AMENDMENT NO. 2
TO THE
ASSET PURCHASE AGREEMENT
THIS AMENDMENT, dated as of November 19, 1999 (the "Amendment") to the
Asset Purchase Agreement, dated as of September 28, 1999 (as amended through the
date hereof, the "Asset Purchase Agreement"), is made by and among Favorite
Brands International Holding Corp., a Delaware corporation, Favorite Brands
International, Inc., a Delaware corporation, ▇▇▇▇▇▇ Trucking Corporation, a
Delaware corporation, and Trolli, Inc., a Delaware corporation (collectively,
the "Sellers"), and Nabisco, Inc., a New Jersey corporation, Nabisco Brands
Company, a Delaware corporation, and Nabisco Technology Company, a Delaware
corporation (collectively, the "Purchasers"). Capitalized terms used herein and
not otherwise defined shall have the respective meanings set forth in the Asset
Purchase Agreement.
WHEREAS, the Sellers and Purchasers desire to amend the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE 1
AMENDMENTS
Section 1.01. Amendment of Section 1.01. Section 1.01 of the Asset
Purchase Agreement is amended to add immediately after the last sentence of
paragraph (b) of such Section the following new sentence:
The contract between Favorite Brands International and Share Data,
Inc. dated October 21, 1998 is excluded from the Section 365 Assumed Rights
and shall be included in the Excluded Contracts.
Section 1.02. Amendment of Section 1.03. Section 1.03 of the Asset
Purchase Agreement is amended to add immediately after the last sentence of such
Section the following new sentence:
If (a) prior to the effective date of any Chapter 11 plan in the
Sellers' Chapter 11 Cases, a third party files a lawsuit against Purchasers
alleging that Purchasers owe such third party an amount representing cure
costs (as defined in the Notice of Assumption and Assignment), and (b)
Purchasers notify Sellers of such lawsuit within ten business days of being
served, then the Sellers will seek an order from the bankruptcy court
enjoining such prosecution, and, to the extent that such cure costs are
determined by the bankruptcy court to be allowable against Sellers or
Purchasers or both, Sellers shall pay such amounts to such third party.
Other than to pay amounts so allowed by the Bankruptcy Court, Purchasers
shall not be entitled to assert any claim against Sellers arising out of
this provision.
Section 1.03. Amendment of Section 1.06. Section 1.06 of the Asset
Purchase Agreement is amended to add immediately preceding the first sentence of
paragraph (b) of such Section the following clause:
For federal income tax purposes only,
Section 1.04. Amendment of Section 1.08. Section 1.08 of the Asset
Purchase Agreement is amended to delete clause (b) of paragraph (a) of such
Section and replace such clause with the following new clause (b):
(b) only include line items that are (i) substantially consistent with
those in the Balance Sheet, and (ii) required to calculate Closing Working
Capital or directly relate to Property, Plant and Equipment.
Section 1.05. Amendment of Section 1.09. Section 1.09 of the Asset
Purchase Agreement is amended to add immediately after the last sentence of
paragraph (a) of such Section the following new sentence:
In addition, the Purchasers shall pay to the Sellers, as an additional
adjustment to the Purchase Price, an amount equal to the amount of cash
transferred to Purchasers' 401(k) Plans from Sellers' 401(k) Plans
representing unallocated forfeitures.
Section 1.06. Amendment of Section 2.02. Section 2.02 of the Asset
Purchase Agreement is amended to add immediately after the last sentence of
paragraph (a) of such Section the following new sentence:
2
Purchasers and Sellers agree that any representations and warranties
contained in any assignments or other instruments of conveyance, including,
but not limited to, assignments of rights in intellectual property, will
not have any legal effect between Purchasers and Sellers, and Sellers do
not make or agree to any representations or warranties except those
contained in the Asset Purchase Agreement and such representations and
warranties do not survive Closing.
Section 2.02 of the Asset Purchase Agreement is further amended to add
immediately after paragraph (b) of such Section the following new paragraphs (c)
and (d):
(c) At or prior to Closing, both the Purchasers and the Sellers
agree that each will deliver payment in full for any and all outstanding
trade payables to each other as of Closing from transactions and business
with each other that is not related to this Agreement.
(d) In the morning of the next business day immediately after
Closing, Bank of America's BAMTRAC support group will process a "Previous
Day Reporting BAMTRAC Composite Report" from the Bank of America BAMTRAC
System for the Trolli Lockbox/Operating Account at Bank of America (Account
87657-62355). Based on such Report, the Purchasers and Sellers will
calculate an amount herein referred to as the "Lockbox Cash." For
purposes of this Agreement, the Lockbox Cash will be equal to the amount on
the "Lockbox Credits (LBCR) Requested" line less the total amount reflected
on such report as "0 Day Money" in the "Availability Distributed" line
items. An example of such calculation is set forth in Exhibit A to this
Amendment. The Purchasers will wire the Lockbox Cash to the Sellers within
two business days after the calculation of the amount of Lockbox Cash to:
CHASE MANHATTAN BANK/NY
ABA # ▇▇▇▇▇▇▇▇▇
CREDIT TO: FAVORITE BRANDS INTL INC.
ACCT NO: ▇▇▇-▇▇▇-▇▇▇
Section 1.07. Amendment of Section 3.13. Section 3.13 is amended to add
immediately at the end of the sentence of such Section the following clause:
3
, except in each case for violations that have not had and could not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section 1.08. Amendment of Section 3.14. Section 3.14 is amended to delete
the last sentence of such Section.
Section 1.09. Amendment of Section 3.15. Section 3.15 is amended to delete
the first sentence of such Section and replace such sentence with the following
sentence:
All accounts receivable (other than receivables collected since the
Balance Sheet Date) reflected on the Balance Sheet arose in the ordinary
course of business.
Section 1.10. Amendment of Section 4.03. Section 4.03 is amended to delete
the word "the" that appears before the words "any Purchaser" in the fifth line
of such Section.
Section 1.11. Amendment of Section 5.03. Section 5.03 is amended to add
immediately after the words "Chapter 11 Case" in the first sentence of paragraph
(b) of such Section the following parenthetical:
(including objecting to claims filed in the Chapter 11 Case)
Section 1.12. Amendment of Schedule 1.02. Schedule 1.02 is amended to add
immediately after Item 11. of such Schedule the following Items 12. through 15.:
12. One Buick Park Avenue automobile
13. Motor Vehicle Lease Agreement between Bredeman Lexus - Glenview and
Favorite Brands International for a 1998 Lexus LS400
14. Any rights that Sellers may have pursuant to agreements with pre-
petition creditors to settle pre-petition claims other than with
respect to the Section 365 Assumed Rights.
4
15. Insurance policies underlying Sellers' obligations under pre-petition
deferred compensation arrangements for former employees ▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
16. All rights, claims and remedies arising under chapter 5 of title 11 of
the Bankruptcy Code including, without limitation, (S)(S) 544, 547,
548, 549, 550, 551, 552 and 553.
Section 1.13. Amendment of Schedule 3.07(a). Schedule 3.07(a) is amended as
follows:
(a) add immediately after Item IV. hhh. and Item V. x. of Schedule
3.07(a) the Material Contracts respectively listed in Exhibit B attached
hereto;
(b) for the Material Contract listed in Item IV. aaa. of Schedule
3.07(a), the name "Imperial Sugar Company" is deleted and replaced with the
name "Indiana Sugar Company"; and
(c) add an asterisk ("*") immediately next to the Material Contract
listed in Item XIII. b. of Schedule 3.07(a) to denote a contract not to be
assumed by the Purchaser.
ARTICLE 2
GENERAL PROVISIONS
Section 2.01. Descriptive Headings. The headings contained in this
Amendment are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment.
Section 2.02. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the rules of conflict of laws of the State of Delaware or any other jurisdiction
in accordance with Section 8.07 of the Asset Purchase Agreement. The Purchasers
and Sellers irrevocably and unconditionally consent to submit to the
jurisdiction of the Bankruptcy Court for any litigation arising out of or
relating to this Amendment (and agree not to commence any litigation relating
thereto except in the Bankruptcy Court).
5
Section 2.03. Counterparts; Effectiveness. This Amendment may be executed
in two or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement. This Amendment shall
become effective upon the Closing when each party hereto shall have received
counterparts thereof signed by all the other parties hereto.
6
IN WITNESS WHEREOF, the Sellers and the Purchasers have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, as of the date first above written.
FAVORITE BRANDS
INTERNATIONAL HOLDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
FAVORITE BRANDS
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ TRUCKING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
TROLLI, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
NABISCO, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
NABISCO BRANDS COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
NABISCO TECHNOLOGY COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
EXHIBIT A
[Bank of America. LOGO] BANK OF AMERICA
FAVORITE BRANDS INTERNATIONAL
PREVIOUS DAY REPORTING
BANTRAC COMPOSITE REPORT
AS OF NOV ▇▇
******************▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇, IL*******************
** U.S. DOLLAR *** TROLLI, INC. 82355
765762355 LATEST UPDATE: NOV 11 04:13 CST
----------------------------------- BALANCES -----------------------------------
LOSING LEDGER BAL 0.00 0 DAY FLOAT 0.56
YTD AVG LEDGER BAL 0.00 1 DAY FLOAT 0.00
YTD AVG LEDGER BAL 0.00 2 DAY FLOAT 0.00
3 DAY FLOAT 0.00
OPENING AVAIL BAL 0.00 4 DAY FLOAT 0.00
CLOSING AVAIL BAL 0.00 5 DAY FLOAT 0.00
YTD AVG AVAIL BAL 0.00
YTD AVG AVAIL BAL 0.00
------- CREDIT SUMMARIES ----------- ----------- DEBIT SUMMARIES -----------
TOTAL CREDITS 168,908.34 TOTAL DEBITS 168,908.34
LOCKBOX CREDITS 161,708.56 CHECKS PAID 168,908.34
ZSA TRANSFER CR 7,199.78 MISC DEBITS 0.00
*********************************** CREDITS ************************************
* LOCKBOX CREDITS (LBCR) *
161,708.56 00000098678
AVAILABILITY DISTRIBUTED:
[0/1/2 DAYS: 0.58/97,584.00/64,124.00]
----------
161,708.56 LOCKBOX CREDITS (LBCR) REQUESTED 1 ITEMS
* ZBA TRANSFER CREDITS (ZBATCR) *
7,199.78 SAME-CENTER FROM 6188700953
----------
7,199.78 ZBA TRANSFER CREDITS (ZBATCR) REQUESTED 1 ITEMS
168,908.34 TOTAL CREDITS REQUESTED 2 ITEMS
----------------------------------- DEBITS -------------------------------------
* CHECKS (CK) *
104.84 00000061968
189.70 00000061982
29.97 00000061993
65.80 00000061997
2,498.40 00000062004
5,400.00 00000073302
34,762.13 00000073343
323.50 00000073348
870.48 00000073350
908.16 00000073362
1 and 2 Day Money Calculation
-------------------------------------------------
LBCR 161,708.56
"0 Day Money" (0.56)
-----------
Amount to be Transferred to Estate $161,708.00
===========
76,000.00 00000073374
218.80 00000073392
6,775.29 00000073384
23,274.99 00000073395
65.00 00000073400
843.16 00000073405
1,968.31 00000073409
8,396.31 00000073419
965.19 00000073427
490.25 00000073430
1,272.08 00000073441
3,037.00 00000073446
150.00 00000073470
150.00 00000073471
150.00 00000073473
------------------
168,908.34 CHECKS (CK) REQUESTED 25 ITEMS
MISCELLANEOUS DEBITS (MISCOR)
.00 AVAILABILITY DISTRIBUTED:
[0/1/2 DAYS: 0.00/97,584.00/64.124.00]
FLOAT TRANSFER TO ACCOUNT 8198700963
------------------
.00 MISCELLANEOUS DEBITS (MISCOR) REQUESTED 1 ITEMS
168,908.34 TOTAL DEBITS REQUESTED 26 ITEMS
======= END OF ACCOUNT ======= 62366 ================= 8765762356 =============
Exhibit B
Amendments to Schedule 3.07(a)
------------------------------
IV. Key Purchasing Agreements
-------------------------
iii. Contract Order between Trolli, Inc. and Cargill North American Corn
Milling, dated 12/28/98, contract number 20197.00.
jjj. Contract Order between Trolli, Inc. and Cargill North American Corn
Milling, dated 1/5/99, contract number 20615.00.*
kkk. Contract Order between Trolli, Inc. and Cargill North American Corn
Milling, dated 1/5/99, contract number 20614.00.*
lll. Purchase Order between Trolli, Inc. and GMI Products, Inc., dated
6/15/99, contract number 033363, in the amount of $422,928.00.
mmm. Purchase Order between Trolli, Inc. and DynaGel Incorporated, dated
11/20/98, contract number 031180, in the amount of $1,900,000.00.
nnn. Purchase Order between Trolli, Inc. and Kind & ▇▇▇▇ Gelatine, Inc.,
dated 11/20/98, contract number 031179, in the amount of $993,700.00.
ooo. Purchase Order between Trolli, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇ Gelatin (USA),
dated 11/16/98, contract number 030732, in the amount of
$7,520,000.00.
V. Software Agreements
-------------------
y. Internet Services Agreement between Favorite Brands International,
Inc. and KSI-Net56 dated December 17, 1997.
* Indicates a contract that will not be assumed by the Purchasers