Exhibit 10.4


 


AMENDMENT
NUMBER ONE TO PURCHASE AND SALE AGREEMENT


 


The undersigned,
being all of the parties to that certain Purchase and Sale Agreement, dated as
of May 19, 2005 (the “Agreement”), hereby agree as follows:


 


1.             The following definitions are hereby added to Section
1.1 of the Agreement:


“Assignment
of Assets Agreement” shall mean the Assignment of Assets, dated May 17,
2005, by the Corporation in favor of Scheck Alpha.


“Bonus
Agreements” shall mean (a) the Agreement, dated May 27, 2005, by and
between the Corporation and Marty Yabrow, (b) the Agreement, dated May 27,
2005, by and between the Corporation and Jeffrey Kampel, (c) the Agreement,
dated May 27, 2005, by and between the Corporation and Joel Steigelfest, (d)
the Agreement, dated May 27, 2005, by and between the Corporation and Douglas
Kensrue, and (e) the Agreement, dated May 27, 2005, by and between the
Corporation and Bert Jorge.


“Secular
Trust Agreements” shall mean (a) the Marty Yabrow Irrevocable Trust dated
May 27, 2005, (b) the Jeffrey Kampel Irrevocable Trust dated May 27, 2005, (c)
the Joel Steigelfest Irrevocable Trust dated May 27, 2005, (d)
the Douglas Kensrue Irrevocable Trust dated May 27, 2005, and (e) the Bert
Jorge Irrevocable Trust dated May 27, 2005.


“Stock
Redemption Agreement” shall mean the Stock Redemption Agreement, dated as
of May 30, 2005, by and among the Corporation and Scheck Investments.


2.             The definition of “Related Agreement” set forth
in Section 1.1 of the Agreement is hereby amended to read in its entirety
as follows:  ““Related Agreement”
shall mean any Contract that is or is to be entered into at the Closing or
otherwise pursuant to this Agreement, including, for the avoidance of doubt,
each of the Assignment of Assets Agreement and the Stock Redemption
Agreement.  The Related Agreements
executed by a specified Person shall be referred to as “such Person’s Related
Agreements,” “its Related Agreements” or another similar expression.”


3.             The definition of “Shares” set forth in Section
1.1 of the Agreement is hereby amended to read in its entirety as
follows:  ““Shares” shall mean,
collectively, (a) the 100 shares of Class A Voting Common Stock, $.001 par
value per share, of the Corporation, held of record by the Shareholders and (b)
the 8,372 shares of Class B Non-Voting Common Stock, $.001 par value per share,
of the Corporation, held of record by the Shareholders.”


4.             Each reference in the Agreement to the name “Scheck
Family LLC” shall be replaced in its entirety with the following name:  “Scheck Family Holdings LLC”.


5.             The
last sentence of item 2 of Schedule 1.1(c) is hereby amended to read in
its entirety as follows:  “Any reserve in
respect of aged, damaged or obsolete inventory reflected on the GAAP version of
the Final Closing Date Balance Sheet shall reduce on a dollar-for-dollar basis
the aggregate purchase price adjustment made pursuant to clauses (c) and
(d) of the definition of “Adjusted Purchase Price”.”


 





















 


6.             Section 5.1(b) of the Agreement is hereby amended
to read in its entirety as follows:


(b)           Except as set forth on Schedule
5.1(b), no Sweet Paper Entity has any direct or indirect subsidiaries,
either wholly or partially owned, and no Sweet Paper Entity holds any direct or
indirect economic, voting or management interest in any Person or directly or
indirectly owns any security issued by any Person.  For the avoidance of doubt, as of the
Closing, none of the Corporation or any Corporation Subsidiary holds any direct
or indirect economic, voting or management interest in Scheck Alpha or directly
or indirectly owns any security issued by Scheck Alpha.


7.             Section 5.4(a) of the Agreement is hereby amended
to read in its entirety as follows:


(a)           The authorized capital stock of the
Corporation consists of (i) 1,000 shares of Class A Voting Common Stock, $.001
par value per share, of which 100 are currently issued and outstanding, and
(ii) 99,000 shares of Class B Non-Voting Common Stock $.001 par value per
share, of which 8,372 are currently issued and outstanding.  The Shares constitute all of the issued and
outstanding shares of capital stock of the Corporation.


8.             Article 7 of the Agreement is hereby amended to
add the following Section 7.29 immediately after Section 7.28.


7.29         Good Standing of Sweet Paper Texas.  No later than September 15, 2005,  Sellers shall deliver to Purchaser a good
standing certificate of Sweet Paper Texas issued by the Office of the
Comptroller of Public Accounts of the State of Texas.


9.             Section 12.2 of the Agreement is hereby amended
to read in its entirety as follows:


12.2         Indemnification by the Sellers.  Upon the terms and subject to the conditions
set forth herein, each Seller jointly and severally agrees to indemnify each of
the Purchaser Indemnified Parties against, and agrees to hold each of them
harmless from, any and all Losses incurred or suffered by them to the extent
relating to, arising out of or resulting from any of the following:


(a)           any breach of or any inaccuracy in
any representation or warranty made by any Seller in this Agreement or any
Related Agreement or any document delivered by any Seller at the Closing;
provided, that (i) in the case of all representations and warranties, except
for Title and Authorization Warranties and Tax Warranties, a notice of the
Purchaser Indemnified Party’s claim shall have been given to the Seller
Representative not later than the close of business on the second anniversary
of the Closing Date and (ii) in the case of Tax Warranties, a notice of the
Purchaser Indemnified Party’s claim shall have been given to the Seller Representative
not later than the close of business on the Tax Statute of Limitations Date;


(b)           any breach by any Seller of or
failure by any Seller to perform any covenant, obligation or agreement of any
Seller set forth or contemplated in this


 


 


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Agreement
or any Related Agreement or any document delivered by any Seller at the
Closing;


(c)           the Withdrawn Corporation Assets, the
Withdrawn Corporation Obligations, the Excluded Assets, the Excluded
Obligations or, other than the Assumed Obligations, any other obligations or
liabilities relating to or arising out of the ownership or operation of the
Assets on or prior to the Closing Date;


(d)           any obligations or liabilities
relating to or arising from any Sweet Paper Debt;


(e)           any obligations or liabilities
relating to or arising from any product liability or warranty claims based on
products or services sold by any Sweet Paper Entity on or prior to the Closing
Date (except to the extent that any Purchaser Indemnified Party collects
reimbursements for such Losses from insurance proceeds or from indemnification
payments received from one or more third parties);


(f)            any obligations or liabilities
relating to or arising from the matters set forth on Schedule 12.2(f);


(g)           any obligations or liabilities
relating to or arising from AMJEMS, Inc. or Mira Corp.;


(h)           any obligations or liabilities
relating to or arising from the failure of the Corporation to obtain the
consent of GMAC to the sublease by the Corporation to Seaboard Warehouse
Terminal Ltd. of a portion of the Leased Real Property that is leased by the
Corporation pursuant to the Current Scheck Real Property Lease;


(i)            any obligations or liabilities
relating to or arising from any breach of or default under any Current Third
Party Real Property Lease by any Sweet Paper Entity prior to the Closing if
Sellers fail to deliver to Purchaser an estoppel certificate reasonably
satisfactory to Purchaser duly executed by the lessor under such Current Third
Party Real Property Lease effective as of the Closing;


(j)            any obligations or liabilities
relating to or arising from the matters set forth on Schedule 12.2(j);


(k)           any obligations or liabilities
relating to or arising from any third party claim that any Sweet Paper Entity
violated the Americans With Disabilities Act, or any rules, regulations and
guidelines promulgated thereunder, or any similar state Law, prior to the
Closing; provided, however, that a notice of the Purchaser Indemnified Party’s
claim with respect to this Section 12.2(k) shall have been given to the
Seller Representative not later than the close of business on the second
anniversary of the Closing Date;


(l)            any obligations or liabilities
relating to or arising from the failure of any Sweet Paper Entity to be
licensed or qualified to do business and be in good standing as a foreign
corporation in each jurisdiction where the nature of the


 


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properties
owned, leased or operated by such Sweet Paper Entity or the business transacted
by such Sweet Paper Entity require such licensing or qualification
(notwithstanding the disclosure of any information on Schedule 5.1(a) or
any other Schedule hereto);


(m)          any obligations or liabilities
relating to or arising from any motor vehicle lease agreements relating to any
vehicles used by any Shareholder;


(n)           any obligations or liabilities
relating to or arising from the matter set forth on Schedule 12.2(n);


(o)           any obligations or liabilities
relating to or arising from any breach by Scheck Family Holdings LLC or JEMS of
Miami, Inc. of any obligation (to be set forth in the New Scheck Real Property
Lease) that is described in the “Maintenance and Repair” section of Exhibit
7.28;


(p)           any obligations or liabilities
relating to or arising from the Stock Redemption Agreement;


(q)           any obligations, liabilities or Taxes
relating to or arising from any Bonus Agreement or any Secular Trust Agreement
(including any obligations or liabilities relating to or arising from any claim
regarding any right of continued employment under any Bonus Agreement or any
Secular Trust Agreement); and


(r)            any damages, fees or other amounts
claimed by the lessor (or by any Person claiming on behalf of the lessor,
including the lessor’s attorneys and other agents or representatives) under any
Real Property Lease set forth at item 13 or item 14 of Schedule 5.9(b)
relating to or arising from the failure to obtain any consent or approval that
is required under such Real Property Lease in connection with the performance
of this Agreement by the parties hereto and the consummation of the
transactions contemplated hereby.


10.           This Amendment Number One is solely
for the benefit of the parties hereto and, to the extent expressly provided
herein, their respective Affiliates, and no provision of this Amendment Number
One shall be deemed to confer upon other third parties any remedy, claim,
liability, reimbursement, cause of action or other right.


11.           This Amendment Number One may be
executed in counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.


12.           The
provisions of the Agreement, as amended hereby, shall remain in full force and
effect.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment Number One to Purchase and Sale Agreement to be executed and
delivered as of the 30th day of May, 2005.


	
   

  	
  LAGASSE, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Brian S. Cooper

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Shareholders:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SCHECK INVESTMENTS LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Scheck Investments, Inc., as General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SCHECK ALPHA LP

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Scheck Investments, Inc., as General Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Michael Scheck

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Raquel Scheck

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jeffrey Scheck

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Martin Scheck

  



 


 





















 


	
   

  	
   

  
	
   

  	
  Elise Scheck

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Steven Scheck

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Asset Sellers:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SWEET PAPER SALES GROUP, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SWEET PAPER SALES CORP. OF TEXAS, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SWEET PAPER SALES CORP. OF CALIFORNIA, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SWEET PAPER SALES CORP. OF MASSACHUSETTS, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DAMAR DISTRIBUTORS WAREHOUSE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael Scheck

  
	
   

  	
   

  	
  Title:

  	
  President