Exhibit 10.2
Execution
Copy
THIRD AMENDMENT TO REVOLVING
CREDIT AGREEMENT
Dated as of December 22, 2005
This THIRD AMENDMENT TO REVOLVING
CREDIT AGREEMENT (this “ Amendment ”) is
among B&G FOODS, INC. , a Delaware corporation (the
“ Borrower ”), the several banks and other
financial institutions or entities from time to time party to the
Credit Agreement as lenders (the “ Lenders ”),
and LEHMAN COMMERCIAL PAPER INC. , as administrative agent
for the Lenders (in such capacity, the “ Administrative
Agent ”).
PRELIMINARY
STATEMENTS:
A.
The Borrower, the Lenders, the
Administrative Agent and Lehman Brothers Inc., as Arranger, The
Bank of New York, as Documentation Agent, and Bank of America,
N.A., successor by merger to Fleet National Bank, as Syndication
Agent, entered into a Revolving Credit Agreement, dated as of
October 14, 2004, as amended by the First Amendment dated as
of March 30, 2005 and by the Second Amendment dated as of
September 9, 2005 (such Revolving Credit Agreement as so
amended prior to the date hereof and together with all Annexes,
Exhibits and Schedules thereto, the “ Credit Agreement
”; capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit
Agreement); and
B.
The Borrower has requested that the
Lenders amend the Credit Agreement in connection with the
contemplated purchase of certain assets of the Grandma’s
Molasses business by the Borrower or a Subsidiary of the Borrower
(the “ Grandma’s Acquisition ”) to, among
other things, provide for a term loan in an aggregate principal
amount of $25,000,000 and reduce the Total Revolving Credit
Commitment to $25,000,000, and the Lenders have agreed to such
proposed amendments, subject to the other terms and conditions
contained herein.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Amendments to Credit
Agreement .
Subject
to the satisfaction of the conditions set forth in Section 2
hereof, the Credit Agreement is amended as follows:
(a)
Section 1.1
of the Credit Agreement is hereby amended by inserting the
following new definitions in the appropriate alphabetical
position:
“ Commitment
”: with respect to any Lender, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such
Lender.
“ Facility
”: each of (a) the Term Loan Commitments and the
Term Loans made thereunder (the “ Term Loan Facility
”) and (b) the Revolving Credit Commitments and the
extensions of credit made thereunder (the “ Revolving
Credit Facility ”).
“ Majority Facility
Lenders ”: with respect to the Term Loan Facility,
the holders of more than 50% of the aggregate unpaid principal
amount of the Term Loans outstanding and with respect to the
Revolving Credit Facility, prior to any termination of
the Revolving Credit Commitments,
the holders of more than 50% of the Total Revolving Credit
Commitments and thereafter, of the Total Revolving Extensions of
Credit.
“ Molasses Acquisition
”: the acquisition by the Borrower or a Subsidiary of
the Borrower of certain assets of the Grandma’s Molasses
business.
“ Revolving Credit
Facility ”: as defined in the definition of
“Facility” in this Section 1.1.
“ Revolving Credit
Lender ”: each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit
Loans.
“ Term Loan
”: as defined in Section 2.1.
“ Term Loan Commitment
”: as to any Term Loan Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the
heading “Term Loan Commitment” opposite such
Lender’s name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, 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. The original aggregate amount of the Term Loan
Commitments is $25,000,000.
“ Term Loan Facility
”: as defined in the definition of
“Facility” in this Section 1.1.
“ Term Loan Lender
”: each Lender that has a Term Loan Commitment or is
the holder of a Term Loan.
“ Term Loan Percentage
”: as to any Term Loan Lender at any time, the
percentage which such Lender’s undrawn Term Loan
Commitment then constitutes of the aggregate undrawn Term Loan
Commitments or, at any time after the Third Amendment Effective
Date, the percentage which the aggregate principal amount of such
Lender’s Term Loans then outstanding constitutes of the
aggregate principal amount of the Term Loans then
outstanding.
“ Third Amendment
”: The Third Amendment to this Agreement dated as of
December 22, 2005.
“ Third Amendment Effective
Date ”: the Amendment Effective Date as defined in
the Third Amendment.
(b)
The definition of
“Aggregate Exposure” contained in Section 1.1 of
the Credit Agreement is hereby amended and restated so it reads as
follows:
“ Aggregate Exposure
”: with respect to any Lender at any time, an amount
equal to (a) until the Closing Date, the aggregate amount of
such Lender’s Commitments at such time and
(b) thereafter, the sum of (i) the aggregate then unpaid
principal amount of such Lender’s Term Loans and
(ii) the amount of such Lender’s Revolving Credit
Commitment then in effect or, if the Revolving Credit
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Commitments have been terminated,
the amount of such Lender’s Revolving Extensions of Credit
then outstanding.
(c)
The definition of
“Applicable Margin” contained in Section 1.1 of
the Credit Agreement is hereby amended and restated so it reads as
follows:
“ 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, provided that after the first Adjustment Date occurring
after the completion of two fiscal quarters of the Borrower after
the Closing Date, the Applicable Margin will be determined pursuant
to the Pricing Grid and (b) with respect to the Term Loans,
1.75% in the case of Base Rate Loans and 2.75% in the case of
Eurodollar Loans.
(d)
The definition of
“Available Revolving Credit Commitment” contained in
Section 1.1 of the Credit Agreement is hereby amended by
replacing the reference to “Section 2.4(a)” with a
reference to “Section 2.7(a)”.
(e)
The definition of
“Conduit Financing Arrangement” contained in
Section 1.1 of the Credit Agreement is hereby amended by
replacing the reference to “Section 2.14(d)” with
a reference to “Section 2.17(d)”.
(f)
The definition of
“Conduit Lender” contained in Section 1.1 of the
Credit Agreement is hereby amended by replacing the reference to
“Section 2.14(d)” with a reference to
“Section 2.17(d)”.
(g)
The definition of
“Eurodollar Loans” contained in Section 1.1 of the
Credit Agreement is hereby amended and restated so it reads as
follows:
“ Eurodollar Loans
”: Revolving Credit Loans and Term Loans the rate of interest
applicable to which is based upon the Eurodollar
Rate”.
(h)
Clause
(b)(ii) of the definition of “Interest Period”
contained in Section 1.1 of the Credit Agreement is hereby
amended and restated so it reads as follows:
“(ii) any Interest Period
that would otherwise extend beyond the Revolving Credit Termination
Date or beyond the date final payment is due on the Term Loans, as
the case may be, shall end on the Revolving Credit Termination Date
or such due date, as applicable; and”
(i)
The definition of
“Revolving Credit Termination Date” contained in
Section 1.1 of the Credit Agreement is hereby amended and
restated so it reads as follows:
“ Revolving Credit
Termination Date ”: the five-year anniversary of the
Third Amendment Effective Date.
(j)
The definition of
“L/C Obligations” contained in Section 1.1 of the
Credit Agreement is hereby amended by replacing the reference to
“Section 2.23” with a reference to
“Section 2.26”.
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(k)
The definition of
“Lender Addendum” contained in Section 1.1 of the
Credit Agreement is hereby amended by adding the following clause
at the end thereof: “and, with respect to any Term Loan
Lender, a Lender Addendum in such other form as may be agreed to by
the Administrative Agent, to be accepted and delivered on the Third
Amendment Effective Date “.
(l)
The definition of
“Letters of Credit” contained in Section 1.1 of
the Credit Agreement is hereby amended by replacing the reference
to “Section 2.19(a)” with a reference to
“Section 2.22(a)”.
(m)
The definition of
“Non-Excluded Taxes” contained in Section 1.1 of
the Credit Agreement is hereby amended by replacing the reference
to “Section 2.14(a)” with a reference to
“Section 2.17(a)”.
(n)
The definition of
“Non-U.S. Lender” contained in Section 1.1 of the
Credit Agreement is hereby amended by replacing the reference to
“Section 2.14(d)” with a reference to
“Section 2.17(d)”.
(o)
The definition of
“Refunded Swing Line Loans” contained in
Section 1.1 of the Credit Agreement is hereby amended by
replacing the reference to “Section 2.2” with a
reference to “Section 2.5(c)”.
(p)
The definition of
“Refunding Date” contained in Section 1.1 of the
Credit Agreement is hereby amended by replacing the reference to
“Section 2.2” with a reference to
“Section 2.5(d)”.
(q)
The definition of
“Reimbursement Obligation” contained in
Section 1.1 of the Credit Agreement is hereby amended by
replacing the reference to “Section 2.23” with a
reference to “Section 2.26”.
(r)
The definition of
“Required Lenders” contained in Section 1.1 of the
Credit Agreement is hereby amended and restated so it reads as
follows:
“ Required Lenders
”: at any time, the holders of more than 50% of
(a) until the Closing Date, the Commitments and
(b) thereafter, the sum of (i) the aggregate unpaid
principal amount of the Term Loans then outstanding and
(ii) the Total Revolving Credit Commitments then in effect or,
if the Revolving Credit Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding.
(s)
The definition of
“Revolving Credit Commitment” contained in
Section 1.1 of the Credit Agreement is hereby amended and
restated so it reads as follows:
“ Revolving Credit
Commitment ”: as to any Lender, the obligation of
such Lender to make Revolving Credit Loans or participate in Swing
Line Loans and participate in Letters of Credit, in an aggregate
principal and/or face amount not to exceed the amount set forth
under the heading “Revolving Credit Commitment”
opposite such Lender’s name on Schedule 1 to the Lender
Addendum delivered by such Lender, or, as the case may be, 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. The aggregate
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amount of the Total Revolving Credit
Commitments as of the Third Amendment Effective Date is
$25,000,000.
(t)
The definition of
“Revolving Credit Loans” contained in Section 1.1
of the Credit Agreement is hereby amended by replacing the
reference to “Section 2.1” with a reference to
“Section 2.4”.
(u)
The definition of
“Swing Line Commitment” contained in Section 1.1
of the Credit Agreement is hereby amended by replacing the
reference to “Section 2.2” with a reference to
“Section 2.5”.
(v)
The definition of
“Swing Line Loans” contained in Section 1.1 of the
Credit Agreement is hereby amended by replacing the reference to
“Section 2.1(b)” with a reference to
“Section 2.4(b)”.
(w)
The definition of
“Swing Line Participation Amount” contained in
Section 1.1 of the Credit Agreement is hereby amended by
replacing the reference to”Section 2.2” with a
reference to “Section 2.5(d)”.
(x)
Section 2 of
the Credit Agreement is hereby amended and restated so it reads as
set forth in Annex II.
(y)
Section 3.16
of the Credit Agreement is hereby amended by adding the following
sentence at the end thereof: “The proceeds of Term
Loans shall be used by the Borrower to consummate the Molasses
Acquisition on the Third Amendment Effective
Date”.
(z)
Section 6.1(a) and
Section 6.1(b) of the Credit Agreement are hereby amended
and restated so each reads as follows:
“(a)
Consolidated Leverage Ratio . Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter,
commencing with the fiscal quarter ending December 31, 2005,
to exceed 6.50 to 1.00.”
(b)
Consolidated Senior Leverage Ratio . Permit the
Consolidated Senior Leverage Ratio as at the last day of any period
of four consecutive fiscal quarters of the Borrower ending with any
fiscal quarter commencing with the fiscal quarter ending
December 31, 2005, to exceed 4.00 to 1.00.
(aa)
Section 8.6
of the Credit Agreement is hereby amended by replacing the term
“Revolving Credit Loans” with the term
“Loans”.
(bb)
Section 9.1
of the Credit Agreement is hereby amended by:
(i) replacing the reference
to “Section 2.12” with a reference to
“Section 2.15”, the reference to “Sections
2.19 through 2.26” with a reference to
“Sections
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2.22 through 2.29” and the
reference to “Section 2.1(b) or
Section 2.2(b)-(f)” with a reference to
“Section 2.4(b) or
Section 2.5(b)-(f)”;
(ii) replacing the word
“or” immediately prior to clause (vi) thereof with
“;”; and
(iii) inserting a new clause
(vii) as follows
“or (vii) reduce the
percentage specified in the definition of Majority Facility Lenders
with respect to any Facility without the consent of all Lenders
under such Facility.”
(cc)
Section 9.6(b) of
the Credit Agreement is hereby amended by (i) replacing the
reference to “Sections 2.13, 2.14 and 2.15” with a
reference to “Sections 2.16, 2.17 and 2.18” and the
reference to “Section 2.14” with a reference to
“Section 2.17” and (ii) adding the term
“or Term Loan” immediately after “Revolving
Credit Loan”.
(dd)
Section 9.6(c) of
the Credit Agreement is hereby amended by replacing the reference
to “Sections 2.13, 2.14, 2.16” with a reference to
“Sections 2.16, 2.17, 2.19”.
(ee)
Section 9.7(a) of
the Credit Agreement is hereby amended by replacing the reference
to “Section 2.18” with a reference to
“Section 2.21”.
(ff)
The Credit
Agreement is hereby amended by including the new Exhibit G-3
attached hereto as Annex III.
2.
Conditions to
Effectiveness .
The
effectiveness of all the amendments contained in Section 1 of
this Amendment are conditioned upon satisfaction of the following
conditions precedent prior to or on January 30, 2006 (the date
on which all such conditions precedent have been satisfied being
referred to herein as the “ Amendment Effective Date
”):
(a)
the
Administrative Agent shall have received counterparts of this
Amendment signed by each of the Borrower, the Administrative Agent
and each of the Lenders;
(b)
the
Administrative Agent shall have received counterparts of the
consent of the Guarantors attached hereto as Annex I (the “
Consent ”) executed by each of the
Guarantors;
(c)
each of the
representations and warranties in Section 3 below shall be
true and correct in all material respects on and as of the
Amendment Effective Date;
(d)
the
Administrative Agent shall have received payment in immediately
available funds of all expenses incurred by the Administrative
Agent (including, without limitation, legal fees) that are then due
and payable and reimbursable under the Credit Agreement and for
which invoices have been presented;
(e)
the Borrower
shall have consummated the Grandma’s Acquisition pursuant to
the terms and conditions of that certain Asset Purchase Agreement,
dated as of the date of this
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Amendment, between
Mott’s LLP and Bloch & Guggenheimer, Inc, as
amended, supplemented or otherwise modified from time to time,
provided that no material provision thereof shall have been waived,
amended, supplemented or otherwise modified without the consent of
the Required Lenders;
(f)
in consideration
of the amendments contained in this Amendment, the Borrower shall
have paid to the Administrative Agent, for the account of each
Lender that executes this Amendment no later than 12:00 noon. (New
York time) on Thursday, December 8, 2005, (i) a fee equal
to 0.25% of the Revolving Credit Commitments of such Lender (prior
to giving effect to the reduction in the Total Revolving Credit
Commitments contemplated hereby), it being agreed that the fees
referred to in this clause shall be payable on the earlier of
January 30, 2006 and the Amendment Effective Date and
(ii) with respect to any Lender who has provided a Lender
Addendum with respect to the Term Loans on or prior to such time,
such additional fees as have been separately agreed upon;
and
(g)
The
Administrative Agent shall have received a legal opinion from
Dechert LLP in form and substance reasonably satisfactory to the
Administrative Agent and a Supplemental Intellectual Property
Security Agreement with respect to all registered Intellectual
Property acquired pursuant to the Grandma’s Acquisition, in
form and substance reasonably satisfactory to the Administrative
Agent.
3.
Representations and
Warranties .
The
Borrower represents and warrants to the Administrative Agent and
the Lenders as follows:
(a)
Authority
. The
Borrower has the corporate or other organizational power and
authority to execute and deliver this Amendment and to perform its
obligations hereunder and under the Credit Agreement (as amended
hereby). Each of the Guarantors has the corporate or other
organizational power and authority to execute and deliver the
Consent and to perform its obligations thereunder. The
execution, delivery and performance (i) by the Borrower of
this Amendment and the Credit Agreement (as amended hereby) and the
transactions contemplated hereby and thereby and (ii) by the
Guarantors of the Consent, in each case, have been duly authorized
by all necessary corporate or other organizational action of such
Person. Other than any required disclosure filings with the
Securities and Exchange Commission, no material consent or
authorization of, filing with, notice to, or other act by or in
respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance,
validity or enforceability of this Amendment, the Credit Agreement
(as amended hereby) or the Consent.
(b)
Enforceability
. Each of
the Consent and this Amendment has been duly executed and delivered
on behalf of each Loan Party that is party thereto or hereto.
Assuming the conditions precedent in Section 2 of this
Amendment have been satisfied, each of the Consent, this Amendment
and the Credit Agreement (as amended hereby) (i) constitutes a
legal, valid and binding obligation of each Loan Party hereto or
thereto, as applicable, enforceable against such Loan Party in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights
generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law) and (ii) is in
full force and effect. Neither the execution or
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delivery of the Consent or
this Amendment by the Borrower or any of the Guarantors, as
applicable, or the performance by the Borrower or the Guarantors of
their respective obligations under the Consent, this Amendment or
the Credit Agreement (as amended hereby), will adversely affect the
validity, perfection or priority of the Administrative
Agent’s Lien (for the ratable benefit of Secured Parties) on
any of the Collateral or its ability to realize
thereon.
(c)
Representations and
Warranties . After giving effect
to this Amendment, the representations and warranties contained in
the Credit Agreement and the other Loan Documents (other than any
such representations and warranties that, by their terms, are
specifically made as of a date other than the date hereof) are true
and correct in all material respects on and as of the date hereof
as though made on and as of the date hereof.
(d)
No
Conflicts . Neither the execution
and delivery of the Consent or this Amendment, nor the consummation
of the transactions contemplated hereby and thereby, nor the
performance of and compliance with the terms and provisions hereof,
thereof or of the Credit Agreement (as amended hereby) by any Loan
Party will, at the time of such performance, (a) violate any
Requirement of Law or any material Contractual Obligation of any
Loan Party, except for any such violation that could not reasonably
be expected to have a Material Adverse Effect or (b) result
in, or require, the creation or imposition of any Lien (other than
Liens created by or otherwise permitted by the Loan Documents) on
any of their respective properties pursuant to any Requirement of
Law or any such Contractual Obligation.
(e)
No
Default . Both before and after
giving effect to this Amendment, no event has occurred and is
continuing that constitutes a Default or Event of
Default.
4.
Reference to and Effect on the
Loan Documents.
(a)
Upon and after
the effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to
“the Credit Agreement”, “thereunder”,
“thereof” or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended hereby. This Amendment is a Loan
Document.
(b)
Except as
specifically amended by this Amendment, the Credit Agreement and
the other Loan Documents are and shall continue to be in full force
and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing,
the Security Documents and all of the Collateral described therein
do and shall continue to secure the payment of all Obligations
under and as defined therein, in each case as modified
hereby.
(c)
The execution,
delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power
or remedy of any Secured Party under any of the Loan Documents, or,
except as expressly provided herein, constitute a waiver or
amendment of any provision of any of the Loan
Documents.
5.
Counterparts
. This Amendment and
the Consent may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original
and all of which taken together shall
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constitute one and the same
agreement. Delivery of an executed counterpart of a signature
page to this Amendment or the Consent by facsimile shall be
effective as delivery of a manually executed counterpart of this
Amendment or Consent, as the case may be.
6.
Severability
. Any provision of this
Amendment that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.
Governing Law
. This Amendment shall
be governed by, and construed in accordance with, the laws of the
State of New York.
[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, as of the date first written
above.
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LEHMAN COMMERCIAL PAPER INC.,
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as Administrative Agent
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By:
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/s/ V. Paul Arzouian
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Name: V. Paul Arzouian
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Title: Authorized Signatory
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B&G FOODS, INC.,
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as Borrower
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By:
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/s/ Robert C. Cantwell
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Name:
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Robert C. Cantwell
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Title:
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Executive Vice President of Finance
and Chief Financial Officer
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LEHMAN COMMERCIAL PAPER INC.,
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as a Lender
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By:
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/s/ V. Paul Arzouian
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Name: V. Paul Arzouian
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Title: Authorized Signatory
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THE BANK OF NEW YORK,
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as a Lender
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By:
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/s/ Frank S. Bridges
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Name: Frank S. Bridges
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Title: Vice President
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ROYAL BANK OF CANADA,
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as a Lender
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By:
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/s/ James F. Disher
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Name: James F. Disher
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Title: Authorized Signatory
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BANK OF AMERCIA, N.A., successor by merger
to Fleet National Bank, as a Lender
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By:
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/s/ Jana L. Baker
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Name: Jana L. Baker
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Title: Vice President
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ANNEX I
CONSENT OF
GUARANTORS
Each of the undersigned is a
Guarantor of the Obligations of the Borrower under the Credit
Agreement and hereby (a) consents to the foregoing Amendment,
(b) acknowledges that notwithstanding the execution and
delivery of the foregoing Amendment, the obligations of each of the
undersigned Guarantors are not impaired or affected and all
guaranties given to the holders of Obligations (including, without
limitation, the Obligations after giving effect to the foregoing
Amendment) and all Liens granted as security for the Obligations
continue in full force and effect, and (c) confirms and
ratifies its obligations under the Guarantee and Collateral
Agreement and each other Loan Document executed by it.
Capitalized terms used herein without definition shall have the
meanings given to such terms in the Amendment to which this Consent
is attached or in the Credit Agreement referred to therein, as
applicable.
IN WITNESS WHEREOF, each of the
undersigned has executed and delivered this Consent of Guarantors
as of December , 2005.
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BGH HOLDINGS, INC.
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BLOCH & GUGGENHEIMER,
INC.
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POLANER, INC.
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TRAPPEY’S FINE FOODS, INC.
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MAPLE GROVE FARMS OF VERMONT,
INC.
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HERITAGE ACQUISITION CORP.
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ORTEGA HOLDINGS INC.
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WILLIAM UNDERWOOD COMPANY
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By:
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/s/ Robert C. Cantwell
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Name:
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Robert C. Cantwell
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Title:
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Authorized Officer
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ANNEX II
AMOUNT AND TERMS OF
COMMITMENTS
2.1
Term Loan
Commitments . Subject to the terms
and conditions hereof, the Term Loan Lenders severally agree to
make term loans (each, a “ Term Loan ”) to the
Borrower on the Third Amendment Effective Date in an amount for
each Term Loan Lender not to exceed the amount of the Term Loan
Commitment of such Lender. The Term 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 2.2 and 2.10.
2.2
Procedure for
Term Loan Borrowing . The Borrower shall
deliver to the Administrative Agent an irrevocable notice (which
notice must be received by the Administrative Agent prior to
10:00 A.M., New York City time, one Business Day prior to the
anticipated Third Amendment Effective Date) requesting that the
Term Loan Lenders make the Term Loans on the Third Amendment
Effective Date and specifying the amount to be borrowed. The Term
Loans made on the Third Amendment Effective Date shall initially be
Base Rate Loans and may be converted to Eurodollar Loans pursuant
to Section 2.10. Upon receipt of such Borrowing Notice the
Administrative Agent shall promptly notify each Term Loan Lender
thereof. Not later than 12:00 Noon, New York City time, on
the Third Amendment Effective Date each Term Loan Lender shall make
available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan to be
made by such Lender. The Administrative Agent shall make
available to the Borrower the aggregate of the amounts made
available to the Administrative Agent by the Term Loan Lenders, in
like funds as received by the Administrative Agent.
2.3
Repayment of
Term Loans . The Term Loan of each
Term Loan Lender shall mature on the five-year anniversary of the
Third Amendment Effective Date and no interim amortization shall be
required.
2.4
Revolving Credit Commitments; Swing Line Commitment
. (a) Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans
(“ Revolving Credit Loans ”) to the Borrower
from time to time during the 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 Revolving Credit
Commitment. During the Revolving Credit Commitment Period the
Borrower may use the 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 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 2.10, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one
month prior to the Revolving Credit Termination 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 Revolving
A-1
Credit Commitments from time
to time during the 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 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 would be less than
zero. During the 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.
(c)
The Borrower
shall repay all outstanding Loans on the Revolving Credit
Termination Date.
2.5
Procedure for
Borrowing Revolving Credit Loans and Swing Line Loans; Refunding of
Swing Line Loans . (a) The
Borrower may borrow Revolving Credit Loans under the Revolving
Credit Commitments during the Revolving Credit Commitment Period on
any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York
City time, (i) three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans, or (ii) one
Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans), specifying (A) the amount and Type of
Revolving Credit Loans to be borrowed, (B) the requested
Borrowing Date and (C) in the case of Eurodollar Loans, the
length of the initial Interest Period therefor. Any Revolving
Credit Loans made on the Closing Date shall initially be Base Rate
Loans and may be converted to Eurodollar Loans pursuant to
Section 2.10. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then
aggregate Available Revolving Credit Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $1,000,000 or a whole multiple of $1,000,000 in excess
thereof, provided , that the Swing Line Lender may request,
on behalf of the Borrower, borrowings under the Revolving Credit
Commitments which are Base Rate Loans in other amounts pursuant to
Section 2.5(c). Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its
pro rata share of each borrowing of Revolving Credit
Loans available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 12:00 Noon, New York City
time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent in like funds as received by the
Administrative Agent.
(b)
Whenever the
Borrower desires that the Swing Line Lender make Swing Line Loans
it shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be
received by the Swing Line Lender not later than 1:00 P.M.,
New York City time, on the proposed Borrowing Date), specifying
(i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving
Credit Commitment Period). Each borrowing under the Swing
Line
A-2
Commitment shall be in an
amount equal to $100,000 or a whole multiple of $100,000 in excess
thereof. Not later than 3:00 P.M., New York City time,
on the Borrowing Date specified in a notice in respect of Swing
Line Loans, the Swing Line Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately
available funds equal to the amount of the Swing Line Loan to be
made by the Swing Line Lender. The Administrative Agent shall
make the proceeds of such Swing Line Loan available to the Borrower
on such Borrowing Date in immediately available funds.
(c)
The Swing Line
Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably
directs the Swing Line Lender to act on its behalf), on one
Business Day’s notice given by the Swing Line Lender no later
than 12:00 Noon, New York City time, request each Lender to make,
and each Lender hereby agrees to make, a Revolving Credit Loan, in
an amount equal to such Lender’s Revolving Credit Percentage
of the aggregate amount of the Swing Line Loans (the “
Refunded Swing Line Loans ”) outstanding on the date
of such notice, to repay the Swing Line Lender. Each Lender
shall make the amount of such Revolving Credit Loan available to
the Administrative Agent at the Funding Office in immediately
available funds, not later than 10:00 A.M., New York City
time, one Business Day after the date of such notice. The
proceeds of such Revolving Credit Loans shall be immediately made
available by the Administrative Agent to the Swing Line Lender for
application by the Swing Line Lender to the repayment of the
Refunded Swing Line Loans.
(d)
If prior to the
time a Revolving Credit Loan would have otherwise been made
pursuant to Section 2.5(c), one of the events described in
Section 7(f) shall have occurred and be continuing with
respect to the Borrower or if for any other reason, as determined
by the Swing Line Lender in its sole discretion, Revolving Credit
Loans may not be made as contemplated by Section 2.5(c), each
Lender shall, on the date such Revolving Credit Loan was to have
been made pursuant to the notice referred to in
Section 2.5(c) (the “ Refunding Date
”), purchase for cash an undivided participating interest in
the then outstanding Swing Line Loans by paying to the Swing Line
Lender an amount (the “ Swing Line Participation
Amount ”) equal to (i) such Lender’s Revolving
Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to
have been repaid with such Revolving Credit Loans.
(e)
Whenever, at any
time after the Swing Line Lender has received from any Lender such
Lender’s Swing Line Participation Amount, the Swing Line
Lender receives any payment on account of the Swing Line Loans, the
Swing Line Lender will distribute to such Lender its Swing Line
Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender̵
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