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EXHIBIT 9.1
PF MANAGEMENT, INC. CAROLINA FIRST BANK
P.O. BOX 3967 000 XXXXX XXXX XXXXXX Xxxx Xxxxxx
XXXXXXX, XX 00000 XXXXXXXXXX, XX 00000 ---------------
Date APRIL 17, 2001
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Maturity Date APRIL 16, 2006
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Loan Amount $1,900,000.00
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Renewal Of
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BORROWER'S NAME AND ADDRESS XXXXXX'S NAME AND ADDRESS
"I" includes each borrower above, "You" means the lender, its
joint and severally. successors and assigns.
For value received, I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of ONE MILLION NINE HUNDRED THOUSAND AND N0/100
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Dollars 1,900,000.00
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[X] SINGLE ADVANCE: I will receive all of this principal sum on APRIL 17, 2001.
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No additional advances are contemplated under this note.
[ ] MULTIPLE ADVANCE: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On _________________________ I will
receive the amount of $__________________ and future principal advances are
contemplated.
CONDITIONS: The conditions for future advances are _____________________________
________________________________________________________________________________
________________________________________________________________________________
[ ] OPEN END CREDIT: You and I agree that I may borrow up to the maximum amount
of principal more than one time. This feature is subject to all other
conditions and expires on ____________________________________.
[ ] CLOSED END CREDIT: You and I agree that I may borrow up to the maximum only
one time (and subject to all other conditions).
INTEREST: I agree to pay interest on the outstanding principal balance from
APRIL 17, 2001 at the rate of 8.500% per year until FIRST CHANGE DATE.
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[X] VARIABLE RATE: This rate may then change as stated below.
[X] INDEX RATE: The future rate will be 0.500% OVER the following
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index rate: CAROLINA FIRST BANK PRIME RATE
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[ ] NO INDEX: The future rate will not be subject to any internal or
external index. It will be entirely in your control.
[X] FREQUENCY AND TIMING: The rate on this note may change as often as
DAILY.
A change in the interest rate will take effect ON THE SAME DAY.
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[ ] LIMITATIONS: During the term of this loan, the applicable annual
interest rate will not be more than ________% or less than __________%.
The rate may not change more than ______% each _______________________.
EFFECT OF VARIABLE RATE: A change in the interest rate will have the
following effect on the payments:
[X] The amount of each scheduled payment will change.
[X] The amount of the final payment will change.
[ ] _____________________________________________________________________.
ACCRUAL METHOD: Interest will be calculated on a ACTUAL/360 basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note
owing after maturity, and until paid in full, as stated below:
[ ] on the same fixed or variable rate basis in effect before maturity
(as indicated above).
[X] at a rate equal to CAROLINA FIRST BANK PRIME PLUS 4%.
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[X] LATE CHARGE: If a payment is not made within 20 days after it is due, I
agree to pay a late charge of 5.000% OF THE LATE PAYMENT WITH A MINIMUM OF
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$25.00.
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[ ] ADDITIONAL CHARGES: In addition to interest, I agree to pay the following
charges which [ ] are [ ] are not included in the principal amount
above:_____________________________________________________________________.
PAYMENTS: I agree to pay this note as follows:
[X] INTEREST: I agree to pay accrued interest BEGINNING JULY 17, 2001 AND
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QUARTERLY THEREAFTER
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[X] PRINCIPAL: I agree to pay the principal ANNUALLY IN THE AMOUNT OF
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$380,000.00; THE FIRST ANNUAL PAYMENT WILL BE DUE 7/17/02.
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[ ] INSTALLMENTS: I agree to pay this note in ______ payments. The first payment
will be in the amount of $__________ and will be due _______________________
____________________________________________. A payment of $ _____ will be
due _____________________________________________ thereafter. The final
payment of the entire unpaid balance of principal and interest will be due
_________________________________________________________.
ADDITIONAL TERMS:
THIS NOTE IS SECURED BY 478,454 SHARES OF PIERRE FOODS, INC. STOCK REPRESENTED
BY STOCK CERTIFICATE NO.
ADDITIONAL SECURITY SHALL BE AN ASSIGNMENT OF LIFE INSURANCE POLICY NO.
VICR012746, IN THE NAME OF XXXXX X. XXXXXXXXXX, XX.
SEE SECURITY AGREEMENT OF EVEN DATE.
SEE ADDENDUM A ATTACHED HERETO.
[ ] Security: This note is separately secured by PURPOSE: The purpose of this loan is BUSINESS: REFINANCE
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(describe separate document by type and date): CLA #5043988301.
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(This section is for internal use. Failure to list SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE INCLUDING
a separate security document does not mean the THOSE ON PAGE 2). I have received a copy on today's date.
agreement will not secure this note.)
Signature for Lender PF MANAGEMENT, INC.
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BY: /s/ Xxxxx X. Xxxxx
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XXXXXXX X. XXXXXXXXXX, SENIOR VICE PRESIDENT XXXXX X. XXXXX, PRESIDENT
X
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(PAGE 1 OF 2)
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DEFINITIONS: As used on page 1, "[X]" means the terms that apply to this loan.
"I," "me" or "my" means each Borrower who signs this note and each other person
or legal entity (including guarantors, endorsers, and sureties) who agrees to
pay this note (together referred to as "us"). "You" or "your" means the Lender
and its successors and assigns.
APPLICABLE LAW: The law of the state of South Carolina will govern this note.
Any term of this note which is contrary to applicable law will not be effective,
unless the law permits you and me to agree to such a variation. If any provision
of this agreement cannot be enforced according to its terms, this fact will not
affect the enforceability of the remainder of this agreement. No modification of
this agreement may be made without your express written consent. Time is of the
essence in this agreement.
PAYMENTS: Each payment I make on this note will first reduce the amount I owe
you for charges which are neither interest nor principal. The remainder of each
payment will then reduce accrued unpaid interest, and then unpaid principal. If
you and I agree to a different application of payments, we will describe our
agreement on this note. I may prepay a part of, or the entire balance of this
loan without penalty, unless we specify to the contrary on this note. Any
partial prepayment will not excuse or reduce any later scheduled payment until
this note is paid in full (unless, when I make the prepayment, you and I agree
in writing to the contrary).
INTEREST: Interest accrues on the principal remaining unpaid from time to time,
until paid in full. If I receive the principal in more than one advance, each
advance will start to earn interest only when I receive the advance. The
interest rate in effect on this note at any given time will apply to the entire
principal advanced at that time. Notwithstanding anything to the contrary, I do
not agree to pay and you do not intend to charge any rate of interest that is
higher than the maximum rate of interest you could charge under applicable law
for the extension of credit that is agreed to here (either before or after
maturity). If any notice of Interest accrual is sent and is in error, we
mutually agree to correct it, and if you actually collect more interest than
allowed by law and this agreement, you agree to refund it to me.
INDEX RATE: The index will serve only as a device for setting the rate on this
note. You do not guarantee by selecting this index, or the margin, that the rate
on this note will be the same rate you charge on any other loans or class of
loans to me or other borrowers.
ACCRUAL METHOD: The amount of interest that I will pay on this loan will be
calculated using the interest rate and accrual method stated on page 1 of this
note. For the purpose of interest calculation, the accrual method will determine
the number of days in a "year." If no accrual method is stated, then you may use
any reasonable accrual method for calculating interest.
POST MATURITY RATE: For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOANS. If this is a single advance loan, you and I expect that
you will make only one advance of principal. However, you may add other amounts
to the principal if you make any payments described in the "PAYMENTS BY LENDER"
paragraph below.
MULTIPLE ADVANCE LOANS: If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If this is closed end
credit, repaying a part of the principal will not entitle me to additional
credit.
PAYMENTS BY LENDER: If you are authorized to pay, on my behalf, charges I am
obligated to pay (such as property insurance premiums), then you may treat those
payments made by you as advances and add them to the unpaid principal under this
note, or you may demand immediate payment of the charges.
SET-OFF: I agree that you may set off any amount due and payable under this note
against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your
possession for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of
which you are entitled to demand payment under the terms of this note at the
time you set off. This total includes any balance the due date for which you
properly accelerate under this note.
If my right to receive money from you is also owned by someone who has
not agreed to pay this note, your right of set-off will apply to my interest in
the obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not apply
to any Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. I agree to hold
you harmless from any such claims arising as a result of your exercise of your
right of set-off.
REAL ESTATE OR RESIDENCE SECURITY: If this note is secured by real estate or a
residence that is personal property, the existence of a default and your
remedies for such a default will be determined by applicable law, by the terms
of any separate instrument creating the security interest and, to the extent not
prohibited by law and not contrary to the terms of the separate security
instrument, by the "Default" and "Remedies" paragraphs herein.
DEFAULT: I will be in default if any one or more of the following occur: (1) I
fail to make a payment on time or in the amount due; (2) I fail to keep the
property insured, if required; (3) I fail to pay, or keep any promise, on any
debt or agreement I have with you; (4) any other creditor of mine attempts to
collect any debt I owe him through court proceedings; (5) I die, am declared
incompetent, make an assignment for the benefit of creditors, or become
insolvent (either because my liabilities exceed my assets or I am unable to pay
my debts as they become due); (6) I make any written statement or provide any
financial information that is untrue or inaccurate at the time it was provided;
(7) I do or fail to do something which causes you to believe that you will have
difficulty collecting the amount I owe you; (8) any collateral securing this
note is used in a manner or for a purpose which threatens confiscation by a
legal authority; (9) I change my name or assume an additional name without first
notifying you before making such a change; (10) I fail to plant, cultivate and
harvest crops in due season it I am a producer of crops; (11) any loan proceeds
are used for a purpose that will contribute to excessive erosion of highly
erodible land or to the conversion of wetlands to produce an agricultural
commodity, as further explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M.
REMEDIES: If I am in default on this note you have, but are not limited to, the
following remedies:
(1) You may demand immediate payment of all I owe you under this
note (principal, accrued unpaid interest and other accrued
charges).
(2) You may set off this debt against any right I have to the
payment of money from you, subject to the terms of the
"SET-OFF" paragraph herein.
(3) You may demand security, additional security, or additional
parties to be obligated to pay this note as a condition for
not using any other remedy.
(4) You may refuse to make advances to me or allow purchases on
credit by me.
(5) You may use any remedy you have under state or federal law.
By selecting any one or more of these remedies you do not give up your right to
later use any other remedy. By waiving your right to declare an event to be a
default, you do not waive your right to later consider the event as a default if
it continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES: I agree to pay all costs of collection,
replevin or any other or similar type of cost if I am in default. In addition,
if you hire an attorney to collect this note, I also agree to pay any fee you
incur with such attorney plus court costs (except where prohibited by law), to
the extent permitted by the United States Bankruptcy Code, I also agree to pay
the reasonable attorney's fees and costs you incur to collect this debt as
awarded by any court exercising jurisdiction under the Bankruptcy Code.
WAIVER: I give up my rights to require you to do certain things. I will not
require you to:
(1) demand payment of amounts due (presentment);
(2) obtain official clarification of nonpayment (protest); or
(3) give notice that amounts due have not been paid (notice of
dishonor).
I waive any defenses I have based on suretyship or impairment of
collateral.
OBLIGATIONS INDEPENDENT: I understand that I must pay this note even if someone
also has also agreed to pay it (by, for example, signing this form or a separate
guarantee or endorsement). You may sue me alone; or anyone else who is obligated
on this note, or any number of us together, to collect this note. You may
without notice release any party to this agreement without releasing any other
party. If you give up any of your rights, with or without notice, it will not
affect my duty to pay this note. Any extension of new credit to any of us, or
renewal of this note by all or less than all of us will not release me from my
duty to pay it. (Of course, you are entitled to only one payment in full.) I
agree that you may at your option extend this note or the debt represented by
this note, or any portion of the note or debt, from time to time without limit
or notice and for any term without affecting my liability for payment of the
note. I will not assign my obligation under this agreement without your prior
written approval. You may, without notice, fail to perfect your security
interest in, impair, or release any security and I will still be obligated to
pay this loan.
CREDIT INFORMATION: I agree and authorize you to obtain credit information about
me from time to time (for example, by requesting a credit report) and to report
to others your credit experience with me (such as a credit reporting agency). I
agree to provide you, upon request, any financial statement or information you
may deem necessary. I warrant that the financial statements and information I
provide to you are or will be accurate, correct and complete.
NOTICE: Unless otherwise required by law, any notice to me shall be given by
delivering it or by mailing it by first class mail addressed to me at my last
known address. My current address is on page 1. I agree to inform you in writing
of any change in my address. I will give any notice to you by mailing it first
class to your address stated on page 1 of this agreement, or to any other
address that you have designated.
WAIVER OF HEARING PRIOR TO IMMEDIATE POSSESSION: If this loan is for a business
purpose I agree to waive the right to five days' notice and a preseizure
hearing prior to seizure of any personal property which may secure this loan.
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DATE OF PRINCIPAL BORROWER'S PRINCIPAL PRINCIPAL INTEREST INTEREST INTEREST
TRANSACTION ADVANCE INITIAL'S PAYMENTS BALANCE RATE PAYMENTS PAID
(NOT REQUIRED) THROUGH
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(PAGE 2 OF 2)
/s/ DC
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Addendum A to Promissory Note
Dated April 17, 2001
From PF Management, Inc.
In Favor of
Carolina First Bank
Notwithstanding anything contained therein to the contrary, the Promissory Note
("Note") is hereby amended as follows:
1. Unless terminated earlier pursuant to the Note or any of the other loan
documents relating thereto (collectively, the "Loan Documents"), the
maturity date of the Note is July 17, 2006, at which time all outstanding
principal and all accrued but unpaid interest, late fees, along with any
expenses incurred by the Bank relating to the Note, shall be due and
payable.
2. The Bank may, at its option, demand payment in full within 30 days of the
occurrence of any of the following: i) upon the merger of Pierre Foods, Inc.
and the Borrower; ii) Xxxxx X. Xxxxx and Xxxxx X. Xxxxxxxxxx, Xx. no longer
owning and controlling the majority of the outstanding stock of the Borrower
and Pierre Foods, Inc.; or iii) if the management contract between the
Borrower and Pierre Foods, Inc. is terminated or otherwise expires for any
reason. Notwithstanding anything contained in any Loan Document to the
contrary, the Bank shall not accelerate the payments due under the Note
and/or any other Loan Document until 30 days following the occurrence of
such event so long as no other event of default has also occurred.
3. The Borrower hereby agrees to give the Bank immediate notice of the
occurrence of any such event noted in paragraph 2 above, or any default
under any other Loan Document.
4.
Executed and agreed as of this 17th day of April, 2001.
PF Management, Inc. (SEAL)
By: /s/ Xxxxx X. Xxxxx
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Its: President
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