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EXHIBIT 10.32
AMENDMENT TO CREDIT AGREEMENT
AND CONSENT
THIS AMENDMENT AND CONSENT, dated as of September 5, 1998 (the
"Amendment") relating to the Credit Agreement referenced below, by and among
FRESH FOODS, INC., a North Carolina corporation (the "Company"), the
subsidiaries of the Company listed on the signature pages hereto (collectively
referred to as the "Subsidiary Borrowers" or individually referred to as a
"Subsidiary Borrower") (hereinafter, the Company and the Subsidiary Borrowers
are collectively referred to as the "Borrowers" or individually referred to as a
"Borrower"), PIERRE LEASING, LLC., a North Carolina limited liability company
(referred to as the "Applicant Subsidiary Borrower"), each of those financial
institutions identified as Lenders on the signature pages hereto (together with
each of their successors and assigns, referred to individually as a "Lender"
and, collectively, as the "Lenders"), and FIRST UNION COMMERCIAL CORPORATION
("FUCC"), acting in the manner and to the extent described in Article XIII of
the Credit Agreement (in such capacity, the "Agent"). Terms used herein but not
otherwise defined herein shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, a $75,000,000 credit facility was extended to the Merged
Borrowers, the Company and the Subsidiary Borrowers (as such terms are defined
below) pursuant to the terms of that certain Credit Agreement dated as of June
9, 1998 (as amended, modified or otherwise supplemented, the "Credit Agreement")
among the Merged Borrowers, the Company and the Subsidiary Borrowers, the
Lenders and the Agent;
WHEREAS, the Borrowers have requested that the Credit Agreement be
amended as described herein;
WHEREAS, the Applicant Subsidiary Borrower desires to become a
Borrower under the Credit Agreement; and
WHEREAS, the Lenders are willing to furnish such consent and
acknowledgment and make such amendments;
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:
(A) Amendments and Consent.
1. The following definition contained in Section 1.1 of the
Credit Agreement is amended in its entirety to read as follows:
"Reorganization" shall mean the reorganization of
the Company and its Subsidiaries in accordance with the
Plan of Reorganization attached hereto as Exhibit A.
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2. The Lenders hereby consent to the Reorganization,
subject to the satisfaction of all conditions precedent contained in
Section D hereof.
3. In connection with the Reorganization, the Company's
subsidiaries listed on Exhibit B attached hereto (the "Merged
Borrowers"), have ceased to exist as separate legal entities as a
result of merger into the Subsidiary Borrowers. Accordingly, on the
effective date of this Amendment, following the Reorganization, the
Borrowers under the Credit Agreement shall be the Company, the
Subsidiary Borrowers and the Applicant Subsidiary Borrower (referred
to herein as the "Post-Reorganization Borrowers" or the "Borrowers").
The Lenders hereby acknowledge and agree that the Merged Borrowers
shall, as of the date hereof, cease to be Borrowers under the Credit
Agreement.
4. Notwithstanding anything to the contrary contained in
the Credit Agreement, the Lenders hereby waive compliance with the
time deadlines set forth in Sections 7.27, 7.28(a) and 7.28(b) of the
Credit Agreement, provided that the requirements thereof shall be
satisfied as of the date hereof. Failure of the Borrowers to comply
with the provisions of Sections 7.27, 7.28(a) and 7.28(b) of the
Credit Agreement in accordance with this Amendment shall constitute
an Event of Default.
5. Notwithstanding anything set forth in Section 7.14 to
the contrary, the parties hereby agree that the Company shall be
permitted to change its fiscal year end to the first Saturday in
March. Accordingly, each of the fiscal year and quarter end dates set
forth in the Credit Agreement and all dates and calculation periods
based thereon shall be deemed to be and shall be amended to reflect
such change in the fiscal year of the Company.
6. Notwithstanding anything set forth in Section 7.1(i) to
the contrary, the parties hereby agree that no later than the Monday
after the first Saturday in March during each fiscal year when the
Credit Agreement is in effect, the Company will furnish to the
Lenders its business plan for such fiscal year which shall include a
projected consolidated balance sheet and statement of income for such
fiscal year and a projected consolidated statement of cash flows for
such fiscal year and, no later than the first Business Day in April
during each fiscal year when the Credit Agreement is in effect, the
Company will furnish to the Lenders its business plan for such fiscal
year which shall include projected consolidated balance sheets and
statements of income on a quarterly basis for such fiscal year and
projected consolidated statements of cash flows on a quarterly basis
for such fiscal year.
7. The definition of Permitted Indebtedness is hereby
amended to include the obligations of the Company in connection with
the Letter of Credit issued by NationsBank, N.A. in favor of the bond
trustee for the Catawba County Industrial Facilities and Pollution
Control Financing Authority $4,000,000 1992 Industrial Revenue Bonds
(WSMP, Inc. Project) in the stated amount of $4,080,000. The
definition of Permitted Liens is hereby amended to include the
mortgage lien on the Claremont
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Property in favor of NationsBank, N.A. and others granted in
connection with the issuance of the aforesaid Letter of Credit.
(B) Joinder Provisions.
1. The Applicant Subsidiary Borrower hereby acknowledges,
agrees and confirms that, by its execution of this Amendment, the
Applicant Subsidiary Borrower will be deemed to be a party to the
Credit Agreement and a "Borrower" for all purposes of the Credit
Agreement and the other Credit Documents, and shall have all of the
obligations of a Borrower thereunder as if it has executed the Credit
Agreement and the other Credit Documents. The Applicant Subsidiary
Borrower hereby ratifies, as of the date hereof, and agrees to be
bound by, all of the terms, provisions and conditions contained in
the Credit Agreement and in the Credit Documents, including without
limitation (i) all of the representations and warranties of the
Borrowers and their Subsidiaries set forth in Article VI of the
Credit Agreement, as supplemented from time to time in accordance
with the terms thereof, and (ii) all of the affirmative and negative
covenants set forth in Articles VII, VIII, and IX of the Credit
Agreement.
2. The Applicant Subsidiary Borrower hereby acknowledges,
agrees and confirms that, by its execution of this Amendment, the
Applicant Subsidiary Borrower will be deemed to be a party to the
Security Agreement, and shall have all the obligations of an
"Obligor" (as such term is defined in the Security Agreement)
thereunder as if it had executed the Security Agreement. The
Applicant Subsidiary Borrower hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and
conditions contained in the Security Agreement. Without limiting the
generality of the foregoing terms of this paragraph, the Applicant
Subsidiary Borrower hereby grants to the Agent, for the benefit of
the Lenders, a continuing security interest in, and a right of set
off against any and all right, title and interest of the Applicant
Subsidiary Borrower in and to the Collateral (as such term is defined
in Section 2 of the Security Agreement) of the Applicant Subsidiary
Borrower.
3. The Applicant Subsidiary Borrower hereby acknowledges,
agrees and confirms that, by its execution of this Amendment, the
Applicant Subsidiary Borrower will be deemed to be a party to the
Pledge Agreement, and shall have all the obligations of a "Pledgor"
thereunder as if it had executed the Pledge Agreement. The Applicant
Subsidiary Borrower hereby ratifies, as of the date hereof, and
agrees to be bound by, all the terms, provisions and conditions
contained in the Pledge Agreement. Without limiting the generality of
the foregoing terms of this paragraph, the Applicant Subsidiary
Borrower hereby pledges and assigns to the Agent, for the benefit of
the Lenders, and grants to the Agent, for the benefit of the Lenders,
a continuing security interest in any and all right, title and
interest of the Applicant Subsidiary Borrower in and to the Pledged
Shares (as such term is defined in Section 2 of the Pledge Agreement)
owned by it and the other Pledged Collateral (as such term is defined
in Section 2 of the Pledge Agreement) owned by it.
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4. The Applicant Subsidiary Borrower acknowledges and
confirms that it has received a copy of the Credit Agreement and the
schedules and exhibits thereto, the Pledge Agreement and the
schedules and exhibits thereto and the Security Agreement and the
schedules and exhibits relating thereto. The Schedules to the Credit
Agreement, the Pledge Agreement and the Security Agreement are
amended and restated in their entirety and attached hereto.
5. The Company confirms that all of its and its
Subsidiaries' obligations under the Credit Agreement are, and upon
the Applicant Subsidiary Borrower becoming a Borrower shall continue
to be, in full force and effect. The Company further confirms that
immediately upon the Applicant Subsidiary Borrower becoming a
Borrower the term "Obligations", as used in the Credit Agreement,
shall include all Obligations of the Applicant Subsidiary Borrower
under the Credit Agreement and under each other Credit Document.
6. The Applicant Subsidiary Borrower hereby agrees that
upon becoming a Borrower it will assume all Obligations of a Borrower
as set forth in the Credit Agreement. By its execution of this
Amendment, the Applicant Subsidiary Borrower appoints each of David
R. Clark and James E. Harris, of Fresh Foods, Inc., to be its
attorneys ("its Attorneys") and in its name and on its behalf and as
its act and deed or otherwise to sign all documents and carry out all
such acts as are necessary or appropriate in connection with
executing any Notice of Borrowing, Notice of Extension/Conversion or
any Borrowing Base Certificate or any security documents (the
"Documents") in connection with the Credit Agreement, provided that
such Documents are in substantially the form provided therefor in the
applicable exhibits or schedules thereto. This Power of Attorney
shall be valid for the duration of the term of the Credit Agreement.
The Applicant Subsidiary Borrower hereby undertakes to ratify
everything which its Attorneys shall do in order to execute the
Documents mentioned herein.
(C) Representations and Warranties.
Each Borrower hereby represents and warrants that (i) the
representations and warranties contained in Article VI of the Credit Agreement
are correct on and as of the date hereof as though made on and as of such date
(except for those representations and warranties which by their terms relate
solely to an earlier date) and after giving effect to the amendments contained
herein and the amended and restated Schedules to the Credit Documents attached
hereto as Exhibit C, (ii) no Default or Event of Default exists under the Credit
Agreement on and as of the date hereof and after giving effect to the amendments
contained herein, (iii) it has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations hereunder and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of this Amendment and (iv) it has duly executed and delivered
this Amendment, and this Amendment constitutes its legal, valid and binding
obligation enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
the rights of creditors generally or by general principles of equity.
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(D) Conditions to Effectiveness. This Amendment shall become
effective upon satisfaction of the following conditions precedent:
1. Replacement Notes. Receipt by the Agent of executed
replacement Revolving Notes by the Post-Reorganization Borrowers
substantially in the form attached to the Credit Agreement.
2. Corporate Documents. Receipt by the Agent of the
following:
(a) Copies of the articles or certificates of
incorporation or other charter documents of the Applicant
Subsidiary Borrower certified to be true and complete as
of a recent date by the appropriate Governmental Authority
of the state or other jurisdiction of its incorporation
and certified by a secretary or assistant secretary of
such Applicant Subsidiary Borrower to be true and correct
as of the date hereof.
(b) A copy of the bylaws of the Applicant
Subsidiary Borrower certified by a secretary or assistant
secretary of the Applicant Subsidiary Borrower to be true
and correct as of the date hereof.
(c) Copies of resolutions of the Board of
Directors of each relevant Borrower approving and
implementing the Reorganization and the transactions
contemplated thereby and of each Borrower approving and
authorizing execution and delivery of this Amendment,
certified by a secretary or assistant secretary of such
Borrower to be true and correct and in force and effect as
of the date hereof.
(d) Copies of (i) certificates of good
standing, existence or its equivalent with respect to the
Applicant Subsidiary Borrower certified as of a recent
date by the appropriate governmental authorities of the
state or other jurisdiction of incorporation and each
other jurisdiction in which the failure to so qualify and
be in good standing could reasonably be expected to have a
Material Adverse Effect and (ii) to the extent available,
a certificate indicating payment of all corporate
franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities.
(e) An incumbency certificate of the Applicant
Subsidiary Borrower certified by a secretary or assistant
secretary to be true and correct as of the date hereof.
3. Personal Property Collateral. Receipt by the Agent of
the following:
(a) New and/or amended UCC-1 financing
statements for the Borrowers, as appropriate and necessary
to perfect or continue the perfection of the Agent's
security interest in the Collateral.
(b) all stock certificates evidencing the
Capital Stock pledged to the Agent pursuant to the Pledge
Agreement following the Reorganization, together with duly
executed in blank undated stock powers attached thereto;
and
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(c) such patent/trademark/copyright filings as
requested by the Agent in order to perfect the Agent's
security interest in the Collateral following the
Reorganization, including, without limitation, filings to
effect name changes and transfers of intellectual
property with the U.S. Patent and Trademark Office and
new notices of grants of security interests in favor of
the Agent to reflect such changes and transfers.
4. Real Property Collateral. Receipt by the Agent of the
following:
(a) In regard to all Eligible Real Properties
owned by the Borrowers which have been or are to be
affected by the Reorganization, the Company shall comply
with, and furnish to the Agent the items listed in,
Section 7 of Schedule 1.1(b) to the Credit Agreement
(other than new Mortgage Instruments), including but not
limited to
(i) copies of filed merger documents
for the Mortgaged Properties set forth on
Exhibit D-1 hereto;
(ii) copies of executed deeds
(including assumption of the existing Mortgage
Instruments) for the Mortgaged Properties set
forth on Exhibit D-2;
(iii) delivery of title commitments
without survey exceptions for all Mortgaged
Properties;
(iv) delivery of all title
exceptions relating thereto all Mortgaged
Properties;
(v) insurance certificates relating
to all Mortgaged Properties not previously
delivered on the Closing Date; and
(vi) acknowledgment agreements with
respect to all leased and mortgaged properties
of the Applicant Subsidiary Borrower.
Flood insurance on the Elizabeth City and Mount Airy,
North Carolina properties shall not be required, but unless and until
such flood insurance is obtained, such properties shall be excluded
from the Borrowing Base.
(b) In regard to the Claremont Property, the
Agent shall have received:
(i) a Mortgagee Lien Waiver,
substantially in the form of Exhibit N to the
Credit Agreement, duly executed by NationsBank,
N.A. ("NationsBank");
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(ii) UCC-3 partial releases of
NationsBank's security interest in personal
property;
(iii) an executed amendment to the
fixture filing; and
(iv) a copy of the Letter of Credit
issued in favor of NationsBank to secure
certain mortgage obligations of the Borrower
owed to NationsBank.
In the event the Mortgagee Lien Waiver and UCC-3 releases
referred to in paragraphs 4(b)(i) and 4(b)(ii) above have not been
received by the Agent on or prior to the date of the Reorganization,
personal property located at the Claremont property shall be excluded
from the Borrowing Base until such Mortgagee Lien Waiver and UCC-3
releases have been received by the Agent.
5. Opinions of Counsel. Receipt by the Agent of an
opinion, or opinions (which shall cover, among other things,
authority, legality, validity, binding effect, enforceability of this
Amendment and attachment and perfection of liens), satisfactory to
the Agent, addressed to the Agent and the Lenders and dated the
Closing Date, from legal counsel to the Borrowers.
(E) Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules thereto) shall remain in full force
and effect.
(F) The Borrowers agree to pay all reasonable costs and expenses of
the Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Moore & Van Allen, PLLC.
(G) Execution and delivery of this Amendment by the Borrowers shall
constitute compliance with and satisfaction of the terms and conditions of
Section 7.16 of the Credit Agreement as such section applies to the Applicant
Subsidiary Borrower.
(H) This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Amendment to produce or account
for more than one such counterpart.
(I) This Amendment and the Credit Agreement as amended hereby shall
be governed by and construed and interpreted in accordance with the laws of the
State of North Carolina.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
COMPANY: FRESH FOODS, INC.
By: /s/ JAMES E. HARRIS
-------------------------
Name: James E. Harris
Title: Vice President
SUBSIDIARY BORROWERS: CLAREMONT RESTAURANT GROUP, LLC
BY: FRESH FOODS, INC.,
its Sole Member
CHARDENT, INC.
FRESH FOODS PROPERTIES, LLC
BY: FRESH FOODS, INC.,
its Sole Member
SPICEWOOD, INC.
SUNSHINE WSMP, INC.
FRESH FOODS SALES, LLC
BY: FRESH FOODS, INC.,
its Sole Member
PIERRE FOODS, LLC
BY: FRESH FOODS, INC.,
its Sole Member
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MOM `n' POP'S COUNTRY HAM, LLC
BY: PIERRE FOODS, LLC,
its Sole Member
BY: FRESH FOODS, INC.,
its Sole Member
SAGEBRUSH OF TENNESSEE, L.P.
BY: SAGEBRUSH OF SOUTH
CAROLINA, LLC
General Partner
BY: CLAREMONT RESTAURANT
GROUP, LLC,
its Sole Member
BY: FRESH FOODS, INC.,
its sole member
SAGEBRUSH OF NORTH CAROLINA, LLC
BY: CLAREMONT RESTAURANT GROUP, LLC
its Sole Member
BY: FRESH FOODS, INC.,
its sole member
SAGEBRUSH OF SOUTH CAROLINA, LLC
BY: CLAREMONT RESTAURANT
GROUP, LLC,
its Sole Member
BY: FRESH FOODS, INC.,
its sole member
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PIERRE LEASING, LLC
BY: FRESH FOODS, INC.,
its Sole Member
By: /s/ JAMES E. HARRIS
-----------------------
Name: James E. Harris
Title: Vice President
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AGENT AND LENDERS: FIRST UNION COMMERCIAL CORPORATION,
as Agent and a Lender
By: /s/ ERIC BUTLER
-------------------------------
Name: Eric Butler
-------------------------------
Title: SVP
-------------------------------
NATIONSBANK, N.A.,
as a Lender
By: /s/ ANGELA PETERSON LEAKE
-------------------------------
Name: Angela Peterson Leake
-------------------------------
Title: Vice President
-------------------------------
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as a Lender
By: /s/ Joseph L. White
-------------------------------
Name: Joseph L. White
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Title: Sr. VP
-------------------------------
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
as a Lender
By: /s/ LEE LABINE
-------------------------------
Name: Lee LaBine
-------------------------------
Title: AVP
-------------------------------
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EXHIBIT A
PLAN OF REORGANIZATION
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FRESH FOODS, INC.
PLAN OF REORGANIZATION
1. Business Combinations.
(i) Sagebrush Group. Merge Tennessee shell corporations together
in sideways merger, with Kingsport Foods, Inc. ("Kingsport
Foods") as survivor; immediately thereafter, merge Sagebrush,
Inc., a North Carolina corporation ("Sagebrush") downstream
into Kingsport Foods, resulting in the structure set forth on
Exhibit A.
(ii) Second Tier Subsidiaries. Merge (i) Elloree Foods, Inc., a
South Carolina corporation ("Elloree") upstream into South
Carolina WSMP, Inc., a South Carolina corporation ("SC WSMP"),
and (ii) St. Augustine, Inc., a Florida corporation ("St.
Augustine") and Naples, Inc., a Florida corporation ("Naples")
upstream into Sunshine WSMP, Inc., a Florida corporation
("Sunshine"), resulting in the structure set forth on Exhibit
B.
(iii) Segregated Jurisdiction Mergers. Merge Greenville Food
Systems, Incorporated, a North Carolina corporation
("Greenville"), Matthews Prime Sirloin, Inc., a North Carolina
corporation ("Matthews") and SC WSMP sideways and D&S Food
Systems, LLC, a Georgia limited liability company ("D&S") and
Georgia Buffet Restaurants, Inc., a Georgia corporation
("Georgia Buffet") upstream into Georgia WSMP, a Georgia
corporation ("Georgia WSMP"), resulting in the structure set
forth on Exhibit C.
(iv) Acquisition LLC Merger. Merge Georgia WSMP, Prime Sirloin,
Inc., a Tennessee corporation ("Prime Sirloin"), Kingsport
Foods, Tennessee WSMP, Inc., a Tennessee corporation
("Tennessee WSMP"), Brunswick Associates, Inc., a Georgia
corporation ("Brunswick"), Seven Stars, Inc., a Maryland
corporation ("Seven Stars") and Virginia WSMP, Inc., a
Virginia corporation ("Virginia WSMP") sideways into Fresh
Foods Acquisition, LLC, a newly created Georgia limited
liability company ("Acquisition LLC"), resulting in the
structure set forth on Exhibit D.
(v) Acquisition LLC-Claremont Merger. Merge Acquisition LLC
sideways into Claremont Restaurant Group, LLC, a North
Carolina limited liability company ("Claremont"), resulting in
the structure set forth on Exhibit E.
2. Capital Contributions.
(i) Fresh Foods contributes 11 owned North Carolina restaurant
properties and leasehold interests in 14 other North Carolina
restaurants (the "Restaurant Assets") and other tangible
personal property associated therewith to Fresh Foods Sales,
LLC, a North Carolina limited liability company ("Sales");
(ii) Fresh Foods contributes the leasehold interest in its Virginia
restaurant and other tangible personal property associated
therewith to Claremont;
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(iii) Fresh Foods contributes: (1) smokehouse assets, including the
real property associated therewith (the "Smokehouse Assets"),
and (2) its other manufacturing operations into Pierre Foods,
LLC, a North Carolina limited liability company ("Pierre
Foods");
(iv) Fresh Foods contributes manufacturing and other intellectual
property to Fresh Foods Properties, LLC, a North Carolina
limited liability company ("Properties") and contributes
restaurant intellectual property to Claremont; Properties
licenses certain manufacturing intellectual property to Pierre
Foods and Claremont licenses certain restaurant intellectual
property to Sales; and
(v) Pierre Foods contributes the Smokehouse Assets, less the real
property, to Mom `n' Pop's Country Ham, LLC, a North Carolina
limited liability company ("Country Ham").
3. Organization of Pierre Leasing.
(i) Fresh Foods organizes Pierre Leasing, LLC, a North Carolina
limited liability company and direct wholly-owned subsidiary
of Fresh Foods ("Pierre Leasing");
(ii) Pierre Foods transfers a 2 1/2% undivided interest in the real
property and improvements acquired by Pierre Foods from Hudson
Foods, Inc. on June 9, 1998 (the "Pierre Assets") to Pierre
Leasing; and
(iii) Pierre Leasing leases its interest in the Pierre Assets back
to Pierre Foods.
4. Contribution of LP Interest.
(i) Fresh Foods contributes its leasehold interest in, and
personal property associated with, its Newport, Tennessee
restaurant to Sagebrush of Tennessee, LP, a Delaware limited
partnership (the "LP") in exchange for a 10% limited
partnership interest in the LP;
(ii) Fresh Foods contributes the limited partnership interest to
Claremont; and
(iii) Claremont contributes the limited partnership interest to
Chardent, resulting in the final structure set forth on
Exhibit F.
5. Notes Payable.
(i) Pierre Foods issues two notes payable in the amounts of $115
million and $30 million (with interest rates of 11 1/4% and 8
1/4%, respectively) to Fresh Foods (the "Notes") in exchange
for (i) the purchase money contributed by Fresh Foods for the
purchase of the Pierre Assets and (ii) the Smokehouse Assets
and other manufacturing operations; and
(ii) Fresh Foods assigns the Notes to Sales as a capital
contribution.
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EXHIBIT A
[Organizational Chart--Omitted]
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EXHIBIT B
[Organizational Chart--Omitted]
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EXHIBIT C
[Organizational Chart--Omitted]
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EXHIBIT D
[Organizational Chart--Omitted]
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EXHIBIT E
[Organizational Chart--Omitted]
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EXHIBIT F
[Organizational Chart--Omitted]
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EXHIBIT B-1
POST-REORGANIZATION: FORMER SUBSIDIARY BORROWERS
Georgia WSMP
Greenville Food Systems Incorporated
Matthews Prime Sirloin, Inc.
SC WSMP
Elloree Foods
D&S Food Systems, LLC
Georgia Buffet Restaurants, Inc.
Prime Sirloin, Inc.
Kingsport Foods
Sagebrush DTN, Inc.
Sagebrush of Sevierville, Inc.
Knoxville Foods, Inc.
Oak Ridge Foods, Inc.
Tumbleweed of Pigeon Forge, Inc.
Sagebrush, Inc.
Tennessee WSMP, Inc.
Brunswick Associates, Inc.
Seven Stars
Virginia WSMP
St. Augustine, Inc.
Naples, Inc.
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EXHIBIT B-2
POST-REORGANIZATION BORROWERS
Fresh Foods, Inc.
Pierre Leasing, LLC
Pierre Foods, LLC
Fresh Foods Properties, LLC
Claremont Restaurant Group, LLC
Fresh Foods Sales, LLC
Sunshine WSMP, Inc.
Mom & Pop's Country Ham, LLC
Sagebrush of SC, LLC
Sagebrush of NC, LLC
Chardent, Inc.
Spicewood, Inc.
Sagebrush of TN, LP
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EXHIBIT C
AMENDED AND RESTATED SCHEDULES TO CREDIT AGREEMENT
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SCHEDULE 1.1A
LENDERS AND COMMITMENTS
REVOLVING
REVOLVING CREDIT LETTER OF
CREDIT COMMITMENT CREDIT
LENDER COMMITMENT PERCENTAGE COMMITMENT
- ------ ---------- ---------- ----------
First Union Commercial $22,500,000 30.00001% $3,000,000
Corporation
American National Bank & $17,500,000 23.33333%
Trust Company
National City Bank $17,500,000 23.33333%
NationsBank, N.A. $17,500,000 23.33333%
TOTAL $75,000,000 100.00000% $3,000,000
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SCHEDULE 1.1B
CLOSING CONDITIONS
The obligation of each Lender to make Revolving Loans and/or of the Issuing Bank
to issue Letters of Credit shall be subject to the satisfaction, on or prior to
the Closing Date, of the following conditions precedent:
1. Executed Credit Documents. Receipt by the Agent of duly executed
copies of:
(a) this Credit Agreement;
(b) the Revolving Notes;
(c) the Security Documents; and
(d) all other Credit Documents,
each in form and substance acceptable to the Lenders in their sole
discretion.
2. Corporate Documents. Receipt by the Agent of the following:
(a) Charter Documents. Copies of the articles or certificates of
incorporation or other charter documents of each Borrower certified to be true
and complete as of a recent date by the appropriate Governmental Authority of
the state or other jurisdiction of its incorporation and certified by a
secretary or assistant secretary of such Borrower to be true and correct as of
the Closing Date.
(b) Bylaws. A copy of the bylaws of each Borrower certified by a
secretary or assistant secretary of such Borrower to be true and correct as of
the Closing Date.
(c) Resolutions. Copies of resolutions of the Board of Directors of
each Borrower approving and adopting the Credit Documents to which it is a
party, the transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary of such
Borrower to be true and correct and in force and effect as of the Closing Date.
(d) Good Standing. Copies of (i) certificates of good standing,
existence or its equivalent with respect to each Borrower certified as of a
recent date by the appropriate governmental authorities of the state or other
jurisdiction of incorporation and each other jurisdiction in which the failure
to so qualify and be in good standing could reasonably be expected to have a
Material Adverse Effect and (ii) to the extent available, a certificate
indicating payment of all corporate franchise taxes certified as of a recent
date by the appropriate governmental taxing authorities.
(e) Incumbency. An incumbency certificate of each Borrower certified by
a secretary or assistant secretary to be true and correct as of the Closing
Date.
3. Financial Statements. Receipt by the Agent and the Lenders of the
financial statements and the accountants' unqualified opinion and management
letter prepared in connection therewith described in Section 6.6 of the Credit
Agreement and such other information relating to the Borrowers as the Agent may
reasonably require in connection with the structuring and syndication of credit
facilities of
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the type described herein. The Borrowers shall certify as of the Closing Date
that such financial statements have been prepared in accordance with the books
and records of the Borrowers and fairly present in all material respects the
financial condition of each of the Borrowers (including the Pierre Foods
Division) at the dates thereof and the results of operations for the periods
indicated (subject, in the case of unaudited financial statements, to normal
year-end adjustments and the absence of footnote disclosures ), and such
financial statements have been prepared in conformity with GAAP consistently
applied throughout the periods involved.
4. Opinions of Counsel. Receipt by the Agent of an opinion, or opinions
(which shall cover, among other things, authority, legality, validity, binding
effect, enforceability and attachment and perfection of liens), satisfactory to
the Agent, addressed to the Agent and the Lenders and dated the Closing Date,
from legal counsel to the Borrowers.
5. Environmental Reports. Receipt by the Agent in form and substance
satisfactory to it of the environmental assessment reports and related documents
prepared in connection with the Real Estate.
6. Personal Property Collateral. The Agent shall have received:
(a) searches of Uniform Commercial Code filings in the jurisdiction of
the chief executive office of each Borrower and each jurisdiction where any
Collateral is located or where a filing would need to be made in order to
perfect the Agent's security interest in the Collateral, copies of the financing
statements on file in such jurisdictions and evidence that no Liens exist other
than Permitted Liens;
(b) duly executed UCC financing statements for each appropriate
jurisdiction as is necessary, in the Agent's sole discretion, to perfect the
Agent's security interest in the Collateral;
(c) searches of ownership of intellectual property in the appropriate
governmental offices and such patent/trademark/copyright filings as requested by
the Agent in order to perfect the Agent's security interest in the Collateral;
(d) all stock certificates evidencing the Capital Stock pledged to the
Agent pursuant to the Pledge Agreement, together with duly executed in blank
undated stock powers attached thereto;
(e) such patent/trademark/copyright filings as requested by the Agent
in order to perfect the Agent's security interest in the Collateral;
(f) all instruments and chattel paper in the possession of any of the
Borrowers, together with allonges or assignments as may be necessary or
appropriate to perfect the Agent's security interest in the Collateral to the
extent required under the Security Agreement; and
(g) duly executed consents as are necessary, in the Agent's sole
discretion, to perfect the Lenders' security interest in the Collateral.
7. Real Property Collateral. Receipt by Lender of the following:
27
a. Fully executed and notarized mortgages, deeds of trust or deeds to
secure debt (each, as the same may be amended, modified, restated or
supplemented from time to time, a and collectively the "Mortgage Instruments")
encumbering the fee interest of Borrowers in each real property asset designated
in Schedule 6.19 (each a "Mortgaged Property" and collectively the "Mortgaged
Properties".
b. A title report obtained by Borrower in respect of each of the
Mortgaged Properties.
c. Lender shall have received, and the title insurance company issuing
the title policies (the "Title Insurance Company") shall have received, maps or
plats of an as-built survey of the sites of the real property covered by the
Mortgage Instruments certified to Lender and the Title Insurance Company in a
manner reasonably satisfactory to each of Lender and the Title Insurance
Company, dated a date reasonably satisfactory to Lender and the Title Insurance
Company by an independent professional licensed land surveyor, which maps or
plats and the surveys on which they are based shall be made in accordance with
standards that enable the Title Insurance Company to issue the title policies
without exception for "Survey matters", except for matters as are reasonably
acceptable to Lender.
d. ALTA mortgagee title insurance policies issued by Chicago Title
Insurance Company (the "Mortgage Policies"), in amounts not less than the
respective amounts designated in Schedule 6.19 with respect to any particular
Mortgaged Property, assuring Lender that each of the Mortgage Instruments
creates a valid and enforceable first priority mortgage lien on the applicable
Mortgaged Property, free and clear of all defects and encumbrances except
Permitted Liens, which Mortgage Policies shall be in form and substance
reasonably satisfactory to Lender and shall provide for affirmative insurance
and such reinsurance as Lender may reasonably request, all of the foregoing in
form and substance reasonably satisfactory to Lender.
e. Evidence, which may be in the form of a letter from an insurance
broker or a municipal engineer, as to whether (i) any Mortgaged Property (a
"Flood Hazard Property") is in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards and (ii) the
community in which such Flood Hazard Property is located is participating in the
National Flood Insurance Program.
f. If there are any Flood Hazard Properties, Borrower's written
acknowledgment of receipt of written notification from Lender (i) as to the
existence of each such Flood Hazard Property and (ii) as to whether the
community in which each such Flood Hazard Property is located is participating
in the National Flood Insurance Program.
g. Evidence satisfactory to Lender that each of the Mortgaged
Properties, and the uses of the Mortgaged Properties, are in compliance in all
material respects with all applicable laws, regulations and ordinances including
without limitation health and environmental protection laws, erosion control
ordinances, storm drainage control laws, doing business and/or licensing laws,
zoning laws (the evidence submitted as to zoning should include the zoning
designation made for each of the Mortgaged Properties, the permitted uses of
each such Mortgaged Property under such zoning designation and zoning
requirements as to parking, lot size, ingress, egress and building setbacks) and
laws regarding access and facilities for disabled persons.
28
h. Duly executed UCC fixture financing statements for each Mortgaged
Property to be filed in the appropriate jurisdiction as is necessary, in
Lender's sole discretion, to perfect Lender's lien on such Mortgaged Property.
i. Real estate appraisals for each Mortgaged Property satisfactory in
form and substance to the Agent.
8. Priority of Liens. The Agent shall have received satisfactory
evidence that (a) the Agent, on behalf of the Lenders, holds a perfected, first
priority Lien on all Collateral (subject to clause (b)) and (b) none of the
Collateral is subject to any other Liens other than Permitted Liens.
9. Equipment Appraisals. The Agent shall have received and approved
appraisals of the Equipment prepared by each of the appraisers listed on
Schedule 1.1(G) to the Credit Agreement.
10. Opening Borrowing Base Certificate. Receipt by the Agent of a
Borrowing Base Certificate as of the Closing Date, substantially in the form of
Exhibit L, certified by the chief financial officer of the Company to be true
and correct as of the Closing Date and demonstrating availability of Loans
permitted to be borrowed under the Credit Agreement, after giving effect to the
Acquisition of the Pierre Foods Division and the Loans made on the Closing Date,
of at least $17,000,000.
11. Evidence of Insurance. Receipt by the Agent of copies of insurance
policies or certificates of insurance of the Borrowers evidencing liability and
casualty insurance meeting the requirements set forth in the Credit Documents,
including, but not limited to, naming the Agent as loss payee on behalf of the
Lenders and as additional insured.
12. Corporate Structure. The corporate capital and ownership structure
of the Company and its Subsidiaries shall be as described in Schedule 6.9.
13. Subordinated Debt. (a) the Company shall have issued the
Subordinated Debt and such which shall contain subordination provisions
satisfactory to the Agent, (b) the Agent shall have received a copy, certified
by an officer of the Company as true and complete, of the indenture governing
the Subordinated Debt as originally executed and delivered, and no amendment or
modification thereof shall have been entered into on or prior to the Closing
Date which shall not have been approved by each of the Lenders and (c) the
Borrowers shall have received gross cash proceeds from the issuance of the
Subordinated Debt in an aggregate principal amount of $100,000,000.
14. Consents. Receipt by the Agent of evidence that all governmental,
shareholder and third party consents and approvals, if any, required in
connection with the financings and other transactions contemplated by the Credit
Agreement and expiration of all applicable waiting periods without any action
being taken by any authority that could restrain, prevent or impose any material
adverse conditions on such transactions or that could seek or threaten any of
the foregoing, and no law or regulation shall be applicable which in the
judgment of the Agent could have such effect.
15. Litigation. There shall not exist any pending or threatened action,
suit, investigation or proceeding against a Borrower that could reasonably be
expected to have a Material Adverse Effect.
16. Other Indebtedness. Receipt by the Agent of evidence that, after
giving effect to the making of the Revolving Loans made on the Closing Date, the
Borrowers shall have no Funded Indebtedness other than the Indebtedness under
(a) the Credit Documents, and (b) the Subordinated Debt.
29
17. Solvency Certificate. Receipt by the Agent of an officer's
certificate for each Borrower prepared by the chief financial officer of each
such Borrower as to the financial condition, solvency and related matters of
each such Borrower, in each case after giving effect to the initial borrowings
under the Credit Documents, in substantially the form of Exhibit C hereto.
18. Officer's Certificates. The Agent shall have received a certificate
or certificates executed by an Executive Officer of the Company as of the
Closing Date stating that (a) each Borrower is in compliance with all existing
financial obligations, (b) all governmental, shareholder and third party
consents and approvals, if any, with respect to the Credit Documents and the
transactions contemplated thereby have been obtained, (c) no action, suit,
investigation or proceeding is pending or threatened in any court or before any
arbitrator or governmental instrumentality that purports to affect any Borrower
or any transaction contemplated by the Credit Documents, if such action, suit,
investigation or proceeding could reasonably be expected to have a Material
Adverse Effect, (d) the transactions contemplated by the Separation Agreement
have been consummated in accordance with the terms thereof and (e) immediately
after giving effect to this Credit Agreement, the other Credit Documents and all
the transactions contemplated therein to occur on such date, (i) each of the
Borrowers is solvent, (ii) no Default or Event of Default exists, (iii) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects, and (iv) the Borrowers
are in compliance with each of the financial covenants set forth in Section 8.
19. Fees and Expenses. Payment by the Borrowers of all fees and
expenses owed by them to the Lenders and the Agent, including, without
limitation, payment to the Agent of the fees set forth in the Fee Letter.
20. Sources and Uses; Payment Instructions. Receipt by the Agent of (a)
a statement of sources and uses of funds covering all payments reasonably
expected to be made by the Company in connection with the transactions
contemplated by the Credit Documents to be consummated on the Closing Date,
including an itemized estimate of all fees, expenses and other closing costs and
(b) payment instructions with respect to each wire transfer to be made by the
Agent on behalf of the Lenders or the Company or the Subsidiary Borrower on the
Closing Date setting forth the amount of such transfer, the purpose of such
transfer, the name and number of the account to which such transfer is to be
made, the name and ABA number of the bank or other financial institution where
such account is located and the name and telephone number of an individual that
can be contacted to confirm receipt of such transfer.
21. Purchase Agreement. There shall not have been any material
modification, amendment, supplement or waiver to the Purchase Agreement without
the prior written consent of the Agent, including, but not limited to, any
modification, amendment, supplement or waiver relating to the amount or type of
consideration to be paid in connection with the Acquisition of the Pierre Foods
Division and the contents of all disclosure schedules and exhibits, and the
Acquisition of the Pierre Foods Division shall have been consummated in
accordance with the terms of the Purchase Agreement (without waiver of any
conditions precedent to the obligations of the buyer thereunder). The Agent
shall have received the final Purchase Agreement, together with all exhibits and
schedules thereto, certified by an officer of the Company.
22. Year 2000 Compliance. Receipt by the Agent of the Company's plan to
assure that its computer-based systems will be able to operate and effectively
process data including dates on and after January 1, 2000.
30
23. Regulatory Compliance. Receipt by the Agent of copies of the
Company's licenses from applicable federal, state and local regulatory agencies.
24. Other. Receipt by the Lenders of such other documents, instruments,
agreements or information as reasonably requested by any Lender, including, but
not limited to, information regarding litigation, tax, accounting, labor,
insurance, pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership and contingent
liabilities of the Borrowers.
The documents referred to in this Schedule shall be delivered to the
Agent and the Lenders no later than the Closing Date. The certificates and
opinions referred to in this Schedule shall be dated the Closing Date and shall
be satisfactory in all material respects to the Agent and the Lenders.
31
SCHEDULE 1.1C
LIENS
Lienor Collateral
- ------ ----------
Waldorf Corporation One (1) Adco Cavity Load Cartoner
Two (2) Waldorf Hot Melt Midget Sealers
One (1) Adco Top Loading Cartoner
Refco Investments Inc. Two (2) Waldorf Hoerner Cartoners
NationsBank, N.A. Bakery property (approximately 10.629 acres)
located at 3437 E. Main Street, Claremont,
NC 28610
The following are liens of record which may apply to Pierre Foods, LLC assets
and which will be released post-closing by Tyson Foods, Inc. or Hudson Foods,
Inc., as applicable:
Lienor Equipment
- ------ ---------
Shawmut Bank N.A. Automatic finished frozen patty stacker
BOT Financial Corporation Rheon sandwich line
Formax patty forming and shaping plates
IBM Corp. IBM equipment
In addition, all of the lessors with whom the Borrowers have capital leases have
filed security interests in the leased machinery and equipment. See Schedule
1.1D, Indebtedness.
32
SCHEDULE 1.1D
INDEBTEDNESS
Principal Balance
Creditor as of June 9, 1998
- -------- ------------------
Industrial Revenue Bonds 2,352,132
Capital Lease Lessor
- --------------------
CITIF 92,881
Siemens Credit 45,420
Amplicon Financial 227,992
Hudson Foods 29,702
Textron Financial #1 219,086
Textron Financial #2 28,509
Capital Associates 439,456
The Borrowers also have two unsecured letters of credit. See Schedule 1.1H,
Unsecured Letters of Credit.
33
SCHEDULE 1.1E
INVESTMENTS
Money Fund Account with J.C. Bradford & Company. Balance as of
May 31, 1998 was $213,874.
34
SCHEDULE 1.1F
CORPORATE STRUCTURE
35
FRESH FOODS, INC.
PLAN OF REORGANIZATION
1. Business Combinations.
(i) Sagebrush Group. Merge Tennessee shell corporations together
in sideways merger, with Kingsport Foods, Inc. ("Kingsport
Foods") as survivor; immediately thereafter, merge Sagebrush,
Inc., a North Carolina corporation ("Sagebrush") downstream
into Kingsport Foods, resulting in the structure set forth on
Exhibit A.
(ii) Second Tier Subsidiaries. Merge (i) Elloree Foods, Inc., a
South Carolina corporation ("Elloree") upstream into South
Carolina WSMP, Inc., a South Carolina corporation ("SC WSMP"),
and (ii) St. Augustine, Inc., a Florida corporation ("St.
Augustine") and Naples, Inc., a Florida corporation ("Naples")
upstream into Sunshine WSMP, Inc., a Florida corporation
("Sunshine"), resulting in the structure set forth on Exhibit
B.
(iii) Segregated Jurisdiction Mergers. Merge Greenville Food
Systems, Incorporated, a North Carolina corporation
("Greenville"), Matthews Prime Sirloin, Inc., a North Carolina
corporation ("Matthews") and SC WSMP sideways and D&S Food
Systems, LLC, a Georgia limited liability company ("D&S") and
Georgia Buffet Restaurants, Inc., a Georgia corporation
("Georgia Buffet") upstream into Georgia WSMP, a Georgia
corporation ("Georgia WSMP"), resulting in the structure set
forth on Exhibit C.
(iv) Acquisition LLC Merger. Merge Georgia WSMP, Prime Sirloin,
Inc., a Tennessee corporation ("Prime Sirloin"), Kingsport
Foods, Tennessee WSMP, Inc., a Tennessee corporation
("Tennessee WSMP"), Brunswick Associates, Inc., a Georgia
corporation ("Brunswick"), Seven Stars, Inc., a Maryland
corporation ("Seven Stars") and Virginia WSMP, Inc., a
Virginia corporation ("Virginia WSMP") sideways into Fresh
Foods Acquisition, LLC, a newly created Georgia limited
liability company ("Acquisition LLC"), resulting in the
structure set forth on Exhibit D.
(v) Acquisition LLC-Claremont Merger. Merge Acquisition LLC
sideways into Claremont Restaurant Group, LLC, a North
Carolina limited liability company ("Claremont"), resulting in
the structure set forth on Exhibit E.
2. Capital Contributions.
(i) Fresh Foods contributes 11 owned North Carolina restaurant
properties and leasehold interests in 14 other North Carolina
restaurants (the "Restaurant Assets") and other tangible
personal property associated therewith to Fresh Foods Sales,
LLC, a North Carolina limited liability company ("Sales");
(ii) Fresh Foods contributes the leasehold interest in its Virginia
restaurant and other tangible personal property associated
therewith to Claremont;
36
(iii) Fresh Foods contributes: (1) smokehouse assets, including the
real property associated therewith (the "Smokehouse Assets"),
and (2) its other manufacturing operations into Pierre Foods,
LLC, a North Carolina limited liability company ("Pierre
Foods");
(iv) Fresh Foods contributes manufacturing and other intellectual
property to Fresh Foods Properties, LLC, a North Carolina
limited liability company ("Properties") and contributes
restaurant intellectual property to Claremont; Properties
licenses certain manufacturing intellectual property to Pierre
Foods and Claremont licenses certain restaurant intellectual
property to Sales; and
(v) Pierre Foods contributes the Smokehouse Assets, less the real
property, to Mom `n' Pop's Country Ham, LLC, a North Carolina
limited liability company ("Country Ham").
3. Organization of Pierre Leasing.
(i) Fresh Foods organizes Pierre Leasing, LLC, a North Carolina
limited liability company and direct wholly-owned subsidiary
of Fresh Foods ("Pierre Leasing");
(ii) Pierre Foods transfers a 2 1/2% undivided interest in the real
property and improvements acquired by Pierre Foods from Hudson
Foods, Inc. on June 9, 1998 (the "Pierre Assets") to Pierre
Leasing; and
(iii) Pierre Leasing leases its interest in the Pierre Assets back
to Pierre Foods.
4. Contribution of LP Interest.
(i) Fresh Foods contributes its leasehold interest in, and
personal property associated with, its Newport, Tennessee
restaurant to Sagebrush of Tennessee, LP, a Delaware limited
partnership (the "LP") in exchange for a 10% limited
partnership interest in the LP;
(ii) Fresh Foods contributes the limited partnership interest to
Claremont; and
(iii) Claremont contributes the limited partnership interest to
Chardent, resulting in the final structure set forth on
Exhibit F.
5. Notes Payable.
(i) Pierre Foods issues two notes payable in the amounts of $115
million and $30 million (with interest rates of 11 1/4% and 8
1/4%, respectively) to Fresh Foods (the "Notes") in exchange
for (i) the purchase money contributed by Fresh Foods for the
purchase of the Pierre Assets and (ii) the Smokehouse Assets
and other manufacturing operations; and
(ii) Fresh Foods assigns the Notes to Sales as a capital
contribution.
37
EXHIBIT A
[Organizational Chart--Omitted]
38
EXHIBIT B
[Organizational Chart--Omitted]
39
EXHIBIT C
[Organizational Chart--Omitted]
40
EXHIBIT D
[Organizational Chart--Omitted]
41
EXHIBIT E
[Organizational Chart--Omitted]
42
EXHIBIT F
[Organizational Chart--Omitted]
43
SCHEDULE 1.1G
EQUIPMENT APPRAISALS
Machinery and equipment located at Cincinnati facility $6,413,025
Machinery and equipment located at Claremont facility 3,407,615
44
SCHEDULE 1.1H
UNSECURED LETTERS OF CREDIT
1. People's Bank for $450,000
2. People's Bank for $700,000
3. First Union National Bank for $500,000
45
SCHEDULE 6.1
JURISDICTIONS OF ORGANIZATION
States where Qualified to do
State of Business as a Foreign
Entity Organization Corporation or LLC
- ------ ------------ ------------------
Fresh Foods, Inc. North Carolina None
Claremont Restaurant Group, LLC North Carolina Virginia
Georgia
Tennessee
Fresh Foods Properties, LLC North Carolina None
Fresh Foods Sales, LLC North Carolina None
Pierre Foods, LLC North Carolina Ohio
Pierre Leasing, LLC North Carolina Ohio
Mom `n' Pop's Country Ham, LLC North Carolina None
Sunshine WSMP, Inc. Florida North Carolina
Sagebrush of Tennessee, LP Delaware North Carolina
Tennessee
Sagebrush of North Carolina, LLC North Carolina None
Sagebrush of South Carolina, LLC South Carolina North Carolina
Chardent, Inc. Delaware North Carolina
Spicewood, Inc. Delaware North Carolina
46
SCHEDULE 6.7
COLLATERAL LOCATIONS
(i) 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
47
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
48
PFS West Sacramento P.O. Box 1325
West Sacramento, CA 95691
Security Capital Industrial Trust 4770 Interstate Drive
Cincinnati, OH 45246
Catherine's Distribution Inc. 4825 Hovis Road
Charlotte, NC 28205
(ii) The chief executive offices of all Borrowers and Subsidiaries are
located at 3437 East Main Street, Claremont, North Carolina 28610.
(iii) The books and accounts of the Borrowers and each of their Subsidiaries
are kept at 3437 East Main Street, Claremont, North Carolina 28610.
Pierre Foods, LLC also maintains books and accounts at 9990 Princeton
Road, Cincinnati, OH 45246.
Also see Schedule 6.19, Real Estate for a listing of additional
jurisdictions in which the Borrowers and its Subsidiaries have assets, equipment
and inventory.
49
SCHEDULE 6.8
FICTITIOUS BUSINESS 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
50
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
51
SCHEDULE 6.9
SUBSIDIARIES
Claremont Restaurant Group, LLC
Fresh Foods Properties, LLC
Fresh Foods Sales, LLC
Pierre Foods, LLC
Pierre Leasing, LLC
Mom `n' Pop's Country Ham, LLC
Sunshine WSMP, Inc.
Sagebrush of Tennessee, LP
Sagebrush of North Carolina, LLC
Sagebrush of South Carolina, LLC
Chardent, Inc.
Spicewood, Inc.
52
SCHEDULE 6.10
LITIGATION
None
53
SCHEDULE 6.14
ERISA
Fresh Foods Employee Health Plan
WSMP Flexible Benefits Plan
Fresh Foods Employee Stock Purchase Plan
WSMP 401(k) Profit Sharing Plan
Pierre Foods 401(k) Profit Sharing Plan
Pierre Foods Life Insurance AD&D Plan
Pierre Foods Short-Term Disability Plan
Pierre Foods Long-Term Disability Plan
Pierre Foods Business Travel Insurance Plan
Hudson Foods Employee Health, Medical and Dental Plan
54
SCHEDULE 6.15
ENVIRONMENTAL DISCLOSURES
1. Prior to 1996, the Claremont facility was subject to surcharges for its
level of BODs in discharges to a municipal sewer. The facility
installed sewage pretreatment equipment to prevent such discharges.
2. The Pierre facility, in accordance with its county-issued industrial
pretreatment permit, is currently paying a surcharge of approximately
$67,000 per year for its level of BODs in discharge of waste water to a
municipal sewer.
55
SCHEDULE 6.17
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
56
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 Restaurant
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 05/14/85
Mom `n' Pop's federal 1,341,236 06/11/85
`Fluffy' and Design federal 1,272,996 04/03/84
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 04/12/98
Rib-B-Q and Design federal 2,132,710 01/27/98
Sagebrush Steakhouse & Saloon federal 1,743,755 12/29/92
Golddigger Beef Nugget federal 1,521,147 01/17/89
57
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)
Quick Classics federal 02/26/90 74-032,512
Savory Selections and Design federal 07/08/98
Fastbites federal 07/06/98
Patents:
Exclusive, royalty-free, worldwide and perpetual patent license 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
58
Cafeteria Adventures Radical
Promotion Program federal TX3421698 10/08/92
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
59
SCHEDULE 6.19
REAL ESTATE
Owned Properties:
Property Address City State Zip
- -------- ------- ---- ----- ---
Claremont Restaurant Group, LLC
Sagebrush #537 5030 Valley View Blvd., NW Roanoke VA 24012
Closed restaurant 2911 Cypress Mill Road Brunswick GA
(leased to another party)
Closed restaurant 997 Sunset Blvd. Jessup GA
(leased to another party)
Closed restaurant 1336 Andrew Johnson Highway Morristown TN
(leased to another party)
Fresh Foods Sales, LLC
Bennett's #345 1819 Fairgrove Church Road Conover NC 28613
Prime Sirloin #376 3302 S. I-85 Service Road Charlotte NC 28208
Prime Sirloin #382 10450 E. Independence Blvd. Matthews NC 28105
Western Steer #22 1190 Lenoir Rhyne Blvd., SE Hickory NC 28602
Western Steer #51 3062 Hickory Blvd. Hudson NC 28638
Western Steer #111 316 Ehring House St. Elizabeth City NC 27909
Western Steer #292 101 Bost Road Morganton NC 28655
Western Steer #329 314 Blowing Rock Blvd. Lenoir NC 28645
Closed restaurant 2225 12th Avenue NE Hickory NC
(leased to another party)
Unimproved property (1.6 acres) Statesville NC
Unimproved property (2.4 acres) Highway 127 South Hickory NC
60
Pierre Foods, LLC
Claremont manufacturing facility 3437 E. Main Street Claremont NC 28610
Cincinnati manufacturing facility 9990 Princeton Road Cincinnati OH 45246
(Note: Pierre Leasing, LLC has a 2 1/2%
undivided interest in this property)
Sagebrush of North
Carolina, LLC
Sagebrush #527 566 Arbor Hill Road Kernersville NC 27284
Sagebrush #535 2000 Woodland Drive Mt. Airy NC 27030
Sagebrush #536 428 Jake Alexander Blvd. S. Salisbury NC 28144
Sagebrush #538 954 Blowing Rock Blvd., NE Lenoir NC 28645
Sagebrush #539 6170 South NC 16 Highway Denver NC 28037
Sagebrush #541 2100 Dalrymple Street Sanford NC 27330
Sagebrush #546 623 NC 24-27 By-Pass East Albemarle NC 28001
Sagebrush #547 1529 Freeway Drive Reidsville NC 27320
Sagebrush of South
Carolina, LLC
Sagebrush #532 482 By-Pass 72 NW Greenwood SC 29649
Sagebrush #540 190 Aiken Mall Drive Aiken SC 29803
Sagebrush of Tennessee, LP
Sagebrush #511 110 Cedar Lane Knoxville TN 37912
Sagebrush #531 2468 Alcoa Highway Alcoa TN 37701
61
Sunshine WSMP, Inc.
Closed restaurant 1603 US-1 Ft. Pierce FL
(under contract to be sold in approx.
70 days)
Closed restaurant 2005 US-1 S St. Augustine FL
(leased to another party)
Unimproved Property (1.5 acres) Pensacola FL
62
Leased Properties:
Property Address City State Zip
- -------- ------- ---- ----- ---
Fresh Foods Sales, LLC
Prime Sirloin #377 19601 Statesville Road Cornelius NC 28031
Prime Sirloin #379 3103 Taylorsville Road Statesville NC 28677
Western Steer #52 334 SW Blvd. Newton NC 28658
Western Steer #420 26 Radio Road Lexington NC 27292
Western Steer #425 1018 Rockford Street Mt. Airy NC 27030
Western Steer #426 1580 Yadkinville Road Mocksville NC 27028
Western Steer #427 825 E. Main Street Jefferson NC 28640
Western Steer #428 Corner 601 & 421 Yadkinville NC 27055
Western Steer #434 1675 Blowing Rock Road Boone NC 28607
Closed restaurant 504 Leming Drive Morganton NC
(subleased to another party)
Closed restaurant 536 Highway 64-70 Hickory NC
Closed restaurant 1600 N. Queen St. Kinston NC
(subleased to another party)
Closed restaurant 835 S. Main St. Kernersville NC
Closed restaurant Route 3 Tobbaccoville NC
Claremont Restaurant Group, LLC
Sagebrush #530 7815 Timberlake Road Lynchburg VA 24502
Sagebrush #533 204 Southgate Square Colonial Heights VA 23834
Shopping Center
Sagebrush #548 190 Nye Road Wytheville VA 24382
Sagebrush #____ (new) Bristol VA
Western Steer #431 955 Stuart Drive Galax VA 24333
63
Sagebrush of North Carolina, LLC
Sagebrush #507 1520 Highway 70, SE Hickory NC 28601
Sagebrush #509 117 Turnersberg Road Statesville NC 28677
Sagebrush #513 1420 Second Street, NE Hickory NC 28601
Sagebrush #514 1111 Highway 105 Boone NC 28607
Sagebrush #517 101 Steakhouse Road Morganton NC 28655
Sagebrush #518 2905 Reynolda Road Winston-Salem NC 27106
Sagebrush #519 2560 Lewisville-Clemmons Road Clemmons NC 27012
Sagebrush #520 895 Russ Avenue Waynesville NC 28786
Sagebrush #521 985 West Asheville Highway Brevard NC 28712
Sagebrush #523 2250 Hendersonville Road Arden NC 28704
Sagebrush #524 1302 Collegiate Drive Wilkesboro NC 28697
Sagebrush #525 608 C West Roosevelt Blvd. Monroe NC 28110
Sagebrush #544 800 South Main Street Graham NC 27253
Sagebrush #545 5920 University Parkway Stanleyville NC 27105
Sagebrush #549 630 Randolph Mall Asheboro NC 27203
Sagebrush #550 1432 N. Bridge Street Elkin NC 28621
(leased by Fresh Foods, Inc. and
assigned to Sagebrush of NC, LLC)
Sagebrush #551 1006 East Cumberland Street Dunn NC 28335
Sagebrush #553 1750 S. Stratford Road Winston-Salem NC 27103
(Western Steer #435 under conversion;
leased by Fresh Foods, Inc. and
assigned to Sagebrush of NC, LLC)
Sagebrush #554 112 N. Generals Blvd. Lincolnton NC 28093
(Western Steer #433 under conversion;
leased by Fresh Foods, Inc. and
assigned to Sagebrush of NC, LLC)
64
Sagebrush of South
Carolina, LLC
Sagebrush #515 2445 Cherry Road Rock Hill SC 29730
Sagebrush #528 1541 West Floyd Baker Blvd. Gaffney SC 29341
Sagebrush #542 801 N. Lake Drive Lexington SC 29072
Sagebrush of
Tennessee, LP
Sagebrush #508 3909 Parkway Pigeon Forge TN 37863
Sagebrush #510 390 South Illinois Avenue Oak Ridge TN 37830
Sagebrush #516 1600 East Stone Drive Kingsport TN 37660
Sagebrush #522 815 Parkway Sevierville TN 37862
Sagebrush #526 217 Airport Road Gatlinburg TN 37738
Sagebrush #529 2614 North Roan Johnson City TN 37601
Sagebrush #534 2323 East Morris Blvd. Morristown TN 37814
Sagebrush #543 201 Heritage Blvd. Newport TN 37821
Fresh Foods, Inc.
Corporate Office 361 Second Street, N.W. Hickory NC
65
SCHEDULE 6.24
TAXES
(a) The Borrowers and Subsidiaries routinely file permitted requests for
extensions for their federal and state tax returns.
(b) The state of North Carolina is currently auditing Fresh Foods, Inc. in
connection with its state income tax returns for the 1992, 1993, 1994
and 1995 tax years. No material liability is expected to result from
such audits.
(c) In August, 1998, the Internal Revenue Service notified Fresh Foods,
Inc. that it will be conducting an audit of its federal income tax
returns for the 1996 fiscal year. No material liability is expected to
result from such audit.
(d) Pierre Foods, LLC has not yet filed its Indiana state withholding tax
return because it has not received the necessary information from its
payroll service. The return was due on July 31, 1998. No material
liability is expected to result from the late filing of this return.
66
SCHEDULE 6.28
MATERIAL CONTRACTS
1. License Agreement between WSMP, Inc. and Hardee's Food Systems, Inc.
dated January 30, 1998, to be assigned to Pierre Foods, LLC on
September 5, 1998.
2. License Agreement between WSMP, Inc. and Checkers Drive-In Restaurants,
Inc. dated January 30, 1998, to be assigned to Pierre Foods, LLC on
September 5, 1998.
3. License Agreement between WSMP, Inc. and Rally' Hamburgers, Inc. dated
January 30, 1998, to be assigned to Pierre Foods, LLC on September 5,
1998.
4. License Agreement between WSMP, Inc. and GB Foods Corp. dated January
30, 1998, to be assigned to Pierre Foods, LLC on September 5, 1998.
5. Biscuit License Agreement between WSMP, Inc. and Hardee's Food Systems,
Inc. dated September 25, 1997, to be assigned to Pierre Foods, LLC on
September 5, 1998.
6. Custom Manufacturing Agreement between WSMP, Inc. and Geo. A. Hormel &
Company dated August 8, 1991, to be assigned to Pierre Foods, LLC on
September 5, 1998.
7. Product Purchase Agreement between Fresh Foods, Inc. and Institution
Food House, Inc. dated May 25, 1998, to be assigned to Claremont
Restaurant Group, LLC and Fresh Foods Sales, LLC on September 5, 1998.
8. Management Contract between WSMP, Inc. and HERTH Management, Inc. dated
June 23, 1995, extended by an Extension Agreement dated August 29,
1997.
9. Employment Agreement between WSMP, Inc. and David R. Clark dated June
30, 1996 and subsequently amended on February 23, 1998.
10. Employment Agreement between WSMP, Inc. and L. Dent Miller dated
January 29, 1998.
11. Consulting and Noncompetition Agreement between WSMP, Inc. and Charles
F. Connor, Jr. dated January 29, 1998.
12. Employment Agreement between WSMP, Inc. and Norbert E. Woodhams dated
February 1998.
13. Trademark License Agreement between Hudson Foods, Inc. and Nathan's
Famous dated October 14, 1997 and assigned to Pierre Foods, LLC by
Hudson Foods, Inc. on June 9, 1998.
14. Trademark Agreement between Hudson Foods, Inc. and Sysco Corporation
and assigned to Pierre Foods, LLC by Hudson Foods, Inc. on June 9,
1998.
15. Custom Manufacturing Agreement between Hudson Foods, Inc. and E.A.
Sween Company dated July 7, 1997 and assigned to Pierre Foods, LLC by
Hudson Foods, Inc. on June 9, 1998.
16. Custom Manufacturing Agreement between Hudson Foods, Inc. and Fairmont
Foods of Minnesota dated March 25, 1997 and assigned to Pierre Foods,
LLC by Hudson Foods, Inc. on June 9, 1998.
17. Custom Manufacturing Agreement between Hudson Foods, Inc. and Suzanna's
Kitchen, Inc. dated August 6, 1997 and assigned to Pierre Foods, LLC by
Hudson Foods, Inc. on June 9, 1998.
18. Master Processing Agreements for the period from July 1, 1998 through
June 30, 1999 with the following state agencies:
Arkansas Department of Human Services
Arizona Department of Education
California Department of Education
Colorado State Department of Human Services
Connecticut DAS Food Distribution Program
Florida Department of Agriculture
Georgia State Board of Education
Idaho Department of Education
Illinois State Board of Education
Iowa Department of Education
Indiana Department of Education
Kentucky Division of Food Distribution
Louisiana Department of Agriculture and Forestry
Maryland Department of Education
67
Massachusetts Department of Education
Michigan Department of Education
Minnesota Department of Children, Families and Learning
Mississippi Department of Education
Missouri Department of Education
Nebraska Health and Human Services
New Hampshire Surplus Distribution Section
New Jersey Department of Agriculture
New Mexico Human Services Department
New York Office of General Services
Ohio Department of Education
North Carolina Department of Agriculture
Oklahoma Department of Human Services
Oregon Department of Education
Pennsylvania Department of Agriculture
Rhode Island Food Distribution Program
South Carolina Department of Agriculture
Tennessee Department of Agriculture
Texas Department of Human Services
Washington Superintendent of Public Instruction
West Virginia Department of Health and Human Services
Wyoming Department of Education
Wisconsin Department of Public Information
Virginia Department of Agriculture
Utah State Office of Education
68
SCHEDULE 6.30
AFFILIATE TRANSACTIONS
None.
69
SCHEDULE 6.31
KEY MEMBERS OF MANAGEMENT
The key members of management of the Borrowers and Subsidiaries are as follows:
Name Position(s) with the Company
- ---- ----------------------------
Richard F. Howard Chairman of the Board, Fresh Foods, Inc.
James C. Richardson, Jr. Vice Chairman of the Board and Chief
Executive Officer, Fresh Foods, Inc.
David R. Clark President and Chief Operating Officer, Fresh
Foods, Inc.
James E. Harris Executive Vice President, Chief Financial
Officer, Treasurer and Secretary, Fresh
Foods, Inc.
Norbert E. Woodhams President, Pierre Foods, LLC
L. Dent Miller President, Claremont Restaurant Group, LLC
Larry D. Hefner President, Mom `n' Pop's Country Ham, LLC
Noland M. Mewborn Vice President, Finance
Matthew V. Hollifield Vice President of Strategic Planning
70
SCHEDULE 6.34
RESTAURANT BUSINESS
The Company's restaurant operations are located primarily in smaller
cities and suburban areas in the southeastern United States, a market niche
where the primary competitors are economy steakhouses. At May 1, 1998, the
Company owned and operated 38 Sagebrush steakhouse restaurants, which provide
family-oriented, full-service, casual dining in an atmosphere suggestive of a
Texas roadhouse. The Company also owned and operated 17 Western Steer and five
Prime Sirloin restaurants, which are more mature family steakhouses using the
"buffet and bakery" format, and one Bennett's barbecue-style restaurant.
Sagebrush restaurants are the only causal dining steakhouses in a majority of
the local markets in which they operate. The Company intends to convert all but
seven of its family steakhouse restaurants to the Sagebrush concept within two
years based on the historically attractive unit economics of the Sagebrush
format. A typical Sagebrush restaurant generates 44% more revenue and 99% more
EBITDA than a typical Western Steer restaurant. The Company has extensive
experience in converting restaurants to the Sagebrush format as 27 of the
Company's 38 Sagebrush restaurants were originally converted from other
restaurant concepts. Since Fresh Foods acquired Sagebrush, Inc. in January 1998,
the Company has converted three Western Steer restaurants to the Sagebrush
concept and has realized a significant increase in weekly sales volume at these
locations. Other than the restaurants currently being converted and three new
Sagebrush restaurants in development, the company has no plans to build other
Sagebrush restaurants.
71
SCHEDULE 9.3
SALES OF ASSETS
None.
72
SCHEDULE 9.10
BANK ACCOUNTS
Bank Accounts: Pierre Foods, LLC
Type of Account Bank Name Account Number
--------------- --------- --------------
Pierre Foods Depository Account Star Bank 48079-7117
Checking Business
Pierre Foods Payroll Account Star Bank 48079-7125
Checking Business
73
SAGEBRUSH BANK ACCOUNTS
Account Number
--------------
Fresh Foods Inc First Union 2000001385887
Fresh Foods of NC LLC First Union 20000007554231
Claremont Restaurant Group First Union 2000000754228
Fresh Foods Inc First Union 2079920018729 A/P Clearing
Fresh Foods Inc First Union 2079920018716 Payroll Clearing
Home Office Peoples 53 4826889 Checking
Home Office Peoples 53 4819710 A/P Clearing
Home Office Peoples 53 4819066 Payroll Clearing
507 Hickory NC First Union 2076018577285
508 Pigeon Forge TN Bank First 04657330
509 Statesville NC B B & T 5119019860
510 Oak Ridge TN NationsBank 3000034509
511 Knoxville TN First Tennessee 0993662
513 Hickory(Viewmont) NC Bank of Granite 080 306 5
514 Boone NC Centura 665503112
515 Rock Hill SC Wachovia 3700 41659
516 Kingsport TN Citizens 200 1110 2
517 Morganton NC Bank of Granite 030 365 8
518 Winston-Salem (Reynolda) NC Wachovia 3965 001375
519 Clemmons NC First Citizens 8211005030
520 Waynesville NC First Union 2000000241443
521 Brevard NC First Union 2000000241511
522 Sevierville TN Bank First 04668103
523 Arden NC First Union 2000000241566
524 Wilkesboro NC First Union 2000000241579
525 Monroe NC B B & T 1161001182
526 Gatlinburg TN Bank First 4666585
527 Kernersville NC Centura 0402041227
528 Gaffney SC Wachovia 510000433
529 Johnson City TN First Tennessee 8850720
530 Lynchburg VA Central Fidelity 7911867553
531 Alcoa TN Bank First 10017655
532 Greenwood SC The County Bank 050 112 7985 01
533 Colonial Heights VA First Virginia Bank 3473 1717
534 Morristown TN First Tennessee 689289
535 Mt.Airy NC The Community Bank 200 768 0
536 Salisbury NC Wachovia 6896 003086
537 Roanoke VA First Virginia Bank 0357 0088
538 Lenoir NC Bank of Granite 065 169 9
539 Denver NC Peoples Bank 53 4836565
540 Aiken SC Carolina First 1040094698
541 Sanford NC Centura 5002514788
542 Lexington SC B B & T 5121808252
543 Newport TN First Union 2020000134404
544 Graham NC Wachovia 3967 001831
545 Stanleyville NC First Citizens 004851443671
548 Wytheville VA First Union
549 Asheboro NC Wachovia 0393 002615
74
WSMP, Inc.
Bank Confirmation Control
For the Year Ended Feb. 27, 1998
===================================================================================================================================
Bank
Corporation Store Name Account
Name # & Address #
- -----------------------------------------------------------------------------------------------------------------------------------
WSMP, Inc. 1 HOME OFFICE NationsBank 511242489
P.O. Box 30120
104-11
Charlotte, NC 28255
WSMP, Inc. Sinking Fund 1 HOME OFFICE NationsBank 510086325
P.O. Box 30120
104-11
Charlotte, NC 28255
WSMP, Inc. 1 HOME OFFICE Rosie Erb 5800003289
NationsBank
ARP Dept C015-2
P O Box 31590
Tampa,FL 33631
WSMP, Inc. 1 HOME OFFICE Rosie Erb 5800003297
NationsBank
ARP Dept C015-2
P O Box 31590
Tampa,FL 33631
WSMP, Inc. Certificate Deposit 1 HOME OFFICE Bank of Granite 142580
Jo Wagoner
P.O. Box 189
Newton, NC 28658
WSMP, Inc. Payroll Acct. 1 HOME OFFICE Peoples Bank 534828745
P O Box 467
Newon, NC 28658
75
WSMP, INC. 1 HOME OFFICE Rosie Erb 5800003262
NationsBank
ARP Dept C015-2
P O Box 31590
Tampa,FL 33631
WSMP, INC. 1 HOME OFFICE Rosie Erb 5800003270
NationsBank
ARP Dept C015-2
P O Box 31590
Tampa,FL 33631
WSMP, Inc. 1 HOME OFFICE Peoples Bank 558053356
P O Box 467
Newon, NC 28658
WSMP, Inc. 1 HOME OFFICE Peoples Bank 350180751
P O Box 467
Newon, NC 28658
WSMP, Inc. 1 HOME OFFICE Peoples Bank 534822052
P O Box 467
Newon, NC 28658
WSMP, Inc. Deposit Acct. 1 HOME OFFICE South Trust 60929918
P O Box 563975
Charlotte, NC 28256
WSMP, Inc. Investment Acct. 1 HOME OFFICE South Trust 60929929
P O Box 563975
Charlotte, NC 28256
WSMP, Inc. Disbursement Acct 1 HOME OFFICE South Trust 64007168
P O Box 2425
Ft. Myers, FL 33902
76
WSMP, Inc. CD 1 HOME OFFICE Lincoln Bank 8957
P O Box 657
Lincolnton, NC 28093
WSMP, Inc. CD 1 HOME OFFICE First Century 6001520
P O Box 879
Wytheville, VA 23482
WSMP, Inc. 1 HOME OFFICE J.C. Bradford & Co. 139-84421-1-9-792
(Western Steer Gift Cert. Acct.) P.O. Box 3857
Hickory, NC 28603
WSMP,Inc. Money Market 1 HOME OFFICE Peoples Bank 534800645
P O Box 467
Newon, NC 28658
WSMP, Inc. 1 FRANCHISE PAYROLL Carolina First 1010058546
P O Box 1029
Greenville, SC 29602
WSMP, Inc. 6 ACCOUNTING SERVICE Carolina First 1010055740
P O Box 1029
Greenville, SC 29602
WSMP, Inc. 6 ACCOUNTING SERVICE Carolina First 1010058554
P O Box 1029
Greenville, SC 29602
WSMP, Inc. 17-292- MOM'S KITCH-MORG First Union National Bank 2000000437079
329 W/S MORGANTON P.O. Box 279
W/S LENOIR Hickory, NC 28603
22 L R BLVD- HICKORY Peoples Bank 53-480076-9
P.O. Box 467
Newton, NC 28658
WSMP, Inc. 51 W/S HUDSON Bank of Granite 1606549
Jo Wagoner
P O Box 189
Newton, NC 28658
77
WSMP, Inc. 51 W/S HUDSON Centura Bank 0430006525
P O Box 1220
Rocky Mount, NC 27802
WSMP, Inc. 52 W/S NEWTON Peoples Bank 53-480089-2
P.O. Box 467
Newton, NC 28658
WSMP, Inc. 111 W/S ELIZABETH CITY First Citizens Bank 595-18-02-953
P.O. Box 1588
Elizabeth City, NC 27906
WSMP, Inc. 111 W/S ELIZABETH CITY B B & T 5115548893
P O Box 819
Wilson, NC 27894-0819
WSMP, Inc. 291 W/S SPRINGS ROAD Peoples Bank 534800777
P.O. Box 467
Newton, NC 28658
WSMP, Inc. 329 W/S LENOIR Bank of Granite 160-653-0
Jo Wagoner
P.O. Box 189
Newton, NC 28658
WSMP, Inc. 331 WSMP SPORTS Peoples Bank 53-482159-1
AFFILIATION P.O. Box 467
Newton, NC 28658
WSMP, Inc. 345 BENNETT'S CONOVER Peoples Bank 53-481939-7
P.O. Box 467
Newton, NC 28658
78
WSMP, Inc. 345 BENNETT'S CONOVER Peoples Bank 534826699
BEVERAGE ACCT. P.O. Box 467
Newton, NC 28658
WSMP, Inc. 376 PRIME- BILLY GRAHAM Lincoln Bank 0034185
P O Box 657
Lincolnton, NC 28093
WSMP, Inc. 377 PRIME-CORNELIUS Lincoln Bank 0034193
P O Box 657
Lincolnton, NC 28093
WSMP, Inc. 378 PRIME-ASHEBORO First National Bank & Trust 0180998
P O Box 1328
Asheboro , NC 27204
WSMP, Inc. 379 PRIME - STATESVILLE Peoples Bank 534822094
P.O. Box 467
Newton, NC 28658
WSMP, Inc 379 PRIME - STATESVLLE Centura Bank 097000-317-3
P O Box 6057
Rocky Mount, NC 27802-6057
WSMP, Inc. 420 W/S-LEXINGTON First Union National Bank 2000000581624
P.O. Box 279
Hickory, NC 28603
WSMP, Inc. 421 W/S-STANLEYVILLE First Citizen's Bank 4851435102
P O Box 27131
Raleigh, NC 27611-7131
WSMP, Inc. 422 W/S-KERNERSVILLE Centura Bank 0402064250
P O Box 1220
Rocky Mount, NC 27802
79
WSMP, Inc. 423 W/S-GRAHAM Wachovia 1447035020
212 S. Main St.
Graham. NC 27253
WSMP, Inc. 424 W/S-ELKIN First Union National Bank 2000000261436
P.O. Box 279
Hickory, NC 28603
WSMP, Inc. 425 W/S-MT. AIRY First Union National Bank 2000000824763
P.O. Box 279
Hickory, NC 28603
WSMP, Inc. 426 W/S-MOCKSVILLE B B & T 5113863406
P O Box 1626
Wilson, NC 27893
WSMP, Inc. 427 W/S-JEFFERSON First Union National Bank 2000000796325
P.O. Box 279
Hickory, NC 28603
WSMP, Inc. 428 W/S-YADKINVILLE Central Carolina Bank 58-1038715
P O Box 427
Yadkinville, NC 27055
WSMP, Inc. 429 W/S-TOBACCOVILLE First Union National Bank 2000000382085
P.O. Box 279
Hickory, NC 28603
WSMP, Inc. 430 W/S-ELIZABETHTON Carter County Bank 62278
P O Box 1990
Elizabethton, TN 37644-1990
WSMP, Inc. 431 W/S-GALAX Mountain National Bank 090221130000
P O Box 165
Galax, VA 24333
80
WSMP, Inc. 431 W/S-GALAX Bank of Carroll 160154701
P O Box 407
Galax, VA 24333
WSMP, Inc. 432 W/S-WYTHEVILLE First Century Bank 83000283
P O Box 879
Wytheville, VA 24382
WSMP, Inc. 433 W/S-LINCOLNTON Lincoln Bank 34363
P O Box 657
Lincolnton, NC 28093
WSMP, Inc. 434 W/S-BOONE First Union National Bank 2000000988159
P.O. Box 279
Hickory, NC 28603
WSMP, Inc. 435 W/S-WINSTON SALEM First Citizen's Bank 4851435209
P O Box 27131
Raleigh, NC 27611-7131
OPERATING ACCOUNTS - CONSOLIDATED SUBS.
South Carolina WSMP, Inc. 58 S. C. WSMP, INC.-HO Peoples Bank 534830444
P.O. Box 467
Newton, NC 28658
Sunshine WSMP, Inc. 95 SUNSHINE WSMP-H.O. Peoples Bank 534827085
P.O. Box 467
Newton, NC 28658
Georgia WSMP, Inc. 141 GEORGIA WSMP, INC Peoples Bank 534827028
HOME OFFICE P.O. Box 467
Newton, NC 28658
Elloree Foods, Inc. 208 LEXINGTON, SC Carolina First Bank 1040057770
P.O. Box 1029
Greenville, SC 29602
81
Tennessee WSMP, Inc. 233 TENN. WSMP - H. O. Peoples Bank 534828869
P.O. Box 467
Newton, NC 28658
Tennessee WSMP, Inc. 244 NEWPORT, TN Union Planters Bank 0590001173
P O Box 1217
Morristown, TN 37816-1217
Naples Food, Inc. 267 NAPLES FOODS, INC. Peoples Bank 534826954
HOME OFFICE P.O. Box 467
Newton, NC 28658
Seven Stars, Inc. 272 WALDORF, MD NationsBank 2593006042
P O Box 27025
Richmond, VA 23261-7025
Prime Sirloin, Inc. 360 PRIME SIRLOIN, INC. Peoples Bank 558537908
P.O. Box 467
Newton, NC 28658
Matthews Prime Sirloin, Inc. 382 PRIME-MATTHEWS BB & T 5110423901
P.O. Box 1626
Wilson, NC 27893
St. Augustine Foods, Inc. 416 ST. AUGUSTINE, FL First Union National Bank 2090000394135
P O Box 279
Hickory, NC 28603
D & S Food Systems, L L C 417 JESUP, GA SunTrust Bank 9800273360
P O Box 129
Jesup, GA 31545-3509
Brunswick Associates, Inc. 465 BRUNSWICK ASSOC. First Union National Bank 2074380537421
P O Box 279
Hickory, NC 28603
82
OPERATING ACCOUNTS - UNCONSOLIDATED SUBS.
Georgia Buffet Restaurants, Inc. 412 BUFORD, GA SouthTrust Bank 68-960-083
4325 Hwy 20
Buford, Ga. 30518
Georgia Buffet Restaurants, Inc. 413 CANTON, GA Security State Bank 105502
P.O. Box 351
Canton, GA 30114
83
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
1
84
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 Restaurant
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 05/14/85
Mom `n' Pop's federal 1,341,236 06/11/85
`Fluffy' and Design federal 1,272,996 04/03/84
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 04/12/98
Rib-B-Q and Design federal 2,132,710 01/27/98
Sagebrush Steakhouse & Saloon federal 1,743,755 12/29/92
Golddigger Beef Nugget federal 1,521,147 01/17/89
2
85
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)
Quick Classics federal 02/26/90 74-032,512
Savory Selections and Design federal 07/08/98
Fastbites federal 07/06/98
Patents:
Exclusive, royalty-free, worldwide and perpetual patent license 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
3
86
Cafeteria Adventures Radical
Promotion Program federal TX3421698 10/08/92
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
4
87
SCHEDULE 3(a)
CHIEF EXECUTIVE OFFICES
The chief executive office and chief place of business of all Obligors is
located 3437 East Main Street, Claremont, North Carolina 28610. Pierre Foods,
LLC also maintains books and records at 9990 Princeton Road, Cincinnati, OH
45246.
5
88
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
6
89
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
7
90
PFS West Sacramento P.O. Box 1325
West Sacramento, CA 95691
Security Capital Industrial Trust 4770 Interstate Drive
Cincinnati, OH 45246
Catherine's Distribution Inc. 4825 Hovis Road
Charlotte, NC 28205
8
91
Owned Properties:
Property Address City State Zip
- -------- ------- ---- ----- ---
Claremont Restaurant Group, LLC
Sagebrush #537 5030 Valley View Blvd., NW Roanoke VA 24012
Closed restaurant 2911 Cypress Mill Road Brunswick GA
(leased to another party)
Closed restaurant 997 Sunset Blvd. Jessup GA
(leased to another party)
Closed restaurant 1336 Andrew Johnson Highway Morristown TN
(leased to another party)
Fresh Foods Sales, LLC
Bennett's #345 1819 Fairgrove Church Road Conover NC 28613
Prime Sirloin #376 3302 S. I-85 Service Road Charlotte NC 28208
Prime Sirloin #382 10450 E. Independence Blvd. Matthews NC 28105
Western Steer #22 1190 Lenoir Rhyne Blvd., SE Hickory NC 28602
Western Steer #51 3062 Hickory Blvd. Hudson NC 28638
Western Steer #111 316 Ehring House St. Elizabeth City NC 27909
Western Steer #292 101 Bost Road Morganton NC 28655
Western Steer #329 314 Blowing Rock Blvd. Lenoir NC 28645
Closed restaurant 2225 12th Avenue NE Hickory NC
(leased to another party)
Unimproved property (1.6 acres) Statesville NC
Unimproved property (2.4 acres) Highway 127 South Hickory NC
9
92
Pierre Foods, LLC
Claremont manufacturing facility 3437 E. Main Street Claremont NC 28610
Cincinnati manufacturing facility 9990 Princeton Road Cincinnati OH 45246
(Note: Pierre Leasing, LLC has a 2 1/2%
undivided interest in this property)
Sagebrush of North
Carolina, LLC
Sagebrush #527 566 Arbor Hill Road Kernersville NC 27284
Sagebrush #535 2000 Woodland Drive Mt. Airy NC 27030
Sagebrush #536 428 Jake Alexander Blvd. S. Salisbury NC 28144
Sagebrush #538 954 Blowing Rock Blvd., NE Lenoir NC 28645
Sagebrush #539 6170 South NC 16 Highway Denver NC 28037
Sagebrush #541 2100 Dalrymple Street Sanford NC 27330
Sagebrush #546 623 NC 24-27 By-Pass East Albemarle NC 28001
Sagebrush #547 1529 Freeway Drive Reidsville NC 27320
Sagebrush of South
Carolina, LLC
Sagebrush #532 482 By-Pass 72 NW Greenwood SC 29649
Sagebrush #540 190 Aiken Mall Drive Aiken SC 29803
Sagebrush of Tennessee, LP
Sagebrush #511 110 Cedar Lane Knoxville TN 37912
Sagebrush #531 2468 Alcoa Highway Alcoa TN 37701
10
93
Sunshine WSMP, Inc.
Closed restaurant 1603 US-1 Ft. Pierce FL
(under contract to be sold in approx.
70 days)
Closed restaurant 2005 US-1 S St. Augustine FL
(leased to another party)
Unimproved Property (1.5 acres) Pensacola FL
11
94
Leased Properties:
Property Address City State Zip
- -------- ------- ---- ----- ---
Fresh Foods Sales, LLC
Prime Sirloin #377 19601 Statesville Road Cornelius NC 28031
Prime Sirloin #379 3103 Taylorsville Road Statesville NC 28677
Western Steer #52 334 SW Blvd. Newton NC 28658
Western Steer #420 26 Radio Road Lexington NC 27292
Western Steer #425 1018 Rockford Street Mt. Airy NC 27030
Western Steer #426 1580 Yadkinville Road Mocksville NC 27028
Western Steer #427 825 E. Main Street Jefferson NC 28640
Western Steer #428 Corner 601 & 421 Yadkinville NC 27055
Western Steer #434 1675 Blowing Rock Road Boone NC 28607
Closed restaurant 504 Leming Drive Morganton NC
(subleased to another party)
Closed restaurant 536 Highway 64-70 Hickory NC
Closed restaurant 1600 N. Queen St. Kinston NC
(subleased to another party)
Closed restaurant 835 S. Main St. Kernersville NC
Closed restaurant Route 3 Tobbaccoville NC
Claremont Restaurant
Group, LLC
Sagebrush #530 7815 Timberlake Road Lynchburg VA 24502
Sagebrush #533 204 Southgate Square Colonial Heights VA 23834
Shopping Center
Sagebrush #548 190 Nye Road Wytheville VA 24382
Sagebrush #____ (new) Bristol VA
Western Steer #431 955 Stuart Drive Galax VA 24333
12
95
Sagebrush of North
Carolina, LLC
Sagebrush #507 1520 Highway 70, SE Hickory NC 28601
Sagebrush #509 117 Turnersberg Road Statesville NC 28677
Sagebrush #513 1420 Second Street, NE Hickory NC 28601
Sagebrush #514 1111 Highway 105 Boone NC 28607
Sagebrush #517 101 Steakhouse Road Morganton NC 28655
Sagebrush #518 2905 Reynolda Road Winston-Salem NC 27106
Sagebrush #519 2560 Lewisville-Clemmons Road Clemmons NC 27012
Sagebrush #520 895 Russ Avenue Waynesville NC 28786
Sagebrush #521 985 West Asheville Highway Brevard NC 28712
Sagebrush #523 2250 Hendersonville Road Arden NC 28704
Sagebrush #524 1302 Collegiate Drive Wilkesboro NC 28697
Sagebrush #525 608 C West Roosevelt Blvd. Monroe NC 28110
Sagebrush #544 800 South Main Street Graham NC 27253
Sagebrush #545 5920 University Parkway Stanleyville NC 27105
Sagebrush #549 630 Randolph Mall Asheboro NC 27203
Sagebrush #550 1432 N. Bridge Street Elkin NC 28621
(leased by Fresh Foods, Inc. and
assigned to Sagebrush of NC, LLC)
Sagebrush #551 1006 East Cumberland Street Dunn NC 28335
Sagebrush #553 1750 S. Stratford Road Winston-Salem NC 27103
(Western Steer #435 under conversion;
leased by Fresh Foods, Inc. and
assigned to Sagebrush of NC, LLC)
Sagebrush #554 112 N. Generals Blvd. Lincolnton NC 28093
(Western Steer #433 under conversion;
leased by Fresh Foods, Inc. and
assigned to Sagebrush of NC, LLC)
13
96
Sagebrush of South
Carolina, LLC
Sagebrush #515 2445 Cherry Road Rock Hill SC 29730
Sagebrush #528 1541 West Floyd Baker Blvd. Gaffney SC 29341
Sagebrush #542 801 N. Lake Drive Lexington SC 29072
Sagebrush of
Tennessee, LP
Sagebrush #508 3909 Parkway Pigeon Forge TN 37863
Sagebrush #510 390 South Illinois Avenue Oak Ridge TN 37830
Sagebrush #516 1600 East Stone Drive Kingsport TN 37660
Sagebrush #522 815 Parkway Sevierville TN 37862
Sagebrush #526 217 Airport Road Gatlinburg TN 37738
Sagebrush #529 2614 North Roan Johnson City TN 37601
Sagebrush #534 2323 East Morris Blvd. Morristown TN 37814
Sagebrush #543 201 Heritage Blvd. Newport TN 37821
Fresh Foods, Inc.
Corporate Office 361 Second Street, N.W. Hickory NC
14
97
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
On September 5, 1998, Fresh Foods, Inc. and its subsidiaries consummated a
corporate reorganization. In connection with the reorganization, the Obligors
undertook the following mergers:
Knoxville Foods, Inc., Oak Ridge Foods, Inc., Sagebrush DTN, Inc.,
Sagebrush of Sevierville, Inc., and Tumbleweed of Pigeon Forge, Inc.
merged into Kingsport Foods, Inc.;
Sagebrush, Inc. merged into Kingsport Foods, Inc.;
Elloree Foods, Inc. merged into South Carolina WSMP, Inc.;
Naples Foods, Inc. and St. Augustine Foods, Inc. merged into Sunshine
WSMP, Inc.;
Greenville Food Systems, Incorporated, Matthews Prime Sirloin, Inc. and
South Carolina WSMP, Inc. merged into Georgia WSMP, Inc.;
D&S Food Systems, LLC merged into Georgia WSMP, Inc.;
Georgia Buffet Restaurants, Inc. merged into Georgia WSMP, Inc.;
Prime Sirloin, Inc., Kingsport Foods, Inc. and Tennessee WSMP, Inc.
merged into Fresh Foods Acquisition, LLC;
Seven Stars, Inc. merged into Fresh Foods Acquisition, LLC;
Virginia WSMP, Inc. merged into Fresh Foods Acquisition, LLC;
Georgia WSMP, Inc. and Brunswick Associates, Inc. merged into Fresh
Foods Acquisition, LLC; and
Fresh Foods Acquisition, LLC merged into Claremont Restaurant Group,
LLC.
15
98
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
16
99
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
100
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
101
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
- ---------------- ----------- ------------
102
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
103
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
104
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
105
SCHEDULE 1
To Pledge Agreement
Dated as of June 9, 1998
in favor of First Union Commercial Corporation
as Agent
PLEDGED STOCK
Pledgor: FRESH FOODS, INC.
Number of Certificate Percentage
Name of Subsidiary Shares Number Ownership
- ------------------ ------ ------ ---------
Sunshine WSMP, Inc. 1,000 2 100%
Pledgor: CLAREMONT RESTAURANT GROUP, LLC
Number of Certificate Percentage
Name of Subsidiary Shares Number Ownership
- ------------------ ------ ------ ---------
Chardent, Inc. 100 5 100%
Spicewood, Inc. 198.99 11 100%
106
EXHIBIT D-1
MERGED PROPERTIES
5030 Valley View Blvd., NW Roanoke, VA 24012
954 Blowing Rock Blvd., NE Lenoir, NC 28645
10450 E. Independence Blvd. Matthews, NC 28105
2911 Cypress Mill Road Brunswick, GA
1336 Andrew Johnson Highway Morristown, TN
5
107
EXHIBIT D-2
TRANSFERRED PROPERTIES
1819 Fairgrove Church Road Conover NC 28613
3302 S. I-85 Service Road Charlotte NC 28208
1190 Lenoir Rhyne Blvd., SE Hickory NC 28602
3062 Hickory Blvd. Hudson NC 28638
316 Ehring House St. Elizabeth City NC 27909
101 Bost Road Morganton NC 28655
314 Blowing Rock Blvd. Lenoir NC 28645
3437 E. Main Street Claremont NC 28610
9990 Princeton Road Cincinnati OH 45246
6