Exhibit 10.2
AMENDMENT, dated as of June 28, 2002 (this "Amendment") to the
RECEIVABLES PURCHASE AGREEMENT, dated as of April 19, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Receivables Purchase
Agreement"), between Aurora Foods Inc. ("Aurora") and JPMorgan Chase Bank
("JPMCB").
The parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Terms defined in Exhibit A to the Receivables
Purchase Agreement and used herein shall have the meanings given to them in
Exhibit A to the Receivables Purchase Agreement.
SECTION 2. Amendments to Receivables Purchase Agreement.
(a) Amendment to Section 10. Section 10 of the Receivables Purchase
Agreement is hereby amended by adding the following new Section 10.05
immediately after existing Section 10.04 thereof:
SECTION 10.05. Administrative Fee. Seller agrees to pay to
Purchaser an annual administrative fee for the period from June 30,
2002 to the Termination Date in an amount equal to $125,000 per year,
which fee will be payable quarterly in advance on the last day of each
March, June, September and December to occur prior to the Termination
Date, commencing on June 30, 2002.
(b) Amendment to Section 10.01. Section 10.01 of the Receivables
Purchase Agreement is hereby amended by deleting the first and second sentences
therein in their entirety and substituting in lieu thereof the following:
"This Agreement shall have a term beginning on the date hereof, and
ending on June 30, 2002. This term shall, at the option of Seller, be
extended until September 30, 2003 upon the payment to Purchaser, on or
before June 30, 2002, of an extension fee in the amount of $550,000."
(c) Amendment to Exhibit A. Exhibit A of the Receivables Purchase
Agreement is hereby amended by deleting the defined terms "Facility Limit" and
"Required Subordinated Participants Commitment" in its entirety and substituting
in lieu thereof the following:
"Facility Limit" means $42,000,000, as such amount may be reduced
from time to time pursuant to Section 10.02 of the Receivables Purchase
Agreement; provided that if the Supplemental Borrowing Date (as defined
in the Credit Agreement) occurs, the Facility Limit shall be
permanently reduced to (i) for the period from the Supplemental
Borrowing Date to July 31, 2002, $40,000,000 and (ii) on and after July
31, 2002, $30,000,000."
"Required Subordinated Participants Commitment" means (a) prior to
the Initial Over Advance Date, $9,000,000, (b) on any date during the
period commencing with the Initial Over Advance Date and ending on the
Over Advance Termination Date, at least (i) if the Supplemental
Borrowing Date (as defined in the Credit Agreement) has not
2
occurred, $9,000,000, or (ii) if the Supplemental Borrowing Date has
occurred, $6,500,000 plus, in each case, the aggregate cumulative
amount of Net Losses accrued as of such date and (c) for the period
following the Over Advance Termination Date, so long as no Event of
Default (as defined in the Credit Agreement) under the Credit Agreement
has occurred and is continuing, at least (i) if the Supplemental
Borrowing Date has not occurred, $9,000,000, or (ii) if the
Supplemental Borrowing Date has occurred, $6,500,000 plus, in each
case, the aggregate cumulative amount of Net Losses accrued as of the
Over Advance Termination Date.
SECTION 3. Conditions to Effectiveness. This Amendment shall be
effective on the date (the "Effective Date") on which (i) Aurora, JPMCB and the
Subordinated Participants shall have executed and delivered this Amendment and
(ii) an administrative fee in the amount of $31,250 is paid to JPMCB.
SECTION 4. Representations and Warranties. To induce the parties hereto
to enter into this Amendment, Aurora hereby represents and warrants that the
representations and warranties made by the Seller in Section 4.01 of the
Receivables Purchase Agreement are true and correct in all material respects on
and as of the date hereof, before and after giving effect to the effectiveness
of this Amendment, as if made on and as of the date hereof.
SECTION 5. Payment of Expenses. Aurora agrees to pay or reimburse JPMCB
and the Subordinated Participants for all of their out-of-pocket costs and
reasonable expenses incurred in connection with this Amendment, any other
documents prepared in connection herewith and the transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel to JPMCB and the Subordinated Participants.
SECTION 6. Continuing Effect. Except as expressly modified by this
Amendment, the Receivables Purchase Agreement and the Participation Agreement
are and shall remain in full force and effect.
SECTION 7. 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 8. Execution in Counterparts. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
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/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: President & CEO
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Agreed to and Acknowledged,
including for all purposes
of the Master Subordinated
Participation Agreement by:
FENWAY PARTNERS CAPITAL FUND, L.P.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxx
------------------------------
Name: Xxxxx Xxxx
Title: Authorized Signatory
FENWAY PARTNERS CAPITAL FUND II, L.P.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Authorized Signatory
XXXXXX DE LEEUW & CO. III, L.P.
By: /s/ Xxxxx Xx Xxxxx
---------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
XXXXXX DE LEEUW & CO. III (EUROPE), L.P.
By: /s/ Xxxxx Xx Xxxxx
---------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
XXXXXX DE LEEUW & CO. III (ASIA), L.P.
By: /s/ Xxxxx Xx Xxxxx
---------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
GAMMA FUND LLC
By: /s/ Xxxxx Xx Xxxxx
---------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
XXXXXX DE LEEUW & CO. IV, L.P
By: /s/ Xxxxx Xx Xxxxx
---------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
DELTA FUND LLC
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
XXXXXX DE LEEUW & CO. IV, ASSOCIATES L.P
By: /s/ Xxxxx Xx Xxxxx
-----------------------------------
Name: Xxxxx Xx Xxxxx
Title: Managing Director
UBS CAPITAL LLC
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
