AMENDMENT NO.2 TO SNACK ASSETS PURCHASE AGREEMENT
This is an amendment agreement (the "Amendment No.2") dated January
22, 1996 between Xxxxx Food Products, Inc. (the "Buyer"), an Illinois
corporation and Keebler Company (the "Seller"), a Delaware corporation, amending
a Snack Assets Purchase Agreement (the "Agreement") dated November 18, 1995, as
amended, between the Buyer and the Seller relating to the purchase by the Buyer
from the Seller of certain assets of the Seller (the "Purchased Assets").
The Agreement is amended, effective immediately, as follows:
1. The Inventory Listing referred to in paragraph 1 of Exhibit 1.1-3
of the Agreement and attached thereto is replaced by the amended Inventory
Listing attached hereto as Exhibit A.
2. Paragraph 1.1 is hereby amended by replacing the word "and"
immediately preceding the start of subsection (iv) and replacing it with a
comma, and Paragraph 1.1 is further amended by replacing the last parenthetical
phrase with the following text :
and (v) the vans and cars which are listed on Exhibit 1.1-4 (the
"Transferred Vehicles") (the assets listed on Exhibits 1.1(1), 1.1(2),
1.1(3) and 1.1(4) and the Transferred Inventory being the "Purchased
Assets").
3. As referred to in Paragraph 1.1-4 as amended, Exhibit 1.1-4, a
copy of which is attached hereto as Exhibit B, is added to the Agreement and
made a part thereto.
4. Exhibit 1.2(1) is amended by added the following text immediately
after section H:
I. A month to month lease agreement with L & M Associates for the
lease of warehouse facilities for the purposes of equipment storage at
(i) 0000 X. Xxxxx Xx. 1 at a monthly rent of $800 and (ii) 0000 X.
Xxxxx Xxxx 1 at a monthly rent of $500 per month.
5. Exhibit 1.2(2) is amended by added the following text:
6. Liabilities for real estate taxes accrued in 1995 with regard to
the Bluffton Facility.
6. Paragraph 1.4 of the Agreement is amended and restated in its
entirety, and states the following:
1.4 PURCHASE PRICE ADJUSTMENT. On the date specified below, the
Seller will pay to the Buyer, or the Buyer will pay to the Seller, a
sum (the "Purchase Price Adjustment Amount") equal to the amount by
which the sum of (a) the total cost to Keebler at the Closing Date of
the Transferred Inventory, plus (b) the total cost to Keebler of the
Transferred Vehicles, is greater (in which case the Buyer will pay the
Purchase Price Adjustment Amount to the Seller) or less (in which case
the Seller will pay the Purchase Price Adjustment Amount to the Buyer)
than $3,000,000. Within 5 days after the cost of the Transferred
Inventory is determined, the Seller or the Buyer will pay to the other
of them the applicable Purchase Price Adjustment Amount. For the
purpose of determining the Transferred Inventory and its cost, the
Buyer and Seller will jointly conduct a physical inventory count of
the Transferred Inventory on or as soon as practicable after the
Closing Date. The Buyer and the Seller agree that the total cost to
Keebler of the Transferred Vehicles is $1.9 million.
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7. Subparagraphs: (i) of Paragraph 2.1, (e) of Paragraph 5.1, (d) of
Paragraph 5.2 and (b) of Paragraph 7.1 are amended by replacing the words
"January 16, 1995" with the words "January 24, 1996".
8. Subparagraph 2.3 (a) is amended by deleting the text thereof in
its entirety and replacing it with the following text:
A secured promissory note, substantially in the form of Exhibit
2.3-A hereto in an aggregate principal amount of $8 million.
A copy of the secured promissory note is attached hereto as
Exhibit C.
9. Subparagraph 3.1(r) is hereby amended by adding the following
text at the end of the last sentence following the words "surplus items":
; provided, however, that the Buyer acknowledges that as a result
of the fact that the Closing contemplated by the Agreement, as
executed on November 18, 1995, did not occur on or before
December 31, 1995, items of inventory included in the Purchased
Assets will, in the case of finished products, include finished
products which have a remaining selling life of less than 30
days.
10. Paragraph 3.1 is amended by adding the following text:
(t) The Seller has paid to the leasing companies from which the
Seller leased all of the Transferred Vehicles (the "Leasing
Companies") all amounts necessary to buy out the leases and cause
title to the Transferred Vehicles to be transferred to The
O'Boise Corporation, and has instructed the Leasing Companies to
take all steps necessary to transfer title of the Transferred
Vehicles to The 0'Boise Corporation.
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11. Subparagraph 5.1(g) is deleted in its entirety.
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IN WITNESS WHEREOF, the Buyer and the Seller have executed this
Amendment No.2, intending to modify the Agreement as set forth above, on the
date shown on the first page of this Amendment No.2.
KEEBLER COMPANY
By:
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Title: Authorized Signatory
XXXXX FOOD PRODUCTS, INC.
By:
--------------------------------
Title: President
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