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EXHIBIT 10.5
Execution Copy
CAPITAL CONTRIBUTION AGREEMENT
THIS CAPITAL CONTRIBUTION AGREEMENT (this "Agreement") is entered into
this 4th day of September, 1997, to be effective as of 3:00 p.m. on
September 3, 1997 (the "Effective Time"), by and between Mid-Am Capital,
L.L.C., a Delaware limited liability company ("Transferor"); and Southern Foods
Group, L.P., a Delaware limited partnership (the "Partnership"). Defined terms
used but not defined in this Agreement shall have the meaning ascribed thereto
in the Second Amended and Restated Agreement of Limited Partnership of the
Partnership dated of even date herewith.
WHEREAS, Transferor wishes to contribute to the Partnership, as a capital
contribution, the sum of FORTY FIVE MILLION DOLLARS ($45,000,000), in exchange
for the issuance to Transferor of FIFTEEN MILLION DOLLARS ($15,000,000) in
stated amount of Series C 10% Payment-in-Kind Preferred Limited Partner
Interests ("Series C Preferred Interests") and THIRTY MILLION DOLLARS
($30,000,000) in stated amount of Series D 9 1/2% Preferred Limited Partner
Interests ("Series D Preferred Interests") in the Partnership; and
WHEREAS, the parties agree that the Transferor's contribution to the
capital of the Partnership is being made as a Series C Preferred Limited
Partner Contribution in the amount of FIFTEEN MILLION DOLLARS ($15,000,000),
and as a Series D Preferred Limited Partner Contribution in the amount of
THIRTY MILLION DOLLARS ($30,000,000); and
WHEREAS, the parties further desire that the Capital Account of the
Transferor as a result of the capital contribution by Transferor described
herein shall reflect a Series C Preferred Interest as of the Effective Date in
the amount of FIFTEEN MILLION DOLLARS ($15,000,000) and a Series D Preferred
Interest as of the Effective Date in the amount of THIRTY MILLION DOLLARS
($30,000,000); and
WHEREAS, Transferor and the Partnership wish to execute and deliver this
instrument for the purpose of (i) the Partnership acknowledging the receipt of
Transferor's Capital Contribution, and (ii) documenting the Series C Preferred
Interests and the Series D Preferred Interests issued in exchange for the
Capital Contribution;
NOW, THEREFORE, the parties hereto agree as follows:
1. Series C Preferred Interests and Series D Preferred Interests. For and
in consideration of the Capital Contribution, by Transferor to the Partnership,
in the sum of FORTY FIVE MILLION DOLLARS ($45,000,000) Transferor shall receive
Preferred Limited Partner Interests in the Partnership, consisting of, FIFTEEN
MILLION DOLLARS ($15,000,000) in stated amount of Series C Preferred Interests
and THIRTY MILLION DOLLARS ($30,000,000) in stated amount of Series D Preferred
Interests, and in recognition thereof, Transferor shall be credited with a
Preferred Limited Partner Capital Account having an initial balance of FORTY
FIVE DOLLARS MILLION DOLLARS ($45,000,000).
2. GOVERNING LAW. THIS AGREEMENT SHALL BE CONTROLLED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
signed on its behalf by a duly authorized officer as of the date first written
above to be effective as of the Effective Time.
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MID-AM CAPITAL, L.L.C.
By: /s/ XXXXXX X. XXX
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Its: CEO and Treasurer
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SOUTHERN FOODS GROUP, L.P.
By: SFG Management Limited Liability Company,
General Partner
By: /s/ XXXX XXXXXXXX
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Its: President and CEO
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This Agreement is being executed by Xxxx Xxxxxxxx and Mid-America
Dairymen, Inc. for purposes of consenting (a) to the issuance of the Series C
Preferred Interests and the Series D Preferred Interests in the Partnership as
provided for herein, and (b) to the admission of the Transferor as a Preferred
Limited Partner holding the Preferred Limited Partner Interests in the
Partnership specified herein.
/s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx, as a Common Limited Partner
MID-AMERICA DAIRYMEN, INC., in its capacity
as a Common Limited Partner and as a Preferred
Limited Partner
By: /s/ XXXXXX X. XXX
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Its: Vice President\CFO
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