SECOND AMENDMENT TO LOAN AGREEMENT
Second Amendment (the "Amendment") to a certain Loan
Agreement, dated December 4, 2001, as amended by Amendment dated
June 26, 2003 (collectively, the "Loan Agreement"), among J&J
SNACK FOODS CORP., a New Jersey corporation ("Parent"), J&J
RESTAURANT GROUP, L.L.C., a New Jersey limited liability
company, and COUNTRY HOME BAKERS, INC. (F/K/A CH BAKERS, INC.),
a Georgia corporation (collectively, the "New
Subsidiaries"), the other subsidiaries of the Parent that have
executed the signature pages hereto (collectively with the New
Subsidiaries and Parent, the "Borrowers"), the Banks that have
executed the signature pages hereto ("Banks"), and CITIZENS BANK
OF PENNSYLVANIA, a Pennsylvania state-chartered bank, as Agent
for the Banks ("Agent").
WHEREAS, the Borrowers have requested the Banks and Agent
amend certain terms and provisions of the Loan Agreement, and
the Banks and Agent are willing to consent to such modifications
upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, and each intending to be legally bound hereby,
the parties hereto hereby agree as follows:
1. Except as expressly defined herein, all terms used
herein shall have the meanings ascribed to them in the Loan
Agreement. This Amendment is intended to amend the Loan
Agreement and the Loan Agreement shall be so amended from and as
of the date hereof.
2. The Loan Agreement shall be amended so that all
references to "Agreement" contained therein shall mean the Loan
Agreement, as amended herein, and as further amended,
supplemented or modified from time to time.
3. The definition of "Commitment Termination Date" found
in Article 1 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
Commitment Termination Date: December 1,
2006, subject to earlier termination as
provided in this Agreement.
4. Sections 5.1 and 5.2 of the Loan Agreement are hereby
amended and restated in their entirety as follows:
Section 5.1. Annual Financial Statements
and Projections.
Annually, as soon as available, (i) but in
any event within ninety (90) days after the
last day of each of its fiscal years, a
consolidated balance sheet of Parent and the
Subsidiaries as at such last day of the
fiscal year, and consolidated statements of
income and retained earnings and statements
of cash flow, for such fiscal year, each
prepared in accordance with GAAP, in
reasonable detail, and audited and certified
without qualification by Grant Thornton,
LLP, or another firm of independent
certified public accountants satisfactory to
the Agent, as fairly presenting the
financial position and the results of
operations of Parent and the Subsidiaries as
at and for the year ending on its date and
as having been prepared in accordance with
GAAP, and (ii) on or before each November
15th, Projections for the then upcoming
fiscal year.
Section 5.2. Quarterly Financial Statements.
As soon as available, but in any event
within forty-five (45) days after the end of
the Parent's first three fiscal quarterly
periods, a consolidated balance sheet of
Parent and the Subsidiaries as of the last
day of such quarter and consolidated
statements of income and retained earnings
and statements of cash flow, for such
quarter, and on a comparative basis figures
for the corresponding period of the
immediately preceding fiscal year, all in
reasonable detail, each such statement to be
certified in a certificate of the chief
financial or accounting officer of Parent as
accurately presenting the financial position
and the results of operations of Parent and
the Subsidiaries as at its date and for such
quarter and as having been prepared in
accordance with GAAP (subject to year-end
audit adjustments).
5. Section 7.9 of the Loan Agreement is hereby amended by
adding sub-section (a)(vii) as follows:
(a)(vii) open market commercial paper
(other than open market commercial paper
which satisfies the requirements set forth
in Section 7.9(a)(iii) hereof) bearing a
credit rating of not less than "A" by
Standard & Poor's Corporation or by another
nationally recognized credit agency maturing
or being due or payable in full not more
than 91 days after the date of the
Borrower's or the Subsidiary's, as
applicable, acquisition thereof, and
provided further that the aggregate amount
of Cash of Borrowers and Subsidiaries held
in United States bank deposits or similar
accounts following such purchase is not, at
any time, less than 43% of the aggregate
amount of all such commercial paper then
owned by Borrowers and all Subsidiaries.
6. The Borrowers jointly and severally acknowledge that
the outstanding principal amounts of the Notes are due and owing
without any claim, defense or set-off.
7. The Borrowers have requested that Banks consent to the
acquisition of the assets of Country Home Baker by Country Home
Bakers, Inc. (the "Country Acquisition"), for a purchase price
of approximately $12,000,000.00, notwithstanding that the
Country Acquisition does not constitute a "Permitted
Acquisition", as defined under the terms of the Loan Agreement.
The Banks hereby consent to the Country Home Acquisition and
waive their right to declare an Event of Default under the Loan
Agreement as a result of the Country Acquisition not
constituting a Permitted Acquisition. However, the waiver by
the Banks under this Paragraph 5 is specific with respect to the
Country Acquisition and should not be construed to be, or
operate as, a waiver of any other right of the Banks under the
Loan Agreement, nor shall it preclude any other or future
exercise of the rights granted to the Banks under the Loan
Agreement upon a failure to comply with any term, covenant or
condition contained in the Loan Agreement.
8. The Borrowers have requested that Banks waive their
right to require the Borrowers to deliver on or before November
15, 2003, the Projections for fiscal year 2004, and the Banks
hereby consent to such waiver. However, the consent by the
Banks under this Paragraph 8 is specific with respect to the
Projections for fiscal year 2004 (which were to be delivered by
November 15, 2003), and should not be construed to be, or
operate as, a waiver of the Bank's rights to receive Projections
for any other fiscal year, nor shall it preclude any other or
future exercise of the rights granted to the Banks under the
Loan Agreement upon a failure to comply with any term, covenant
or condition contained in the Loan Agreement, including the
failure to deliver Projections for any fiscal year, other than
fiscal year 2004.
9. All representations, warranties and covenants of the
Borrowers contained in the Loan Agreement are hereby jointly and
severally ratified and confirmed by the Borrowers, without
condition, as if made anew upon the execution of this Amendment
and are hereby incorporated by reference. All representations,
warranties and covenants of the Borrowers, whether hereunder, or
contained in the Loan Agreement, shall remain in full force and
effect until all amounts due under the Loan Agreement, as
amended herein, the Notes, and each other Loan Document, are
satisfied in full. The Borrowers jointly and severally
represent and warrant that there has been no change or
modification to the provisions of the Certificates of
Incorporation or By-Laws of the Borrowers which were previously
delivered to the Bank in connection with the Loan Agreement.
10. Except as modified by the terms hereof, all terms,
provisions and conditions of the Loan Agreement, the Notes and
each other Loan Document, are in full force and effect, and are
hereby incorporated by reference as if set forth herein. This
Amendment, the Loan Agreement and the Notes shall be deemed as
complementing and not restricting the Bank's rights hereunder or
thereunder. If there is any conflict or discrepancy to the
provisions of this Amendment in any provision of the Loan
Agreement or the Notes, the terms and provisions of this
Amendment shall control and prevail.
11. As a condition precedent to the effectiveness of this
Amendment, simultaneously with the execution and delivery of
this Amendment, the Borrowers shall deliver to the Bank the
following:
(a) Amended and Restated Promissory Note in form
acceptable to the Banks, executed by each of the Borrowers and
payable to the order of Citizens Bank of Pennsylvania; and
(b) Amended and Restated Promissory Note in form
acceptable to the Bank, executed by each of the Borrowers, and
payable to the order of Wachovia Bank, National Association.
(c) Evidence, satisfactory to the Banks, of all
corporate action taken by each Borrower to authorize the
execution, delivery and performance of this Amendment, and the
transactions contemplated thereby, certified by their respective
secretaries; and
(d) An incumbency certificate (with specimen
signatures) with respect to each Borrower;
(e) Evidence satisfactory to the Banks of the
dissolution of J&J Snack Foods Sales Corp. of Texas;
(f) Evidence satisfactory to the Banks of the merger
of J&J Restaurant Group, Inc. into J&J Restaurant Group, L.L.C;
(g) Evidence satisfactory to the Banks of the merger
of J&J Snack Foods Sales Corp. of New Jersey into J&J Snack
Foods Sales Corp.;
(h) Joinder Agreement substantially in the form
attached to the Loan Agreement, executed by the Borrowers and
pursuant to which. the New Subsidiaries are added as Borrowers
under the terms of the Loan Agreement; and
(i) Certificates of Good Standings for each of the
New Borrowers from their respective states of incorporation,
including evidence of the change of name of CH Bakers, Inc. to
Country Home Bakers, Inc.
12. The Borrowers hereby jointly and severally represent,
warrant and certify to the Banks that no Default or Event of
Default has occurred and/or is presently existing under the Loan
Documents.
13. This Amendment (a) shall be construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania;
(b) shall inure to the benefit of, and be binding upon, the
parties hereto and their respective successors and assigns; (c)
may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall
constitute one and the same instrument; and (d) may only be
amended or modified pursuant to a writing signed by the parties
hereto.
14. The Borrowers hereby agree that they will pay, or
cause to be paid or reimburse the Bank for, all of the Bank's
costs and expenses in connection with this Amendment, including
without limitation the fees of its legal counsel.
IN WITNESS WHEREOF, the undersigned have caused this Second
Amendment to be executed and delivered by their respective
officers thereunto duly authorized, as of the ___ day of March,
2004.
J&J SNACK FOODS CORP.
By:
Print Name: Dennis G. Moore
Title: Vice President
BAKERS BEST SNACK FOODS CORP.
By:
Print Name: Dennis G. Moore
Title: Vice President
FEDERAL PBC COMPANY
By:
Print Name:Dennis G. Moore
Title:Vice President
THE ICEE COMPANY
By:
Print Name; Dennis G. Moore
Title: Vice President
J&J RESTAURANT GROUP, L.L.C.
By:
Print Name: Dennis G. Moore
Title: Manager
J&J SNACK FOODS SALES CORP.
By:
Print Name:Dennis G. Moore
Title:Vice President
J&J SNACK FOODS CORP. OF
PENNSYLVANIA
By:
Print Name:Dennis G.. Moore
Title:Vice President
J&J SNACK FOODS TRANSPORT
CORP.
By:
Print Name:Dennis G. Moore
Title:Vice President
J&J SNACK FOODS CORP. OF
CALIFORNIA
By:
Print Name:Dennis G. Moroe
Title:Vice President
J&J SNACK FOODS INVESTMENT
CORP.
By:
Print Name:Dennis G. Moore
Title:Vice President
J&J SNACK FOODS CORP. MIDWEST
By:
Print Name:Dennis G. Moore
Title:Vice President
J&J SNACK FOODS CORP. MIA
By:
Print Name:Dennis G. Moore
Title:Vice President
COUNTRY HOME BAKERS, INC.
By:
Print Name: Dennis G. Moore
Title:Vice President
PRETZELS, INC.
By:
Print Name: Dennis G. Moore
Title:Vice President
WACHOVIA BANK, National
Association, as a Bank
By:
Print Name:
Title:
CITIZENS BANK OF PENNSYLVANIA,
as Agent and as a Bank
By:
Print Name:
Title: