exv4w1



 





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



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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 forth in Section 5 below, the Noteholders hereby (1) waive
the Existing Defaults and (2) agree that the Existing Sharing Period, to the extent it was caused
by the Existing Defaults or the Credit Agreement Defaults, shall end as of its commencement date.
The foregoing waiver and agreement shall be limited precisely as written and shall relate solely to
the Note Agreement and the Intercreditor Agreement, as applicable, 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) Section 10.1 of the Note
Agreement as of the end of any other month or any other Fiscal



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Quarter, as applicable, or in any other instance or respect, or (ii) any other term, provision
or condition of the Note Agreement or the Intercreditor Agreement, (b) constitute an agreement to
end or waive any other Sharing Period (as defined in the Intercreditor Agreement) which has
commenced or which commences at any time hereafter, whether as a result of any Event of Default
under Section 10.1 of the Note Agreement as of the end of any other fiscal month or any other
Fiscal Quarter, as applicable, or otherwise, or in any other instance or respect, (c) constitute a
waiver of any Default or Event of Default other than the Existing Defaults, or (d) 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, any Note or the
Intercreditor Agreement.



     SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



     To induce the Noteholders to execute and deliver this Amendment, the Company represents and
warrants to the Noteholders that (a) except for the Existing Defaults, no Default or Event of
Default has occurred and is continuing and (b) 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 the waiver to the
Credit Agreement and agreement of the Required Lenders referred to in Section 3(b) below, other
than a fee not in excess of the amount of $100,000 in the aggregate to all lenders under the
Credit Agreement.



     SECTION 5. CONDITIONS TO EFFECTIVENESS OF LIMITED WAIVER AND AMENDMENTS.



     The amendments in Section 1 of this Amendment and the limited waiver and agreement in Section
2 of this Amendment shall become effective as of May 31, 2007 if each and every one of the
following conditions shall have been satisfied:




     (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 a counterpart or, if satisfactory to the
Noteholders, certified or other copies of a waiver to the Credit Agreement waiving the
Credit Agreement Defaults and an agreement by the Required Lenders (as defined in the Credit
Agreement) that the Existing Sharing Period, to the extent it was caused by the Existing
Defaults or Credit Agreement Defaults, shall end as of its commencement date, duly executed
and delivered by the party or parties thereto, substantially in the forms attached hereto as
Exhibit A and Exhibit B, respectively, and 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; and




     (c) The holders shall have received payment of the Amendment Fee described in Section 6
hereof.



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     SECTION 6. AMENDMENT FEE.



     In consideration of the execution and delivery of this Amendment 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 “Amendment Fee”) in an aggregate amount
for all holders equal to $100,000.



     SECTION 7. MISCELLANEOUS.



     7.1. Reference to and Effect on Note Agreement and Notes; No Course of Dealing. Upon the
effectiveness of the amendments in Section 1 hereof and the limited waiver in Section 2 hereof,
each reference to the Note Agreement and the Notes in any other document, instrument or agreement
shall mean and be a reference to the Note Agreement and the Notes as modified by this Amendment.
Except as specifically set forth in Sections 1 and 2 hereof, each of the Note Agreement and the
Notes 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.



     7.2. Expenses. The Company hereby confirms its obligations under the Note Agreement, whether
or not the transactions hereby contemplated are consummated, to pay, 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 7.2 shall
survive transfer by any Noteholder of any Note and payment of any Note.



     7.3. 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).



     7.4. 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.



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     7.5. Termination. This Limited Waiver shall terminate and cease to be in force and effect if
the conditions set forth in Section 3 hereof have not been satisfied by 5:00 p.m. Central Time on
June 6, 2007.



[signature page follows]





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	 	JOHN B. SANFILIPPO & SON, INC.


 	 
	 	By:  	/s/ Herbert J. Marros
 	 
	 	 	Its: 	 Controller 	 
	 	 	 	 
	 



	 	 	 	 
	Accepted and Agreed to:



THE PRUDENTIAL INSURANCE COMPANY

OF AMERICA


 	 
	By:  	/s/ Julia D. Buthman
 	 
	 	Vice President 	 
	 	 	 	 
	 
	PRUCO LIFE INSURANCE COMPANY


 	 
	By:  	/s/ Julia D. Buthman
 	 
	 	Vice President 	 
	 	 	 	 
	 
	AMERICAN SKANDIA LIFE ASSURANCE

CORPORATION




	By:  	Prudential Investment Management, Inc.,

as investment manager


 	 
	By:  	/s/ Julia D. Buthman
 	 
	 	 	Vice President 	 
	 	 	 	 



 









 






	 	 	 	 	 
	PRUDENTIAL RETIREMENT INSURANCE

   AND ANNUITY COMPANY




	By:  	Prudential Investment Management, Inc.,

as investment manager


 	 
	By:  	/s/ Julia D. Buthman
 	 
	 	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/ Julia D. Buthman
 	 
	 	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/ Julia D. Buthman
 	 
	 	Vice President 	 
	 	 	 	 



 









 





	 	 	 	 	 
	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/ Julia D. Buthman
 	 
	 	Vice President 	 
	 	 	 	 
	 
	GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY


 	 
	By:  	/s/ Eve Hampton
 	 
	 	Title: 	 VP, Investments 	 
	 
	 	 	 
	By:  	/s/ J.G. Lowery
 	 
	 	Title: 	 AVP, Investments 	 
	 	 	 	 
	 
	THE GREAT-WEST LIFE ASSURANCE COMPANY


 	 
	By:  	/s/ B.R. Allison
 	 
	 	Title: 	 Authorized Signatory 	 
	 
	 	 	 
	By:  	/s/ D.B.E. Ayers
 	 
	 	Title: 	 Authorized Signatory 	 
	 	 	 	 
	 
	UNITED OF OMAHA LIFE INSURANCE COMPANY


 	 
	By:  	/s/ Curtis R. Caldwell
 	 
	 	Title: 	 Vice President 	 
	 	 	 	 



 









 






	 	 	 	 	 
	JEFFERSON PILOT FINANCIAL INSURANCE COMPANY


 	 
	By:  	/s/ Frank G. LaTorraca
 	 
	 	Title: 	 Vice President 	 
	 	 	 	 



 









 






	 	 	 	 	 



EXHIBIT A




WAIVER AND CONSENT UNDER CREDIT AGREEMENT




(See attached)




 









 








EXHIBIT B




AGREEMENT TO END SHARING PERIOD




(See attached)