Exhibit 10.1.10
CONSENT AND AMENDMENT AGREEMENT
CONSENT AND AMENDMENT AGREEMENT, dated as of June 29, 2001
(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, 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 5 of this Agreement, the Credit
Agreement is hereby amended as follows:
(a) The preamble to the Credit Agreement is hereby amended by
deleting the reference to "$115,000,000" appearing therein and
substituting "$105,000,000" therefor.
(b) The definition of "Interest Margin" contained in Section
1.01 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
Exhibit 10.1.10
"'Interest Margin' shall mean, with respect
to any Loan, the amount as set forth below as
corresponds to the amount of Availability set forth
below, determined on July 11, 2001 and adjusted
thereafter, three (3) Business Days after the
delivery of the applicable borrowing base certificate
for March, June, September and December of each year
required pursuant to Section 6.05(g), commencing with
the borrowing base certificate for March 2002, or if
the Borrowers shall fail to timely deliver such
certificates for any such period and until such
certificates are delivered, or if a Default or Event
of Default shall have occurred and be continuing,
then at the highest Interest Margin provided for
herein:
Alternate Base Rate
LIBO Rate Interest Interest Margin for Alternate Base Rate
Margin for Revolving LIBO Rate Interest Revolving Credit Interest Margin for
Credit Eurodollar Margin for Term Alternate Base Loans Term Alternate Base
Loans Eurodollar Loan Loans
Availability
Greater than 1.50% 1.75% 0% 0%
$47,500,000
Equal to or less than 1.75% 2.00% 0% 0%
$47,500,000 but
greater than
$35,000,000
Equal to or less than 2.00% 2.25% 0% 0.25%
$35,000,000 but
greater than
$22,500,000
Equal to or less than 2.50% 2.75% 0.50% 0.75%
$22,500,000 but
greater than
$12,500,000
$12,500,000 or less 3.00% 3.25% 1.00% 1.25%
On July 11, 2001, the LIBO Rate Interest Margin for
Revolving Credit Eurodollar Loans shall be 3.00% and
for Term Eurodollar Loans shall be 3.25%, and the
Alternate Base Rate Interest Margin for Revolving
Credit Alternate Base Loans shall be 1.00% and for
Term Alternate Base Loans shall be 1.25%."
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Exhibit 10.1.10
(c) Section 2.09(g) of the Credit Agreement is hereby amended
by adding the following sentence at the end thereof:
"Notwithstanding the foregoing, any prepayments made
pursuant to Section 2.09(e) arising out of the sale
of the real property of Millbrook located in Ozark,
Alabama shall be applied as follows: (A) 50% to the
Term Loan, to be applied to outstanding Term
Alternate Base Loans in the order described in
Section 2.09(j) up to the full amount thereof, then
to outstanding Term Eurodollar Loans in the order
described in Section 2.09(j) up to the full amount
thereof and (B) 50% to the Revolving Credit Loans, to
be applied to outstanding Revolving Credit Alternate
Base Loans up to the full amount thereof and then to
Revolving Credit Eurodollar Loans up to the full
amount thereof; provided, however, that any such
prepayment shall be subject to the proviso to the
immediately preceding sentence."
(d) Section 2.09(j) of the Credit Agreement is hereby amended
by adding the following sentence at the end thereof:
"Notwithstanding the foregoing, any prepayments of
the Term Loan made pursuant to Section 2.09(d)
arising out of the sale of the real property of
Millbrook located in Ozark, Alabama shall be applied,
in order, to the Repayment Dates."
(e) Section 2.09 of the Credit Agreement is hereby amended by
adding the following new paragraph (k) at the end thereof:
"(k) On each date that any of the Borrowers
receives a capital contribution from Enterprises from
the net proceeds of any sale by Enterprises of the
Senior Notes previously repurchased by Enterprises,
the Borrowers shall make a prepayment of the
Revolving Credit Loans in the amount of such capital
contribution. Any prepayments required by this
Section 2.09(k) shall be applied to outstanding
Revolving Credit Alternate Base Loans up to the full
amount thereof before they are applied to outstanding
Revolving Credit Eurodollar Loans; provided, however,
that the Borrowers shall not be required to make any
prepayment of any Eurodollar Loan pursuant to this
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Exhibit 10.1.10
Section 2.09 until the last day of the Interest
Period with respect thereto so long as an amount
equal to such prepayment is deposited by the
Borrowers in a cash collateral account with the Agent
to be held in such account on terms reasonably
satisfactory to the Agent."
(f) Section 6.05 of the Credit Agreement is hereby amended by
(i) deleting each reference to "Holdings or Enterprises" appearing in
paragraphs (a), (b), (c), (e) and (g) thereof and substituting the
words "the Borrowers" therefor, (ii) deleting the "and" appearing at
the end of paragraph (k) thereof and (iii) deleting the "." and the end
of paragraph (l) thereof and substituting the following therefor:
"; and
(m) (x) on October 28, 2001, 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, 2001 and
(y) on November 15, 2001, a certificate of a
Responsible Officer of the Borrowers, recertifying
that to the best of his or her knowledge no Default
or Event of Default has occurred (including
calculations demonstrating compliance with the
covenants set forth in Sections 7.08 and 7.09 hereof)
for the fiscal period ended September 30, 2001."
(g) Section 7.07 of the Credit Agreement is hereby amended by
deleting the amount "$7,000,000" appearing opposite the phrase "For
each Fiscal Year thereafter" and substituting the amount "$5,000,000"
therefor.
(h) Section 7.08 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 7.08. Debt Service Coverage Ratio.
Permit the Debt Service Coverage Ratio of the
Borrowers and their subsidiaries to be less than
(i) 0.45:1.00 at March 31, 2001 and June 30, 2001,
(ii) 0.75:1.00 at September 30, 2001 and
(iii) 1.05:1.00 at the end of each fiscal quarter
thereafter."
(i) Section 7.09(a) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
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Exhibit 10.1.10
"(a) Leverage Ratio. Permit the Leverage
Ratio of the Borrowers and their subsidiaries at the
end of each fiscal quarter indicated below to be
greater than (i) 4.75:1.00 at March 31, 2001 and (ii)
4.50:1.00 at the end of each fiscal quarter
thereafter."
(j) Section 7.09(c) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"(c) Availability. Permit (x) the average
Availability, as determined by the Agent on or about
October 26, 2001, for the period commencing (and
including) August 24, 2001 through and including
October 25, 2001, to be less than $7,500,000 and (y)
Availability on October 31, 2001 to be less than
$10,000,000 (based upon the most current information
supplied by the Borrowers to the Agent and the
Lenders)."
(k) Schedule 2.01(b) to the Credit Agreement is hereby
replaced in its entirety by Schedule 2.01(b) attached hereto.
3. Consent. Subject to the conditions as to effectiveness set
forth in Paragraph 5 of this Agreement, the Required Lenders hereby consent to
(x) the sale of the real property of Millbrook located in Ozark, Alabama
provided that (i) such sale is upon commercially reasonable terms and conditions
and (ii) the net proceeds of such sale are applied to prepay the Loans in the
manner set forth in Section 2.09 of the Credit Agreement and (y) the sale by
Enterprises of the Senior Notes previously repurchased by Enterprises, provided
that (i) such sale is upon commercially reasonable terms and conditions, (ii)
Enterprises makes a capital contribution of the net proceeds of such sale to the
Borrowers and (iii) such capital contribution is applied to prepay the Loans in
the manner set forth in Section 2.09 of the Credit Agreement.
4. 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):
(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 such
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.
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Exhibit 10.1.10
(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.
5. Conditions Precedent. Notwithstanding any term or provision
of this Agreement to the contrary, Paragraphs 2 and 3 hereof shall not become
effective until:
(1) the Agent shall have received counterparts of
this Agreement, duly executed and delivered on behalf of the Borrowers, the
Agent and the Required Lenders;
(2) 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 satisfactory to the Agent
and its counsel;
(3) 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;
(4) the Borrowers shall pay or prepay so much of the
Revolving Credit Loans as shall be necessary in order that Availability equals
or exceeds zero following the reduction in the Total Revolving Credit Commitment
effected by this Agreement;
(5) the Borrowers shall have paid a fee equal to
$25,000 to each Lender signing this Agreement; and
(6) the Agent shall have received such other
documents as the Lenders or the Agent or the Agent's counsel shall reasonably
deem necessary.
6. Condition Subsequent. By no later than July 23, 2001, the
Agent shall have received an amendment to the Pledge Agreement in form and
substance reasonably satisfactory to the Agent, together with such other
documents and instruments necessary to effectuate the perfection of the Agent's
(on behalf of the Lenders) lien on any Senior Notes repurchased by Enterprises
and not retired by Enterprises.
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Exhibit 10.1.10
7. 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, fees incurred in connection with any field examinations and the
reasonable fees and out-of-pocket expenses of counsel to the Agent.
8. Agreement of R.A.B. Enterprises, Inc. Enterprises, by its
signature below, hereby agrees that, immediately upon the receipt by it of the
net proceeds of any sale of the Senior Notes previously repurchased by
Enterprises, it shall make a capital contribution to one or both Borrowers in an
amount equal to such net proceeds (such capital contribution to be applied to
prepay the Loans in the manner described in Section 2.09 of the Credit
Agreement).
9. 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 5 hereof, the Credit Agreement
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 and the other Loan Documents
shall remain in full force and effect from and after the date of this Agreement.
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Exhibit 10.1.10
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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Exhibit 10.1.10
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman
THE B. MANISCHEWITZ COMPANY, LLC
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, its managing member
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
THE CHASE MANHATTAN BANK, as Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Lender and Co-Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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Exhibit 10.1.10
FLEET BUSINESS CREDIT CORPORATION, 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/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
As to paragraph 8 only:
R.A.B. ENTERPRISES, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman
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