Exhibit 10.1
AMENDMENT AND ASSUMPTION AGREEMENT
AMENDMENT AND ASSUMPTION AGREEMENT ("Agreement") dated as of June __,
1999 by and between QF ACQUISITION CORP., a corporation organized under the laws
of the State of Delaware ("QFAC"), QFAC, LLC, a limited liability company
organized under the laws of the State of Delaware ("LLC"), CFP HOLDINGS, INC., a
corporation organized under the laws of the State of Delaware ("Holdings"),
Custom Food Products, Inc., a corporation organized under the laws of the State
of California ("Custom") and FLEET CAPITAL CORPORATION, with an office at 000
Xxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000 ("Lender").
BACKGROUND
Holdings, Custom, QFAC and Lender are parties to a Loan and Security
Agreement dated as of May 5, 1998 (as same has been amended, supplemented or
otherwise modified from time to time, the "Loan Agreement") pursuant to which
Lender provides Holdings, Custom and QFAC with certain financial accommodations.
Pursuant to the terms of a Merger Agreement ("Merger Agreement") dated
as of the date hereof between QFAC and LLC, QFAC shall merge with LLC and LLC
shall be the surviving company and LLC shall assume all of QFAC's obligations to
Lender under the Loan Documents (as amended, restated, modified and supplemented
from time to time, the "Assigned Documents").
In connection with the transactions contemplated by the Merger
Agreement, all of QFAC's rights and obligations under the Assigned Documents
shall automatically become the rights and obligations of LLC and LLC shall have
the benefit of all rights of QFAC and be bound by all obligations of QFAC to
Lender under the Assigned Documents, in each case on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, QFAC, LLC, Holdings, Custom and Lender hereto agree as follows:
1. All capitalized terms used herein which are not defined shall have
the meanings given to them in the Loan Agreement.
2. LLC hereby assumes in full, the payment, discharge, satisfaction and
performance of all obligations of QFAC under the Loan Agreement and all
obligations, indebtedness and liabilities of QFAC to Lender under the Loan
Documents. LLC hereby adopts all of the provisions, terms and conditions
contained in the Loan Agreement as if the Loan Agreement and the Loan Documents
had been entered into by and between LLC and Lender.
3. QFAC and LLC hereby acknowledge that each will from time to time
after the execution hereof, upon request of Lender, execute and deliver to
Lender such further
instruments, agreements and documents, and take such further action as Lender
may request in connection with the transactions herein contemplated.
4. Subject to satisfaction of the conditions precedent set forth in
Section 6 below, Lender hereby consents to the formation of LLC and the
execution of the Merger Agreement by the parties thereto and the transactions
contemplated therein and waives any Event of Default arising out of the
formation of LLC or the execution of or consummation of the transactions
contemplated by the Merger Agreement.
5. The Loan Agreement is hereby amended as follows:
(a) Section 1 is amended as follows:
(i) the following defined terms are hereby amended in their
entirety as follows:
"Borrower"- individually or collectively, any or all
of Holdings, Custom and/or LLC, as the context requires.
"Pledge Agreements" collectively, (a) the Pledge
Agreements dated the Closing Date and executed and delivered
to Lender by (i) Group with respect to stock of Holdings and
(ii) Holdings with respect to the stock of Custom and (b) the
Pledge Agreement dated as of June __, 1999 by Holdings with
respect to membership interests of LLC.
"Voting Stock"-Securities or membership interests of
any class or classes of a corporation or limited liability
company, as the case may be, the holders of which are
ordinarily, in the absence of contingencies, entitled to elect
a majority of the corporate or company directors (or Persons
performing similar functions).
(ii) the following defined term is hereby added in its
appropriate alphabetical order:
"LLC" - QFAC, LLC, a Delaware limited liability
company.
(b) Section 8.1(A) is amended in its entirety as follows:
(A) Organization and Qualification. Each
Borrower is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case may be,
listed on Exhibit 8.1(A) attached hereto and made a part hereof. Each
Borrower has duly qualified and is authorized to do business and is in
good standing in each state or jurisdiction listed on Exhibit 8.1(A)
which includes all states and jurisdictions where the character of its
Properties or the nature of its
activities make such qualification necessary, except where the failure
to so qualify would not have a Material Adverse Effect.
(c) Section 8.1(C) is amended in its entirety as follows:
(C) Power and Authority. Each Borrower is duly
authorized and empowered to enter into, execute, deliver and perform
this Agreement and each of the other Loan Documents to which it is a
party. The execution, delivery and performance of this Agreement and
each of the other Loan Documents have been duly authorized by all
necessary action and do not and will not (i) require any consent or
approval of its shareholders or members, as the case may be; (ii)
contravene its charter, articles or certificate of incorporation or
certificate of formation, as applicable, or its operating agreement or
by-laws, as applicable; (iii) violate, or cause any Borrower to be in
default under, any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award in effect having
applicability to any Borrower; (iv) result in a breach of or constitute
a default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which such Borrower is a party or by
which it or its Properties may be bound or affected; or (v) result in,
or require, the creation or imposition of any Lien (other than
Permitted Liens) upon or with respect to any of the Properties now
owned or hereafter acquired by any Borrower.
(d) Section 8.1(E) is amended in its entirety as follows:
(E) Use of Proceeds. Borrowers' uses of the proceeds
of any Loans pursuant to this Agreement are, and will continue to be,
legal and proper uses, duly authorized by its respective Board of
Directors or Board of Managers, as the case may be, and such uses will
not violate in any material respect any applicable laws including,
without limitation, the Foreign Assets Control Regulations, the Foreign
Funds Control Regulations and the Transaction Control Regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended).
(e) Section 8.1(I) is amended in its entirety as follows:
(I) Capital Structure. Exhibit 8.1(I) attached hereto
and made a part hereof states (a) the correct name of each of the
Subsidiaries of each Borrower, the jurisdiction of incorporation or
formation, as the case may be, and the percentage of its Voting Stock
owned by such Borrower, (b) the name of each Borrower's Affiliates and
the nature of the affiliation, (c) the number, nature and holder of all
outstanding Securities of Borrowers, and (d) the number of authorized,
issued and treasury shares of each Borrower. Holdings has good title to
all of the shares of stock and membership interests, as the case may
be, it purports to own of Custom and LLC and each Borrower has good
title to all of the shares of stock or membership interests, as the
case may be, it purports to own of each of its respective Subsidiaries,
free and clear in each case of any Lien other than Permitted Liens. All
such shares of stock and membership interests have been duly issued
and, in the case
of shares of stock, are fully paid and non-assessable. Except as set
forth on Exhibit 8.1(I), there are not outstanding any options to
purchase, or any rights or warrants to subscribe for, or any
commitments or agreements to issue or sell, or any capital stock,
Securities, membership interests or obligations convertible into, or
any powers of attorney relating to, shares of the capital stock of any
Borrower. Except as set forth on Exhibit 8.1(I), there are not
outstanding any agreements or instruments binding upon any of any
Borrower's shareholders or members relating to the ownership of its
shares of capital stock or membership interests, as the case may be.
(f) Section 8.1(DD) is hereby amended in its entirety as follows:
(B) True Copies of Charter and Other Documents. Each
Borrower has furnished or caused to be furnished to Lender true and
complete copies of (a) all charter and other incorporation or formation
documents (together with any amendments thereto), with respect to each
Borrower and (b) their respective by-laws or operating agreements
(together with any amendments thereto).
(g) Section 9.1(S) is amended by replacing subsection (a) and (b) with
the following:
(S) Notice of Amendment to Certain Documents. If (and
on each occasion that): (a) any Borrower's Certificate of
Incorporation, Certificate of Formation or any of the charter or other
incorporation or formation documents of any Borrower shall at any time
be modified or amended in any material respect or if any new filing of
such documents shall at any time take place; or (b) any Borrower's
by-laws or operating agreement shall at any time be modified or amended
in any material respect.
(h) Section 9.2(U) is amended by adding the words "or membership
interest" after the words "capital stock."
(i) Exhibits 4.6,8.1(A), 8.1(B), 8.1(H), 8.1(I), 8.1(P), 8.1(Q),
8.1(EE), 8.1(FF), 9.2(H), 9.2(P) to the Loan Agreement are replaced
with the corresponding schedules and exhibits to this Agreement.
(j) All references in the Loan Agreement to QFAC are hereby amended to
read LLC.
6. This Agreement shall become effective upon satisfaction of the
following conditions precedent:
(i) Lender shall have received in form and substance
satisfactory to Lender four (4) copies of this Agreement duly executed
by QFAC, Custom, Holdings and LLC;
(ii) Lender shall have received in form and substance
satisfactory to Lender executed copies of the Merger Agreement, the
Operating Agreement of LLC and the Certificate of Formation of LLC;
(iii) Each document (including, without limitation,
any Uniform Commercial Code financing statements) required by this
Agreement or under law or reasonably requested by Lender to be filed,
registered or recorded in order to create, in favor of Lender, a
perfected security interest in or lien upon the Collateral owned by LLC
shall have been properly filed, registered or recorded in each
jurisdiction in which the filing, registration or recordation thereof
is so required or requested, and Lender shall have received an
acknowledgment copy, or other evidence satisfactory to it, of each such
filing, registration or recordation and satisfactory evidence of the
payment of any necessary fee, tax or expense relating thereto;
(iv) Lender shall have received a copy of the
resolutions in form and substance reasonably satisfactory to Lender, of
the Board of Directors of LLC authorizing (x) the execution, delivery
and performance of the Agreement, and (y) the granting by LLC of the
Liens upon the Collateral certified by the Secretary or an Assistant
Secretary of LLC as of the date of this Agreement; and, such
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded as of the date of such
certificate;
(v) Lender shall have received a copy of the Articles
or Certificate of Formation of LLC, and all amendments thereto,
certified by the Secretary of State or other appropriate official of
its jurisdiction of incorporation together with copies of the by-laws
or operating agreement of LLC certified as accurate and complete by the
Secretary or an Assistant Secretary of LLC;
(vi) Lender shall have received the executed legal
opinion of X'Xxxxxxxx Graev & Karabell, LLP in form and substance
satisfactory to Lender regarding the due authorization, enforceability
and validity of this Agreement and the transactions contemplated
herein;
(vii) Lender shall have received in form and
substance satisfactory to Lender, certified copies of LLC' casualty
insurance policies, together with loss payable endorsements on Lender's
standard form of loss payee endorsement naming Lender as loss payee,
and certified copies of LLC' liability insurance policies, together
with endorsements naming Lender as a co-insured;
(viii) Lender shall have received a duly executed
agreement establishing a Dominion Account for LLC with financial
institutions reasonably acceptable to Lender for the collection or
servicing of the Accounts and proceeds of the Collateral of LLC;
(ix) Lender shall have received such other
certificates, instruments, documents and agreements as may reasonably
be required by Lender in connection with this Agreement or its counsel,
each of which shall be in form and substance satisfactory to Lender and
its counsel.
7. Except as expressly provided herein, all of the representations,
warranties, terms, covenants and conditions contained in the Loan Agreement, the
Loan Documents and the Mortgage shall remain unamended and shall continue to be
and shall remain in full force and effect in accordance with their respective
terms. The amendment to the Loan Agreement set forth herein shall be limited
precisely as provided for herein and shall not be deemed a waiver or
modification of, or an amendment to, any other term or provision of the Loan
Agreement.
8. This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
9. This Agreement may be executed in one or more counterparts each of
which taken together shall constitute one and the same instrument. Any signature
delivered by a party via facsimile shall be deemed an original signature hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year specified at the beginning hereof.
QF ACQUISITION CORP
By: ________________________________
Its: _______________________________
QFAC, LLC
By: ________________________________
Its: _______________________________
CFP HOLDINGS, INC.
By: ________________________________
Its: _______________________________
CUSTOM FOOD PRODUCTS, INC.
By: ________________________________
Its: _______________________________
FLEET CAPITAL CORPORATION
By: ________________________________
Its: _______________________________
