CONSENT AND ASSUMPTION
AGREEMENT
THIS
CONSENT AND ASSUMPTION AGREEMENT (this “ Agreement
”), dated to be effective as of December 31, 2008, by
and between BOB EVANS FARMS, INC., an Ohio corporation (“
Bob Evans ”), successor by merger to BEF Holding Co.,
Inc., a Delaware corporation (the “ Existing Borrower
”), and JPMorgan Chase Bank, N.A. (“ Bank
”).
WHEREAS,
Existing Borrower has executed and delivered to Bank a Line of
Credit Note dated September 30, 2008 in the aggregate
principal amount of $30,000,000 (the “ Note ”),
which Note is guaranteed by a Continuing Guaranty dated
September 30, 2008 by Bob Evans Farms, Inc., a Delaware
corporation, and by Continuing Guaranty dated September 30,
2008 by Mimi’s Café, LLC, a Delaware limited liability
company (each a “ Guaranty ”, and collectively
with the Note, the “ Loan Documents
”).
WHEREAS,
concurrently with the execution of this Agreement, Existing
Borrower and certain of its subsidiaries, including Bob Evans, will
undergo a reorganization whereby the Existing Borrower will be
merged with and into its wholly-owned subsidiary, Bob Evans (the
“ Reorganization ”);
WHEREAS,
Bob Evans has requested that Bank consent to the Reorganization and
waive any default or event of default resulting from the
Reorganization under the Loan Documents;
WHEREAS,
in connection with the Reorganization, Bob Evans, as successor to
Existing Borrower, will become the “Borrower” under the
Note and will assume all obligations thereunder;
WHEREAS,
Bob Evans wishes to acknowledge and confirm that the obligations,
liabilities and indebtedness of the Existing Borrower under the
Note continue in full force and effect, unimpaired and
undischarged, as provided herein;
NOW,
THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1.
Unless otherwise defined herein, capitalized terms used herein
shall have the respective meanings assigned to them in the
Note.
2.
Bank hereby consents to the transactions contemplated by the
Reorganization and waives any defaults or events of default which
may have resulted from the Reorganization under the Loan
Documents.
3.
Bob Evans, as successor by merger to the Existing Borrower, hereby
acknowledges that (i) it has received and reviewed copies of
the Loan Documents and shall assume and agree to perform all
covenants, agreements, rights, obligations and liabilities of
the
Existing
Borrower under the Note from and after the date hereof, and
(ii) all of its obligations, liabilities and indebtedness
under the Note shall remain in full force and effect on a
continuous basis after giving effect to the Reorganization and this
Agreement.
4.
Bob Evans represents and warrants: (i) that the
representations and warranties contained in the Note as they relate
to Bob Evans, as the Borrower, are true and correct on the date
hereof; (ii) that there are no defenses, offsets or
counterc
|
