Current Report Filing (8-k)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

______________________________

FORM 8-K

___________________________________

CURRENT REPORT

PURSUANT TO SECTION 13 or 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): June 17, 2015

______________________________

DIAMOND FOODS, INC.

(Exact Name of Registrant as Specified in Charter)

______________________________




Delaware	000-51439	20-2556965
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)


600 Montgomery Street, 13th Floor San Francisco, California		94111
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s telephone number, including area code: (415) 445-7444

(Former Name or Former Address, if Changed Since Last Report)

_____________________________

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:



ú	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)



ú	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)



ú	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))



ú	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))



Item 7.01.	Regulation FD Disclosure.

On June 17, 2015, Diamond Foods, Inc. (the "Company") entered into a First Amendment (the "ABL Credit Facility Amendment") to the asset based Credit Agreement among the Company, the lenders and agents party thereto and Wells Fargo Bank, National Association (as Administrative Agent, Swing Line Lender, Syndication Agent, Sole Lead Arranger and Sole Bookrunner). The ABL Credit Facility Amendment eliminates from the events constituting a Change of Control (and consequently an Event of Default) the replacement, under specified circumstances, of a majority of the Company’s Board of Directors. The foregoing description of the ABL Credit Facility Amendment is summary in nature and is qualified in its entirety by reference to the full text of the ABL Credit Facility Amendment, a copy of which is filed as Exhibit 99.1 hereto and incorporated herein by reference.

On June 18, 2015, the Company entered into a First Amendment (the "Credit Agreement Amendment") that amends the Company’s existing Credit Agreement among the Company, the lenders and agents party thereto and Credit Suisse AG, Cayman Islands Branch (as Administrative Agent and Collateral Agent). The Credit Agreement Amendment eliminates from the events constituting a Change of Control (and consequently an Event of Default) the replacement, under specified circumstances, of a majority of the Company’s Board of Directors. The foregoing description of the Credit Agreement Amendment is summary in nature and is qualified in its entirety by reference to the full text of the Credit Agreement Amendment, a copy of which is filed as Exhibit 99.2 hereto and incorporated herein by reference.

By making this voluntary disclosure, the Company does not concede that the information, including the exhibits attached, is “material” for purposes of the Securities Exchange Act of 1934 or otherwise. This information, including the exhibits attached, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, or otherwise subject to the liabilities of that section, and is not incorporated by reference into any filing of Diamond made before or after the date of this report, regardless of any general incorporation language in the filing.



Item 9.01.	Financial Statements and Exhibits.

(d) Exhibits



Exhibit Number	Description
99.1	First Amendment to the Credit Agreement, dated as of June 17, 2015, among Diamond Foods, Inc. the lenders and agents party thereto and Wells Fargo Bank, National Association
99.2	First Amendment to the Credit Agreement, dated as of June 18, 2015, among Diamond Foods, Inc., the lenders and agents party thereto and Credit Suisse AG, Cayman Islands Branch

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.




	DIAMOND FOODS, INC.

Date: June 18, 2015	By:	/s/ Raymond P. Silcock

		Name: Raymond P. Silcock
		Title: Executive Vice President and Chief Financial Officer

EXHIBIT INDEX



Exhibit Number	Description
99.1	First Amendment to the Credit Agreement, dated as of June 17, 2015, among Diamond Foods, Inc. the lenders and agents party thereto and Wells Fargo Bank, National Association
99.2	First Amendment to the Credit Agreement, dated as of June 18, 2015, among Diamond Foods, Inc., the lenders and agents party thereto and Credit Suisse AG, Cayman Islands Branch

Exhibit 99.1

AMENDMENT NO. 1 TO CREDIT AGREEMENT

THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is entered into as of June 17, 2015, by and among the Lenders identified on the signature pages hereof (such Lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a "Lender" and collectively as the "Lenders"), WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such capacity, "Agent") and DIAMOND FOODS, INC., a Delaware corporation ("Borrower").

WHEREAS, Borrower, Agent, and Lenders are parties to that certain Credit Agreement dated as of February 19, 2014 (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement");

WHEREAS, Borrower, Agent and Lenders have agreed to amend the Credit Agreement in certain respects;

NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:

1.Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Credit Agreement.

2. Amendments to Credit Agreement: Subject to the satisfaction of the conditions set forth in Section 5 below, and in reliance upon the representations and warranties of Borrower set forth in Section 6 below, clause (b) of the definition of "Change of Control" set forth in Schedule 1.1 to the Credit Agreement is hereby amended and restated in its entirety as follows:

(b) [Intentionally Omitted]; or

3. Continuing Effect. Except as expressly set forth in Section 2 of this Amendment, nothing in this Amendment shall constitute a modification or alteration of the terms, conditions or covenants of the Credit Agreement or any other Loan Document, or a waiver of any other terms or provisions thereof, and the Credit Agreement and the other Loan Documents shall remain unchanged and shall continue in full force and effect, in each case as amended hereby.

4. Reaffirmation and Confirmation. Borrower hereby ratifies, affirms, acknowledges and agrees that the Credit Agreement and the other Loan Documents represent the valid, enforceable and collectible obligations of Borrower, and further acknowledges that there are no existing claims, defenses, personal or otherwise, or rights of setoff whatsoever with respect to the Credit Agreement or any other Loan Document. Borrower hereby agrees that this Amendment in no way acts as a release or relinquishment of the Liens and rights securing payments of the Obligations. The Liens and rights securing payment of the Obligations are hereby ratified and confirmed by Borrower in all respects.

5. Conditions to Effectiveness.

(a) This Amendment shall become effective upon the satisfaction of each of the following conditions precedent, each in form and substance acceptable to Agent:

(i) Agent shall have received a fully executed copy of this Amendment in form and substance acceptable to Agent, together with such other documents, agreements, opinions and instruments as Agent may require or reasonably request; and

(ii) No Default or Event of Default shall have occurred and be continuing on the date hereof or as of the date of the effectiveness of this Amendment.

6. Representations and Warranties. In order to induce Agent and Lenders to enter into this Amendment, Borrower hereby represents and warrants to Agent and Lenders that, after giving effect to this Amendment:

(a) All representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of this Amendment, in each case as if then made, other than representations and warranties that expressly relate solely to an earlier date;

(b) No Default or Event of Default has occurred and is continuing; and

(c) This Amendment and the Credit Agreement, as modified hereby, constitute legal, valid and binding obligations of Borrower and are enforceable against Borrower in accordance with their respective terms.

7. Miscellaneous.

(a) Expenses. Borrower agrees to pay on demand all Lender Group Expenses of Agent (including, without limitation, the fees and expenses of outside counsel for Agent) in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Credit Agreement as modified hereby.

(b) Governing Law. This Amendment shall be a contract made under and governed by the internal laws of the State of New York. The choice of law and venue and jury trial waiver provisions set forth in Section 13 of the Credit Agreement are incorporated herein by reference and shall apply in all respects to this Amendment.

(c) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Delivery of an executed counterpart

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of this Amendment by facsimile or other electronic delivery shall be equally effective as delivery of an original executed counterpart of this Amendment.

[signature pages follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.

DIAMOND FOODS, INC., a Delaware corporation

By: /s/ Raymond P. Silcock
Name: Raymond P. Silcock
Title: Chief Financial Officer

WELLS FARGO BANK, NATIONAL

ASSOCIATION, as Agent and as a Lender

By: /s/ Carlos Valles
Name: Carlos Valles
Title: Vice President

SUNTRUST BANK, as a Lender

By: /s/ Jeffrey J. Gazo
Name: Jeffrey J. Gazo
Title: Vice President

BANK OF MONTREAL, as a Lender

By: /s/ Quinn Heiden
Name: Quinn Heiden
Title: Director

CONSENT AND REAFFIRMATION

Kettle Foods, Inc., an Oregon corporation, as a Guarantor hereby (i) acknowledges receipt of a copy of the foregoing Amendment No. 1 to Credit Agreement (terms defined therein and used, but not otherwise defined, herein shall have the meanings assigned to them therein); (ii) consents to Borrower's execution and delivery thereof; and (iii) affirms that nothing contained therein shall modify in any respect whatsoever any Loan Documents to which the undersigned is a party and reaffirms that each such Loan Document is and shall continue to remain in full force and effect. Although Guarantor has been informed of the matters set forth herein and has acknowledged and agreed to same, Guarantor understands that Agent and Lenders have no obligation to inform Guarantor of such matters in the future or to seek Guarantor's acknowledgment or agreement to future consents, amendments or waivers, and nothing herein shall create such a duty.

KETTLE FOODS, INC.,
an Oregon corporation, as a Guarantor

By: /s/ Raymond P. Silcock
Name: Raymond P. Silcock
Title: Chief Financial Officer

Exhibit 99.2

EXECUTION VERSION

AMENDMENT NO. 1 dated as of June 18, 2015 (this “Amendment”), to the CREDIT AGREEMENT dated as of February 19, 2014, (the “Credit Agreement”), among DIAMOND FOODS, INC., a Delaware corporation (the “Borrower”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent.

WHEREAS, The Borrower has requested that the Credit Agreement be amended to provide for certain changes to the definition of Change of Control as set forth herein, and the Lenders are willing to amend the Credit Agreement on the terms and subject to the conditions set forth herein;

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. Defined Terms. Capitalized terms used but not defined herein (including in the recitals hereto) shall have the meanings given to them in the Credit Agreement (as amended hereby).

SECTION 2. Amendment to the Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 4 hereof and in reliance on the representations and warranties set forth in Section 3 hereof, clause (b) of the definition of the term “Change of Control” set forth in Section 1.01 of the Credit Agreement is hereby deleted in its entirety and replaced with the following:

“(b) [Reserved]; or”

SECTION 3. Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Borrower and each other Loan Party represent and warrant to each of the Lenders and the Administrative Agent that (a) this Amendment has been duly authorized, executed and delivered by the Borrower and each other Loan Party, and this Amendment constitutes a legal, valid and binding obligation of the Borrower and each other Loan Party, enforceable against the Borrower and each other Loan Party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights generally and by general principles of equity; (b) after giving effect to this Amendment (and the payment of fees and expenses incurred in connection therewith), the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or in any other Loan Document shall be true and correct in all material respects (or, in the case of any such representation or warranty that is qualified by materiality, in all respects) on and as of the Amendment Effective Date with the same effect as though made on and as of such date, except to the extent that such representations and warranties relate to an earlier date; and (c) as of the Amendment Effective Date, after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

SECTION 4. Amendment Effectiveness. The effectiveness of the Amendment shall be subject to the satisfaction (or waiver by the Lenders party hereto), on or prior to June 18, 2015, of the following conditions (the first Business Day on which all conditions are so satisfied or waived, the “Amendment Effective Date”):

(a) the Administrative Agent shall have received counterparts of this Amendment that, when taken together, bear the signatures of (A) the Borrower and the Guarantors, (B) the Administrative Agent and (C) the Required Lenders (it being understood that the delivery of such counterpart shall be irrevocable);

(b) the representations and warranties set forth in Section 3 above shall be true and correct as of the Amendment Effective Date;

(c) each Lender that shall have consented to this Amendment on or prior to the Amendment Effective Date shall receive, prior to or simultaneously with the effectiveness of this Amendment, payment of a consent fee equal to 0.025% of the principal amount of Loans held by such Lender; and

(d) the Administrative Agent shall have received payment of all invoiced fees and other amounts due and payable on or prior to the Amendment Effective Date, including reimbursement or payment of all out‑of‑pocket expenses (including the reasonable fees, disbursements and other charges of Cravath, Swaine & Moore LLP) required to be reimbursed or paid by the Borrower under any Loan Document or otherwise in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith.

SECTION 5. Reaffirmation of Guarantee and Security. The Borrower and each other Loan Party, by its signature hereto, hereby (a) agrees that, notwithstanding the effectiveness of this Amendment, each Guaranty and each of the Collateral Documents continue to be in full force and effect and (b) affirms and confirms its guarantee of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral to secure such Obligations, all as provided in the Guaranties and the Collateral Documents as originally executed, and acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, such Obligations under the Credit Agreement and the other Loan Documents, as amended by this Amendment.

SECTION 6. 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 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 any Loan Party 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. After the Amendment Effective Date, any reference to the Credit Agreement in any Loan Document, and the terms “this Agreement”, “herein”, “hereunder”, “hereto”, “hereof”, “hereby” and words of similar import in the Credit Agreement, shall, unless the context otherwise requires, mean the Credit Agreement as modified hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. This Amendment shall not extinguish the Obligations for the payment of money outstanding under the Credit Agreement or discharge or release the Lien of any Loan Document or any other security therefor or any guarantee thereof, and the Liens and security interests in favor of the Administrative Agent for the benefit of the Secured Parties securing payment of the Obligations are in all respects continuing and in full force and effect with respect to all Obligations. Nothing herein contained shall be construed as a substitution or novation, or a payment and reborrowing, or a termination, of the Obligations outstanding under the Credit Agreement or instruments guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith.

SECTION 7. Acknowledgement and Consent. Each Loan Party hereby acknowledges that it has read this Amendment and consents to the terms hereof and further hereby affirms, confirms and agrees that (a) notwithstanding the effectiveness of this Amendment, the obligations of such Loan Party under each of the Loan Documents to which it is a party shall not be impaired and each of the Loan Documents to which such Loan Party is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects, in each case, as amended hereby; and (b) its Guarantee of the Obligations, and the pledge of and/or grant of a security interest in its assets as Collateral to secure the Obligations, all as and to the extent provided in the Security Documents as originally executed except to the extent amended hereby, shall continue in full force and effect in respect of, and to secure, the Obligations and shall accrue to the benefit of the Secured Parties. Each Lender that delivers an executed counterpart of this Amendment hereby consents to this Amendment and the transactions contemplated thereby.

SECTION 8. Expenses. The Borrower agrees to pay on demand all expenses of the Administrative Agent (including the reasonable fees, disbursements and other charges of Cravath, Swaine & Moore LLP) required to be reimbursed or paid by the Borrower under any Loan Document or otherwise in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Credit Agreement as modified hereby.

SECTION 9. Tax Matters. From and after the effective date of the Amendment, the Borrower shall indemnify the Administrative Agent, and hold it harmless from, any and all losses, claims, damages, liabilities and related expenses, including Taxes and the fees,

charges and disbursements of any counsel for any of the foregoing, arising in connection with the Administrative Agent’s treating, for purposes of determining withholding Taxes imposed under FATCA, the Loans as qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

SECTION 10. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by facsimile transmission, “.pdf” or similar electronic format shall be as effective as delivery of a manually signed counterpart of this Agreement.

SECTION 11. Governing Law; Jurisdiction; Etc. The provisions of Sections 10.14 and 10.15 of the Credit Agreement shall apply to this Amendment, mutatis mutandis.

SECTION 12. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

[Remainder of this page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their duly authorized officers, all as of the date and year first above written.



DIAMOND FOODS, INC.
by
	/s/ Raymond P. Silcock
	Name: Raymond P. Silcock
	Title: Chief Financial Officer

[Signature Page to Amendment No. 1]



KETTLE FOODS, INC.
by
	/s/ Raymond P. Silcock
	Name: Raymond P. Silcock
	Title: Chief Financial Officer

[Signature Page to Amendment No. 1]



CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent,
by
	/s/ Judith Smith
	Name: Judith Smith
	Title: Authorized Signatory

by
	/s/ Sean MacGregor
	Name: Sean MacGregor
	Title: Authorized Signatory