LIMITED WAIVER and FIRST AMENDMENT Dated as of February 6, 2006 to Note Purchase Agreement Dated as of December 16, 2004
Exhibit 4.4
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & SONS, INC.
LIMITED WAIVER
and
FIRST AMENDMENT
Dated as of February 6, 2006
to
Note Purchase Agreement
Dated as of December 16, 2004
LIMITED WAIVER
and
FIRST AMENDMENT
Dated as of February 6, 2006
to
Note Purchase Agreement
Dated as of December 16, 2004
Re: $65,000,000 4.67% Senior Notes
Due December 1, 2014
Due December 1, 2014
This Limited Waiver and First Amendment, dated as of February 6, 2006 (this
“Amendment”), to the Note Purchase Agreement, dated as of December 16, 2004, is
between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & Son, Inc., a Delaware corporation
(the “Company”),
and each of the institutions which is a signatory to this Amendment
(collectively, the “Noteholders”).
Recitals:
A. The Company and each of the Noteholders have heretofore entered into the
Note Purchase Agreement, dated as of December 16, 2004 (the
“Note Agreement”).
The Company has heretofore issued the $65,000,000 4.67% Senior Notes Due
December 1, 2014 (the “Notes”) pursuant to the Note Agreement.
B. The Company has advised the Noteholders that an Event of Default has
occurred and is continuing under Section 11(c) of the Note Agreement as a
result of the default by the Company in the compliance with the provisions of
Section 10.1(b) of the Note Agreement as of the end of the Fiscal Quarter ended
December 29, 2005 (the “Existing Default”). The Company has requested that the
Noteholders waive the Existing Default as of December 29, 2005.
C. Subject to the terms and conditions hereof, and effective as provided
herein, the Noteholders are willing to waive the Existing Default provided that
the Company agrees to certain amendments to the Note Agreement as provided
herein.
D. The Company and the Noteholders desire to amend the Note Agreement as
provided herein.
E. All requirements of law have been fully complied with and all other acts
and things necessary to make this Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. The following new Section 8.7 is added to the Note Agreement:
“Section
8.7. Excess Leverage Fee. In addition to interest accruing on
the Notes, the Company hereby agrees to pay to the holder of each Note a
fee (the “Excess Leverage Fee”) at the rate of 1.00% per annum on the
outstanding principal balance of the Notes during any Fiscal Quarter ending
after December 29, 2005 if the Leverage Ratio as of the end of such Fiscal
Quarter is in excess of 3.50 to 1.00. The Excess Leverage Fee with respect
to each Note for any Fiscal Quarter shall be calculated on the same basis
as interest on such Note
is calculated and shall be paid in arrears on the next date after the end of
such Fiscal Quarter on which interest is payable on the Notes. The payment of
any Excess Leverage Fee shall not constitute a waiver of any Default or Event of
Default. If an Excess Leverage Fee is due for any Fiscal Quarter, the Company
will notify the holders of that fact as soon as reasonably possible and in any
event no later than 5 Business Days prior to the interest payment date on which
the payment of such Excess Leverage Fee is due.”
1.2. Section 10.1 of the Note Agreement is amended to add the following new
subsections (d) and (e) thereto, such subsections to read as follows:
“(d) Minimum
EBITDA. The Company will not permit EBITDA for the period
of the four consecutive Fiscal Quarters ending with any Fiscal Quarter
ending after December 29, 2005 to be less than $30,000,000.
(e)
Minimum Working Capital. The Company will not permit Working
Capital at the end of any month ending after December 29, 2005 to be less
than $50,000,000.”
1.3.
The following is added to the end of Section 10.5(j) of the Note
Agreement:
“Notwithstanding the foregoing, in no event shall the Company create, incur,
assume or permit to exist, or permit any of its Subsidiaries to create, incur,
assume or permit to exist, any Lien securing any Debt under the Credit Agreement
or any other working capital credit facility unless the Notes are secured on a
pari passu basis by Liens in all property securing such Debt pursuant to
documentation in form and substance satisfactory to the Required Holders in
their sole discretion, provided that the holders of the Notes and the holders of
such Debt shall have entered into an Intercreditor and Collateral Agency
Agreement, in form and substance satisfactory to the Required Holders in their
sole discretion, and such Intercreditor and Collateral Agency Agreement shall be
in full force and effect.”
1.4. The following new Section 10.9 is added to the Note Agreement:
“Section 10.9. Most Favored Lender Status.The Company will not, and
will not permit any Subsidiary to, enter into, assume or otherwise become
bound or obligated under the Credit Agreement or any agreement evidencing,
securing, guaranteeing or otherwise relating to Debt under the Credit
Agreement or any other working capital credit facility that contains, or
amend the Credit Agreement or any such agreement to contain, one or more
Additional Covenants or Additional Defaults, unless the Company or such
Subsidiary has offered to make an amendment this Agreement, in form and
substance satisfactory to the Required Holders, to add to or amend this
Agreement to contain such Additional Covenants or Additional Defaults;
provided, however, in the event that the Company or any Subsidiary enters
into, assumes or otherwise becomes bound or obligated under, or so amends,
the Credit Agreement or any such agreement without making such
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offer, or if such offer was made and has not been rejected by the Required
Holders, this Agreement shall, without any further action on the part of the
Company, or any of the holders, be deemed to be amended automatically to include
each Additional Covenant and each Additional Default contained in such
agreement. The Company further covenants to, and to cause each of its
Subsidiaries to, promptly execute and deliver at its expense (including the
reasonable fees and expenses of counsel for the holders) an amendment to this
Agreement in form and substance satisfactory to the Required Holders evidencing
the amendments of this Agreement to include such Additional Covenants and
Additional Defaults; provided that the execution and delivery of such
amendments shall not be a precondition to the effectiveness of such amendment as
provided for in this Section 10.9, but shall merely be for the convenience of
the parties hereto.”
1.5. Section 11(b) of the Note Agreement is amended and
restated in its entirety to read as follows:
“(b) the Company defaults in the payment of any interest or Excess Leverage Fee with respect to any Note for more
than five Business Days after the same becomes due and payable; or”
1.6. The following shall be added as new definitions to Schedule B to the Note Agreement
in proper alphabetical order:
“Additional Covenant” shall mean any affirmative
or negative covenant or similar restriction applicable to the Company or any
Subsidiary (regardless of whether such provision is labeled or otherwise
characterized as a covenant) the subject matter of which either (i) is similar
to that of any covenant in Section 9 or 10 of this Agreement, or related
definitions in Schedule B to this Agreement, but contains one or more
percentages, amounts or formulas that is more restrictive than those set forth
herein or more beneficial to any holder of any Debt under the Credit Agreement
or any other working capital facility (and such covenant or similar restriction
shall be deemed an Additional Covenant only to the extent that it is more
restrictive or more beneficial) or (ii) is different from the subject matter of
any covenants in Section 9 or 10 of this Agreement or related definitions in
Schedule B to this Agreement.
“Additional Default” shall mean any provision for
the benefit of any holder of any Debt under the Credit Agreement or any other
working capital facility to accelerate (with the passage of time or giving of
notice or both) the maturity thereof or otherwise requires any Company or any
Subsidiary to purchase such Debt prior to the stated maturity thereof and which
either (i) is similar to any Default or Event of Default contained in Section 11
of this Agreement, or related definitions in Schedule B to this Agreement, but
contains one or more percentages, amounts or formulas that is more restrictive
or has a ▇▇▇▇▇▇▇ ▇▇▇▇▇ period than those set forth therein or is more beneficial
to any holder of any Debt under the Credit Agreement or any other working
capital facility (and
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such provision shall be deemed an Additional Default only to the extent that it
is more restrictive, has a ▇▇▇▇▇▇▇ ▇▇▇▇▇ period or is more beneficial) or (ii)
is different from the subject matter of any Default or Event of Default
contained in Section 11 of this Agreement or related definitions in Schedule B
to this Agreement.
“Credit Agreement” means the Credit Agreement, dated as of March 31, 1998, by and among the Company, Sunshine Nut Co., Inc., now
merged into the Company, JBS International, Inc., now merged into the Company, Quantz Acquisition Co., Inc., now dissolved, the
financial institutions listed on the signature pages thereof and U.S. Bank National Association, as agent, as successor to U.S.
Bankcorp Ag Credit, Inc., as amended from time to time.
“Excess Leverage Fee” is defined in Section 8.7.
“Working Capital” shall mean as of any particular date, the Company’s combined
current assets, less the Company’s combined current liabilities (including
without limitation, the aggregate amount of all Debt outstanding under the
Credit Agreement) determined in accordance with GAAP, adjusted by deducting: (i)
all values attributable to general intangibles, as determined in accordance with
GAAP; and by deducting (ii) accounts due from Affiliates with no further
adjustment required for accounts due from Affiliates already eliminated in
combination except accounts due from Affiliates which the Company could legally
collect by setoff against accounts due to Affiliates, and treating as equity any
and all liabilities which are expressly subordinated on terms satisfactory to
the Required Holders.
SECTION 2. LIMITED WAIVER.
Subject to the terms and conditions set forth herein, in reliance upon the
representations and warranties of the Company set forth herein, and effective on
(and subject to the occurrence of) the Effective Date (as defined in Section 4
below), the Noteholders hereby waive the Existing Default as of December 29,
2005. The foregoing waiver shall be limited precisely as written and shall
relate solely to the Note Agreement in the manner and to the extent described
herein, and nothing in this Amendment shall be deemed to (a) constitute a waiver
of compliance by the Company with respect to or any modification of (i)
paragraph 10.1(b) of the Note Agreement as of the end of any other Fiscal
Quarter or in any other instance or respect or (ii) any other term, provision or
condition of the Note Agreement, (b) constitute a waiver of any Default or Event
of Default other than the Existing Default, or (c) prejudice any right or remedy
that the any holder of Notes may now have (after giving effect to the foregoing
waiver) or may have in the future under or in connection with the Note Agreement
or any Note.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY; ACKNOWLEDGMENT.
3.1. Representations. To induce the Noteholders to execute and deliver this
Amendment, the Company represents and warrants to the Noteholders (which
representations shall survive the execution and delivery of this Amendment),
that:
(a) this Amendment has been duly authorized, executed and delivered by it
and this Amendment constitutes the legal, valid and binding obligation, contract
and agreement of the Company enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors’ rights generally;
(b) the Note Agreement, as amended by
this Amendment, constitute the legal, valid and binding obligations, contracts
and agreements of the Company enforceable against it in accordance with their
respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors’ rights generally;
(c) the execution, delivery
and performance by the Company of this Amendment (i) has been duly authorized by
all requisite corporate action and, if required, shareholder action, (ii) does
not require the consent or approval of any governmental or regulatory body or
agency, and (iii) will not (A) violate (1) any provision of law, statute, rule
or regulation or its certificate of incorporation or bylaws, (2) any order of
any court or any rule, regulation or order of any other agency or government
binding upon it, or (3) any provision of any indenture, agreement or other
instrument to which it is a party or by which its properties or assets are or
may be bound, including, without limitation, the Credit Agreement, or (B) result
in a breach or constitute (alone or with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this Section 3.1(c);
(d) as of the date hereof, and after giving
effect to this Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) Except for the $25,000 fee set forth in the waiver under the
Credit Agreement referred to in Section 4(b) below hereof, and except for the
reimbursement of out-of-pocket expenses, the Company has not paid or agreed to
pay, and will not pay or agree to pay, any fee or other consideration for or
with respect to such waiver to the Credit Agreement.
3.2. Acknowledgment. The Company acknowledges that because of the Existing
Default the Noteholders are entitled to accelerate the maturity of the Notes and
to receive payment of the entire outstanding principal amount thereof, together
with accrued interest thereon and Make-Whole Amount, if any, with respect
thereto.
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SECTION 4. CONDITIONS TO EFFECTIVENESS OF LIMITED WAIVER.
The limited waiver in Section 2 of this Amendment shall not become effective
until, and shall become effective, as of December 29, 2005, only when, each and
every one of the following conditions shall have been satisfied (the date upon
which such conditions are satisfied is called the “Effective
Date”):
(a) Counterparts of this Amendment, duly executed by the Company and the holders
of at least a majority of the outstanding principal of the Notes, shall have
been delivered to the Noteholders;
(b) The Noteholders shall have received an
original counterpart or, if satisfactory to the Noteholders, certified or other
copies of a waiver of any default under Section 9.6(b) or (d) of the Credit
Agreement and any default under the Credit Agreement as a result of the Existing
Covenant Default, each duly executed and delivered by the party or parties
thereto, in form and substance satisfactory to the Noteholders and, on the
Effective Date, in full force and effect with no event having occurred and being
then continuing that would constitute a default thereunder or constitute or
provide the basis for the termination thereof;
(c) The holders shall have
received payment of the Waiver Fee described in Section 5 hereof; and
(d) the
representations and warranties of the Company set forth in Section 1 hereof are
true and correct on and as of the Effective Date.
SECTION
5. WAIVER FEE.
In consideration of the execution and delivery of this letter by the
Noteholders, the Company hereby agrees to pay to the holders, pro rata in
proportion to the outstanding principal amount of the Notes held by each holder,
a waiver fee (the “Waiver Fee”) in an aggregate amount for all holders equal to
$25,000.00.
SECTION 6. MISCELLANEOUS.
6.1. Reference to and Effect on Note Agreement; No Course of Dealing. Upon the
effectiveness of the amendments in Section 1 hereof and the waiver in Section 2
hereof, each reference to the Note Agreement in any other document, instrument
or agreement shall mean and be a reference to the Note Agreement as modified by
this Amendment. Except as specifically set forth in Sections 1 and 2 hereof, the
Note Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. The Company acknowledges and agrees that no holder is
under any duty or obligation of any kind or nature whatsoever to grant the
Company any additional amendments or waivers of any type, whether under the same
or different circumstances, and no course of dealing or course of performance
shall be deemed to have occurred as a result of the amendments and wavier
herein.
6.2. Expenses. The Company hereby confirms its obligations under the
Note Agreement, whether or not the transactions hereby contemplated are
consummated, to pay,
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promptly after request by any Noteholder, all reasonable out-of-pocket costs and
expenses, including attorneys’ fees and expenses, incurred by the Noteholders in
connection with this Amendment or the transactions contemplated hereby, in
enforcing any rights under this Amendment, or in responding to any subpoena or
other legal process or informal investigative demand issued in connection with
this letter or the transactions contemplated hereby. The obligations of the
Company under this Section 6.2 shall survive transfer by any Noteholder of any
Note and payment of any Note.
6.3. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE
OF ILLINOIS (EXCLUDING ANY CONFLICTS OF LAW RULES WHICH WOULD OTHERWISE CAUSE
THIS AMENDMENT TO BE CONSTRUED OR ENFORCED IN ACCORDANCE WITH, OR THE RIGHTS OF
THE PARTIES TO BE GOVERNED BY, THE LAWS OF ANY OTHER JURISDICTION).
6.4. Counterparts; Section Titles. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page to this
Amendment by facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment. The section titles contained in this Amendment
are and shall be without substance, meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
[signature page follows]
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| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & SON, INC. | ||||||||||
| By: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||||||
| Its: | CFO | |||||||||
| Accepted and Agreed to: | ||||||||||
| THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA |
||||||||||
By: |
||||||||||
| Vice President | ||||||||||
| PRUCO LIFE INSURANCE COMPANY | ||||||||||
By: |
||||||||||
| Vice President | ||||||||||
| AMERICAN SKANDIA
LIFE ASSURANCE CORPORATION |
||||||||||
By:
|
Prudential Investment Management, Inc, as investment manager |
|||||||||
By: |
||||||||||
| Vice President | ||||||||||
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| ▇▇▇▇ ▇. SANFILIPPO& SON, INC. | ||||||||||
| By: | ||||||||||
| Its: | ||||||||||
| Accepted and Agreed to: | ||||||||||
| THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA |
||||||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||||
| Vice President | ||||||||||
| PRUCO LIFE INSURANCE COMPANY | ||||||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||||
| Vice President | ||||||||||
| AMERICAN SKANDIA
LIFE ASSURANCE CORPORATION |
||||||||||
By:
|
Prudential Investment Management,
Inc. as investment manager |
|||||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||||
| Vice President | ||||||||||
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| PRUDENTIAL RETIREMENT CEDED BUSINESS TRUST |
||||||||
By:
|
Prudential Investment Management, Inc, as investment manager |
|||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||
| Vice President | ||||||||
| ING LIFE INSURANCE AND ANNUITY COMPANY | ||||||||
By:
|
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
|||||||
By:
|
Prudential Private Placement Investors, Inc. (as its General Partner) |
|||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||
| Vice President | ||||||||
| FARMERS NEW WORLD LIFE INSURANCE COMPANY | ||||||||
By: |
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
|||||||
By: |
Prudential Private Placement Investors, Inc. (as its General Partner) |
|||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||
| Vice President | ||||||||
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| PHYSICIANS MUTUAL INSURANCE COMPANY | ||||||||
By: |
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
|||||||
By: |
Prudential Private Placement Investors, Inc. (as its General Partner) |
|||||||
By: |
/s/ G. A. ▇▇▇▇▇▇▇ | |||||||
| Vice President | ||||||||
| GREAT-WEST LIFE ANNUITY& INSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
By: |
||||||||
| Title: | ||||||||
| THE GREAT-WEST LIFE ASSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
By: |
||||||||
| Title: | ||||||||
| UNITED OF OMAHA LIFE INSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
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| PHYSICIANS MUTUAL INSURANCE COMPANY | ||||||||
By: |
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
|||||||
By: |
Prudential Private Placement Investors, Inc. (as its General Partner) |
|||||||
By: |
||||||||
| Vice President | ||||||||
| GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY | ||||||||
By: |
/s/ ▇▇▇ ▇▇▇▇▇▇▇ | |||||||
| ▇▇▇ ▇▇▇▇▇▇▇ | ||||||||
| Title: | Vice President, Investments | |||||||
By: |
/s/ ▇. ▇. ▇▇▇▇▇▇ | |||||||
| ▇. ▇. ▇▇▇▇▇▇ | ||||||||
| Title: | Ass’t. Vice President, Investments | |||||||
| THE GREAT-WEST LIFE ASSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
By: |
||||||||
| Title: | ||||||||
| UNITED OF OMAHA LIFE INSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
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| PHYSICIANS MUTUAL INSURANCE COMPANY | ||||||||
By: |
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
|||||||
By: |
Prudential Private Placement Investors, Inc. (as its General Partner) |
|||||||
By: |
||||||||
| Vice President | ||||||||
| GREAT-WEST LIFE ANNUITY & INSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
By: |
||||||||
| Title: | ||||||||
| THE GREAT-WEST LIFE ASSURANCE COMPANY | ||||||||
By: |
/s/ B.R. ▇▇▇▇▇▇▇ | |||||||
| Title: | B.R. ▇▇▇▇▇▇▇, Senior Vice-President Bond Investments |
|||||||
By: |
/s/ D.B.E. ▇▇▇▇▇ | |||||||
| Title: | D.B.E. ▇▇▇▇▇, Manager Bond Investments |
|||||||
3
| PHYSICIANS MUTUAL INSURANCE COMPANY | ||||||||
By: |
Prudential Private Placement Investors, L.P. (as Investment Advisor) |
|||||||
By: |
Prudential Private Placement Investors, Inc. (as its General Partner) |
|||||||
By: |
||||||||
| Vice President | ||||||||
| GREAT-WEST LIFE ANNUITY & INSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
By: |
||||||||
| Title: | ||||||||
| THE GREAT-WEST LIFE ASSURANCE COMPANY | ||||||||
By: |
||||||||
| Title: | ||||||||
By: |
||||||||
| Title: | ||||||||
| UNITED OF OMAHA LIFE INSURANCE COMPANY | ||||||||
By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
| Title: | Vice President | |||||||
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| JEFFERSON PILOT FINANCIAL INSURANCE
COMPANY |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: Asst. Vice President | ||||
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