Exhibit 10.1.13
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of February 14, 2003 (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 5 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 term in the correct alphabetical
order:
"Interest Coverage Ratio" shall mean, with
respect to any person for any period, the ratio of
(i) EBITDA for the four most recent consecutive
fiscal quarters ending on or prior to the date of
determination minus Capital Expenditures (including,
without limitation, Capitalized Lease Obligations)
made during such period minus all Permitted Dividends
and Distributions made during such period minus
federal, state and local income taxes actually paid
in cash during such period to (ii) the Cash Interest
Expense (other than with respect to Subordinated
Indebtedness) of such person for the four most recent
consecutive fiscal quarters ending on or prior to the
date of determination.
(b) The final proviso of clause (y) of Section 7.04 of the Credit
Agreement is hereby amended and restated in its entirety to
read as follows:
" 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 satisfy
the requirements set forth in Section 7.09(c); and
(B) Availability shall satisfy the requirements set
forth in Section 7.09(c)."
(c) Section 7.08 of the Credit Agreement is hereby amended by
deleting the phrase "and at the end of each fiscal quarter
thereafter" appearing therein.
(d) Section 7.09(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(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) 5.00:1.00 at
December 31, 2002 and (ii) 4.50:1.00
at the end of each fiscal quarter
thereafter."
(e) Section 7.09 of the Credit Agreement is hereby further amended
by adding the following as a new clause (d) thereto:
"(d) Interest Coverage Ratio. Permit the
Interest Coverage Ratio of the Borrowers and their
subsidiaries to be less than (i) 1.30:1.00 at
December 31, 2002 and (ii) 1.50:1.00 at the end of
each fiscal quarter thereafter."
3. Security Agreement (Manischewitz). Subject to the conditions as to
effectiveness set forth in Paragraph 5 of this Agreement, Schedule I to the
Security Agreement (Manischewitz) is hereby amended by deleting such schedule in
its entirety and substituting Schedule I attached hereto therefore.
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):
(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.
5. Conditions Precedent. Notwithstanding any term or provision of this
Agreement to the contrary, Paragraphs 2 and 3 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 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;
(d) the Borrowers shall have paid a fee equal to $52,500 to each
Lender that executes this Agreement; and
(e) the Agent shall have received such other documents as the
Lenders or the Agent or the Agent's counsel shall reasonably
deem necessary.
6. 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.
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 5 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, LLC (successor by merger
to LaSalle Business Credit, Inc.), as Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE I to the
Security Agreement
Locations of Collateral
Average Monthly
Warehouse Address County Inv. $ Value
--------- ------- ------ ------------
▇▇▇▇▇▇ Storage ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Cumberland $250,000
U.S. Cold Storage ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Dade $25,000
Seaboard Warehouse Terminals ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Dade $50,000
T & T Freezer Northwest Blvd. & Garden Road, Cumberland $350,000
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Accem Warehouse ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $450,000
Dependable Egg ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Kings $20,000
▇▇▇▇▇ Food Products ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Bergen $175,000
Field Container ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Wicomico $30,000
Standard Folding Cartons ▇▇▇▇ ▇▇. & ▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ $50,000
NY 11370
▇▇▇▇▇▇ & Sons Inc. ▇▇-▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ $40,000
▇▇▇▇, ▇▇ ▇▇▇▇▇
Anita's Mexican Foods Corporation ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ San Bernadino $250,000
92411
Keystone Food Products Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ $200,000
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tennessee Chips ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Davidson $50,000
PSS Warehouse & Transportation ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Middlesex $300,000
Co.
DSC Logistics ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ Leheigh $11,500,000
18031
G&L Food Products ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $50,000
