EXHIBIT 10 (ac)
AGREEMENT dated as of December 31, 1997 among SARATOGA BRANDS INC. ("SBI")
and CUCINA CLASSICA ITALIANA, INC. ("CCI") (SBI and CCI being referred to herein
together and, as the context requires, singly, as "Debtors") and BANCO DI
SICILIA - NEW YORK BRANCH ("Bank").
Preliminary Statement
E. Under arrangements heretofore contracted the Bank is owed the principal
amount of $622,776 ("Debt") plus interest and charges.
B. Debtors and the Bank desire to provide for the repayment of the Debt at
a discounted rate as provided for herein.
NOW, THERFORE, for valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the Bank and Debtors hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. As used herein, unless the context
shall otherwise require, the following terms shall have the following meaning
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Affiliate" means any person directly or indirectly owning or controlling
more than 5% of the voting stock of either of the Debtors or any of its
Subsidiaries and any Person who is an officer, director or employee of either
of the Debtors or any of its Subsidiaries and any spouse, child or trust
created by or for the benefit of any such Person.
"Agreement" means this agreement, as the same may hereafter be amended or
restated from time to time.
"CCI" is defined in paragraph A of this Agreement.
"GailCo" means GailCo, Inc., a New Jersey corporation.
"Xxxxxxxx" means Xxxxxxxx Cheese Factory Inc., a Wisconsin corporation.
"Nostrano" means Nostrano, Inc., a New York corporation.
"Person" means an individual, corporation, partnership, limited
partnership, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"SBI" is defined in paragraph A of this Agreement.
"Subsidiary" means a corporate or other entity the management of which is
controlled, directly or indirectly or both, by Debtors, or either of them.
ARTICLE II
PAYMENT OF DEBT
2.01. Permanent Reduction. The principal amount of the Debt is reduced to
$111,500 and all the Bank's claims for principal in excess of such amount or for
interest or charges accrued to the date hereof are extinguished. It is expressly
understood that full payment shall be made by Debtors to the Bank (by bank or
certified check or wire transfer of cleared funds, as directed by the Bank)
simultaneously with the execution of this Agreement.
2.02. Additional Payments. Anything in this Agreement to the contrary
notwithstanding, Debtors shall not commit to pay or pay or allow any of their
subsidiaries or Affiliates to commit to pay or pay, after the date hereof, to
any of the other banks listed below ("Other Banks") or their respective
successors or assigns, a sum or sums in excess of any of the following amounts
(the "Excess Payment") without simultaneously paying in like terms or like
medium, as the case may be, 22.3% of each such Excess Payment to the Bank.
$69,250 to Banca Commerciale Italiana
$39,250 to Istituto Bancario San Paolo di Torino
$213,000 to Banca Nazionale del Lavoro S.p.A.
$67,000 to Banca Popolare di Milano
The amounts set forth above are maxima which may be paid to the respective Other
Banks on any account and for any reason including future loans, except that
those maxima may accrue interest after the date hereof at the respective Other
Bank's prime rate. Debtors may not pay principal to any of the Other Banks
disproportionately to the payments they make to the Bank, all to the end that no
Other Bank is paid more rapidly than the payments the Debtors make to the Bank
hereunder. Without limiting this provision, the Other Banks can not be paid
advisory fees, legal fees or any other consideration for any reason which fees
or consideration in the aggregate exceed in value or amount the sums set forth
beside their respective names. The words "pay" and "paid" include any medium or
consideration whatsoever except it does not include Debtors' common stock,
preferred stock or warrants or other options to purchase Debtors' common stock
or preferred stock.
ARTICLE III
DELIVERY OF SBI SHARES
Section 3.01. Shares. As an additional incentive to induce the Bank to
accept $111.500 in full payment of the Debt, SBI, in addition to, and not in
lieu of such payment, will, simultaneously with the execution of this Agreement,
deliver to the Bank, restricted certificates, as per copies attached to this
Agreement as Exhibit A, evidencing the ownership by the Bank of 300,000
pre-reverse split (effective November 24, 1997) shares of the Common Stock of
SBI issued by SBI to the Bank (the "Shares"). The Bank recognizes and realizes
that 200,000 of such shares shall be restricted from sale, transfer, pledge or
alienation until November 12, 1998, and that 100,000 of such shares shall be
restricted from sale, transfer, pledge or alienation until May 12, 1999.
Section 3.02. Restrictions. SBI agrees and covenants that the restriction
period on the first 200,000 Shares shall not be more than one year from December
31, 1997, unless such restriction period is increased by the Securities and
Exchange Commission by amendment to or repeal of Rule 144 of the Securities Act
of 1933. The Bank agrees to give SBI the opportunity to arrange for the sale of
the Shares for the Bank prior to the Bank offering the Shares for sale on the
open market. Simultaneously herewith Debtors have delivered to the Bank a copy
of SBI's present by-laws and a list of SBI's ten (10) largest shareholders as of
the date hereof. For as long as the Bank owns any of the Shares, SBI will
promptly advise the Bank in writing of all changes in such by-laws and or list.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Releases. Simultaneously herewith: (a) the Bank has
delivered to Debtors the General Releases by the Bank, Xxxxxxxxx Xxxxxxxxxx and
Xxxxxxxxx Xxxxxxxx, respecting CCI, Nostrano, Xxxxxxxx, GailCo and Xxxxxx X.
Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx and each of their past and present officers,
shareholders, directors, agents, attorneys, employees, investors, lenders,
predecessors, successors, assigns, parent corporations, subsidiary corporations,
affiliates, representatives, devisees, legatees, trustees, and their heirs and
personal representatives of their estates; (b) the Debtors have delivered to the
Bank the General Releases by CCI, Nostrano Xxxxxxxx, GailCo, Xxxxxx X. Xxxxxxxxx
and Xxxxxxx X. Xxxxxxxxx of the Bank, Xxxxxxxxx Xxxxxxxxxx, Pierpaolo Carrubba,
Gilmartin, Poster and Xxxxxx, Xxxxxxx X. Berttocci Esq. and each of their past
and present officers, shareholders, directors, agents, attorneys, employees,
investors, lenders, predecessors, successors, assigns, parent corporations,
subsidiary corporations, affiliates, representatives, devisees legatees,
trustees, and their heirs and personal representatives of their estates (the
releases of Xxxxxxxxx, Poster and Xxxxxx and Xxxxxxx X. Xxxxxxxx, Esq. being
only with respect to matters and activities on behalf of the Bank and / or the
other parties released); and (c) the Bank has delivered to Debtors the UCC - 3
forms relating to the debt
Section 4.02. Addresses for Notices, Etc. All notices, requests, demands,
directions and other communications provided for hereunder shall be sufficient
if delivered personally (including by Federal express or other recognized
courier for which receipt is given) or if mailed by certified mail, return
receipt requested, to the applicable party at its address indicated below:
If to Debtors:
Saratoga Brands Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Chairman and Chief Executive Officer
If to Bank:
Banco di Sicilia
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Senior Vice President and General Manager
or, as to either party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery with the
terms of this Section. All notices, requests, demands directions and other
communications shall (if delivered personally) be effective when delivered or
(if mailed) two days after having been deposited in the United States mail,
addressed as aforesaid.
Section 4.03. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
(without giving effect to principles if conflicts law).
Section 4.04. Entire Agreement. This Agreement sets forth the entire
agreement between Debtors and the Bank and supersedes all prior agreements,
written or oral with respect to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CUCINA CLASSICA ITALIANA, INC. SARATOGA BRANDS INC.
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BANCO DI SICILIA - NEW YORK BRANCH
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