Exhibit 10.1.11
EXECUTION COPY
AMENDMENT AND CONSENT AGREEMENT
AMENDMENT AND CONSENT AGREEMENT, dated as of April 30, 2002
(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, 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.
WHEREAS, the parties hereto have agreed to amend certain
provisions of the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt and legal sufficiency 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. Amendments to Credit Agreement. Subject to the conditions as to effectiveness
set forth in Paragraph 4 of this Agreement, the Credit Agreement is hereby
amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
the following defined terms in the correct alphabetical order:
"Available Amount" shall mean (i) with
respect to the period commencing on November 1, 2001
through and including July 31, 2003, $10,000,000,
(ii) with respect to the period commencing August 1,
2003 through and including October 31, 2003,
$7,500,000, (iii) with respect to the period
commencing on November 1, 2003 through and including
January 31, 2004, $5,000,000 and (iv) with respect to
the remainder of the Availability Period, $2,500,000.
" Test Date" shall mean, (i) with respect to
each November 1st interest payment date under the
Interest Reserve Notes, the immediately preceding
October 30th and (2) with respect to each May 1st
interest payment date under the Interest Reserve
Notes, the immediately preceding April 29th;
provided, however, that if any of the foregoing dates
is not a Business Day, the applicable Test Date shall
be the immediately preceding Business Day.
"Test Period" shall mean, (i) with respect
to each November 1st interest payment date under the
Interest Reserve Notes, the period commencing on the
immediately preceding September 1st through and
including the immediately preceding October 30th and
(ii) with respect to each May 1st interest payment
date under the Interest Reserve Notes, the period
commencing on the immediately preceding March 1st
through and including the immediately preceding April
29th; provided, however, that if any of the foregoing
dates is not a Business Day, the applicable Test
Period shall commence or end, as the case may be, on
the immediately preceding Business Day.
(b) The definition of "Availability Period" contained in Section 1.01
of the Credit Agreement is hereby amended by deleting the reference to
"April 29, 2003"appearing therein and substituting "April 30, 2004"
therefor.
(c) The last paragraph of the definition of "Interest Margin" contained
in Section 1.01 of the Credit Agreement is hereby amended by deleting
the reference to "March 31, 2002" appearing therein and substituting
the date "March 31, 2003" therefor.
(d) The definition of "Interest Reserve Notes" contained in Section
1.01 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Interest Reserve Notes" shall mean
Holdings' Senior Notes issued pursuant to that
certain Amended and Restated Indenture, dated as of
May 1, 2002, by and between Holdings and JPMorgan
Chase Bank, as trustee.
(e) The definition of "Revolving Credit Termination Date" contained in
Section 1.01 of the Credit Agreement is hereby amended by deleting the
reference to "September 30, 2003" and substituting "October 28, 2004"
therefor.
(f) Section 2.01(b)(v)(A) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(A) the then Available Amount"
(g) Section 6.05(m) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(m) (x) on October 30, 2002, a certificate
of a Responsible Officer of the Borrowers, certifying
that to the best of his or her knowledge no Default
or Event of Default has occurred and is continuing
for the fiscal period ended September 30, 2002 and
(y) on November 15, 2002, a certificate of a
Responsible Officer of the Borrowers (including
calculations demonstrating compliance with the
covenants set forth in Section 7.09 hereof),
recertifying that to the best of his or her knowledge
no Default or Event of Default has occurred for the
fiscal period ended September 30, 2002."
(h) Clause (y) of Section 7.04 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(y) the Borrowers may make distributions,
dividends or payments in cash representing interest
on the intercompany Indebtedness permitted pursuant
to Section 7.03(xi) hereof to Enterprises from time
to time (i) in an aggregate amount not to exceed the
amount of interest paid or due to be paid to the
holders of the Senior Notes as of such time and (ii)
after April 30, 2002, in an aggregate amount of the
interest paid or due to be paid to the holders of the
Interest Reserve Notes as of such time; provided,
that, no distribution, dividend or payment in cash
shall be made pursuant to this clause (y) if a
Default or an Event of Default shall have occurred
and be continuing at the time of the making of such
distribution, dividend or payment or would result
therefrom; provided, further, in addition to the
foregoing, prior to the making of any distribution,
dividend or payment in cash with respect to the
interest paid or to be paid to the holders of the
Interest Reserve Notes, the following conditions
shall have been satisfied: (A) the average
Availability shall be greater than $12,500,000 for
the applicable Test Period and (B) Availability shall
be greater than $12,500,000 on the applicable Test
Date".
(i) Section 7.09(c) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Availability. (i) Permit (x) the
average Availability, as determined by the Agent on
or about April 29, 2002, for the period commencing
(and including) March 1, 2002 through and including
April 26, 2002, to be less than $10,000,000; and (y)
Availability on April 29, 2002 to be less than
$10,000,000 (based upon the most current information
supplied by the Borrowers to the Agent and the
Lenders);
(ii) Permit (x) the average Availability, as
determined by the Agent on or about October 29, 2002,
for the period commencing (and including) August 30,
2002 through and including October 28, 2002, to be
less than $7,500,000; and (y) Availability on October
30, 2002 to be less than $7,500,000 (based upon the
most current information supplied by the Borrowers to
the Agent and the Lenders);
(iii) Permit (x) the average Availability,
as determined by the Agent on or about April 29,
2003, for the period commencing (and including)
February 28, 2003 through and including April 28,
2003, to be less than $10,000,000; and (y)
Availability on April 29, 2003 to be less than
$10,000,000 (based upon the most current information
supplied by the Borrowers to the Agent and the
Lenders);
(iv) Permit (x) the average Availability, as
determined by the Agent on or about October 29, 2003,
for the period commencing (and including) August 29,
2003 through and including October 28, 2003, to be
less than $7,500,000; and (y) Availability on October
30, 2003 to be less than $7,500,000 (based upon the
most current information supplied by the Borrowers to
the Agent and the Lenders); and
(v) Permit (x) the average Availability, as
determined by the Agent on or about April 29, 2004,
for the period commencing (and including) March 1,
2004 through and including April 28, 2004, to be less
than $10,000,000; and (y) Availability on April 29,
2004 to be less than $10,000,000 (based upon the most
current information supplied by the Borrowers to the
Agent and the Lenders)."
3. 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.
4. Conditions Precedent. Notwithstanding any term or provision of this Agreement
to the contrary, Paragraph 2 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
Lenders;
(b) the Agent shall have received a written opinion of Jenkens &
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Borrowers, covering such
matters as requested by the Agent and its counsel (including, without
limitation, an opinion that the approval of the holders of the Senior
Notes and the Interest Reserve Notes is not required for the
transactions contemplated by this Agreement) and otherwise in form and
substance reasonably satisfactory to the Agent and its counsel;
(c) the Agent shall have received final versions of the Amended and
Restated Indenture, dated as of May 1, 2002, by and between Holdings
and JPMorgan Chase Bank, as trustee (the "Amended and Restated
Indenture"), the form and substance thereof to be in form and substance
reasonably satisfactory to the Agent and its counsel;
(d) the Agent shall have received evidence that all approvals (if
required) by the holders of the Senior Notes and the Interest Reserve
Notes to the transactions contemplated by this Agreement shall have
been received;
(e) the Borrowers shall have paid to each Lender a fee equal to 0.20%
of such Lender's Commitment; and
(f) the Agent shall have received such other documents as the Lenders
or the Agent or the Agent's counsel shall reasonably deem necessary.
5. 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.
6. Consent under Credit Agreement. Subject to the conditions to effectiveness
set forth in Paragraph 4 of this Agreement, the Lenders hereby consent to the
Borrowers making a distribution to Enterprises so that Enterprises can make a
distribution to Holdings in order for Holdings to pay for the reasonable fees
and expenses incurred by Holdings in connection with the Amended and Restated
Indenture.
7. 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 4 hereof, the Credit Agreement as
amended by this Agreement.
8. 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 and the other Loan Documents shall remain in
full force and effect from and after the date of this Agreement.
9. 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.
10. 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman
THE B. MANISCHEWITZ COMPANY, LLC
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, its managing member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
JPMORGAN CHASE BANK, as Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Co-Agent and Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FLEET BUSINESS CREDIT, LLC, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
LASALLE BUSINESS CREDIT CORPORATION, as Lender
By: /s/ ▇▇▇▇▇▇ ▇. First
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Name: ▇▇▇▇▇▇ ▇. First
Title: Vice President
