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EXHIBIT 10.33
BORROWER JOINDER AGREEMENT
THIS BORROWER JOINDER AGREEMENT (the "AGREEMENT"), dated as of February
26, 1999, is by and between FRESH FOODS RESTAURANT GROUP, LLC, a Delaware
limited liability company, (the "APPLICANT BORROWER"), and FIRST UNION
COMMERCIAL CORPORATION, in its capacity as Agent (the "AGENT") under that
certain Credit Agreement (as amended and modified, the "CREDIT AGREEMENT") dated
as of June 9, 1998 by and among Fresh Foods, Inc., a North Carolina corporation
and certain related borrowing entities (the "BORROWERS"), the Lenders party
thereto and the Agent. All of the defined terms in the Credit Agreement are
incorporated herein by reference.
Chardent, Inc. (the "Former Borrower") has reorganized its corporate
structure by merging into the Applicant Borrower, a newly formed indirect
subsidiary of Fresh Foods, Inc., with the Applicant Borrower as the surviving
limited liability company to assume all of the obligations of the Former
Borrower under the Credit Agreement. The Applicant Borrower has indicated its
desire to become a Borrower pursuant to the terms of the Credit Agreement.
Accordingly the Applicant Borrower hereby agrees as follows with the
Agent, for the benefit of the Lenders:
1. The Applicant Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Applicant 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 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 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 Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Applicant 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 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
generality of the foregoing terms of this paragraph 2, the Applicant 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 Borrower in and to the Collateral (as such term is
defined in Section 2 of the Security Agreement) of the Applicant Borrower.
3. The Applicant Borrower hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, the Applicant 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
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 3, the
Applicant 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 Borrower in and to Pledged Shares (as such
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term is defined in Section 2 of the Pledge Agreement) and the other Pledged
Collateral (as such term is defined in Section 2 of the Pledge Agreement).
4. The Applicant 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 information on
the Schedules to the Credit Agreement, the Pledge Agreement and the Security
Agreement are amended to provide the information shown on the attached SCHEDULE
A.
5. Fresh Foods, Inc. confirms that all of its and its Subsidiaries'
obligations under the Credit Agreement are, and upon the Applicant Borrower
becoming a Borrower shall continue to be, in full force and effect. Fresh Foods,
Inc. further confirms that immediately upon the Applicant Borrower becoming a
Borrower the term "Obligations", as used in the Credit Agreement, shall include
all Obligations of such Applicant Borrower under the Credit Agreement and under
each other Credit Document.
6. The Applicant 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 Agreement, the Applicant Borrower appoints
each of Xxxxx X. Xxxxx, President and Xxxxx X. Xxxxxx, Executive Vice President,
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 thereto.
This Power of Attorney shall be valid for the duration of the term of the Credit
Agreement. The Applicant Borrower hereby undertakes to ratify everything which
either of its Attorneys shall do in order to execute the Documents mentioned
herein.
7. Each of Fresh Foods, Inc. and the Applicant Borrower agrees that at
any time and from time to time, upon the written request of the Agent, it will
execute and deliver such further documents and do such further acts and things
as the Agent may reasonably request in order to effect the purposes of this
Agreement.
8. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
9. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of North Carolina.
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IN WITNESS WHEREOF, the Applicant Borrower has caused this Borrower Joinder
Agreement to be duly executed by its authorized officers, and the Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
FRESH FOODS RESTAURANT GROUP, LLC
By: CLAREMONT RESTAURANT GROUP,
LLC, its Sole Member
By: FRESH FOODS, INC.,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Executive Vice President
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FRESH FOODS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Executive Vice President
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FIRST UNION COMMERCIAL CORPORATION
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: Senior Vice President
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(Schedules Omitted)
