Exhibit 4.1
AMENDMENT XX. 0, XXXXXXX, XXXXXX AND AGREEMENT dated as
of December 18, 2003 (this "Amendment"), to the Credit
Agreement dated as of January 23, 1998, as amended by
Amendment No. 1 dated as of August 12, 1998, Amendment No. 2
and Waiver dated as of November 30, 1998, Amendment No. 3
dated as of June 30, 1999, Amendment No. 4 dated as of June
29, 2000, Amendment No. 5 and Agreement dated as of January
26, 2001, Amendment No. 6, Consent and Waiver dated as of
August 10, 2001, and Amendment No. 7, Waiver and Agreement
dated as of November 21, 2002 (the "Credit Agreement"),
among EAGLE FAMILY FOODS, INC. (the "Borrower"), EAGLE
FAMILY FOODS HOLDINGS, INC. ("Holdings"), the Lenders (as
defined in the Credit Agreement), JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative
Agent") for the Lenders, as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders, as
swingline lender (in such capacity, the "Swingline Lender"),
and as issuing bank (in such capacity, the "Issuing Bank"),
and XXXXXXX XXXXX CAPITAL CORPORATION, as documentation
agent.
A. Pursuant to the Credit Agreement, the Lenders, the Swingline Lender
and the Issuing Bank have extended credit to the Borrower, and have agreed to
extend credit to the Borrower, in each case pursuant to the terms and subject to
the conditions set forth therein.
B. The Borrower has informed the Administrative Agent that it intends
to sell substantially all the assets of its Cremora Non-Dairy Xxxxxxx business
(the "Non-Dairy Xxxxxxx Assets") in exchange for Net Proceeds of not less than
$11,500,000 in cash (the "Proposed Sale"), and to use the Net Proceeds of the
Proposed Sale to prepay Term Loans as required by, and in accordance with the
provisions of, Section 2.11(b) of the Credit Agreement (the "Mandatory
Prepayment").
C. The Borrower and Holdings have requested that the Required Lenders
consent to the Proposed Sale and waive compliance by the Borrower and Holdings
with certain provisions of the Credit Agreement in connection with or as a
consequence thereof as set forth herein.
D. The Required Lenders are willing to grant such consent and waiver
pursuant to the terms and subject to the conditions set forth herein.
E. The Borrower, Holdings and the Required Lenders also desire to
amend the Credit Agreement as set forth herein.
F. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. The Required Lenders hereby (a) consent
to the Proposed Sale and (b) waive compliance by the Borrower and Holdings with
the provisions of Section 6.05 of the Credit Agreement to the extent necessary
to consummate the Proposed Sale; provided, however, that (i) the date the
Proposed Sale is consummated (the "Sale Closing Date") shall be on or prior to
January 31, 2004, (ii) the Net Proceeds of the Proposed Sale shall be not less
than $11,500,000 in cash, and (iii) the Borrower shall promptly cause the
Mandatory Prepayment to occur.
SECTION 2. Amendments. (a) The definition of the term "Consolidated
EBITDA" contained in Section 1.01 of the Credit Agreement is hereby amended by
deleting ", and" in the fifteenth line thereof and deleting the period in the
final line thereof and substituting in its place the following:`
", and (g) any fees and expenses associated with the sale by the Borrower
of the Non-Dairy Xxxxxxx Assets, in an aggregate amount not to exceed
$500,000."
(b) Section 2.08(d) of the Credit Agreement is hereby amended by
deleting the amount "$45,000,000" contained therein and substituting therefor
the amount "$43,000,000" and by deleting the amount "$40,000,000" contained
therein and substituting therefor the amount "$38,000,000".
(c) Section 6.14 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 6.14. Minimum EBITDA. Holdings and the Borrower will not
permit Consolidated EBITDA for any period of four consecutive fiscal
quarters ending on any date set forth below to be less than the amount set
forth below opposite such date:
Date Amount
---- ------
January 3, 2004 $22,000,000
April 3, 2004 $21,000,000
July 3, 2004 $20,000,000
October 2, 2004 $19,000,000
SECTION 3. Agreement. The Borrower hereby permanently reduces the
Revolving Commitments by $2,000,000, effective on the Amendment Effective
Date (as defined below), and the Required Lenders hereby waive any other
notice of such
reduction. To the extent that, after giving effect to such reduction the
aggregate Revolving Exposure would exceed the Revolving Commitments, the
Borrower shall prepay Revolving Loans and/or Swingline Loans in an amount
sufficient to eliminate such excess.
SECTION 4. Representations and Warranties. Each of the Borrower
and Holdings represents and warrants to each other party hereto that, after
giving effect to this Amendment, (a) the representations and warranties set
forth in Article III of the Credit Agreement are true and correct in all
material respects on and as of the date hereof with the same effect as
though made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date, and (b)
no Default or Event of Default has occurred and is continuing.
SECTION 5. Conditions to Effectiveness. This Amendment shall
become effective as of the date (the "Amendment Effective Date") that (a)
the Proposed Sale and the Mandatory Prepayment shall have occurred and (b)
the Administrative Agent shall have received (i) counterparts of this
Amendment which, when taken together, bear the signatures of the Borrower,
Holdings and the Required Lenders and (ii) reimbursement of all fees and
expenses of the Administrative Agent for which invoices have been submitted
to the Borrower.
SECTION 6. Release of Collateral. Upon the effectiveness of this
Amendment as provided above, the Required Lenders hereby authorize and
direct the Collateral Agent to take any and all action as may be reasonably
requested by the Borrower to evidence the release of the security interests
of the Security Documents in the Non-Dairy Xxxxxxx Assets.
SECTION 7. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, the Issuing Bank, the Collateral Agent or
the Administrative Agent under the Credit Agreement or any other Loan
Document, and shall not alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle the Borrower or Holdings to a
consent to, or a waiver, amendment, modification or other change of, any of
the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or any other Loan Document in similar or different
circumstances. This Amendment shall apply and be effective only with
respect to the provisions of the Credit Agreement specifically referred to
herein.
SECTION 8. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one
and the same instrument. Delivery of any executed counterpart of a
signature page of this Amendment by facsimile transmission shall be as
effective as delivery of a manually executed counterpart hereof.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
EAGLE FAMILY FOODS, INC.,
by:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: V.P. Finance
EAGLE FAMILY FOODS HOLDINGS, INC.,
by:
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: V.P. Finance
JPMORGAN CHASE BANK,
individually and as Administrative Agent,
Collateral Agent, Issuing Bank and
Swingline Lender,
by:
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
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/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice President
BANK OF HAWAII,
by:
/s/ Luke Yeir
-----------------------------------------
Name: Luke Yeir
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by:
/s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
CENTURION CDO I, LIMITED
BY: American Express Asset Management
Group Inc. as Collateral Manager,
by:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director- Operations
CENTURION CDO II, LTD
BY: American Express Asset Management
Group Inc. as Collateral Manager,
by:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
SEQUILS--CENTURION V, LTD
BY: American Express Asset Management
Group Inc. as Collateral Manager,
by:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
CENTURION CDO VI, LTD.
BY: American Express Asset Management
Group Inc. as Collateral Manager,
by:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director-Operations
XXXXX XXXXX INSTITUTION SENIOR LOAN FUND,
by:
/s/ Payson X. Xxxxxxxxx
-----------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST,
by:
/s/ Payson X. Xxxxxxxxx
-----------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK,
by:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Fleet National Bank
XXXXXXX & CO
BY: BOSTON MANAGEMENT AND
RESEARCH AS INVESTMENT ADVISOR,
by:
/s/ Payson X. Xxxxxxxxx
-----------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
BY: Indosuez Capital as Portfolio Advisor
by:
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
HIGHLAND LOAN FUNDING V LTD.,
By: Highland Capital Management L.P. as
Collateral Manager,
by:
/s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
KZH ING-2 LLC,
by:
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
KZH WATERSIDE LLC,
by:
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
LOAN FUNDING IV, LLC.,
By: Highland Capital Management L.P. as
Collateral Manager,
by:
/s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
XXXXXXX XXXXX CAPITAL PRODUCTS LLC,
by:
/s/ Xxxxxxx Xxx
-----------------------------------------
Name: Xxxxxxx Xxx
Title: Authorized Signatory
MIZUHO CORPORATE BANK, LTD.
by:
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
NORTHWOOD CAPITAL , LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.
AS COLLATERAL MANAGER
by:
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOOD CAPITAL II , LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.
AS COLLATERAL MANAGER
by:
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
NORTHWOOD CAPITAL III , LIMITED
BY: XXXXXX, XXXXXX & CO., L.P.
AS COLLATERAL MANAGER
by:
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
RESTORATION FUNDING CLO, LTD.,
By: Highland Capital Management L.P. as
Collateral Manager,
by:
/s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Chief Investment Officer
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND
RESEARCH AS INVESTMENT ADVISOR,
by:
/s/ Payson X. Xxxxxxxxx
---------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
