Exhibit 10.43
AMENDMENT
AMENDMENT, dated as of February 21, 2003 (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. Subsection 1.1 of the Credit Agreement is
hereby amended as follows:
(i) by deleting the existing defined term "Applicable Margin" and
substituting in lieu thereof the following:
"Applicable Margin" means (a) with respect to Revolving Loans and
Tranche A Term Loans, 3.50% if such Loans are Base Rate Loans and 4.50% if
such Loans are Eurodollar Rate Loans, (b) with respect to Tranche B Term
Loans, 4.00% if such Loans are Base Rate Loans and 5.00% if such Loans are
Eurodollar Rate Loans, and (c) with respect to the Commitment Fee, 0.50%;
provided that on and after the date on which Company has received aggregate
Net Cash Proceeds from one or more Asset Sales consummated after the
February 2003 Amendment Effective Date in an aggregate amount equal to or
exceeding $275,000,000, the Applicable Margin shall be (x) with respect to
Revolving Loans and Tranche A Term Loans, 3.25% if such Loans are Base Rate
Loans and 4.25% if such Loans are Eurodollar Rate Loans, (y) with respect
to Tranche B Term Loans, 3.75% if such Loans are Base Rate Loans and 4.75%
if such Loans are Eurodollar Rate Loans, and (z) with respect to the
Commitment Fee, 0.50%
(ii) (A) by deleting the word "and" immediately before clause (12) of the
defined term "Consolidated EBITDA" and substituting in lieu thereof "," and (B)
adding the following new clause (13) immediately after the end of clause (12) of
the defined term "Consolidated EBITDA":
and (13) with respect to periods that include the Fiscal Quarter
ending December 31, 2002, charges as set forth on the attached
Schedule 1.1B
(iii)(A) by adding the following language immediately after the phrase
"Cash Proceeds of such Asset Sale net of" in the defined term "Net Cash
Proceeds":
(a) any Excess Leverage Fee and any Asset Sale Fee earned and unpaid
as of the date of such Asset Sale pursuant to subsections 2.3C and
2.3D and (b)
(B) by deleting the word "and" immediately before clause (iv) of the
defined term "Net Cash Proceeds" and adding the following at the end thereof:
and (v) the sum of all overhead and severance obligations retained by
Company and its Subsidiaries and other retained liabilities
attributable to the sold asset
(iv) by adding the following new defined terms in proper alphabetical
order:
"Actual Total Profit Contribution" means the aggregate profit
contribution of all brands of Company and its Subsidiaries during a period
before taking into account amortization and depreciation attributable
thereto; provided that for purposes of Section 7.6A, Actual Total Profit
Contribution for a Fiscal Quarter shall not include the profit
contributions from brands sold during such Fiscal Quarter; and provided
further that if the breakfast business is sold, any profit contribution
otherwise allocable to the non-breakfast food services business shall also
be excluded from Actual Total Profit Contribution for such Fiscal Quarter.
"Consolidated Sales" means, for any period, the consolidated sales of
Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated SG&A" means, for any Fiscal Quarter, the consolidated
sales, general and administrative expenses of Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, but excluding
(a) any extraordinary or non-recurring charges incurred during such Fiscal
Quarter in connection with any Asset Sale during such Fiscal Quarter or the
immediately preceding Fiscal Quarter, not to exceed $2,000,000 per brand
and $5,000,000 in the aggregate and (b) depreciation and amortization
expenses incurred during such Fiscal Quarter.
"Engagement Letter" means each of (i) the letter dated as of July 30,
2002 between X.X. Xxxxxx Securities Inc. and Company and (ii) the letter
dated as of June 11,
2002 between Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
Company, in each case as amended, supplemented or otherwise modified from
time to time.
"February 2003 Amendment Effective Date" means the date on which the
Amendment, dated as of February 21, 2003, to this Agreement shall be deemed
effective in accordance with Section 4 thereof.
"M&A Advisor" means each of X.X. Xxxxxx Securities Inc. and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, engaged by Company pursuant to
its respective Engagement Letter.
"Projected Total Profit Contribution" means the aggregate projected
profit contribution of all brands of Company and its Subsidiaries during a
period as indicated on Schedule 1.1C before taking into account
amortization and depreciation attributable thereto; provided that for
purposes of Section 7.6A, Projected Total Profit Contribution for a Fiscal
Quarter shall not include the projected profit contributions from brands
sold during such Fiscal Quarter; and provided further that if the breakfast
business is sold, any projected profit contribution otherwise allocable to
the non-breakfast food services business shall also be excluded from
Projected Total Profit Contribution for such Fiscal Quarter.
"Receivables Purchase Agreement" means 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.
(b) Amendment to Subsection 2.2F. Subsection 2.2F of the Credit Agreement
is hereby amended by deleting such subsection in its entirety and substituting
in lieu thereof the following:
[Reserved].
(c) Amendments to Subsection 2.3. (i) Subsection 2.3C of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
C. Excess Leverage Fee. Except as otherwise agreed to in writing by
the Required Lenders, Company shall pay each Lender a fee equal to 3.50% of
the aggregate amount of such Lender's Revolving Loan Exposure and Term Loan
Exposure outstanding as of the February 2003 Amendment Effective Date (the
"Excess Leverage Fee"), which Excess Leverage Fee shall be deemed to be
earned on the February 2003 Amendment Effective Date, provided that (1) 50%
of such Excess Leverage Fee shall be forgiven on June 30, 2003 if Company
has received, during the period from the February 2003 Amendment Effective
Date to and including such date, an aggregate amount of Net Cash Proceeds
equal to at least $100,000,000 from one or more Asset Sales, (2) 50% of
such Excess Leverage Fee shall be forgiven on September 30, 2003 if Company
has received, during the period from the February 2003 Amendment Effective
Date to and including such date, an aggregate amount of Net Cash Proceeds
equal to at least $225,000,000 from one or more Asset Sales and (3) 100% of
such Excess Leverage Fee shall be forgiven on September 30, 2003 if Company
has received, during the period from the February 2003 Amendment Effective
Date to and including such date, an aggregate amount of Net Cash Proceeds
equal to at least $325,000,000 from one or more Asset Sales. Such Excess
Leverage Fee shall be due and payable (i) with respect to 50% thereof, on
the earliest to occur of (a) the date of any prepayment or reduction made
pursuant to subsection 2.4B(iii) after June 30, 2003, (b) June 30, 2005 or
(c) the date of payment or prepayment in full of the Loans and other
Obligations and (ii) with respect to the remaining 50% thereof, on the
earliest to occur of (x) the date of any prepayment or reduction made
pursuant to subsection 2.4B(iii) after September 30, 2003, (y) June 30,
2005 or (z) the date of payment or prepayment in full of the Loans and
other Obligations; provided, that such Excess Leverage Fee shall 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; and
provided further that any portion of the Excess Leverage Fee payable prior
to September 30, 2003 shall be paid by Company to the Administrative Agent
for distribution to the Lenders, to the extent not forgiven, on September
30, 2003. Net Cash Proceeds and other amounts required to be applied to
prepayments under subsections 2.4B(iii)(a) - (e) received after June 30,
2003 and September 30, 2003 shall be applied to the payment of the Excess
Leverage Fee prior to their application in accordance with subsection
2.4C(ii). Such Excess Leverage Fee may be prepaid by Company on any
Business Day upon notice to the Administrative Agent.
(ii) Subsection 2.3 of the Credit Agreement is hereby further amended by
adding the following new subsection 2.3D immediately at the end thereof:
D. Asset Sale Fee. Except as otherwise agreed to in writing by the
Required Lenders, if as of February 10, 2004, Company has not received an
aggregate amount of Net Cash Proceeds equal to at least $325,000,000 from
one or more Asset Sales occurring during the period from the February 2003
Amendment Effective Date to and including such date, Company shall pay each
Lender a fee equal to 1.75% of an amount equal to the average daily
aggregate amount of such Lender's Revolving Loan Exposure and Term Loan
Exposure for the period commencing on the February 2003 Amendment Effective
Date and ending on February 10, 2004 (the "Asset Sale Fee"), which Asset
Sale Fee shall be deemed to be earned on February 10, 2004, provided that
if (A) as of February 10, 2004 the sum of (x) the Net Cash Proceeds from
Asset Sales occurring during such period and (y) the Net Cash Proceeds
reasonably contemplated to be received on or before March 31, 2004 by the
Company from other Asset Sales as to which there are definitive sale
agreements then in effect is at least $325,000,000 and (B) the Net Cash
Proceeds from Asset Sales received by Company during the period from the
February 2003 Amendment Effective Date to and including March 31, 2004 are
at least $325,000,000, the Asset Sale Fee shall be forgiven on March 31,
2004. The Asset Sale 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 February 10, 2004
(or, if subject to being forgiven, Xxxxx 00, 0000), (xx) June 30, 2005 or
(iii) the date of payment or prepayment in full of the Loans and other
Obligations; provided, that such Asset Sale 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. Net Cash Proceeds and other amounts required to be
applied to prepayments under subsections 2.4B(iii)(a) - (e) received on or
after February 10, 2004 (or, if subject to being forgiven, March 31, 2004)
shall be applied to the payment of the Asset Sale Fee prior to their
application in accordance with subsection 2.4C(ii). The Asset Sale Fee may
be prepaid by Company on any Business Day upon notice to the Administrative
Agent.
(d) Amendments to Subsection 2.4. Subsection 2.4 of the Credit Agreement is
hereby amended as follows:
(i) by deleting the existing paragraph (a) of subsection 2.4B(iii) in its
entirety and substituting in lieu thereof the following:
(a) Prepayments and Reductions from Asset Sales. No later than the
second Business Day following the date of receipt by Company or any of its
Subsidiaries of the Net Cash Proceeds of any Asset Sale, Company shall
prepay the Loans (and/or the Revolving Loan Commitments shall be reduced)
in an aggregate amount equal to 100% of such Net Cash Proceeds.
Concurrently with any prepayment of the Loans and/or reduction of the
Commitments pursuant to this subsection 2.4B(iii)(a)(or any purchase of
accounts receivable or other reduction under the Receivables Purchase
Agreement pursuant to subsection 2.4B(iii)(g) with Net Cash Proceeds),
Company shall deliver to the Administrative Agent an Officer's Certificate
demonstrating the derivation of the Net Cash Proceeds of the correlative
Asset Sale from the gross sales price thereof. In the event that Company
shall, at any time after receipt of Net Cash Proceeds of any Asset Sale
requiring a prepayment or a reduction of the Revolving Loan Commitments
pursuant to this subsection 2.4B(iii)(a), determine that the prepayments
and/or reductions of the Revolving Loan Commitments previously made in
respect of such Asset Sale were in an aggregate amount less than that
required by the terms of this subsection 2.4B(iii)(a), Company shall
promptly cause to be made an additional prepayment of the Loans (and/or
reduction in the Revolving Loan Commitments) in an amount equal to the
amount of any such deficit, and Company shall concurrently therewith
deliver to Administrative Agent an Officer's Certificate demonstrating the
derivation of the additional Net Cash Proceeds resulting in such deficit.
(ii) by adding the following language immediately after "December 1998" in
subsection 2.4B(iii)(e):
but excluding the Fiscal Year ending in December 2003
(iii) by adding the following new paragraph (g) at the end of subsection
2.4B(iii):
(g) Amounts not Required for Prepayment or Reductions. Notwithstanding
the foregoing subsections 2.4B(iii)(a) - (e) or anything contained in
subsection 2.4C(ii), after Company has applied $200,000,000 of Net Cash
Proceeds and other amounts required to be applied to prepayments under
subsections 2.4B(iii)(a) - (e) in accordance with subsection 2.4C(ii) after
the February 2003 Amendment Effective Date, Company may, in lieu of
prepaying the Loans, apply the next $25,000,000 of Net Cash Proceeds or
other amounts required to be applied to prepayments under subsections
2.4B(iii)(a) - (e) to the repurchase of accounts receivable previously
financed under the Receivables Purchase Agreement or to the replacement of
working capital in connection with a reduction by an equal amount of the
"Facility Limit" (as such term is defined in the Receivables Purchase
Agreement) under the Receivables Purchase Agreement.
(iv) by deleting the existing paragraph (ii) of subsection 2.4C in its
entirety and substituting in lieu thereof the following:
(ii) Application of Mandatory Prepayments by Type of Loans. Subject to
subsections 2.3C and 2.3D, any amount (the "Applied Amount") required to be
applied as a mandatory prepayment of the Loans and/or a reduction of the
Revolving Loan Commitments pursuant to subsection 2.4B(iii)(a) - (e) shall
be applied: (1) in the case of the first $200,000,000 of any Applied Amount
applied hereunder after the February 2003 Amendment Effective Date, to
prepay the Tranche A Term Loans and Tranche B Term Loans pro rata based on
the outstanding principal amounts thereof (with application to the
respective remaining installments thereof on a pro rata basis); and (2) in
the case of any Applied Amount in excess of $200,000,000 applied hereunder
(exclusive of amounts used to repurchase accounts receivable or reduce
availability under the Receivables Purchase Agreement pursuant to
subsection 2.4B(iii)(g)) after the February 2003 Amendment Effective Date,
to prepay the Tranche A Term Loans, the Tranche B Term Loans and the
Revolving Loans (and to permanently reduce the Revolving Loan Commitments
by the amount of such Revolving Loan prepayment) pro rata based on the
outstanding principal amounts of the Term Loans and the Revolving Credit
Commitments (amounts applied to the Tranche A Term Loans and Tranche B Term
Loans to be applied to the respective remaining installments thereof on a
pro rata basis); provided that with respect to a mandatory prepayment of
the Loans pursuant to subsection 2.4B(iii)(b) as a result of the incurrence
of Indebtedness under the Tack-on Notes, such Applied Amount shall be
applied: first to prepay the Short-Term Loan and second, to the extent of
any remaining portion of the Applied Amount, to prepay the Tranche A Term
Loans and Tranche B Term Loans pro rata, with such prepayment to be applied
to the respective remaining installments thereof on a pro rata basis; and
provided however, that so long as any Tranche A Term Loans are outstanding,
each Lender of Tranche B Term Loans shall have the right to refuse all or
any portion of any Applied Amount allocable to it under this Subsection
2.4C(ii), and the amount so refused shall be applied to prepay the Tranche
A Term Loans. Notwithstanding the foregoing or anything herein to the
contrary, no portion of the proceeds of Indebtedness permitted under
subsection 7.1(vi) which are applied to prepay the Loans shall be applied
to permanently reduce the Revolving Loan Commitments.
(e) Amendment to Subsection 6.1(i). Subsection 6.1(i) of the Credit
Agreement is hereby amended by adding the following new proviso at the end
thereof:
; provided further, that within 40 days after each fiscal month-end (other
than March, June, September and December) Company shall deliver to the
Administrative Agent such foregoing statements as prepared on a
"brand-by-brand" basis which shall (i) set forth the calculation of the
profit contribution levels for each such brand and (ii) include market
share information for each brand for the most recent fiscal month for which
information is available and, to the extent practicable, set forth in
comparable form the corresponding information for the corresponding fiscal
month of the previous Fiscal Year
(f) Amendment to Subsection 6.5. Subsection 6.5 of the Credit Agreement is
hereby amended by deleting the phrase "the Fiscal Quarter ending September 2002
and for each Fiscal Quarter" from the third sentence thereof and substituting in
lieu thereof the following:
the fiscal month ending February 2003 and for each fiscal month
(g) Amendment to Section 6. Section 6 of the Credit Agreement is hereby
further amended by adding the following new subsection 6.13 immediately at the
end thereof:
6.13. M&A Advisors. (i) Company shall continue to engage each M&A
Advisor pursuant to its respective Engagement Letter until the date that
Company and its Subsidiaries shall have received Net Cash Proceeds in an
amount equal to at least $325,000,000 from one or more Asset Sales after
the February 2003 Amendment Effective Date. If both M&A Advisors resign or
both Engagement Letters are terminated by Company for any reason, Company
shall promptly send notice of such resignation or termination to the
Administrative Agent and shall replace such M&A Advisors with one or more
investment bankers within 30 days of such resignation or termination. If
Company fails to engage a successor M&A Advisor pursuant to the preceding
sentence within 30 days, the Administrative Agent shall have the right, at
Company's expense, to engage one or more investment bankers or consultants
to advise Company in the consummation of one or more Asset Sales until the
date that Company or any of its Subsidiaries shall have received Net Cash
Proceeds in an amount equal to at least $325,000,000 from such Asset Sales
after the February 2003 Amendment Effective Date.
(ii) If Company does not receive at least $225,000,000 in Net Cash
Proceeds from Asset Sales during the period from the February 2003
Amendment Effective Date to and including September 30, 2003, the
Administrative Agent shall have the right, at Company's expense, to engage
one or more investment bankers or other
consultants to advise the Administrative Agent and the Lenders until the
date that Company and its Subsidiary shall have received Net Cash Proceeds
in an amount equal to at least $325,000,000 from one or more Asset Sales
after the February 2003 Amendment Effective Date.
(h) Amendments to Subsection 7.6. Subsection 7.6 of the Credit Agreement is
hereby amended as follows:
(i) by deleting the existing subsection 7.6A of the Credit Agreement
in its entirety and substituting in lieu thereof the following:
A. Minimum Actual Total Profit Contribution. Company shall not permit
the Actual Total Profit Contribution for any period of four consecutive
Fiscal Quarters (or, in the case of the Fiscal Quarters ending March 31,
2003, June 30, 2003 and September 30, 2003, for the respective three, six
and nine month periods then ended) to be less than 85% of the Projected
Total Profit Contribution for such period; provided that the covenant set
forth in this subsection 7.6A shall be applicable starting with the first
Fiscal Quarter in which an Asset Sale after the February 2003 Amendment
Effective Date has been consummated.
(ii) by deleting the existing subsection 7.6B of the Credit Agreement
in its entirety and substituting in lieu thereof the following:
B. Maximum Consolidated SG&A. Company shall not permit Consolidated
SG&A for any Fiscal Quarter ending during any of the test periods set forth
in the table below to exceed the correlative percentage set forth in the
table below of Consolidated Sales during such period; provided that the
covenant set forth in this subsection 7.6B shall be applicable starting
with the first Fiscal Quarter in which an Asset Sale after the February
2003 Amendment Effective Date has been consummated:
----------------------------------------------------------
TEST PERIOD % of Consolidated Sales
----------------------------------------------------------
01/01/03 - 03/31/03 10.0%
----------------------------------------------------------
04/01/03 - 06/30/03 12.0%
----------------------------------------------------------
07/01/03 - 09/30/03 13.0%
----------------------------------------------------------
10/01/03 - 12/31/03 12.0%
----------------------------------------------------------
01/01/04 - 03/31/04 12.0%
----------------------------------------------------------
04/01/04 - 06/30/04 11.0%
----------------------------------------------------------
07/01/04 and thereafter 10.0%
----------------------------------------------------------
(iii) by deleting the existing subsection 7.6C of the Credit Agreement
in its entirety and substituting in lieu thereof the following:
[Reserved].
(iv) by deleting the existing subsection 7.6D of the Credit Agreement
in its entirety and substituting in lieu thereof the following:
D. Maximum Consolidated Capital Expenditures. Company shall not, and
shall not permit any of its respective Subsidiaries to, make or incur
Consolidated Capital Expenditures, in any fiscal period indicated below, in
an aggregate amount in excess of the corresponding amount (the "Maximum
Consolidated Capital Expenditures Amount") set forth below opposite such
fiscal period:
-------------------------------------------------------------------------------
MAXIMUM CONSOLIDATED CAPITAL
FISCAL PERIOD EXPENDITURES AMOUNT
-------------------------------------------------------------------------------
Three Months Ending March 31, 2003 $5,000,000
-------------------------------------------------------------------------------
Six Months Ending June 30, 2003 $11,000,000
-------------------------------------------------------------------------------
Nine Months Ending September 30, 2003 $16,000,000
-------------------------------------------------------------------------------
Fiscal Year ending in December 2003 $20,000,000
-------------------------------------------------------------------------------
Three Months Ending March 31, 2004 $5,000,000
-------------------------------------------------------------------------------
Six Months Ending June 30, 2004 $10,000,000
-------------------------------------------------------------------------------
Nine Months Ending September 30, 2004 $15,000,000
-------------------------------------------------------------------------------
Fiscal Year ending in December 2004 $20,000,000
and each Fiscal Year thereafter
-------------------------------------------------------------------------------
(v) by deleting the existing subsection 7.6E of the Credit Agreement
in its entirety and substituting in lieu thereof the following:
E. Minimum Consolidated EBITDA. Company shall not permit Consolidated
EBITDA for any test period set forth below to be less than the correlative
amount for such test period set forth in the table below; provided that the
covenant set forth in this subsection 7.6E shall cease to be applicable
starting with the first test period in which an Asset Sale after the
February 2003 Amendment Effective Date has been consummated:
--------------------------------------------------------------------------------
TEST PERIOD MINIMUM CONSOLIDATED EBITDA
--------------------------------------------------------------------------------
Twelve Months Ending December 31, 2002 $132,000,000
================================================================================
--------------------------------------------------------------------------------
TEST PERIOD MINIMUM CONSOLIDATED EBITDA
--------------------------------------------------------------------------------
Three Months Ending March 31, 2003 $25,900,000
--------------------------------------------------------------------------------
Six Months Ending June 30, 2003 $53,800,000
--------------------------------------------------------------------------------
Nine Months Ending September 30, 2003 $89,600,000
--------------------------------------------------------------------------------
Twelve Months Ending December 31, 2003 $130,100,000
--------------------------------------------------------------------------------
Twelve Months Ending March 31, 2004 $135,500,000
--------------------------------------------------------------------------------
Twelve Months Ending June 30, 2004 $139,400,000
--------------------------------------------------------------------------------
Twelve Months Ending September 30, 2004 $142,400,000
--------------------------------------------------------------------------------
(vi) by deleting the existing subsection 7.6F of the Credit Agreement
in its entirety and substituting in lieu thereof the following:
[Reserved].
(h) Amendment to Subsection 7.7. Subsection 7.7(v) of the Credit Agreement
is hereby amended by deleting the reference to "December 31, 2003" therein and
substituting in lieu thereof "June 30, 2004".
(i) Amendments to Schedules. The Schedules to the Credit Agreement are
hereby amended by inserting Annex I attached hereto as a new Schedule 1.1B to
the Credit Agreement and inserting Annex II attached hereto as a new Schedule
1.1C to the Credit Agreement.
SECTION 3. Waivers to Credit Agreement.
(a) Waivers to Credit Agreement. Any breach by Company of the financial
condition covenants set forth in subsections 7.6A, 7.6B, 7.6C, 7.6E and 7.6F of
the Credit Agreement (prior to giving effect to this Amendment) with respect to
the test period ending December 31, 2002, and any Event of Default or Potential
Event of Default resulting from any such breach, is hereby waived.
(b) Waivers 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 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 $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, 2004. Notwithstanding any provision of the Credit Agreement, (i) for
purposes of subsections 2.3C, 2.3D and 6.13 of the Credit Agreement, Net Cash
Proceeds received under the Receivables Purchase Agreement shall not be deemed
as a receipt by Company of Net Cash Proceeds and (ii) for purposes of
subsections 7.6A, 7.6B and 7.6E of the Credit Agreement, sales of accounts under
the Receivables Purchase Agreement shall not be deemed Asset Sales.
SECTION 4. 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, (iv) holders of more than 50% in
principal amount of the Tranche A Term Loans and (v) holders of more than 50% in
principal amount of the Tranche B Term Loans;
(b) 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;
(c) After giving effect to the Amendment, no Event of Default or Potential
Event of Default shall have occurred and be continuing; and
(d) The Administrative Agent shall have received an amendment fee for the
account of each Lender which executes and delivers its signature page to the
Administrative Agent prior to 5:00 p.m., New York City time, on February 21,
2003 an the amount equal to 0.50% of the sum of such Lenders' Revolving Loan
Exposure and Term Loan Exposure;
provided that upon satisfaction or waiver of each of the preceding conditions
precedent, the amendments to the Credit Agreement set forth in Sections 2(a)(ii)
and 2(h)(v) of this Amendment shall be deemed effective as of December 31, 2002.
SECTION 5. 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 6. 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. The amendment provided herein to the definition of "Applicable
Margin" shall be effective only for accruals of interest during the period from
and after the February 2003 Amendment Effective Date.
(b) The execution, delivery and effectiveness of this Amendment 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. 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 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 7.
SECTION 8. 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 9. 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 10. 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/ Xxxxxxx X. XxXxxxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: EVP & CFO
SEA COAST FOODS, INC.
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: CFO & Secretary
XX XXXXXX XXXXX
BANK (formerly
known as The Chase
Manhattan Bank),
as Administrative
Agent and Lender
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
AIMCO CLO SERIES 2001-A
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
AIMCO CLO SERIES 2000-A
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
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/ Sverker Johansson
-----------------------------------
Name: Sverker Johansson
Title: 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. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
APEX (IDM) CDO I, LTD.
By: Xxxxx X. Xxxxxx & Company Inc., as
Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
-----------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
ARCHIMEDES FUNDING, LLC.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: 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
ARES VI CLO LTD.
By: ARES CLO GP VI, LLC its Management
Manager
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
AXIS/SRS LIMITED
By: Xxxxxxxxx Capital Partners LLC as
its Sub-Manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
BALANCED HIGH-YIELD FUND I, LTD.
By: ING Capital Advisors LLC, as Asset
Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisors LLC, as Asset
Manager
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: 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 Xxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BNP PARIBAS
By: /s/ Xxxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
CANPARTNERS INVESTMENTS IV LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
CANYON CAPITAL CDO 2001-1 LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
CANYON CAPITAL CDO 2002-1 LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Principal
CARLYLE HIGH YIELD PARTNERS III, 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 Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
CENTURION CDO III, LIMITED
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
CENTURION CDO VI, LTD.
By: American Express Asset Management
Group, Inc. as Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. XxXxxx
------------------------------------
Name: Xxxxxxx X. XxXxxx
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
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
DK ACQUISITION PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Partner
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/ Xxxx Xxx XxXxxxxx
------------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
ELC (CAYMAN) LTD. 1999-III
By: Xxxxx X. Xxxxxx & Company Inc., as
Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
----------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
ELC (CAYMAN) LTD. 2000-1
By: Xxxxx X. Xxxxxx & Company Inc., as
Collateral Manager
By: /s/ Xxxx Xxx XxXxxxxx
----------------------------------
Name: Xxxx Xxx XxXxxxxx
Title: Managing Director
ENDURANCE CLO I, LTD.
C/o: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
EVENT PARTNERS DEBT ACQUISTITION, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
FRANKLIN CLO I, LIMITED
By: /s/ Xxxxxxx X'Xxxxxxx
----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
FRANKLIN CLO III, LIMITED
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORP.
By: /s/ W. Xxxxxx XxXxxxxxx
-----------------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
GLENEAGLES TRADING LLC
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
HIGHLAND LEGACY LTD
By: Highland Capital Management, L.P. as
Collateral Manager
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title:
HSBC BANK USA
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
IDS LIFE INSURANCE COMPANY
By: American Express Asset Management
Group Inc. as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx Ziwey
----------------------------------
Name: Xxxxxxx Ziwey
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/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH HIGHLAND-2 LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
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/ Sverker Johansson
----------------------------------
Name: Sverker Johansson
Title: Vice President
XXXXXX XXXXXXX PRIME INCOME TRUST
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate
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/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: 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/ Sverker Johansson
----------------------------------
Name: Sverker Johansson
Title: Vice President
NYLIM HIGH YIELD CDO 2001, LTD.
By: New York Life Investment Management,
LLC, as Investment
Manager and Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
ORYX CLO, LTD.
By: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset as its Investment
Manager
By: /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
XXX CAPITAL FUNDING LTD.
By: Highland Capital Management, L.P. as
Collateral Manager
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title:
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P. as
Collateral Manager
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title:
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 FUND, L.P.
By: PPM America, Attorney in fact
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
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: HVB Credit Advisors LLC, as Investment
Manager
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Associate Director
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
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 Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
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
SMOKY RIVER CDO, L.P.
By: RBC Leveraged Capital as
Portfolio Manager
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Partner
SRS STRATEGIES (CAYMAN) LP
By: Xxxxxxxxx Capital Partners LLC
as its Investment Manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
XXXXXXXXX CLO, LTD
By: Xxxxxxxxx Capital Partners LLC
as its Collateral Manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
XXXXXXXXX/RMF TRANSATLANTIC CDO, LTD.
By: Xxxxxxxxx Capital Partners LLC as its Collateral
Manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Director
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
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
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
SCHEDULE 1.1B
-------------
FOURTH QUARTER 2002 ADJUSTMENTS
1. Expenses recorded for excess and obsolete inventory, not to exceed
$8 million.
2. Expenses recorded and relating to the closing of the Company's
manufacturing facility in Yuba City, California, not to exceed $7 million.
3. Adjustments to expenses recorded and relating to the closing of the
Company's manufacturing facility in West Seneca, New York, not to exceed
$3 million.
ANNEX II
SCHEDULE 1.1C
-------------
PROJECTED TOTAL PROFIT CONTRIBUTION BEFORE DEPRECIATION AND AMORTIZATION
2003 2004
---------------------------- --------------------
Q1 Q2 Q3 Q4 Q1 Q2 Q3
---------------------------- --------------------
BPCDA(1)
--------
Seafood "..." "..." "..." "..." "..." "..." "..."
Breakfast "..." "..." "..." "..." "..." "..." "..."
Pizza "..." "..." "..." "..." "..." "..." "..."
Chef's Choice "..." "..." "..." "..." "..." "..." "..."
Baking "..." "..." "..." "..." "..." "..." "..."
Syrups "..." "..." "..." "..." "..." "..." "..."
Bagels "..." "..." "..." "..." "..." "..." "..."
Discretionary "..." "..." "..." "..." "..." "..." "..."
---------------------------- --------------------
"..." "..." "..." "..." "..." "..." "..."
(1) BPCDA includes the following
Food Service BPCDA to be
excluded after the sale of
Frozen Breakfast
Non-Breakfast
Food Service "..." "..." "..." "..." "..." "..." "..."
