Exhibit 10.1.5
CONSENT AND AMENDMENT AGREEMENT
CONSENT AND AMENDMENT AGREEMENT, dated as of January 31, 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, Millbrook is acquiring certain assets pursuant to the
terms and provisions of an Asset Purchase Agreement, dated as of January 6, 2000
(as amended, the "Asset Purchase Agreement"), by and among X. Xxxxxxx & Sons,
Inc., X. Xxxxxxx & Sons/New York, Inc., Gold Boat Corporation, Atlantic Gourmet
Inc., the Shareholders (as such term is defined in the Asset Purchase Agreement)
and Millbrook (such transaction being referred to herein as the "Transaction").
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. Consent under Credit Agreement. Subject to the conditions
as to effectiveness set forth in Paragraph 7 of this Agreement, the Required
Lenders hereby consent to the terms and provisions of the Transaction.
3. Schedules to Credit Agreement. Subject to the conditions
as to effectiveness set forth in Paragraph 7 of this Agreement, Schedules 4.01,
4.09, 4.19 and 7.06 to the Credit Agreement are hereby replaced in their
entirety by Schedules 4.01, 4.09, 4.19 and 7.06 attached hereto.
4. Security Agreement (Millbrook). Subject to the conditions
as to effectiveness set forth in Paragraph 7 of this Agreement, Schedule I to
the Security Agreement (Millbrook) is hereby amended by adding thereto the
locations of Collateral set forth on Schedule 1 attached hereto.
5. Security Agreement - Patents and Trademarks
(Manischewitz). Subject to the conditions as to effectiveness set forth in
Paragraph 7 of this Agreement, Schedule A to the Security
Agreement - Patents and Trademarks (Manischewitz) is hereby amended by adding
thereto the registered U.S. Trademarks and Trademark applications set forth on
Schedule 2 attached hereto.
6. 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):
(1) 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).
(2) Each Borrower has the requisite power to execute,
deliver and carry out the terms and provisions of this Agreement.
(3) 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.
(4) 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.
7. Conditions Precedent. Notwithstanding any term or
provision of this Agreement to the contrary, Paragraphs 2, 3, 4 and 5 hereof
shall not become effective until:
(1) the Agent shall have received counterparts of this
Agreement, duly executed and delivered on behalf of the Borrowers, Enterprises,
the Agent and the Lenders;
(2) the Agent shall have received evidence satisfactory
to it of the assignment by Millbrook to Manischewitz of all of Millbrook's
right, title and interest in and to all of the Trademarks and Trademark
applications acquired by Millbrook in connection with the Transaction;
(3) the Agent shall have received an Assignment for
Security (Trademarks), in substantially the same form as Exhibit 2 to the
Security Agreement - Patents and Trademarks (Manischewitz), with respect to all
of the Trademarks and Trademark applications acquired by Millbrook in connection
with the Transaction (which Trademarks and Trademark applications have been
assigned to Manischewitz);
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(4) the Agent shall have received a written opinion of
Xxxxxx Xxxxxx Flattau & Klimpl, LLP, counsel for the Borrowers, in form and
substance satisfactory to the Agent and its counsel;
(5) the Agent shall have received an acknowledgment copy,
or other evidence satisfactory to it, of each filing, registration or
recordation (including, without limitation, UCC-1 Financing Statements) required
by law or requested by the Agent to be filed, registered or recorded in order to
create in favor of the Agent for its own benefit and for the benefit of the
Lenders a first priority perfected security interest in the Collateral acquired
in connection with the Transaction;
(6) with respect to any Liens on the assets being
acquired pursuant to the Transaction which are not permitted by Section 7.01 of
the Credit Agreement, the Agent shall have received evidence, in form and
substance satisfactory to it, of the termination of all such Liens;
(7) the Agent shall have copies of all lease agreements
assumed by Millbrook in connection with the Transaction, together with
appropriate landlord waivers with respect thereto in form and substance
satisfactory to the Agent;
(8) the Agent shall have (i) received a certified copy of
the Asset Purchase Agreement, including all amendments and schedules thereto, as
well as all agreements, document and instruments executed and delivered in
connection therewith (including opinions of legal counsel), (ii) received
evidence that the Asset Purchase Agreement is in full force and effect and all
consents, filings and approvals required by applicable law in connection
therewith shall have been obtained and made, (iii) determined that the terms and
provisions of all agreements and documents in connection with the Transaction,
including, without limitation, the Asset Purchase Agreement, are satisfactory in
form and substance and shall have determined to its satisfaction that the
consummation of the Transaction and other transactions contemplated by the Asset
Purchase Agreement are in compliance with all applicable laws and regulations
and (iv) received evidence satisfactory to it that no Default or Event of
Default would occur as a result of the Transaction;
(9) the Borrowers shall have paid a fee equal to $15,000
to each Lender signing this Agreement; and
(10) the Agent shall have received such other documents
as the Lenders or the Agent or the Agent's counsel shall reasonably deem
necessary.
8. 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 field examination performed in connection with the
Transaction and the reasonable fees and out-of-pocket expenses of counsel to the
Agent.
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9. References to Agreements. The term "Agreement", "hereof",
"herein" and similar terms as used in the Security Agreement (Millbrook) or in
the Security Agreement - Patents and Trademarks (Millbrook), and references in
the Credit Agreement and the other Loan Documents to the Security Agreement
(Millbrook) and the Security Agreement -Patents and Trademarks (Millbrook),
shall mean and refer to, from and after the effective date of the amendments
contained herein as determined in accordance with Paragraph 6 hereof, such
agreements as amended by this Agreement.
10. 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 Security Agreement (Millbrook), the Security
Agreement - Patents and Trademarks (Millbrook) and the other Loan Documents
shall remain in full force and effect from and after the date of this Agreement.
11. 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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12. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the xxxx 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
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
THE B. MANISCHEWITZ COMPANY, LLC
By: Xxxxxxx X. Xxxxxxxxx, its managing
member
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
THE CHASE MANHATTAN BANK, as Agent and
Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
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
FLEET NATIONAL BANK, as Lender
By: /s/ Xxxxxxx X. Post
-----------------------------------
Name: Xxxxxxx X. Post
Title: Banking Officer
LASALLE BUSINESS CREDIT CORPORATION, as
Lender
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: First Vice President
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