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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Exec VP, CFO, and Secretary
SEA COAST FOODS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
APEX (IDM) CDO I, LTD.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as Collateral
Manager
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P. its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
5
ARES III CLO LTD.
By: ARES CLO Management, LLC its Investment
Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ARES IV CLO LTD.
By: ARES CLO Management IV, L.P. its
Investment Manager
By: ARES CLO ▇▇ ▇▇, LLC its Managing Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
6
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
CANPARTNERS INVESTMENTS IV, LLC
By: /s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
CONTINENTAL CASUALTY COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
7
COSTANTINUS ▇▇▇▇▇ ▇▇▇▇▇ CDO V, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ HIGH YIELD CDO 2001-I
By: Prudential Investment Management, Inc., as
Collateral Manager
By: /s/ B. ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: B. ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
8
▇▇▇▇▇▇ LEVERAGED LOAN CDO 2002-II
By: Prudential Investment Management, Inc., as
Collateral Manager
By: /s/ B. ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: B. ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ CDO III, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ CDO IV, LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
9
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment
Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company, Inc., as
Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
ELC (CAYMAN) LTD. 2000-1
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
FRANKLIN CLO I, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
10
FRANKLIN CLO III, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
FRANKLIN FLOATING RATE TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Vice President
FRANKLIN FLOATING RATE MASTER SERIES
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
GLENEAGLES TRADING LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
11
▇▇▇▇▇▇▇ & CO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
IKB DEUTSCHE INDUSTRIEBANK AG LUXEMBOURG
BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
12
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
KZH PONDVIEW LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
KZH STERLING LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Authorized Agent
13
MARINER LDC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONAL CITY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
14
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ Management as Investment Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset as its Investment
Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Research Analyst
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P. as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President-CFO Highland
Capital Management, L.P.
PPM SHADOW CREEK FUNDING LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
15
PPM SPYGLASS FUNDING TRUST
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Agent
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SIMSBURY CLO, LIMITED
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company. Inc. under
delegated authority from Massachusetts
Mutual Life Insurance Company as Collateral
Manager
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
16
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President & Principal