Exhibit 4.1
Execution Copy
JOHN
B. SANFILIPPO & SON, INC.
LIMITED WAIVER
and
THIRD AMENDMENT
Dated
as of May 31, 2007
to
Note
Purchase Agreement
Dated as of December 16, 2004
Re:
$65,000,000 Senior Notes
Due December 1, 2014
LIMITED WAIVER
and
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
This Limited Waiver and Third
Amendment, dated as of May 31, 2007 (this “
Amendment” ), to the Note Purchase Agreement, dated as
of December 16, 2004, is between John B. Sanfilippo & 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 certain of
the Noteholders have heretofore entered into the Note Purchase
Agreement, dated as of December 16, 2004, as amended by the
Limited Waiver and First Amendment to Note Purchase Agreement,
dated as of February 6, 2006, the Limited Waiver to Note
Purchase Agreement, dated as of May 5, 2006, the Limited
Waiver and Second Amendment, dated as of July 25, 2006, the
Limited Waiver, dated as of November 13, 2006, and the Limited
Waiver, dated as of November 28, 2006 (such Note Purchase
Agreement, as so amended, the “ Note Agreement”
). Capitalized terms used herein and not otherwise defined shall
have the meaning given in the Note Agreement.
B. The Company has advised the
Noteholders (a) that Events of Default have occurred and are
continuing under Section 11(c) of the Note Agreement as a result of
(i) the default by the Company in the compliance with the
provisions of Section 10.1(e) of the Note Agreement as of the
end of the fiscal months ended February 2, 2007, March 1,
2007, March 29, 2007 and May 3, 2007, (ii) the
default by the Company in the compliance with the provisions of
Section 10.1(d) of the Note Agreement as of the end of the
Fiscal Quarter ended March 29, 2007, and (b) that an
Event of Default will (absent this Amendment) occur 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(e) of the Note Agreement as of the end of the
fiscal month ending May 31, 2007 (the “Existing Note
Agreement Covenant Defaults” ).
C. The Company has further
advised the Noteholders that Events of Default exist or will
(absent this Amendment) exist under Section 10.1(f) of the Note
Agreement (the “Existing Cross-Defaults” and,
together with the Existing Note Agreement Covenant Defaults, the
“Existing Defaults” ) as a result of
(a) Matured Defaults (as defined in the Credit Agreement)
under the Credit Agreement as a result of (i) the default by
the Company in the compliance with the provisions of
Section 5.6(a) of the Credit Agreement as of the fiscal months
ended February 2, 2007, March 1, 2007, March 29,
2007 and May 3, 2007, and (ii) the Existing Defaults and
(b) a Matured Default that will (absent the waiver under the
Credit Agreement referred to in Section 5(b) below) exist under the
Credit Agreement as a result of the default by the Company in the
compliance with the provisions of Section 5.6(a) of the Credit
Agreement as of the fiscal month ending May 31, 2007 (the
“Credit Agreement Defaults” ).
D. The Existing Defaults and the
Credit Agreement Defaults have caused a Sharing Period (as defined
in the Intercreditor Agreement) to commence under the Intercreditor
Agreement (the “Existing Sharing Period” ) on
March 19, 2007, the earliest Sharing Date (as
- 1 -
defined
in the Intercreditor Agreement) to occur as a result of any
Existing Default or Credit Agreement Default.
E. The Company has requested
that the Noteholders waive the Existing Defaults and agree that the
Existing Sharing Period, to the extent it was caused by the
Existing Defaults and the Credit Agreement Defaults, shall end as
of its commencement date. Subject to the terms and conditions
hereof, and effective as provided herein, and provided that the
Company agrees to the amendments to the Note Agreement as set forth
in this Amendment, the Noteholders are willing to agree to such
requests.
F. 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 TO NOTE
AGREEMENT. Effective as of May 31, 2007, the Noteholders
and the Company agree to amend the Note Agreement as follows:
1.1. Section 1,
Exhibit 1 and Schedule A of the Note Agreement are
amended by changing each reference therein from “5.67%”
to “5.92%”.
1.2. A new Section 9.10
is added to the Note Agreement as follows:
“ Section 9.10.
Consulting Agreement. On or before June 20, 2007, the
Company shall obtain, and shall thereafter maintain the services of
a financial consultant reasonably acceptable to the Required
Holders to assist the Company with its business and financial
planning and with its financial reporting to the Banks and the
holders of the Notes.
SECTION 2. AMENDMENTS TO THE
NOTES. Effective as of May 31, 2007, the Noteholders and
the Company agree that each outstanding Note shall be amended by
changing each reference therein from “5.67%” to
“5.92%”.
SECTION 3. LIMITED WAIVER AND
AGREEMENT.
Subject to the terms and conditions
set forth herein, in reliance upon the representations and
warranties of the Company set forth herein, and effective as of
May 31, 2007 upon and subject to the satisfaction of the
conditions set for
