Exhibit 10.1.6
CONSENT AND AMENDMENT AGREEMENT
CONSENT AND AMENDMENT AGREEMENT, dated as of April 17, 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 March 9, 2000
(as amended, the "Asset Purchase Agreement"), by and among Xxxxxx Buckeye
Biscuit Company, 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. Credit Agreement. (a) Consent. Subject to the conditions
as to effectiveness set forth in Paragraph 8 of this Agreement, the Required
Lenders hereby consent to the terms and provisions of the Transaction.
(b) Borrowing Base. Subject to the conditions as to
effectiveness set forth in Paragraph 8 of this Agreement, the parties hereto
agree that until such time as the Agent shall have completed its field
examination with respect to the inventory and Receivables acquired by Millbrook
in connection with the Transaction (the results of such field examination to be
satisfactory to the Agent in all respects), (i) the "Net Amount of Eligible
Millbrook Inventory" shall be calculated by reference to 95% of the aggregate
value of Eligible Millbrook Inventory acquired by Millbrook in connection with
the Transaction and (ii) the "Net Amount of Eligible Millbrook Receivables"
shall be calculated by reference to 95% of the gross amount of Eligible
Millbrook Receivables acquired by Millbrook in connection with the Transaction.
3. Schedules to Credit Agreement. Subject to the conditions
as to effectiveness set forth in Paragraph 8 of this Agreement, Schedule 7.06 to
the Credit Agreement are hereby replaced in their entirety by Schedule 7.06
attached hereto.
4. Security Agreement (Millbrook). Subject to the conditions
as to effectiveness set forth in Paragraph 8 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 (Millbrook).
Subject to the conditions as to effectiveness set forth in Paragraph 8 of this
Agreement, Schedule A to the Security Agreement - Patents and Trademarks
(Millbrook) is hereby amended by adding thereto the registered Trademark and
Trademark applications set forth on Schedule 2 attached hereto.
6. Post-Closing. The Borrowers shall, by April 24, 2000,
establish lock-box accounts at The Chase Manhattan Bank, another Lender or
another financial institution (subject to a tri-party agreement satisfactory to
the Agent) for the collection of all remittances on Receivables attributable to
the Transaction. All such remittance shall be applied as set forth in Section
10.01 of the Credit Agreement. The Borrowers acknowledge that failure to comply
with this paragraph 6 shall constitute an Event of Default.
7. 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.
8. Conditions Precedent. Notwithstanding any term or
provision of this Agreement to the contrary, Paragraphs 2, 3, 4, 5 and 6 hereof
shall not become effective until:
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(a) the Agent shall have received counterparts of this
Agreement, duly executed and delivered on behalf of the Borrowers, the Agent and
the Required Lenders;
(b) the Agent shall have received evidence that the
Borrowers have at least $17,500,000 of Availability on the date of the Agreement
(after giving effect to the Transaction);
(c) the Agent shall have received a written opinion of
Xxxxxx Xxxxxx LLP, counsel for the Borrowers, in form and substance satisfactory
to the Agent and its counsel;
(d) the Agent shall have received evidence that the
Borrowers are in compliance with Section 6.03 of the Credit Agreement with
respect to the assets and locations acquired pursuant to the Transaction;
(e) 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;
(f) 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;
(g) the Agent shall have copies of all real estate lease
agreements assumed by Millbrook in connection with the Transaction, together
with appropriate landlord or warehousemen waivers with respect thereto in form
and substance satisfactory to the Agent;
(h) the Agent shall have received Borrowing Base
certificates (i) dated as of February 29, 2000 (reflecting the X. Xxxxxxx &
Sons, Inc. acquisition), and (ii) dated as of the date hereof (reflecting the
Transaction), in each case to be substantially in the form of Schedule 6.05(g)
to the Credit Agreement and otherwise in form and substance satisfactory to the
Agent;
(i) 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
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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;
(j) the Borrowers shall have paid a fee equal to $15,000
to each Lender signing this Agreement; and
(k) the Agent shall have received such other documents as
the Lenders or the Agent or the Agent's counsel shall reasonably deem necessary.
9. 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.
10. 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 8 hereof, such
agreements as amended by this Agreement.
11. 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.
12. 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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13. 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
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Name: Xxxxx Xxxxxxxx
Title: Vice President
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FLEET BUSINESS CREDIT CORPORATION, as Lender
By: /s/ Xxxx X. Xxxxxx, Xx.
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Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
FLEET NATIONAL BANK, as Lender
By: /s/ Xxxx X. X'Xxxx
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Name: Xxxx X. X'Xxxx
Title: Vice President
LASALLE BUSINESS CREDIT CORPORATION, as Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
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