EXHIBIT 99.5
AMENDMENT NO. 3 TO
SERIES 1998-1 SUPPLEMENT
AND
AMENDMENT NO. 1 TO
SERIES 1998-1 CERTIFICATE PURCHASE
AGREEMENT
Dated as of June 10, 1999
THIS AMENDMENT NO. 3 TO SERIES 1998-1 SUPPLEMENT
AND AMENDMENT NO. 1 TO SERIES 1998-1 CERTIFICATE PURCHASE
AGREEMENT (this "Amendment") dated as of June 10, 1999 is
entered into between SPECIALTY FOODS FINANCE CORPORATION
(the "Company"), SPECIALTY FOODS CORPORATION ("SFC"), SFC
NEW HOLDINGS, INC. ("SFC Holdings"), THE CHASE MANHATTAN
BANK, as trustee (the "Trustee"), the financial institutions
party to the Certificate Purchase Agreement (as such term is
defined below) as "VFC Certificateholders" (the "VFC
Certificateholders") and Bankers Trust Company ("Bankers
Trust"), individually as a VFC Certificateholder and as
agent for the VFC Certificateholder (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, the Company, SFC as Master Servicer and
the Trustee are parties to that certain Series 1998-1
Supplement, dated as of March 31, 1998 (as amended, the
"Supplement") to that certain Pooling Agreement (as amended,
the "Pooling Agreement") dated as of November 16, 1994;
WHEREAS, the Company, SFC as Master Servicer, the
VFC Certificateholders and Bankers Trust Company as Agent
are parties to that certain Series 1998-1 Certificate
Purchase Agreement, dated as of March 31, 1998 (as amended,
restated, supplemented or otherwise modified from time to
time, the "Certificate Purchase Agreement", and collectively
with the Supplement, the "Agreements");
WHEREAS, SFC desires to assign all of its rights
and obligations under each of the Agreements to SFC
Holdings, including, without limitation, such rights and
obligations of SFC as Master Servicer thereunder;
WHEREAS, the parties hereto have agreed to amend
the Agreements in order to effect such assignment by SFC to
SFC Holdings and to substitute SFC Holdings for SFC, and
grant certain consents thereunder, in each case, on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as
follows:
SECTION 1. Definitions. Capitalized terms
used herein and not defined herein shall have the meanings
set forth in the Pooling Agreement, the Supplement and the
Certificate Purchase Agreement, as applicable.
SECTION 2. Assignment of SFC 's Rights and
Obligations. Effective as of the date hereof and upon
satisfaction of the conditions precedent set forth in
Section 7 below, SFC hereby assigns and transfers all of its
rights and obligations under the Agreements to SFC Holdings,
including, without limitation, such rights and obligations
of SFC as Master Servicer, and SFC Holdings hereby accepts
such rights and assumes such obligations and agrees that it
will perform in accordance with their respective terms all
of the obligations which are required to be performed by it
thereunder.
SECTION 3. Amendments to the Supplement. The
Supplement is hereby amended as follows:
3.1 The Supplement is amended (i) to delete the
phrase "SPECIALTY FOODS CORPORATION, as Master Servicer" in
each instance where it appears therein and to substitute
"SFC NEW HOLDINGS, INC., as Master Servicer" therefor, and
(ii) to delete the phrase "Specialty Foods Corporation, a
Delaware corporation" in each instance where it appears
therein and to substitute "SFC New Holdings, Inc., a
Delaware corporation" therefor.
3.2 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Supplement with
respect to such acts and agreements, shall mean SFC, and
(ii) with respect to acts and agreements executed by SFC
Holdings from and after the effectiveness of this Amendment,
each reference to "SFC" in the Supplement with respect such
acts and agreements, shall mean and be a reference to SFC
Holdings.
3.3 The definition of "Guaranty" set forth in
Section 1.1 of the Supplement is hereby deleted in its
entirety and amended to substitute the following therefor:
'"Guaranty" shall mean that certain Guaranty
dated as of June 10, 1999, from SFC to the Company
pursuant to which SFC guaranties the obligations
of each Seller to the Company under the
Receivables Sale Agreement.'
3.4 The definition of "SFC Loan Agreement" in
Section 1.1 of the Supplement is hereby amended to delete
the phrase "the SFC Group" therein and to substitute
therefor "SFC and/or its Affiliates".
SECTION 4. Amendments to the Certificate Purchase
Agreement. The Certificate Purchase Agreement is hereby
amended as follows:
4.1 The Certificate Purchase Agreement is amended
(i) to delete the phrase "SPECIALTY FOODS CORPORATION, as
Master Servicer" in each instance where it appears therein
and to substitute "SFC NEW HOLDINGS, INC., as Master
Servicer" therefor, (ii) to delete the phrase "Specialty
Foods Corporation, a Delaware corporation, as servicer" in
each instance where it appears therein and to substitute
"SFC New Holdings, Inc., a Delaware corporation, as
servicer" therefor. From and after the effectiveness
hereof, each reference to "SFC" in the Certificate Purchase
Agreement shall mean and be a reference to SFC Holdings.
4.2 (i) With respect to acts and agreements
executed by SFC prior to the effectiveness of this
Amendment, each reference to "SFC" in the Certificate
Purchase Agreement with respect to such acts and agreements,
shall mean SFC, and (ii) with respect to acts and agreements
executed by SFC Holdings from and after the effectiveness of
this Amendment, each reference to "SFC" in the Certificate
Purchase Agreement with respect such acts and agreements,
shall mean and be a reference to SFC Holdings.
4.3 Clause (e) of Section 6.04 of the Certificate
Purchase Agreement is hereby amended to delete each
reference to "the Company and SFC" therein and to substitute
"the Company, Specialty Foods Corporation and SFC" therefor.
4.4 Section 6.08 of the Certificate Purchase
Agreement is hereby amended to insert "Specialty Foods
Corporation," before each reference to "SFC" therein.
SECTION 5. VFC Certificateholders' Consent. Each
of the VFC Certificateholders hereby acknowledges and
consents to the assignment to and assumption by SFC Holdings
of all of SFC's rights and obligations under each of the
Pooling Agreement, the Servicing Agreement, the Receivables
Sale Agreements and each of the Agreements, including SFC's
rights and obligations as Master Servicer thereunder, and
further agrees that, upon the effectiveness hereof, SFC
shall no longer be a party to any such agreements.
SECTION 6. Covenants, Representations and Warran
ties of the Borrowers.
6.l Upon the effectiveness of this Amendment,
each of the Company, SFC and SFC Holdings, as Master
Servicer hereby reaffirms all covenants, representations and
warranties made by it (or, in the case of SFC Holdings, made
by SFC) in the Supplement, the Certificate Purchase
Agreement and in the other Transaction Documents and agrees
that all such covenants, representations and warranties
shall be deemed to have been re-made as of the effective
date of this Amendment, except to the extent any such
representation and warranty was expressly made as of any
other date, in which case such representation and warranty
was true and correct in all material respects as of such
other date.
6.2 Each party hereto hereby represents and
warrants that this Amendment constitutes its legal, valid
and binding obligation, enforceable against each such party
in accordance with its terms.
SECTION 7. Conditions Precedent. This
Amendment shall become effective as of the date hereof upon:
7.1 the Agent's and the Trustee's receipt of:
(a) executed counterparts of this Amendment,
executed by each of the parties hereto and acknowledged
by the Required Certificateholders;
(b) executed counterparts of Amendment No. 7 to
Each of the Pooling Agreement and Receivables Sale
Agreement and Amendment No. 2 to the Servicing
Agreement and Consent Related Thereto, executed by each
of the parties thereto and acknowledged by the Required
Certificateholders;
(c) an executed Guaranty from SFC Holdings;
(d) written confirmation from the Rating Agency
that this Amendment will not result in a reduction or
withdrawal of their respective ratings of the VFC
Certificates;
(e) an opinion of counsel for SFC Holdings as to,
among other things, the execution, delivery,
authorization and performance by SFC Holdings of this
Amendment, the related amendments to the Pooling
Agreement, the Servicing Agreement, the Receivables
Sale Agreement and the Guaranty and the enforceability
of the Agreements, the Pooling Agreement, the Servicing
Agreement, the Receivables Sale Agreement and the
Guaranty as against SFC Holdings; and
(f) an opinion of counsel for SFC Holdings as to
certain non-consolidation and bankruptcy matters with
respect to SFC Holdings; and
7.2 the completion of the refinancing
transactions and exchange offers contemplated under (i) SFAC
New Holdings, Inc.'s Offer to Exchange and Consent
Solicitation dated May 10, 1999 with respect to certain
senior notes issued by SFC, and (ii) SFC New Holdings,
Inc.'s Offer to Exchange and Consent Solicitation dated May
10, 1999 with respect to certain senior secured discount
debentures of Specialty Foods Acquisition Corporation.
SECTION 8. Termination of Existing Performance
Guaranty. Each of the signatories hereto hereby agrees and
acknowledges that upon this Amendment becoming effective,
the Performance Guaranty dated as of March 31, 1998,
executed by SFC in favor of the Company shall be
simultaneously terminated and be of no further force and
effect without further action on the part of any party
hereto.
SECTION 9. Miscellaneous.
9.1 Ratification and Acknowledgment. As amended
hereby, each of the Agreements is in all respects ratified
and confirmed and each such Agreement as so supplemented by
this Amendment shall be read, taken and so construed as one
and the same instrument. The execution, delivery and
effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any party under any
Agreement, nor constitute a waiver of any provision
contained therein, except as specifically set forth herein.
9.2 Amendment. The terms of this Amendment
shall not be waived, altered, modified, amended or
supplemented in any manner whatsoever except by written
instrument executed by all parties hereto.
9.3 Parties; Severability. Whenever in this
Amendment there is a reference made to any of the parties
hereto, such reference shall also be a reference to the
successors and assigns of such party, including, without
limitation, a debtor-in-possession or trustee. The
provisions of this Amendment shall be binding upon and inure
to the benefit of the successors and assigns of the parties
hereto. Whenever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of
this Amendment.
9.4 Execution in Counterparts; Governing Law
This Amendment may be executed in any numbers of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which when
taken together shall constitute but one and the same
instrument. This Amendment shall be governed by and
construed in accordance with the laws of the State of New
York.
9.5 Section Titles. The section titles
contained in this Amendment are and shall be without
substance, meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers
thereunto duly authorized as of the date first above
written.
SPECIALTY FOODS FINANCE CORPORATION
By:
Name:
Title:
SPECIALTY FOODS CORPORATION
By:
Name:
Title:
SFC NEW HOLDINGS, INC.
By:
Name:
Title:
THE CHASE MANHATTAN BANK, not
in its individual
capacity but solely as Trustee
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Agent and VFC Certificateholder
By:
Name:
Title:
Acknowledged and consented to
as of the date indicated above:
COMPAGNIE FINANCIERE DE CIC
By:
Name:
Title:
GCB INVESTMENT PORTFOLIO AND OSPRY INVESTMENTS
c/o CITIBANK GLOBAL ASSET MANAGEMENT
By:
Name:
Title:
NATEXIS BANQUE
By:
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN BOERENLEENBANK B.A.
"RABOBANK NEDERLAND" NEW YORK BRANCH
By:
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
c/o TRUST COMPANY OF THE WEST
By:
Name:
Title:
