FORBEARANCE, WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
EXECUTION
COPY
Exhibit
4.19
FORBEARANCE,
WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
THIS
FORBEARANCE, WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of
November 17, 2006 (this “Forbearance and First Amendment”), is entered
into by and among INTEGRATED BRANDS INC., a New Jersey corporation, ESKIMO
PIE
FROZEN DISTRIBUTION, INC. a Delaware corporation, ESKIMO PIE CORPORATION and
COOLBRANDS DAIRY, INC. (each a “Borrower” and, collectively, the
“Borrowers”), each of the Guarantors on the signature pages hereto (the
“Subsidiary Guarantors”), COOLBRANDS INTERNATIONAL INC., a Canadian
federal corporation (the “Parent” and together with the Subsidiary
Guarantors, the “Guarantors”), the several banks and other financial
institutions identified as “Lenders” on the signature pages hereto
(collectively, the “Lenders”), and JPMORGAN CHASE BANK, N.A., as
administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).
W
I T N E S S E T H:
WHEREAS,
the Parent, the Borrowers, the Subsidiary Guarantors, the Lenders and the
Administrative Agent entered into that certain Credit Agreement dated as of
April 21, 2006 (as amended, supplemented or otherwise modified from time to
time, the “Credit Agreement”);
WHEREAS,
certain Events of Default set forth on Schedule A hereto have occurred
and are continuing under Credit Agreement (the “Existing Events of
Default”);
WHEREAS,
the Borrowers have requested that the Lenders and the Administrative Agent
forbear from exercising certain rights and remedies in respect of the Existing
Events of Default, and the Administrative Agent and the Lenders have agreed
to
do so, but only upon the terms and conditions set forth herein;
WHEREAS,
the Borrowers have requested, and the Lenders, the Administrative Agent and
the
Guarantors have agreed, on terms and conditions set forth herein, to certain
modifications and waivers of the Credit Agreement; and
WHEREAS,
from and after the Effective Date (as hereinafter defined) of this Forbearance
and Amendment, the Credit Agreement shall be amended, subject to and upon the
terms and conditions set forth herein.
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 hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1. Definitions. Unless
otherwise defined herein, capitalized terms used in this Forbearance and First
Amendment, including its preamble and recitals, shall have the meanings ascribed
thereto in the Credit Agreement.
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ARTICLE
II
ACKNOWLEDGMENT
OF EVENTS OF DEFAULT; FORBEARANCE
Section
2.1. Forbearance.
a. On
the terms and subject to the conditions set forth in this Forbearance Agreement,
the Administrative Agent and the Lenders agree to forbear from taking any action
or exercising any right or remedy at law or in equity permitted to be taken
or
exercised by them under the Credit Agreement or the other Loan Documents or
under applicable law with respect to the Existing Events of Default during
the
period (the “Forbearance Period”) beginning on the Effective Date (as
hereinafter defined) and ending on the Maturity Date; provided,
however, that such forbearance shall extend only to the Existing Events
of Default and not to any other Default or Event of Default now existing or
occurring after the Effective Date and shall not in any way or manner restrict
the Administrative Agent or the Lenders from exercising any rights or remedies
they may have with respect to the Existing Events of Default from and after
the
expiration or termination of the Forbearance Period or with respect to any
other
Default or Event of Default at any time. The Forbearance Period shall
automatically terminate and expire on the Maturity Date without any requirement
for notice to the Borrowers, the Borrower Representative or any other Loan
Party
or any other Person and all rights, remedies and privileges of the
Administrative Agent and the Lenders under the Credit Agreement and the other
Loan Documents shall be available to, and capable of exercise by, the
Administrative Agent and the Lenders.
b. Notwithstanding
anything to the contrary set forth in the Credit Agreement or any other Loan
Document, the Loan Parties, the Administrative Agent and the Lenders agree
that
from and after the date hereof, upon the occurrence and during the continuance
of a Default or Event of Default that, in each case, is not an Existing Event
of
Default, no Lender shall have any obligation to make Revolving Loans pursuant
to
the Credit Agreement.
c. The
Administrative Agent and the Lenders agree that, notwithstanding the occurrence
and continuance of the Existing Events of Default and the provisions of Section
2.13(d) of the Credit Agreement, during the Forbearance Period, interest shall
accrue on the Loans and any other amounts outstanding under the Credit Agreement
at the non-default rate set forth in the Credit Agreement.
d. Notwithstanding
any other term or provision of the Credit Agreement to the contrary, beginning
on the Effective Date and each month thereafter during the Forbearance Period,
interest on all Loans shall be payable in arrears on the last Business Day
of
each month.
ARTICLE
III
ADDITIONAL
AGREEMENTS
Section
3.1. Asset
Sales; Application of Net Proceeds.
(a) In
order to induce the Administrative Agent and the Lenders to enter into this
Forbearance and First Amendment and, notwithstanding any term or provision
to
the contrary in any of the Loan Documents, each Loan Party acknowledges and
agrees that: (i) the first $1,000,000 of Net Proceeds received by any Loan
Party
from any sale, transfer or other disposition of any property or asset of any
such Loan Party other than the assets set forth on Schedule B hereto
shall be deposited into an account (the “Cash Collateral Account”)
maintained with the Administrative Agent as collateral security for the
Obligations, (ii) upon any sale, transfer or other disposition of the EP Brands
or Xxx Xxx, as set forth on Schedule B hereto, there shall be paid to the
Administrative Agent, for the ratable benefit of the Revolving Lenders, an
amount of Net Proceeds equal to the sum of $3 million less the amount on
deposit in the Cash Collateral Account which Net Proceeds shall be applied
to
the mandatory prepayment of the Revolving Loans in excess of $6,000,000 and
the
permanent reduction of the Revolving Commitment in excess of $6,000,000 (in
the
latter case, regardless of whether there are any Revolving Loans outstanding
in
excess of $6,000,000) and (iii) upon a sale of the capital stock or assets
of
Dairy, there shall be paid to the Administrative Agent for the ratable benefit
of the Lenders an amount sufficient to pay (a) the Secured Obligations in full
and (b) any amounts owing to Chase, as Administrative Agent under the Americana
Credit Agreement. In the case of payments made under clause (iii) of
the immediately preceding sentence, the Revolving Commitment shall be
terminated. After application of the Net Proceeds specified in
clauses (i) and (ii) above, the Loan Parties may from time to time deposit
the
Net Proceeds received by any Loan Party from any sale, transfer or other
disposition of any property or asset of any such Loan Party into an account
(the
“Working Capital Account”;
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and
together with the Cash Collateral Account, the “Accounts”) maintained
with the Administrative Agent in order to fund the working capital requirements
of the Borrowers. To the extent that EPDS (East) sale occurs prior to
the Effective Date, the Borrowers shall retain $1,000,000 of such proceeds
to be
deposited into the Cash Collateral Account immediately upon the Effective
Date.
(b) The
Loan Parties acknowledge and agree that all funds maintained in the Accounts
constitute Collateral securing the Obligations of the Loan Parties under the
Credit Agreement and the other Credit Documents.
(c) Subject
to the occurrence of the Effective Date (as defined hereinafter), the Lenders
hereby authorize and direct the Administrative Agent: (i) to release to the
Borrowers from time to time during the Forbearance Period amounts maintained
in
the Working Capital Account to fund the Borrowers’ operating requirements; and
(ii) to hold the remainder of the funds maintained in the Working Capital
Account as Collateral for the Obligations.
Section
3.2. Non-Payment
of Revolving Loan Obligations. The parties hereto hereby
acknowledge and agree that in the event the Revolving Loan Obligations shall
not
have been repaid in full in cash on the Maturity Date, the Administrative Agent
shall be irrevocably authorized without any requirement for notice to the
Borrowers, the Borrower Representative or any other Loan Party or any other
Person to: (i) apply any funds held in the Accounts to the repayment of the
Revolving Loan Obligations and the permanent reduction of the Revolving
Commitment and (ii) request drawings under the Standby Letter of Credit (as
hereinafter defined) in an amount equal to the Revolving Loan Obligations
outstanding on the date of presentment, (after application and receipt of any
funds held in the Accounts and concurrent reduction of Obligations) up to a
maximum amount equal to $5,000,000, which drawings shall be applied to the
permanent repayment of the Revolving Loan Obligations and the reduction of
the
Revolving Commitment.
Section
3.3. Expenses. The
Borrowers shall pay to the Administrative Agent for the ratable benefit of
the
Lenders all expenses and fees due and owing under the Credit Agreement and
other
Loan Documents on a current pay basis.
Section
3.4. Advisor
Fees and Expenses. During the Forbearance Period:
(a) the
Borrowers shall not be obligated to retain the services of a financial advisor
unless they determine to do so in their discretion; and
(b) the
Administrative Agent and the Lenders agree that they shall not seek
reimbursement of fees and expenses of any financial advisor retained by the
Administrative Agent or the Lenders.
Section
3.5. Availability. On
the terms and subject to the conditions set forth herein, the Lenders hereby
agree that, during the Forbearance Period, the Availability Block, currently
set
at $12,500,000, shall be reduced to zero and shall not be reinstated in any
amount during the Forbearance Period. For the avoidance of doubt, all
other provisions of the Borrowing Base shall remain in effect.
Section
3.6. Grant
of Security Interest. The Lenders and the Administrative Agent
consent to the Borrowers and the Guarantors granting a junior security interest
to 2118769 Ontario Inc. (“Ontario Inc.”) and Xxxxxxx Xxxxxxx (“Serruya”)
with respect to their obligations to Ontario, Inc. and Serruya resulting from
the Indemnification and Waiver (as defined below) and the Standby Letter of
Credit (as defined below), subject to such security interest and claims being
subordinated to the security interest securing the Obligations on terms
satisfactory to the Administrative Agent. The Borrowers acknowledge
and agree that the Lenders and the Administrative Agent are relying on the
Borrowers’ representations in Article VII hereof in granting this
consent.
ARTICLE
IV
WAIVERS
Section
4.1. Waivers.
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(a) The
Lenders hereby agree to waive the Existing Events of Default for the duration
of
the Forbearance Period.
(b) The
Lenders hereby agree to waive the Borrowers’ compliance with Sections 5.01(a),
(b), (f), (k), (l), (n), (o) and (p), 5.17, 5.18, 6.05, 6.12 and 6.13 of the
Credit Agreement and any event of default under clause (m) of Article VII in
connection with a change in the composition of the Board of Directors for the
duration of the Forbearance Period.
(c) Notwithstanding
any term or provision to the contrary in any Loan Document, during the
Forbearance Period, the consent of the Administrative Agent and the Lenders
shall not be required in connection with any sale, transfer or other disposition
of any property or asset of any Loan Party and the Lenders hereby agree to
waive
the mandatory prepayment requirements set forth in Section 2.11 of the Credit
Agreement with respect to any such sale, transfer or other disposition;
provided, however, that 100% of the Net Proceeds of any such sale,
transfer or other disposition shall be applied in accordance with the provisions
of Section 3.1 hereof; provided, further, that in the case of a
sale of the capital stock or assets of Dairy, there shall be paid to the
Administrative Agent for the ratable benefit of the Lenders an amount sufficient
to pay (i) the Secured Obligations in full and (ii) all fees and expenses due
and owing to Chase, as administrative agent under the Americana Credit
Agreement.
ARTICLE
V
AMENDMENTS
TO CREDIT AGREEMENT
Section
5.1. Amendments.
(a) Section
1.01 of the Credit Agreement is hereby amended by amending the definition of
“Maturity Date” to read as follows:
“Maturity
Date” means the earlier to occur of either of the following
events: (a) 5:00 p.m. (Eastern time) on May 17, 2007;
(b) the date on which any Loan Party becomes subject to a proceeding under
any existing or future law of any jurisdiction, domestic or foreign, relating
to
bankruptcy, insolvency, reorganization, conservatorship or relief of debtors
(including any case under Title 7 or 11 of the United States Code, as amended
from time to time, or any successor statute) or (c) the date on which the
Obligations are accelerated in accordance with the terms of Article VII of
the
Credit Agreement.
(b) Section
1.01 of the Credit Agreement is hereby further amended by amending the
definition of “Revolving Commitment” to read as follows:
“Revolving
Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters
of
Credit, Overadvances and Swingline Loans hereunder, expressed as an amount
representing the maximum possible aggregate amount of such Lender’s Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced from time to time pursuant to
assignments by or to such Lender pursuant to section 9.04. The amount
of each Lender’s Revolving Commitment is set forth on the Commitment Schedule,
or in the assignment and Assumption pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. The aggregate amount
of the Lenders’ Revolving Commitments is $8,000,000.
(c) Section
1.01 of the Credit Agreement is further amended by adding thereto each of the
following defined terms and definitions thereof in the proper alphabetical
order:
“Forbearance
and First Amendment” means that certain Forbearance, Waiver and First
Amendment, dated as of November 17, 2006, among the Borrowers, the Guarantors,
the Administrative Agent and the Lenders (as may be amended, modified or
supplemented from time to time).
4
“Intercreditor
Agreement” means that certain Amended and Restated Intercreditor and
Subordination Agreement, dated as of November 17, 2006, between the
Administrative Agent and Chase, as administrative agent for the lenders party
to
the Americana Credit Agreement.
“Revolving
Loan Obligations” means all obligations of the Borrowers to make payment, at
the times and on the terms set forth in this Agreement, of the unpaid principal
amount of and interest on the Revolving Loans and the payment or performance
of
all other obligations, liabilities and Indebtedness of the Borrowers to the
Revolving Lenders arising under or in connection with any Loan Document,
including, without limitation, all fees, costs, expenses and indemnity
obligations thereunder.
“Subdebt
Intercreditor Agreement” means that certain Intercreditor and Subordination
Agreement, dated as of November 17, 2006, by and among the Administrative Agent,
Chase, as administrative agent for the lenders party to the Americana Credit
Agreement, 2118769 Ontario Inc., an Ontario corporation and Xxxxxxx Xxxxxxx,
an
individual.
(d) The
definition of “Loan Documents” in Section 1.01 of the Credit Agreement is hereby
amended by inserting the phrase “Subdebt Intercreditor Agreement” after the
phrase “the Loan Guaranty,” on the second line thereof.
(e) Section
5.11 of the Credit Agreement is hereby deleted in its entirety and replaced
with
the following:
“Section
5.11. Field Examinations. During the pendency of an
Event of Default, each Loan Party shall, at their expense and upon the
Administrative Agent’s request, during normal business hours (and at any time
when a Default exists) permit the Administrative Agent to conduct field
examinations and accounting reviews of the existence and condition of the
Accounts, Inventory and books and records of such Loan Party and each Subsidiary
thereof and to review their compliance with the terms and conditions of this
Agreement and the other Loan Documents.”
(f) To
reflect the permanent reduction in the Revolving Commitments, the Commitment
Schedule to the Credit Agreement is hereby amended by deleting such
Schedule in its entirety and substituting therefor the Commitment Schedule
attached hereto.
ARTICLE
VI
CONDITIONS
TO EFFECTIVENESS
Section
6.1. Effective
Date. This Forbearance and First Amendment shall become effective
on the date (the “Effective Date”) when all of the following conditions
have been satisfied:
(a) the
Administrative Agent shall have received counterparts of this Forbearance and
First Amendment executed on behalf of the Borrowers, the Guarantors and the
Lenders;
(b) the
Administrative Agent shall have received an irrevocable standby letter of credit
(the “Standby Letter of Credit”) in favor of the Administrative Agent,
for the ratable benefit of the Revolving Lenders, in the aggregate face amount
of $5,000,000, which Standby Letter of Credit shall be issued by an acceptable
financial institution and be in form and substance satisfactory to the
Administrative Agent;
(c) the
Administrative Agent shall have received executed counterparts of an
indemnification and waiver agreement (the “Indemnification and Waiver”),
dated as of the date hereof, by and among Serruya, Ontario Inc.,
JPMorgan Chase Bank, N.A., in its respective capacities as Administrative Agent
and Lender under the Credit Agreement and the Americana Credit Agreement and
General Electric Capital Corporation and GMAC Commercial Finance LLC, in their
respective capacities as lenders under the Credit Agreement and the Americana
Credit Agreement, in form and substance satisfactory to the Administrative
Agent;
(d) the
Administrative Agent shall have received a duly executed copy of the Master
Assignment and Assumption, in the form of Exhibit A to the Americana
Credit Agreement, dated as of the date hereof, by and between each of
the Assignors identified on the signature pages thereto and each of the
Assignees identified on the signature pages thereto, and the transactions
contemplated thereby shall have been consummated;
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(e) the
Administrative Agent shall have received a duly executed copy of the
Intercreditor Agreement, in form and substance satisfactory to the
Administrative Agent;
(f) the
Administrative Agent shall have received a duly executed copy of the Subdebt
Intercreditor Agreement, in form and substance satisfactory to the
Administrative Agent;
(g) no
Default or Event of Default, other
than the Existing Events of Default, shall have occurred;
(h) the
representations and warranties made
by each of the Loan Parties herein shall be true and correct in all material
respects;
(i) the
Loan Parties shall have obtained all consents and waivers from any Person
necessary for the execution, delivery and performance of this Forbearance and
First Amendment and any other document, action or transaction contemplated
hereby;
(j) the
Borrowers shall have paid the
Administrative Agent, by wire transfer of immediately available funds, in
accordance with the Credit Agreement and the other Loan Documents, all fees
accrued and unpaid as of the Effective Date; and
(k) the
professional fees and expenses of
the Administrative Agent and the Lenders, including the reasonable fees and
expenses of the Administrative Agent’s legal counsel and financial advisor,
Xxxx Xxxxx Advisory Group (“CMAG”), shall have
been paid in full by wire
transfer of immediately available funds.
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES
Section
7.1. Representations
and Warranties. In order to induce the Administrative Agent and
the Lenders to enter into this Forbearance and First Amendment, the Loan Parties
represent and warrant to the Administrative Agent and the Lenders as
follows:
(a) the
execution, delivery and performance by the Loan Parties of this Forbearance
and
First Amendment and the performance by the Loan Parties of their respective
obligations under the Credit Agreement as modified by this Forbearance and
First
Amendment (and the transactions contemplated thereby) (i) have been duly
authorized by all requisite corporate or other action on the part of the Loan
Parties and (ii) do not (x) contravene or violate any of the organizational
or
constitutive documents of the Loan Parties, (y) contravene any contractual
restriction, law or governmental regulation or court decree or order binding
on
or affecting the Loan Parties, or (z) result in, or require the creation or
imposition of, any Lien on any property or assets of the Loan Parties except
pursuant to the terms of the Loan Documents;
(b) upon
the effectiveness of this Forbearance and First Amendment, it will constitute
the legal, valid and binding obligation of the Loan Parties, enforceable against
the Loan Parties in accordance with its terms, in each case subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors’ rights
generally, and to general equitable principles (whether considered in a
proceeding in equity or at law);
(c) except
with respect to the occurrence of the Existing Events of Default, the
representations and warranties set forth in Article III of the Credit
Agreement and in each of the other Loan Documents are true and correct in all
material respects, or in the case of a representation and warranty that is
qualified by a Material Adverse Effect shall be true and correct, with the
same
effect as if made on the Effective Date (except for representations and
warranties that are made as of a specific date or time, which shall be true
and
correct only as of such specific date or time); and
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(d) except
with respect to the occurrence of the Existing Events of Default, after giving
effect to the amendments set forth in this Forbearance and First Amendment,
no
Default or Event of Default has occurred and is continuing.
ARTICLE
VIII
ACKNOWLEDGEMENTS
BY BORROWER AND GUARANTORS
Section
8.1. Acknowledgments
of Indebtedness.
(a) Each
Borrower hereby confirms and acknowledges, as of the date hereof, that it is
validly indebted to the Administrative Agent and the Lenders for the payment
in
full of all Secured Obligations, without defense, counterclaim, offset,
cross-complaint, claim or demand of any kind or nature whatsoever.
(b) Each
Guarantor hereby confirms and acknowledges as of the date hereof that it is
validly indebted to the Administrative Agent and the Lenders for the payment
in
full of all Secured Obligations which it has guaranteed, without defense,
counterclaim, offset, cross-complaint, claim or demand of any kind or nature
whatsoever.
Section
8.2. Release. Each
of the Borrowers and each of the Guarantors, on its own behalf, and on behalf
of
its successors and assigns, hereby releases, waives and forever discharges
the
Administrative Agent, the Lenders and all of their officers, directors,
employees and agents from any and all actions, causes of action, debts, dues,
claims, demands, liabilities and obligations of every kind and nature, both
in
law and equity, known or unknown, whether matured or unmatured, absolute or
contingent arising from the beginning of the world through the date hereof
with
respect to this Forbearance and First Amendment, the Credit Agreement, the
other
Loan Documents and the transactions contemplated thereby.
Section
8.3. Loan
Documents Still in Force. Each of the Borrowers and the
Guarantors hereby (a) ratifies and affirms in their entirety the Credit
Agreement and the other Loan Documents and (b) subject to the terms and
conditions of this Forbearance, agrees that the Credit Agreement and other
Loan
Documents shall remain in full force and effect throughout the Forbearance
Period and from and after the expiration or termination thereof. Each
of the Borrowers and the Guarantors agrees that nothing in this Forbearance
and
First Amendment shall, or shall be construed to: (i) impair the validity,
perfection or priority of the lien and security interest created under or
evidenced by any Mortgage, any Security Agreement or any of the other Collateral
Documents to which it is a party; (ii) waive or impair any rights, powers
or remedies of the Administrative Agent or the Lenders under the Loan Documents
upon termination of the Forbearance Period, all of which are expressly reserved;
(iii) require the Administrative Agent or the Lenders to extend the
Forbearance Period, or grant additional cure or forbearance periods, or
otherwise modify this Forbearance and First Amendment; or (iv) waive the
Existing Events of Default except as expressly set forth herein.
ARTICLE
IX
MISCELLANEOUS
Section
9.1. Loan
Document. This Forbearance and First Amendment is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated therein) be construed, administered and applied in accordance with
the
terms and provisions of the Credit Agreement, including Article VII
thereof.
Section
9.2. Counterparts,
etc. This Forbearance and First Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be
an
original and all of which shall constitute but one and the same
agreement. Delivery of an executed counterpart by facsimile shall be
effective as delivery of a manually executed counterpart.
Section
9.3. GOVERNING
LAW. THIS FORBEARANCE AND FIRST AMENDMENT, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL
BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
BUT OTHERWISE WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF THAT
WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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Section
9.4. Successors
and Assigns. This Forbearance and First Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section
9.5. Entire
Agreement. This Forbearance and First Amendment and the other
Loan Documents set forth the entire understanding and agreement of the parties
hereto in relation to the subject matter hereof and thereof and supersede any
prior negotiations and agreements among the parties relative to such subject
matter. No promise, condition, representation or warranty, express or
implied, not herein or therein set forth shall bind any party hereto, and no
one
of them has relied on any such promise, condition, representation or
warranty. Each of the parties hereto acknowledges that, except as
otherwise expressly stated in this Forbearance and First Amendment, no
representations, warranties or commitments, express or implied, have been made
by any party to any other party with respect to the subject matter of this
Forbearance and First Amendment. None of the terms or conditions of
this Forbearance and First Amendment may be changed, modified, waived or
canceled, orally or otherwise, except as provided in the Credit
Agreement.
Section
9.6. Relationship.
The Loan Parties agree that the relationship between the Administrative Agent,
the Lenders and the Loan Parties is that of creditor and debtor and not that
of
partners or joint venturers. This Forbearance and First Amendment
does not constitute a partnership agreement, or any other association between
the Administrative Agent, the Lenders and the Loan Parties. The Loan
Parties acknowledge that the Administrative Agent and the Lenders have acted
at
all times only as creditors to the Loan Parties within the normal and usual
scope of the activities normally undertaken by a creditor and in no event have
the Administrative Agent or any of the Lenders attempted to exercise any control
over the Loan Parties or their respective businesses or affairs.
Section
9.7. No
Third Party Beneficiaries. This Forbearance and First Amendment
is made and entered into for the sole protection and benefit of the Loan
Parties, the Administrative Agent and the Lenders and no other person or entity
shall have any right of action hereon, right to claim any right or benefit
from
the terms contained herein, or be deemed a third party beneficiary
hereunder.
Section
9.8. Expenses.
All reasonable out-of-pocket costs and expenses incurred by the Administrative
Agent in connection with the preparation, negotiation, execution and
administration of the forbearance contemplated herein, including, without
limitation, the reasonable fees and disbursements of Xxxx Xxxxxxx LLP and CMAG
shall be paid or reimbursed by the Borrowers, promptly upon receipt of invoices
therefor; provided, that the Borrowers shall not be required to reimburse
the Administrative Agent for the fees and expenses of CMAG or any other
financial advisor retained by the Administrative Agent or the Lenders during
the
administration of the forbearance contemplated herein.
Section
9.9. Full
Force and Effect. This Forbearance and First Amendment shall be
limited precisely as written and shall not be deemed (a) to be a consent granted
pursuant to, or a waiver or modification of, any term or condition of the Credit
Agreement, the other Loan Documents or any of the instruments or agreements
referred to therein or a waiver of any Default or Event of Default under the
Credit Documents, whether or not known to any of the Administrative Agent or
any
of the Lenders or (b) to prejudice any other right or rights which the
Administrative Agent or the Lenders may now have or have in the future under
or
in connection with the Credit Agreement, the other Loan Documents or any of
the
instruments or agreements referred to therein. Except to the extent
hereby amended or modified, the Credit Agreement and each of the Loan Documents
shall continue in full force and effect in accordance with the provisions
thereof, and are hereby ratified and confirmed. As used in the Credit
Agreement, the terms “Credit Agreement,” “this
Agreement,” “herein,” “hereafter,”
“hereto,” “hereof,”
and
words of similar
import shall, unless the context otherwise requires, mean the Credit Agreement
as modified by this Forbearance and First Amendment. References to
the terms “Agreement” or “Credit Agreement”
appearing in the Exhibits or Schedules
to the Credit Agreement or in the other
Loan Documents shall, unless the context otherwise requires, mean the Credit
Agreement as modified by this Forbearance and First Amendment.
Section
9.10. Consultation
with Advisors. Each of the Loan Parties acknowledges that it has
consulted with counsel and with such other experts and advisors as it has deemed
necessary in connection with the negotiation, execution and delivery of this
Forbearance and First Amendment. This Forbearance and First Amendment
shall be deemed to have been jointly drafted and shall be construed without
regard to any presumption or rule requiring that it be construed against the
party causing this Forbearance and First Amendment or any part hereof or thereof
to be drafted.
Section
9.11. Invalidity;
Severability. Whenever possible, each provision of this
Forbearance and First Amendment shall be interpreted in such manner as to be
effective and valid under all applicable laws and
8
regulations. Any
provision of this Forbearance and First Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
9.12. Headings. The
headings of this Forbearance and First Amendment are for the purposes of
reference only and shall not affect the construction of, or be taken into
consideration in interpreting, this Forbearance and First
Amendment.
Section
9.13. Survival. Section
8.2 of this Forbearance and First Amendment shall survive the Maturity Date
and
the repayment of the Obligations. All other representations,
warranties, covenants, agreements, undertakings, waivers and releases by each
of
the Loan Parties contained herein shall survive until all Obligations shall
have
been indefeasibly paid in full in cash (whether or not the Maturity Date shall
have occurred).
Section
9.14. Further
Amendments and Consents. Should there be a need for further
amendments, modifications, waivers or consents with respect to the matters
addressed herein or any other matters, requests for such amendments,
modifications, waivers or consents shall be evaluated by the Administrative
Agent and the Lenders when formally requested, in writing, by the Borrower
Representative and except as otherwise expressly set forth herein to the
contrary, the Administrative Agent and the Lenders may deny any such
requests. No such amendment, modification waiver or consent shall be
effective unless made in accordance with the terms of the Credit
Agreement.
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9
IN
WITNESS WHEREOF the Borrowers, the other Loan Parties, the Lenders and the
Administrative Agent have caused this Forbearance and First Amendment to be
duly
executed on the date first above written.
|
BORROWERS:
|
INTEGRATED
BRANDS INC.
|
|
By:
____________________________________________
Name:
Title:
|
|
|
ESKIMO
PIE FROZEN DISTRIBUTION, INC.
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
ESKIMO
PIE CORPORATION
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
COOLBRANDS
DAIRY, INC.
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
OTHER
LOAN PARTIES:
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
SUGAR
CREEK FOODS, INC.
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
INTEGRATED
BRANDS FRANCHISE CORP.
|
|
|
By:
____________________________________________
Name:
Title:
|
10
|
COOLBRANDS
SMOOTHIES FRANCHISE LLC
By:
INTEGRATED BRANDS FRANCHISE CORP., its sole member
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
AGENT
AND LENDERS:
|
JPMORGAN
CHASE BANK, N.A., individually, as
Administrative
Agent, Issuing Bank and Swingline Lender
|
|
By:
____________________________________________
Title:
|
|
|
GMAC
COMMERCIAL FINANCE LLC, as a Lender
|
|
|
By:
____________________________________________
Name:
Title:
|
|
|
GENERAL
ELECTRIC CAPITAL CORPORATION,
as Documentation
Agent and as a Lender
|
|
|
By:
____________________________________________
Name:
Title:
|
11
