EXHIBIT 10.5
FIRST AMENDMENT
TO SECOND AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
X. X. XXXXX COMPANY, L.P.
This First Amendment to Second 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 February 28, 2002 (the "Effective Date"),
by, between and among Heinz Management Company, a Delaware corporation ("HMC"),
as the General Partner hereof, and the entities named on Schedule A, as the
Limited Partners hereof. Capitalized terms used and defined in this Amendment
shall have the meanings assigned to them in this Amendment (including those in
the recital paragraphs hereof), and capitalized terms used herein 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 was originally formed by the filing of a
Certificate of Limited Partnership for the Partnership with the Secretary of
State of the State of Delaware on October 6, 2000, and the Partnership is
currently governed pursuant to that certain Second Amended and Restated Limited
Partnership Agreement of the Partnership made and entered into as of May 3,
2001, as the same has been previously amended pursuant to the documents listed
on Addendum 1 attached hereto (the "Current LP Agreement"); and
WHEREAS, as of May 3, 2001, the only Limited Partners of the Partnership
were those entities listed under the heading "May 3, 2001 Limited Partners" on
Addendum 2 attached hereto, and effective as of May 4, 2001, the entities named
under the heading "Merged Limited Partners" on Addendum 2 were merged with and
into CMH, Inc., and as a result thereof, the only Limited Partners of the
Partnership immediately thereafter were the entities listed under the heading
"May 4, 2001 Limited Partners" on Addendum 2 attached hereto; and
WHEREAS, in exchange for its contribution of certain assets to the
Partnership (as hereinafter set forth), O. R. A. Corporation, a California
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 parties hereto desire to enter into this Amendment for the
purpose of (a) amending the Current LP Agreement to reflect the admission of
New Limited Partner into the Partnership as a limited partner and Class B
Interest Holder hereof, (b) reallocating the relative interests of the Partners
in the Partnership as hereinafter set forth, and (c) further amending the
Current LP Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Partners, intending to be
legally bound, hereby agree as follows:
1. Admission of New Limited Partner. From and after the Effective Date of
this Amendment, New Limited Partner is hereby admitted to the Partnership as a
limited partner hereof, with such Class B Interest as hereinafter set forth,
and in such capacity shall be a Class B Interest Holder, as hereinafter set
forth (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 B attached to this
Amendment (the "Contribution"), and the parties hereto acknowledge and
agree that the fair market value of such assets on the date of their
contribution, net of any liabilities assumed or taken subject to, is equal
to the amount set forth on Schedule B attached hereto (the "Net Value").
The parties hereto acknowledge and 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 hereby specifically approves
the issuance of such additional Class B Interests and the General Partner
hereby 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 3 attached hereto.
(c) Schedule A - Limited Partners. From and after the Effective Date,
Schedule A attached to the Current LP Agreement is hereby deleted and
superseded in its entirety and in its place and stead is substituted the
Schedule A attached to this Amendment.
(d) Schedule D - Class B Interest Holders. From and after the
Effective Date, Schedule D attached to the Current LP Agreement is hereby
deleted and superseded in its entirety and in its place and stead is
substituted the Schedule D attached to this Amendment.
(e) Schedule E - 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, the Schedule E attached to the Current LP
Agreement is hereby deleted and superseded in its entirety and in its
place and stead is substituted the Schedule E attached to this Amendment,
and as a result thereof, from and after the Effective Date, the Partners
shall be those persons and entities set forth on Schedule E to this
Amendment and their relative Percentage Interests in the Partnership shall
be as set forth on Schedule E to this Amendment.
(f) Assumption of Liabilities. New Limited Partner is transferring
all of its business operations to the Partnership, which includes
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), and in that regard the
Partnership agrees to assume (within the meaning of Section 752 of the
Code) all of those liabilities of New Limited Partner other than the
liabilities identified as Excluded
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Liabilities in the ORA Assignment, Assumption and Xxxx of Sale Agreement
attached hereto as Schedule F. As to New Limited Partner, the liabilities
assumed by the Partnership shall constitute "Assumed Liabilities" as
defined in the Current LP Agreement and the provisions of Section 4.07 of
the Current LP Agreement will specifically apply .
(g) 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 (including, without limitation, Section 4.07). The
New Limited Partner does hereby irrevocably make, constitute and appoint
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 hereby
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 hereby 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,
constitutes the legal, valid and binding obligation of such Partner
enforceable in accordance with its terms.
(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 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
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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. Ratification and Confirmation. Except to the extent specifically
amended by this Amendment, the parties hereto do hereby ratify and confirm the
terms and provisions of the Current LP Agreement, as previously amended.
7. Effective Date. This Amendment is effective as of the date first above
mentioned.
8. 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.
9. 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.
10. 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.
11. 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.
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12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 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.
18. 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.
[SIGNATURES BEGIN ON NEXT PAGE]
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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 COMPANY, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
------------------------------------
Title: Vice President
-----------------------------------
LIMITED PARTNERS:
X. X. XXXXX COMPANY
STAR-XXXX FOODS, INC.
HEINZ FROZEN FOODS COMPANY
CMH, INC.
X. X. XXXXX FINANCE COMPANY
By: Heinz Management Company,
attorney-in-fact pursuant
to the power of attorney granted in
Section 10.05 of the Current LP
Agreement
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
--------------------------------
Title: Vice President
-------------------------------
NEW CLASS A/B INTEREST HOLDER:
O. R. A. Corporation, a California corporation
By: /s/ Xxxxxxxxxxx X. Puma
--------------------------------------
Name: Xxxxxxxxxxx X. Puma
------------------------------------
Title: Vice President
-----------------------------------
Schedule A - Limited Partners
The following entities are the Limited Partners of the Partnership as of the
Effective Date:
Class A Interest Holders:
------------------------
1. X. X. Xxxxx Company, a Pennsylvania corporation
2. Star-Xxxx Foods, Inc., a California corporation
3. Heinz Frozen Foods Company, a Delaware corporation
Class B Interest Holders:
------------------------
1. X. X. Xxxxx Finance Company, a Delaware corporation
2. CMH, Inc., an Idaho corporation
3. O. R. A. Corporation, a California corporation.
Schedule B - 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 ORA Assignment, Assumption and Xxxx
of Sale Agreement attached hereto as Schedule F.
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 ORA Assignment, Assumption and
Xxxx of Sale Agreement attached hereto as Schedule F, 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 $220.000.000.00.
Schedule D - Class B Interest Holders
As of the Effective Date, the following entities are the Class B Interest
Holders:
1. X. X. Xxxxx Finance Company, a Delaware corporation
2. CMH, Inc., an Idaho corporation
3. O. R. A. Corporation, a California corporation.
Schedule E - Net Equity Value and Percentage Interests
As of the Effective Date, the net equity value of each Partner's Interest in
the Partnership and the relative Percentage Interest of each Partner is as
shown below:
--------------------------------------------------------------------------------------------------------
Partner Capital Contribution Percentage Interests
--------------------------------------------------------------------------------------------------------
Heinz Management Company 500,000 .004%
--------------------------------------------------------------------------------------------------------
X. X. Xxxxx Company, 4,893.000,000 38.308%
--------------------------------------------------------------------------------------------------------
Star-Xxxx Foods, Inc 1,608,000,000 12.589%
--------------------------------------------------------------------------------------------------------
Heinz Frozen Foods Company, 2,034,000,000 15.924%
--------------------------------------------------------------------------------------------------------
X. X. Xxxxx Finance Company 929,220,000 7.275%
--------------------------------------------------------------------------------------------------------
CMH, Inc 3,088,145,000 24.177%
--------------------------------------------------------------------------------------------------------
O. R. A. Corporation 220,000,000 1.722%
--------------------------------------------------------------------------------------------------------
Total 12,772,865,000 100.000%
Schedule F
O.R.A. CORPORATION ASSIGNMENT, ASSUMPTION AND XXXX OF SALE AGREEMENT
THIS O.R.A. CORPORATION ASSIGNMENT, ASSUMPTION AND XXXX OF SALE AGREEMENT
(this "Agreement"), made as of this 28th day of February, 2002, by and among
O.R.A. Corporation, a California corporation ("Assignor") and X. X. Xxxxx
Company, L.P., a Delaware limited partnership ("Assignee").
RECITALS:
WHEREAS, Assignor is a wholly owned subsidiary of Delimex Holdings, Inc.,
a Delaware corporation ("Delimex"); and
WHEREAS, Assignor desires to assign, transfer and convey all of the
Included Assets (as such term is defined in Section 1.1 below) to Assignee in
exchange for a limited partnership interest in Assignee, and Assignee wishes to
accept the assignment of such Included Assets, on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
ARTICLE I
ASSIGNMENT
Section 1.1. Assigned Assets. Assignor hereby assigns, transfers and
conveys to the Assignee all of Assignor's right, title and interest in and to
each and every asset, right and interest of every kind, nature or character
whatsoever, wherever located, and whether direct or indirect, that are owned,
used or held for use by, or for the benefit of or on the behalf of, in whole or
in part, Assignor and used in connection with the manufacturing, marketing,
distribution and sale of food products in the United States (the "Manufacturing
Operations") including, without limitation, the following (but specifically
excluding the Excluded Assets, as such term is defined in Section 1.2 below):
(a) all machinery; tools; dies; molds; packaging materials; appliances;
motorized and non-motorized vehicles; trailers, attachments and accessories;
marine vessels; aircraft; railway rolling stock; furnishings; equipment
(including, but not limited to, all spare and replacement parts); computer
hardware; computer software; fuel stocks; plants; materials, stores, supplies,
packaging and labeling; documents, records and other similar and dissimilar
tangible records; and all other tangible personal property of every conceivable
nature, kind, character and description associated with the Manufacturing
Operations of Assignor (the "Property");
(b) all inventory, raw materials, finished products and work-in-progress
of Assignor (the "Inventories");
(c) all real property leases (together with all modifications and
amendments thereof and supplements thereto), where Assignor is the direct or
indirect lessor or lessee of land, structures, fixtures and premises (the "Real
Property Leases");
(d) all leases, subleases and assignments (together with all modifications
and amendments thereof and supplements thereto), where Assignor is the direct
or indirect lessor or lessee of machinery, equipment or any other personal
property (the "Personal Property Leases");
(e) all easements, profits, licenses pertaining to real property, rights
of access, rights of way and other similar or dissimilar rights in real
property (together with all modifications and amendments thereof and
supplements thereto), where Assignor is the direct or indirect grantor or
grantee (the "Real Property Licenses");
(f) all written and oral contracts (together with all modifications and
amendments thereof and supplements thereto) (the "Contracts");
(g) all licenses not pertaining to real property (including, but not
limited to, computer software licenses) (together with all modifications and
amendments thereof and supplements thereto) (the "Personal Property Licenses");
(h) all trade accounts receivable and all other similar or dissimilar
receivables (the "Receivables");
(i) all prepaid expenses, other than prepaid taxes (the "Prepaid
Expenses");
(j) all goodwill, going concern value and other intangible assets
associated with the Manufacturing Operations of Assignor (the "Goodwill");
(k) all transferable or otherwise assignable approvals, permits,
authorizations, licenses, orders, registrations, certificates, variances and
other similar or dissimilar permits obtained from any governmental or
quasi-governmental authority and pending applications (the "Permits");
(l) all patents, patent applications and patent claims, whether foreign or
domestic, owned or licensed by Assignor; all copyrights, copyright applications
or copyright claims, whether foreign or domestic, owned or licensed by
Assignor; all trade secrets, business privileged materials, proprietary
information and all other confidential information of Assignor, whether or not
such information is related to the Manufacturing Operations of Assignor,
including, without limitation, all information relating to sales, sales volume,
sales methods, sales proposals, customers, suppliers, prospective customers,
financial and accounting records, manuals, formulae, processes, methods,
compositions, ideas, improvements, inventions, know-how, research and all other
confidential and proprietary information (collectively, the "Proprietary
Information");
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(m) all cash, bank and other accounts, bank and other balances, term or
time deposits, lock box receipts and similar cash items (the "Accounts"); and
(n) any claims, demands, judgments, actions, causes of action, joinders,
contributions, indemnities, losses, damages, suits, inquiries, proceedings,
grievances, arbitrations, judgments or other similar or dissimilar rights of
Assignor (the "Claims"), whether such Claims are known or unknown, suspected or
unsuspected, foreseen or unforeseen, real or imaginary, actual or potential,
vested or contingent; whether arising at law, in equity or otherwise, under
common or statutory law, state or federal law, or natural or any other law;
whether as a result of active or passive negligence, strict liability in tort,
breach of warranty (express or implied), breach of contract, duty to indemnify
or any other theory of recovery, basis or cause whatsoever.
Collectively, the assets, properties, rights and interests identified in
subsections 1.1(a) through (n) above, together with all other assets,
properties, rights and interests of Assignor not excluded in Section 1.2 below,
are referred to in this Agreement as "Included Assets."
Section 1.2. Excluded Assets. The following assets, properties, rights and
interests, whether real or personal, tangible or intangible shall not be
included as an Included Asset, and shall specifically be excluded from the
assignment and transfer set forth in Section 1.1 above:
(a) all trademarks, recipes (including formulae and process sheets), trade
names, corporate names, trade dress, label designs and logos of the Assignor;
(b) all intercompany receivables from Delimex Holdings, Inc.;
(c) all assets, of whatever nature, relating to income taxes; and
(d) all corporate records of Assignor including, without limitation, the
corporate financial records, stock registry and minute books;
(e) all shares of each of the following Mexican subsidiaries of Assignee:
Delimex Mexicana, S.A. De C.V.
Ancidur, S.A. De C.V.
Delimex de Mexico, S.A. De C.V.
Collectively, the assets, properties, rights and interests identified in
subsections 1.2(a) - (e) above are referred to in this Agreement as "Excluded
Assets."
ARTICLE II
ASSUMPTION
Section 2.1 Assumed and Excluded Liabilities. Assignee hereby accepts all
right, title and interest of Assignor in, to and under the Included Assets and
agrees to fully assume, pay, discharge, perform and fulfill, or cause to be
assumed, paid, discharged, performed or fulfilled, all
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duties, liabilities and obligations in connection with, or arising from, such
Included Assets from and after the date hereof. Assignee assumes no obligation
with respect to the following:
(a) all liabilities relating to the Excluded Assets;
(b) all liabilities, of whatever nature, relating to income taxes; and
(b) all intercompany payables to Delimex Holdings, Inc. or Heinz Finance
Company; and
(c) any other liabilities identified in writing by Assignor and Assignee
no later than May 31, 2002 as not pertaining to the Manufacturing
Operations.
ARTICLE III
DISCLAIMERS
Section 3.1 AS IS, WHERE IS; Disclaimer. The Included Assets are being
sold, transferred, conveyed, assigned and delivered to Assignee in an "AS IS,
WHERE IS" condition. Assignor warrants that the Included Assets conveyed by
Assignor are owned by such Assignor and that Assignor has the legal right, and
is properly authorized and empowered, to sell, transfer, convey, assign and
deliver all of its right, title and interest in and to the Included Assets to
Assignee. EXCEPT AS OTHERWISE SET FORTH HEREIN, ASSIGNOR MAKES NO WARRANTIES,
WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING THE INCLUDED ASSETS, AND
ASSIGNOR DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL ASSIGNOR BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES RELATING TO OR CAUSED BY THE INCLUDED ASSETS.
ARTICLE IV
GENERAL
Section 4.1. Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto.
Section 4.2. Controlling Law. This Agreement shall be construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania,
without regard to conflicts of law provisions.
Section 4.3. Further Assurances. Assignor and Assignee shall cooperate
with each other with respect to the subject matter of this Agreement, and each
party shall take such further actions and execute such further instruments or
documents as the other party reasonably shall
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request from time to time to implement the purposes of this Agreement. This
Agreement shall not require the Assignor to assign to Assignee any Contract,
Permit or other right if the assignment of same without the consent of any
other party thereto would constitute a breach or a violation thereof or in any
way impair the rights sought to be transferred to Assignee. Except as otherwise
expressly provided herein, with respect to any Contract, Permit or other right
to be assigned to Assignee hereunder, Assignor and Assignee, both prior to and
after the date of this Agreement, shall use commercially reasonable efforts to
obtain the consent to the assignment thereof promptly; provided however that
Assignor shall not be required to make payments or to agree to any undertaking
in connection with obtaining such consent. If any consent shall be
unobtainable, Assignor shall use commercially reasonable efforts to assure to
Assignee the benefits of such Contract, Permit or other right, as the case may
be, and shall cooperate with Assignee in any reasonable arrangement designed to
provide such benefits to Assignee (including, without limitation, (a)
enforcement for the benefit of Assignee, of the rights of Assignor against a
third party arising out of a breach or cancellation by such third party, (b)
entering into appropriate subcontracting or agency arrangements or (c) holding
such Contract, Permit or other right and any monies received therefrom in trust
for Assignee); provided, that (i) Assignor shall not without the consent of
Assignee, agree to any modification of any such Contract, Permit or other right
in the course of obtaining any consents, or pay or commit to pay any
consideration payable from the Included Assets, and (ii) Assignee shall (A)
perform the obligations of Assignor arising under such Contract, Permit or
other right after the date of this Agreement and (B) reimburse Assignor and
hold Assignor harmless from and against all liabilities incurred or asserted as
a result of Assignee's performance of such obligations.
Section 4.4. Severability. If any provision of this Agreement shall be
held to be invalid, void or unenforceable, the remaining provisions hereof
shall in no way be affected or impaired and such remaining provisions shall
remain in full force and effect.
Section 4.5. Counterparts. This Agreement 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 Agreement by signing any such counterpart.
Section 4.6. Entire Agreement.This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions whether oral or written. There are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof, except as specifically set forth herein. No supplement,
modification, waiver or termination of this Agreement shall be binding unless
executed in writing by the party thereto to be bound.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the day and year first above written.
ASSIGNOR :
O.R.A. Corporation
By:/s/ Xxxxxxxxxxx X. Puma
----------------------------------
Name: Xxxxxxxxxxx X. Puma
--------------------------------
Title: Vice President
-------------------------------
ASSIGNEE:
X. X. XXXXX COMPANY, L.P.
By: Heinz Management Company, its
General Partner
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
--------------------------------
Title: Vice President
-------------------------------
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Addendum 1 - Previous Amendment(s) to the Limited Partnership Agreement
The Second Amended and Restated Limited Partnership Agreement of the
Partnership, made and entered into as of May 3, 2001, has been previously
amended pursuant to the documents listed below:
No prior amendments.
Addendum 2 - Previous Limited Partners
As of May 3, 2001, the only Limited Partners of the Partnership were those
entities listed below:
May 3, 2001 Limited Partners
----------------------------
X. X. Xxxxx Company
Star-Xxxx Foods, Inc.
Heinz Frozen Foods Company
X. X. Xxxxx Finance Company
Portion Pac, Inc.
Escalon Premier Brands, Inc.
IDF Holdings, Inc.
Quality Chef Foods, Inc.
Thermo Pac, Inc.
Boulder, Inc.
CMH, Inc.
Central Commissary, Inc.
Effective as of May 4, 2001, the entities listed below were merged with and
into CMH, Inc.:
Merged Limited Partners
-----------------------
Portion Pac, Inc.,
Escalon Premier Brands, Inc.
IDF Holdings, Inc.
Quality Chef Foods, Inc.
Thermo Pac, Inc.
Boulder, Inc.
Central Commissary, Inc.
As a result thereof, as of May 4, 2001, the only Limited Partners of the
Partnership were those listed below:
May 4, 2001 Limited Partners
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X. X. Xxxxx Company
Star-Xxxx Foods, Inc.
Heinz Frozen Foods Company
X. X. Xxxxx Finance Company
CMH, Inc.
X. X. Xxxxx Company, Star-Xxxx Foods, Inc. and Heinz Frozen Foods Company are
and continue to be the only Class A Interest Holders, and the remainder of the
entities listed above under the heading "May 4, 2001 Limited Partners",
together with the New Limited Partner, are and continue to be the only Class B
Interest Holders.
Addendum 3 - Management Board Approval
WRITTEN CONSENT AND AUTHORIZATION OF MANAGERS
The undersigned, all being Managers of the Management Board of X. X. Xxxxx
Company, L.P., a Delaware limited partnership (the "Partnership"), waive notice
of the time, place and purpose of a special meeting of the Managers of the
Management Board and hereby consent to and adopt the resolutions set forth
below, with the same force and effect as if such resolutions had been duly
adopted at a meeting of the Managers of the Partnership duly called and held.
This Written Consent and Authorization and the following resolutions are
being made in accordance with Section 8.02 of the First Amended and Restated
Limited Partnership Agreement (as previously amended, the "Current Partnership
Agreement") of the Partnership, dated as of May 3, 2001.
The only Managers of the Management Board of the Partnership are Xxxxxx
Xxxxxxxxxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxx, appointed by the Class B Interest
Holders, and Xxxxxx Xxxxxxx and Xxxx Xxxxxxxx, appointed by the Class A
Interest Holders. In accordance with Section 8.02(c) of the Current Partnership
Agreement, a majority in number of the Managers shall constitute a quorum for
the transaction of business. Further, Section 8.02(d) of the Current
Partnership Agreement provides that any action required to be taken at a
meeting of the Management Board may instead be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by the number
of Managers required to approve such action in a properly called and
constituted meeting of the Management Board at which all of the Managers were
present and voting.
Capitalized terms used and defined in this Written Consent and
Authorization shall have the meanings assigned to them herein, and capitalized
terms used but not defined in this Written Consent and Authorization shall have
the meanings assigned to them in the Current Partnership Agreement.
The signature, consent and authorization of any Manager shall not be
conditioned upon any of the other Managers signing this Written Consent and
Authorization, and the failure of one or more of the Managers to execute this
Written Consent and Authorization shall not have any effect upon the Written
Consent and Authorization of the Managers who have signed and executed this
Written Consent and Authorization.
This Written Consent and Authorization may be signed in multiple
counterparts and the signature pages of the various counterparts may be
combined together in one document.
RESOLUTIONS:
RESOLVED, the Management Board of the Partnership hereby (a) consents to
and authorizes the Partnership to admit O. R. A. Corporation, a California
corporation, (the "New Limited Partner") as an additional Class B Interest
Holder (the "Admission"), in exchange for the capital contribution (the
"Capital Contribution") to the Partnership by such New Limited Partner of the
business operations and assets set forth on Schedule B attached to that certain
First
Amendment to the Second Amended and Restated Limited Partnership Agreement of
X. X. Xxxxx Company, L.P., entered into effective as of February 28, 2002 (the
"First Amendment"), (b) agrees to the Net Value set forth on Schedule B to the
First Amendment, and (c) agrees to the adjustments made in the booked-up equity
value and Percentage Interests set forth on Schedule E to the First Amendment;
FURTHER RESOLVED, the General Partner is authorized to enter into such
First Amendment (both on its own behalf and in its capacity as attorney-in-fact
on behalf of the Limited Partners in accordance with Section 10.05 of the
Current Partnership Agreement) and the General Partner is authorized and
directed to do or take all acts, actions and things and to pay such costs and
expenses and taxes as the General Partner may determine to be necessary or
appropriate in connection with or incidental to the matters set forth in this
Resolution and to enter into, execute, deliver and perform in accordance with
such other agreements, contracts, documents and other instruments (both on its
own behalf, on behalf of the Limited Partners and on behalf of the Partnership)
as the General Partner may determine to be necessary or appropriate in
connection with or incidental to the completion of the Admission and the
capital Contribution (collectively, the "Admission Documents"), such approval
to be evidenced conclusively by the General Partner's execution and delivery of
those documents, and the Partnership and the General Partner is authorized and
directed to take all actions required of each pursuant to the First Amendment
and the Admission Documents and take such actions as may be necessary or
convenient to implement completion of the Admission or the performance by the
Partnership of its obligations under and pursuant to the Admission Documents or
in connection with the completion of transactions contemplated therein or
herein, and such documents are hereby approved; and
FURTHER RESOLVED, the Management Board and the Managers executing this
Written Consent and Authorization, on behalf of the Partnership, hereby consent
to all actions previously taken or to be taken on behalf of the Partnership in
connection with or related to the Admission or any of the Admission Documents
and the consummation of the Admission and the Admissions Documents or the
transactions contemplated therein or herein.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[SIGNATURES BEGIN ON NEXT PAGE]
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EXECUTED by the undersigned as of, but not necessarily on, February 28, 2002.
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