EXHIBIT 10.92
Execution Copy
EQUITY INVESTMENT AGREEMENT
EQUITY INVESTMENT AGREEMENT dated as of March 24, 1997
by and among SPECIALTY FOODS ACQUISITION CORPORATION, a
Delaware corporation ("SFAC"), SPECIALTY FOODS CORPORATION,
a Delaware corporation ("SFC" or the "Term Loan Borrower"),
ACADIA PARTNERS, L.P. ("ACADIA"), XXXX WHEAT ADVISORY
PARTNERS INCORPORATED ("HWAP"), KEYSTONE, INC. ("KEYSTONE")
and THE CHASE MANHATTAN BANK (formerly, "Chemical Bank"), a
New York banking corporation, as administrative agent (the
"Administrative Agent") for the Term Loan Lenders (as
defined below).
W I T N E S S E T H:
WHEREAS, the Term Loan Borrower, the Revolving Credit
Borrowers (as defined below), the Administrative Agent, the
Term Loan Lenders and the Revolving Credit Lenders (as
defined below) have entered into the Fourth Amendment, dated
as of February 25, 1997 (the "Fourth Amendment"), to:
(a) the Term Loan Agreement, dated as of July 17,1995
(as amended pursuant to the First Amendment thereto dated as
of February 28, 1996, the Second Amendment thereto dated as
of August 2, 1996, and the Third Amendment thereto dated as
of October 24, 1996, and as the same may be further amended,
supplemented or otherwise modified from time to time, the
"Term Loan Agreement"), among the Term Loan Borrower, the
several banks and other financial institutions from time to
time parties thereto (the "Term Loan Lenders"), and the
Administrative Agent; and
(b) the Revolving Credit Agreement, dated as of August
16, 1993, and amended and restated as of July 17, 1995 (as
amended pursuant to the First Amendment thereto dated as of
February 28, 1996, the Second Amendment thereto dated as of
August 2, 1996, and the Third Amendment thereto dated as of
October 24, 1996, and as the same may be further amended,
supplemented or otherwise modified from time to time, the
"Revolving Credit Agreement"), among each of the
subsidiaries of SFC signatory thereto (collectively, the
"Revolving Credit Borrowers") the several banks and other
financial institutions from time to time parties thereto
(collectively, the "Revolving Credit Lenders"; the Term Loan
Lenders and the Revolving Credit Lenders are collectively
referred to as the "Lenders", and each individually, as a
"Lender") and the Administrative Agent.
WHEREAS, it is a condition precedent to the
effectiveness of the Fourth Amendment that the parties
hereto shall have executed and delivered to the
Administrative Agent this Agreement.
NOW THEREFORE, in consideration of the mutual covenants
set forth herein, and to induce the Administrative Agent and
the Lenders to enter into the Fourth Amendment, the parties
hereto hereby agree with the Administrative Agent, for the
ratable benefit of the Term Loan Lenders and the Revolving
Credit Lenders, as follows:
1. Defined Terms.
(a) Unless otherwise defined in this Agreement, terms
which are defined in the Term Loan Agreement, the Revolving
Credit Agreement and the Fourth Amendment and used herein
are used as so defined. Unless otherwise indicated, all
Section, subsection and Schedule references are to the Term
Loan Agreement, as amended by the Fourth Amendment.
(b) The following terms shall have the following
meanings:
"Agreement" shall mean this Equity Investment
Agreement, as the same may be amended, modified or otherwise
supplemented from time to time.
"Equity Investment Date" shall mean June 30, 1997.
"Signing Shareholder" shall mean each of Acadia, HWAP
and Keystone, acting in their individual capacities.
2. Equity Investment.
(a) On or before the Equity Investment Date, each
Signing Shareholder, acting individually and not jointly and
severally, shall purchase equity of SFAC, in an amount
equal to the amount set forth on Schedule 1 to this
Agreement opposite the name of such Signing Shareholder
(each such individual obligation being referred to as an
"Equity Investment"); provided, however, that the obligation
to make an Equity Investment may, at the option of each
Signing Shareholder acting with respect to the Equity
Investment it is required to make, be fully satisfied by the
contribution to the equity of SFAC by certain of the
existing shareholders of SFAC, including such Signing
Shareholder (collectively, the "Purchasing Shareholders"),
of insurance receivables, in the face amount equal to the
amount set forth on Schedule 1 to this Agreement opposite
the name of such Signing Shareholder, that were generated by
Stella Foods, Inc., a wholly-owned indirect subsidiary of
SFC ("Stella"), in connection with the fire at Xxxxxx'x
Xxxx, Wisconsin manufacturing facility and purchased by such
Signing Shareholder.
(b) In consideration for each such Equity Investment,
SFAC shall issue to the Purchasing Shareholders making such
Equity Investment common or preferred stock (convertible or
straight preferred) with or without warrants to purchase
common stock of SFAC in an amount to be determined by the
Board of Directors of SFAC and the Purchasing Shareholders.
(c) Promptly upon the contribution of each Equity
Investment to the equity of SFAC, SFAC shall contribute such
Equity Investment to the equity of SFC.
3. Representations and Warranties.
(a) Each of SFAC, SFC, Acadia, HWAP and Keystone
represents and warrants to the Administrative Agent and to
each other that it has the full legal capacity, power and
authority to execute, deliver and perform this Agreement and
that this Agreement constitutes the valid and binding
obligation of such entity, enforceable in accordance with
its terms.
(b) Each of SFAC and SFC further represents and
warrants to the Administrative Agent that the consummation
of each Equity Investment, as contemplated by this
Agreement, shall be accomplished in a manner that does not
violate the terms and conditions of the Term Loan Agreement
or the Revolving Credit Agreement.
4. Certification of Completion. Within five (5)
business days of the completion of each Equity Investment,
SFAC and SFC shall each deliver duly executed Officer's
Certificates to the Administrative Agent certifying that the
provisions of Sections 2 and 3 have been complied with in
all respects with respect to such Equity investment.
5. Authority of Administrative Agent. The parties
acknowledge that the rights and responsibilities of the
Administrative Agent under this Agreement with respect to
any action taken by the Administrative Agent or the exercise
or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement
shall, as between the Administrative Agent and the Lenders,
be governed by the Term Loan Agreement and by such other
agreements with respect thereto as may exist from time to
time among them, but, as between the Administrative Agent
and SFAC and SFC, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders
with full and valid authority so to act or refrain from
acting, and the parties hereto shall not be under any
obligation, or entitlement, to make any inquiry respecting
such authority.
6. Notices. All notices, requests and demands to or
upon the parties hereto to be effective shall be in writing
(or by telex, fax or similar electronic transfer confirmed
in writing) and shall be deemed to have been duly given or
made (a) when delivered by hand, or (b) if given by mail,
when deposited in the mails by certified mail, return
receipt requested, or (c) if by telex, fax, or similar
electronic transfer, when sent and receipt has been
confirmed, addressed to the Administrative Agent or SFC at
its address or transmission number for notices provided in
subsection 9.2 of the Term Loan Agreement, to SFAC in care
of SFC at its address or transmission number for notices
provided in subsection 9.2 of the Term Loan Agreement, and
to the other parties, at the addresses set forth below their
signatures. Any party may change its address and
transmission number for notices by notice to the other
parties in the manner provided in this section.
7. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without validating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other
jurisdiction.
8. Amendments in Writing; No Waiver, Cumulative
Remedies.
(a) None of the terms or provisions of this Agreement
may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by the parties,
provided, that any provision of this Agreement may be waived
by the Administrative Agent and the Lenders in a letter or
agreement executed by the Administrative Agent or telex or
facsimile transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender
shall by any act (except by a written instrument pursuant to
Section 8(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any default or in any
breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the
part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Administrative Agent or any
Lender of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which
the Administrative Agent or such Lender would otherwise have
on any future occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently, and are
not exclusive of any other rights or remedies provided by
law.
9. Section Headings. The section headings used in
this Agreement are for convenience of reference only and are
not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
10. Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of the parties
hereto and shall inure to the benefit of the Administrative
Agent and the Lenders and their successors and assigns.
11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
12. Counterparts. This Agreement may be executed in
any number of counterparts by the parties hereto, each of
which counterparts when so executed shall be an original,
but all counterparts taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Equity Investment Agreement to be duly executed and
delivered as of the date first above written.
SPECIALTY FOODS ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
SPECIALTY FOODS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
ACADIA PARTNERS, L.P.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: x/x Xxx Xxxx Xxxxxxxx
Xxxx Xxxxxx Tower
00 Xxxx 00xx Xx. 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxxx X.
Xxxxxx
XXXX WHEAT ADVISORY PARTNERS
INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxx
KEYSTONE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxx 00000
Attn: Xx. X. Xxxxxx
Xxxxxxxx
Agreed and Accepted:
THE CHASE MANHATTAN BANK
(Formerly, Chemical Bank) as
Administrative Agent and as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
SCHEDULE 1
Signing Shareholder
Equity Investment
Acadia Partners, L.P.
$8,775,000
Xxxx Wheat Advisory Partners
$1,950,000
Incorporated
Keystone, Inc.
$8,775,000
