EXHIBIT 10(a)
CONFORMED COPY
FIRST AMENDMENT
TO THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
X. X. XXXXX COMPANY, L.P.
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT (this "Amendment") of X. X. Xxxxx Company, L.P. (the "Partnership"),
is entered into to be effective as of December 31, 2002 (the "Effective Date"),
by Heinz Management L.L.C., a Delaware limited liability company ("HMC"), as the
General Partner, and the entities named on Schedule A, as the Limited Partners.
Capitalized terms used and defined in this Amendment shall have the meanings
assigned to them in this Amendment (including those in the recital paragraphs),
and capitalized terms used in this Amendment and not defined herein shall have
the meanings assigned to them in the Current LP Agreement (as defined below), in
each case, unless the context clearly requires otherwise.
R E C I T A L S:
WHEREAS, the Partnership is currently governed pursuant to that certain
Third Amended and Restated Limited Partnership Agreement made and entered into
as of December 13, 2002, as the same has been previously amended pursuant to the
documents listed on Addendum 1 attached hereto (the "Current LP Agreement"); and
WHEREAS, in exchange for its contribution of certain assets to (and
assumption of liabilities by) the Partnership, Royal American Foods, Inc., a
Minnesota corporation (the "New Limited Partner") desires to be admitted to the
Partnership as a Limited Partner and additional Class B Interest Holder; and
WHEREAS, the Partners desire to enter into this Amendment for the
purpose of amending the Current LP Agreement to reflect the admission of New
Limited Partner as a limited partner and Class B Interest Holder and
reallocating the relative interests of the Partners in the Partnership.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Partners, intending to be legally bound,
agree as follows:
1. ADMISSION OF NEW LIMITED PARTNER. From and after the Effective
Date of this Amendment, New Limited Partner is admitted to the Partnership as a
limited partner and as a Class B Interest Holder (the "Admission"). In
connection with such Admission, the Current LP Agreement is further amended as
set forth below:
(a) ADDITIONAL CAPITAL CONTRIBUTION. Simultaneously with
the full and complete execution of this Amendment, and in exchange for
its admission as a Class B Interest Holder, New Limited Partner has
made the Capital Contributions to the Partnership set forth on Schedule
C of this Amendment (the "Contribution"). The Partners agree that the
fair market value of such assets, net of any liabilities assumed or
taken subject to, is equal to the amount set forth on Schedule C (the
"Net Value"). The Partners agree that, as of the Effective Date, the
Unrecovered Capital of the New Limited Partner is equal to such Net
Value.
(b) APPROVALS. As required by and in accordance with
Section 3.01 of the Current LP Agreement, the General Partner
specifically approves the issuance of such additional Class B Interests
and the General Partner agrees to such Net Value. The terms and
conditions of the Admission have been approved by the Management Board
of the Partnership, as set forth on Addendum 2 attached.
(c) SCHEDULE A - LIMITED PARTNERS. From and after the
Effective Date, Schedule A of the Current LP Agreement is superseded
and in its place is substituted the Schedule A attached to this
Amendment.
(d) SCHEDULE B - NET EQUITY VALUE AND PERCENTAGE
INTERESTS. Subject to the provisions of Section 4.01 of the Current LP
Agreement, from and after the Effective Date, Schedule B of the Current
LP Agreement is superseded and in its place is substituted the Schedule
B attached to this Amendment. From and after the Effective Date, the
Partners shall be those persons set forth on Schedule B to this
Amendment and their relative Percentage Interests in the Partnership
shall be as set forth on Schedule B to this Amendment.
(e) ASSUMPTION OF LIABILITIES. New Limited Partner is
transferring certain of its business operations to the Partnership
including liabilities incurred in connection with the conduct of such
business (such as trade payables and various other liabilities in
connection with employment of personnel and product disposition). The
Partnership agrees to assume (within the meaning of Section 752 of the
Code) all of those liabilities of New Limited Partner set forth on
Schedule C attached hereto and listed in that certain Assignment,
Assumption and Xxxx of Sale Agreement attached hereto as Schedule D.
(f) AGREEMENT TO BE BOUND BY CURRENT LP AGREEMENT. New
Limited Partner agrees to be bound by all of the terms and provisions
of the Current LP Agreement. The New Limited Partner irrevocably makes,
constitutes and appoints the General Partner as its true and lawful
representative and attorney-in-fact, as provided in Section 10.05 of
the Current LP Agreement, and in connection therewith, the terms,
conditions and provisions of Section 10.05 of the Current LP Agreement
are incorporated in this Amendment by reference and the same shall be
effective as fully as if such terms, conditions and provisions had been
included in this Amendment verbatim.
2. REPRESENTATIONS AND WARRANTIES. Each of the Partners
represents and warrants to the other Partners the following:
(a) It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of formation with all
requisite power and authority to enter into this Amendment and to
conduct the business of the Partnership.
(b) The Current LP Agreement, as amended by this
Amendment, is a legal, valid and binding obligation of such Partner
enforceable in accordance with its terms.
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(c) No consents or approvals are required from any
governmental authority or other person or entity for such Partner to
enter into this Amendment. All limited liability company, corporate or
partnership action on the part of such Partner necessary for the
authorization, execution and delivery of this Amendment, and the
consummation of the transactions contemplated hereby, have been duly
taken.
(d) The execution and delivery of this Amendment by such
Partner, and the consummation of the transactions contemplated hereby,
does not conflict with or contravene the provisions of its
organizational documents or any agreement or instrument by which it or
its properties are bound or any law, rule, regulation, order or decree
to which it or its properties are subject.
(e) Each Partner agrees to indemnify and hold harmless
the Partnership and each other Partner and their officers, directors,
shareholders, partners, employees, successors and assigns from and
against any and all loss, damage, liability or expense (including
reasonable out of pocket costs and attorneys' fees) which they may
incur by reason, or in connection with, any breach of the foregoing
representations and warranties by such Partner and all such
representations and warranties shall survive the execution and delivery
of this Amendment and the termination and dissolution of any Partner
and/or the Partnership (nothing herein shall constitute a waiver or
extension of any applicable statute of limitations).
3. CONSENT. Notwithstanding any contrary right or privilege which
may be contained in the Current LP Agreement, all Partners consent to the
Admission and the Contribution and consent to and ratify this Amendment and the
Current LP Agreement (as amended by this Amendment) and each of the Partners
agrees to be bound by all the terms, conditions and provisions of the Current LP
Agreement as amended by this Amendment.
4. POWER OF ATTORNEY. Pursuant to Section 10.05 of the Current LP
Agreement, the General Partner is executing this Amendment as attorney-in-fact
for the Limited Partners.
5. NO DISSOLUTION/CONTINUATION OF THE PARTNERSHIP. The Partners
agree to continue to serve as the partners of the Partnership and each agrees to
continue the Partnership until the Partnership is terminated without
reconstitution. Further, each of the Partners agrees (a) the business of the
Partnership shall be deemed to have continued and (b) the Partnership has not
been dissolved, terminated and shall not be wound up, as a result of the
Admission and Contribution, notwithstanding any contrary rights and privileges
which may be contained in the Current LP Agreement.
6. EFFECTIVE DATE. This Amendment is effective as of the date
first above mentioned.
7. BINDING EFFECT. Except as herein otherwise provided to the
contrary, this Amendment shall be binding upon and inure to the benefit of the
parties hereto, their legal and personal representatives, successors and
assigns; provided, however, that neither party shall have any right, power and
authority to assign any rights, powers, duties or obligations hereunder.
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8. AMENDMENTS. No amendment, alteration, modification or waiver
of this Amendment, or any part hereof, shall be valid or effective unless in
writing and signed by all the parties hereto.
9. APPLICABLE LAWS. The substantive laws of the State of Delaware
and the applicable federal laws of the United States shall govern the validity,
construction, enforcement and interpretation of this Amendment, and this
Amendment shall be governed by and construed in accordance with the laws of the
State of Delaware and the applicable federal laws of the United States.
10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute but one and the same instrument which may be
sufficiently evidenced by one counterpart, and any of the parties hereto may
execute this Amendment by signing any such counterpart.
11. HEADINGS AND TITLES. The headings and titles of Articles,
Sections, Sub-sections and Paragraphs herein have been inserted as a matter of
convenience of reference only and shall not control or affect the meaning or
construction of any of the operative terms or provisions hereof or therein.
12. GENDER. Whenever the context shall so require, all words
herein in any gender shall be deemed to include the masculine, feminine, or
neuter gender, and all singular words shall include the plural, and all plural
words shall include the singular.
13. CONSTRUCTION. In case any one or more of the provisions
contained in this Amendment shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalid, illegal or unenforceable
provision or provisions shall be fully severable and shall not affect any other
provision hereof and this Amendment shall be construed and enforced as if such
invalid, illegal or unenforceable provision had never been contained herein.
Furthermore, in lieu of each such illegal, invalid or unenforceable provision
there shall be added automatically as part of this Amendment a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
14. THIS AMENDMENT. The words "herein," "hereof," "hereunder,"
"hereby," "this Amendment" and other similar reference shall be construed to
mean and include this Amendment and all amendments thereof and supplements
thereto unless the context should clearly indicate or require otherwise.
15. NO THIRD PARTY BENEFICIARY RIGHTS. This Amendment is made
solely and specifically between and for the benefit of the parties hereto, and
their respective successors and assigns, subject to the express provisions
hereof relating to successors and assigns, and no other person, individual,
corporation or entity, whatsoever, shall have any rights, interests, or claims
hereunder or be entitled to any benefits under or on account of this Amendment
as a third party beneficiary or otherwise.
16. WAIVER. No consent or waiver, either expressed or implied, by
any party to or of any breach or default by any other party, in the performance
by such other party of the
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obligations thereof under this Amendment shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other party of the same or any other obligations of such other party under
this Amendment. Failure on the part of any party to complain or to pursue
complaints with respect to any acts or failure to act of any other party, or
failure on the part of any party to declare any other party in default,
irrespective of how long such default continues, shall not constitute a waiver
by such party of the rights and remedies thereof under this Amendment or
otherwise at law or in equity.
17. EXHIBITS. All exhibits, schedules, attachments, annexed
instruments and addenda referred to herein shall be considered a part of this
Amendment as fully as if and with the same force and effect as if such exhibit,
schedule, attachment, annex or addendum had been included herein in full.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth in the introductory paragraph hereof.
GENERAL PARTNER:
HEINZ MANAGEMENT L.L.C., a Delaware
limited liability company
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Vice President
LIMITED PARTNERS:
X. X. XXXXX COMPANY
ORA CORPORATION
ETHNIC GOURMET FOODS, INC.
CMH, INC.
X. X. XXXXX FINANCE COMPANY
By: Heinz Management L.L.C., attorney-in-
fact pursuant to the power of attorney
granted in Section 10.05 of the Current
LP Agreement
By: Xxxx X. Xxxxx
-------------
Name: Xxxx X. Xxxxx
Title: Vice President
NEW CLASS B INTEREST HOLDER:
ROYAL AMERICAN FOODS, INC.,
a Minnesota corporation
By: Xxxxx X. Xxxxxxxx
-------------------
Name: Xxxxx X. Xxxxxxxx
Title:President
SCHEDULE A - LIMITED PARTNERS
The following entity is the Class A Limited Partners on the date of this
Agreement:
X. X. Xxxxx Company, a Pennsylvania corporation
The following entities are the Class B Limited Partners on the date of this
Agreement:
X. X. Xxxxx Finance Company, a Delaware corporation
CMH, Inc., an Idaho corporation
ORA Corporation, a California corporation
Ethnic Gourmet Foods, Inc., a Massachusetts corporation
Royal American Foods, Inc., a Minnesota corporation
SCHEDULE B - CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
The estimated fair market value of the Capital Contribution of each Partner and
the relative Percentage Interest in the Partnership represented by each Capital
Contribution as of the date of this Agreement is as shown below.
Partner Capital Contribution Percentage Interests
------- -------------------- --------------------
Heinz Management LLC 500,000 .004%
X. X. Xxxxx Company 8,113,409,493 65.348%
ORA Corporation 226,015,500 1.820%
Ethnic Gourmet Foods, Inc. 11,500,000 .093%
X. X. Xxxxx Finance Company 927,851,678 7.473%
CMH, Inc 3,099,522,068 24.964%
Royal American Foods, Inc. 37,000,000 .298%
Total 12,415,798,739 100.000%
This Schedule, dated December 31, 2002, does NOT reflect the distribution of
assets to X. X. Xxxxx Company pursuant to the Consent to Distribution dated
December 13, 2002 or any "book-up" associated therewith. An amended Schedule B
will be substituted when the required calculations are completed.
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SCHEDULE C - NEW CAPITAL CONTRIBUTIONS
Simultaneously with the full and complete execution of this Amendment, and in
exchange for its admission as a Class B Interest Holder, New Limited Partner has
contributed the following assets to the capital of the Partnership:
All those assets described in the Royal American Foods, Inc.
Assignment, Assumption and Xxxx of Sale Agreement attached hereto as
Schedule D.
In connection with the New Limited Partner's contribution to the capital of the
Partnership of the assets set forth above, the Partnership agrees to assume
(within the meaning of Section 752 of the Code) the following liabilities of the
New Limited Partner:
All those liabilities described in the Royal American Foods, Inc.
Assignment, Assumption and Xxxx of Sale Agreement attached hereto as
Schedule D, other than Excluded Liabilities.
Subject to the provisions of Section 4.01 of the Current LP Agreement, the
parties hereto acknowledge and agree that the estimated fair market value of
such contributed assets, on the date of their contribution, net of any
liabilities assumed or taken subject to, is equal to $37,000,000.00.
SCHEDULE D - ASSIGNMENT AGREEMENT
ADDENDUM 1 - PREVIOUS AMENDMENT(s) TO THE LIMITED PARTNERSHIP AGREEMENT
The Third Amended and Restated Limited Partnership Agreement of the Partnership,
made and entered into as of December 13, 2002, has been previously amended
pursuant to the documents listed below:
None
ADDENDUM 2 - MANAGEMENT BOARD APPROVAL
