Consent and Waiver to Fifth Amended and Restated Credit Agreement among Aurora Foods Inc., Lenders, and Agents

Summary

Aurora Foods Inc., its guarantor, and several lenders, including JPMorgan Chase Bank and Bank of America, have agreed to amend and waive certain provisions of their existing credit agreement. This document updates the definition of certain debt, waives a specific financial covenant breach for the period ending June 30, 2002, and confirms that all other terms remain in effect. The agreement is effective once signed by all required parties and is governed by New York law. Aurora Foods also agrees to cover related administrative costs and legal fees.

EX-10.1 4 dex101.txt CONSENT AND WAIVER CONFORMED COPY Exhibit 10.1 CONSENT AND WAIVER CONSENT AND WAIVER, dated as of July 31, 2002 (this "Consent"), 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 the Company; WHEREAS, the Company has requested, and, upon this Consent becoming effective, the Lenders have agreed, that certain provisions of the Credit Agreement be amended and waived as set forth below; NOW, THEREFORE, the parties hereto hereby agree as follows: SECTION 1. Defined Terms. Terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. SECTION 2. Amendment to Credit Agreement. The definition of "Consolidated Total Senior Debt" set forth in subsection 1.1 of the Credit Agreement is hereby amended by inserting the following immediately after the phrase "other than Subordinated Indebtedness" and before ",": "and Indebtedness under the Senior Unsecured Notes" SECTION 3. Waiver to Credit Agreement. Any breach by the Company of the financial condition covenant set forth in subsection 7.6F of the Credit Agreement with respect to the test period ending June 30, 2002, and any Event of Default or Potential Event of Default resulting from any such breach, is hereby waived. SECTION 4. Conditions to Effectiveness. This Consent shall be effective on the date on which the Administrative Agent shall have received this Consent, executed and delivered by a duly authorized officer of each of the Company, the Guarantor and the Requisite Lenders. SECTION 5. Representations and Warranties. To induce the Lenders parties hereto to enter into this Consent, the Company hereby represents and warrants to the Administrative Agent and all of the Lenders that (i) the representations and warranties made by the Company in the Loan Documents are true and correct in all material respects on and as of the date hereof, after giving effect to the effectiveness of this Consent, as if made on and as of the date hereof and (ii) after giving effect to this Consent, no Event of Default or Potential Event of Default shall have occurred and be continuing. 2 SECTION 6. Effect on the Loan Documents. (a) Except as specifically amended or waived above, the Credit Agreement and all other Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (b) The execution, delivery and effectiveness of this Consent, except as expressly provided herein, shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. SECTION 7. Costs, Expenses and Taxes. The Company agrees to pay on 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 Consent and the other instruments and documents to be delivered thereunder and hereunder, including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent (including allocated costs of internal counsel) with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder and thereunder. The Company further agrees to pay on demand all costs and expenses of the Administrative Agent and each of the Lenders, if any (including, without limitation, counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Consent 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 the Company and the Guarantor hereby acknowledge and agree that the guarantees contained in the Subsidiary Guaranty, the pledge of stock contained in the Pledge Agreement and the obligations contained in the Credit Agreement as modified hereby are, and shall remain, in full force and effect. SECTION 9. GOVERNING LAW. THIS CONSENT 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 Consent may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Any executed counterpart delivered by facsimile transmission shall be effective as for all purposes hereof. A set of the copies of this Consent signed by all the parties shall be lodged with the Company and the Administrative Agent. IN WITNESS WHEREOF, the parties hereto have caused this Consent 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/ William R. McManaman ------------------------------------- Name: William R. McManaman Title: Exec VP, CFO, and Secretary SEA COAST FOODS, INC. By: /s/ William R. McManaman ------------------------------------- Name: William R. McManaman JPMORGAN CHASE BANK, as Administrative Agent and as a Lender By: /s/ William J. Caggiano ------------------------------------- Name: William J. Caggiano Title: Managing Director 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/ Joel Serebransky ---------------------------------- Name: Joel Serebransky Title: Senior Vice President APEX (IDM) CDO I, LTD. By: David L. Babson & Company Inc., as Collateral Manager By: /s/ Mary Ann McCarthy ----------------------------------- Name: Mary Ann McCarthy Title: Managing Director ARES LEVERAGED INVESTMENT FUND II, L.P. By: ARES Management II, L.P. its General Partner By: /s/ Seth J. Brufsky ----------------------------------- Name: Seth J. Brufsky Title: Vice President 5 ARES III CLO LTD. By: ARES CLO Management, LLC its Investment Manager By: /s/ Seth J. Brufsky ----------------------------------- Name: Seth J. Brufsky Title: Vice President ARES IV CLO LTD. By: ARES CLO Management IV, L.P. its Investment Manager By: ARES CLO GP IV, LLC its Managing Manager By: /s/ Seth J. Brufsky ----------------------------------- Name: Seth J. Brufsky 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/ Seth J. Brufsky ----------------------------------- Name: Seth J. Brufsky Title: Vice President 6 BANK OF AMERICA, N.A. By: /s/ Laura T. Sweet -------------------------------- Name: Laura T. Sweet Title: Assistant Vice President CANPARTNERS INVESTMENTS IV, LLC By: /s/ K. Robert Turner -------------------------------- Name: K. Robert Turner Title: Authorized Member CANYON CAPITAL CDO 2001-1 LTD. By: Canyon Capital Advisors LLC a Delaware limited liability company, its Collateral Manager By: /s/ K. Robert Turner -------------------------------- Name: K. Robert Turner Title: Managing Director CANYON CAPITAL CDO 2002-1 LTD. By: Canyon Capital Advisors LLC a Delaware limited liability company, its Collateral Manager By: /s/ K. Robert Turner -------------------------------- Name: K. Robert Turner Title: Managing Director CONTINENTAL CASUALTY COMPANY By: /s/ Marilou R. McGirr -------------------------------- Name: Marilou R. McGirr Title: Vice President 7 COSTANTINUS EATON VANCE CDO V, LTD. By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield ----------------------------------- Name: Payson F. Swaffield Title: Vice President CREDIT SUISSE FIRST BOSTON INTERNATIONAL By: /s/ Steve Martin ----------------------------------- Name: Steve Martin Title: Vice President By: /s/ Maria de Lellis ----------------------------------- Name: Maria de Lellis Title: Assistant Vice President DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH By: /s/ William W. McGinty ----------------------------------- Name: William W. McGinty Title: Director By: /s/ Thomas A. Foley ----------------------------------- Name: Thomas A. Foley Title: Vice President DRYDEN HIGH YIELD CDO 2001-I By: Prudential Investment Management, Inc., as Collateral Manager By: /s/ B. Ross Smead ----------------------------------- Name: B. Ross Smead Title: Vice President 8 DRYDEN LEVERAGED LOAN CDO 2002-II By: Prudential Investment Management, Inc., as Collateral Manager By: /s/ B. Ross Smead --------------------------------------- Name: B. Ross Smead Title: Vice President EATON VANCE CDO III, LTD. By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield --------------------------------------- Name: Payson F. Swaffield Title: Vice President EATON VANCE CDO IV, LTD. By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield --------------------------------------- Name: Payson F. Swaffield Title: Vice President EATON VANCE INSTITUTIONAL SENIOR LOAN FUND By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield --------------------------------------- Name: Payson F. Swaffield Title: Vice President 9 EATON VANCE SENIOR INCOME TRUST By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield --------------------------------------- Name: Payson F. Swaffield Title: Vice President ELC (CAYMAN) LTD. CDO SERIES 1999-I By: David L. Babson & Company, Inc., as Collateral Manager By: /s/ Mary Ann McCarthy --------------------------------------- Name: Mary Ann McCarthy Title: Managing Director ELC (CAYMAN) LTD. 2000-1 By: David L. Babson & Company Inc., as Collateral Manager By: /s/ Mary Ann McCarthy --------------------------------------- Name: Mary Ann McCarthy Title: Managing Director FRANKLIN CLO I, LIMITED By: /s/ Richard D'Addario --------------------------------------- Name: Richard D'Addario Title: Senior Vice President 10 FRANKLIN CLO III, LIMITED By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Senior Vice President FRANKLIN FLOATING RATE TRUST By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Vice President FRANKLIN FLOATING RATE MASTER SERIES By: /s/ Richard D'Addario ----------------------------------- Name: Richard D'Addario Title: Vice President GENERAL ELECTRIC CAPITAL CORPORATION By: /s/ W. Jerome McDermott ----------------------------------- Name: W. Jerome McDermott Title: Duly Authorized Signatory GLENEAGLES TRADING LLC By: /s/ Ann E. Morris ----------------------------------- Name: Ann E. Morris Title: Asst. Vice President 11 GRAYSON & CO By: Boston Management and Research as Investment Advisor By: /s/ Payson F. Swaffield ------------------------------------ Name: Payson F. Swaffield Title: Vice President IKB DEUTSCHE INDUSTRIEBANK AG LUXEMBOURG BRANCH By: /s/ Anja Keuchel ------------------------------------ Name: Anja Keuchel Title: Manager By: /s/ Stephen Jessett ------------------------------------ Name: Stephen Jessett Title: Director INDOSUEZ CAPITAL FUNDING IIA, LIMITED By: Indosuez Capital as Portfolio Advisor By: /s/ Andrew Brady ------------------------------------ Name: Andrew Brady Title: Vice President INDOSUEZ CAPITAL FUNDING III, LIMITED By: Indosuez Capital as Portfolio Advisor By: /s/ Andrew Brady ------------------------------------ Name: Andrew Brady Title: Vice President 12 KZH CYPRESSTREE-1 LLC By: /s/ Joyce Fraser-Bryant --------------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH ING-2 LLC By: /s/ Joyce Fraser-Bryant --------------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH PONDVIEW LLC By: /s/ Joyce Fraser-Bryant --------------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH STERLING LLC By: /s/ Joyce Fraser-Bryant --------------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH WATERSIDE LLC By: /s/ Joyce Fraser-Bryant --------------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent 13 MARINER LDC By: /s/ Charles R. Howe IV ------------------------------------ Name: Charles R. Howe IV Title: Director MONUMENT CAPITAL LTD., as Assignee By: Alliance Capital Management L.P., as Investment Manager By: Alliance Capital Management Corporation, as General Partner By: /s/ Joel Serebransky ------------------------------------ Name: Joel Serebransky Title: Senior Vice President NATIONAL CITY By: /s/ Jennifer R. Hammarlund ----------------------------------- Name: Jennifer R. Hammarlund 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/ Joel Serebransky ------------------------------------ Name: Joel Serebransky Title: Senior Vice President 14 OXFORD STRATEGIC INCOME FUND By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield --------------------------------------- Name: Payson F. Swaffield Title: Vice President PACIFICA PARTNERS I, L.P. By: Imperial Credit Asset as its Investment Manager By: /s/ Mary Shaifer --------------------------------------- Name: Mary Shaifer Title: Research Analyst PAMCO CAYMAN LTD. By: Highland Capital Management, L.P. as Collateral Manager By: /s/ Louis Koven --------------------------------------- Name: Louis Koven Title: Executive Vice President-CFO Highland Capital Management, L.P. PPM SHADOW CREEK FUNDING LLC By: /s/ Ann E. Morris --------------------------------------- Name: Ann E. Morris Title: Asst. Vice President 15 PPM SPYGLASS FUNDING TRUST By: /s/ Ann E. Morris ------------------------------------- Name: Ann E. Morris Title: Authorized Agent SENIOR DEBT PORTFOLIO By: Boston Management and Research as Investment Advisor By: /s/ Payson F. Swaffield ------------------------------------- Name: Payson F. Swaffield Title: Vice President SIMSBURY CLO, LIMITED By: David L. Babson & Company. Inc. under delegated authority from Massachusetts Mutual Life Insurance Company as Collateral Manager By: /s/ Mary Ann McCarthy ------------------------------------- Name: Mary Ann McCarthy Title: Managing Director SUNTRUST BANK By: /s/ Janet R. Naifeh ------------------------------------- Name: Janet R. Naifeh Title: Director 16 WELLS FARGO BANK, N.A. By: /s/ Leonard Kam ------------------------------- Name: Leonard Kam Title: Vice President & Principal