EXHIBIT 10.23
TERMINATION AGREEMENT
This Termination Agreement (the "TERMINATION AGREEMENT") is made as of
March 8, 2004 by and between PF Distribution, LLC, a North Carolina limited
liability company (the "AFFILIATE") and Pierre Foods, Inc., a North Carolina
corporation (the "COMPANY").
WHEREAS, Affiliate is an affiliate of the Company, as such term is
defined in that certain Indenture, dated as of June 9, 1998, among the Company,
each of several subsidiaries of Pierre as Guarantors and State Street Bank and
Trust Company ("SSBT"), as supplemented by a First Supplemental Indenture, dated
as of September 5, 1998, among the Company, Pierre Leasing, LLC, a North
Carolina limited liability company, as Additional Guarantor, and SSBT as
trustee, a Second Supplemental Indenture, dated as of February 26, 1999, among
the Company, Fresh Foods Restaurant Group, LLC, a Delaware limited liability
company as Additional Guarantor, and SSBT as trustee, a Third Supplemental
Indenture, dated as of October 8, 1999, among the Company and SSBT as trustee,
and as supplemented and amended by a Fourth Supplemental Indenture, dated as of
March 8, 2004, among the Company, Fresh Foods Properties, LLC, and U.S. Bank,
N.A., as successor trustee to SSBT (the "INDENTURE TRUSTEE", and such Indenture
as so supplemented and amended, being collectively referred to as the
"INDENTURE") providing for the issuance of certain 10--3/4% senior notes due
2006 issued by the Company (the "SENIOR NOTES").
WHEREAS, the Affiliate and the Company entered into that certain
Logistics Agreement, dated March 3, 2002, and amended as of March 2, 2003,
copies of which are attached hereto as Exhibit A, pursuant to which the
Affiliate agreed to provide certain warehousing and distribution services to the
Company (the "AFFILIATE AGREEMENT");
WHEREAS, in consideration of, inter alia, the waiver and release of
certain claims by the Indenture Trustee and the holders of the Senior Notes
("SENIOR NOTEHOLDERS") under the Indenture, the Affiliate and the Company have
agreed to terminate the Agreement effective as of the date hereof; and
WHEREAS, the Company, its parent company, and Fleet Capital
Corporation, a Rhode Island Corporation (together with its successors and
assigns, including any other lender or lenders refinancing or refunding all or
any portion of the indebtedness owing to Fleet, "FLEET") are parties to a
certain Loan and Security Agreement, dated as of August 13, 2003, pursuant to
which Fleet has agreed to make loans and extend credit to the Company;
NOW, THEREFORE, for good and valuable consideration the sufficiency and
receipt of which are hereby acknowledged, the Company and the Affiliate hereby
agree as follows:
1. Termination. The Affiliate Agreement is hereby terminated as
of the date hereof. Neither the Company nor the Affiliate shall have any further
rights, duties, obligations or liabilities under, in connection with, or arising
out of the Affiliate Agreement.
2. Representations. Affiliate represents and warrants that as of
the date hereof no amounts under the Affiliate Agreement are accrued, unpaid and
owing by the Company to Affiliate or by Affiliate to the Company.
3. Release. Affiliate hereby irrevocably and unconditionally
releases, waives and forever discharges each of the Company, its affiliates,
predecessors, successors and assigns (hereinafter collectively referred to as
"RELEASEES"), from any and all claims, demands, damages, remedies, contracts
(express or implied), obligations, liabilities, controversies and causes of
action of any kind or nature whatsoever whether known, or unknown, suspected or
unsuspected, for, upon or by reason of any matter, cause or thing whatsoever
(upon any legal or equitable theory, whether contractual, in tort, common law,
statutory, federal state, local or otherwise, and including but not limited to
any claims for equitable relief, compensatory, punitive or other damages or
expenses, or for attorneys' fees, or costs or disbursements of any kind), which
Affiliate had, now has or in the future may or could have, against the Company
or any of the Releasees arising out of or relating to the Affiliate Agreement.
4. Third Party Beneficiaries. Each of Affiliate and the Company
agrees that Fleet, the Indenture Trustee and the Senior Noteholders, shall be
deemed and recognized as intended third party beneficiaries under this
Termination Agreement, with rights to enforce the terms and provisions of this
Agreement against the Company and/or Affiliate.
5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina applicable
to contracts made and to be performed entirely within such State without regard
to the choice of law principles thereof. Any and all actions concerning any
dispute arising under or relating to this Termination Agreement shall be filed
and maintained only in a state or federal court sitting in the State of North
Carolina. THE PARTIES TO THIS TERMINATION AGREEMENT HEREBY SUBMIT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE OF NORTH
CAROLINA AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY
AND ANY OBJECTION TO VENUE BASED ON FORUM NON CONVENIENS.
6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMPANY:
PIERRE FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
AFFILIATE:
PF DISTRIBUTION, LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
3
EXHIBIT A
AFFILIATE AGREEMENT
[Intentionally Omitted; previously filed with the
Commission as Exhibit 10.44 to the Company's Annual Report
on Form 10-K for its fiscal year ended March 2, 2002]
4
