CONFORMED COPY
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AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of October 1, 2001 (this "Amendment"),
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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
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Agreement"), among Aurora Foods Inc. (the "Company"), the financial institutions
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parties thereto (the "Lenders"), The Chase Manhattan Bank, as the administrative
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agent for the Lenders (in such capacity, the "Administrative Agent"), National
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Westminster Bank PLC, as syndication agent (in such capacity, the "Syndication
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Agent") and UBS AG, Stamford Branch, as documentation agent (in such capacity,
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the "Documentation Agent").
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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 the
Company;
WHEREAS, the Company has requested, and, upon this Amendment becoming
effective, the Lenders have agreed, that certain provisions of the Credit
Agreement be amended and waived as set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and
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used herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Waivers to the Credit Agreement. (a) Any breach by the
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Company of the financial condition covenant set forth in subsection 7.6F of the
Credit Agreement with respect to the test period ending September 30, 2001, and
any Event of Default or Potential Event of Default resulting from any such
breach is hereby waived; provided that, (i) such waiver shall be effective for
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the period from September 30, 2001 to and including October 31, 2001 only if,
after giving pro forma effect to the IP License as if the IP License had
occurred on or prior to September 30, 2001 and to the use by the Company of the
assumed Net Cash Proceeds therefrom of at least $17,000,000 to prepay Term Loans
pursuant to Section 2.4B(iii)(a) of the Credit Agreement, the Company would have
been in compliance with subsection 7.6F of the Credit Agreement as of September
30, 2001 and (ii) such waiver shall be effective after October 31, 2001 only if
the IP License has occurred on or prior to such date and the Net Cash Proceeds
therefrom have been used to prepay Term Loans pursuant to Section 2.4B(iii)(a)
of the Credit Agreement and if, after giving effect to the IP License as if the
IP License had occurred on or prior to September 30, 2001 and to the use by the
Company the Net Cash Proceeds therefrom to prepay Term Loans pursuant to Section
2.4B(iii)(a) of the Credit Agreement, the Company would have been in compliance
with subsection 7.6F of the Credit Agreement as of September 30, 2001.
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(b) Any breach by the Company of subsections 7.2A or 7.7 of
the Credit Agreement with respect to the consummation of the IP License, or, to
the extent that the IP License constitutes "Indebtedness" of clause (v) of the
definition thereof in subsection 1.1, subsection 7.1 with respect to any such
Indebtedness, is hereby waived.
SECTION 3. Amendments to the Credit Agreement.
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(a) Amendment to Subsection 1.1. Subsection 1.1 of the Credit
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Agreement shall be hereby amended by adding the following definitions in proper
alphabetical order:
"IP License" means the sale of a perpetual license to the IP
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Licensee to use the trademarks, service marks, formulas and other
intellectual property relating to certain foodservice businesses for
use in the foodservice channel (the "Licensed Intellectual Property")
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for an initial payment of approximately $17,000,000 or more. The
obligations of the Company to the IP Licensee in respect of the IP
License shall be secured by a security interest in the assets of the
Company comprising the Licensed Intellectual Property. The IP License
shall be deemed to be an "Asset Sale" for purposes of this agreement.
"IP Licensee" means the purchaser of the perpetual license
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described in the definition of "IP License".
(b) Amendment to Subsection 5.16A. Subsection 5.16A of the
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Credit Agreement shall be hereby amended by adding the following parenthetical
after the phrase "a valid and perfected First Priority Lien on all of the
Collateral":
"(other than any such Collateral over which the IP Licensee
has been granted a first priority security interest pursuant
to the IP License)"
(c) Amendment to Subsection 7.6F. If, as of October 31, 2001,
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(i) the IP License has not been consummated, (ii) the Company is not in
compliance with subsection 7.6F for the test period from July 1, 2001 to
September 30, 2001 and (iii) the Company has paid to each Lender which executes
and delivers this Amendment prior to 12:00 Noon, New York City time, October 1,
2001, a fee equal to 0.075% of the sum of such Lender's (A) Revolving Credit
Commitment, (B) outstanding Tranche A Term Loans and (C) outstanding Tranche B
Term Loans, subsection 7.6F shall be amended as of such date 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:
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MAXIMUM SENIOR
TEST PERIOD LEVERAGE RATIO
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07/01/01 - 09/30/01 4.11:1.00
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SECTION 4. Authorization of Intercreditor Agreement. The Lenders
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hereby authorize the Administrative Agent to enter into an intercreditor
agreement with the IP Licensee, pursuant to which the IP Licensee shall be
granted a security interest in the Licensed Intellectual Property pursuant to
the terms of the IP License.
SECTION 5. Conditions to Effectiveness. This Amendment shall be
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effective on the date (the "Effective Date") on which the Administrative Agent
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shall have received this Amendment, executed and delivered by a duly authorized
officer of each of the Company, the Guarantor and the Requisite Lenders.
SECTION 6. Representations and Warranties. To induce the Lenders
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parties hereto to enter into this Amendment, the Company hereby represents and
warrants to the Administrative Agent and all of the Lenders that (i) the
representations and warranties made by the 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 and (ii) after giving effect to this Amendment, no Event of
Default or Potential Event of Default shall have occurred and be continuing.
SECTION 7. Effect on the Loan Documents. (a) Except as specifically
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amended or waived 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 8. Costs, Expenses and Taxes. The Company agrees to pay on
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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
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. The 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 7.
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SECTION 9. Affirmation of Subsidiary Guaranty, Pledge Agreement and
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Credit Agreement. The Guarantor hereby consents to the modification of the
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Credit Agreement contemplated hereby and each of the 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 10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
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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 11. Execution in Counterparts. This Amendment may be executed
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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. Any executed counterpart delivered by facsimile
transmission shall be effective as for all purposes hereof. A set of the copies
of this Amendment signed by all the parties shall be lodged with the 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/ Xxxxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
SEA COAST FOODS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer, Secretary,
and Director
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
APEX (IDM) CDO I, LTD.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P. its General
Partner
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
ARES III CLO LTD.
By: ARES CLO Management, LLC its Investment
Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
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/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
BANCO ESPIRITO SANTO, S.A.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA, NA
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: AVP
BAYERISCHE HYPO-UND VEREINSBANK AG
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
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Name: Xxxxx X. Xxxxxxxxx
Title: Director
CENTURION CDO II, LTD.
By: American Express Asset Management Group
Inc. as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
CLYDESDALE CLO 2001-1, LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Director
COBANK, ACB
By: /s/ S. Xxxxxxx Xxxx
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Name: S. Xxxxxxx Xxxx
Title: Vice President
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ P. Xxxxxxx Xxxx
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Name: P. Xxxxxxx Xxxx
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS II, LTD.,
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ P. Xxxxxxx Xxxx
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Name: P. Xxxxxxx Xxxx
Title: Principal
DEUTSCHE BANK AG NEW YORK BRANCH and/or
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
ELC (CAYMAN) LTD. 1999-III
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
ELC (CAYMAN) LTD. 2000-1
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
EQ ADVISORS TRUST
By: Alliance Capital Management L.P.,
as Advisor
By: /s/ Xxxx Xxxx
-----------------------------------
Name: Xxxx Xxxx
Title: Portfolio Manager
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Sr. Vice President
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
FRANKLIN FLOATING RATE MASTER SERIES
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
FRANKLIN CLO II, LIMITED
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ W. Xxxxxx XxXxxxxxx
---------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
HARBOURVIEW CDO II LTD., FUND
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
HSBC BANK USA
By: /s/ Xxxxxxx X. English
---------------------------------
Name: Xxxxxxx X. English
Title: Associate Director
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
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 SHOSHONE 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/ X. Xxxx XX
--------------------------------
Name: X. Xxxx XX
Title: Director
THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investments as its Investment
Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investments as its Investment
Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim Investments 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 X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
NOMURA BOND & LOAN
By: The Tokyo Trust & Banking Co., Ltd. as
Trustee
By: Nomura Corporate Research and Asset
Management Inc., Attorney in Fact
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
XXXXXXXXXXX SENIOR FLOATING RATE FUND
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: AV.P.
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management as its
Investment Advisor
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
PILGRIM PRIME RATE TRUST
By: ING Pilgrim Investments as its Investment
Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM SENIOR INCOME FUND
By: ING Pilgrim Investment, Inc. as its
Investment Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM AMERICA HIGH INCOME INVESTMENTS INC.
LTD.
By: ING Pilgrim Investments as its Investment
Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM CLO 1999-1 LTD.
By: ING Pilgrim Investments as its Investment
Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PINEHURST TRADING LLC
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SEQUILS PILGRIM-1 LTD.
By: ING Pilgrim Investments as its Investment
Manager
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SEQUILS-CENTURION V, LTD
By: American Express Asset Management Group
Inc. as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Sr. Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
------------------------=----------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXXXX FARGO BANK, N.A.
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
WINGED FOOT FUNDING TRUST
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
