fully and completely as though the
Agent were the absolute owner thereof for all purposes;
(vi) adjust and settle claims under any insurance
policy relating thereto;
(vii) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, security agreements, affidavits, notices
and other agreements, instruments and documents that the Agent
may determine necessary in order to perfect and
15
16
maintain the security interests and liens granted in this
Security Agreement and in order to fully consummate all of the
transactions contemplated therein;
(viii) institute any foreclosure proceedings that the
Agent may deem appropriate; and
(ix) do and perform all such other acts and things
as the Agent may reasonably deem to be necessary, proper or
convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be
irrevocable (i) for so long as any of the Secured Obligations remain
outstanding or any Credit Document is in effect or any Letter of Credit
shall remain outstanding and (ii) until all of the Commitments shall
have been terminated. The Agent shall be under no duty to exercise or
withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Agent in this Security
Agreement, and shall not be liable for any failure to do so or any
delay in doing so. The Agent shall not be liable for any act or
omission or for any error of judgment or any mistake of fact or law in
its individual capacity or its capacity as attorney-in-fact except acts
or omissions resulting from its gross negligence or willful misconduct.
This power of attorney is conferred on the Agent solely to protect,
preserve and realize upon its security interest in the Collateral.
(b) Performance by the Agent of Obligations. If any
Obligor fails to perform any agreement or obligation contained herein,
the Agent itself may perform, or cause performance of, such agreement
or obligation, and the expenses of the Agent incurred in connection
therewith shall be payable by the Obligors on a joint and several basis
pursuant to Section 25 hereof.
(c) Assignment by the Agent. Subject to Section 13.9 and
14.6(b) of the Credit Agreement, the Agent may from time to time assign
the Secured Obligations and any portion thereof and/or the Collateral
and any portion thereof, and the assignee shall be entitled to all of
the rights and remedies of the Agent under this Security Agreement in
relation thereto.
(d) The Agent's Duty of Care. Other than the exercise of
reasonable care to assure the safe custody of the Collateral while
being held by the Agent hereunder, the Agent shall have no duty or
liability to preserve rights pertaining thereto, it being understood
and agreed that the Obligors shall be responsible for preservation of
all rights in the Collateral, and the Agent shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering the
surrender of it to the Obligors. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own property,
which shall be no less than the treatment employed by a reasonable and
prudent agent in the industry, it being understood that the Agent shall
not have responsibility for
16
17
taking any necessary steps to preserve rights against any parties with
respect to any of the Collateral.
11. Application of Proceeds. Any amounts on deposit in the Lockbox
Accounts, the FUCC Account and any replacement or successor accounts relating
thereto as applicable shall be applied by the Agent in accordance with the terms
of the Credit Agreement and the Lockbox Agreement relating thereto. Upon the
occurrence and during the continuation of an Event of Default, the Proceeds and
avails of the Collateral at any time received by the Agent shall, when received
by the Agent in cash or its equivalent, be applied as follows: first, to all
reasonable costs and expenses of the Agent (including without limitation
reasonable attorneys' fees and expenses) incurred in connection with the
implementation and/or enforcement of this Security Agreement and/or any of the
other Credit Documents; second, to all costs and expenses of the Lenders
(including without limitation reasonable attorneys' fees and expenses) incurred
in connection with the implementation and/or enforcement of this Security
Agreement and/or any of the other Credit Documents; third, to the principal
amount of the Secured Obligations; fourth, to such of the Secured Obligations
consisting of accrued but unpaid interest and fees; fifth, to all other amounts
payable with respect to the Secured Obligations; and sixth, to the payment of
the surplus, if any, to whoever may be lawfully entitled to receive such
surplus. The Obligors shall remain liable to the Agent and the Lenders for any
deficiency.
12. Costs of Counsel. If at any time hereafter, whether upon the
occurrence of an Event of Default or not, the Agent employs counsel to prepare
or consider amendments, waivers or consents with respect to this Security
Agreement, or to take action or make a response in or with respect to any legal
or arbitral proceeding relating to this Security Agreement or relating to the
Collateral, or to protect the Collateral or exercise any rights or remedies
under this Security Agreement or with respect to the Collateral, then the
Obligors agree to promptly pay upon demand any and all such reasonable
documented costs and expenses of the Agent or the Lenders, all of which costs
and expenses shall constitute Secured Obligations hereunder.
13. Continuing Agreement.
(a) This Security Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect so
long as the Credit Agreement is in effect or any amounts payable
thereunder or under any other Credit Document or any Letter of Credit
shall remain outstanding, and until all of the Commitments thereunder
shall have terminated (other than any obligations with respect to the
indemnities and the representations and warranties set forth in the
Credit Documents). Upon such payment and termination, this Security
Agreement shall be automatically terminated and the Lenders shall, upon
the request and at the expense of the Obligors, forthwith release all
of its liens and security interests hereunder and shall execute and
deliver all UCC termination statements and/or other documents
reasonably requested by the Obligors evidencing such termination.
Notwithstanding the foregoing all releases and indemnities provided
hereunder shall survive termination of this Security Agreement.
(b) This Security Agreement shall continue to be
effective or be automatically reinstated, as the case may be, if at any
time payment, in whole or in part, of any of the
17
18
Secured Obligations is rescinded or must otherwise be restored or
returned by the Agent or any Lender as a preference, fraudulent
conveyance or otherwise under any bankruptcy, insolvency or similar
law, all as though such payment had not been made; provided that in the
event payment of all or any part of the Secured Obligations is
rescinded or must be restored or returned, all reasonable costs and
expenses (including without limitation any reasonable legal fees and
disbursements) incurred by the Agent or any Lender in defending and
enforcing such reinstatement shall be deemed to be included as a part
of the Secured Obligations.
14. Amendments; Waivers; Modifications. This Security Agreement
and the provisions hereof may not be amended, waived, modified, changed,
discharged or terminated except as set forth in Section 14.10 of the Credit
Agreement.
15. Successors in Interest. This Security Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Obligor, its successors and assigns and shall inure, together with the rights
and remedies of the Agent and the Lenders hereunder, to the benefit of the Agent
and the Lenders and their successors and permitted assigns; provided, however,
that none of the Obligors may assign its rights or delegate its duties hereunder
without the prior written consent of the Agent. To the fullest extent permitted
by law, each Obligor hereby releases the Agent and each Lender, and its
successors and permitted assigns, from any liability for any act or omission
relating to this Security Agreement or the Collateral, except for any liability
arising from the gross negligence or willful misconduct of the Agent, or such
Lender, or its officers, employees or agents.
16. Notices. All notices required or permitted to be given under
this Security Agreement shall be in conformance with Section 14.5 of the Credit
Agreement.
17. Counterparts. This Security Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Security Agreement.
19. Governing Law; Submission to Jurisdiction; Venue. THIS
SECURITY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NORTH CAROLINA. THE PROVISIONS OF THE CREDIT AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
18
19
20. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OBLIGOR AND THE AGENT HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING ARISING OUT OF THIS SECURITY AGREEMENT, THE CREDIT
DOCUMENTS OR ANY OTHER AGREEMENTS OR TRANSACTIONS RELATED HERETO OR THERETO.
21. Severability. If any provision of any of the Security
Agreement is determined to be illegal, invalid or unenforceable, such provision
shall be fully severable and the remaining provisions shall remain in full force
and effect and shall be construed without giving effect to the illegal, invalid
or unenforceable provisions.
22. Entirety. This Security Agreement and the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
23. Survival. All representations and warranties of the Obligors
hereunder shall survive the execution and delivery of this Security Agreement
and the other Credit Documents, the delivery of the Revolving Notes and the
making of the Revolving Loans and the issuance of the Letters of Credit under
the Credit Agreement.
24. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than the Collateral
(including, without limitation, real property and securities owned by an
Obligor), or by a guarantee, endorsement or property of any other Person, then
the Agent and the Lenders shall have the right to proceed against such other
property, guarantee or endorsement upon the occurrence of any Event of Default,
and the Agent and the Lenders have the right, in their sole discretion, to
determine which rights, security, liens, security interests or remedies the
Agent and the Lenders shall at any time pursue, relinquish, subordinate, modify
or take with respect thereto, without in any way modifying or affecting any of
them or any of the Agent's and the Lenders' rights or the Secured Obligations
under this Security Agreement, under any other of the Credit Documents.
25. Joint and Several Obligations of Obligors.
(a) Each of the Obligors is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Lenders under the Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Obligors and in
consideration of the undertakings of each of the Obligors to accept
joint and several liability for the obligations of each of them.
(b) Each of the Obligors jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Obligors with respect to the payment and performance of all of the
Secured Obligations arising under this Security Agreement or the other
Credit Documents, it being the intention of the parties hereto that all
the Obligations shall be the joint and several obligations of each of
the Obligors without preferences or distinction among them.
19
20
25. Rights of Required Lenders. All rights of the Agent hereunder,
if not exercised by the Agent, may be exercised by the Required Lenders.
[remainder of page intentionally left blank]
20
21
Each of the parties hereto has caused a counterpart of this Security
Agreement to be duly executed and delivered as of the date first above written.
COMPANY: FRESH FOODS, INC.
By: /s/ David R. Clark
-----------------------------------------
Name: David R. Clark
Title: President
SUBSIDIARY BORROWERS: BRUNSWICK ASSOCIATES, INC.
By: /s/ David R. Clark
-----------------------------------------
Name: David R. Clark
Title: President
CLAREMONT RESTAURANT GROUP, LLC
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ David R. Clark
-----------------------------------------
Name: David R. Clark
Title: President
ELLOREE FOODS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
FRESH FOODS PROPERTIES, LLC
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
22
GEORGIA BUFFET RESTAURANTS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
KNOXVILLE FOODS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
MOM `n' POP'S COUNTRY HAM, LLC
BY: PIERRE FOODS, INC.,
its Sole Member
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
OAK RIDGE FOODS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
SAGEBRUSH, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
23
SAGEBRUSH OF SEVIERVILLE, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
SAGEBRUSH DTN, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
SAGEBRUSH OF TENNESSEE, L.P.
BY: SAGEBRUSH OF SOUTH CAROLINA,
LLC, General Partner
BY: SAGEBRUSH, INC.
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
SEVEN STARS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
ST. AUGUSTINE FOODS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
24
TENNESSEE WSMP, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
VIRGINIA WSMP, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
CHARDENT, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
D & S FOODS, LLC
BY: GEORGIA WSMP, INC.,
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
GEORGIA WSMP, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
25
KINGSPORT FOODS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
MATTHEWS PRIME SIRLOIN, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
NAPLES FOODS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
PRIME SIRLOIN, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
SAGEBRUSH OF NORTH CAROLINA, LLC
BY: SAGEBRUSH, INC.
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
26
SAGEBRUSH OF SOUTH CAROLINA, LLC
BY: SAGEBRUSH, INC.
ITS SOLE MEMBER
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
SPICEWOOD, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
SOUTH CAROLINA WSMP, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
SUNSHINE WSMP, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
TUMBLEWEED OF PIGEON FORGE, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: Vice President
27
GREENVILLE FOODS SYSTEMS, INC.
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
FRESH FOODS SALES, LLC
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
PIERRE FOODS, LLC
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ David R. Clark
--------------------------------------
Name: David R. Clark
Title: President
28
Accepted and agreed to in Charlotte, North Carolina as of the date
first above written.
FIRST UNION COMMERCIAL CORPORATION,
as Agent
By: /s/ Todd A. Witmer
--------------------------------------
Name: Todd A. Witmer
Title: Director
29
SCHEDULE 1(B)
INTELLECTUAL PROPERTY
Registration Issue
Trademark Type No. Date
- --------- ---- --- ----
Breakfast on the Go! federal 2,005,805 10/08/96
Cafe Pierre federal 1,876,055 01/24/95
Cafeteria Adventures federal 1,797,362 10/05/93
Commodity Magic federal 1,331,238 04/16/85
Dine `n With federal 1,912,699 08/15/95
Fast Choice federal 2,052,455 04/15/97
French Toast Boat federal 1,554,935 09/05/89
French Toast Boat & Design federal 1,626,155 12/04/90
Global Grill federal 2,112,383 11/11/97
GoldDiggers federal 1,121,101 06/26/79
Hot Diggity Subs federal 1,388,435 04/01/86
Hot Diggity Subs & Design federal 1,387,648 03/25/86
Lean Magic federal 1,677,773 03/03/92
Like Mom's & Design federal 1,517,327 12/20/88
Link-N-Dog federal 1,917,400 09/05/95
Micro-Wiches federal 1,505,035 09/20/88
Pierre & Design state (Ohio) TM7315 05/22/86
Pierre Classics federal 2,052,456 04/15/97
Pierre Main Street Diner federal 2,016,292 11/12/96
Pizza Parlor Sandwich federal 1,270,140 03/13/84
Pizza Parlor Sandwich federal 1,642,199 04/23/91
Pizza Parlor Sub federal 1,926,623 10/10/95
Quick-Wiches federal 1,784,320 07/27/93
Rib-B-Q federal 1,257,730 11/15/83
Rib-B-Q federal 1,270,954 03/20/84
Rib-B-Q federal 1,598,832 05/29/90
Rib-B-Q & Design federal 1,276,424 05/01/84
Rib-B-Q & Design federal 1,275,419 04/24/84
Rib-B-Q & Design foreign (Canada) 305,056 07/19/85
Rib-B-Q foreign (Canada) 305,055 07/19/85
Saus-A-Rage federal 1,928,706 10/17/95
Tastes of the World Logo (copyright) VA613-418 12/16/93
Two-Fers federal 1,505,013 09/20/88
Two-Fers federal 1,599,764 06/05/90
Villa Cinti federal 1,772,497 05/18/93
Wonderbites federal 1,781,595 07/13/98
30
Registration Issue
Trademark Type No. Date
- --------- ---- ---- ----
Mom `n' Pop's Buffet & Bakery and Design federal 1,802,454 11/02/93
Western Steer Steaks Buffet Bakery
and Design federal 1,773,290 05/25/93
Western Steer Family Retaurant
and Design federal 1,674,648 02/04/92
Western Steer and Design federal 1,626,425 12/04/90
Mom `n' Pop's Country Store and
Restaurant federal 1,460,268 10/06/87
Mom `n' Pop's Country Store and
Restaurant federal 1,460,250 10/06/87
All-American Food Bar federal 1,436,858 04/14/87
For an All-American Family Meal federal 1,428,857 02/10/87
Western Steer Family Steakhouse federal 1,403,394 07/29/86
Western Steer federal 1,391,171 04/22/86
Mom `n' Pop's and Design federal 1,346,951 07/02/85
Mom `n' Pop's and Design federal 1,346,950 07/02/85
Steer and Design federal 1,384,755 02/25/86
Design Only federal 1,333,815 04/30/85
Steerburger federal 1,343,067 06/18/85
Super Stuffed federal 1,364,706 10/08/85
Western Steer Family Steakhouse and
Design federal 1,322,741 02/26/85
Mom `n' Pop's and Design federal 1,341,238 06/11/85
Mom `n' Pop's and Design federal 1,335,749 5/14/85
Mom `n' Pop's federal 1,341,236 06/11/85
`Fluffy' and Design federal 1,272,996 4/03/84
Little Richard the Western Steer
WS and Design federal 1,179,634 11/24/81
Design Only federal 1,214,411 10/26/82
Waltzing Matilda federal 1,165,051 08/11/81
Mom's Kitchen federal 1,146,516 01/27/81
Mom `n' Pop's and Design federal 1,095,528 07/04/78
Mom `n' Pop's and Design federal 1,095,364 07/04/78
Mom `n' Pop's federal 1,065,988 05/17/77
Mom `n' Pop's federal 1,071,065 08/09/77
Western Steer Family Steakhouse federal 1,068,735 06/28/77
Fast Choice federal 2,152,895
Rib-B-Q and Design federal 2,132,710
Sagebrush Steakhouse & Saloon federal 1,743,755 12/29/92
31
Application Serial
Pending Trademark Applications Type Date No.
H.E.L.P.S. Healthcare Entree
Low Prep Selections federal 11/19/97 75/392520
Pierre & Design foreign (Mexico)
Pierre foreign (Mexico)
Rib-B-Q & Design foreign (Japan) 34095/89
Rib-B-Q & Design foreign (Mexico)
Rib-B-Q foreign (Japan) 34094/89
Rib-B-Q foreign (Mexico)
Boomerang federal 06/14/90 75-119,119
Quick Classics federal 02/26/90 74-032,512
Patents:
Exclusive, royalty-free, worldwide and perpetual patent license to be granted by
Hudson Foods, Inc. on June 9, 1998 in the invention entitled "Process for
Preparing Pureed Meat Products" set forth in an application for United States
Letters Patent, Serial No. 08/959,485 recorded in the U.S. Patent and Trademark
Office on October 10, 1997, and which was assigned to Hudson Foods, Inc. by
Assignment dated October 16, 1997 recorded in the U.S. Patent and Trademark
Office on October 28, 1997 at Reel/Frame: 8806/0691.
Copyrights:
Registration Registration
Title Type No. Date
- ----- ---- --- ----
Western Steer Steaks, Buffet,
Bakery: Operations Manual federal Txu618984 08/11/94
Cafeteria Adventures Tastes of
the World Logo federal VA613418 12/16/93
Tastes of the World Promotion
Program: Manager's Kit federal TX3738877 12/27/93
Cafeteria Adventures Radical
Chicken federal VA528350 10/08/92
Cafeteria Adventures Stars &
Stripes General federal VA528349 10/08/92
Cafeteria Adventures Hamburger Man federal VA528348 10/08/92
Cafeteria Adventures Stars & Stripes
Promotion Program federal TX3421700 10/08/92
Cafeteria Adventures Rock `n Roll
Promotion Program federal TX3421699 10/08/92
Cafeteria Adventures Radical
Promotion Program federal TX3421698 10/08/92
32
Barnyard Basics of Good
Nutrition Questions and Answers federal TX3390603 08/07/92
Barnyard Basics of Good
Nutrition Hunch-Out Toys federal VA524973 08/07/92
Today's Nutritious Lunch:
It's Barnyard Bonus Day! federal VA519990 08/07/92
Barnyard Scene Bulletin Board
Display: Barnyard Basics of
Good Nutrition federal VA519989 08/07/92
Barnyard Basics of Good
Nutrition: For Grades 1 & 2:
Educator's Guide federal TX3380555 08/07/92
Barnyard Basics of Good
Nutrition: For Grades 1 & 2:
Educator's Guide federal TX3291538 04/02/92
33
SCHEDULE 3(A)
CHIEF EXECUTIVE OFFICES
The chief executive office and chief place of business of all Obligors is
located at One WSMP Drive, Claremont, North Carolina 28610. Pierre Foods, LLC
also maintains books and records at 9990 Princeton Road, Cincinnati, OH 45246.
34
SCHEDULE 3(B)
LOCATIONS OF COLLATERAL
The name and address of each warehouseman, filler, processor and packer at which
Pierre Foods, LLC stores Inventory is as follows:
Name Address
---- -------
Cincinnati Freezer 2881 E. Sharon Road
Cincinnati, OH 45241
Buckles Warehouse Ohio 11880 Enterprise Avenue
Cincinnati, OH 45241
Cicom/Cincinnati Commercial CS Unknown
Cloverleaf Cold Storage 3110 Homeward Way
Fairfield, OH 45018-0550
CS Integrated LLC 2750 Orbitor Drive
Brea, CA 92621
CS Integrated LLC 325 Blake Road North
Hopkins, MN 55343-8209
US Cold Storage Campbell 4302 South 30th Street
Omaha, NE 68107
CS Integrated LLC 8 Lee Boulevard
Malvern, PA 19355
Wash. Whslrs 999 Montague Expressway
Milpitas, CA 95035
Costco Whlsle Consignment Center 7635 Cent. Industrial Drive, #18
Riviera Beach, FL 33404
US Cold Storage/Dallas Sams 3300 East Park Row
Arlington, TX 76010
United Refrig. (Westgate)/Sams 1740 A. Westgate Parkway
Atlanta, GA 30336
Henderson C.S./Sams Las Vegas 830 Horizon Drive
Henderson, NV 80-14
35
Trenton Cold Storage Limited P.O. Box 100
Trenton Ontario CN K8V 5R1
K & N Distribution/Price Costco 601 S. W. 7th
Renton, WA 98055
Polar Cold Storage 3776 Taylorsville Highway
Statesville, NC 28625
United Refrigerated/Sams Indy 3320 S. Arlington Avenue
Indianapolis, IN 46203
Wiscold, Inc./Sams Rochelle 600 Wiscold Drive
Rochelle, IL 61068
Columbia Farms/Price Costco 16 Sutton Road
Webster, MA 01570
Burris Maryland/Price Costco Rte 313 N. Federalsburg Road
Federalsburg, MD 21632
Jay D.C.S./Oregon Commodity 8830 Southeast Herbert Court
Clackamas, OR 97015
Nordic C.S./Price Costco 647 Occidental Avenue South
Seattle, WA 98104
Mirlo/Washington Wholesales 11600 Riverside Dr. `B'
Mira Loma, CA 91752
C & S Wholesale Grocers/BJ's Old Ferry Road
Brattleboro, VT 05301
Commodity/Surplus District 12 Hills Avenue
Concorde, NH 03301-4899
United Refrig./Sams Leesport RD #2 Orchard Lane
Leesport, PA 19533
PFS Miami/Cost-U-Less 501 NE 183rd Street
Miami, FL 33269
Interstate Distribution 110 Distribution Drive
Hamilton, OH 45014
36
PFS West Sacramento P.O. Box 1325
West Sacramento, CA 95691
Security Capital Industrial Trust 4770 Interstate Drive
Cincinnati, OH 45246
The name and address of each warehouseman, filler, processor and
packer at which Fresh Foods, Inc. stores Inventory is as follows:
Polar Cold Storage 3736 Taylorsville Highway
Statesville, NC 28625
37
OWNED PROPERTIES:
Property Address City State Zip
- -------- ------- ---- ----- ---
Claremont manufacturing One WSMP Drive Claremont NC 28610
facility
Owner: Fresh Foods, Inc.
Cincinnati manufacturing facility 9990 Princeton Road Cincinnati OH 45246
Owner: Pierre Foods, Inc.
Western Steer #22 1190 Lenoir Rhyne Blvd., SE Hickory NC 28602
Owner: Fresh Foods, Inc.
Western Steer #51 3062 Hickory Blvd. Hudson NC 28638
Owner: Fresh Foods, Inc.
Western Steer #111 316 Ehring House St. Elizabeth City NC 27909
Owner: Fresh Foods, Inc.
Western Steer #292 101 Bost Road Morganton NC 28655
Owner: Fresh Foods, Inc.
Western Steer #329 314 Blowing Rock Blvd. Lenoir NC 28645
Owner: Fresh Foods, Inc.
Bennett's #345 1819 Fairgrove Church Road Conover NC 28613
Owner: Fresh Foods, Inc.
Prime Sirloin #376 3302 S. I-85 Service Road Charlotte NC 28208
Owner: Fresh Foods, Inc.
Prime Sirloin #382 10450 E. Independence Blvd. Matthews NC 28105
Owner: Matthews Prime
Sirloin, Inc.
Sagebrush #511 110 Cedar Lane Knoxville TN 37912
Owner: Sagebrush of
Tennessee, LP
Sagebrush #527 566 Arbor Hill Road Kernersville NC 27284
Owner: Sagebrush of North
Carolina, LLC
Sagebrush #531 2468 Alcoa Highway Alcoa TN 37701
Owner: Sagebrush of
Tennessee, LP
38
Sagebrush #532 482 By-Pass 72 NW Greenwood SC 29649
Owner: Sagebrush of South
Carolina, LLC
Sagebrush #535 2000 Woodland Drive Mt. Airy NC 27030
Owner: Sagebrush of North
Carolina, LLC
Sagebrush #536 428 Jake Alexander Blvd. S. Salisbury NC 28144
Owner: Sagebrush of
Tennessee, LP
Sagebrush #537 5030 Valley View Blvd., NW Roanoke VA 24012
Owner: Sagebrush, Inc.
Sagebrush #538 954 Blowing Rock Blvd., NE Lenoir NC 28645
Owner: Sagebrush of North
Carolina, LLC
Sagebrush #539 6170 South NC 16 Highway Denver NC 28037
Owner: Sagebrush of North
Carolina, LLC
Sagebrush #540 190 Aiken Mall Drive Aiken SC 29803
Owner: Sagebrush of South
Carolina, LLC
Sagebrush #541 2100 Dalrymple Street Sanford NC 27330
Owner: Sagebrush of North
Carolina, LLC
Sagebrush #546 623 NC 24-27 By-Pass East Albemarle NC 28001
Owner: Sagebrush of North
Carolina, LLC
Sagebrush #547 1529 Freeway Drive Reidsville NC 27320
Owner: Sagebrush of North
Carolina, LLC
Closed Restaurant 2225 12th Avenue NE Hickory NC
Owner: Fresh Foods, Inc.
Closed Restaurant 1603 US-1 Ft. Pierce FL
Owner: Sunshine WSMP, Inc.
Closed Restaurant 2005 US-1 S St. Augustine FL
Owner: Sunshine WSMP, Inc.
39
Closed Restaurant 997 Sunset Blvd. Jessup GA
Owner: Georgia WSMP, Inc.
Closed Restaurant 1336 Andrew Johnson Highway Morristown TN
Owner: Tennessee WSMP, Inc.
Closed Restaurant 2911 Cypress Mill Road Brunswick GA
Owner: Brunswick
Associates, Inc.
40
Leased Properties:
- -----------------
Property Address City State Zip
- -------- ------- ---- ----- ---
Western Steer #52 334 SW Blvd. Newton NC 28658
Lessee: Fresh Foods, Inc.
Prime Sirloin #377 19601 Statesville Road Cornelius NC 28031
Lessee: Fresh Foods, Inc.
Prime Sirloin #379 3103 Taylorsville Road Statesville NC 28677
Lessee: Fresh Foods, Inc.
Western Steer #420 26 Radio Road Lexington NC 27292
Lessee: Fresh Foods, Inc.
Western Steer #425 1018 Rockford Street Mt. Airy NC 27030
Lessee: Fresh Foods, Inc.
Western Steer #426 1580 Yadkinville Road Mocksville NC 27028
Lessee: Fresh Foods, Inc.
Western Steer #427 825 E. Main Street Jefferson NC 28640
Lessee: Fresh Foods, Inc.
Western Steer #428 Corner 601 & 421 Yadkinville NC 27055
Lessee: Fresh Foods, Inc.
Western Steer #431 955 Stuart Drive Galax VA 24333
Lessee: Fresh Foods, Inc.
Western Steer #433 112 N. Generals Blvd. Lincolnton NC 28093
Lessee: Fresh Foods, Inc.
Western Steer #434 1675 Blowing Rock Road Boone NC 28607
Lessee: Fresh Foods, Inc.
Western Steer #435 1750 S. Stratford Road Winston-Salem NC 27103
Lessee: Fresh Foods, Inc.
Sagebrush #507 1520 Highway 70, SE Hickory NC 28601
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #508 3909 Parkway Pigeon Forge TN 37863
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #509 117 Turnersberg Road Statesville NC 28677
Lessee: Sagebrush of North
Carolina, LLC
41
Sagebrush #510 390 South Illinois Avenue Oak Ridge TN 37830
Lessee: Sagebrush
of Tennesse, LP
Sagebrush #513 1420 Second Street, NE Hickory NC 28601
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #514 1111 Highway 105 Boone NC 28607
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #515 2445 Cherry Road Rock Hill SC 29730
Lessee: Sagebrush of South
Carolina, LLC
Sagebrush #516 1600 East Stone Drive Kingsport TN 37660
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #517 101 Steakhouse Road Morganton NC 28655
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #518 2905 Reynolda Road Winston-Salem NC 27106
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #519 2560 Lewisville-Clemmons Road Clemmons NC 27012
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #520 895 Russ Avenue Waynesville NC 28786
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #521 985 West Asheville Highway Brevard NC 28712
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #522 815 Parkway Sevierville TN 37862
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #523 2250 Hendersonville Road Arden NC 28704
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #524 1302 Collegiate Drive Wilkesboro NC 28697
Lessee: Sagebrush of North
Carolina, LLC
42
Sagebrush #525 608 C West Roosevelt Blvd. Monroe NC 28110
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #526 217 Airport Road Gatlinburg TN 37738
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #528 1541 West Floyd Baker Blvd. Gaffney SC 29341
Lessee: Sagebrush of South
Carolina, LLC
Sagebrush #529 2614 North Roan Johnson City TN 37601
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #530 7815 Timberlake Road Lynchburg VA 24502
Lessee: Sagebrush, Inc.
Sagebrush #533 204 Southgate Square Shopping Center Colonial Heights VA 23834
Lessee: Sagebrush, Inc.
Sagebrush #534 2323 East Morris Blvd. Morristown TN 37814
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #542 801 N. Lake Drive Lexington SC 29072
Lessee: Sagebrush of South
Carolina, LLC
Sagebrush #543 201 Heritage Blvd. Newport TN 37821
Lessee: Sagebrush of
Tennessee, LP
Sagebrush #544 800 South Main Street Graham NC 27253
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #545 5920 University Parkway Stanleyville NC 27105
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #548 190 Nye Road Wytheville VA 24382
Lessee: Sagebrush, Inc.
Sagebrush #549 630 Randolph Mall Asheboro NC 27203
Lessee: Sagebrush of North
Carolina, LLC
Sagebrush #550 1432 N. Bridge Street Elkin NC 28621
Lessee: Fresh Foods, Inc.
43
Sagebrush #551 1006 East Cumberland Street Dunn NC 28335
Lessee: Sagebrush of North
Carolina, LLC
Closed restaurant 504 Leming Drive Morganton NC
Lessee: Fresh Foods, Inc.
Closed restaurant 536 Highway 64-70 Hickory NC
Lessee: Fresh Foods, Inc.
Closed restaurant 1600 N. Queen St. Kinston NC
Lessee: Fresh Foods, Inc.
Closed restaurant 835 S. Main St. Kernersville NC
Lessee: Fresh Foods, Inc.
Closed restaurant: Route 3 Tobbaccoville NC
Lessee: Fresh Foods, Inc.
Closed restaurant 751 W. Elk Ave. Elizabethton TN
Lessee: Fresh Foods, Inc.
44
SCHEDULE 3(C)
OWNERSHIP
During the last four months, the following Obligors changed their names:
WSMP, Inc. changed its name to Fresh Foods, Inc.
Fresh Foods of North Carolina, LLC changed its name to Pierre Foods,
LLC
The Obligors have used the following trade names:
Mom `n' Pop's
Mom `n' Pop's Smokehouse
Mom `n' Pop's Buffet & Bakery
Mom `n' Pop's Country Biscuits
Mom `n' Pop's Retail Outlets
Mom `n' Pop's Country Collections
Mom `n' Pop's Racing
Mom `n' Pop's Ham House
Mom `n' Pop's Bakery
Mom `n' Pop's Bakery - WSMP, Inc.
Mom `n' Pop's Bakery #18
Mom `n' Pop's Country Ham
Western Steer Family Steakhouse
Western Steer Steaks,
Buffet & Bakery WSMP, Inc.
WSMP, Inc. #9
WSMP, Inc. #18
WSMP, Inc. - Manufacturing
WSMP/Mom `n' Pop's
WSMP - Smokehouse Division
WSMP, Inc. DBA - Mom `n' Pop's Smokehouse
Bennett's Smokehouse & Saloon
Bennett's Barbeque
Bennett's Pit Bar-B-Que
Bennett's
Bennett's Catering
Prime Sirloin Steak & Buffet
Prime Sirloin Steaks, Buffet & Bakery
Prime Sirloin
Prime Sirloin of (location)
Western Steer Mom `n' Pop's
Mom's Kitchen
WSMP Real Estate
Sagebrush
Sagebrush Steakhouse & Saloon
Pierre Foods, LLC used the following names prior to its acquisition by
Fresh Foods, Inc:
Hudson Foods
Pierre Frozen Foods, a division of Hudson Foods
Hudson Specialty Foods
Pierre
Hudson
Pierre Foods
45
SCHEDULE 4(f)(i)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
June 9, 1998 (as the same may be amended, modified, extended or restated from
time to time, the "Security Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and First Union Commercial
Corporation, as Agent (the "Agent") for the financial institutions referenced
therein (the "Lenders"), the undersigned Obligor has granted a continuing
security interest in and continuing lien upon, the copyrights and copyright
applications shown below to the Agent for the ratable benefit of the Lenders:
COPYRIGHTS
-----------------------------
Date of
Copyright No. Description of Copyright Copyright
------------- ------------------------ ---------
Copyright Applications
-----------------------------
Copyright Description of Copyright Date of Copyright
Applications No. Applied For Applications
---------------- ----------- ------------
1
46
The Obligors and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing copyrights and
copyright applications (i) may only be terminated in accordance with the terms
of the Security Agreement and (ii) is not to be construed as an assignment of
any copyright or copyright application.
Very truly yours,
----------------------------------------
[Obligor]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Acknowledged and Accepted:
FIRST UNION COMMERCIAL CORPORATION,
as Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
2
47
SCHEDULE 4(f)(ii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
June 9, 1998 (the "Security Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and First Union Commercial
Corporation, as Agent (the "Agent") for the financial institutions referenced
therein (the "Lenders"), the undersigned Obligor has granted a continuing
security interest in and continuing lien upon, the patents and patent
applications shown below to the Agent for the ratable benefit of the Lenders:
PATENTS
----------------------------
Description of Patent Date of
Patent No. Item Patent
---------- ---- ------
Patent Applications
----------------------------
Patent Description of Patent Date of Patent
Applications No. Applied For Applications
- ---------------- ----------- ------------
48
The Obligors and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing patents and
patent applications (i) may only be terminated in accordance with the terms of
the Security Agreement and (ii) is not to be construed as an assignment of any
patent or patent application.
Very truly yours,
----------------------------------
[Obligor]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Acknowledged and Accepted:
FIRST UNION COMMERCIAL CORPORATION,
as Agent
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
2
49
SCHEDULE 4(f)(iii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Gentlemen:
Please be advised that pursuant to the Security Agreement dated as of
June 9, 1998 (the "Security Agreement") by and among the Obligors party thereto
(each an "Obligor" and collectively, the "Obligors") and First Union Commercial
Corporation, as Agent (the "Agent") for the financial institutions referenced
therein (the "Lenders"), the undersigned Obligor has granted a continuing
security interest in and continuing lien upon, the trademarks and trademark
applications shown below to the Agent for the ratable benefit of the Lenders:
TRADEMARKS
--------------------------
Description of Trademark Date of
Trademark No. Item Trademark
------------- ---- ---------
Trademark Applications
---------------------------
Trademark Description of Trademark Date of Trademark
Applications No. Applied For Applications
---------------- ----------- ------------
1
50
The Obligors and the Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest in the foregoing trademarks and
trademark applications (i) may only be terminated in accordance with the terms
of the Security Agreement and (ii) is not to be construed as an assignment of
any trademark or trademark application.
Very truly yours,
-------------------------------------
[Obligor]
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Acknowledged and Accepted:
FIRST UNION COMMERCIAL CORPORATION,
as Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
2