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EXHIBIT 7.1
ASSUMPTION AND ASSIGNMENT AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement") is made as of this 17th
day of April, 2001, by and among, Columbia Hill, LLC, a North Carolina limited
liability company (the "Debtor"), PF Management, Inc., a North Carolina
corporation with principal offices in Hickory, North Carolina (the
"Corporation"), and Xxxxx X. Xxxxxxxxxx, Xx., Xxxxx X. Xxxxx, and Xxxxx X.
Xxxxxxxxx (collectively, the "Guarantors").
Recital:
WHEREAS, the Debtor is obligated to Pierre Foods, Inc. (herein the
"Obligee") under the terms of a certain promissory note dated February 28, 1997,
as modified by that certain Note Modification Agreement dated January 7, 1999
(the "Modification"), in the original amount of $705,493.00 (as modified, the
"Note"), a copy of which Note and Modification is attached hereto as Exhibit A,
issued pursuant to that certain Agreement to Purchase and Sell Stock dated
February 28, 1997 by and between WSMP, Inc. and the Debtor (the "Contract"), and
WHEREAS, the Debtor is desirous of contributing and assigning its
rights in the Contract and its assets, subject to its liabilities, to the
Corporation as a contribution to its capital, and the Corporation is willing to
assume all indebtedness, liabilities, and obligations of the Debtor under the
Note and Contract.
NOW, THEREFORE, in consideration of the mutual premises herein and the
contribution by the Debtor of its assets to the Corporation, the parties hereto
agree as follows:
1. The Debtor hereby contributes all of its assets, subject to its
liabilities, to the Corporation and hereby assigns the Contract to the
Corporation.
2. The Corporation hereby assumes the Note and accepts assignment of
the Contract, and the Corporation hereby covenants, promises, and agrees (a) to
pay the principal and interest due on the Note, and all other sums payable
thereunder, at the times, in the manner, and in all respects as therein
provided; (b) to perform and comply with all of the terms, covenants,
agreements, and obligations to be performed by the Debtor under the Note or
Contract at the times, in the manner, and in all respects as therein provided;
and (c) to be bound by each and all of the terms, covenants, agreements, and
obligations of the Contract and the Note. All Guarantors shall comply with all
requirements of the Contract regarding execution and delivery of guarantys in
the appropriate form to the Obligee.
3. The Debtor shall remain fully liable under the terms, provisions,
covenants, and obligations of the Note. The liability of the Debtor, Guarantors
and the Corporation under the Note shall be joint and several. The assumption
by the Corporation of the Note, the execution and delivery of this Agreement
and the terms, provisions, covenants, agreements, or obligations contained in
this Agreement shall in no manner release or lessen the indebtedness,
liabilities, and obligations of the Debtor and Guarantors under the Note.
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4. This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina. This Agreement shall be binding upon
the parties, their heirs, successors and assigns.
5. This Agreement may be executed in counterparts, all of which when
taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Agreement has been executed under seal as of
the day and year first above written.
COLUMBIA HILL, LLC
/s/ Xxxxx X. Xxxxxxxxxx, Xx. (SEAL)
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Xxxxx X. Xxxxxxxxxx, Xx., Manager
/s/ Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx, Manager
/s/ Xxxxx X. Xxxxxx (SEAL)
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Xxxxx X. Xxxxxx, Manager
ATTEST: PF Management, Inc.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
----------------------- ---------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary President
(Corporate Seal)
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Guarantors:
/s/ Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxxxx, Xx. (SEAL)
------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
/s/ Xxxxx X. Xxxxxxxxx (SEAL)
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Xxxxx X. Xxxxxxxxx
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EXHIBIT A
PROMISSORY NOTE
$705,493.00 Claremont, North Carolina February 28, 1997
FOR VALUE RECEIVED the undersigned promises to pay to WSMP, INC. or
order, the principal sum of Seven Hundred Five Thousand Four Hundred Ninety
Three Dollars ($705,493.00), with interest from this date, at the rate of 8.25
percent (8-1/4%) per annum on the unpaid balance until paid or until default,
both principal and interest payable in lawful money of the United States of
America, at the office of WSMP, Inc., 0 XXXX Xxxxx (P. O. Xxx 000), Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, or at such place as the legal holder hereof may designate
in writing. The principal and interest shall be due and payable as follows:
ALL PRINCIPAL AND INTEREST payable in full on February 28, 1999.
If not sooner paid, the entire remaining indebtedness shall be due and
payable on February 28, 1999.
In the event of (a) default in payment of principal or interest hereof
as the same becomes due and such default is not cured within five (5) days from
the due date, or (b) default under the terms of any instrument securing this
Note, and such default is not cured within fifteen (15) days after written
notice to maker, then in either such event the holder may without further
notice, declare the remainder of the principal sum, together with all interest
accrued thereon, at once due and payable. Failure to exercise this option shall
not constitute waiver of the right to exercise the same at any other time. The
unpaid principal of this Note and any part thereof, accrued interest and all
other sums due under this Note, if any, shall bear interest at the rate of
twelve percent (12%) per annum after default until paid.
All parties to this note, including maker and any sureties, endorsers,
or guarantors hereby waive protest, presentment, notice of dishonor, and notice
of acceleration of maturity and agree to continue to remain bound for the
payment of principal, interest and all other sums due under this Note
notwithstanding any change or changes by way of release, surrender, exchange,
modification or substitution of any security for this Note or by way of any
extension or extensions of time for the payment of principal and interest; and
all parties waive all and every kind of notice of such change or changes and
agree that the same may be made without notice or consent of any of them.
Upon default the holder of this Note may employ an attorney to enforce
the holder's right and remedies and the maker, principal, surety, guarantor and
endorsers of this note hereby agree to pay to the holder reasonable attorney
fees not exceeding a sum equal to
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fifteen percent (15%) of the outstanding balance owing on said Note, plus all
other reasonable expenses incurred by the holder in exercising any of the
holder's rights and remedies upon default. The rights and remedies of the
holder as provided in this Note and any instrument securing this Note shall be
cumulative and may be pursued singly, successively, or together against funds,
property, or security held by the holder for payment or security, in the sole
discretion of the holder. The failure to exercise any such right or remedy
shall not be a waiver or release of such rights or remedies or the right to
exercise any of them at another time.
This Note is issued as part of a transaction set forth in an Agreement
to Purchase and Sell Stock of even date herewith, the terms of which are
incorporated herein by reference as if set forth herein in full.
This Note is to be governed and construed in accordance with the laws
of the State of North Carolina.
IN TESTIMONY WHEREOF, the undersigned limited liability company has
caused this instrument to be signed in its corporate name by its Managers and
Members the day and year first above written.
COLUMBIA HILL, LLC
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxxx, Xx.
Manager and Member
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Manager and Member
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EXHIBIT A
NOTE MODIFICATION AGREEMENT
THIS NOTE MODIFICATION AGREEMENT (this "Agreement") effective this 7th
day of January, 1999, by and between FRESH FOODS, INC. (formerly WSMP, Inc.), a
North Carolina corporation ("Foods"), and COLUMBIA HILL, LLC, a North Carolina
limited liability company with an address of Xxxx Xxxxxx Xxx 000, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 (herein the "Borrower") and Xxxxx X. Xxxxxx, Xxxxx X.
Xxxxx, and Xxxxx X. Xxxxxxxxxx, Xx. ("Guarantors").
RECITALS
WHEREAS, Borrower is indebted to Foods as evidenced by a certain
Promissory Note dated February 28, 1997 ("Note") in the original principal
amount of $705,493.00, guaranteed by the Guarantors under certain Guaranty
Agreements, said Note and Guaranty Agreements incorporated herein by reference,
and
WHEREAS, the Borrower, Guarantors, and Foods desire to amend certain
provisions of the Note.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, Guarantors and Foods hereby agree as follows:
1. The Note is hereby amended by deleting the existing language dealing
with the payment term and maturity following the first paragraph, which deleted
language reads as follows:
ALL PRINCIPAL AND INTEREST payable in full on February 28, 1999.
If not sooner paid, the entire remaining indebtedness shall be
due and payable on February 28, 1999.
2. The Note is hereby amended by substituting the following language
for the aforesaid deleted language:
PAYABLE ON DEMAND
3. The Borrower will execute such confirmatory instruments with respect
to the Note, as amended herein, as Foods may require.
4. Except as expressly modified by this Agreement, the Borrower and
Guarantors ratify and confirm all of its representations, warranties,
covenants, liabilities and obligations under the Principal Documents and agrees
that: (i) the Principal Documents continue in full force and effect as if set
forth specifically herein; (ii) the Borrower nor Guarantors have no right of
setoff, counterclaim or defense to payment of the liabilities and obligations
under the Principal Documents; (iii) nothing herein shall in any way impair the
security or collateral now held for the
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indebtedness evidenced by the Note, nor waive, annul, vary or affect any
provision, condition, covenant or agreement contained in the Principal
Documents, nor affect or impair any rights, or remedies Foods may have against
the Guarantors who are secondarily liable for the repayment of the indebtedness
evidenced by the Note, as amended herein; and (iv) the failure of Borrower to
fully perform its obligations under the Principal Documents shall entitle Foods
to exercise any and all rights set forth herein, in the Principal Documents or
otherwise available at law or in equity. The Borrower, Guarantors, and Foods
further agree that this Agreement shall not be construed as an agreement to
extinguish the original obligations under the Principal Documents and shall not
constitute a novation as to the obligations of the Borrower or Guarantors under
the Principal Documents.
5. As used herein, the term "Principal Documents" shall mean the Note,
the Guaranty Agreements of the Guarantors and each other document or instrument
delivered in connection therewith.
6. This Agreement may not be amended, changed, modified, altered, or
terminated without in each instance the prior written consent of Foods. This
Agreement shall be construed in accordance with and governed by the laws of the
State of North Carolina.
7. This Agreement may be executed in any number of counterparts, all of
which when taken together shall constitute one agreement.
IN WITNESS WHEREOF, the undersigned, if an individual, has executed
this Note Modification Agreement under seal by adopting the word "SEAL"
appearing beside his name as his personal seal and, if the Corporation, has
caused this Note Modification Agreement to be executed, sealed and delivered by
and through its duly authorized officers as of the day and year first above
written.
BORROWER:
COLUMBIA HILL, LLC
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Manager
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx, Manager
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
----------------------------
Xxxxx X. Xxxxxxxxxx, Xx.,
Manager
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FOODS:
FRESH FOODS, INC.
By: /s/ Xxxx Xxxxxxxxxx
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Vice President
ATTEST:
/s/ Xxxxx X. Xxxxxx
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Secretary
GUARANTORS:
/s/ Xxxxx X. Xxxxx (SEAL)
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Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx (SEAL)
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxxxxx, Xx. (SEAL)
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Xxxxx X. Xxxxxxxxxx, Xx.
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