EXHIBIT 10.1.16
AMENDMENT AND WAIVER AGREEMENT
AMENDMENT AND WAIVER AGREEMENT, dated as of July 1, 2004 (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
further 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, JPMorgan Chase 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. Terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
WHEREAS, R.A.B. Enterprises, Inc. ("Enterprises") is a party to
Indenture, dated as of May 1, 1998 (as amended, the "Enterprises Indenture"),
among Enterprises, as issuer, JPMorgan Chase Bank, as successor trustee, and the
guarantors named therein, pursuant to which the Senior Notes were issued;
WHEREAS, R.A.B. Holdings, Inc. ("Holdings") is a party to Amended and
Restated Indenture, dated as of May 1, 2002 (as amended, the "Holdings
Indenture"), between Holdings, as issuer, and JPMorgan Chase Bank, as successor
trustee, pursuant to which the Interest Reserve Notes were issued;
WHEREAS, Enterprises and Holdings are in default of the Senior Notes
and certain of the Interest Reserve Notes on June 1, 2004, in that the interest
payment due May 1, 2004 has not been paid after giving effect to the applicable
grace period (collectively, the "Note Default");
WHEREAS, the Note Default has caused an Event of Default under the
Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders temporarily
waive the Event of Default that arises under the Credit Agreement solely as the
result of the Note Default.
WHEREAS, the Borrowers have additionally requested that the Lenders
extend the Revolving Credit Termination Date from January 15, 2005 to April 15,
2005.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and subject to the fulfillment of the
conditions set forth below, the parties hereto agree as follows:
1. Waiver. Effective as the date of all of the conditions to
effectiveness set forth in Paragraph 4 of this Agreement are satisfied (the
"Effective Date"), the Lenders agree to waive, for the period June 1, 2004
through and including the earlier to occur of (a) the date on which an
Acceleration Notice (as such term is defined in the Enterprises Indenture or the
Holdings Indenture, as applicable) has been sent pursuant to either the
Enterprises Indenture or the Holdings Indenture and (b) August 15, 2004, as any
Event of Default that arises under the Credit Agreement solely as the result of
the Note Default.
2. Amendment. The definitions of "Revolving Credit Termination Date"
contained in Section 1 of the Credit Agreement is hereby amended be deleting the
reference to "January 15, 2005" and substituting therefor a reference to "April
15, 2005".
3. Representation 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 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.
4. Conditions Precedent. Notwithstanding any term or provision of this
Agreement to the contrary, Paragraphs 1 and 2 hereof shall not become effective
until the Agent shall have received (x) counterparts of this Agreement, duly
executed and delivered on behalf of the Borrowers, the Agent and all of the
Lenders and (y) confirmation in form and substance reasonably satisfactory to
the Agent that holders of at least 90% of the Notes under both the Enterprises
Indenture and Holdings Indenture have entered into lockup or similar
arrangements with Enterprises and Holdings, respectively.
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5. Fees and Expenses of Agent. The Borrowers agree (x) 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 and (y) to pay concurrently herewith an amendment fee to each Lender in
the amount of $5,000.
6. 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 3 hereof, the Credit Agreement as
amended by this Agreement.
7. Continued Effectiveness. Except as specifically set forth in
Paragraphs 1 and 2 hereof, nothing herein shall be deemed to be a waiver or
amendment 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.
8. 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.
9. 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).
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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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JPMORGAN CHASE BANK, as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Co-Agent and Lender
By: /s/ Xxx X. Xxxxxxxxxxx
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Name: Xxx X. Xxxxxxxxxxx
Title: Vice President
FLEET BUSINESS CREDIT, LLC, as Lender
By: /s/ Xxx X. Xxxxxxxxxxx
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Name: Xxx X. Xxxxxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
Title: Vice President
LASALLE BUSINESS CREDIT, LLC, (successor by merger
to LaSalle Business Credit, Inc.) as Co-Agent and
Lender
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
