SEC Exhibit










EXHIBIT 10.4


AMENDMENT NO. 1 TO CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of January 19, 2016 (this “Agreement”; capitalized terms used herein without definition having the meanings provided in Article I), is entered into among SNYDER’S-LANCE, INC., a North Carolina corporation (the “Borrower”), each Lender a party hereto and BANK OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders.
PRELIMINARY STATEMENTS:
The Borrower, the Lenders and the Administrative Agent are parties to that certain Credit Agreement dated as of December 16, 2015 among the Borrower, the Lenders party thereto and the Administrative Agent (the “Credit Agreement”).
The Borrower has entered into that certain Agreement and Plan of Merger and Reorganization, dated as of October 27, 2015, among the Borrower, Shark Acquisition Sub I, Inc., Shark Acquisition Sub II, LLC and Diamond Foods whereby the Borrower will acquire the Diamond Companies (the “Diamond Acquisition”).
Pursuant to Section 5.02(g) of the Credit Agreement, it is a funding condition that all existing Indebtedness of the Diamond Companies (other than Indebtedness permitted under Section 8.06 of the Credit Agreement) be repaid or redeemed, including, but not limited to, Diamond Food’s 7.000% Senior Notes due 2019 (the “Diamond Notes”) issued under the Indenture dated as of February 19, 2014, among Diamond Foods, the guarantors party thereto and U.S. Bank National Association, as trustee.
The Diamond Notes are subject to redemption upon not less than thirty (30) days written notice to the holders of the Diamond Notes, which notice of redemption may be made contingent on the closing of the Diamond Acquisition; provided that Diamond Foods is required to give the holders of the Diamond Notes written notice if the contingency will not be met at least two Business Days prior to the day designated for redemption.
The Borrower and Diamond desire to structure the redemption of the Diamond Notes such that the closing of the Diamond Acquisition, and the funding of the Loans under the Credit Agreement,  will occur more than two (2) Business Days prior to the date of redemption in order to preserve the ability of Diamond to assert the contingency to which the redemption of the Diamond Notes is subject.
The Borrower has requested that, pursuant to Section 11.01 of the Credit Agreement, the Lenders agree to certain amendments to the Credit Agreement as hereinafter set forth to permit the Diamond Notes to remain outstanding for a period of time not to exceed five (5) Business Days after the Closing Date.
The Lenders party to this Agreement (the “Consenting Lenders”) are, on the terms and conditions stated below, willing to grant such request and to amend the Credit Agreement as hereinafter set forth.











NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party to this Agreement agrees, as follows:
ARTICLE I
DEFINITIONS
1.01    Definitions.  The following terms (whether or not underscored) when used in this Agreement, including its preamble and recitals, shall have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof):
 “Administrative Agent” is defined in the preamble.
“Agreement” is defined in the preamble.
“Agreement Effective Date” means the date on which the conditions precedent to the effectiveness of this Agreement as specified in Article III herein have been satisfied.
“Borrower” is defined in the preamble.
“Credit Agreement” means the Credit Agreement, as amended by this Agreement as the same may hereafter be further amended, amended and restated, supplemented or otherwise modified.
“Lender” means each lender from time to time party to the Credit Agreement.  
1.02    Other Definitions.  Unless otherwise defined herein or the context otherwise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided in the Credit Agreement.  
1.03    Other Interpretive Provisions.  The rules of construction in Sections 1.02 and 1.03 of the Credit Agreement shall be equally applicable to this Agreement.  
ARTICLE II 
AMENDMENTS
2.01    Amendments.
(a)    Section 1.01 of the Credit Agreement.  Section 1.01 of the Credit Agreement is hereby amended by adding in the proper alphabetical order the following definition:
“Diamond Notes” means the 7.000% Senior Notes due 2019 issued under the Indenture dated as of February 19, 2014, among Diamond Foods, the guarantors party thereto and U.S. Bank National Association, as trustee.
(b)    Section 1.01 of the Credit Agreement.  Section 1.01 of the Credit Agreement is hereby amended by amending and restating the definition of “Total Indebtedness” to read as follows:
“Total Indebtedness” means, at any time, all Indebtedness (other than (i) IBO Guaranty Obligations in an amount up to $75,000,000 in the aggregate and (ii) the 


	
			
	 
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Diamond Notes so long as such notes have been called for redemption and the funds to pay such redemption have been or concurrently therewith are being deposited with U.S. Bank National Association, as trustee for the Diamond Notes) of the Borrower and its Subsidiaries determined on a consolidated basis and to the extent not included in the definition of Indebtedness, the aggregate outstanding investment or claim held at such time by purchasers, assignees or other transferees of (or of interests in) receivables or other rights to payment of the Borrower and its Subsidiaries in connection with any Securitization Transaction (regardless of the accounting treatment of such Securitization Transaction). 
(c)    Section 5.02(g)(iv) of the Credit Agreement. Section 5.02(g)(iv) of the Credit Agreement is hereby amended by deleting that Section in its entirety and substituting in lieu thereof the following:
“(iv)    Evidence that the Refinancing (other than the Diamond Notes) shall have been consummated simultaneously (or substantially simultaneously or concurrently) with the funding of the Term Loans hereunder and all such Indebtedness terminated, that all agreements and documents with respect to such Indebtedness will be canceled and any related obligations and all other amounts due thereunder have been or concurrently with the Closing Date are being paid off and terminated (other than indemnification obligations that customarily survive repayment and termination of credit facilities), including, without limitation, termination notices, all payoff letters, necessary Uniform Commercial Code termination statements, and all other evidence of cancellation of such Indebtedness, and the release of the liens securing such Indebtedness, and termination of the related credit facilities, in each case upon receipt of such repayment, all as the Administrative Agent may reasonably request.
(d)    New Section 7.15.  The following new Section 7.15 will be added after Section 7.14 of the Credit Agreement:
“7.15    Diamond Notes. On the Closing Date, the Borrower shall wire directly to U.S. Bank National Association, as trustee for the Diamond Notes, an amount of money sufficient to prepay or redeem in full the Diamond Notes, and the Diamond Notes shall have been repaid or redeemed in full no later than 5 Business Days after the Closing Date.
(e)    Section 8.06 of the Credit Agreement.  Section 8.06 of the Credit Agreement is hereby amended by (i) deleting the word “and” at the end of subsection (d), (ii) replacing the period at the end of subsection (e) with “; and” and adding the following new subsection:
“(f)    the Diamond Notes.”
(f)    Section 8.14 of the Credit Agreement.  Section 8.14 of the Credit Agreement is hereby amended by deleting the parenthetical immediately after the phrase “Contractual Obligation” and substituting in lieu thereof the following:
“(other than any other Loan Document, the Existing Credit Documents and the Diamond Notes)”


	
			
	 
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(g)    Section 9.01(c) of the Credit Agreement.  Section 9.01(c) of the Credit Agreement is hereby amended by adding “Section 7.15,” immediately after “subsection 7.03(a),”,
2.02    Other Loan Documents.  From and after the Agreement Effective Date, each reference to the Credit Agreement in any Loan Document shall be a reference to the Credit Agreement, as amended by this Agreement, as the same may hereafter be further amended, amended and restated, supplemented or otherwise modified.
ARTICLE III 
CONDITIONS PRECEDENT
3.01    Conditions to Agreement.  This Agreement is subject to the provisions of Section 11.01 of the Credit Agreement, and the execution of this Agreement by the Administrative Agent and each Consenting Lender shall be subject to the satisfaction of the following conditions:
(a)    Deliveries.  The Administrative Agent shall have received all of the following documents, each such document (unless otherwise specified) dated the Agreement Effective Date and, each in form and substance satisfactory to the Administrative Agent: 
(i)    Agreement.  Counterparts of this Agreement executed by the Borrower, the Administrative Agent, and each Lender; and
(ii)    Officer’s Certificate.  A certificate executed by a Responsible Officer of the Borrower, dated as of the Agreement Effective Date, stating that:
(A)    the representations and warranties of the Loan Parties contained in Sections 6.01, 6.02, 6.04, 6.08, 6.13, 6.20 and 6.21 of the Credit Agreement are accurate and complete in all respects on and as of such date, as though made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are accurate and complete in all respects as of such earlier date; 
(B)    no Event of Default or Unmatured Event of Default exists or would result from the effectiveness of this Agreement and the incurrence of all Indebtedness contemplated hereby; and
(C)    since December 28, 2014, no event or condition has occurred or could reasonably be expected to occur that, either individually or in the aggregate, has resulted or could reasonably be expected to result in a Material Adverse Effect.
(b)    Amendment No. 4 to Existing Credit Agreement.  Amendment No. 4 to Existing Credit Agreement dated as of even date herewith shall have become effective.


	
			
	 
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement, the Borrower hereby represents and warrants to the Administrative Agent and each Lender for itself and each of its Subsidiaries that on and as of the Agreement Effective Date after giving effect to this Agreement:
4.01    Due Authorization; No Conflict.  The execution and delivery by the Borrower of this Agreement and the performance by the Borrower of this Agreement and the Credit Agreement have been duly authorized by all necessary corporate or other organizational action of the Borrower, and do not and will not: (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any document evidencing any material Contractual Obligation to which the Borrower or any of its Subsidiaries is a party or (ii) any order, injunction, writ or decree of any Governmental Authority to which the Borrower or any of its Subsidiaries or any of its or their property is subject; or (c) violate any Requirement of  Law.
4.02    Enforceability.  Each of this Agreement and the Credit Agreement constitute a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.
4.03    Credit Agreement Representations.  The representations and warranties of the Borrower contained in Article VI of the Credit Agreement are true and correct in all material respects (except, if such representation or warranty is qualified by materiality, Material Adverse Effect or a similar concept applies, such representation or warranty is true and correct in all respects) on and as of the Agreement Effective Date with the same effect as if made on and as of such Agreement Effective Date (except to the extent such representations and warranties expressly refer to an earlier date, in which case they shall be true and correct in all material respects (except, if such representation or warranty is qualified by materiality, Material Adverse Effect or a similar concept applies, such representation or warranty is true and correct in all respects) as of such earlier date).
4.04    No Default.  No Event of Default or Unmatured Event of Default has occurred and is continuing or resulted from the consummation of the transactions contemplated by this Agreement.
ARTICLE V
MISCELLANEOUS
5.01    Loan Document.  This Agreement is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with the terms and provisions thereof.  
5.02    Lender Consent.  For purposes of determining compliance with the conditions specified in Section 3.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the 


	
			
	 
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Administrative Agent shall have received notice from such Lender prior to the proposed Agreement Effective Date specifying its objection thereto.
5.03    Effect of Agreement.  (a) The Credit Agreement, as specifically amended or otherwise modified by this Agreement, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.
(b)    The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement.
5.04    Costs and Expenses.  The Borrower agrees to pay all costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Agreement and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 11.04 of the Credit Agreement. 
5.05    Section Captions.  Section captions used in this Agreement are for convenience of reference only, and shall not affect the construction of this Agreement.
5.06    Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
5.07    Certain Provisions.  The provisions of Sections 11.14(b) and 11.15 of the Credit Agreement are hereby incorporated by reference.
[Signature Page Follows]






 


	
			
	 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
	
							
	BORROWER
	 
	 
	 
	SNYDER'S-LANCE, INC.

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Rick D. Puckett

	 
	 
	 
	 
	Name:
Title:
	 
	Rick D. Puckett
Executive Vice President, Chief Financial Officer and Chief Administrative Officer












Amendment No. 1 to Credit Agreement









	
							
	 
	 
	 
	 
	BANK OF AMERICA, N.A., as the Administrative Agent

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Bridgett J. Manduk Mowry

	 
	 
	 
	 
	Name:
	 
	Bridgett J. Manduk Mowry

	 
	 
	 
	 
	Title:
	 
	Vice President








	
							
	 
	 
	 
	 
	BANK OF AMERICA, N.A., as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ J. Casey Cosgrove

	 
	 
	 
	 
	Name:
	 
	J. Casey Cosgrove

	 
	 
	 
	 
	Title
	 
	Director








	
							
	 
	 
	 
	 
	COBANK, ACB, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Michael Tousignant

	 
	 
	 
	 
	Name:
	 
	Michael Tousignant

	 
	 
	 
	 
	Title:
	 
	Vice President








	
							
	 
	 
	 
	 
	MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Keith A. Mummert

	 
	 
	 
	 
	Name:
	 
	Keith A. Mummert

	 
	 
	 
	 
	Title:
	 
	Vice President






	
							
	 
	 
	 
	 
	TD BANK, N.A., as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Alan Garson

	 
	 
	 
	 
	Name:
Title:
	 
	Alan Garson
Senior Vice President










Amendment No. 1 to Credit Agreement









	
							
	 
	 
	 
	 
	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Christine Howatt

	 
	 
	 
	 
	Name:
	 
	Christine Howatt

	 
	 
	 
	 
	Title:
	 
	Authorized Signatory








	
							
	 
	 
	 
	 
	FIFTH THIRD BANK, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Jim Bosco

	 
	 
	 
	 
	Name:
	 
	Jim Bosco

	 
	 
	 
	 
	Title:
	 
	Senior Vice President






	
							
	 
	 
	 
	 
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Scott Santa Cruz

	 
	 
	 
	 
	Name:
Title:
	 
	Scott Santa Cruz
Managing Director








	
							
	 
	 
	 
	 
	BMO HARRIS BANK, N.A., as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Joan Spiotto Murphy

	 
	 
	 
	 
	Name:
Title:
	 
	John Spiotto Murphy
Director








	
							
	 
	 
	 
	 
	BRANCH BANKING AND TRUST COMPANY, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Kenneth M. Blackwell

	 
	 
	 
	 
	Name:
Title:
	 
	Kenneth M. Blackwell
Senior Vice President










Amendment No. 1 to Credit Agreement









	
							
	 
	 
	 
	 
	CAPITAL ONE NATIONAL ASSOCIATION, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Kiel Johnson

	 
	 
	 
	 
	Name:
Title:
	 
	Kiel Johnson
Vice President








	
							
	 
	 
	 
	 
	COŐPERATIEVE RABOBANK U.A., NEW YORK BRANCH (F/K/A COŐPERATIEVE CENTRALE RAIFFESNSEN-BOERENLEENBANK B.A. "RABOBANK NEDERLAND", NEW YORK BRANCH), as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Aurelie Vancauwenberghe

	 
	 
	 
	 
	Name:
Title:
	 
	Aurelie Vancauwenberghe
Vice President

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Michalene Donegan

	 
	 
	 
	 
	Name:
Title:
	 
	Michalene Donegan
Executive Director






	
							
	 
	 
	 
	 
	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Ming K. Chu

	 
	 
	 
	 
	Name:
Title:
	 
	Ming K. Chu
Vice President

	 
	 
	 
	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Virginia Cosenza

	 
	 
	 
	 
	Name:
Title:
	 
	Virginia Cosenza
Vice President






	
							
	 
	 
	 
	 
	PNC BANK, NATIONAL ASSOCIATION, as a Lender

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Jessica F. Sidhom

	 
	 
	 
	 
	Name:
Title:
	 
	Jessica Fabrizi-Sidhom
Senior Vice President, Corporate Banking








Amendment No. 1 to Credit Agreement









	
							
	 
	 
	 
	 
	1ST FARM CREDIT SERVICES, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Corey J. Waldinger

	 
	 
	 
	 
	Name:
	 
	Corey J. Waldinger

	 
	 
	 
	 
	Title:
	 
	Vice President, Capital Markets Group






	
							
	 
	 
	 
	 
	AGFIRST FARM CREDIT BANK

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Katie D. Hane

	 
	 
	 
	 
	Name:
	 
	Katie D. Hane

	 
	 
	 
	 
	Title:
	 
	Vice President








	
							
	 
	 
	 
	 
	AGSTAR FINANCIAL SERVICES, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Bob Atwood

	 
	 
	 
	 
	Name:
Title:
	 
	Bob Atwood
Mgr. Agency Desk and Team Leader








	
							
	 
	 
	 
	 
	FARM CREDIT BANK OF TEXAS

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Luis M. H. Requejo

	 
	 
	 
	 
	Name:
Title:
	 
	Luis M. H. Requejo
Director Capital Markets








	
							
	 
	 
	 
	 
	FARM CREDIT MID-AMERICA, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Ralph M. Bowman

	 
	 
	 
	 
	Name:
Title:
	 
	Ralph M. Bowman
Vice President Capital Markets








	
							
	 
	 
	 
	 
	FARM CREDIT SERVICES OF AMERICA, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Curt A. Brown

	 
	 
	 
	 
	Name:
Title:
	 
	Curt A. Brown
Vice President






Amendment No. 1 to Credit Agreement













	
							
	 
	 
	 
	 
	UNITED FCS, FLCA d/b/a FCS COMMERCIAL FINANCE GROUP

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Jeremy Voigts

	 
	 
	 
	 
	Name:
Title:
	 
	Jeremy Voigts
Vice President








	
							
	 
	 
	 
	 
	BADGERLAND FINANCIAL, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Kenneth H. Rue

	 
	 
	 
	 
	Name:
Title:
	 
	Kenneth H. Rue
VP - Capital Markets








	
							
	 
	 
	 
	 
	GREENSTONE FARM CREDIT SERVICES, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Curtis Flammini

	 
	 
	 
	 
	Name:
Title:
	 
	Curtis Flammini
Vice President






	
							
	 
	 
	 
	 
	FARM CREDIT OF NEW MEXICO, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Larry Williamson

	 
	 
	 
	 
	Name:
Title:
	 
	Larry Williamson
Regional Vice President






	
							
	 
	 
	 
	 
	YOSEMITE LAND BANK, FLCA

	 
	 
	 
	 

	 
	 
	 
	 
	By:
	 
	/s/ Leonard Van Elderen

	 
	 
	 
	 
	Name:
Title:
	 
	Leonard Van Elderen
President & Chief Executive Officer










Amendment No. 1 to Credit Agreement