Exhibit 10.1.8
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of June 9, 2000 (this
"Agreement"), to the Amended and Restated Credit Agreement, dated as of May 1,
1998 (as heretofore amended and supplemented and as it in the future may be
amended, modified or supplemented from time to time in accordance with its
terms, the "Credit Agreement"), by and among Millbrook Distribution Services
Inc., a Delaware corporation ("Millbrook"), The B. Manischewitz Company, LLC, a
Delaware limited liability company ("Manischewitz" and, together with Millbrook,
the "Borrowers"), the lenders (the "Lenders") named in Schedules 2.01(a) and
2.01(b) to the Credit Agreement (as hereinafter defined), The Chase Manhattan
Bank, as administrative and collateral agent (in such capacity, the "Agent") for
the Lenders, and Bank of America, N.A., as co-agent and documentation agent.
WHEREAS, the Borrowers have requested that the Required
Lenders amend a provision of the Credit Agreement and the Required Lenders have
so agreed to amend such provision as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise specifically defined
herein, all capitalized terms used herein shall have the respective meanings
ascribed to such terms in the Credit Agreement.
2. Amendment to Credit Agreement. Subject to the conditions as
to effectiveness set forth in Paragraph 5 of this Agreement, clause (w) of
Section 7.04 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"(w) the Borrowers may make distributions or dividends to
Enterprises so that Enterprises can repurchase the Senior
Notes and/or that Enterprises can make distributions or
dividends to Holdings so that Holdings can repurchase the
Interest Reserve Notes; provided, however, that in no event
shall the aggregate amount so distributed by the Borrowers to
Enterprises with the proceeds of a Revolving Credit Loan made
after June 1, 2000 exceed $7,500,000, (ii) in the event that
Enterprises does not retire the Senior Notes upon their
repurchase, Enterprises shall cause such Senior Notes to be
pledged to the Agent (for the ratable benefit of the Lenders)
pursuant to the Pledge Agreement and (iii) in no event shall
(A) the Borrowers make any such distribution to Enterprises or
(B) Enterprises make any such distribution to Holdings, if, in
either case, such distribution is not permitted by the terms
of the Indenture, dated as of May 1, 1998, among
Enterprises, the guarantors named therein and The Chase
Manhattan Bank Manhattan Bank, as successor to PNC Bank,
National Association, as amended."
3. Covenant. The Borrowers hereby agree that upon the making
of each distribution to Enterprises referred to in Paragraph 2 above, the
Borrowers shall deliver to the Agent an accounting of the Senior Notes and/or
Interest Reserve Notes that were purchased with the proceeds of such
distribution.
4. Representations and Warranties. The Borrowers hereby
represent and warrant as of the date hereof as follows (which representations
and warranties shall survive the execution and delivery of this Agreement):
(a) All representations and warranties made by the
Borrowers in Article IV of the Credit Agreement and each of the other Loan
Documents, after taking into account the effect of this Agreement, are true and
correct in all material respects as of the date hereof with the same force and
effect as if made on such date (except to the extent that any such
representation or warranty relates expressly to an earlier date).
(b) Each Borrower has the requisite power to execute,
deliver and carry out the terms and provisions of this Agreement.
(c) This Agreement has been duly executed and delivered by
the Borrowers and constitutes the legal, valid and binding obligation of the
Borrowers, and is enforceable against the Borrowers in accordance with its terms
subject (i) as to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally, from time to time in effect, and (ii) to general
principles of equity.
(d) After giving effect to this Agreement, no event has
occurred and is continuing which constitutes or would constitute a Default or an
Event of Default under the Credit Agreement.
5. Conditions Precedent. Notwithstanding any term or provision
of this Agreement to the contrary, Paragraph 2 hereof shall not become effective
until (i) the Agent shall have received counterparts of this Agreement, duly
executed and delivered on behalf of the Borrowers, Enterprises, the Agent and
the Required Lenders, (ii) the Borrowers shall have paid a fee equal to $7,500
to each Lender signing this Agreement by the date first written above and (iii)
the Agent shall have received such other documents as the Lenders or the Agent
or the Agent's counsel shall reasonably deem necessary.
6. Fees and Expenses of Agent. The Borrowers agree to pay all
reasonable fees and out-of-pocket expenses incurred by the Agent in connection
with the preparation and negotiation of this Agreement, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel to the
Agent.
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7. References to Agreements. The term "Agreement", "hereof",
"herein" and similar terms as used in the Credit Agreement, and references in
the Credit Agreement and the other Loan Documents to the Credit Agreement, shall
mean and refer to, from and after the effective date of the amendments contained
herein as determined in accordance with Paragraph 5 hereof, such agreements as
amended by this Agreement.
8. Continued Effectiveness. Nothing herein shall be deemed to
be a waiver of any covenant or agreement contained in, or any Default or Event
of Default under, the Credit Agreement or any of the other Loan Documents,
except as expressly provided for hereby, and each of the parties hereto agrees
that, as amended by this Agreement, all of the covenants and agreements and
other provisions contained in the Credit Agreement and the other Loan Documents
shall remain in full force and effect from and after the date of this Agreement.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, and all of which, when taken
together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
[Remainder of Page Left Intentionally Blank]
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10. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York (other than
the conflicts of laws principles thereof).
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
MILLBROOK DISTRIBUTION SERVICES INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
THE B. MANISCHEWITZ COMPANY, LLC
By: Xxxxxxx X. Xxxxxxxxx, its managing member
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
THE CHASE MANHATTAN BANK, as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Lender and Co-Agent
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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FLEET BUSINESS CREDIT CORPORATION, as Lender
By:/s/ Xxxx X. Xxxxxx, Xx.
-------------------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
LASALLE BUSINESS CREDIT CORPORATION, as Lender
By:/s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Lender
By:/s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
As to paragraph 2 only:
R.A.B. ENTERPRISES, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman and Chief
Executive Officer
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