Exhibit 10.1
AMENDMENT
AMENDMENT, dated as of June 27, 2002 (this "Amendment"), to
the Fifth Amended and Restated Credit Agreement, dated as of November 1, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Aurora Foods Inc. (the "Company"), the financial institutions
parties thereto (the "Lenders") and the Agents.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
Company;
WHEREAS, Company has requested, and, upon this Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended as set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
SECTION 2. Amendments to Credit Agreement.
(a) Amendments to Subsection 1.1. (i) Subsection 1.1 of the Credit
Agreement is hereby amended by deleting the existing defined terms "Applicable
Margin", "Term Loan Commitment", "Term Loans", "Tranche B Term Loan Commitment",
"Tranche B Term Loan Exposure" and "Tranche B Term Loans" and substituting in
lieu thereof the following defined terms:
"Applicable Margin" means (x) with respect to Revolving Loans
and Tranche A Term Loans, 2.75% if such Loans are Base Rate Loans and
3.75% if such Loans are Eurodollar Rate Loans, (y) with respect to
Tranche B Term Loans, 3.25% if such Loans are Base Rate Loans and 4.25%
if such Loans are Eurodollar Rate Loans, and (z) with respect to the
Commitment Fee, 0.50%.
"Term Loan Commitment" means the aggregate commitment of a
Lender to make Tranche A Term Loans, Existing Tranche B Term Loans,
Additional Tranche B Term Loans and Supplemental Tranche B Term Loans
to Company pursuant to subsections 2.1A(i), 2.1A(ii), 2.1A(iii) and
2.1A(vi), respectively, and "Term Loan Commitments" means such
commitments of all Lenders in the aggregate.
2
"Term Loans" means the Tranche A Term Loans, Existing Tranche
B Term Loans, Additional Tranche B Term Loans and Supplemental Tranche
B Term Loans made by Lenders to Company pursuant to subsection 2.1A(i),
2.1A(ii), 2.1A(iii) and 2.1A(vi), respectively.
"Tranche B Term Loan Commitment" means, collectively, the
Existing Tranche B Term Loan Commitments, the Additional Tranche B Term
Loan Commitments and the Supplemental Tranche B Term Loan Commitments.
"Tranche B Term Loan Exposure" means, with respect to any
Lender, the Existing Tranche B Term Loan Exposure plus the Additional
Tranche B Term Loan Exposure plus the Supplemental Tranche B Term Loan
Exposure of such Lender.
"Tranche B Term Loans" means, collectively, the Existing
Tranche B Term Loans, the Additional Tranche B Term Loans and the
Supplemental Tranche B Term Loans.
(ii) Subsection 1.1 of the Credit Agreement is hereby amended by adding
the following new defined terms in proper alphabetical order:
"June 2002 Amendment Effective Date" means June 27, 2002.
"Minimum Asset Sales Date" has the meaning assigned to that
term in subsection 2.2F.
"PIK Interest" has the meaning assigned to that term in
subsection 2.2F.
"Senior Unsecured Notes" means the 12% senior unsecured notes
and warrants due 2006 to be issued in one or more closings on or prior
to the Supplemental Borrowing Date to certain of the MDC Entities,
Fenway or any of their Affiliates in an aggregate principal amount of
up to $25,000,000.
"Supplemental Borrowing Date" means the date (on or before
July 10, 2002) on which the conditions precedent set forth in Section
4.5 shall be satisfied or waived.
"Supplemental Tranche B Joinder Agreement" means a joinder
agreement substantially in the form of Exhibit XXIII annexed hereto.
"Supplemental Tranche B Term Loans" means the Loans made by
the Lenders to Company pursuant to subsection 2.1A(vi).
"Supplemental Tranche B Term Loan Commitment" means the
commitment of a Lender, as set forth in its Supplemental Tranche B
Joinder Agreement, to make a Supplemental Tranche B Term Loan to
Company pursuant to subsection 2.1A(vi), and
3
"Supplemental Tranche B Term Loan Commitments" means such commitments
of all Lenders in the aggregate.
"Supplemental Tranche B Term Loan Exposure" means, with
respect to any Lender as of any date of determination (i) prior to the
funding of the Supplemental Tranche B Term Loans, that Lender's
Supplemental Tranche B Term Loan Commitment and (ii) after the funding
of the Supplemental Tranche B Term Loans, the outstanding principal
amount of the Supplemental Tranche B Term Loan of that Lender.
"Supplemental Tranche B Term Loan Lender" means any Lender or
any other financial institution or other entity that executes and
delivers to the Administrative Agent a Supplemental Tranche B Joinder
Agreement.
"Temporary Lender" means any Lender or any other financial
institution or other entity that executes and delivers to the
Administrative Agent a Temporary Loan Joinder Agreement.
"Temporary Loan" has the meaning assigned to that term in
subsection 2.10.
"Temporary Loan Commitment" means the commitment of a
Temporary Lender, as set forth in its Temporary Loan Joinder Agreement,
to make a Temporary Loan to Company pursuant to subsection 2.10, and
"Temporary Loan Commitments" means such commitments of all Lenders in
the aggregate.
"Temporary Loan Joinder Agreement" means a joinder agreement
substantially in the form of Exhibit XXIV annexed hereto.
(iii) The defined term "Consolidated EBITDA" set forth in subsection
1.1 of the Credit Agreement is hereby amended by deleting clause (12) therefrom
and substituting the following in lieu thereof:
"(12) with respect to periods that include the Fiscal Quarters
ending June 30, 2002 and September 30, 2002, charges relating to the
payment of fees and expenses incurred in connection with the
Amendments, dated as of May 1, 2002 and June 25, 2002, to this
Agreement and the transactions contemplated thereby as reasonably
detailed to the Administrative Agent at the time of the delivery of the
financial statements for such periods."
(iv) The defined term "Restricted Junior Payment" set forth in
subsection 1.1 of the Credit Agreement is hereby amended by adding the following
phrase "or any of the Senior Unsecured Notes" at the end thereof.
4
(b) Amendment to Section 2. Section 2 of the Credit Agreement is
hereby amended by adding the following subsection in the proper numerical order:
2.10 Temporary Loans. Each Temporary Lender with a Temporary
Loan Commitment severally agrees to make a loan (a "Temporary Loan",
which so long as it shall be outstanding shall be a "Loan" hereunder)
to Company on the Supplemental Borrowing Date in an amount equal to its
Temporary Loan Commitment; the aggregate amount of the Temporary Loan
Commitments is $10,000,000. The proceeds of the Temporary Loans shall
be deposited into a deposit account at JPMorgan Chase Bank which shall
be a blocked account until repayment of the Temporary Loans for the
benefit of the Temporary Lenders. The Temporary Loans shall be used for
the purposes identified in subsection 2.5G. The Temporary Loans shall
be due and payable on the earlier of (a) the date on which the issuance
of the Senior Unsecured Notes in an aggregate principal amount of
$25,000,000 has occurred or (b) the date that is one Business Day after
the Supplemental Borrowing Date, and shall be paid on such date from
(i) if the Senior Unsecured Notes have been issued in an aggregate
principal amount of $25,000,000, the proceeds of such Senior Unsecured
Notes or (ii) if the Senior Unsecured Notes have not been issued in an
aggregate principal amount of $25,000,000, the funds on deposit in such
blocked account at JPMorgan Chase Bank, unless otherwise agreed by
Company and the Temporary Lenders. Company hereby agrees that JPMorgan
Chase Bank may debit such blocked account to repay in full the
Temporary Loans with such funds on deposit. Company may make only one
borrowing of the Temporary Loans. Amounts borrowed under this
subsection 2.10 and subsequently repaid may not be reborrowed. The
Temporary Loans may be prepaid by Company at any time from the funds on
deposit in such account at JPMorgan Chase Bank. The Temporary Loans
shall bear interest on the unpaid principal amount thereof from the
date made to the date such Loans are repaid in full at a rate per annum
determined by reference to the Base Rate plus 2.75%, which shall be
payable in arrears upon repayment in full of such Loans.
(c) Amendment to Subsection 2.1A. Subsection 2.1A of the Credit
Agreement is hereby amended by adding the following subsection in the proper
numerical order:
(vi) Supplemental Tranche B Term Loans. Each Supplemental
Tranche B Term Loan Lender with a Supplemental Tranche B Term Loan
Commitment severally agrees to make a Supplemental Tranche B Term Loan
to Company on the Supplemental Borrowing Date in an amount equal to its
Supplemental Tranche B Term Loan Commitment to be used for the purposes
identified in subsection 2.5F; provided that the proceeds of such Loans
shall be made available to Company at a discount to be agreed upon with
the Supplemental Tranche B Term Loan Lenders. Company may only make one
borrowing under the Supplemental Tranche B Term Loan Commitments.
Amounts borrowed under this subsection 2.1A(vi) and subsequently repaid
or prepaid may not be reborrowed. From and after the Supplemental
Borrowing Date, the Existing Tranche B Term Loans, Additional Tranche B
Term Loans and Supplemental Tranche B Term Loans of each Lender shall
be treated as one Tranche B Term Loan for purposes of this Agreement.
5
(d) Amendment to Subsection 2.2. Subsection 2.2 of the Credit
Agreement is hereby amended by adding the following new subsection 2.2F
immediately following subsection 2.2E and renaming the existing subsection
"2.2F" as "2.2G":
F. PIK Interest. Except as otherwise agreed to in writing by
the Requisite Lenders, additional pay-in-kind interest of 1.00% per
annum ("PIK Interest") shall accrue on the average daily aggregate
amount of each Lender's outstanding Loans and its Revolving Loan Pro
Rata Share of the outstanding Letters of Credit, for the period from
the June 2002 Amendment Effective Date, to the date on which Company
receives an aggregate amount of Net Cash Proceeds equal to at least
$200,000,000 from one or more Asset Sales (the "Minimum Asset Sales
Date"); provided that PIK Interest shall not be deemed earned or be
payable in the event that the Minimum Asset Sales Date or the date of
payment or prepayment in full of the Loans and other Obligations occurs
on or prior to September 30, 2003. PIK Interest shall notionally become
payable on the last day of each March, June, September and December and
shall itself accrue interest thereafter, compounded quarterly, at a
rate per annum equal to the Adjusted Eurodollar Rate plus the
Applicable Margin in effect at such time for the Tranche B Term Loans
plus 1.00% for successive notional interest periods of three months.
The then-accrued PIK Interest owing to each Lender shall become payable
to such Lender or its Eligible Assignee upon the earliest to occur of
(i) the Minimum Asset Sales Date, (ii) the date of payment or
prepayment in full of the Loans and other Obligations and (iii) June
30, 2005. Notwithstanding the foregoing, any accrued PIK Interest shall
automatically be deemed to be earned and become payable immediately
upon the occurrence of an Event of Default described in subsection 8.6
or 8.7 of this Agreement with respect to Company. Such PIK Interest may
be prepaid by Company on any Business Day upon notice to the
Administrative Agent.
(e) Amendment to Subsection 2.2B(viii). Subsection 2.2B(viii) of
the Credit Agreement is hereby amended by deleting "ten (10)" therefrom and
substituting "eleven (11)" in lieu thereof.
(f) Amendment to Subsection 2.3. Subsection 2.3 of the Credit
Agreement is hereby amended by adding the following new subsection 2.3C at the
end thereof:
C. Excess Leverage Fee. Except as otherwise agreed to in
writing by the Requisite Lenders, if as of September 30, 2003, Company
has not received an aggregate amount of Net Cash Proceeds equal to at
least $200,000,000 from one or more Asset Sales, Company agrees to pay
to the Administrative Agent, for distribution to each Lender and/or its
Eligible Assignee, an excess leverage fee of 1.50% of an amount equal
to the average daily aggregate amount of such Lender's Term Loan
Exposure and its Revolving Loan Pro Rata Share of the Total Utilization
of Revolving Loan Commitments for the period commencing on September
30, 2002 and ending on September 30, 2003. Such excess leverage fee
shall be due and payable on the earliest to occur of (i) the date of
any prepayment or reduction made pursuant to subsection 2.4B(iii) after
September 30, 2003, (ii) June 30, 2005 or (iii) the date of payment or
prepayment in full of the Loans
6
and other Obligations; provided, that such excess leverage fee shall be
deemed to have accrued and be earned and become payable immediately
upon the occurrence of an Event of Default described in subsection 8.6
or 8.7 of this Agreement with respect to Company. Such excess leverage
fee may be prepaid by Company on any Business Day upon notice to the
Administrative Agent.
(g) Amendment to Subsection 2.4A. Subsection 2.4A(ii) of the Credit
Agreement is hereby amended as follows:
(i) by inserting to the beginning of the first sentence of
subsection 2.4A(ii) of the Credit Agreement prior to the phrase
"Company shall" the following phrase "(a) Prior to the Supplemental
Borrowing Date,";
(ii) by deleting the sections of the table appearing therein
relating to the periods from September 30, 2002 to September 30, 2006;
(iii) by adding the following new clause (b) at the end of the
table therefrom and prior to the proviso at the end thereof:
(b) On and after the Supplemental Borrowing Date, Company
shall make principal payments on the Tranche B Term Loans in
installments on the dates and in the percentages of Tranche B Term
Loan Exposures outstanding as of the Supplemental Borrowing Date
set forth in the table below:
----------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
----------------------------------------------------------
September 30, 2002 0.222%
December 31, 2002 0.222%
----------------------------------------------------------
March 31, 2003 0.222%
June 30, 2003 0.222%
September 30, 2003 0.222%
December 31, 2003 0.222%
----------------------------------------------------------
March 31, 2004 0.222%
June 30, 2004 0.222%
September 30, 2004 0.222%
December 31, 2004 0.222%
----------------------------------------------------------
March 31, 2005 0.222%
June 30, 2005 0.222%
September 30, 2005 0.222%
----------------------------------------------------------
7
----------------------------------------------------------
SCHEDULED REPAYMENT
DATE OF TERM LOANS
----------------------------------------------------------
December 31, 2005 0.222%
----------------------------------------------------------
March 31, 2006 32.297%
June 30, 2006 32.297%
September 30, 2006 32.297%
----------------------------------------------------------
(h) Amendment to Subsection 2.5. Subsection 2.5 of the Credit Agreement
is hereby amended by adding the following new subsections 2.5F and 2.5G at the
end thereof:
F. Supplemental Tranche B Term Loans. The proceeds of the
Supplemental Tranche B Term Loans shall be applied by Company for
working capital and general corporate purposes, including to prepay
outstanding Swing Line Loans and Revolving Loans in accordance with
subsection 2.4B(i).
G. Temporary Loans. The proceeds of the Temporary Loans shall be
deposited into the deposit account referred to in subsection 2.10 and
thereafter applied (i) if the Senior Unsecured Notes are issued in an
aggregate principal amount of $25,000,000, for working capital and
general corporate purposes, including to prepay outstanding Swing Line
Loans and Revolving Loans in accordance with subsection 2.4B(i) or (ii)
if the Senior Unsecured Notes are not issued in an aggregate principal
amount of $25,000,000, to pay or prepay the Temporary Loans.
(i) Amendment to Section 4. Section 4 of the Credit Agreement is hereby
amended by adding the following subsection in the proper numerical order:
4.5 Conditions to Supplemental Tranche B Term Loans and Temporary
Loans. The obligations of the Supplemental Tranche B Term Loan Lenders
to make the Supplemental Tranche B Term Loans and the obligations of
the Temporary Lenders to make the Temporary Loans are, in addition to
the conditions precedent specified in subsection 4.2, subject to prior
or concurrent satisfaction or waiver of the following conditions:
A. Receipt by the Administrative Agent of (i) a duly executed
Supplemental Tranche B Joinder Agreement from each Supplemental Tranche
B Term Loan Lender, (ii) a duly executed Temporary Loan Joinder
Agreement from each Temporary Lender and (iii) duly executed
documentation relating to the Senior Unsecured Notes, which
documentation shall be reasonably satisfactory to the Administrative
Agent.
B. Purchase by certain of the MDC Entities, Fenway or any of their
Affiliates at a discount of 3% of an aggregate principal amount of
$10,000,000 of Senior Unsecured
8
Notes which, when added to any prior purchases of Senior Unsecured
Notes, shall total an aggregate principal amount of at least
$25,000,000 of Senior Unsecured Notes.
C. Documents relating to the Senior Unsecured Notes, in form and
substance reasonably satisfactory to the Administrative Agent.
D. Receipt by the Administrative Agent of such legal opinions,
documents and other instruments as are customary or as the
Administrative Agent may reasonably request, in form and substance
reasonably satisfactory to the Administrative Agent.
(j) Amendment to Subsection 6.1. Subsection 6.1(i) of the Credit
Agreement is hereby amended by deleting the phrase "cash flow forecast of at
least four weeks' duration of the Company and its subsidiaries" therefrom and
substituting in lieu thereof the following:
thirteen-week cash flow forecast of Company and its Subsidiaries (which
cash flow forecast shall be accompanied by a comparison of the actual
cash flows to projected cash flows for the fiscal month recently ended
and shall include a report detailing any material variances)
(k) Amendment to Subsection 6.5. Subsection 6.5 of the Credit Agreement
is hereby amended by renaming such subsection "Inspection; Lender Meeting;
Lender Conference Call" and adding the following sentence at the end thereof:
In addition, beginning with the Fiscal Quarter ending September 2002
and for each Fiscal Quarter thereafter, Company shall conduct a
conference call for the benefit of the Lenders to provide the Lenders
with a progress report regarding the completion of potential Asset
Sales, including information as to timing of book distributions,
management presentations and timing of bids. Notwithstanding the
foregoing, Company shall not be required to disclose any specific
information relating to bidders, bid levels or conditions that could
adversely affect the sale process.
(l) Amendment to Subsection 7.5. Subsection 7.5 of the Credit Agreement
is hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, no cash payments (whether of principal
or interest or otherwise) may be made on the Senior Unsecured Notes
prior to the date of payment in full of the Loans and all other
Obligations outstanding.
(m) Amendments to Subsection 7.6. Subsection 7.6 of the Credit
Agreement is hereby amended as follows:
9
(i) by deleting the portion of the table appearing at the end of
subsection 7.6A of the Credit Agreement relating to the periods set
forth below and substituting in lieu thereof the following:
-----------------------------------------------------------------------
TEST PERIOD MINIMUM CONSOLIDATED CASH INTEREST
COVERAGE RATIO
-----------------------------------------------------------------------
04/01/02 - 06/30/02 1.35:1.00
-----------------------------------------------------------------------
07/01/02 - 09/30/02 1.35:1.00
-----------------------------------------------------------------------
10/01/02 - 12/31/02 1.35:1.00
-----------------------------------------------------------------------
01/01/03 - 03/31/03 1.35:1.00
-----------------------------------------------------------------------
04/01/03 - 06/30/03 1.35:1.00
-----------------------------------------------------------------------
07/01/03 - 09/30/03 1.35:1.00
-----------------------------------------------------------------------
(ii) by deleting the portion of the first table appearing in
subsection 7.6B of the Credit Agreement relating to the periods set
forth below and substituting in lieu thereof the following:
-----------------------------------------------------------------------
TEST PERIOD MAXIMUM
LEVERAGE RATIO
-----------------------------------------------------------------------
04/01/02 - 06/30/02 7.85:1.00
-----------------------------------------------------------------------
07/01/02 - 09/30/02 7.85:1.00
-----------------------------------------------------------------------
10/01/02 - 12/31/02 7.45:1.00
-----------------------------------------------------------------------
01/01/03 - 03/31/03 7.25:1.00
-----------------------------------------------------------------------
04/01/03 - 06/30/03 7.20:1.00
-----------------------------------------------------------------------
07/01/03 - 09/30/03 7.15:1.00
-----------------------------------------------------------------------
(iii) by deleting the portion of the second table appearing in
subsection 7.6B of the Credit Agreement relating to the periods set
forth below and substituting in lieu thereof the following:
-----------------------------------------------------------------------
TEST PERIOD MAXIMUM
LEVERAGE RATIO
-----------------------------------------------------------------------
04/01/02 - 06/30/02 8.05:1.00
-----------------------------------------------------------------------
07/01/02 - 09/30/02 8.05:1.00
-----------------------------------------------------------------------
10/01/02 - 12/31/02 7.75:1.00
-----------------------------------------------------------------------
01/01/03 - 03/31/03 7.55:1.00
-----------------------------------------------------------------------
04/01/03 - 06/30/03 7.50:1.00
-----------------------------------------------------------------------
07/01/03 - 09/30/03 7.45:1.00
-----------------------------------------------------------------------
10
(iv) by deleting the portion of the table appearing at the end of
subsection 7.6C of the Credit Agreement relating to the periods set
forth below and substituting in lieu thereof the following:
-----------------------------------------------------------------------
MINIMUM FIXED CHARGE
TEST PERIOD COVERAGE RATIO
-----------------------------------------------------------------------
04/01/02 - 06/30/02 0.80:1.00
-----------------------------------------------------------------------
07/01/02 - 09/30/02 0.80:1.00
-----------------------------------------------------------------------
10/01/02 - 12/31/02 0.85:1.00
-----------------------------------------------------------------------
01/01/03 - 03/31/03 0.85:1.00
-----------------------------------------------------------------------
04/01/03 - 06/30/03 0.85:1.00
-----------------------------------------------------------------------
07/01/03 - 09/30/03 0.85:1.00
-----------------------------------------------------------------------
(v) by deleting in its entirety subsection 7.6E of the Credit
Agreement and substituting in lieu thereof the following:
E. Minimum Consolidated EBITDA. Company shall not permit
Consolidated EBITDA for any Fiscal Quarter ending during any of the
test periods set forth in the table below to be less than the
correlative amount for such test period set forth in the table below:
-----------------------------------------------------------------------
MINIMUM CONSOLIDATED
TEST PERIOD EBITDA
-----------------------------------------------------------------------
04/01/02 - 06/30/02 $20,000,000
-----------------------------------------------------------------------
07/01/02 - 09/30/02 $37,000,000
-----------------------------------------------------------------------
10/01/02 - 12/31/02 $48,500,000
-----------------------------------------------------------------------
01/01/03 - 03/31/03 $28,500,000
-----------------------------------------------------------------------
04/01/03 - 06/30/03 $22,000,000
-----------------------------------------------------------------------
07/01/03 - 09/30/03 $40,000,000
-----------------------------------------------------------------------
(vi) by deleting the portion of the table appearing at the end of
subsection 7.6F of the Credit Agreement relating to the periods set
forth below and substituting in lieu thereof the following:
-----------------------------------------------------------------------
TEST PERIOD MAXIMUM SENIOR
LEVERAGE RATIO
-----------------------------------------------------------------------
04/01/02 - 06/30/02 4.80:1.00
-----------------------------------------------------------------------
07/01/02 - 09/30/02 4.80:1.00
-----------------------------------------------------------------------
10/01/02 - 12/31/02 4.40:1.00
-----------------------------------------------------------------------
11
-----------------------------------------------------------------------
TEST PERIOD MAXIMUM SENIOR
LEVERAGE RATIO
-----------------------------------------------------------------------
01/01/03 - 03/31/03 4.25:1.00
-----------------------------------------------------------------------
04/01/03 - 06/30/03 4.25:1.00
-----------------------------------------------------------------------
07/01/03 - 09/30/03 4.25:1.00
-----------------------------------------------------------------------
(n) Amendments to Subsection 7.7. (i) Subsection 7.7 of the Credit
Agreement is hereby amended by (A) deleting the word "and" at the end of clause
(v) thereof, (B) deleting the period at the end of clause (vi) thereof and
substituting in lieu thereof "; and" and (C) inserting the following new clause
(vii) at the end thereof:
(vii) Company and its Subsidiaries may create Wholly Owned
Subsidiaries for purposes of consummating any Asset Sale permitted
under subsection 7.7(v) above.
(ii) Subsection 7.7(v) of the Credit Agreement is hereby amended by
adding the following new clause (w) at the beginning of the proviso thereof:
(w) the foregoing limit shall not be applicable to any Asset Sales
consummated by Company and its Subsidiaries during the period starting
on the June 2002 Amendment Effective Date and ending on December 31,
2003;
(o) Amendment to Subsection 7.9. Subsection 7.9 of the Credit Agreement
is hereby amended by renaming existing clause (vii) as clause (viii) and
inserting the following new clause (vii) immediately after clause (vi) thereof:
(vii) expenses payable to the MDC Entities or Fenway in connection with
any Asset Sale consummated after the June 2002 Amendment Effective
Date,
(p) Amendment to Subsection 7.10. Subsection 7.10 of the Credit
Agreement is hereby amended by adding the following immediately after the phrase
"if required by applicable law" appearing in both clause (i) and (ii) thereof:
or in connection with any Asset Sale permitted under subsection 7.7(v).
(q) Amendment to Subsection 7.12. Subsection 7.12 of the Credit
Agreement is hereby amended by adding the following new subsection 7.12E at the
end thereof:
E. Amendments of Documents Relating to the Senior Unsecured
Notes. After the Supplemental Borrowing Date, Company shall not, and
shall not permit any of its Subsidiaries to, amend or otherwise change
the terms of any of the Senior Unsecured Notes, or make any payment
consistent with an amendment thereof or change thereto, if the effect
of such amendment or change is to increase the interest rate on such
Senior Unsecured Notes, change (to earlier dates) any dates upon which
payments of
12
principal or interest are due thereon, change any event of default or
condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period
related thereto), change the redemption, prepayment or defeasance
provisions thereof, change the subordination provisions thereof (or of
any guaranty thereof), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change,
together with all other amendments or changes made, is to increase
materially the obligations of the obligor thereunder or to confer any
additional rights on the holders of such Senior Unsecured Notes (or
trustee or other representative on their behalf) which would be adverse
to Company or Lenders.
(r) Amendments to Exhibits. The Exhibits to the Credit Agreement are
hereby amended by inserting Annex I attached hereto as a new Exhibit XXIII to
the Credit Agreement and inserting Annex II attached hereto as a new Exhibit
XXIV to the Credit Agreement.
SECTION 3. Waivers to the Credit Agreement.
(a) Waiver in Respect of Issuance of Senior Unsecured Notes. Any breach
by Company of subsection 7.9 of the Credit Agreement with respect to the
issuance of the Senior Unsecured Notes and any Event of Default or Potential
Event of Default resulting from any such breach, is hereby waived.
(b) Waiver in Respect of Receivables Purchase Agreement. Any breach by
Company of subsection 2.4B(iii)(a), 7.2 or 7.7 of the Credit Agreement with
respect to the Receivables Purchase Agreement, dated as of April 19, 2000,
between Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank) (as amended, supplemented or otherwise modified from time to time, the
"Receivables Purchase Agreement"), and the use of the Net Cash Proceeds thereof
(with respect to any breach of subsection 2.4B(iii)(a), solely to the extent
such Net Cash Proceeds do not exceed (i) prior to July 31, 2002, $42,000,000 at
any time outstanding and (ii) thereafter, $30,000,000 at any time outstanding)
and any Event of Default or Potential Event of Default resulting from any such
breach, is hereby waived only for the period ending on September 30, 2003.
SECTION 4. Preferred Stock Amendment. In accordance with subsection
7.12D, the Lenders parties hereto consent to the execution and delivery of an
amendment to amend the Certificate of Incorporation of Company in order to grant
the holders of Company's Series A Preferred Stock voting rights equal to those
of the holders of Company Common Stock.
SECTION 5. Termination of Revolving Loan Subordinated Participation
Agreement. The Revolving Loan Subordinated Participation Agreement, dated as of
May 1, 2002, among JPMorgan Chase Bank, as Administrative Agent and the parties
thereto, shall be terminated without any payments being made thereunder on the
date on which (a) certain of the MDC Entities, Fenway or any of their Affiliates
(the "Sponsors") shall have purchased at a discount of 3% an aggregate principal
amount of $25,000,000 of the Senior Unsecured Notes and (b) Company shall have
paid or prepaid in full the Temporary Loans with a portion of such proceeds.
13
SECTION 6. Conditions to Effectiveness of Amendment. This
Amendment shall be effective on the date on which all of the following
conditions precedent have been satisfied or waived (the "Effective Date"):
(a) The Administrative Agent shall have received this Amendment,
executed and delivered by a duly authorized officer of each of (i) Company, (ii)
the Guarantor, (iii) the Requisite Lenders and (iv) Lenders having or holding
more than 50% of the aggregate Revolving Loan Exposure of all Lenders.
(b) The Sponsors shall have purchased at a discount of 3% an
aggregate principal amount of $15,000,000 of the Senior Unsecured Notes issued
by Company.
(c) Company shall have paid all accrued fees and expenses of the
Administrative Agent and the reasonable expenses of the Lenders, including the
accrued fees and expenses of counsel to the Administrative Agent.
(d) After giving effect to the Amendment, no Event of Default or
Potential Event of Default shall have occurred and be continuing.
SECTION 7. Representations and Warranties. To induce the Lenders
parties hereto to enter into this Amendment, Company hereby represents and
warrants to the Administrative Agent and all of the Lenders that the
representations and warranties made by Company in the Loan Documents are true
and correct in all material respects on and as of the date hereof, after giving
effect to the effectiveness of this Amendment, as if made on and as of the date
hereof.
SECTION 8. Effect on the Loan Documents. (a) Except as
specifically amended above, the Credit Agreement and all other Loan Documents
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment,
except as expressly provided herein, shall not operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 9. Amendment Fee. Company shall pay to each Lender that
executes and delivers this Amendment prior to 5:00 P.M., New York City time,
June 25, 2002, a fee equal to 0.25% of the sum of such Lender's (a) Revolving
Loan Exposure, (b) outstanding Tranche A Term Loans and (c) outstanding Tranche
B Term Loans, such fee to be earned as of the Effective Date and payable no
later than the Supplemental Borrowing Date.
SECTION 10. Costs, Expenses and Taxes. Company agrees to pay on
demand all actual and reasonable and documented out-of-pocket costs and expenses
of the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered thereunder and hereunder,
including, without limitation, the reasonable and documented fees and
14
out-of-pocket expenses of counsel for the Administrative Agent (including
allocated costs of internal counsel) with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities
hereunder and thereunder. Company further agrees to pay on demand all costs and
expenses of the Administrative Agent and each of the Lenders, if any (including,
without limitation, counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Amendment and the other instruments and documents to be delivered
hereunder, including, without limitation, reasonable counsel fees and expenses
(including allocated costs of internal counsel) in connection with the
enforcement of rights under this Section 10.
SECTION 11. Affirmation of Subsidiary Guaranty, Pledge Agreement
and Credit Agreement. The Guarantor hereby consents to the modification of the
Credit Agreement contemplated hereby and each of Company and the Guarantor
hereby acknowledge and agree that the guarantees contained in the Subsidiary
Guaranty, the pledge of stock contained in the Pledge Agreement and the
obligations contained in the Credit Agreement as modified hereby are, and shall
remain, in full force and effect.
SECTION 12. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13. Execution in Counterparts. This Amendment may be
executed by one or more of the parties to this Amendment on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Amendment signed by all the parties shall be lodged with Company and the
Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
AURORA FOODS INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President & CEO
SEA COAST FOODS, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President & CEO
XX XXXXXX XXXXX BANK (formerly
known as The Chase Manhattan Bank),
as Administrative Agent and Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALLIANCE CAPITAL MANAGEMENT L.P., as
Manager on behalf of ALLIANCE CAPITAL
FUNDING, L.L.C., as Assignee
By: Alliance Capital Management
Corporation, General Partner of
Alliance Capital Management L.P.
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
AMERICAN EXPRESS CERTIFICATE COMPANY
By: American Express Asset Management
Group Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
APEX (IDM) CDO I, LTD.
By: Xxxxx X. Xxxxxx & Company Inc.,
as Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
ARCHIMEDES FUNDING, LLC.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
ARES LEVERAGED INVESTMENT FUND II,
L.P.
By: ARES Management II, L.P. its
General Partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES III CLO LTD.
By: ARES CLO Management, LLC its Investment
Partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES IV CLO LTD.
By: ARES CLO Management IV, L.P. its
Investment Partner
By: ARES CLO XX XX, LLC its Managing
Manager
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ARES V CLO LTD.
By: ARES CLO Management V, L.P. its
Investment Manager
By: ARES CLO GP V, LLC its Managing Manager
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BALANCED HIGH-YIELD FUND I, LTD.
By: ING Capital Advisors LLC, as
Asset Manager
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisors LLC, as
Asset Manager
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
BANCO ESPIRITO SANTO, S.A., NASSAU
BRANCH
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG
NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BNP PARIBAS
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
CALLIDUS DEBT PARTNERS CDO FUND I, LTD
By: Callidus Capital Management, LLC as
Collateral Manager
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Principal
CENTURION CDO II, LTD.
By: American Express Asset Management Group
Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CENTURION CDO III, LIMITED
By: American Express Asset Management Group
Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CLYDESDALE CLO 2001-1, LTD.
By: Nomura Corporate Research and Asset Management
Inc. as Collateral Manager
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
COSTANTINUS XXXXX XXXXX CDO V, LTD.
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
Title: Vice President
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice President
CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Associate
CYPRESSTREE INVESTMENT MANAGEMENT COMPANY,
INC.
As: Attorney-in-Fact, on behalf of First
Allmerica Financial Life Insurance
Company as Portfolio Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Associate
DAPLE S.A.
By: PPM America, attorney in fact
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXX XXXXX CDO III, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX CDO IV, LTD.
By: Xxxxx Xxxxx Management as
Investment Advisor
By: /s/ Xxxxx X. Page
--------------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxx X. Page
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: Xxxxx X. Xxxxxx & Company, Inc., as
Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
ELC (CAYMAN) LTD. 1999-III
By: Xxxxx X. Xxxxxx & Company Inc., as
Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
ELC (CAYMAN) LTD. 2000-1
By: Xxxxx X. Xxxxxx & Company Inc., as
Collateral Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
ENDURANCE CLO I, LTD.
C/o: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxxx Xxxx
-----------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
EQ ADVISORS TRUST
By: Alliance Capital Management L.P.
By: /s/ Xxxx Xxxx
-----------------------------
Name: Xxxx Xxxx
Title: Portfolio Manager
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ W. Xxxxxx XxXxxxxxx
-----------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
XXXXXXX & CO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
------------------------------
Name: Xxxxx X. Page
Title: Vice President
HARBOUR TOWN FUNDING LLC
By: /s/ Xxx X. Xxxxxx
------------------------------
Name: Xxx X. Xxxxxx
Title: Asst Vice President
HSBC BANK USA
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Relationship Manager
IDS LIFE INSURANCE COMPANY
By: American Express Asset Management
Group Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By: /s/ Xx. Xxxxx Xxxxxx
------------------------------
Name: Xx. Xxxxx Xxxxxx
Title: Head of Structured Finance
By: /s/ Xxxxxxx Ziwey
----------------------------------------
Name: Xxxxxxx Ziwey
Title: Director
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Principal and Portfolio Manager
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Principal and Portfolio Manager
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: RBC Leveraged Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
ING PRIME RATE TRUST
By: ING Investments, LLC as its Investment Manager
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
ING SENIOR INCOME FUND
By: ING Investments, LLC as its Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
MARINER LDC
By: /s/ Xxxxxxx X. Xxxx XX
-------------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Director
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC as its Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC as its Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: ING Investments, LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
MONUMENT CAPITAL LTD., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX PRIME INCOME TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
NATIONAL CITY
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC, as
Investment Manager
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
NEW ALLIANCE GLOBAL CDO, LIMITED
By: Alliance Capital Management L.P., as
Sub-advisor
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
NOMURA BOND & LOAN FUND
By: UFJ Trust Company of New York, as
Trustee
By: Nomura Corporate Research and Asset
Management Inc., Attorney in Fact
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
ORYX CLO, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management as Investment
Advisor
By: /s/ Xxxxx X. Page
-------------------------------------
Name: Xxxxx X. Page
Title: Vice President
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset as its
Investment Manager
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
PILGRIM AMERICA HIGH INCOME INVESTMENTS
LTD.
By: ING Investments, LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM CLO 1999-1 LTD.
By: ING Investments, LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PINEHURST TRADING, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
PPM AMERICA SPECIAL INVESTMENTS CBO II,
L.P.
By: PPM America, attorney in fact
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
PPM AMERICA SPECIAL INVESTMENTS FUND,
L.P.
By: PPM America, attorney in fact
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
PPM SHADOW CREEK FUNDING LLC
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD
By: CPF Asset Advisory, LLC as
Investment Manager
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director & Portfolio
Manager
SANKATY HIGH YIELD ASSET PARTNERS II,
L.P.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director & Portfolio
Manager
SANKATY HIGH YIELD PARTNERS III, L.P.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director & Portfolio
Manager
SANKATY ADVISORS, LLC as Collateral
Manager for RACE POINT CLO, LIMITED, as
Term Lender
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director & Portfolio
Manager
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Xxxxx X. Page
------------------------------------
Name: Xxxxx X. Page
Title: Vice President
SEQUILS-CENTURION V, LTD
By: American Express Asset Management
Group Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SEQUILS PILGRIM-I LTD.
By: ING Investments, LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company. Inc.
under delegated authority from
Massachusetts Mutual Life Insurance
Company as Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
-------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp,
as Collateral Manager
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp
as Collateral Manager
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx Xxx
-------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President & Principal
Annex I
Exhibit XXIII
SUPPLEMENTAL TRANCHE B JOINDER AGREEMENT
SUPPLEMENTAL TRANCHE B JOINDER AGREEMENT, dated July ___, 2002
(this "Joinder Agreement"), to the Fifth Amended and Restated Credit Agreement,
dated as of November 1, 1999 (as heretofore amended, supplemented or otherwise
modified, the "Credit Agreement"), among AURORA FOODS INC. ("Company"), the
several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), as administrative agent (in such capacity, the
"Administrative Agent"), NATIONAL WESTMINSTER BANK PLC, as Syndication Agent (as
defined in the Credit Agreement) and UBS AG, STAMFORD BRANCH, as Documentation
Agent (as defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, the undersigned (each, a "Supplemental Tranche B Term
Loan Lender" and collectively, the "Supplemental Tranche B Term Loan Lenders")
desires, pursuant to subsection 2.1A(vi) of the Credit Agreement, to make
Supplemental Tranche B Term Loans to Company;
WHEREAS, the Supplemental Tranche B Term Loan Lenders may not
have been original parties to the Credit Agreement but now desire to become
parties thereto;
NOW, THEREFORE, each Supplemental Tranche B Term Loan Lender
hereby agrees as follows:
1. Terms defined in the Credit Agreement and used herein
without definition shall have the meanings given to them in the Credit
Agreement.
2. Upon execution and delivery of this Joinder Agreement by
such Supplemental Tranche B Term Loan Lender in accordance with subsection
2.1A(vi) of the Credit Agreement, the undersigned hereby becomes a Supplemental
Tranche B Term Loan Lender under the Credit Agreement and shall make such
Supplemental Tranche B Term Loan to Company, funding an amount which represents
a discount to its Supplemental Tranche B Term Loan Commitment as set forth under
such Supplemental Tranche B Term Loan Lender's signature.
3. Each Supplemental Tranche B Term Loan Lender agrees to be
bound by the provisions of the Credit Agreement and agrees that it shall become
a Lender for all purposes of the Credit Agreement to the same extent as if
originally a party thereto.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5. This Joinder Agreement may be executed by one or more of
the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
XXIII-2
IN WITNESS WHEREOF, the parties hereto have caused this
Joinder Agreement to be duly executed and delivered by their proper and duly
authorized officers as of this __ day of _______, 2002.
______________________________________________
Name of Supplemental Tranche B Term Loan Lender
Supplemental Tranche B Term Loan Commitment:
$______________________________
By ___________________________
Name:
Title:
Accepted and agreed:
AURORA FOODS INC.
By ______________________________
Name:
Title:
XX XXXXXX XXXXX BANK, as
Administrative Agent
By ______________________________
Name:
Title:
Annex II
Exhibit XXIV
TEMPORARY LOAN JOINDER AGREEMENT
TEMPORARY LOAN JOINDER AGREEMENT, dated July ___, 2002 (this
"Joinder Agreement"), to the Fifth Amended and Restated Credit Agreement, dated
as of November 1, 1999 (as heretofore amended, supplemented or otherwise
modified, the "Credit Agreement"), among AURORA FOODS INC. ("Company"), the
several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders"), JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), as administrative agent (in such capacity, the
"Administrative Agent"), NATIONAL WESTMINSTER BANK PLC, as Syndication Agent (as
defined in the Credit Agreement) and UBS AG, STAMFORD BRANCH, as Documentation
Agent (as defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, the undersigned (each, a "Temporary Lender" and
collectively, the "Temporary Lenders") desires, pursuant to subsection 2.10 of
the Credit Agreement, to make Temporary Loans to Company;
WHEREAS, the Temporary Lenders may not have been original
parties to the Credit Agreement but now desire to become parties thereto;
NOW, THEREFORE, each Temporary Lender hereby agrees as
follows:
1. Terms defined in the Credit Agreement and used herein
without definition shall have the meanings given to them in the Credit
Agreement.
2. Upon execution and delivery of this Joinder Agreement by
such Temporary Lender in accordance with subsection 2.10 of the Credit
Agreement, the undersigned hereby becomes a Temporary Lender under the Credit
Agreement and shall make such Temporary Loan to Company in an amount equal to
its Temporary Loan Commitment as set forth under such Temporary Lender's
signature.
3. Each Temporary Lender agrees to be bound by the provisions
of the Credit Agreement and agrees that it shall become a Lender for all
purposes of the Credit Agreement to the same extent as if originally a party
thereto.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
5. This Joinder Agreement may be executed by one or more of
the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page
hereof by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
XXIV-2
IN WITNESS WHEREOF, the parties hereto have caused this
Joinder Agreement to be duly executed and delivered by their proper and duly
authorized officers as of this __ day of _______, 2002.
_____________________________________
Name of Temporary Lender
Temporary Loan Commitment:
$_________________________
By ______________________________
Name:
Title:
Accepted and agreed:
AURORA FOODS INC.
By ______________________________
Name:
Title:
XX XXXXXX XXXXX BANK, as
Administrative Agent
By ______________________________
Name:
Title:
