CALDERWOOD & HARKNESS LLP Attorneys at Law
599 Lexington Avenue, 36th Floor New York, NY 10022
Telephone: (212) 554-7000 Facsimile: (212) 554-7001 www.calderwoodharkness.com
October 12, 2022
Matter No.: 1011-00005
[Name of Counterparty] [Address Line 1] [Address Line 2] [City, State ZIP]
Attention: [Contact Name / Title]
Via Email ([●]@[●].com) and Overnight Courier
Re: Request for Consent to Assignment of [Supply Agreement / Distribution Agreement / Sales Agreement] dated [●] (the "Agreement"), by and between Briarwood Home Essentials, Inc. and [Counterparty Name]
Dear [Contact Name]:
This firm represents Meridian Consumer Brands LLC ("Meridian"), a Delaware limited liability company, with its principal offices located at 440 Park Avenue South, 18th Floor, New York, NY 10016. We are writing to you on behalf of Meridian in connection with a proposed transaction involving Briarwood Home Essentials, Inc. ("Briarwood"), an Ohio corporation, and to respectfully request your consent to the assignment of the above-referenced Agreement, as more fully described below.
I. Transaction Overview
Meridian is currently in the process of acquiring certain assets from Briarwood pursuant to the terms and conditions of a proposed Asset Purchase Agreement (the "APA"). Under the APA, Meridian will acquire Briarwood's consumer product line business, including the CleanLeaf® home cleaning product line and the PureHaven® personal care product line, together with all related inventory, accounts receivable, equipment, intellectual property, goodwill, and certain contracts associated with the operation of those product lines (collectively, the "Acquired Assets"). The transaction is structured as an asset purchase, with a contemplated closing to occur at a date to be determined by the parties in accordance with the terms of the APA.
For the avoidance of doubt, Briarwood is retaining its Commercial Janitorial Services Division and all other excluded assets and liabilities. Only the consumer product line business—comprising the CleanLeaf and PureHaven brands and related operations—is being transferred to Meridian as part of the proposed transaction.
II. The Agreement
The Agreement dated [●] between Briarwood Home Essentials, Inc. and [Counterparty Name] (the "Agreement") has been identified as one of the twenty-three (23) customer contracts included among the Acquired Assets that will be assigned from Briarwood to Meridian in connection with the closing of the transaction contemplated by the APA.
We have reviewed the Agreement and note that Section [●] of the Agreement provides that [describe applicable assignment restriction or change-of-control provision — e.g., "the Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed" / other applicable language as set forth in the Agreement]. For your reference, the relevant provision states, in pertinent part:
"[Insert or paraphrase the relevant contractual consent provision from the Agreement]."
Accordingly, the consent of [Counterparty Name] is required in order for Briarwood to assign its rights and obligations under the Agreement to Meridian.
III. Background on Meridian Consumer Brands LLC
To assist [Counterparty Name] in evaluating this request, we provide the following background information regarding Meridian:
Meridian Consumer Brands LLC is a portfolio company of Lakepoint Capital Partners, LP, a mid-market private equity fund headquartered at 200 Clarendon Street, Suite 3200, Boston, MA 02116. Lakepoint Capital Partners, LP is led by its Managing Partner, Thomas Liang, and focuses on investments in branded consumer products companies with established market positions and strong growth potential.
Meridian was formed in 2017 as a dedicated acquisition vehicle for the purpose of building a diversified platform of consumer brands. Since its formation, Meridian has assembled a portfolio of five consumer brands operating across the household cleaning, laundry, and personal care categories. Meridian's current portfolio generates combined annual revenues of approximately $620,000,000. Meridian has successfully completed three prior bolt-on acquisitions in the consumer products space, integrating each acquired business into its operational platform while preserving existing customer and supplier relationships and ensuring continuity of service.
Meridian's management team includes the following key executives:
• Gareth Holloway, Chief Executive Officer & Managing Member
• Priya Anand, Chief Financial Officer
• Diana Ressler, General Counsel
Meridian is well-capitalized and has substantial experience in owning and operating consumer product brands of the type covered by the Agreement. Meridian's intent, following the closing of the proposed transaction, is to continue performance of the Agreement in the ordinary course of business, without disruption to [Counterparty Name] or any modification to the commercial terms and supply arrangements currently in place. Meridian is committed to maintaining the high standards of product quality and customer service that have characterized Briarwood's consumer product line business.
IV. Formal Request for Consent
On behalf of Meridian, Calderwood & Harkness LLP hereby formally requests the written consent of [Counterparty Name] to the assignment of the Agreement from Briarwood Home Essentials, Inc. to Meridian Consumer Brands LLC, effective as of the closing of the transaction contemplated by the APA.
The assignment will be effected pursuant to an Assignment and Assumption Agreement to be entered into between Briarwood and Meridian at the closing of the transaction, under which Meridian will expressly assume all of Briarwood's rights and obligations under the Agreement arising from and after the closing date.
We wish to confirm for the record the following:
1. All terms and conditions of the Agreement will remain in full force and effect following the assignment, and Meridian will be bound by all obligations of Briarwood thereunder from and after the closing date.
2. The assignment is not intended to, and will not, modify, amend, or supplement the terms of the Agreement in any respect, except as necessary to substitute Meridian Consumer Brands LLC as a party in place of Briarwood Home Essentials, Inc.
3. Meridian will be fully responsible for the performance of all obligations under the Agreement arising from and after the effective date of the assignment, in accordance with the terms and conditions of the Agreement as currently in effect.
We believe that [Counterparty Name] will find Meridian to be a creditworthy and capable successor to Briarwood with respect to the obligations arising under the Agreement. Should [Counterparty Name] require any additional financial or operational information regarding Meridian in order to evaluate this request, we would be pleased to make such information available, subject to appropriate confidentiality protections.
V. Requested Form of Consent
For the convenience of [Counterparty Name], a proposed form of written consent is enclosed herewith as Attachment A for your review and execution. The enclosed form has been prepared to address the requirements of the applicable consent provision in the Agreement and is intended to document [Counterparty Name]'s consent in a manner consistent with the terms of the Agreement.
We respectfully request that [Counterparty Name] review, execute, and return the enclosed consent to Calderwood & Harkness LLP at the address set forth above, or, alternatively, via email to the following addresses:
• Andrew Fitzpatrick: [afitzpatrick@calderwoodharkness.com]
• Naomi Petersen: [npetersen@calderwoodharkness.com]
We would appreciate receiving the executed consent on or before [●], in order to enable the parties to consummate the proposed transaction in accordance with the anticipated closing timeline. If [Counterparty Name] requires additional time or has any questions regarding the enclosed form, we encourage you to contact us promptly so that we may address any concerns in advance of that date.
VI. Confidentiality
We wish to advise [Counterparty Name] that the existence and terms of the proposed transaction between Meridian and Briarwood are confidential. We respectfully request that [Counterparty Name] treat this letter, the enclosed form of consent, and all information contained herein as strictly confidential and refrain from disclosing any such information to any third parties without the prior written consent of both Meridian and Briarwood. This request is consistent with, and in furtherance of, the confidentiality obligations set forth in the Letter of Intent dated March 28, 2022 between the parties to the proposed transaction. We thank you in advance for your cooperation in this regard.
VII. Contact Information
Should you have any questions or require any additional information regarding this request, please do not hesitate to contact either of the following attorneys at Calderwood & Harkness LLP:
Andrew Fitzpatrick Lead Associate Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022 Telephone: [●]
Email: [afitzpatrick@calderwoodharkness.com]
Naomi Petersen Associate Calderwood & Harkness LLP 599 Lexington Avenue, 36th Floor New York, NY 10022 Telephone: [●]
Email: [npetersen@calderwoodharkness.com]
You may also direct questions regarding this matter to Briarwood's outside legal counsel:
Caldwell, Pruitt & Shaw LLP 41 South High Street, Suite 2800 Columbus, OH 43215
Attention: Rachel Underwood (Lead Partner) or David Soo (Associate)
VIII. Closing
We appreciate your prompt attention to this request. Timely receipt of [Counterparty Name]'s consent is important to the ability of the parties to consummate the proposed transaction on the anticipated timeline, and we are grateful for your cooperation. We look forward to a smooth transition and to Meridian's continued partnership with [Counterparty Name] following the closing of the transaction.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Andrew Fitzpatrick Lead Associate
Sandra Tung Responsible Partner
Enclosure: Attachment A — Form of Consent to Assignment
cc:
Diana Ressler, General Counsel, Meridian Consumer Brands LLC Sandra Tung, Partner, Calderwood & Harkness LLP Rachel Underwood, Partner, Caldwell, Pruitt & Shaw LLP [Janet Tsao, VP of Operations / Malcolm Greer, President], Briarwood Home Essentials, Inc.
ATTACHMENT A
FORM OF CONSENT TO ASSIGNMENT
CONSENT TO ASSIGNMENT
Reference is made to the following:
A. That certain [Supply Agreement / Distribution Agreement / Sales Agreement] dated [●], by and between Briarwood Home Essentials, Inc., an Ohio corporation ("Assignor"), and [Counterparty Name] ("Counterparty") (the "Agreement").
B. Section [●] of the Agreement requires the prior written consent of Counterparty in connection with the assignment of the Agreement by Assignor.
C. Assignor proposes to assign, and Meridian Consumer Brands LLC, a Delaware limited liability company ("Assignee"), proposes to assume, all of Assignor's rights and obligations under the Agreement, in connection with Assignee's acquisition of certain assets of Assignor, including without limitation the CleanLeaf® home cleaning product line and the PureHaven® personal care product line, pursuant to that certain Asset Purchase Agreement between Assignor and Assignee (the "Asset Purchase Transaction").
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Counterparty agrees as follows:
1. Consent to Assignment
Counterparty hereby consents to the assignment of the Agreement from Assignor to Assignee, effective as of the closing date of the Asset Purchase Transaction between Assignor and Assignee (the "Effective Date"). This consent is granted in satisfaction of the consent requirement set forth in Section [●] of the Agreement.
2. Conditions and Understandings
This consent is granted on the express understanding that:
(a) Assignee shall assume, and shall be fully responsible for the performance of, all obligations of Assignor under the Agreement arising from and after the Effective Date, in accordance with the terms and conditions of the Agreement;
(b) All terms and conditions of the Agreement shall remain in full force and effect following the assignment, and neither the rights nor the obligations of Counterparty under the Agreement shall be modified, diminished, or otherwise affected by the assignment;
(c) This consent does not constitute a waiver of any of Counterparty's rights, remedies, or defenses under the Agreement or at law or in equity, and does not modify, amend, or supplement the Agreement in any respect, except as strictly necessary to reflect the substitution of Assignee for Assignor as a party to the Agreement; and
(d) This consent shall not be deemed to establish a precedent for, or to constitute consent to, any future assignment, transfer, delegation, or other disposition of the Agreement or any rights or obligations thereunder, whether by Assignee or any other party. Any such future assignment shall require a separate consent in accordance with the terms of the Agreement.
3. Representations of Counterparty
Counterparty represents and warrants as follows:
(a) The person executing this Consent on behalf of Counterparty has been duly authorized to do so and has full power and authority to bind Counterparty to the terms of this Consent.
(b) As of the date hereof, to the knowledge of Counterparty, no default or event of default exists under the Agreement, and no event has occurred that, with the giving of notice or passage of time or both, would constitute a default or event of default under the Agreement.
4. Governing Law
This Consent shall be governed by and construed in accordance with the laws of the State of [●], without regard to the conflicts of laws principles thereof. The governing law of this Consent is intended to correspond with the governing law provision of the Agreement. For the avoidance of doubt, the Asset Purchase Agreement between Assignor and Assignee is governed by the laws of the State of New York; however, the parties acknowledge that the Agreement and this Consent may be governed by a different jurisdiction as specified in the Agreement.
5. Counterparts. This Consent may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this Consent by facsimile transmission or by electronic mail in portable document format (.pdf) shall be effective as delivery of an original executed counterpart.
IN WITNESS WHEREOF, Counterparty has executed this Consent to Assignment as of the date set forth below.
[COUNTERPARTY NAME]
By: ________
Name: [●]
Title: [●]
Date: ________
ACKNOWLEDGED AND AGREED:
BRIARWOOD HOME ESSENTIALS, INC.
By: ________
Name: Malcolm Greer
Title: President
Date: ________
MERIDIAN CONSUMER BRANDS LLC
By: ________
Name: Gareth Holloway
Title: CEO & Managing Member
Date: ________