Exhibit 10.1.12
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of October 31, 2001 (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, 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 parties hereto have agreed to amend certain
provisions of the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and legal sufficiency 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. Amendments to Credit Agreement. Subject to the conditions as to effectiveness
set forth in Paragraph 4 of this Agreement, the Credit Agreement is hereby
amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
the following defined terms in the correct alphabetical order:
"'Appraised Value' shall mean, with respect
to the Harrison, Arkansas property, $8,500,000, the
Vineland, New Jersey property, $1,420,000, and the
Jersey City, New Jersey property, $6,500,000.
'Availability Period' shall mean the period
commencing on November 1, 2001 through and including
April 29, 2003.
'Eligible Real Property' shall mean,
collectively, the real property owned by the
Borrowers as of the date hereof and located in
Harrison, Arkansas, Vineland, New Jersey and Jersey
City, New Jersey, provided, that none of the
foregoing items of real property shall be deemed to
be Eligible Real Property unless the Agent (on behalf
of the Lenders) possesses a valid first mortgage in
such item of real property as security for payment of
the Obligations."
(b) The last paragraph of the definition of "Interest Margin" contained
in Section 1.01 of the Credit Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, on October ___, 2001
and until the third Business Day following the day
the Administrative Agent receives the financial
statements required under Section 6.05(a) for the
Fiscal Year ending March 31, 2002 and the related
compliance certificate required by Section 6.05(e)
demonstrating compliance with the terms and
provisions of this Agreement, the LIBO Rate Interest
Margin for Revolving Credit Eurodollar Loans shall be
3.25% and for Term Eurodollar Loans shall be 3.50%,
and the Alternate Base Rate Interest Margin for
Revolving Credit Alternate Base Loans shall be 1.25%
and for Term Alternate Base Loans shall be 1.50%;
each shall thereafter be adjusted in accordance with
the provisions hereof."
(c) The definition of "Required Lenders" contained in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"'Required Lenders' shall mean (x) during the
Availability Period, four (4) out of the five (5)
Lenders and (y) at all other times, Lenders having
51% or more of the Total Commitment, provided,
however, that with respect to any amendment (to this
Agreement or any of the other Loan Documents)
requested in connection with the exchange offer of
the Senior Notes and/or the Interest Reserve Notes
currently contemplated, 'Required Lenders' shall mean
Lenders having 100% of the Total Commitment."
(d) The definition of "Revolving Credit Termination Date" contained in
Section 1.01 of the Credit Agreement is hereby amended by deleting the
reference to "March 31, 2003" and substituting "September 30, 2003"
therefor.
(e) The second sentence of Section 2.01(b) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"(b) Notwithstanding the foregoing, the aggregate
principal amount of Revolving Credit Loans
outstanding at any time to the Borrowers shall not
exceed (1) the lesser of (A) the Total Revolving
Credit Commitment and (B) an amount equal to the sum
of (i) up to eighty-five percent (85%) of the Net
Amount of Eligible Millbrook Receivables, plus (ii)
the lesser of (a) $60,000,000 and (b) up to
sixty-five percent (65%) of the Net Amount of
Eligible Millbrook Inventory, plus (iii) up to
sixty-five percent (65%) of the Net Amount of
Eligible Manischewitz Inventory, plus (iv) up to
eighty-five percent (85%) of the Net Amount of
Eligible Manischewitz Receivables,
"plus, during the Availability Period, (v) the lesser of (A) $10,000,000 or (B)
up to 70% of the Appraised Value of the Eligible Real Property (this clause
(1)(B) referred to herein as the "Borrowing Base") minus (2) the Letter of
Credit Usage at such time (not to exceed $10,000,000 at any time)."
(f) Section 6.05(m) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(m) (x) on October 30, 2001, a certificate
of a Responsible Officer of the Borrowers, certifying
that to the best of his or her knowledge no Default
or Event of Default has occurred and is continuing
for the fiscal period ended September 30, 2001 and
(y) on November 15, 2001, a certificate of a
Responsible Officer of the Borrowers, recertifying
that to the best of his or her knowledge no Default
or Event of Default has occurred (including
calculations demonstrating compliance with the
covenants set forth in Sections 7.09 hereof) for the
fiscal period ended September 30, 2001."
(g) Section 7.08 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"SECTION 7.08. Debt Service Coverage Ratio.
Permit the Debt Service Coverage Ratio of the
Borrowers and their subsidiaries to be less than
1.05:1.00 at September 30, 2002 and at the end of
each fiscal quarter thereafter."
(h) Section 7.09(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(b) EBITDA. Permit EBITDA of the Borrowers
and their subsidiaries for the twelve month period
ending on the dates set forth below to be less than
the respective amounts set forth below opposite such
dates:
Twelve Month Period Ending Minimum EBITDA
-------------------------- --------------
September 30, 2001 $18,000,000
December 31, 2001 $18,500,000
March 31, 2002 $18,500,000
June 30, 2002 $18,500,000
(i) Section 7.09(c) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Availability.
(i) Permit (x) the average Availability, as determined by the
Agent on or about October 26, 2001, for the period commencing
(and including) August 24, 2001 through and including October
25, 2001, to be less than $5,500,000; and (y) Availability on
October 30, 2001 to be less than $5,500,000 (based upon the
most current information supplied by the Borrowers to the
Agent and the Lenders);
(ii) Permit (x) the average Availability, as determined by the
Agent on or about April 29, 2002, for the period commencing
(and including) March 1, 2002 through and including April 26,
2002, to be less than $10,000,000; and (y) Availability on
April 29, 2002 to be less than $10,000,000 (based upon the
most current information supplied by the Borrowers to the
Agent and the Lenders); and
(iii) Permit (x) the average Availability, as determined by
the Agent on or about October 29, 2002, for the period
commencing (and including) September 2, 2002 through and
including October 29, 2002, to be less than $7,500,000; and
(y) Availability on October 30, 2002 to be less than
$7,500,000 (based upon the most current information supplied
by the Borrowers to the Agent and the Lenders)."
3. 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.
4. Conditions Precedent. Notwithstanding any term or provision of this Agreement
to the contrary, Paragraph 2 hereof shall not become effective until:
(a) the Agent shall have received counterparts of this Agreement, duly
executed and delivered on behalf of the Borrowers, the Agent and the
Lenders;
(b) the Agent shall have received a written opinion of Jenkens &
Xxxxxxxxx Xxxxxx Xxxxxx LLP, counsel for the Borrowers, covering such
matters as requested by the Agent and its counsel (including, without
limitation, an opinion that the approval of the holders of the Senior
Notes and the Interest Reserve Notes is not required for the
transactions contemplated by this Agreement) and otherwise in form and
substance reasonably satisfactory to the Agent and its counsel;
(c) the Agent shall have received evidence that all approvals (if
required) by the holders of the Senior Notes and the Interest Reserve
Notes to the transactions contemplated by this Agreement shall have
been received;
(d) the Agent shall have received draft appraisals in form and
substance reasonably satisfactory to the Agent with respect to each of
the real property owned by the Borrowers and located in Harrison,
Arkansas, Vineland, New Jersey and Jersey City, New Jersey, dated on or
about October 24, 2001, with respect to the Harrison, Arkansas real
property, October 26, 2001, with respect to the Jersey City, New Jersey
property and October 17, 2001, with respect to the Vineland, New Jersey
real property, which appraisals shall be conducted by appraisers
reasonably satisfactory to the Agent and which, in each case, shall be
in compliance with the requirements of FIRREA and applicable
regulations;
(e) the Agent shall have received the results of a Phase I
environmental audit with respect to each of the real property owned by
the Borrowers and located in Harrison, Arkansas, Vineland, New Jersey
and Jersey City, New Jersey conducted by a firm reasonably satisfactory
to the Agent and the Lenders, and the scope, methodology and results of
such environmental audit shall be reasonably satisfactory to the Agent
in all respects;
(f) the Agent shall have received mortgages with respect to each of the
real property owned by the Borrowers and located in Harrison, Arkansas,
Vineland, New Jersey and Jersey City, New Jersey, together with an
A.L.T.A. mortgage policy of title insurance or a binder issued by a
title insurance company reasonably satisfactory to the Agent and in an
amount reasonably satisfactory to the Agent, flood insurance, if
required by the Agent and an A.L.T.A. survey and surveyor's
certification, in each case in form, scope and amount reasonably
satisfactory in all respects to the Agent;
(g) the Agent shall have received opinions of counsel with respect to
such matters as requested by the Agent and its counsel with respect to
the mortgages referred to above and otherwise in form and substance
reasonably satisfactory to the Agent and its counsel;
(h) the Agent shall have received an amended and restated Pledge
Agreement in form and substance reasonably satisfactory to the Agent,
together with such other pledge agreements, documents, financing
statements and instruments necessary to effectuate the perfection of
the Agent's (on behalf of the Lenders) lien on 100% of the membership
interests in Manischewitz;
(i) the Agent shall have received an amended and restated Security
Agreement (Manischewitz) in form and substance reasonably satisfactory
to the Agent, together with such other documents, financing statements
and instruments necessary to effectuate the perfection of the Agent's
(on behalf of the Lenders) lien on Eligible Real Property and machinery
and equipment of Manischewitz;
(j) the Agent shall have received the results of a search of the
Uniform Commercial Code filings made with respect to Manischewitz in
the jurisdictions in which such Borrower is doing business and/or in
which any Collateral is located;
(k) the Borrowers shall have paid a fee equal to $35,000 to each
Lender; and
(l) the Agent shall have received such other documents as the Lenders
or the Agent or the Agent's counsel shall reasonably deem necessary.
5. 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,
fees incurred in connection with any field examinations, appraisals,
environmental audits and the reasonable fees and out-of-pocket expenses of
counsel to the Agent.
6. Conditions Subsequent. Within 60 days of the date hereof, the Borrowers shall
(i) cause an appraisal to be performed (or otherwise permit an appraisal to be
performed) with respect to the equipment which is subject to the amended and
restated Security Agreement referred to in Section 4(i) above, such appraisal to
be performed by an appraiser reasonably satisfactory to the Agent and the
Lenders and (ii) deliver the results thereof to the Agent (with copies for each
of the Lenders). The Borrowers agree to pay all reasonable fees and
out-of-pocket expenses incurred by the Agent in connection with such appraisal.
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 4 hereof, the Credit Agreement 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.
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).
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman
THE B. MANISCHEWITZ COMPANY, LLC
By: Xxxxxxx X. Xxxxxxxxx, its managing member
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
JPMORGAN CHASE BANK, as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Co-Agent and Lender
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FLEET BUSINESS CREDIT, LLC, as Lender
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
LASALLE BUSINESS CREDIT CORPORATION, as Lender
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
