EXHIBIT 2.4
AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
AMONG
SUIZA FOODS CORPORATION,
SUIZA DAIRY GROUP HOLDINGS, INC.,
DAIRY FARMERS OF AMERICA, INC.,
DAIRY RICH, L.L.C.,
AND, FOR CERTAIN LIMITED PURPOSES,
SUIZA DAIRY GROUP, L.P., AND
MID-AM CAPITAL, L.L.C.,
DATED AS OF DECEMBER 21, 2001
SECURITIES PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS...............................................F-2
SECTION 2 SALE AND PURCHASE OF SECURITIES...........................F-9
2.1. Sale and Purchase of Limited Partner Interests............F-9
2.2. Purchase Price...........................................F-10
2.3. Closing..................................................F-10
2.4. Closing Obligations......................................F-11
SECTION 3 REPRESENTATIONS AND WARRANTIES OF DFA....................F-11
3.1. Organization and Good Standing...........................F-11
3.2. Authority................................................F-11
SECTION 4 REPRESENTATIONS AND WARRANTIES OF SUIZA AND HOLDINGS.....F-12
4.1. Organization and Good Standing...........................F-12
4.2. Authority................................................F-12
4.3. Milk Supply Agreements...................................F-12
4.4. Divested Companies.......................................F-12
SECTION 5 COVENANTS OF DFA COMPANIES PRIOR TO CLOSING DATE.........F-13
5.1. Notification.............................................F-13
5.2. No Negotiation...........................................F-13
5.3. Reasonable Best Efforts..................................F-13
5.4. Assistance with Permits and Filings......................F-13
5.5. Confidentiality..........................................F-13
SECTION 6 COVENANTS OF HOLDINGS PRIOR TO CLOSING DATE..............F-14
6.1. Access and Investigation.................................F-14
6.2. Operation of the Business of the Suiza Companies.........F-14
6.3. Negative Covenant........................................F-14
6.4. Notification.............................................F-14
6.5. No Negotiation...........................................F-14
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6.6. Reasonable Best Efforts..................................F-15
6.7. Assistance with Permits and Filings......................F-15
6.8. Confidentiality..........................................F-15
6.9. Intentionally left blank.................................F-15
6.10. Delivery of Disclosure Letter for Xxxx of Sale...........F-15
6.11. Title Policies and Surveys...............................F-15
6.12. Transfer Taxes...........................................F-17
6.13. Dairy Liabilities........................................F-17
SECTION 7 CONDITIONS PRECEDENT TO HOLDINGS' OBLIGATION TO CLOSE....F-17
7.1. Accuracy of Representations..............................F-17
7.2. DFA's or Mid-Am's Performance............................F-17
7.3. Consents.................................................F-18
7.4. No Proceedings...........................................F-18
7.5. No Prohibition...........................................F-18
7.6. Closing Certificate......................................F-18
7.7. Acquisition of Xxxx......................................F-18
SECTION 8 CONDITIONS PRECEDENT TO DFA'S OBLIGATION TO CLOSE........F-18
8.1. Accuracy of Representations..............................F-18
8.2. Performance..............................................F-19
8.3. Absence of Material Adverse Effects......................F-19
8.4. Consents.................................................F-19
8.5. No Proceedings...........................................F-19
8.6. No Prohibition...........................................F-19
8.7. Closing Certificates.....................................F-19
8.8. Acquisition of Xxxx......................................F-20
SECTION 9 INDEMNIFICATION; REMEDIES................................F-20
9.1. Representations; Survival................................F-20
9.2. Indemnification and Payment of Damages by Suiza and
Holdings...............................................F-21
9.3. Indemnification and Payment of Damages by DFA............F-21
9.4. Limitations on Amount....................................F-22
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9.5. Procedure for Indemnification - Third Party Claims.......F-23
9.6. Procedure for Indemnification - Other Claims.............F-24
9.7. Mitigation...............................................F-24
9.8. Exclusive Monetary Remedy................................F-24
SECTION 10 TERMINATION..............................................F-24
10.1. Termination Events.......................................F-24
10.2. Effect of Termination....................................F-25
SECTION 11 OTHER AGREEMENTS.........................................F-25
11.1. Limited Partnership Agreement............................F-25
11.2. WARN Act.................................................F-25
SECTION 12 GENERAL PROVISIONS.......................................F-25
12.1. Public Announcements.....................................F-25
12.2. Notices..................................................F-26
12.3. Attorney's Fees and Costs................................F-26
12.4. Further Assurances.......................................F-26
12.5. Waiver...................................................F-26
12.6. Entire Agreement and Modification........................F-27
12.7. Assignments, Successors and No Third Party Rights........F-27
12.8. Specific Performance.....................................F-27
12.9. Severability.............................................F-27
12.10. Section Headings, Construction...........................F-27
12.11. Time of Essence..........................................F-28
12.12. Governing Law............................................F-28
12.13. Counterparts.............................................F-28
12.14. Incorporation of Recitals................................F-28
12.15. Dispute Resolution.......................................F-28
SCHEDULES
4.3 Milk Supply Agreements
EXHIBITS
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Exhibit A Excluded Assets
Exhibit B Certain Dairy Liabilities
Exhibit C Certain Excluded Liabilities
Exhibit D Form of Subordinated Promissory Note
Exhibit E Form of Xxxx of Sale, Assignment and Assumption Agreement
Exhibit F Form of Fourth Amendment to Milk Supply Agreement
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AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
This Amended and Restated
Securities Purchase Agreement ("AGREEMENT")
is made as of DECEMBER 21, 2001, by and among Suiza Foods Corporation, a
Delaware corporation ("SUIZA"), Suiza Dairy Group Holdings, Inc., a Nevada
corporation ("HOLDINGS"), Dairy Farmers of America, Inc., a Kansas cooperative
marketing association ("DFA"), Dairy Rich, L.L.C., a Nevada limited liability
company ("DAIRY RICH"), and, for the limited purposes indicated on the signature
pages hereto, Suiza Dairy Group, L.P., a
Delaware limited partnership ("SDG"),
and Mid-Am Capital, L.L.C., a
Delaware limited liability company ("MID-AM").
RECITALS
Each of Dairy Rich and Mid-Am owns certain limited partner interests in
SDG, and Holdings owns the remaining limited partner interests in SDG.
Holdings desires to purchase from Dairy Rich and Mid-Am, and Dairy Rich
and Mid-Am desire to sell to Holdings, all the limited partner interests in SDG
held by each of them, on the terms and subject to the conditions set forth in
this Agreement.
The parties (except for Dairy Rich) have previously entered into that
certain
Securities Purchase Agreement dated as of April 4, 2001, as amended on
September 19, 2001 (as amended, the "ORIGINAL AGREEMENT"), and desire to amend
and restate the Original Agreement as provided herein.
At the time of the execution of the Original Agreement, DFA held the
limited partner interests in SDG that are now owned by Dairy Rich.
Simultaneously with the execution of this Agreement, DFA is assigning
its rights hereunder to receive the transfer and conveyance of the Divested
Companies (defined below), which comprise part of the consideration herein to be
paid for the limited partner interests in SDG owned by Dairy Rich, to National
Dairy Holdings, LP, a
Delaware limited partnership ("NDH").
The Divested Companies and the Dairy Receivables will be transferred
and conveyed to NDH in exchange for preferred limited partner interests in NDH.
As the assignee of the limited partner interests in SDG formerly held
by DFA, Dairy Rich shall be the transferee of preferred limited partner
interests in NDH to be issued in exchange for the transfer and conveyance to NDH
of the Divested Companies and the Dairy Receivables.
NDH, as the assignee of DFA, will receive the transfer and conveyance
of the Divested Companies and the Dairy Receivables directly from Holdings at
the Closing (defined below), and thus will execute and deliver the conveyance
documents relating to the Divested Companies and the Dairy Receivables that are
contemplated herein to be executed and delivered at the Closing.
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The parties, intending to be legally bound, agree as follows:
SECTION 1
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"ACCOUNTANT" - as defined in Section 2.2(b).
"ACTUAL CASH CONSIDERATION" - the Closing Date Cash Consideration (a)
increased or decreased, as appropriate, by an amount equal to the amount by
which the Working Capital as of the close of business on Saturday, December 22,
2001 is less or more than $19,140,000, (b) increased or decreased, as
appropriate, by an amount equal to the amount by which DFA's and Mid-Am's
proportional share of the reported earnings (excluding any gains relating to
divestitures) of SDG from and including January 1, 2001 through the day
immediately preceding the Closing Date is more or less than $50,424,977, and (c)
increased or decreased, as appropriate, by an amount equal to the amount by
which the deemed distributions (for stock option exercises) deemed paid to DFA
and Mid-Am under the Limited Partnership Agreement from and including January 1,
2001 through the day immediately preceding the Closing Date is more or less than
$3,020,260. For purposes of the calculation of Actual Cash Consideration, all
stock options held by employees of Burger Dairy, Xxxx-X-Xxxx Dairies, Huntsville
Dairy, Oberlin Farms and Xxxxx Farms shall be considered exercised on the day
immediately prior to the Closing Date.
"ACTUAL WORKING CAPITAL" - the actual amount of Working Capital of the
Divested Companies and the Divested Companies' Subsidiaries on and as of the
close of business on December 22, 2001.
"AFFILIATE" - means with respect to any Person, any other Person,
directly or indirectly, controlling, controlled by, or under common control
with, such Person. For purposes of this definition, the term "CONTROL"
(including the correlative terms "CONTROLLING", "CONTROLLED BY" and "UNDER
COMMON CONTROL WITH") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
The term "AFFILIATE" also includes any director or executive officer (or person
performing similar functions) of Xxxx, Holdings, DFA, Dairy Rich, Mid-Am, any
Divested Company, any Divested Companies' Subsidiaries (as applicable) and any
director or executive officer of any Person that controls any such entity (as
applicable).
"ASSIGNMENT" - the Amended and Restated Assignment Agreement dated
December 21, 2001 by and between NDH, DFA, Dairy Rich, Suiza, Holdings and
certain other parties.
"AVERAGE WORKING CAPITAL" means the amount of $18,650,000, as agreed
between DFA and Holdings.
F-2
"XXXX OF SALE" - the Xxxx of Sale, Assignment and Assumption Agreement
attached hereto as Exhibit E, to be executed and delivered at the Closing.
"BURGER DAIRY" - XX Xxxxxx Dairy, LLC, a
Delaware limited liability
company.
"CLOSING" - as defined in Section 2.3.
"CLOSING DATE" - the date and time as of which the Closing actually
takes place.
"CLOSING DATE CASH CONSIDERATION" - as defined in Section 2.2(a).
"COBURG DAIRY" - Coburg Dairy, Inc., a South Carolina corporation.
"COMMITMENT" - as defined in Section 6.11(a).
"CONSENT" - any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"CONTRACT" - any agreement, contract, obligation, promise or
undertaking that is legally binding.
"C.O.W. TRANSPORT" - C.O.W. Transport, LLC, a Utah limited liability
company.
"CREAM X'XXXXX" - Cream X'Xxxxx Dairy, Inc., a Utah corporation, which
will be converted into a Utah limited liability company prior to the Closing.
"CURRENT ASSETS" - as of any day, the book value on such day of cash on
hand and in banks (net of outstanding checks), trade accounts (including the
Dairy Receivables) and other receivables (net of customary allowances and
reserves), inventories (excluding the book value of plastic cases), prepaid
expenses and other current assets in each case incurred in the Ordinary Course
of Business by the Dairy Operations. The book value of Current Assets represent
the amounts determined from the historical accounting records of the applicable
Dairy Operation (or Affiliates of the applicable Dairy Operations), calculated
in accordance with past practices of the applicable Dairy Operation as adjusted
to comply with U.S. generally accepted accounting principles (on a basis
comparable to the categories and types of assets used in determining the Average
Working Capital). Current Assets shall not include the amounts typically
included in current assets to the extent that they are Excluded Assets.
"CURRENT LIABILITIES" - as of any day, the book value on such day of
trade and other accounts payable, accrued expenses (including reserves for
medical and other insurance claims) and other current liabilities in each case
incurred in the Ordinary Course of Business by the Dairy Operations. The book
value of Current Liabilities represents the amounts determined from the
historical accounting records of the applicable Dairy Operation (or Affiliates
of the applicable Dairy Operations), calculated in accordance with past
practices of the applicable Dairy Operation as adjusted to comply with U.S.
generally accepted accounting principles (on a basis comparable to the
categories and types of liabilities used in determining the Average Working
Capital). Current Liabilities shall specifically exclude the current portion of
long-term
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debt, accrued interest on indebtedness, income taxes payable, deferred income
taxes and any other Excluded Liabilities.
"DAIRY LIABILITIES" - (i) the liabilities set forth on Exhibit B hereto
(provided, with respect to the Contracts listed thereon, only such liabilities
described in clauses (ii) (iii) and (iv) of this definition); (ii) performance
obligations of the Divested Companies and the Divested Companies' Subsidiaries
following the Closing under Contracts listed on Exhibit B hereto; provided,
however, that such performance obligations have not been adversely affected as a
result of a breach by Suiza or any Affiliate of Suiza (or Xxxx or any Affiliate
of Xxxx) prior to the Closing; (iii) performance obligations of the Divested
Companies and the Divested Companies' Subsidiaries following the Closing under
Contracts entered into in the Ordinary Course of Business but not listed on
Exhibit B hereto; provided, however, that such performance obligations have not
been adversely affected as a result of a breach by Suiza or any Affiliate of
Suiza (or Xxxx or any Affiliate of Xxxx) prior to the Closing; and (iv) Current
Liabilities in each case incurred in the Ordinary Course of Business by the
Dairy Operations as of the close of business on December 22, 2001. Dairy
Liabilities shall not include the current portion of Excluded Liabilities,
unless agreed to in writing by Holdings and DFA.
"DAIRY OPERATIONS" - the dairy and related product manufacturing,
processing and distribution operations conducted by Coburg Dairy; Cream X'Xxxxx;
Xxxx-X-Xxxx Dairies; X. Xxxxx Dairy; Huntsville Dairy; Oberlin Farms; U.C. Milk,
Xxxxx Farms and the Divested Companies' Subsidiaries.
"DAIRY RECEIVABLES" - the outstanding trade accounts receivable
(whether billed or unbilled) generated by the Dairy Operations conducted by
Burger Dairy, Xxxx-X-Xxxx Dairies and Huntsville Dairy.
"DAIRY RICH" - Dairy Rich, L.L.C., a Nevada limited liability company.
"DAMAGES" - as defined in Section 9.2.
"XXXX" - Xxxx Foods Company, a
Delaware corporation. ----
"XXXX DAIRY OPERATIONS" - the dairy and related product manufacturing,
processing and distribution operations conducted by Coburg Dairy; Cream X'Xxxxx;
U.C. Milk and X. Xxxxx Dairy.
"DISCLOSURE LETTER" - the disclosure letter executed by DFA, NDH, Suiza
and Holdings, as applicable, concurrently with the execution and delivery of the
Xxxx of Sale.
"DIVESTED COMPANIES" - Coburg Dairy; Cream X'Xxxxx; Xxxx-X-Xxxx
Dairies; X. Xxxxx Dairy; Huntsville Dairy; Oberlin Farms; U.C. Milk and Xxxxx
Farms.
"DIVESTED COMPANIES' SUBSIDIARIES" - Burger Dairy, C.O.W. Transport,
Modern Foods, and RGC.
"DFA" - Dairy Farmers of America, Inc., a Kansas cooperative marketing
association.
F-4
"DFA COMPANIES" - DFA, Dairy Rich and Mid-Am.
"DFA MATERIAL ADVERSE EFFECT" - any material adverse effect on the
business, properties, assets, condition (financial or otherwise), liabilities or
results of operations of the DFA Companies, taken as a whole, other than any
effects arising out of or resulting from changes affecting the economy or
financial conditions generally or the dairy industry generally.
"DFA'S ADVISORS" - as defined in Section 6.1.
"EBITDA" - means an amount equal to earnings before interest, income
taxes, depreciation and amortization, as calculated in accordance with U.S.
generally accepted accounting principles.
"ENCUMBRANCE" - any lien, mortgage, easement, servitude, right of way,
charge, pledge, security interest, escrow, proxy, right of first refusal,
preemptive right, title retention agreement, indenture or any other encumbrance,
restriction or limitation of any kind.
"ENVIRONMENT" - soil, land surface or subsurface strata, surface waters
(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), ground waters, drinking water supply, stream sediments, ambient air,
plant and animal life, and any other environmental medium.
"ENVIRONMENTAL LAW" - any Legal Requirement that relates to the
Environment.
"ERISA" - the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to that act or any
successor law.
"EXCLUDED ASSETS" - as defined in Exhibit A.
"EXCLUDED LIABILITIES" - any Liability other than the Dairy
Liabilities, including, without limitation, the Liabilities set forth on Exhibit
C.
"XXXX-X-XXXX DAIRIES" - Xxxx-X-Xxxx Dairies, LLC, a
Delaware limited
liability company.
"GOVERNMENTAL AUTHORIZATION" - any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" - any:
(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other
government;
(c) governmental or quasi-governmental authority of any nature; or
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(d) other body exercising any administrative, executive, judicial,
legislative, police, regulatory, or taxing authority or power.
"X. XXXXX DAIRY" - X. Xxxxx Dairy Company, a
Delaware corporation,
which will be converted to a
Delaware limited liability company prior to the
Closing.
"HAZARDOUS MATERIALS" - any waste or other substance that is listed,
defined, designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law.
"HOLDINGS" - Suiza Dairy Group Holdings, Inc., a Nevada corporation.
"HOLDINGS MATERIAL ADVERSE EFFECT" - any material adverse effect on the
business, properties, assets, condition (financial or otherwise), liabilities or
results of operations of Holdings and its subsidiaries, taken as a whole, other
than any effects arising out of or resulting from changes affecting the economy
or financial conditions generally or the dairy industry generally.
"HUNTSVILLE DAIRY" - Huntsville Dairy, LLC, a
Delaware limited
liability company.
"INDEMNIFIED PERSON" - any Person to be indemnified under Section 9.
"LEGAL REQUIREMENT" - any administrative order, constitution, law,
ordinance, principle of common law, regulation, rule or statute of any
Governmental Body, including without limitation all federal, state and local
laws related to Taxes, ERISA, Hazardous Materials and the Environment, zoning
and land use, occupational safety and health, product quality and safety,
employment and labor matters.
"LIABILITIES" - any direct or indirect debts, obligations or
liabilities of any nature, whether absolute, accrued, contingent, liquidated or
otherwise, and whether due or to become due, asserted or unasserted, known or
unknown.
"LIMITED PARTNERSHIP AGREEMENT" - The Second Amended and Restated
Limited Partnership Agreement of SDG, as amended.
"MID-AM" - Mid-Am Capital, L.L.C., a Delaware limited liability
company.
"MODERN FOODS" - Modern Foods, LLC, a Kentucky limited liability
company.
"NDH" - National Dairy Holdings, LP, a Delaware limited partnership, to
whom DFA and Dairy Rich are assigning certain of their rights under this
Agreement, including, among others, the right to receive the transfer and
conveyance of the Divested Companies and the Dairy Receivables.
"NOTE"- as defined in Section 2.2(a).
"OBERLIN FARMS" - Oberlin Farms Dairy, LLC, a Delaware limited
liability company.
F-6
"ORDER" - any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS" - an action taken by a Person will be
deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such Person
and is taken in the ordinary course of the normal day-to-day operations of such
Person; and
(b) such action is not required to be authorized by the board of
directors of such Person (or by any Person or group of Persons exercising
similar authority).
"ORIGINAL AGREEMENT" - the
Securities Purchase Agreement dated as of
April 4, 2001, as amended on September 19, 2001.
"PERMITTED ENCUMBRANCE" - as to any Person (i) liens for current Taxes
not yet due or payable and liens for Taxes being contested in good faith, as to
which appropriate reserves have been established by such Person; (ii) liens for
obligations not yet due that arise as a matter of law in the Ordinary Course of
Business of such Person that would not prevent NDH (as assignee of DFA and Dairy
Rich) from obtaining full title insurance over any general or standard
exception; (iii) zoning or planning restrictions or regulations imposed by any
Governmental Body, non-utility easements, Government Authorizations, restrictive
covenants of record, encroachments and other minor restrictions or limitations
on the use of any real property or minor imperfections of title on real
property, which in the case of any matter contained in this item (iii) does not
render title unmarketable (or defeasible, as the case may be, depending upon the
state in which the property is located) or adversely affect the present use or
value (as either are reasonably agreed to by the parties) of such real property;
(iv) Encumbrances disclosed in Section 1 of the Disclosure Letter as reasonably
agreed to by the parties; and (v) public utility easements that do not lie
beneath any buildings located on such real property and which do not render
title unmarketable (or defeasible, as the case may be, depending upon the state
in which the property is located) or adversely affect the present use or value
(as either are reasonably agreed to by the parties) of such real property.
Survey Defects shall not be a Permitted Encumbrance.
"PERSON" - any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
cooperative marketing association, joint venture, estate, trust, association or
other entity.
"PROCEEDING" - any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, any Governmental
Body or arbitrator.
"PURCHASE PRICE" - as defined in Section 2.2.
"REPRESENTATIVE" - with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
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"RGC" - RGC, LLC, a Delaware limited liability company.
"SDG" - Suiza Dairy Group, L.P., a Delaware limited partnership.
"SDG COMMON INTERESTS" - as defined in Section 2.1.
"SDG PREFERRED INTERESTS" - as defined in Section 2.1.
"SUIZA" - Suiza Foods Corporation, a Delaware corporation.
"SUIZA COMPANIES" - Burger Dairy; Xxxx-X-Xxxx Dairies; Huntsville
Dairy; Oberlin Farms and Xxxxx Farms.
"SUIZA COMPANIES MATERIAL ADVERSE EFFECT" - any material adverse effect
on the business, properties, assets, condition (financial or otherwise),
liabilities or results of operations of the Suiza Companies, taken as a whole,
other than any effects arising out of or resulting from (a) changes affecting
the economy or financial conditions generally or the dairy industry generally,
(b) any material customer notifying any Suiza Company after June 30, 2001 that
such material customer intends to terminate or materially alter its relationship
with the applicable Suiza Company (including as a result of or relating to a
transaction involving such a material customer that occurs or is announced prior
to Closing) other than as a result of a dispute with, or that arises out of the
actions or activities of the applicable Suiza Company, or (c) any transaction
that was announced after June 30, 2001, or that occurs after June 30, 2001 (but
was not announced prior to June 30, 2001) involving any such material customer
which results or could result in such material customer terminating or
materially altering its relationship with the applicable Suiza Company, other
than a transaction in which the applicable Suiza Company or an Affiliate of
Suiza is a party and other than any such termination or alteration that arises
as a result of a dispute with, or out of the actions or activities of, the
applicable Suiza Company or an Affiliate of Suiza.
"SUIZA DAIRY OPERATIONS" - the dairy and related product manufacturing,
processing and distribution operations conducted by Burger Dairy; Xxxx-X-Xxxx
Dairies; Huntsville Dairy; Oberlin Farms and Xxxxx Farms.
"SUPPLY AMENDMENT" - as defined in Section 2.2(a).
"SURVEY" - as defined in Section 6.11(b).
"SURVEY DEFECT" - as defined in Section 6.11(c).
"TAXES" - all taxes, charges, fees, duties, levies or other
assessments, including, without limitation, income, gross receipts, net
proceeds, ad valorem, real and personal property (tangible and intangible),
sales, use, franchise, user, transfer, fuel, excess profits, occupational,
employees' income withholding, unemployment and Social Security taxes, which are
imposed by any Governmental Body.
"TERMINATION DATE" - as defined in Section 10.1(c).
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"TITLE COMPANY" - as defined in Section 6.11(a).
"TITLE POLICY" - as defined in Section 6.11(a).
"TRANSACTION MATERIAL ADVERSE EFFECT" - any material adverse effect on
the business, properties, assets, condition (financial or otherwise),
liabilities or results of operations of the Dairy Operations, taken as a whole,
other than any effects arising out of or resulting from (a) changes affecting
the economy or financial conditions generally or the dairy industry generally,
(b) any material customer notifying any of the Suiza Dairy Operations after June
30, 2001, or any of the Xxxx Dairy Operations after August 26, 2001 that such
material customer intends to terminate or materially alter its relationship with
such Dairy Operation (including as a result of or relating to a transaction
involving such a material customer that occurs or is announced prior to Closing)
other than as a result of a dispute with, or that arises out of the actions or
activities of, such Dairy Operation or an Affiliate of Suiza, or (c) any
transaction that is announced after June 30, 2001, or that occurs after June 30,
2001 (but was not announced prior to June 30, 2001), in the case of any Suiza
Dairy Operation, or that is announced after August 26, 2001 (but was not
announced prior to August 26, 2001), in the case of any Xxxx Dairy Operation,
involving any such material customer which results or could result in such
material customer terminating or materially altering its relationship with such
Dairy Operation, other than a transaction in which such Dairy Operation or an
Affiliate of Suiza or Xxxx is a party and other than any such termination or
alteration that arises as a result of a dispute with, or out of the actions or
activities of, such Dairy Operation or an Affiliate of Suiza or Xxxx.
"UNPERMITTED ENCUMBRANCES" - as defined in Section 6.11(c).
"U.C. MILK" - U.C. Milk Company, Inc., a Kentucky corporation.
"XXXXX FARMS" - Xxxxx Farms, LLC, a Delaware limited liability company.
"WORKING CAPITAL" - (i) the aggregate book value of the Current Assets,
minus (ii) the aggregate book value of Current Liabilities.
SECTION 2
SALE AND PURCHASE OF SECURITIES
2.1. SALE AND PURCHASE OF LIMITED PARTNER INTERESTS. On the terms and
subject to the conditions set forth in this Agreement, at the Closing, Holdings
will purchase (i) from Dairy Rich, its 33.8% common limited partner interests in
SDG (the "SDG COMMON INTERESTS"), which constitute all limited partner interests
in SDG owned, directly or indirectly, by DFA, and (ii) from Mid-Am, its $90
million stated amount of preferred limited partner interests in SDG (the "SDG
PREFERRED INTERESTS"), which constitute all limited partner interests in SDG
owned, directly or indirectly, by Mid-Am. The SDG Common Interests and the SDG
Preferred Interests will be conveyed to Holdings free and clear of any
Encumbrances, pursuant to assignment documents in form and substance reasonably
satisfactory to the parties hereto.
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2.2. PURCHASE PRICE.
(a) In exchange for the SDG Common Interests and the SDG
Preferred Interests, Holdings will (i) transfer, sell and convey all of
the outstanding equity interests in the Divested Companies and the
Dairy Receivables (with an aggregate fair value of $300,000,000)
directly to NDH, as assignee of DFA and Dairy Rich, (ii) pay an amount
equal to $145,396,111 million in cash to Dairy Rich, as assignee of
DFA, and Mid-Am (the "CLOSING DATE CASH Consideration"), in the
relative amounts designated by the DFA Companies as soon as practicable
prior to Closing, (iii) deliver a subordinated promissory note executed
by Suiza in the principal amount of $40,000,000 to Dairy Rich, as
assignee of DFA, in substantially the form of Exhibit D attached hereto
(the "NOTE"), and (iv) deliver a Fourth Amendment to Milk Supply
Agreement executed by Suiza, in substantially the form of Exhibit F
attached hereto (the "SUPPLY AMENDMENT"). Items (i), (ii), (iii) and
(iv) are collectively referred to as the "PURCHASE PRICE". The Divested
Companies will not assume or retain, as applicable, any Liabilities
other than the Dairy Liabilities and will not receive or retain, as
applicable, any of the Excluded Assets. The applicable Affiliate of
Holdings will retain the Excluded Liabilities and the Excluded Assets.
(b) Within sixty (60) days after the Closing, Holdings will
calculate the amount of the Actual Cash Consideration, and notify DFA
of such calculation. If DFA disputes the accuracy of Holdings'
calculation within thirty (30) days after receipt thereof, and the
parties are unable to settle such dispute within an additional fifteen
(15) days, then the dispute shall be submitted promptly to a nationally
known independent certified public accounting firm reasonably
acceptable to Holdings and DFA (the "ACCOUNTANT"), which will determine
the Actual Cash Consideration within twenty (20) days after such
submission. If DFA does not dispute the calculation within the thirty
(30) day period referenced above, then the calculation shall be
considered final and binding on DFA and Holdings. Holdings and DFA will
each pay one-half of the fees and expenses of the Accountant. Any
determination by the Accountant of the Actual Cash Consideration will
be final and binding upon Holdings and DFA.
(c) If the Actual Cash Consideration, as determined by
Holdings, by agreement between the parties or by the Accountant (as
provided in Section 2.2(b)) exceeds the Closing Date Cash
Consideration, then Holdings will pay to Dairy Rich the amount of such
excess in cash by wire transfer of immediately available funds (to an
account specified in writing by Dairy Rich) within five (5) days after
determination of the Actual Cash Consideration. If the Actual Cash
Consideration is less than the Closing Date Cash Consideration, then
Dairy Rich will pay to Holdings the amount of such shortfall in cash by
wire transfer of immediately available funds (to accounts specified in
writing by Holdings) within five (5) days after determination of the
Actual Working Capital. Any payment required pursuant to this paragraph
will be considered an adjustment to the Purchase Price.
2.3. CLOSING. The closing of the transactions contemplated hereby (the
"CLOSING") will take place at the offices of Xxxxxx & Xxxx, L.L.P. at 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx, at 10:00 a.m. (local time) on the third
business day following the satisfaction or waiver of
F-10
all conditions precedent set forth in Sections 7 and 8 or at such other time and
place as Holdings and DFA agree.
2.4. CLOSING OBLIGATIONS. At the Closing:
(a) Suiza, Holdings, DFA, Dairy Rich, Mid-Am and NDH will
execute and deliver the Xxxx of Sale (and the related certificates,
documents, instruments and agreements referenced therein) in
substantially the forms attached hereto as Exhibit E transferring (i)
the Divested Companies and the Dairy Receivables directly to NDH, as
assignee of DFA and Dairy Rich, (ii) the SDG Common Interests to
Holdings, and (iii) the SDG Preferred Interests to Holdings.
(b) Holdings will pay the Closing Date Cash Consideration by
wire transfer of immediately available funds to the appropriate party
or parties designated by the DFA Companies.
(c) Suiza will execute and deliver to Dairy Rich the Note,
substantially in the form attached hereto as Exhibit D.
(d) Suiza and DFA will execute and deliver the Supply
Amendment, substantially in the form attached hereto as Exhibit F.
(e) Suiza, Holdings, SDG, DFA and Mid-Am will execute and
deliver such other documents and agreements required under Sections 7
and 8, as applicable.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF DFA
DFA represents and warrants to Suiza and Holdings as follows:
3.1. ORGANIZATION AND GOOD STANDING. Each DFA Company is a cooperative
company or limited liability company duly organized, validly existing, and in
good standing under the laws of its state of formation, with full cooperative
company or limited liability company power and authority to conduct its business
as it is now being conducted. DFA owns 99.99% of the outstanding equity
interests in Dairy Rich, and Xxxx-X-Xxxx, Inc., a Kentucky agricultural
cooperative corporation, and wholly-owned subsidiary of DFA, owns .01% of the
outstanding equity interests in Dairy Rich.
3.2. AUTHORITY.
(a) This Agreement constitutes the legal, valid, and binding
obligation of each DFA Company, enforceable against each DFA Company in
accordance with its terms except to the extent that its enforceability
may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other laws relating or affecting creditors'
rights generally and by general equity principles.
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(b) Each DFA Company has the requisite cooperative company or
limited liability company right, power, authority, and capacity to
execute and deliver this Agreement and to perform its obligations under
this Agreement. The execution, delivery and performance of this
Agreement by each DFA Company have been duly authorized by all
necessary cooperative company or limited liability company action on
the part of each DFA Company and its owners.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF SUIZA AND HOLDINGS
Suiza and Holdings, jointly and severally, represent and warrant to DFA
as follows:
4.1. ORGANIZATION AND GOOD STANDING. Each of Suiza and Holdings is a
corporation duly organized, validly existing, and in good standing under the
laws of its state of formation, with full corporate power and authority to
conduct its business as it is now being conducted. Each of Suiza and Holdings is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each state or other jurisdiction in which the nature of the
activities conducted by it requires such qualification, except where such
failure to so qualify does not have a Holdings Material Adverse Effect.
4.2. AUTHORITY.
(a) This Agreement constitutes the legal, valid, and binding
obligation of each of Suiza and Holdings, enforceable against such
entities in accordance with its terms except to the extent that its
enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other laws relating
or affecting creditors' rights generally and by general equity
principles.
(b) Each of Suiza and Holdings has the requisite corporate
right, power, authority, and capacity to execute and deliver this
Agreement and to perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by each of Suiza
and Holdings have been duly authorized by all necessary corporate or
limited partnership action on the part of such entity and its owners.
4.3. MILK SUPPLY AGREEMENTS. Except as set forth on Schedule 4.3 and
except for milk supply agreements with DFA, neither Coburg Dairy, Cream X'Xxxxx,
X. Xxxxx Dairy nor Xxxxx Farms is a party to a supply agreement which has (a) a
term in excess of one (1) year or (b) a right of first offer or right of first
refusal with respect to the supply of raw milk.
4.4 DIVESTED COMPANIES. Except for the Excluded Assets, the Divested
Companies will own, lease or otherwise have the right to use, on the Closing
Date all of the assets used in the conduct of the Dairy Operations conducted by
Suiza or Xxxx at the following locations: (i) the Burger Dairy plant located in
New Paris, Indiana; (ii) the Coburg Dairy plant located in N. Charleston, South
Carolina and associated branches; (iii) the Cream X'Xxxxx plant located in Salt
Lake City, Utah and the associated branch; (iv) the Xxxx-X-Xxxx Dairies fluid
milk plants located in London, Kentucky and Bristol, Virginia, and associated
branches (including the distribution branch located in Morristown, Tennessee);
(v) the X. Xxxxx Dairy plant located in
X-00
Xxxxxxxxxx, Xxxx and the associated branch; (vi) the Huntsville Dairy Meadow
Gold fluid milk plant located in Huntsville, Alabama (to replace the fluid milk
plant of Xxxxxx Dairies, Inc. located in Birmingham, Alabama) and associated
branches; (vii) the Oberlin Farms - Dairymen's plant located in Cleveland, Ohio;
(viii) the U.C. Milk - Goldenrod plant located in Madisonville, Kentucky, and
associated branches; and (ix) the Xxxxx Farms plants located in Miami, Florida
and Winterhaven, Florida and associated branches. On the Closing Date,
Xxxx-X-Xxxx Dairies will own the Xxxx-X-Xxxx trademark, and therefore, the
ownership of this xxxx will be transferred to NDH (as the assignee of DFA) on
the Closing Date as a result of the transfer of the ownership of Xxxx-X-Xxxx
Dairies to NDH.
SECTION 5
COVENANTS OF DFA COMPANIES PRIOR TO CLOSING DATE
5.1. NOTIFICATION. Between the date of this Agreement and the Closing
Date, DFA and Mid-Am will promptly notify Holdings of the occurrence of any
material breach of any covenant of DFA or Mid-Am in this Section 5 or of the
occurrence of any event that may make the satisfaction of the conditions in
Section 7 impossible.
5.2. NO NEGOTIATION. Until such time, if any, as this Agreement is
terminated pursuant to Section 10, DFA and Mid-Am will not, and will cause their
Representatives not to, directly or indirectly solicit, initiate, or encourage
any inquiries or proposals from, discuss or negotiate with, provide any
non-public information to any Person (other than Suiza and its Affiliates or
Representatives and lenders of DFA and Mid-Am and their Representatives)
relating to any transaction involving the sale of the SDG Common Interests and
SDG Preferred Interests.
5.3. REASONABLE BEST EFFORTS. Between the date of this Agreement and
the Closing Date, each of DFA and Mid-Am will continue to use its reasonable
best efforts to cause the conditions in Sections 7 and 8 to be satisfied.
5.4. ASSISTANCE WITH PERMITS AND FILINGS. DFA and Mid-Am will furnish
Holdings with all information that is required for inclusion in any application
or filing to be made by Suiza or by Xxxx or their respective Affiliates to any
Governmental Body in connection with the transactions contemplated hereby. Each
of DFA and Mid-Am will use its reasonable best efforts to assist Suiza, Xxxx or
their respective Affiliates in obtaining any Governmental Authorizations, or any
Consents related thereto, that any of such parties will require in connection
with the transfer of the Dairy Operations, the Dairy Liabilities, the SDG Common
Interests and the SDG Preferred Interests.
5.5. CONFIDENTIALITY. DFA and Mid-Am will maintain in confidence, and
will cause their respective Representatives to maintain in confidence, any
non-public information furnished to them by Suiza, Xxxx or any their respective
Affiliates or Representatives in connection with this Agreement or the
transactions contemplated hereby.
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SECTION 6
COVENANTS OF HOLDINGS PRIOR TO CLOSING DATE
6.1. ACCESS AND INVESTIGATION. Following the date of this Agreement,
Holdings will continue to cause SDG to (a) afford DFA and its Representatives
and lenders and their Representatives (collectively, "DFA'S ADVISORS")
reasonable access during normal business hours to the personnel, properties,
contracts, books and records, and other documents and data relating to the Suiza
Dairy Operations, and will use its reasonable best efforts to cause Xxxx to
afford DFA and DFA's Advisors reasonable access during normal business hours to
the personnel, properties, contracts, books and records and other documents and
data relating to the Xxxx Dairy Operations, (b) furnish DFA and DFA's Advisors
with such additional financial, operating and other data and information with
respect to the Suiza Dairy Operations as DFA may reasonably request, and use its
reasonable best efforts to cause Xxxx to furnish DFA and DFA's Advisors with
such additional financial, operating and other data and information with respect
to the Xxxx Dairy Operations as DFA may reasonably request and (c) furnish DFA
and DFA's Advisors with copies of all such contracts, books and records, and
other existing documents and data with respect to the Suiza Diary Operations as
DFA may reasonably request, and use its reasonable best efforts to cause Xxxx to
furnish DFA and DFA's Advisors with copies of all such contracts, books and
records, and other existing documents and data with respect to the Xxxx Dairy
Operations as DFA may reasonably request.
6.2. OPERATION OF THE BUSINESS OF THE SUIZA COMPANIES. Between the date
of this Agreement and the Closing Date, Holdings will continue to cause each of
the Suiza Companies to:
(a) conduct its business only in the Ordinary Course of
Business;
(b) use its commercially reasonable efforts to maintain its
relations and goodwill with suppliers, customers, landlords, creditors,
employees, agents, and others having business relationships with it;
and
(c) otherwise report periodically to DFA concerning the status
of its business, operations and finances as may be reasonably requested
by DFA.
6.3. NEGATIVE COVENANT. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, neither
Suiza nor Holdings will, without the prior consent of DFA, take any affirmative
action, or fail to take any reasonable action within their or its control, as a
result of which a Suiza Companies Material Adverse Effect will occur.
6.4. NOTIFICATION. Between the date of this Agreement and the Closing
Date, Holdings will promptly notify DFA of the occurrence of any material breach
of any covenant in this Section 6 or of the occurrence of any event that may
make the satisfaction of the conditions in Section 8 impossible.
6.5. NO NEGOTIATION. Until such time, if any, as this Agreement is
terminated pursuant to Section 10, neither Suiza nor Holdings will, and will
cause their Representatives not to,
F-14
directly or indirectly solicit, initiate, or encourage any inquiries or
proposals from, discuss or negotiate with, provide any non-public information to
any Person (other than DFA and DFA's Advisors) relating to any transaction
involving the sale of the Suiza Companies (other than in the Ordinary Course of
Business) or any merger, consolidation, business combination, or similar
transaction involving the Suiza Companies.
6.6. REASONABLE BEST EFFORTS. Between the date of this Agreement and
the Closing Date, each of Suiza and Holdings will continue to use its reasonable
best efforts to cause the conditions in Sections 7 and 8 to be satisfied.
6.7. ASSISTANCE WITH PERMITS AND FILINGS. Each of Suiza and Holdings
will furnish DFA or Mid-Am, as applicable, with all information that is required
for inclusion in any application or filing to be made by DFA or their Affiliates
to any Governmental Body in connection with the transactions contemplated
hereby. Each of Suiza and Holdings will use its reasonable best efforts to
assist DFA or Mid-Am, as applicable, in obtaining any Governmental
Authorizations, or any Consents related thereto, that DFA or Mid-Am, as
applicable, will require in connection with the transactions contemplated
hereby.
6.8. CONFIDENTIALITY. Each of Suiza and Holdings will maintain in
confidence, and will cause their respective Representatives to maintain in
confidence, any non-public information furnished to them by either DFA or Mid-Am
in connection with this Agreement or the transactions contemplated hereby.
6.9. INTENTIONALLY LEFT BLANK.
6.10. DELIVERY OF DISCLOSURE LETTER FOR XXXX OF SALE. Holdings will
deliver a draft of the Disclosure Letter related to the Xxxx of Sale as soon as
practicable prior to the Closing. Items listed on the Disclosure Letter shall be
subject to the reasonable approval of DFA. Without limiting the foregoing, Suiza
and Holdings and each DFA Company hereby acknowledge that the matters set forth
on the Disclosure Letter to be delivered under the Xxxx of Sale shall not be
deemed to expand the definition of Dairy Liabilities, except as otherwise
specifically agreed in writing by DFA.
6.11. TITLE POLICIES AND SURVEYS.
(a) Holdings shall cause to be delivered to DFA commitments
(each, a "COMMITMENT") issued by a title company reasonably acceptable
to DFA (the "TITLE COMPANY") for the issuance of ALTA (or state
equivalent) Owner's Policies of Title Insurance for each parcel of real
property used in the Dairy Operations (each, a "TITLE Policy"), each in
an amount not to exceed the fair market value of each such parcel, as
soon as practicable prior to the Closing. Each Commitment shall show
fee simple title to the applicable parcel vested in the applicable
Suiza Affiliate, Xxxx Affiliate or the applicable landlord, as the case
may be, subject in each case only to the Permitted Encumbrances. Unless
the issuance of same is generally legally prohibited by the insurance
regulatory agency of the state in which the real property is located,
each Title Policy to be issued by the Title Company shall have all
standard and general exceptions deleted so as to afford full "extended
form coverage" and shall contain tax parcel, zoning
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with parking, non-imputation, access, survey, utility facility, owner's
comprehensive, contiguity (if applicable), deletion of creditors'
rights exception, and such other endorsements as may be reasonably
requested by DFA in order to insure over an Unpermitted Encumbrance or
Survey Defect. At the Closing, Holdings shall deliver or cause to be
delivered such affidavits or other instruments as the Title Company may
reasonably require to delete standard and general exceptions and to
provide the special endorsements required hereunder. Unless the
issuance of same is generally legally prohibited by the insurance
regulatory agency of the state in which the real property is located,
Holdings shall cause the Commitments to be later-dated to cover the
Closing and cause the Title Company to delete all Schedule B
requirements and all standard exceptions in the Commitments at the
Closing as directed by DFA. Notwithstanding anything to the contrary
contained in this Agreement, Holdings shall pay or cause to be paid the
entire premium for each Title Policy at the Closing.
(b) Holdings, at its sole cost and expense, shall deliver to
DFA and the Title Company, as soon as practicable prior to the Closing,
an as-built survey for each parcel of real property used in the Dairy
Operations (each, a "SURVEY") prepared by a registered land surveyor or
engineer, licensed in the state in which the applicable parcel is
located, dated on or after April 4, 2001, certified to DFA, DFA's
lender, DFA's counsel, the Title Company, and such other entities as
DFA may designate in writing to Holdings, and in accordance with the
Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys,
jointly established and adopted by ALTA, ACSM and NSPS in 1999, and
including such Table A Items as are reasonably required by DFA's lender
or, if there is no such lender, as is customary (as reasonably agreed
to by the parties) in the state in which the real property is located,
and pursuant to the Accuracy Standards (as adopted by ALTA, NSPS and
ACSM and in effect on the date of certification) such that the survey
measurements are made in accordance with the Minimum Angle, Distance
and Closure Requirements for Survey Measurements Which Control Land
Boundaries for ALTA/ACSM Land Title Surveys, sufficient to cause the
Title Company to delete the standard printed survey exception.
(c) If (i) any Commitment discloses a title exception other
than a Permitted Encumbrance (an "UNPERMITTED ENCUMBRANCE") or (ii) any
Survey discloses any encroachment, overlap, boundary dispute, gap or
any other matter which renders title to any parcel of real property
used in the Dairy Operations unmarketable (or defeasible, as the case
may be, depending on the state in which the property is located) or
reflects that any utility service to the improvements or access thereto
from the public right-of-way does not lie wholly within any such
parcel, or within an easement for the benefit of any such parcel, or
reflects any other matter adversely affecting the present use or value
(as either are reasonably agreed to by the parties) of any such parcel
(any of the foregoing, a "SURVEY DEFECT"), then Holdings, at its sole
cost and expense, prior to the Closing, shall use its reasonable best
efforts to cause all Unpermitted Encumbrances to be removed from the
applicable Commitment(s) and/or all Survey Defects eliminated or, if
not reasonably practicable to be removed or eliminated, insured over by
an appropriate title insurance endorsement, all in a manner reasonably
satisfactory to DFA.
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(d) If, due to an Unpermitted Encumbrance or Survey Defect,
the present use or value of the real property is adversely affected (as
either are reasonably determined by the parties), Suiza and Holdings
shall indemnify DFA in accordance with Section 9 hereof against Damages
(as defined in Section 9.2).
(e) The parties agree that required governmental notices will
be supplemented as such parties learn the identity and location of such
properties. To the extent any real property is located in the State of
Florida and as required by applicable Florida statute, Holdings hereby
discloses to DFA the following: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are
exposed to it over time. Levels of radon that exceed federal and state
guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your
county public health unit.
6.12. TRANSFER TAXES. Holdings will pay, or will cause to be paid, the
transfer taxes related to the transfer of the Dairy Operations and the Divested
Companies, including, without limitation, all transfer taxes related to any
reorganization of the Divested Companies prior to and in anticipation of the
Closing.
6.13. DAIRY LIABILITIES. In no event shall any milk supply agreement,
other than those listed on Schedule 4.3, which has (a) a term in excess of one
(1) year or (b) a right of first offer or right of first refusal with respect to
the supply of raw milk, constitute a Dairy Liability.
SECTION 7
CONDITIONS PRECEDENT TO HOLDINGS' OBLIGATION TO CLOSE
The obligation of each of Suiza and Holdings to complete the
transactions contemplated hereby and take the other actions required to be taken
by them at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by
Holdings, in whole or in part):
7.1. ACCURACY OF REPRESENTATIONS. All of DFA's representations and
warranties in this Agreement must have been accurate in all material respects
(if not qualified by materiality) or in all respects (if qualified by
materiality) as of the date of this Agreement and must, along with the
representations and warranties of DFA and NDH in the Xxxx of Sale, be accurate
in all material respects (if not qualified by materiality) or in all respects
(if qualified by materiality) as of the Closing Date as if made on the Closing
Date, except where the failure of any representation and warranty to be accurate
would not reasonably be expected to have a Holdings Material Adverse Effect.
7.2. DFA'S OR MID-AM'S PERFORMANCE.
(a) All of the covenants and obligations that any DFA Company
is required to perform or to comply with pursuant to this Agreement at
or prior to the Closing must
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have been duly performed and complied with in all material respects,
except where the failure to perform or comply with any covenant or
obligation would not reasonably be expected to have a Holdings Material
Adverse Effect.
(b) Each document required to be delivered by any DFA Company
pursuant to Section 2.4 and under the Xxxx of Sale must have been
delivered.
7.3. CONSENTS. Any Consents that Suiza, Holdings, any DFA Company or
any Divested Company may be required to obtain to consummate the transactions
contemplated hereby must have been obtained and must be in full force and
effect, except where the failure to obtain such Consent would not result in a
Holdings Material Adverse Effect or Suiza Companies Material Adverse Effect.
7.4. NO PROCEEDINGS. Since April 4, 2001, there must not have been
commenced or threatened against Suiza or Holdings, or against any Affiliate of
Suiza or Holdings, any Proceeding (a) involving any challenge to, or seeking
damages or other relief in connection with, any of the transactions contemplated
hereby, or (b) that may have the effect of preventing or making illegal any of
the transactions contemplated hereby.
7.5. NO PROHIBITION. Neither the consummation nor the performance of
any of the transactions contemplated hereby will, directly or indirectly (with
or without notice or lapse of time) result in a material violation of any
applicable Legal Requirement or Order that would cause Suiza or any of its
Affiliates to suffer any material adverse effect.
7.6. CLOSING CERTIFICATE. Each DFA Company shall have delivered to
Holdings a closing certificate, substantially in the form agreed to by Holdings
and DFA.
7.7. ACQUISITION OF XXXX. All conditions to the acquisition by Suiza or
one of its Affiliates of Xxxx (other than consummation of the transactions
contemplated hereby) shall have been satisfied or waived, and the consummation
of such acquisition shall occur at substantially the same time as the Closing.
SECTION 8
CONDITIONS PRECEDENT TO DFA'S OBLIGATION TO CLOSE
The obligation of the DFA Companies to complete the transactions
contemplated hereby and take the other actions required to be taken by them at
the Closing is subject to the satisfaction, at or prior to the Closing, of each
of the following conditions (any of which may be waived by DFA, in whole or in
part).
8.1. ACCURACY OF REPRESENTATIONS. All of the representations and
warranties of Suiza and Holdings in this Agreement must have been accurate in
all material respects (if not qualified by materiality) or in all respects (if
qualified by materiality) as of the date of this Agreement and must, along with
the representations and warranties of Suiza and Holdings and NDH in the Xxxx of
Sale, be accurate in all material respects (if not qualified by materiality) or
in all respects (if qualified by materiality) as of the Closing Date as if made
on the Closing Date, except where the failure of any representation and warranty
to be accurate would not reasonably be expected to
F-18
have a DFA Material Adverse Effect or a Transaction Material Adverse Effect.
Notwithstanding the foregoing, the failure of the representation and warranty
contained in Section 4.3 to be accurate as of the date hereof or on the Closing
Date shall not be the basis for or cause the condition set forth in this Section
8.1 to fail to be satisfied. If the representation and warranty contained in
Section 4.3 fails to be accurate on the date hereof or on the Closing Date, DFA
(assuming the other conditions precedent to DFA's obligation to Close have
either been satisfied or waived as of the Closing Date) will not be permitted to
terminate this Agreement and will not be released from its obligations to Close
the transactions contemplated hereby. Nothing in this Section 8.1 shall limit
DFA's right to be indemnified in respect of a breach of the representation and
warranty contained in Section 4.3, as provided in Section 9 of the Agreement.
8.2. PERFORMANCE.
(a) All of the covenants and obligations that any of Suiza or
Holdings is required to perform or to comply with pursuant to this
Agreement at or prior to the Closing must have been duly performed and
complied with in all material respects, except where the failure to
perform or comply with any covenant or obligation would not reasonably
be expected to have a DFA Material Adverse Effect or a Transaction
Material Adverse Effect.
(b) Each document required to be delivered by any of Suiza or
Xxxx or any of their respective Affiliates pursuant to Section 2.4 and
under the Xxxx of Sale must have been delivered.
8.3. ABSENCE OF MATERIAL ADVERSE EFFECTS. Since June 30, 2001, in the
case of the Suiza Dairy Operations, and August 26, 2001, in the case of the Xxxx
Dairy Operations, no Transaction Material Adverse Effect shall have occurred
that is continuing.
8.4. CONSENTS. Any Consents that any DFA Company, Suiza, Holdings or
any Divested Company may be required to obtain to consummate the transactions
contemplated hereby must have been obtained and must be in full force and
effect, except where the failure to obtain such Consent would not result in a
DFA Material Adverse Effect or a Transaction Material Adverse Effect.
8.5. NO PROCEEDINGS. Since April 4, 2001, there must not have been
commenced or threatened against any DFA Company, or against any Affiliate of any
DFA Company, any Proceeding (a) involving any challenge to, or seeking damages
or other relief in connection with, any of the transactions contemplated hereby,
or (b) that may have the effect of preventing or making illegal any of the
transactions contemplated hereby.
8.6. NO PROHIBITION. Neither the consummation nor the performance of
any of the transactions contemplated hereby will, directly or indirectly (with
or without notice or lapse of time) result in a material violation of any
applicable Legal Requirement or Order that would cause any DFA Company or any
Affiliate of any DFA Company or any Divested Company to suffer any material
adverse effect.
8.7. CLOSING CERTIFICATES. Holdings shall have delivered to DFA a
closing certificate, substantially in the form agreed to by Holdings and DFA.
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8.8. ACQUISITION OF XXXX. All conditions to the acquisition by Suiza or
one of its Affiliates of Xxxx (other than consummation of the transactions
contemplated hereby) shall have been satisfied or waived, and the consummation
of such acquisition shall occur at substantially the same time as the Closing.
SECTION 9
INDEMNIFICATION; REMEDIES
9.1. REPRESENTATIONS; SURVIVAL. Except for the express representations
and warranties contained in Section 3 and Section 4 of this Agreement, contained
in Section 3 and Section 4 of the Xxxx of Sale, or contained in any certificate
or any conveyance, assignment or assumption document delivered pursuant to this
Agreement or the Xxxx of Sale, none of the parties to this Agreement are making
any representation or warranty whatsoever, express or implied, including but not
limited to any implied warranty or representation as to condition,
merchantability or suitability, as to any of the Dairy Operations or the
Divested Companies. It is understood that, except as otherwise specified in this
Agreement or in the Xxxx of Sale and except to the extent included within or
incorporated into any Disclosure Letter, any cost estimates, projections or
other predictions, any data, any financial information or any memoranda or
offering materials or presentations provided or addressed to any party to this
Agreement or any other Person are not and shall not be deemed to be or to
include representations or warranties of any party to this Agreement or the Xxxx
of Sale or any certificate or conveyance, assignment or assumption document
delivered pursuant to this Agreement or the Xxxx of Sale. Except as otherwise
provided in this Section 9.1, all representations and warranties in this
Agreement and the Xxxx of Sale and any certificate or conveyance, assignment or
assumption document delivered pursuant to this Agreement or the Xxxx of Sale
will terminate eighteen months after the Closing; provided, however, that (a)
the representations and warranties set forth in Section 4.3 of this Agreement
will survive for a period of five years after the Closing, (b) the
representations and warranties set forth in Sections 4.1(c)(i), 4.1(c)(iii) and
4.1(c)(iv) of the Xxxx of Sale will survive until the expiration of the
applicable statute of limitations for any such violation, breach or other matter
that is the subject of such representations and warranties, (c) if any breach of
the representations and warranties set forth herein, or in Sections 3.1, 4.1,
4.7, 4.9, 4.10, 4.11, 4.15 or 5.1 of the Xxxx of Sale is based on a violation of
any Legal Requirement, then such representations and warranties and any claim
for indemnification applicable to such a violation shall survive for the longer
of eighteen months from the Closing Date and the applicable statute of
limitation with respect thereto; and (d) with respect to the representations and
warranties set forth in Sections 3.2, 4.4, 4.5(b) and 4.5(e) of the Xxxx of
Sale, such representations and warranties and any claim for indemnification with
respect thereto shall survive indefinitely. Notwithstanding the foregoing, any
claim for indemnification that is asserted by notice as provided in Sections 9.5
and 9.6 within the applicable survival period shall survive until resolved by
the parties or pursuant to a final non-appealable judicial determination. The
representations and warranties contained in this Agreement and in the Xxxx of
Sale and any certificate or conveyance, assignment or assumption document
delivered pursuant to this Agreement or the Xxxx of Sale shall not be affected
by any investigation, verification or examination by any party hereto or by
anyone on behalf of any such party. All covenants and agreements contained in
this Agreement, in the Xxxx of Sale or in any certificate or conveyance,
assignment or assumption document delivered pursuant to this Agreement or the
Xxxx of Sale shall be deemed to have been
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relied upon by the parties hereto and shall survive the Closing until fully
performed. Without limiting the foregoing, the obligation of Suiza and Holdings
to indemnify DFA and its Affiliates from and against the Excluded Liabilities,
and the obligation of DFA to indemnify Suiza and its Affiliates from and against
the Dairy Liabilities, shall each survive indefinitely. All representations and
warranties set forth herein and in the Xxxx of Sale and any certificate or
conveyance, assignment or assumption document delivered pursuant to this
Agreement or the Xxxx of Sale shall be deemed to have been relied upon by the
parties hereto and to the Xxxx of Sale.
9.2. INDEMNIFICATION AND PAYMENT OF DAMAGES BY SUIZA AND HOLDINGS.
Notwithstanding any investigation by DFA or its Representatives, Suiza and
Holdings, jointly and severally, will indemnify, defend and hold harmless DFA,
its Affiliates and their respective directors, officers, employees and agents
for, and will pay to such party the amount of, any loss, liability, claim,
damage (including incidental and consequential damages), expense (including
costs of investigation and defense and reasonable attorneys' fees) or diminution
of value, whether or not involving a third-party claim (collectively,
"DAMAGES"), arising, directly or indirectly, from or in connection with:
(a) any breach of any representation or warranty made by Suiza
and Holdings in this Agreement, or by Suiza and Holdings in the Xxxx of
Sale or in any certificate or conveyance, assignment or assumption
document delivered by Suiza or Holdings pursuant to this Agreement or
the Xxxx of Sale that survives the Closing in accordance with Section
9.1 or any allegation by a third party that, if true, would constitute
such a breach; provided that any claim for indemnification pursuant to
this subparagraph (a) is made within the time period specified in
Section 9.1 for the survival of the applicable representation or
warranty that has been breached or is the subject of the third party
claim; provided further, that for purposes of determining any such
breach, any materiality qualifiers appearing in such representations
and warranties will not be given effect;
(b) any Excluded Liability;
(c) any breach by Suiza or Holdings or any of their Affiliates
of any covenant or obligation of such Person in this Agreement or the
Xxxx of Sale;
(c) any Unpermitted Encumbrances or Survey Defects, as
contemplated in Section 6.11(d); or
(d) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such Person with Suiza
or Holdings (or any Person acting on their behalf) in connection with
any of the transactions contemplated hereby.
9.3. INDEMNIFICATION AND PAYMENT OF DAMAGES BY DFA. Notwithstanding any
investigation by Suiza or its Representatives, DFA will indemnify, defend and
hold harmless Suiza and Holdings, their respective Affiliates and their
respective directors, officers, employees and agents for, and will pay to such
party the amount of, any Damages, arising, directly or indirectly, from or in
connection with:
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(a) any breach of any representation or warranty made by DFA
in this Agreement or in the Xxxx of Sale or in any certificate or
conveyance, assignment or assumption document delivered by any DFA
Company pursuant to this Agreement or the Xxxx of Sale that survives
the Closing in accordance with Section 9.1 or any allegation by a third
party that, if true, would constitute such a breach; provided that any
claim for indemnification pursuant to this subparagraph (a) is made
within the time period specified in Section 9.1 for the survival of the
applicable representation or warranty that has been breached or is the
subject of the third party claim; provided further, that for purposes
of determining any such breach, any materiality qualifiers appearing in
such representations and warranties will not be given effect;
(b) any Dairy Liability;
(c) any breach by any DFA Company of any covenant or
obligation of such Person in this Agreement or the Xxxx of Sale; or
(d) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or
understanding alleged to have been made by any such Person with any DFA
Company (or any Person acting on their behalf) in connection with any
of the transactions contemplated hereby.
9.4. LIMITATIONS ON AMOUNT.
(a) In determining the amount of Damages for which an
Indemnified Person is entitled to indemnification under Section 9.2 or
Section 9.3, any insurance proceeds or tax benefits that are realized
or that could reasonably be expected to be realized by such Indemnified
Person (if a claim were properly pursued under the relevant insurance
arrangements or Legal Requirements), as well as any costs associated
with obtaining such insurance proceeds or tax benefits, will be
considered.
(b) DFA will be entitled to indemnification from Suiza and
Holdings under paragraph (a) of Section 9.2 only to the extent that the
aggregate amount of indemnifiable Damages incurred by DFA under such
clause exceeds $1,000,000.
(c) Suiza and Holdings will be entitled to indemnification
from DFA under paragraph (a) of Section 9.3 only to the extent and in
the amount that the aggregate amount of indemnifiable Damages incurred
by Suiza and Holdings under such clause exceeds $1,000,000.
(d) The maximum amount to which (i) DFA will be entitled to
indemnification under paragraph (a) of Section 9.2, and (ii) Suiza and
Holdings will be entitled to indemnification under paragraph (a) of
Section 9.3, is limited to $10,000,000 for each such clause (i) and
(ii) of this Section 9.4(d).
(e) Notwithstanding the foregoing, the limitations set forth
in Section 9.4(b), (c) and (d) will not apply to Damages arising from
or in connection with a breach or alleged breach of (i) the
representations and warranties of DFA set forth in Section 3.2 of this
Agreement and Sections 3.1(a), 3.1(b) and 3.2 of the Xxxx of Sale, (ii)
the
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representations and warranties of Suiza and Holdings set forth in
Sections 4.2 and 4.3 of this Agreement and Sections 4.1(a) and 4.1(b)
of the Xxxx of Sale, (iii) the representations and warranties of Suiza
and Holdings set forth in Sections 4.4, 4.5(b) and 4.5(e) of the Xxxx
of Sale, (iv) the covenants and agreements of the parties in this
Agreement or in the Xxxx of Sale, including, without limitation, those
concerning the Dairy Liabilities or the Excluded Liabilities or the
covenants and agreements set forth in Section 6.11(d), or (v) the
representations and warranties of NDH set forth in Sections 5.1(a) and
5.1(b) of the Xxxx of Sale.
9.5. PROCEDURE FOR INDEMNIFICATION - THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person under
Section 9.2 or 9.3 of notice of the commencement of any Proceeding
against it, such Indemnified Person will, if a claim is to be made
against an indemnifying party under such Section, give notice to the
indemnifying party of the commencement of such claim, but the failure
to notify the indemnifying party will not relieve the indemnifying
party of any liability that it may have to any Indemnified Person,
except to the extent that the indemnifying party demonstrates that the
defense of such action is prejudiced by the Indemnified Person's
failure to give such notice.
(b) If any Proceeding referred to in Section 9.5(a) is brought
against an Indemnified Person and it gives notice to the indemnifying
party of the commencement of such Proceeding, the indemnifying party
will, to the extent that it wishes (unless (i) the indemnifying party
is also a party to such Proceeding and the Indemnified Person
determines in good faith that joint representation would be
inappropriate, or (ii) the indemnifying party fails to provide
reasonable assurance to the Indemnified Person of its financial
capacity to defend such Proceeding and provide indemnification with
respect to such Proceeding), assume the defense of such Proceeding with
counsel satisfactory to the Indemnified Person and, after notice from
the indemnifying party to the Indemnified Person of its election to
assume the defense of such Proceeding and an acknowledgment of its
indemnification obligation with respect thereto, the indemnifying party
will not, as long as it diligently conducts such defense, be liable to
the Indemnified Person under this Section 9 for any fees of other
counsel or any other expenses with respect to the defense of such
Proceeding, in each case subsequently incurred by the Indemnified
Person in connection with the defense of such Proceeding, other than
reasonable costs of investigation. If the indemnifying party assumes
the defense of a Proceeding in accordance with the preceding sentence,
(i) no compromise or settlement of such claims may be effected by the
indemnifying party without the Indemnified Person's consent unless (A)
there is no finding or admission of any violation of Legal Requirements
or any violation of the rights of any Person and no effect on any other
claims that may be made against the Indemnified Person, and (B) the
sole relief provided is monetary damages that are paid in full by the
indemnifying party and (ii) the Indemnified Person will have no
liability with respect to any compromise or settlement of such claims
effected without its consent. If notice is given to an indemnifying
party of the commencement of any Proceeding and the indemnifying party
does not, within ten days after the Indemnified Person's notice is
given, give notice to the Indemnified Person of its election to assume
the defense of such Proceeding, the indemnifying party will be bound by
any
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determination made in such Proceeding or any compromise or settlement
reasonably effected by the Indemnified Person prior to notification by
the indemnifying party, after such ten day period, if any, of its
election to assume the defense thereof.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a
Proceeding may adversely affect it or its Affiliates other than as a
result of monetary damages for which it would be entitled to
indemnification under this Agreement, the Indemnified Person may, by
notice to the indemnifying party, assume the exclusive right to defend,
compromise, or settle such Proceeding (at the expense of the
indemnifying party), but the indemnifying party will not be bound by
any determination of a Proceeding so defended or any compromise or
settlement effected without its consent (which may not be unreasonably
withheld).
9.6. PROCEDURE FOR INDEMNIFICATION - OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim may be asserted
by notice to the party from whom indemnification is sought.
9.7. MITIGATION. Upon and after becoming aware of any event that could
reasonably be expected to give rise to any Damages that are indemnifiable under
this Section 9, the Indemnified Person shall make reasonable efforts to mitigate
such Damages.
9.8. EXCLUSIVE MONETARY REMEDY. The parties acknowledge and agree that,
upon and following the Closing, the indemnification rights provided in this
Section 9 shall be the sole and exclusive remedy for monetary damages available
to the parties for any claim or cause of action arising out of any breach of
this Agreement and the Xxxx of Sale.
SECTION 10
TERMINATION
10.1. TERMINATION EVENTS. This Agreement may, by notice given prior to
or at the Closing, be terminated:
(a) by Holdings if satisfaction of a condition in Section 7
has not been fulfilled prior to the Termination Date (other than
through the failure of any of Suiza or Holdings to comply with its
obligations under this Agreement) and Holdings has not waived such
condition on or before the Termination Date or (ii) by DFA, if
satisfaction of a condition in Section 8 has not been fulfilled prior
to the Termination Date (other than through the failure of any DFA
Company to comply with its respective obligations under this Agreement)
and DFA has not waived such condition on or before the Termination
Date;
(b) by mutual consent of Holdings and DFA; or
(c) by either Holdings or DFA if the Closing has not occurred
(other than through the failure of any party seeking to terminate this
Agreement or its affiliates to comply fully with its obligations under
this Agreement) on or before the termination date identified in the
Agreement and Plan of Merger between Suiza and Xxxx dated as of
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April 4, 2001 as amended, (the "TERMINATION DATE") or such later date
as the parties may agree upon.
10.2. EFFECT OF TERMINATION. Each party's right of termination under
Section 10.1 is in addition to any other rights it may have under this Agreement
or otherwise, and the exercise of a right of termination will not be an election
of remedies. If this Agreement is terminated pursuant to Section 10.1, all
further obligations of the parties under this Agreement will terminate and no
party will have any liability or obligation (for reimbursement of expenses or
otherwise) to any other party, except that the obligations in Sections 5.5 and
6.8 will survive and except that each party will remain liable to the other
parties for any breach of this Agreement by such party occurring prior to such
termination and all legal remedies of the other parties in respect of any such
breach will survive such termination unimpaired.
SECTION 11
OTHER AGREEMENTS
11.1. LIMITED PARTNERSHIP AGREEMENT.
(a) Except as otherwise provided in Section 11.1(b), effective
as of the Closing, (i) the Limited Partnership Agreement shall be
terminated and no party thereto shall have any continuing liability or
obligation thereunder, and (ii) each party thereto fully and completely
releases and forever discharges each other and all other parties to the
Limited Partnership Agreement, and the officers, directors, agents,
successors and assigns of such parties from any liability, obligation
or claim under the Limited Partnership Agreement, whether known or
unknown and whether arising in contract or in tort.
(b) Notwithstanding the foregoing, the provisions of sections
4.4(b), 4.4(c), 7.10, 7.11 and articles V, VI, IX, X and, to the extent
applicable in interpreting and enforcing the foregoing provisions,
article XIV of the Limited Partnership Agreement shall survive the
Closing in accordance with their respective terms, for the sole purpose
of indemnification and determining profit and loss and related taxes
and allocations for the period from and including January 1, 2001
through the Closing.
11.2. WARN ACT. Holdings shall comply, or shall cause the applicable
Affiliate of Holdings to comply, with all requirements of the Worker Adjustment
and Retraining Notification Act, as amended, with respect to the sale of the
Divested Companies and shall make all required disclosure and give all required
notices thereunder to Governmental Bodies and the affected employees who are
employed on the day of and immediately prior to the Closing Date.
SECTION 12
GENERAL PROVISIONS
12.1. PUBLIC ANNOUNCEMENTS. So long as this Agreement is in effect,
Holdings, DFA and Mid-Am agree to consult with each other in issuing any press
release or otherwise making
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any public statement with respect to the transactions contemplated by this
Agreement, and none of the parties to this Agreement will issue any such press
release or make any such public statement prior to such consultation, except as
may be required by Legal Requirements.
12.2. NOTICES. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), or (c) when received
by the addressee, if sent by a nationally recognized overnight delivery service,
in each case to the appropriate addresses and telecopier numbers set forth below
(or to such other addresses and telecopier numbers as a party may designate by
notice to the other parties):
If to any DFA Company: with a copy to:
Dairy Farmers of America, Inc. XxXxxxxxx, Will & Xxxxx
Northpointe Tower, Suite 1000 227 X. Xxxxxx
00000 X. Xxxxxxxxx Xxxxx X-0 Xxxxx 0000
Xxxxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
Attention: President and General Counsel Attention: Xxxxxxx X. Xxxxxx, P.C. Telecopy: (816)
801-6593 and Xxxx Xxxxxxxx
Telecopy: (000) 000-0000
If to Suiza or Holdings: with a copy to:
c/o Suiza Foods Corporation Xxxxxx & Xxxx, L.L.P.
0000 XxXxxxxx Xxx., XX 00, Xxxxx 0000 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Attention: Chief Executive Officer Attention: Xxxxxxx X. XxXxxxxxx
and General Counsel Telecopy: (000) 000-0000
Telecopy: (000) 000-0000
12.3. ATTORNEY'S FEES AND COSTS. In the event of a breach by any party
to this Agreement and commencement of a subsequent legal action in a court of
law or forum of arbitration, or in the event legal counsel is consulted in the
event of any such breach or in anticipation of any such prospective legal
action, the prevailing party in any such dispute shall be entitled to
reimbursement of reasonable attorney's fees and expenses.
12.4. FURTHER ASSURANCES. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement. Without limiting the
foregoing, following the Closing, Suiza and its Affiliates will refer to DFA as
promptly as practicable any telephone calls, letters, orders, notices, requests,
inquiries and other communications relating to the Dairy Operations, and
otherwise assist DFA in good faith in the orderly transfer of the Dairy
Operations to DFA.
12.5. WAIVER. Except as otherwise expressly provided herein, the rights
and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any
F-26
delay by any party in exercising any right, power, or privilege under this
Agreement or the documents referred to in this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement or the documents referred to in this
Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing signed by the other
party; (b) no waiver that may be given by a party will be applicable except in
the specific instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such party or of
the right of the party giving such notice or demand to take further action
without notice or demand as provided in this Agreement or the documents referred
to in this Agreement.
12.6. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement, including
the Xxxx of Sale, the Note and the Assignment) a complete and exclusive
statement of the terms of the agreement between the parties with respect to its
subject matter. This Agreement may not be amended except by a written agreement
executed by the party to be charged with the amendment.
12.7. ASSIGNMENTS, SUCCESSORS AND NO THIRD PARTY RIGHTS. No party may
assign any of its rights under this Agreement without the prior consent of the
other parties; provided, that DFA shall be entitled to assign its rights and
obligations under this Agreement to any Affiliate of DFA without the consent of
any other party hereto; provided, however, that except to the extent otherwise
expressly agreed in writing by Suiza, DFA shall in all events remain liable
hereunder. Subject to the preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the parties. Except as set forth in the immediately
preceding sentence or Section 9, nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. Except as set forth in
Section 9, this Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and permitted assigns.
12.8. SPECIFIC PERFORMANCE. The parties hereby acknowledge and agree
that the failure of any party to perform its agreements and covenants hereunder,
including its failure to take all required actions on its part necessary to
consummate the transactions contemplated hereby, will cause irreparable injury
to the other parties for which damages, even if available, will not be an
adequate remedy. Accordingly, each party hereby consents to the issuance of
injunctive relief by any court of competent jurisdiction to compel performance
of such party's obligations and to the granting by any court of the remedy of
specific performance of its obligations hereunder.
12.9. SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
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12.10. SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "SECTION" or "SECTIONS" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms.
12.11. TIME OF ESSENCE. With regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
12.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE SUBSTANTIVE LAWS
OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE-OF-LAW RULES THAT
MAY REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
12.13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
12.14. INCORPORATION OF RECITALS. The recitals set forth in this
Agreement are hereby incorporated into and made a part of this Agreement for all
purposes.
12.15. DISPUTE RESOLUTION. Except with respect to the matters set forth
in Section 2.2(b), which will be resolved as provided in such Section, if any
dispute arises out of this Agreement or the Xxxx of Sale or any certificate or
conveyance, assignment or assumption document delivered pursuant to this
Agreement or the Xxxx of Sale, the parties agree not to commence any lawsuit
with respect to such dispute until the following procedures have been completed:
(a) The party believing a dispute to exist will give the other
parties written notice thereof, setting forth in reasonable detail the
facts alleged to give rise to such dispute, the relevant contractual
provisions, the nature of any claimed default or breach and a statement
of the manner in which such party believes the dispute should be
resolved.
(b) Within twenty (20) days after receipt of such notice, each
party against whom relief is sought in connection with such dispute
will deliver a written response, setting forth in reasonable detail its
view of the facts alleged to give rise to such dispute, the relevant
contractual provisions, the nature of the claimed default or breach and
a statement of the manner in which such party believes the dispute
should be resolved.
(c) If the parties do not agree on the manner in which the
dispute should be resolved, they will arrange to hold a meeting within
ten (10) days after delivery of the response. Each party will have in
attendance at such meeting a representative with authority to bind the
represented party to any agreement resolving the dispute. At the
meeting (and any adjournments thereof), the parties will negotiate in
good faith in an attempt to agree as to whether a dispute exists, the
exact nature of the dispute and the
F-28
manner in which the dispute should be resolved. If deemed appropriate
by the parties, a professional mediator may be engaged to assist in
resolving the dispute. Any resolution of the dispute will be evidenced
by a written agreement setting forth in reasonable detail the actions
to be taken by each party. If no such written agreement is reached
within twenty (20) days after the first meeting, the parties may pursue
any legal remedies available to them with respect to such dispute.
(d) Notwithstanding the foregoing, to the extent necessary to
prevent irreparable harm, either party may commence an action in a
court of competent jurisdiction seeking a temporary restraining order,
preliminary injunction or other injunctive relief without complying
with the foregoing dispute resolution procedures.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
SUIZA FOODS CORPORATION
By: /s/ XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
SUIZA DAIRY GROUP HOLDINGS, INC.
By: /s/ XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
DAIRY FARMERS OF AMERICA, INC.
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Chief Financial Officer
DAIRY RICH, L.L.C.
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President / Manager
Mid-Am is executing this Agreement solely to indicate its agreement to
be bound by the provisions of Sections 2.1(ii), 2.2(a)(ii), 2.2(b), 5.1, 5.2,
5.3, 5.4, 5.5, 7.6, Section 9, 10.1, 10.2, 11 and, to the extent applicable in
interpreting or enforcing the foregoing provisions, Section 1 and Section 12,
and has no obligations under this Agreement except under such Sections.
MID-AM CAPITAL, L.L.C.
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Chief Executive Officer
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SDG is executing this Agreement solely to indicate its agreement to be
bound by the provisions of Section 11.1 and, to the extent applicable in
interpreting or enforcing the foregoing provisions, Section 1 and Section 12,
and has no obligations under this Agreement except under such Sections.
SUIZA DAIRY GROUP, L.P.
By: SUIZA DAIRY GROUP GP, LLC,
the sole general partner
By: /s/ XXXXXXXX X. XXXXXXX
Name: Xxxxxxxx X. Xxxxxxx
Title: Executive Vice President
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