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EXHIBIT 4.10
THIRD SUPPLEMENTAL INDENTURE dated as of October 8, 1999 among FRESH
FOODS, INC., a North Carolina corporation (the "Company"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company (the "Trustee"), as Trustee
under the Indenture dated as of June 9, 1998 among the Company, each of several
subsidiaries of the Company and the Trustee, as supplemented by the First
Supplemental Indenture dated as of September 5, 1998 among the Company, the
Trustee and Pierre Leasing, LLC, a North Carolina limited liability company, and
further supplemented by the Second Supplemental Indenture dated as of February
26, 1999 among the Company, the Trustee and Fresh Foods Restaurant Group, LLC, a
Delaware limited liability company (the "Indenture," capitalized terms defined
therein and not otherwise defined herein being used herein as defined therein).
WHEREAS, Section 10.06 of the Indenture provides that in the event of a
sale or other disposition of all of the Capital Stock of any Guarantor by way of
merger, consolidation or otherwise, such Guarantor will be released and relieved
of any obligations under its Guarantee, provided that such transaction is
carried out pursuant to and in accordance with Section 4.11 of the Indenture;
and
WHEREAS, the Company has entered into a Purchase Agreement dated as of
September 10, 1999 among Claremont Restaurant Group, LLC ("Claremont"), Fresh
Foods Sales, LLC ("Sales"), the Company and CRG Holdings Corp. ("CRG"), pursuant
to which CRG is purchasing the Company's membership interests in each of
Claremont and Sales (the "Proposed Transaction"); and
WHEREAS, the parties to this Third Supplemental Indenture desire to
implement Section 10.06 of the Indenture as it relates to Claremont, Sales and
the subsidiaries of Claremont;
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which is hereby acknowledged, the parties to this Third
Supplemental Indenture covenant and agree among themselves as follows for the
equal and proportionate benefit of the Noteholders:
ARTICLE 1
RELEASE OF GUARANTEES
Each of Claremont Restaurant Group, LLC, Fresh Foods Sales, LLC,
Sagebrush of North Carolina, LLC, Sagebrush of South Carolina, LLC, Sagebrush of
Tennessee, L.P., Spicewood, Inc. and Fresh Foods Restaurant Group, LLC
(collectively, the "Released Guarantors") is hereby released from its
obligations under its Guarantee. The Released Guarantors shall have no further
liability or obligation with respect the Indenture, including, without
limitation, with respect to (a) the full and punctual payment of principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Notes when
due, whether at maturity, by acceleration, by redemption or otherwise, and
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all other monetary obligations of the Company under the Indenture and the Notes
or (b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under the Indenture and the Notes.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. AUTHORIZATION AND EFFECT OF SUPPLEMENTAL INDENTURE. This
Third Supplemental Indenture is executed by the Company and the Trustee pursuant
to Section 9.01(g) of the Indenture. The terms and conditions of this Third
Supplemental Indenture shall be deemed to be part of the Indenture for all
purposes. The Indenture, as supplemented by this Third Supplemental Indenture,
is in all respects hereby adopted, ratified and confirmed.
SECTION 2.02. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Third Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy
is enough to prove this Third Supplemental Indenture.
SECTION 2.03. DISCLAIMER BY TRUSTEE. The Trustee assumes no
responsibility for the correctness of the recitals herein contained, which shall
be taken as the statements of the Company. The Trustee makes no representations
and shall have no responsibility as to the validity or sufficiency of this Third
Supplemental Indenture or the due authorization and execution hereof by the
Company.
SECTION 2.04. GOVERNING LAW. This Third Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New York
applicable to agreements made and to be performed in the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Third Supplemental
Indenture to be duly executed as of the date first written above.
FRESH FOODS, INC.
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
STATE STREET BANK AND TRUST COMPANY, as Trustee
By: /s/ CHI C. MA
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Name: Chi C. Ma
Title: Vice President
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