CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 10.5
LEASE OVERRIDE AGREEMENT
This Lease Override Agreement (this "AGREEMENT") is made this 26th day of
January 2001 between HOOPESTON FOODS DENVER CORP., a Delaware corporation (the
"HFDC") and XXXXXX CANNING COMPANY, a Colorado corporation ("XXXXXX").
RECITALS
WHEREAS, concurrent with the execution of this Agreement, the parties
hereto are also entering into various other agreements listed on Schedule 1
hereto (the "Other Agreements");
WHEREAS, the parties have agreed that as additional consideration for
XXXXXX entering into the Other Agreements, and all other documents and
agreements entered into by and between the parties hereto related to the
transactions contemplated therein (collectively, the "TRANSACTION AGREEMENTS"),
HFDC agrees to make the Lease Override Payments to XXXXXX pursuant to the terms
and conditions contained herein.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. Payment of the Lease Override Payments:
Section 1.1. In addition to the amounts required to be paid by HFDC to Xxxxxx
under the Transaction Agreements, HFDC shall pay to XXXXXX an additional annual
amount calculated pursuant to Section 1.2 below (the "LEASE OVERRIDE
PAYMENTS"). In the event Xxxxxx breaches any of the Other Agreements and (i)
fails to cure such breach within 30 days after receipt of written notice from
HFDC describing such breach (if Xxxxxx is diligently attempting to cure the
breach and the nature of the breach requires longer than 30 days to cure, the
cure period shall be extended to allow a reasonable additional period of time
to cure the breach) and (ii) such breach results in monetary damages to HFDC or
materially impacts the ability of HFDC to conduct the business contemplated by
the transactions of which are the subject of this Agreement and the Other
Agreements, HFDC shall have the right to first, offset its monetary damages
against the Lease Override Payments and, if there remains any additional
monetary damages incurred by HFDC and HFDC was unable to be made whole after the
offset of the Lease Override Payments, then HFDC may offset any payments due
Xxxxxx pursuant to the Lease Agreement for the Plant.
Section 1.2. The Lease Override Payments shall be calculated as follows:
the "EBITDA OF HFDC" (as defined below)
TIMES [TEXT OMITTED PURSUANT TO THE
REGISTRANT'S APPLICATION FOR
CONFIDENTIAL TREATMENT UNDER
RULE 406]
"EBITDA OF HFDC" shall mean the earnings (net sales less operating expenses) of
the business activities conducted by HFDC at the Denver Plant before interest,
income taxes, depreciation and amortization, computed in accordance with
generally accepted accounting principles consistently applied.
Section 1.3. For each year this Agreement is in full force and effect,
HFDC shall compute the amount of EBITDA based on its audited annual financial
statements that are sent to HFDC's senior lender. HFDC shall make the Lease
Override Payments to XXXXXX within thirty (30) days after the receipt of the
HFDC annual audited statement from its independent public accountants (the
"Audited Statement"). All Lease Override Payments due hereunder shall be made
to XXXXXX by wire transfer in accordance with instructions from Xxxxxx.
Section 1.4. Concurrent with each Lease Override Payment due XXXXXX
hereunder, HFDC shall provide XXXXXX with a copy of its Audited Statement along
with a letter from its independent public accounting firm setting forth a
detailed calculation of the Lease Override Payment due XXXXXX for the previous
full fiscal year. Upon written request by XXXXXX, HFDC shall provide XXXXXX with
such additional supporting documentation, work papers and other records
necessary for XXXXXX to verify the calculation of the Lease Override Payments at
XXXXXX' sole cost and expense. If XXXXXX disputes HFDC's calculation of the
Lease Override Payment and the parties are unable to amicably resolve such
dispute within thirty (30) days from the date XXXXXX notifies HFDC in writing of
its disagreement with the calculation, the parties shall submit such dispute to
a mutually agreeable accounting firm for resolution. The decision of the
accounting firm shall be final and binding on the parties. The parties shall
equally share the fees and expenses of the accounting firm used to resolve the
dispute.
Section 1.5. Upon the closing of the transactions contemplated by this
Agreement and the Other Agreements, Xxxxxx shall provide a detailed accounting
of the vacation accruals for each of the former Xxxxxx employees hired by HFDC.
Xxxxxx shall give HFDC a dollar-for-dollar credit against the payments due
Xxxxxx pursuant to this Agreement equal to the aggregate amount of vacation
time accruals for the former Xxxxxx Employees hired by HFDC.
Section 1.6. Within thirty (30) days after the end of each fiscal year
for which XXXXXX is entitled to receive a Lease Override Payment, HFDC shall
request that its senior lender (LaSalle Bank, N.A. as of the date hereof),
permit HFDC to make the Lease Override Payments more frequently than on an
annual basis. If HFDC's senior lender permits more frequent payment of the Lease
Override Payments, then HFDC and XXXXXX shall cooperate in good faith to develop
a procedure for calculation and payment of the Lease Override Payments.
Section 2. Confidentiality.
As further consideration of HFDC entering into this Agreement, XXXXXX
agrees that during the period of time XXXXXX is entitled to receive Lease
Override Payments from HFDC pursuant to the terms hereof, XXXXXX shall not
disclose or make any use of, for its own benefit or for the benefit of a
business or entity other than HFDC, any secret or confidential information,
customer lists, and lists of prospective customers, or any other information of
or pertaining to HFDC, its business, products, financial affairs,
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customers or prospective customers, or services not generally known within
HFDC's trade and which was acquired by XXXXXX and its employees, agents,
shareholders and officers and directors during XXXXXX' affiliation with HFDC,
other than disclosures to XXXXXX' lender, Xxxxx Fargo Credit, Inc. or its
assigns.
Section 3. Miscellaneous Provisions.
3.1 Notices. Any notice under this Agreement shall be in writing and shall be
effective when actually delivered in person, by overnight courier service or by
fax, or three days after being deposited in the United States mail, registered
or certified, postage prepaid and addressed to the party at the address stated
below or such other address as either party may designate by written notice to
the other.
If to HFDC:
XXXX
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Fax: 000-000-0000
If to XXXXXX:
XXXXXX
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: 000-000-0000
or at any other address as any party may, from time to time, designate by
notice given in compliance with this section.
3.2 Time. Time is of the essence of this Agreement.
3.3 Survival. Termination of this Agreement shall not affect the rights or
obligations of the parties that arise prior to the termination.
3.4 Waiver. Failure of either party at any time to require performance of any
provision of this Agreement shall not limit the party's right to enforce the
provision, nor shall any waiver of any breach of any provision be a waiver of
any succeeding breach of any provision or a waiver of the provision itself for
any other provision. For any waiver to be effective, it must be in writing
signed by the party to be charged therewith. The waiver by either party of the
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach.
3.5 Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the heirs, personal representatives, successors and/or
permitted assigns of the parties hereto. Neither party may assign its rights,
or delegate its duties hereunder, to any third party without the prior written
consent of the other party hereto, which shall not be unreasonably withheld.
3.6 Breach; Attorneys' Fees and Costs. A party shall be in breach of this
Agreement upon (i) any failure to perform any of its obligations hereunder and
such failure is not
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cured within 10 days after written notice of such breach from the other party
or (ii) any failure to perform any obligations under the Other Agreements and
such failure is not cured within any applicable cure periods set forth in the
Other Agreements. In the event of a breach of any of the terms, provisions, or
conditions of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees and court costs (both at the trial and appellate
level) incurred in connection with the enforcement or any action hereunder.
3.7 Governing Law and Forum Selection. This Agreement shall be governed by
the laws of the State of Colorado (without regard to its conflicts of law
principles). Each party hereto hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of the state courts of the State of Colorado or
federal courts, sitting in Denver County, Colorado. Each party irrevocably and
unconditionally waives: (a) any objection which it may now or hereafter have to
venue in any such court; and (b) any claim that any action or proceeding
brought in such court has been brought in an inconvenient or improper forum.
3.8 Presumption. This Agreement or any section thereof shall not be construed
against any party due to the fact that this Agreement or any section thereof
was drafted by said party.
3.9 Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
3.10 Pronouns and Plurals. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the Person or Persons may require.
3.11 Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
3.12 Modification Must Be in Writing. This Agreement may not be changed
orally. All modifications of this Agreement must be in writing and must have
been signed by each party.
3.13 Agreement Binding. This Agreement shall be binding upon the successors
and permitted assigns of the parties hereto.
3.14 Further Action; Cooperation on Tax Issues. The parties hereto shall
execute and deliver all documents, provide all information and take or forbear
from all such action as may be necessary or appropriate to achieve the purposes
of this Agreement. The parties shall cooperate with each other in taking such
actions as may be reasonably necessary to minimize the tax consequences to each
party as a result of the transactions herein.
3.15 Counterparts. This Agreement may be executed in several counterparts and
all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
3.16 Facsimile Signatures. Facsimile transmission of any signed original
document, and the retransmission of any signed facsimile transmission, shall
be the same as delivery of
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the original signed document. At the request of any party, a party shall confirm
documents with a facsimile transmitted signature by signing an original
document.
3.17 Parties in Interest. Nothing herein shall be construed to be to the benefit
of any third party, nor is it intended that any provision shall be for the
benefit of any third party.
3.18 Savings Clause. If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not be
affected thereby.
The parties have executed this Agreement by their duly authorized
representatives effective as of the date first set forth above.
HOOPESTON FOODS DENVER CORP.
/s/ Xxxx X. Xxxxxx
---------------------------------------
By: Xxxx X. Xxxxxx
Its: President and CEO
XXXXXX CANNING COMPANY
/s/ Xxxxx X. Xxxxx
---------------------------------------
By: Xxxxx X. Xxxxx
Its: CEO
LeaseOverriderAgr
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SCHEDULE 1
List of Other Agreements
1. Lease Agreement for the Plant.
2. Equipment Lease Agreement for Seller's equipment located at the Plant.
3. Co-Pack Agreement for Buyer to co-pack Seller's branded products.
4. License Agreement for Buyer to license the use of permits, licenses, recipes
and other intangible assets of Seller that are in use at the Plant.
5. Non-Branded Inventory Sales Agreement.
6. EBITDA Overview Committee Agreement.
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