SECOND AMENDMENT SECOND AMENDMENT (this "Second Amendment"), dated as of October 19, 2004 to the CREDIT AGREEMENT, dated as of August 19, 2002 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Birds Eye...
EXHIBIT 10.1
SECOND AMENDMENT
SECOND AMENDMENT (this "Second Amendment"), dated as of October 19,
2004 to the CREDIT AGREEMENT, dated as of August 19, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Birds Eye Foods, Inc. (f/k/a Agrilink Foods, Inc.) (the "Borrower"), Birds
Eye Holdings, Inc. (f/k/a Agrilink Holdings, Inc.) ("Holdings"), the lenders and
other agents from time to time party thereto and JPMORGAN CHASE BANK, as
Administrative Agent.
WITNESSETH:
WHEREAS, the Borrower, the Lenders, and the Administrative Agent are
parties to the Credit Agreement, pursuant to which the Lenders have made
extensions of credit to, or for the benefit of, the Borrower;
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement; and
WHEREAS, the Lenders are willing to agree to such amendments on the
terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Borrower, the Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms used herein and not otherwise defined shall have
their respective meanings as set forth in the Credit Agreement.
SECTION 2. AMENDMENTS AND CONSENT
2.1 Amendment to Section 1.1. Section 1.1 of the Credit Agreement is
hereby amended by adding the following at the end of "Eligible Reinvestment":
Notwithstanding other provisions of this Agreement to the contrary,
the C&W Acquisition (as defined in Section 8.6) shall be an Eligible
Reinvestment with respect to Asset Dispositions made from September 1,
2004 to March 31, 2005.
2.2 Amendment to Section 8.6. (a) Section 8.6 of the Credit Agreement
is hereby amended by (i) deleting the phrase "the lesser of (1) the Consolidated
Leverage Ratio at such time before giving effect to such Acquisition and (2)" in
clause (h)(vii)", (ii) deleting the word "and" in clause (q), (iii) deleting the
period from the end of clause (r) and replacing it with the following phrase ";
and" and (iv) adding the following as clause (s):
(s) the Acquisition of the Capital Stock of California & Washington
Co. for approximately $75,000,000 and the
2
(t) subsequent merger of such company into the Borrower (the "C&W
Acquisition").
SECTION 3. MISCELLANEOUS
3.1 Effective Date. This Second Amendment shall become effective upon
the receipt by the Administrative Agent of counterparts hereof duly executed and
delivered by the Borrower and the Required Lenders under the Credit Agreement,
and
3.2 Representations and Warranties. Each of the Borrower and Holdings
represents and warrants to each Lender that as of the date hereof and after
giving effect hereto: (a) this Second Amendment constitutes the legal, valid and
binding obligation of the Borrower and Holdings, enforceable against them in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, fraudulent conveyances, reorganization, moratorium or
similar laws affecting creditors' rights generally, by general equitable
principles (whether enforcement is sought by proceedings in equity or at law)
and by an implied covenant of good faith and fair dealing; (b) the
representations and warranties made by the Borrower and Holdings in the Credit
Agreement are true and correct in all material respects on and as of the date
hereof (except to the extent that such representations and warranties are
expressly stated to relate to an earlier date, in which case such
representations shall have been true and correct in all material respects on and
as of such earlier date); and (c) no Default or Event of Default shall have
occurred and be continuing as of such date.
3.3 Limited Effect. Except as expressly amended hereby, the Credit
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms, and this Second Amendment shall not constitute the
Lenders' consent or indicate their willingness to consent to any other
amendment, modification or waiver of the Credit Agreement.
3.4 GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3.5 Counterparts. This Second Amendment may be executed by the parties
hereto in any number of separate counterparts (including by telecopy) and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
BIRDS EYE FOODS, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP, CFO & Sec
BIRDS EYE HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Sec and Treas.
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
4
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
NORTHWOODS CAPITAL II, LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
--------------------------------------
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: XXXX X. XXXXXX
Title: MANAGING DIRECTOR
5
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
NORTHWOODS CAPITAL III, LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.,
AS COLLATERAL MANAGER
--------------------------------------
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: XXXX X. XXXXXX
Title: MANAGING DIRECTOR
6
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
ANTARES CAPITAL CORPORATION
--------------------------------------
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Director
7
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
ANTARES FUNDING, L.P.
By JPMorgan Chase Bank, as trustee of
the Antares Funding Trust created
under the Trust Agreement dated as of
November 30, 1999.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: AVP
8
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
Bank of America N.A.
--------------------------------------
[Name of Lender]
By: /s/ W. Xxxxxx Xxxxxxx
----------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Managing Director
9
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
Carlyle High Yield Partners II, Ltd.
--------------------------------------
[Name of Lender]
By: /s/ Xxxxx Xxxx
----------------------------------
Name: XXXXX XXXX
Title: MANAGING DIRECTOR
10
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
Carlyle High Yield Partners IV, Ltd.
--------------------------------------
[Name of Lender]
By: /s/ Xxxxx Xxxx
----------------------------------
Name: XXXXX XXXX
Title: MANAGING DIRECTOR
11
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
Carlyle High Yield Partners, L.P.
--------------------------------------
[Name of Lender]
By: /s/ Xxxxx Xxxx
----------------------------------
Name: XXXXX XXXX
Title: MANAGING DIRECTOR
12
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
CoBank, ACB
--------------------------------------
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
13
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
XXXX & XXXXXXX XXXXX FOUNDATION
By: Babson Capital Management LLC as Investment Adviser
By: /s/ XxxxXxx Xxxxxxx
-------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
14
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
MAPLEWOOD (CAYMAN) LIMITED
By: Babson Capital Management LLC under delegated authority from Massachusetts
Mutual Life Insurance Company as Investment Manager
By: /s/ XxxxXxx Xxxxxxx
-------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
15
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC as Investment Adviser
By: /s/ XxxxXxx Xxxxxxx
-------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
16
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
XXXXXX CDO LTD
By: Babson Capital Management LLC as Investment Manager
By: /s/ XxxxXxx Xxxxxxx
-------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
17
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
PERSEUS CDO I, LIMITED
By: Babson Capital Management LLC under delegated authority from Massachusetts
Mutual Life Insurance Company as Portfolio Manager
By: /s/ XxxxXxx Xxxxxxx
-------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
18
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
SIMSBURY CLO, LIMITED
By: Babson Capital Management LLC under delegated authority from Massachusetts
Mutual Life Insurance Company as Collateral Manager
By: /s/ XxxxXxx Xxxxxxx
-------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
19
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
APEX (IDM) CDO I, LTD.
ELC (CAYMAN) LTD 2000-I
SEABOARD CLO 2000 LTD
SUFFIELD CLO, LIMITED
XXXXX CLO LTD, 2000-I
By: Babson Capital Management LLC as Collateral Manager
By: /s/ XxxxXxx Xxxxxxx
----------------------------------
Name: XxxxXxx Xxxxxxx
Title: Managing Director
20
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 5, 2004
Denali Capital LLC, managing member of DC
Funding Partners, portfolio manager for DENALI
CAPITAL CLO I, LTD., or an affiliate
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: XXXX X. XXXXXXX
Title: CHIEF CREDIT OFFICER
21
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 5, 2004
Denali Capital LLC, managing member of DC
Funding Partners, portfolio manager for DENALI
CAPITAL CLO II, LTD., or an affiliate
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: XXXX X. XXXXXXX
Title: CHIEF CREDIT OFFICER
22
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 5, 2004
Denali Capital LLC, managing member of DC
Funding Partners, portfolio manager for DENALI
CAPITAL CLO III, LTD., or an affiliate
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: XXXX X. XXXXXXX
Title: CHIEF CREDIT OFFICER
23
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 6th, 2004
MANUFACTURERS & TRADERS Trust Co.
(M&T BANK)
----------------------------------------------
[Name of Lender]
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: XXXXX XXXXXX
Title: ASST. V.P.
24
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
MARINER CDO 2002, LTD.
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
25
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
HSBC Bank USA, National Association
----------------------------------------------
[Name of Lender]
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: VP
26
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
LCM I, Limited Partnership
by Lyon Capital Management LLC,
as Collateral Manager
By: /s/ Farboud Tavangar
------------------------------------------
Name: Farboud Tavangar
Title: Portfolio Manager
27
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
ABN AMRO - Standard Federal Bank
----------------------------------------------
[Name of Lender]
By: /s/ Djo Mwamba
------------------------------------------
Name: Djo Mwamba
Title: Vice President, Senior Lender
28
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 8, 2004
Xxxxxx Trust and Savings Bank
----------------------------------------------
[Name of Lender]
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
29
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
Jupiter Loan Funding LLC
-------------------------------------------
[Name of Lender]
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: XXXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
30
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
Winged Foot Funding Trust
-------------------------------------------
[Name of Lender]
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: XXXXX X. XXXXX
Title: AUTHORIZED AGENT
31
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
NATEXIS BANQUES POPULAIRES
-------------------------------------------
[Name of Lender]
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: XXXXX XXXXXXX
Title: VICE PRESIDENT
/s/ Jordan X. Xxxx
---------------------------------------
JORDAN X. XXXX
ASSISTANT VICE PRESIDENT
32
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
33
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
34
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
35
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
DIVERSIFIED CREDIT PORTFOLIO LTD.
By: INVESCO Senior Secured Management, Inc.
As Investment Adviser
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
36
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
AIM FLOATING RATE FUND
By: INVESCO Senior Secured Management, Inc.
As Sub-Adviser
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
37
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
INVESCO EUROPEAN CDO I S.A.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
38
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
INVESCO CBO 2000-I LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
39
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
SEQUILS-LIBERTY, LTD.
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
40
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
SARATOGA CLO I, LIMITED
By: INVESCO Senior Secured Management, Inc.
As Asset Manager
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
41
BIRDS-EYE FOODS, INC.
SECOND AMENDMENT
DATED AS OF OCTOBER 19, 2004
U.S. Bank National Association
[Name of Lender]
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
