AMENDMENT AND WAIVER
Exhibit 10.32
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of April 16, 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:
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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. Amendment to Credit Agreement. Subsection 7.4(iii) of the
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Credit Agreement is hereby amended by deleting such subsection in its entirety
and substituting in lieu thereof the following:
"(iii) the Company may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements entered into
with Lenders or Affiliates of Lenders;".
SECTION 3. Waiver to Credit Agreement. Any breach by the Company of
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the covenant set forth in subsection 7.4(iii) of the Credit Agreement, and any
Event of Default or Potential Event of Default resulting from any such breach,
is hereby waived.
SECTION 4. Conditions to Effectiveness. This Amendment shall be
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effective on the date on which the Administrative Agent shall have received this
Amendment, executed and delivered by a duly authorized officer of each of the
Company, the Guarantor and the Requisite Lenders.
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SECTION 5. 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 6. 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 7. 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.
SECTION 8. 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 9. 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.
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SECTION 10. 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.
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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
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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
KZH PONDVIEW LLC
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
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KZH SHOSHONE LLC
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Authorized Agent
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management as
its Investment Manager
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
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SUNTRUST BANK
By: /s/ Xxxxxxx Lapriesi
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Name: Xxxxxxx Lapriesi
Title: Director
GE CAPITAL CORPORATION
By: /s/ W. Xxxxxx XxXxxxxxx
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Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
NATIONAL CITY BANK
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
INDOSUEZ CAPITAL FUNDING III,
LIMITED
By: Indosuez Capital as Portfolio Manager
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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INDOSUEZ CAPITAL FUNDING IV,
L.P.
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
PILGRIM AMERICA HIGH INCOME
INVESTMENTS INC. LTD.
By: ING Pilgrim Investments as its
Investment Manager
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM CLO 1999-1 LTD.
By: ING Pilgrim Investments as its
Investment Manager
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
SEQUILS PILGRIM-1 LTD.
By: ING Pilgrim Investments as its
Investment Manager
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
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ML CLO XII PILGRIM AMERICA
(CAYMAN) LTD.
By: ING Pilgrim Investments as its
Investment Manager
By: /s/ Xxxxx Xxxxx
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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
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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
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Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM PRIME RATE TRUST
By: ING Pilgrim Investments as its
Investment Manager
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
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PILGRIM SENIOR INCOME FUND
By: ING Pilgrim Investments, Inc. 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
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT
FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES III CLO LTD.
By: ARES CLO Management LLC,
Investment Manager
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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ARES IV CLO LTD.
By: ARES CLO Management IV, L.P.,
Investment Manager
By: ARES CLO XX XX, LLC
Its Managing Member
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx 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
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Name: Xxxxxx Xxxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Associate
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HSBC BANK USA
By: /s/ D. C. English
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Name: Xxxxxxx X. English
Title: Associate Director
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc., as
Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Principal
XXX XXXXXX SENOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Principal
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Management Inc., as
Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Principal
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XXX XXXXXX PRIME RATE INCOME
TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Principal
FRANKLIN FLOATING RATE MASTER
SERIES
By: /s/ Xxxxxxx X'Xxxxxxx
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Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxx X'Xxxxxxx
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Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
Title: Assistant Director
By: /s/ Xxxxxxx Ziwey
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Name: Xxxxxxx Ziwey
Title: Director
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SIMSBURY CLO, LIMITED
By: Xxxxx X. Xxxxxx & Company, Inc.
under delegated authority from
Massachusetts Mutual Life Insurance Co., as
Collateral Manager
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Managing Director
