Amendment and Waiver to Fifth Amended and Restated Credit Agreement among Aurora Foods Inc., Lenders, and Agents (October 1, 2001)

Summary

This agreement amends and waives certain provisions of the existing credit agreement between Aurora Foods Inc., its lenders, and their agents. It temporarily waives specific financial covenant breaches by Aurora Foods, provided certain conditions are met, including the completion of an intellectual property license transaction and the use of proceeds to repay loans. The amendment also updates definitions and authorizes an intercreditor agreement related to the licensed intellectual property. The agreement is effective once signed by all required parties and does not otherwise alter the original loan documents.

EX-10.47 3 dex1047.txt AMENDMENT AND WAIVER CONFORMED COPY -------------- AMENDMENT AND WAIVER AMENDMENT AND WAIVER, dated as of October 1, 2001 (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"), The Chase Manhattan Bank, as the administrative ------- agent for the Lenders (in such capacity, the "Administrative Agent"), National -------------------- Westminster Bank PLC, as syndication agent (in such capacity, the "Syndication ----------- Agent") and UBS AG, Stamford Branch, as documentation agent (in such capacity, - ----- the "Documentation Agent"). ------------------- 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 Amendment becoming effective, the Lenders have agreed, that certain provisions of the Credit Agreement be amended and waived as set forth below; NOW, THEREFORE, the parties hereto hereby agree as follows: SECTION 1. Defined Terms. Terms defined in the Credit Agreement and ------------- used herein shall have the meanings given to them in the Credit Agreement. SECTION 2. Waivers to the Credit Agreement. (a) 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 September 30, 2001, and any Event of Default or Potential Event of Default resulting from any such breach is hereby waived; provided that, (i) such waiver shall be effective for -------- the period from September 30, 2001 to and including October 31, 2001 only if, after giving pro forma effect to the IP License as if the IP License had occurred on or prior to September 30, 2001 and to the use by the Company of the assumed Net Cash Proceeds therefrom of at least $17,000,000 to prepay Term Loans pursuant to Section 2.4B(iii)(a) of the Credit Agreement, the Company would have been in compliance with subsection 7.6F of the Credit Agreement as of September 30, 2001 and (ii) such waiver shall be effective after October 31, 2001 only if the IP License has occurred on or prior to such date and the Net Cash Proceeds therefrom have been used to prepay Term Loans pursuant to Section 2.4B(iii)(a) of the Credit Agreement and if, after giving effect to the IP License as if the IP License had occurred on or prior to September 30, 2001 and to the use by the Company the Net Cash Proceeds therefrom to prepay Term Loans pursuant to Section 2.4B(iii)(a) of the Credit Agreement, the Company would have been in compliance with subsection 7.6F of the Credit Agreement as of September 30, 2001. 2 (b) Any breach by the Company of subsections 7.2A or 7.7 of the Credit Agreement with respect to the consummation of the IP License, or, to the extent that the IP License constitutes "Indebtedness" of clause (v) of the definition thereof in subsection 1.1, subsection 7.1 with respect to any such Indebtedness, is hereby waived. SECTION 3. Amendments to the Credit Agreement. ---------------------------------- (a) Amendment to Subsection 1.1. Subsection 1.1 of the Credit --------------------------- Agreement shall be hereby amended by adding the following definitions in proper alphabetical order: "IP License" means the sale of a perpetual license to the IP ---------- Licensee to use the trademarks, service marks, formulas and other intellectual property relating to certain foodservice businesses for use in the foodservice channel (the "Licensed Intellectual Property") ------------------------------ for an initial payment of approximately $17,000,000 or more. The obligations of the Company to the IP Licensee in respect of the IP License shall be secured by a security interest in the assets of the Company comprising the Licensed Intellectual Property. The IP License shall be deemed to be an "Asset Sale" for purposes of this agreement. "IP Licensee" means the purchaser of the perpetual license ----------- described in the definition of "IP License". (b) Amendment to Subsection 5.16A. Subsection 5.16A of the ----------------------------- Credit Agreement shall be hereby amended by adding the following parenthetical after the phrase "a valid and perfected First Priority Lien on all of the Collateral": "(other than any such Collateral over which the IP Licensee has been granted a first priority security interest pursuant to the IP License)" (c) Amendment to Subsection 7.6F. If, as of October 31, 2001, ---------------------------- (i) the IP License has not been consummated, (ii) the Company is not in compliance with subsection 7.6F for the test period from July 1, 2001 to September 30, 2001 and (iii) the Company has paid to each Lender which executes and delivers this Amendment prior to 12:00 Noon, New York City time, October 1, 2001, a fee equal to 0.075% of the sum of such Lender's (A) Revolving Credit Commitment, (B) outstanding Tranche A Term Loans and (C) outstanding Tranche B Term Loans, subsection 7.6F shall be amended as of such date by deleting the portion of the table appearing at the end of subsection 7.6F of the Credit Agreement relating to the periods set forth below and substituting in lieu thereof the following: ------------------------------------------------------------- MAXIMUM SENIOR TEST PERIOD LEVERAGE RATIO ------------------------------------------------------------- 07/01/01 - 09/30/01 4.11:1.00 ------------------------------------------------------------- 3 SECTION 4. Authorization of Intercreditor Agreement. The Lenders ---------------------------------------- hereby authorize the Administrative Agent to enter into an intercreditor agreement with the IP Licensee, pursuant to which the IP Licensee shall be granted a security interest in the Licensed Intellectual Property pursuant to the terms of the IP License. SECTION 5. Conditions to Effectiveness. This Amendment shall be --------------------------- effective on the date (the "Effective Date") on which the Administrative Agent -------------- shall have received this Amendment, executed and delivered by a duly authorized officer of each of the Company, the Guarantor and the Requisite Lenders. SECTION 6. Representations and Warranties. To induce the Lenders ------------------------------ parties hereto to enter into this Amendment, the Company hereby represents and warrants to the Administrative Agent and all of the Lenders that (i) the representations and warranties made by the Company in the Loan Documents are true and correct in all material respects on and as of the date hereof, after giving effect to the effectiveness of this Amendment, as if made on and as of the date hereof and (ii) after giving effect to this Amendment, no Event of Default or Potential Event of Default shall have occurred and be continuing. SECTION 7. 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 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. 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 Amendment and the other instruments and documents to be delivered thereunder and hereunder, including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent (including allocated costs of internal counsel) with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder and thereunder. The Company further agrees to pay on demand all costs and expenses of the Administrative Agent and each of the Lenders, if any (including, without limitation, counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses (including allocated costs of internal counsel) in connection with the enforcement of rights under this Section 7. 4 SECTION 9. 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 10. 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 11. Execution in Counterparts. This Amendment 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 Amendment signed by all the parties shall be lodged with the 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/ Christopher T. Sortwell ----------------------------------------- Name: Christopher T. Sortwell Title: Executive Vice President and Chief Financial Officer SEA COAST FOODS, INC. By: /s/ Christopher T. Sortwell ----------------------------------------- Name: Christopher T. Sortwell Title: Chief Financial Officer, Secretary, and Director THE CHASE MANHATTAN BANK, as Administrative Agent and as a Lender By: /s/ Kathryn A. Duncan ----------------------------------------- Name: Kathryn A. Duncan Title: Vice President ALLSTATE LIFE INSURANCE COMPANY By: /s/ Jerry D. Zinkula ----------------------------------------- Name: Jerry D. Zinkula Title: Authorized Signatory By: /s/ Patricia W. Wilson ----------------------------------------- Name: Patricia W. Wilson Title: Authorized Signatory APEX (IDM) CDO I, LTD. By: /s/ Roshan White ----------------------------------------- Name: Roshan White Title: Vice President ARES LEVERAGED INVESTMENT FUND II, L.P. By: ARES Management II, L.P. its General Partner By: /s/ David A. Sachs ----------------------------------------- Name: David A. Sachs Title: Vice President ARES III CLO LTD. By: ARES CLO Management, LLC its Investment Partner By: /s/ David A. Sachs ----------------------------------------- Name: David A. Sachs Title: Vice President ARES IV CLO LTD. By: ARES CLO Management IV, L.P. its Investment Partner By: ARES CLO GP IV, LLC its Managing Manager By: /s/ David A. Sachs ----------------------------------------- Name: David A. Sachs Title: Vice President BANCO ESPIRITO SANTO, S.A. By: /s/ Terry R. Hull ----------------------------------------- Name: Terry R. Hull Title: Senior Vice President By: /s/ Andrew M. Orsen ----------------------------------------- Name: Andrew M. Orsen Title: Vice President BANK OF AMERICA, NA By: /s/ Laura Sweet ----------------------------------------- Name: Laura Sweet Title: AVP BAYERISCHE HYPO-UND VEREINSBANK AG By: /s/ Francesco Ossino --------------------------------------- Name: Francesco Ossino Title: Director By: /s/ Timothy L. Harrod --------------------------------------- Name: Timothy L. Harrod Title: Managing Director BNP PARIBAS By: /s/ Stephanie Rogers --------------------------------------- Name: Stephanie Rogers Title: Vice President By: /s/ Duane P. Helkowski --------------------------------------- Name: Duane P. Helkowski Title: Director CENTURION CDO II, LTD. By: American Express Asset Management Group Inc. as Collateral Manager By: /s/ Lynn A. Hopton --------------------------------------- Name: Lynn A. Hopton Title: Senior Managing Director CLYDESDALE CLO 2001-1, LTD. By: Nomura Corporate Research and Asset Management Inc. as Collateral Manager By: /s/ Richard W. Stewart -------------------------------------- Name: Richard W. Stewart Title: Director COBANK, ACB By: /s/ S. Richard Dill -------------------------------------- Name: S. Richard Dill Title: Vice President CONTINENTAL CASUALTY COMPANY By: /s/ Richard W. Dubberke -------------------------------------- Name: Richard W. Dubberke Title: Vice President CYPRESSTREE INVESTMENT PARTNERS I, LTD., By: CypressTree Investment Management Company, Inc. as Portfolio Manager By: /s/ P. Jeffrey Huth -------------------------------------- Name: P. Jeffrey Huth Title: Principal CYPRESSTREE INVESTMENT PARTNERS II, LTD., By: CypressTree Investment Management Company, Inc. as Portfolio Manager By: /s/ P. Jeffrey Huth ------------------------------------- Name: P. Jeffrey Huth Title: Principal DEUTSCHE BANK AG NEW YORK BRANCH and/or CAYMAN ISLANDS BRANCH By: /s/ Alexander Karow ------------------------------------- Name: Alexander Karow Title: Vice President By: /s/ Thomas A. Foley ------------------------------------- Name: Thomas A. Foley Title: Vice President ELC (CAYMAN) LTD. CDO SERIES 1999-I By: /s/ Roshan White ------------------------------------- Name: Roshan White Title: Vice President ELC (CAYMAN) LTD. 1999-III By: /s/ Roshan White ------------------------------------- Name: Roshan White Title: Vice President ELC (CAYMAN) LTD. 2000-1 By: /s/ Roshan White ---------------------------- Name: Roshan White Title: Vice President EQ ADVISORS TRUST By: Alliance Capital Management L.P., as Advisor By: /s/ Greg Dube ----------------------------------- Name: Greg Dube Title: Portfolio Manager FIRSTAR BANK, NATIONAL ASSOCIATION By: /s/ Mark Olmon ----------------------------------- Name: Mark Olmon Title: Sr. Vice President FRANKLIN FLOATING RATE TRUST By: /s/ Chauncey Lufkin ----------------------------------- Name: Chauncey Lufkin Title: Vice President FRANKLIN FLOATING RATE MASTER SERIES By: /s/ Chauncey Lufkin ----------------------------------- Name: Chauncey Lufkin Title: Vice President FRANKLIN CLO II, LIMITED By: /s/ Chauncey Lufkin --------------------------------- Name: Chauncey Lufkin Title: Vice President GENERAL ELECTRIC CAPITAL CORPORATION By: /s/ W. Jerome McDermott --------------------------------- Name: W. Jerome McDermott Title: Duly Authorized Signatory HARBOURVIEW CDO II LTD., FUND By: /s/ Lisa Chaffee --------------------------------- Name: Lisa Chaffee Title: Manager HARRIS TRUST AND SAVINGS BANK By: /s/ John Lyons --------------------------------- Name: John Lyons Title: Vice President HSBC BANK USA By: /s/ Desmond C. English --------------------------------- Name: Desmond C. English Title: Associate Director INDOSUEZ CAPITAL FUNDING IIA, LIMITED By: Indosuez Capital as Portfolio Advisor By: /s/ Melissa Marano -------------------------------------- Name: Melissa Marano Title: Vice President INDOSUEZ CAPITAL FUNDING III, LIMITED By: Indosuez Capital as Portfolio Advisor By: /s/ Melissa Marano -------------------------------------- Name: Melissa Marano Title: Vice President INDOSUEZ CAPITAL FUNDING IV, L.P. By: Indosuez Capital as Portfolio Advisor By: /s/ Melissa Marano -------------------------------------- Name: Melissa Marano Title: Vice President KZH CYPRESSTREE-1 LLC By: /s/ Susan Lee -------------------------------------- Name: Susan Lee Title: Authorized Agent KZH ING-2 LLC By: /s/ Susan Lee -------------------------------- Name: Susan Lee Title: Authorized Agent KZH PONDVIEW LLC By: /s/ Susan Lee -------------------------------- Name: Susan Lee Title: Authorized Agent KZH SHOSHONE LLC By: /s/ Susan Lee -------------------------------- Name: Susan Lee Title: Authorized Agent KZH STERLING LLC By: /s/ Susan Lee -------------------------------- Name: Susan Lee Title: Authorized Agent KZH WATERSIDE LLC By: /s/ Susan Lee -------------------------------- Name: Susan Lee Title: Authorized Agent MARINER LDC By: /s/ C. Howe II -------------------------------- Name: C. Howe II Title: Director THE MITSUBISHI TRUST AND BANKING CORPORATION By: /s/ Toshihiro Hayashi ----------------------------------------- Name: Toshihiro Hayashi Title: Senior Vice President ML CLO XII PILGRIM AMERICA (CAYMAN) LTD. By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President ML CLO XV PILGRIM AMERICA (CAYMAN) LTD. By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President ML CLO XX PILGRIM AMERICA (CAYMAN) LTD. By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom 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/ Joel G. Serebransky ----------------------------------------- Name: Joel G. Serebransky Title: Senior Vice President NATIONAL CITY BANK By: /s/ Lisa B. Lisi ----------------------------------------- Name: Lisa B. Lisi Title: Senior Vice President NOMURA BOND & LOAN By: The Tokyo Trust & Banking Co., Ltd. as Trustee By: Nomura Corporate Research and Asset Management Inc., Attorney in Fact By: /s/ Richard W. Stewart ----------------------------------------- Name: Richard W. Stewart Title: Director OLYMPIC FUNDING TRUST, SERIES 1999-1 By: /s/ Ann E. Morris ----------------------------------------- Name: Ann E. Morris Title: Authorized Agent OPPENHEIMER SENIOR FLOATING RATE FUND By: /s/ David Foxhaven ----------------------------------------- Name: David Foxhaven Title: AV.P. PACIFICA PARTNERS I, L.P. By: Imperial Credit Asset Management as its Investment Advisor By: /s/ Tom Colwell ----------------------------------------- Name: Tom Colwell Title: Vice President PILGRIM PRIME RATE TRUST By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President PILGRIM SENIOR INCOME FUND By: ING Pilgrim Investment, Inc. as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President PILGRIM AMERICA HIGH INCOME INVESTMENTS INC. LTD. By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President PILGRIM CLO 1999-1 LTD. By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President PINEHURST TRADING LLC By: /s/ Ann E. Morris ----------------------------------------- Name: Ann E. Morris Title: Authorized Agent 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 SEQUILS PILGRIM-1 LTD. By: ING Pilgrim Investments as its Investment Manager By: /s/ Jason Groom ----------------------------------------- Name: Jason Groom Title: Vice President SEQUILS-CENTURION V, LTD By: American Express Asset Management Group Inc. as Collateral Manager By: /s/ Lynn A. Hopton ----------------------------------------- Name: Lynn A. Hopton Title: Senior Managing Director SUNTRUST BANK By: /s/ Susan M. Hall ----------------------------------------- Name: Susan M. Hall Title: Managing Director U.S. BANK NATIONAL ASSOCIATION By: /s/ Mark Olmon ----------------------------------------- Name: Mark Olmon Title: Sr. Vice President VAN KAMPEN SENIOR INCOME TRUST By: Van Kampen Investment Advisory Corp. By: /s/ Darvin D. Pierce ----------------------------------------- Name: Darvin D. Pierce Title: Executive Director VAN KAMPEN PRIME RATE INCOME TRUST By: Van Kampen Investment Advisory Corp. By: /s/ Darvin D. Pierce ------------------------=---------------- Name: Darvin D. Pierce Title: Executive Director VAN KAMPEN CLO I, LIMITED By: Van Kampen Management Inc., as Collateral Manager By: /s/ Darvin D. Pierce ----------------------------------------- Name: Darvin D. Pierce Title: Executive Director VAN KAMPEN CLO II, LIMITED By: Van Kampen Management Inc., as Collateral Manager By: /s/ Darvin D. Pierce ----------------------------------------- Name: Darvin D. Pierce Title: Executive Director WELLS FARGO BANK, N.A. By: /s/ Hugh Diddy ----------------------------------------- Name: Hugh Diddy Title: Vice President WINGED FOOT FUNDING TRUST By: /s/ Ann E. Morris ----------------------------------------- Name: Ann E. Morris Title: Authorized Agent