Exhibit 10.1.9
CONSENT AND AMENDMENT AGREEMENT
CONSENT AND AMENDMENT AGREEMENT, dated as of November 1, 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, Manischewitz is acquiring certain assets pursuant to
the terms and provisions of an Asset Purchase Agreement, dated as of October 25,
2000, as amended (the "Asset Purchase Agreement"), by and among Guiltless
Gourmet, Inc., a Texas corporation, Xxxx X. Xxxxxxx, III, Xxxx X. Xxxx and
Manischewitz (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. Schedule to Credit Agreement. Subject to the conditions as
to effectiveness set forth in Paragraph 7 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 (Manischewitz). Subject to the
conditions as to effectiveness set forth in Paragraph 7 of this Agreement,
Schedule I to the Security Agreement (Manischewitz) 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:
(a) Section 2(c) of the Security Agreement - Patents and
Trademarks (Manischewitz) is hereby amended in its entirety to
read as follows:
"(c) Debtor (either itself or through licensees) will
maintain the Trademarks in full force free from any
claim of abandonment for nonuse and, except to the
extent that the Secured Party, upon prior written
notice by Debtor, shall consent, Debtor will not do
any act or knowingly omit to do any act whereby any
Trademark may become invalidated or abandoned unless
such invalidation or abandonment would not have a
Material Adverse Effect and, in any event, Debtor
shall notify the Secured Party immediately if it
knows of any reason or has reason to know that any
Trademark may become invalidated or abandoned."; and
(b) 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):
(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.
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(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.
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:
(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 (i) 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 Manischewitz in
connection with the Transaction and (ii) a Pledge Agreement, in substantially
the form of Exhibit A hereto, with respect to the Promissory Note, dated April
27, 2000, made payable by Keystone Food Products, Inc. and assigned to
Manischewitz ;
(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 each filing, registration
or recordation (including, without limitation, UCC-1 Financing Statements), duly
executed by Manischewitz, 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;
(e) with respect to Liens, if any, 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;
(f) 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;
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(g) the Borrowers shall have paid a fee equal to $5,000 to
each Lender signing this Agreement; and
(h) 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 reasonable fees and out-of-pocket expenses of counsel to the
Agent.
9. References to Agreements. The term "Agreement", "hereof",
"herein" and similar terms as used in the Credit Agreement, the Security
Agreement (Manischewitz) or the Security Agreement - Patents and Trademarks
(Manischewitz), and references in the Credit Agreement and the other Loan
Documents to the Credit Agreement, the Security Agreement (Manischewitz) and the
Security Agreement-Patents and Trademarks (Manischewitz), shall mean and refer
to, from and after the effective date of the amendments contained herein as
determined in accordance with Paragraph 7 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 Credit Agreement, the Security Agreement
(Manischewitz), the Security Agreement - Patents and Trademarks (Manischewitz)
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 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/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Lender
By:/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Assistant 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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