Exhibit 10.35
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of February 26, 2002 (this "Amendment"),
---------
to the Fifth Amended and Restated Credit Agreement, dated as of November 1, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
------
Agreement"), among Aurora Foods Inc. (the "Company"), the financial institutions
--------- -------
parties thereto (the "Lenders") and the Agents.
-------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to Company;
WHEREAS, Company has requested, and, upon this Amendment becoming
effective, the Lenders have agreed, that certain provisions of the Credit
Agreement be amended as set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used
-------------
herein shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement.
------------------------------
(a) Amendments to Subsection 1.1. Subsection 1.1 of the Credit Agreement is
----------------------------
hereby amended by deleting the term "Subordinated Notes" and adding the
following defined terms in proper alphabetical order:
"Short-Term Lender" means JPMorgan Chase Bank and any other participating
-----------------
Lender.
"Short-Term Loans" has the meaning assigned to that term in subsection 2.9.
----------------
"Sponsor Equity Issuance" means the issuance of preferred or common capital
-----------------------
stock of the Borrower with a value of up to $5,000,000 to any of the MDC
Entities, Fenway or UBS to repurchase receivables previously sold to the MDC
Entities, Fenway or UBS under the receivables purchase facility existing
pursuant to the Receivables Purchase Agreement, dated as of April 19, 2000,
between Company and JPMorgan Chase Bank.
"Subordinated Notes" means collectively the Existing Subordinated Notes and
------------------
the Tack-on Notes.
2
"Tack-on Notes" means the 8-3/4% senior subordinated notes due 2008 issued
-------------
in 2002 in an amount of up to $85,000,000 pursuant to a supplement to the
Existing Subordinated Note Indenture governing the 8-3/4% Senior Subordinated
Notes of Company due 2008 issued on July 1, 1998 and having terms and conditions
substantially identical thereto.
(b) Amendment to Section 2. Section 2 of the Credit Agreement is hereby
----------------------
amended by adding the following subsection in the proper numerical order:
2.9 Short-Term Loans. Subject to the terms and conditions hereof,
----------------
Company may request that the Short-Term Lenders make a loan (the "Short-Term
----------
Loan", which so long as it shall be outstanding shall be a "Loan" hereunder)
----
under this Agreement to Company on the contemplated date of issuance of the
Tack-on Notes in an aggregate principal amount equal to $50,000,000, which shall
be deposited into a deposit account at JPMorgan Chase Bank which shall be a
blocked account until payment of the Short-Term Loan. The Short-Term Loan shall
be used for the purposes identified in subsection 2.5E. The Short-Term Loan
shall be due and payable on the stated maturity date as provided for in a
separate promissory note, and shall be paid on such date from (a) if the Tack-on
Notes are issued, the proceeds of such Tack-on Notes as provided in subsection
2.4C(ii) or (b) if the Tack-on Notes are not issued, the funds on deposit in
such account at JPMorgan Chase Bank, unless otherwise agreed by Company and the
Short-Term Lenders. Company hereby agrees that JPMorgan Chase Bank may debit
such account to repay the Short-Term Loan with such funds on deposit. The
Short-Term Loan shall not have any scheduled principal repayments prior to such
maturity date. Company may make only one borrowing of the Short-Term Loan.
Amounts borrowed under this subsection 2.9 and subsequently prepaid may not be
reborrowed. The Short-Term Loan may be prepaid by Company at any time from the
funds on deposit in such account at JPMorgan Chase Bank, and shall be subject to
mandatory prepayment as provided in subsection 2.4C(ii). Company shall pay
interest on and fees in relation to the Short-Term Loan as separately agreed
upon by Company and the Short-Term Lenders.
(c) Amendments to Subsection 2.2B. Subsection 2.2B of the Credit Agreement
-----------------------------
is hereby amended by deleting the phrase "either a one-, two- or three-month
period;" from the first sentence thereof and substituting in lieu thereof the
following phrase:
either a one-, two-, three- or six-month period;
(d) Amendments to Subsection 2.4. (i) Subsection 2.4C(ii) of the Credit
----------------------------
Agreement is hereby amended by inserting the following immediately after the
phrase "fourth, to the extent of any remaining portion of the Applied Amount, to
------
further permanently reduce the Revolving Loan Commitments to the full extent
thereof;":
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
3
rata, with such prepayment to be applied to the respective remaining
installments thereof on a pro rata basis; and
(ii) Subsection 2.4C(iii) of the Credit Agreement is hereby amended
by deleting the word "Any" at the beginning of each sentence thereof, and
substituting in lieu thereof the phrase "Except as otherwise provided in
subsection 2.4C(ii), any".
(e) Amendment to Subsection 2.5. Subsection 2.5 of the Credit Agreement
---------------------------
is hereby amended by adding the following subdivision (E) immediately following
subdivision (D):
E. Short-Term Loan. The proceeds of the Short-Term Loan shall be
---------------
deposited into the deposit account referred to in subsection 2.9 and
thereafter applied (i) if the Tack-on Notes are issued, to (a) repurchase
receivables sold pursuant to the Receivables Purchase Agreement, dated as
of April 19, 2000, between Company and JPMorgan Chase Bank in order to
terminate such agreement and (b) prepay outstanding Swing Line Loans and
Revolving Loans in accordance with subsection 2.4B(i) or (ii) if the
Tack-on Notes are not issued, to pay or prepay the Short-Term Loan.
(f) Amendment to Section 4. Section 4 of the Credit Agreement is hereby
----------------------
amended by adding the following subsection in the proper numerical order:
4.4 Conditions to Short-Term Loan. The obligation of the
-----------------------------
Short-Term Lenders to make the Short-Term Loan are, in addition to the
conditions precedent specified in subsection 4.2, subject to the condition that
the Administrative Agent shall have received (a) a certificate of the Company,
dated the Effective Date, certifying that the Tack-on Notes have been priced and
that there exists no fact or circumstance known to the Company that would
prevent the issuance of the Tack-on Notes and (b) a promissory note,
substantially in the form attached hereto as Exhibit VI, duly executed by
Company and issued to each Short-Term Lender.
(g) Amendment to Subsection 7.1. Subsection 7.1(vi) of the Credit Agreement
---------------------------
is hereby amended by adding the phrase "the Short-Term Loan," immediately before
the phrase "the Term Loans".
(h) Amendments to Subsection 7.6. Subsection 7.6 of the Credit Agreement is
----------------------------
hereby amended as follows:
4
(i) by deleting the portion of the table appearing at the end of
subsection 7.6A of the Credit Agreement relating to the periods set forth
below and substituting in lieu thereof the following:
----------------------------------------------------------------------
MINIMUM CONSOLIDATED
TEST PERIOD CASH INTEREST
COVERAGE RATIO
----------------------------------------------------------------------
10/01/01 - 12/31/01 1.40:1.00
----------------------------------------------------------------------
1/01/02 - 3/31/02 1.50:1.00
----------------------------------------------------------------------
4/01/02 - 6/30/02 1.55:1.00
----------------------------------------------------------------------
7/01/02 - 9/30/02 1.55:1.00
----------------------------------------------------------------------
10/01/02 - 12/31/02 1.60:1.00
----------------------------------------------------------------------
1/01/03 - 3/31/03 1.65:1.00
----------------------------------------------------------------------
(ii) by (A) deleting the portion of the table appearing at the end of
subsection 7.6B of the Credit Agreement relating to the periods set forth
below and substituting in lieu thereof the following:
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TEST PERIOD MAXIMUM
LEVERAGE RATIO
-----------------------------------------------------------------------
10/01/01 - 12/31/01 6.40:1.00
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1/01/02 - 3/31/02 6.65:1.00
-----------------------------------------------------------------------
4/01/02 - 6/30/02 6.55:1.00
-----------------------------------------------------------------------
7/01/02 - 9/30/02 6.55:1.00
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10/01/02 - 12/31/02 6.20:1.00
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1/01/03 - 3/31/03 6.10:1.00
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and (B) adding the following provision immediately after the table
appearing at the end of subsection 7.6B of the Credit Agreement:
; provided that in the event that the Tack-on Notes are issued
--------
before March 31, 2003, the portion of the table above starting
with the period during which such issuance occurs and through
each succeeding period set forth below shall be deleted and
the following, to the extent applicable, shall be substituted
in lieu thereof:
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TEST PERIOD MAXIMUM
LEVERAGE RATIO
-----------------------------------------------------------------------
1/01/02 - 3/31/02 6.95:1.00
-----------------------------------------------------------------------
4/01/02 - 6/30/02 6.85:1.00
-----------------------------------------------------------------------
7/01/02 - 9/30/02 6.85:1.00
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10/01/02 - 12/31/02 6.50:1.00
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1/01/03 - 3/31/03 6.40:1.00
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5
(iii) by deleting the portion of the table appearing at the end of
subsection 7.6C of the Credit Agreement relating to the periods set forth
below and substituting in lieu thereof the following:
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TEST PERIOD MINIMUM FIXED CHARGE
COVERAGE RATIO
---------------------------------------------------------------------
10/01/01 - 12/31/01 0.95:1.00
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1/01/02 - 3/31/02 0.90:1.00
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4/01/02 - 6/30/02 0.90:1.00
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7/01/02 - 9/30/02 0.90:1.00
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10/01/02 - 12/31/02 0.95:1.00
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1/01/03 - 3/31/03 1.00:1.00
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(iv) by deleting 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 Year indicated
below, in an aggregate amount in excess of the corresponding amount
(the "Maximum Consolidated Capital Expenditures Amount") set forth
------------------------------------------------
below opposite such Fiscal Year:
------------------------------------------------------------------------
MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES
(OR PORTION THEREOF) AMOUNT
------------------------------------------------------------------------
Fiscal Year ending in December 1998 $40,000,000
and December 1999
------------------------------------------------------------------------
Fiscal Year ending in December 2000 $25,000,000
and December 2001
------------------------------------------------------------------------
Fiscal Year ending in December 2002 $30,000,000
and each Fiscal Year thereafter
------------------------------------------------------------------------
provided, however, that for purposes of this subsection 7.6D,
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Consolidated Capital Expenditures shall not include expenditures not
exceeding $4,000,000 incurred on or prior to December 31, 2001 related
to a capital lease or leases for Company's headquarters and product
development center.
6
(v) by deleting the table appearing at the end of subsection
7.6F of the Credit Agreement in its entirety and substituting in lieu thereof
the following:
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TEST PERIOD MAXIMUM SENIOR
LEVERAGE RATIO
-----------------------------------------------------------------
1/01/01 - 3/31/01 4.50:1.00
-----------------------------------------------------------------
4/01/01 - 6/30/01 4.25:1.00
-----------------------------------------------------------------
7/01/01 - 9/30/01 4.11:1.00
-----------------------------------------------------------------
10/01/01 - 12/31/01 4.00:1.00
-----------------------------------------------------------------
1/01/02 - 3/31/02 4.10:1.00
-----------------------------------------------------------------
4/01/02 - 6/30/02 4.05:1.00
-----------------------------------------------------------------
7/01/02 - 9/30/02 4.00:1.00
-----------------------------------------------------------------
10/01/02 - 12/31/02 3.70:1.00
-----------------------------------------------------------------
1/01/03 - 3/31/03 3.65:1.00
-----------------------------------------------------------------
(i) Amendments to Exhibits. The Exhibits to the Credit Agreement are hereby
----------------------
amended by deleting Exhibit VI in its entirety and substituting in lieu thereof
Exhibit VI to this Amendment.
SECTION 3. Waivers to the Credit Agreement.
-------------------------------
(a) 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, dated as of April 19, 2000,
between Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank) (as amended, supplemented or otherwise modified from time to time, the
"Receivables Purchase Agreement"), and the use of the Net Proceeds thereof (with
------------------------------
respect to any breach of subsection 2.4B(iii)(a), solely to the extent such Net
Proceeds do not exceed $50,000,000 in any 10-day period) and any Event of
Default or Potential Event of Default resulting from any such breach, is hereby
waived only for the period ending on the earlier of (a) December 31, 2002 or (b)
the date the proceeds from the issuance of the Tack-on Notes are used to
repurchase receivables sold pursuant to the Receivables Purchase Agreement in
order to terminate such agreement.
(b) Waiver in Respect of Issuance of Tack-on Notes. Any breach by Company
----------------------------------------------
of subsection 7.12B of the Credit Agreement with respect to the issuance of the
Tack-on Notes and any Event of Default or Potential Event of Default resulting
from any such breach, is hereby waived.
(c) Waivers in Respect of Sponsor Equity Issuance. Any breach by Company
---------------------------------------------
of subsections 7.9 or 7.12D of the Credit Agreement with respect to the Sponsor
Equity Issuance and any Event of Default or Potential Event of Default resulting
from any such breach, is hereby waived.
7
SECTION 4. Additional Covenants. Company hereby irrevocably agrees,
--------------------
subject to the making of the Short-Term Loan, to make a voluntary prepayment of
the Swing Line Loans and Revolving Loans in an amount equal to the excess of the
proceeds from the Short-Term Loan over the portion of such proceeds required to
repurchase receivables sold pursuant to the Receivables Purchase Agreement in
order to terminate such agreement, in accordance with the provisions of
subsection 2.4B(i) of the Credit Agreement.
SECTION 5. 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) Non-Defaulting Lenders having or
holding more than 50% of the aggregate Tranche A Term Loan Exposure of all
Non-Defaulting Lenders, (v) Non-Defaulting Lenders having or holding more than
50% of the aggregate Tranche B Term Loan Exposure of all Non-Defaulting Lenders
and (vi) the Short-Term Lenders.
(b) Company shall have paid all accrued fees and expenses of the
Administrative Agent, the Short-Term Lenders 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.
SECTION 6. 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 7. Effect on the Loan Documents. (a) Except as specifically
----------------------------
amended above, the Credit Agreement and all other Loan Documents shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed.
(b) The execution, delivery and effectiveness of this Amendment,
except as expressly provided herein, shall not operate as a waiver of any right,
power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 8. Amendment Fee. Company shall pay to each Lender which
-------------
executes and delivers this Amendment prior to 12:00 noon, New York City time,
February 26, 2002, a fee equal to 0.20% of the sum of such Lender's (a)
Revolving Credit Commitment, (b)
8
outstanding Tranche A Term Loans and (c) outstanding Tranche B Term Loans, such
fee to be earned as of the Effective Date and payable no later than February 27,
2002.
SECTION 9. 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 9.
SECTION 10. 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 11. 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 12. 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.
9
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
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: EVP-CFO
SEA COAST FOODS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: CFO & Secretary
XX XXXXXX XXXXX BANK (formerly
known as The Chase Manhattan Bank), as
Administrative Agent, Lender and as a
Short-Term Lender
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
AG CAPITAL FUNDING PARTNERS, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P., as
Investment Advisor
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
APEX (IDM) CDO I, LTD.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
ARCHIMEDES FUNDING, LLC.
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Portfolio Manager
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Portfolio Manager
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 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
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BALANCED HIGH-YIELD FUND I, LTD.
By: ING Capital Advisors LLC, as Asset Manager
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Portfolio Manager
BALANCED HIGH-YIELD FUND II, LTD.
By: ING Capital Advisors LLC, as Asset Manager
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Portfolio Manager
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, NA
By: /s/ Xxxxx X. Stoletz
----------------------------------
Name: Xxxxx X. Stoletz
Title: Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG NEW YORK
BRANCH
By: /s/ Xxxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BNP PARIBAS
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
CALLIDUS DEBT PARTNERS CDO FUND I, LTD
By: Callidus Capital Management, LLC as
Collateral Manager
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
CANYON CAPITAL CDO 2001-1 LTD
By: Canyon Capital Advisors LLC, its Collateral
Manager
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
CENTURION CDO II, LTD.
By: American Express Asset Management Group Inc.
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CENTURION CDO III, LTD.
By: American Express Asset Management Group Inc.
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CLYDESDALE CLO 2001-1, LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Collateral Manager
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Director
COBANK, ACB
By: /s/ S. Xxxxxxx Xxxx
---------------------------------
Name: S. Xxxxxxx Xxxx
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS II, LTD.,
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ P. Xxxxxxx Xxxx
-------------------------------
Name: P. Xxxxxxx Xxxx
Title: Principal
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
XXXXXX HIGH YIELD CDO 2001-1
By: Prudential Investment Management,
Inc., as attorney-in-fact
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: /s/ Xxxxxx Xxxxx
-------------------------------
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
FLEET NATIONAL BANK, on behalf of SUMMIT
BANK
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: 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 I, LIMITED
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
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
HSBC BANK USA
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Principal
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Principal
INDOSUEZ CAPITAL FUNDING IV, L.P.,
By: RBC Leveraged Capital as Portfolio
Advisor
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
IKB DEUTSCHE INDUSTRIEBANK AG, LUXEMBOURG
BRANCH
By: /s/ Xxxxxxx Ziwey
----------------------------------
Name: Xxxxxxx Ziwey
Title: Director
By: /s/ Xxx Xxxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxxx
Title: Assistant Director
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH SHOSHONE LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH STERLING LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
MARINER LDC
By: /s/ Xxxxxxx X. Xxxx XX
----------------------------
Name: Xxxxxxx X. Xxxx XX
Title: Director
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Xxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxx Xxxxx
Title: Deputy General Manager
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: ING Pilgrim 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 Pilgrim 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 Pilgrim Investments LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
MONUMENT CAPITAL LTD., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX PRIME INCOME TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate Vice President
NATIONAL CITY
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
NEW ALLIANCE GLOBAL CDO, LIMITED
By: Alliance Capital Management L.P., as
Sub-advisor
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
NOMURA BOND & LOAN FUND
By: UFJ Trust Company of New York, as
Trustee
By: Nomura Corporate Research and Asset
Management Inc., Attorney in Fact
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
NORTHWOODS CAPITAL, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOODS CAPITAL II, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
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
NYLIM HIGH YIELD CDO 2001 LTD
By: /s/ Xxxx Xxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Director
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
XXXXXXXXXXX SENIOR FLOATING RATE FUND
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: A.V.P.
PACIFICA PARTNERS I, L.P.
By: /s/ Xxx Xxxxxxx
-------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
PILGRIM PRIME RATE TRUST
By: ING Pilgrim Investments LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM SENIOR INCOME FUND
By: ING Pilgrim Investment LLC 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 LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PILGRIM CLO 1999-1 LTD.
By: ING Pilgrim Investments LLC as its
Investment Manager
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
PINEHURST TRADING, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Asst. Vice President
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD
By: CPF Asset Advisory, LLC as
Investment Manager
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX DIVERSIFIED INCOME TRUST
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX FUNDS TRUST - XXXXXX HIGH YIELD TRUST II
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HIGH YIELD ADVANTAGE FUND
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX HIGH YIELD TRUST
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as Investment
Advisor
By: /s/ Xxxxx X. Page
----------------------------------
Name: Xxxxx X. Page
Title: Vice President
SEQUILS PILGRIM-1 LTD.
By: ING Pilgrim Investments LLC 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/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SIMSBURY CLO LIMITED
By: MassMutual Life Insurance Co. as
Collateral Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ 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 Investment Advisory Corp, as
Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp 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/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Director Recovery
Management
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate Director Banking
Products Services, US
EXHIBIT VI
[FORM OF SHORT-TERM PROMISSORY NOTE]
AURORA FOODS INC.
PROMISSORY NOTE DUE [ONE DAY AFTER ISSUANCE OF TACK-ON NOTES]
$50,000,000.00 New York, New York
November 1, 1999
FOR VALUE RECEIVED, AURORA FOODS INC., a Delaware corporation
("Company"), promises to pay to JPMorgan Chase Bank ("Payee") or its registered
assigns the principal amount of $50,000,000, on the date set forth above, in
accordance with the provisions of that certain Fifth Amended and Restated Credit
Agreement dated as of November 1, 1999, by and among Company, the financial
institutions listed therein as Lenders, JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as administrative agent (in such capacity, the
"Administrative Agent"), National Westminster Bank PLC, as Syndication Agent,
and UBS AG, Stamford Branch, as Documentation Agent (said Fifth Amended and
Restated Credit Agreement, as it may be amended, restated, supplemented or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
Company also promises to pay interest on the outstanding principal
amount hereof, from the date hereof until paid in full, at the rate of Base Rate
plus 2.75% upon maturity or such earlier date on which Payee demands payment in
full of the principal amount hereof, in accordance with the provisions of the
Credit Agreement.
This Note is the Company's promissory note referenced in Subsection
2.9 of the Credit Agreement in the aggregate principal amount of $50,000,000 and
is issued pursuant to and entitled to the benefits of the Credit Agreement, to
which reference is hereby made for a more complete statement of the terms and
conditions under which the Short-Term Loan evidenced hereby was made and is to
be repaid.
All payments of principal and interest in respect of this Note shall
be made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Administrative Agent and recorded in the
Register as provided in subsection 10.1B(ii) of the Credit Agreement, Company
and Administrative Agent shall be entitled to deem and treat Payee as the owner
and holder of this Note and the Loan evidenced hereby. Payee hereby agrees, by
its acceptance hereof, that before disposing of this Note or any part hereof it
will make a notation hereon of all principal payments previously made hereunder
and of the date to which interest hereon has been paid; provided, however, that
-------- -------
the failure to make a notation of any payment made on this Note shall
not limit or otherwise affect the obligations of Company hereunder with respect
to payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4B(iii) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
This Note is entitled to the benefits of the Guaranties and is secured
pursuant to the Collateral Documents.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.16 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 10.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed
and delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
AURORA FOODS INC.
By:____________________________
Name:
Title:
Schedule A
to Short-Term Note
------------------
LOANS AND REPAYMENTS OF BASE RATE LOANS
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Amount of Principal of Base Unpaid Principal Balance of
Date Amount of Base Rate Loans Rate Loans Repaid Base Rate Loans Notation Made By
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