Exhibit 10.1
Execution Version
FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT AND RESIGNATION AND APPOINTMENT
AGREEMENT
This First Amendment to the Credit
Agreement (as defined below) and Resignation and Appointment
Agreement (this “ Amendment ”) dated as of
August 5, 2009, is by and among B&G Foods, Inc. (the
“ Borrower ”), each Lender (as defined below)
party hereto, the Guarantors, Lehman Commercial Paper Inc. (“
Lehman ”), a debtor and debtor in possession under
chapter 11 of the Bankruptcy Code (defined below) acting alone or
through one or more of its branches as the Administrative Agent (in
such capacity, the “ Existing Agent ”), Swing
Line Lender and as a Revolving Credit Lender and Credit Suisse, as
the successor Administrative Agent (in such capacity, the “
Successor Agent ”) and successor Swing Line
Lender. Defined terms in the Credit Agreement have the same
meanings where used herein, unless otherwise defined.
RECITALS
WHEREAS, the Borrower, the several
banks and other financial institutions or entities from time to
time party thereto (the “ Lenders ”), and the
Existing Agent have entered into the Amended and Restated Credit
Agreement dated as of February 23, 2007 (as amended, restated,
supplemented or otherwise modified, the “ Credit
Agreement ”);
WHEREAS, the Borrower has requested
that the Credit Agreement be amended to, among other things,
provide for Extended Revolving Credit Commitments, which Extended
Revolving Credit Commitments and any borrowings of Extended
Revolving Credit Loans thereunder, will permanently reduce in full
all outstanding Existing Revolving Credit Commitments and prepay in
full all outstanding Existing Revolving Credit Loans, in each case,
on the First Amendment Effective Date;
WHEREAS, each existing Lender with a
Revolving Credit Commitment or outstanding Revolving Credit Loans
(an “ Existing Revolving Credit Lender ”) that
executes and delivers a signature page to this Amendment
specifically in the capacity of an “Extended Revolving Credit
Lender” (each, together with each Additional Lender (as
defined below), an “ Extended Revolving Credit Lender
”) will be deemed on the First Amendment Effective Date to
have made a commitment to (a) maintain an Extended Revolving
Credit Commitment in an aggregate principal amount of no less than
(or, if so indicated on such signature page and agreed to by
the Successor Agent, such aggregate principal amount in excess of)
the aggregate principal amount of such Existing Revolving Credit
Lender’s existing Revolving Credit Commitment immediately
prior to the First Amendment Effective Date (the “
Existing Revolving Credit Commitment ”) and
(b) from time to time make Extended Revolving Credit Loans
thereunder as provided in the Credit Agreement. Each other
Person that executes and delivers a signature page to this
Amendment specifically in the capacity of an “Extended
Revolving Credit Lender” (an “ Additional Lender
”) will be deemed on the First Amendment Effective Date to
have made a commitment to maintain an Extended Revolving Credit
Commitment in an aggregate principal amount as set forth on such
signature page and to, from time to time, make Extended
Revolving Credit Loans thereunder as provided for in the Credit
Agreement. Each Existing Revolving Credit Lender who executes
and delivers this Amendment solely in the capacity of an Existing
Revolving Credit Lender shall be deemed to have agreed to this
Amendment, but will not be deemed by virtue of such execution and
delivery to have undertaken any commitment to become an Extended
Revolving Credit Lender;
WHEREAS, on October 5, 2008,
the Existing Agent commenced a voluntary case under chapter 11 of
title 11 of the United States Code (the “ Bankruptcy
Code ”) and on such date, pursuant to
Section 363(a) of the Bankruptcy Code,
an automatic stay went into effect that prohibits actions to
interfere with, or obtain possession or control of, the Existing
Agent’s property or to collect or recover from the Existing
Agent any debts or claims that arose before such date;
WHEREAS, the Existing Agent desires
to resign as Administrative Agent and Swing Line Lender under the
Credit Agreement and the other Loan Documents;
WHEREAS, the Borrower and the
Required Lenders desire to ratify the appointment of Credit Suisse
as successor Administrative Agent and successor Swing Line Lender
under the Credit Agreement and the other Loan Documents, and the
Successor Agent wishes to accept such appointment; and
WHEREAS, the Borrower has requested
that the Lenders also agree to amend certain provisions of the
Credit Agreement as more fully set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereto hereby agree as
follows:
1.
Amendments to the Credit Agreement . Effective on and after
the First Amendment Effective Date, the Credit Agreement is hereby
amended as follows:
(a)
Section 1 of the Credit Agreement is hereby amended by adding
the following definitions in proper alphabetical
sequence:
“
Default Excess ”: means, as at the date of computation
thereof with respect to any Defaulting Lender, the sum of the
amounts of defaulted Revolving Credit Loans and defaulted payments
of such Lender at such date.
“
Defaulting Lender ”: any Revolving Credit Lender that
has failed to fund any portion of its Revolving Credit Loans,
participations in Letters of Credit or participations in Swing Line
Loans within one Business Day immediately succeeding the date
required to be funded by it hereunder, or any Revolving Credit
Lender that has, as determined by the Administrative Agent
(a) notified the Borrower, the Administrative Agent, the
Issuing Bank, the Swing Line Lender or any Revolving Credit Lender
in writing that it does not intend to comply with any or all of its
funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other agreements
in which it commits to extend credit, (b) failed, within three
Business Days after a request by the Administrative Agent, to
confirm that it will comply with the terms of this Agreement
relating to its obligations to fund prospective Revolving Credit
Loans, participations in then outstanding Letters of Credit and
participations in then outstanding Swing Line Loans,
(c) otherwise failed to pay over to the Administrative Agent
or any other Revolving Credit Lender any other amount required to
be paid by it hereunder within one Business Day of the date when
due, or (d) (i) become or is insolvent or has a parent
company that has become or is insolvent, (ii) become the
subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or
appointment or has a parent company that has become the subject of
a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment
or (iii) consummated or entered into a commitment to
consummate a forced liquidation, merger, sale of assets or
other
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transaction
resulting in a change of ownership or operating control of such
Revolving Credit Lender supported in whole or in part by
guaranties, assumption of liabilities or other comparable credit
support of (including without limitation the nationalization or
assumption of ownership or operating by) any Governmental Authority
and either the Administrative Agent or the Required Lenders have
concluded (in their respective good faith judgment) that any such
event described in this sub-clause (iii) increases the risk
that such Person will fail to fund any portion of its Revolving
Credit Loans, participations in Letters of Credit or participations
in Swing Line Loans within one Business Day of the date required to
be funded by it hereunder.”
“ Existing Revolving Credit
Lender ”: each Lender with a Revolving Credit Commitment
or outstanding Revolving Credit Loans immediately prior to the
First Amendment Effective Date.
“ Existing Revolving Credit
Loans ”: each Revolving Credit Loan made by an Existing
Revolving Credit Lender that is outstanding immediately prior to
the First Amendment Effective Date.
“ Extended Commitment Fee
Rate : ½ of 1% per annum.
“ Extended Revolving Credit
Commitment ”: as to any Lender executing the First
Amendment specifically in the capacity of an Extended Revolving
Credit Lender, the obligation of such Lender to make Extended
Revolving Credit Loans or participate in Swing Line Loans and
participate in Letters of Credit on or after the First Amendment
Effective Date in an aggregate principal and/or face amount not to
exceed the amount set forth under its signature to the First
Amendment to the extent accepted by the Successor Agent or in the
Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant
to the terms hereof.
“ Extended Revolving Credit
Commitment Period ”: the period from and including the
First Amendment Effective Date to the Extended Revolving Credit
Termination Date.
“ Extended Revolving Credit
Lender ”: each Lender with an Extended Revolving
Credit Commitment or outstanding Extended Revolving Credit Loans on
or after the First Amendment Effective Date.
“ Extended Revolving Credit
Loans ”: each Revolving Credit Loan made by an Extended
Revolving Credit Lender on or after the First Amendment Effective
Date.
“ Extended Revolving Credit
Termination Date ”: February 23, 2013, unless
the Senior Notes shall not have been repaid, redeemed or refinanced
prior to April 1, 2011, in which case the Extended Revolving
Credit Termination Date shall be April 1, 2011.
“ First Amendment
”: the First Amendment to this Agreement and
Resignation and Appointment Agreement, dated of August 5,
2009.
“ First Amendment Effective
Date ”: the date on which the First Amendment becomes
effective as described in the First Amendment.
(b)
Section 1 of the Credit Agreement is hereby amended by
amending and restating in their entirety the definitions set forth
below:
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“ Applicable Margin
”: (a) with respect to the Revolving Credit Loans,
2.00% in the case of Base Rate Loans and 3.00% in the case of
Eurodollar Loans and (b) with respect to the Tranche C Term
Loans, 1.00% in the case of Base Rate Loans and 2.00% in the case
of Eurodollar Loans.
“ Base Rate
”: for any day, a rate per annum equal to the greatest
of (a) the Prime Rate in effect on such day,
(b) the Federal Funds Effective Rate in effect on such day
plus ½ of 1% and (c) the Eurodollar Rate for a one
month Interest Period on such day (or if such day is not a Business
Day, the immediately preceding Business Day) plus 1%;
provided that, for the avoidance of doubt, the Eurodollar
Rate for any day shall be based on the rate determined on such day
at approximately 11 a.m. (London time) by reference to the
British Bankers’ Association Interest Settlement Rates for
deposits in dollars (as set forth by any service selected by the
Administrative Agent that has been nominated by the British
Bankers’ Association as an authorized vendor for the purpose
of displaying such rates) on such day. For purposes
hereof: “ Prime Rate ” shall mean the rate
of interest per annum announced from time to time by Credit Suisse
(or any successor to Credit Suisse in its capacity as
Administrative Agent) as its prime commercial lending rate in
effect at its principal office in New York City. The Prime Rate is
a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer.
“ Eurodollar Base Rate
”: with respect to any Eurodollar Loan, the rate per annum
determined by the Administrative Agent, at approximately
11:00 a.m. (London time) on the date which is two Business
Days prior to the beginning of the relevant Interest Period (as
specified in the applicable Borrowing notice) by reference to the
British Bankers’ Association Interest Settlement Rates for
deposits in Dollars (as set forth by any service which has been
nominated by the British Bankers’ Association as an
authorized information vendor for the purpose of displaying such
rates) for a period equal to such Interest Period, provided that,
to the extent that an interest rate is not ascertainable pursuant
to the foregoing provision of this definition, the
“Eurodollar Base Rate” shall be the interest rate per
annum, determined by the Administrative Agent to be the average of
the rates per annum at which deposits in Dollars are offered for
such relevant Interest Period to major banks in the London
interbank market in London, England by the Administrative Agent at
approximately 11:00 a.m. (London time) on the date which is
two Business Days prior to the beginning of such Interest
Period.
“ Lender ”: each
Existing Revolving Credit Lender, each Extended Revolving Credit
Lender, each Tranche C Term Loan Lender and each other bank,
financial institution or other entity from time to time party to
this Agreement as a Lender.
“ Revolving Credit
Loans ”: Existing Revolving Credit Loans and
Extended Revolving Credit Loans.
(c)
Section 1 of the Credit Agreement is further amended by making
the following changes:
(i)
The definition of “ Adjustment Date ” is hereby
deleted in its entirety.
(ii)
The definition of “Eurodollar Rate” is hereby amended
by deleting the phrase “(rounded upward to the nearest
1/100 th of 1%)” immediately after the words
“following formula”.
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(iii)
The definition of “ Interest Period ” is hereby
amended by deleting the words “one, two,” in clause
(b) thereof, in the first instance such words
appear.
(iv)
The definition of “ Net Cash Proceeds ” is
hereby amended by inserting the words “or equity”
immediately after the phrase “issuance or sale of debt”
and immediately prior to the word “securities” in
clause (b) thereof.
(v)
The definition of “ Pricing Grid ” is hereby
deleted in its entirety.
(vi)
The last sentence of the definition of “ Revolving Credit
Commitment ” is hereby amended and restated in its
entirety as follows: “The aggregate amount of Total
Revolving Credit Commitments as of the First Amendment Effective
Date is $25,000,000.”
(d)
Section 2.4 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“
Revolving Credit Commitments; Swing Line Commitment .
(a) Subject to the terms and conditions hereof, each
Extended Revolving Credit Lender severally agrees to make Extended
Revolving Credit Loans to the Borrower from time to time during the
Extended Revolving Credit Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to
such Lender’s Revolving Credit Percentage of the L/C
Obligations and Swing Line Loans then outstanding, does not exceed
the amount of such Lender’s Extended Revolving Credit
Commitment. During the Extended Revolving Credit Commitment
Period the Borrower may use the Extended Revolving Credit
Commitments by borrowing, prepaying the Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof. The Extended Revolving Credit Loans
may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the Administrative Agent
in accordance with Sections 2.5 and 2.11, provided that no
Extended Revolving Credit Loan shall be made as a Eurodollar Loan
after the day that is one month prior to the Extended Revolving
Credit Termination Date. Any Existing Revolving Credit Loans
outstanding under the Credit Agreement immediately prior to the
First Amendment Effective Date shall continue to be outstanding and
be deemed to be Extended Revolving Credit Loans made hereunder
subject to the terms and conditions hereof; provided that no
Existing Revolving Credit Lender or Extended Revolving Credit
Lender shall be entitled to the indemnification set forth in
Section 2.19 for any losses or expenses that may be incurred
as a result of such conversion into Extended Revolving Credit Loans
on the First Amendment Effective Date.
(b)
Subject to the terms and conditions hereof, the Swing Line Lender
agrees to make available a portion of the credit otherwise
available to the Borrower under the Extended Revolving Credit
Commitments from time to time during the Extended Revolving Credit
Commitment Period by making swing line loans (“ Swing Line
Loans ”) to the Borrower; provided that
(i) the aggregate principal amount of Swing Line Loans
outstanding at any time shall not exceed the Swing Line Commitment
then in effect (notwithstanding that the Swing Line Loans
outstanding at any time, when aggregated with the Swing Line
Lender’s other outstanding Extended Revolving Credit Loans
hereunder, may exceed the Swing Line Commitment then in effect) and
(ii) the Borrower shall not request, and the Swing Line Lender
shall not make, any Swing Line Loan if, after giving effect to the
making of such Swing Line Loan, the aggregate amount of the
Available Revolving Credit Commitments
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would be less
than zero. During the Extended Revolving Credit Commitment
Period, the Borrower may use the Swing Line Commitment by
borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swing Line Loans shall be Base
Rate Loans only. Any Swing Line Loans outstanding under the
Credit Agreement immediately prior to the First Amendment Effective
Date shall continue to be outstanding and be deemed to be Swing
Line Loans made hereunder, subject to the terms and conditions
hereof.
(c)
The Borrower shall repay all outstanding (1) Extended
Revolving Credit Loans on the Extended Revolving Credit Termination
Date and (2) Swing Line Loans on the earlier of (x) the
Extended Revolving Credit Termination Date and (y) the date
that is seven (7) Business Days after such Swing Line Loan is
made.”
(e)
Sections 2.5(a) and (b) of the Credit Agreement are
hereby amended such that the phrase “Revolving Credit
Commitment Period” is replaced with “Extended Revolving
Credit Commitment Period” in each instance it is used
therein.
(f)
Section 2.6(a) is hereby amended such that the phrase
“Revolving Credit Termination Date” shall be replaced
with “Extended Revolving Credit Termination Date” in
each instance it is used therein.
(g)
Section 2.7(a) is hereby amended and restated in its
entirety as follows:
(a)
The Borrower agrees to pay to the Administrative Agent for the
account of each Extended Revolving Credit Lender which is not a
Defaulting Lender a commitment fee for the period from and
including the First Amendment Effective Date to the last day of the
Extended Revolving Credit Commitment Period, computed at the
Extended Commitment Fee Rate on the average daily amount of the
Available Revolving Credit Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on
the last Business Day of each March, June, September and
December and on the Extended Revolving Credit Termination Date
(or any earlier date of termination of the Extended Revolving
Credit Commitments), commencing on the first of such dates to occur
after the First Amendment Effective Date.
(h)
Section 2.14 is hereby amended by deleting the following
language at the end of the first sentence thereof:
“, except that, with respect
to Base Rate Loans the rate of interest on which is calculated on
the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed”
(i)
Section 2.22 is hereby amended and restated in its entirety as
follows:
“2.22.
Substitution of Lenders . Upon the receipt by the
Borrower from any Lender of a claim under Section 2.17, 2.18
or 2.20, or notice such Lender has become a Defaulting Lender, the
Borrower may: (a) request one more of the other Lenders to
acquire and assume all or part of such Lender’s Loans,
Reimbursement Obligations and Revolving Credit Commitment; or
(b) replace such Lender by designating another Lender or a
financial institution that is willing to acquire such Loans and
Reimbursement Obligations and assume such Revolving Credit
Commitment; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default
(other than, in the case of the replacement of a Defaulting Lender,
as a result of the failure of the Borrower to satisfy its cash
collateralization obligations pursuant to Section 2.31(a)(ii))
shall have occurred and be continuing at the time of such
replacement, (iii) the Borrower shall repay (or the
replacement
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bank or institution shall purchase,
at par) all Loans and Reimbursement Obligations, accrued interest,
fees and other amounts owing to such replaced Lender prior to the
date of replacement (including all amounts then owing to such
replaced Lender pursuant to Sections 2.17, 2.18 and 2.20),
(iv) the Borrower shall be liable to such replaced Lender
under Section 2.19 if any Eurodollar Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the
last day of the Interest Period relating thereto, (v) the
replacement bank or institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, the Swing Line
Lender and the Issuing Lender, and (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the
provisions of Section 9.6 ( provided that the Borrower
or replacement Lender shall be obligated to pay the registration
and processing fee except in the case of a Defaulting
Lender).”
(j)
Section 2 is hereby amended by adding the following as a new
Section 2.31:
“2.31. Defaulting
Lenders . Notwithstanding any provision of
this Agreement to the contrary, if any Revolving Credit Lender
becomes a Defaulting Lender, then the following provisions shall
apply for so long as such Revolving Credit Lender is a Defaulting
Lender:
(a) &
