EXHIBIT 4
CONSENT, WAIVER AND SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Consent, Waiver and Second Amendment to the Second Amended and
Restated Credit Agreement is dated as of January 12, 1999 ("Agreement"), and is
by and among B&G FOODS, INC., a Delaware corporation ("Borrower"), B&G FOODS
HOLDINGS CORP., a Delaware corporation ("Holdings"), each of the Subsidiaries
party hereto, as guarantors (collectively, the "Subsidiary Guarantors"), the
financial institutions parties hereto (the "Lenders") and HELLER FINANCIAL,
INC., a Delaware corporation, Agent for the other Lenders party thereto and as a
Lender ("Agent").
WITNESSETH:
WHEREAS, Borrower, Lenders and Agent are parties to that certain Second
Amended and Restated Credit Agreement dated as of August 11, 1997 (as amended
from time to time, the "Credit Agreement") (capitalized terms not otherwise
defined herein shall have the definitions provided therefor in the Credit
Agreement) and to certain other documents executed in connection with the Credit
Agreement; and
WHEREAS, Holdings is a party to that certain Holdings Guaranty dated as
of December 27, 1996 in favor of Agent, for the benefit of Agent and Lenders (as
from time to time amended, restated, supplemented, modified or reaffirmed, the
"Holdings Guaranty"), pursuant to which Holdings has guaranteed the Obligations
of Borrower under the Credit Agreement and the other Loan Documents; and
WHEREAS, each of the Subsidiary Guarantors (other than Trappey's, MGF
and UN) is a party to that certain Second Amended and Restated Subsidiary
Guaranty dated as of August 11, 1997 in favor of Agent, for the benefit of Agent
and Lenders (as from time to time amended, restated, supplemented, modified or
reaffirmed, the "Existing Subsidiary Guaranty"), pursuant to which each such
Subsidiary Guarantor has guaranteed the Obligations of Borrower under the Credit
Agreement and the other Loan Documents; and
WHEREAS, Trappey's is a party to that certain Subsidiary Guaranty dated
as of August 15, 1997 in favor of Agent, for the benefit of Agent and Lenders
(as from time to time amended, restated, supplemented, modified or reaffirmed,
the "Trappey's Subsidiary Guaranty"), pursuant to which such Subsidiary
Guarantor has guaranteed the Obligations of Borrower under the Credit Agreement
and the other Loan Documents; and
WHEREAS, each of MGF and UN is a party to a Subsidiary Guaranty dated
as of July 17, 1998 in favor of Agent, for the benefit of Agent and Lenders
(each, as from time to time amended, restated, supplemented, modified or
reaffirmed, a "Maple Grove Subsidiary Guaranty";
the Trappey's Subsidiary Guaranty and each Maple Grove Subsidiary Guaranty may
be individually referred to herein as an "Additional Subsidiary Guaranty" and
collectively as the "Additional Subsidiary Guaranties"), pursuant to which each
such Subsidiary Guarantor has guaranteed the Obligations of Borrower under the
Credit Agreement and the other Loan Documents; and
WHEREAS, the parties wish to amend the Credit Agreement as provided
herein; and
WHEREAS, Holdings wishes to reaffirm its Obligations under the Holdings
Guaranty; and
WHEREAS, each of the Subsidiary Guarantors wishes to reaffirm its
Obligations under the Existing Subsidiary Guaranty or the Additional Subsidiary
Guaranty to which it is a party, as applicable;
NOW, THEREFORE, the parties agree as follows:
1. Amendments to the Credit Agreement.
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A. Amendment to Subsection 1.1(B).
------------------------------
From and after the date hereof (the "Second Amendment Effective
Date"), subsection 1.1(B) of the Credit Agreement is amended by deleting the
first sentence of such subsection and inserting the following in substitution
therefor:
Subject to the satisfaction of the terms and conditions set
forth herein and in reliance upon the representations and warranties of
Borrower set forth herein, each Lender agrees, severally and not
jointly, to lend to Borrower from time to time from the Original
Closing Date to the Expiry Date its Pro Rata Share of the loans
requested by Borrower to be made by Lenders under this subsection
1.1(B), up to an aggregate maximum for all Lenders of $60,000,000 (as
the same may be reduced from time to time hereunder, the "Revolving
Loan Commitment"; the Revolving Loan Commitment of each Lender as of
the Second Amendment Effective Date is as set forth on the signature
pages to the Second Amendment).
B. Amendments to Subsection 1.2(A).
-------------------------------
(1) From and after the Second Amendment Effective Date,
subsection 1.2(A)(1) of the Credit Agreement is amended by deleting the first
sentence of such subsection and inserting the following in substitution
therefor:
the Revolving Loans and all other Obligations shall bear interest at a
per annum rate equal to the sum of the Base Rate plus the Base Rate
Margin.
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(2) From and after the Second Amendment Effective Date, subsection
1.2(A)(2) of the Credit Agreement is amended by deleting the first sentence of
such subsection and inserting the following in substitution therefor:
the Revolving Loans and all other Obligations shall bear interest at a
per annum rate equal to the sum of the LIBOR plus the LIBOR Margin.
C. Amendment to Subsection 4.1.
---------------------------
From and after the Second Amendment Effective Date, subsection 4.1
of the Credit Agreement hereby is amended by deleting it and substituting
therefor as follows:
4.1 Capital Expenditure Limits. The aggregate amount of all
Capital Expenditures of Borrower and its Subsidiaries in any fiscal
year of Borrower will not exceed the amount set forth below for such
fiscal year.
Fiscal Year Maximum Capital Expenditures
----------- ----------------------------
1999 and each fiscal
year thereafter $4,000,000
"Capital Expenditures" will be calculated as illustrated on
Exhibit 4.6(C).
D. Amendment to Subsection 7.2.
---------------------------
From and after the Second Amendment Effective Date, subsection 7.2
of the Credit Agreement hereby is amended by inserting a new subsection 7.2(E)
as follows:
(E) If Availability during any period of fifteen (15) consecutive
Business Days is less than $2,000,000, BRS shall have made an
additional cash contribution to the common equity of Borrower of not
less than $5,000,000, which contribution shall have been made no later
than the tenth (10th) Business Day following the last day of such
fifteen (15) Business Day period.
E. Amendments to Section 10.1.
--------------------------
(1) From and after the Second Amendment Effective Date, subsection
10.1 of the Credit Agreement is hereby amended by deleting the defined term
"Commitment" in its entirety and inserting the following in substitution
therefor:
"Commitment" means, with respect to any Lender as of any date of
determination, the amount of such Lender's commitment to make Revolving
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Loans, as set forth on the signature page of this Agreement opposite
such Lender's signature, on the signature page of any amendment to this
Agreement opposite such Lender's signature, or in a Lender Addition
Agreement, if any, executed by such Lender, whichever is most recent as
of such date of determination.
(2) From and after the Second Amendment Effective Date,
subsection 10.1 of the Credit Agreement is hereby amended by inserting the
following new defined term in proper alphabetical order:
"Adjustment Date" means February 1, May 1, August 1 and November
1 of each year.
"Availability" means, as of any date of determination, the
Revolving Loan Commitment less the sum of (a) the outstanding principal
balance of the Revolving Loan as of such date, plus (b) the outstanding
Risk Participation Liability as of such date.
"Base Rate Margin" shall mean, (i) as of the Second Amendment
Effective Date, 1.00% per annum, and (ii) thereafter, as of each
Adjustment Date, commencing with August 1, 1999, the Base Rate Margin
shall be adjusted, if necessary, to the applicable percent per annum
set forth in the pricing table below opposite the Senior Indebtedness
to EBITDA Ratio calculated for the relevant Calculation Period.
PRICING TABLE
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Senior Indebtedness to EBITDA Ratio Base Rate Margin
----------------------------------- ----------------
Less than 1.0 to 1.0 0.75%
Equal to or greater than 1.0 to 1.0,
but less than 2.0 to 1.0 1.00%
Equal to or greater than 2.0 to 1.0 1.50%
If Borrower shall fail to deliver a Compliance Certificate by the date
required pursuant to subsection 4.6(C), effective as of the tenth
Business Day following the date on which such Compliance Certificate
was due, the Base Rate Margin shall be conclusively presumed to equal
the highest Base Rate Margin specified in the pricing table set forth
above until the date of delivery of the Compliance Certificate
"Calculation Period" means, as of any Adjustment Date, the
trailing twelve month period ending on the last day of the most
recently completed calendar
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quarter prior to such Adjustment Date.
"LIBOR Margin" shall mean, (i) as of the Second Amendment Effective
Date, 2.50% per annum, and (ii) thereafter, as of each Adjustment Date,
commencing with August 1, 1999, the LIBOR Margin shall be adjusted, if
necessary, to the applicable percent per annum set forth in the pricing table
below opposite the Senior Indebtedness to EBITDA Ratio calculated for the
relevant Calculation Period.
PRICING TABLE
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Senior Indebtedness to EBITDA Ratio LIBOR Margin
----------------------------------- ------------
Less than 1.0 to 1.0 2.25%
Equal to or greater than 1.0 to 1.0,
but less than 2.0 to 1.0 2.50%
Equal to or greater than 2.0 to 1.0 3.00%
If Borrower shall fail to deliver a Compliance Certificate by the date
required pursuant to subsection 4.6(C), effective as of the tenth
Business Day following the date on which such Compliance Certificate
was due, the LIBOR Margin shall be conclusively presumed to equal the
highest LIBOR Margin specified in the pricing table set forth above
until the date of delivery of the Compliance Certificate
"Polaner Acquisition" means the acquisition by Roseland
Distribution from the Polaner Sellers of substantially all of the
assets of the Polaner Sellers related to the "Polaner" brand and any
other brands described in the Polaner Acquisition Agreement, and all
associated products, pursuant to the terms and conditions of the
Polaner Acquisition Agreement.
"Polaner Acquisition Agreement" means the Asset Purchase
Agreement to be dated on or about the Second Amendment Effective Date,
by and among Roseland Distribution and the Polaner Sellers, and the
other documents, instruments and agreements executed and delivered
pursuant thereto or in connection therewith.
"Polaner Sellers" means, collectively, International Home Foods,
Inc., a Delaware corporation and M. Polaner, Inc., a Delaware
corporation.
"Second Amendment" means that certain Consent, Waiver and Second
Amendment to Credit Agreement dated as of the Second Amendment
Effective Date among Borrower, Holdings, each Subsidiary Guarantor,
Agent and Lenders.
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"Second Amendment Effective Date" means January 12, 1999.
"Senior Indebtedness to EBITDA Ratio" means, for any Calculation
Period, the ratio of (i) Borrower's Total Indebtedness (calculated as
illustrated on Exhibit 4.6(C), but less Borrower's Subordinated
Indebtedness), to (ii) EBITDA (calculated as illustrated on Exhibit
4.6(C)) for the twelve (12) month period ending on the last day of such
month.
2. Consent and Waiver. Subsection 3.18 of the Credit Agreement
prohibits the Loan Parties from acquiring by purchase or otherwise all or any
substantial part of the business or assets or capital stock of any other Person
unless such acquisition constitutes a Permitted Acquisition or such acquisition
is consented to by the Requisite Lenders.
Borrower has requested that Agent and the Lenders consent to the
Polaner Acquisition by its Subsidiary, Roseland Distribution and to the
execution and delivery of the guaranty of Borrower in connection therewith. The
Polaner Acquisition does not satisfy the conditions outlined in subsection
3.18(ii) of the Credit Agreement for a Permitted Acquisition.
Agent and Requisite Lenders hereby consent to the consummation of the
Polaner Acquisition and to the execution and delivery of the guaranty (in form
and substance reasonably satisfactory to Agent) of Borrower in connection
therewith; provided, however, that:
(A) the Polaner Acquisition is completed no later than February 28,
1999, with no material deviations from the terms and conditions set
forth in the Polaner Acquisition Agreement,
(B) the most recent financial statements of the Polaner Sellers and all
other appraisals, accounting reviews, material due diligence reports,
projections, certificates and other materials and information required
to be delivered pursuant to subsection 3.18 of the Credit Agreement in
connection with the Polaner Acquisition shall have been provided to
Agent and shall be satisfactory to Agent (and Agent acknowledges that
all such materials have been delivered and are satisfactory as of the
Second Amendment Effective Date, provided that Borrower shall continue
to remain obligated to deliver such materials to Agent prior to the
closing of the Polaner Acquisition in the event Borrower discovers any
material new information or material changes in existing information in
the course of its due diligence regarding the Polaner Acquisition),
and, without duplication of the foregoing, the conditions precedent to
Permitted Acquisitions set forth in subsection 3.18 (other than
subsection 3.18(n)) of the Credit Agreement shall have been satisfied
in connection with the Polaner Acquisition,
(C) contemporaneously with the consummation of the Polaner Acquisition,
(i) if
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necessary, Roseland Distribution shall execute and deliver such UCC
financing statements and such other Security Documents as the Agent may
request in order to grant to Agent, for the benefit of Agent and
Lenders, a first priority perfected security interest in and to
substantially all of the assets acquired pursuant to the Polaner
Acquisition; and (ii) all Liens on any of the assets acquired pursuant
to the Polaner Acquisition securing Indebtedness of the Polaner Sellers
or otherwise described on such schedule shall be released and
terminated in full or termination statements with respect thereto shall
be executed and delivered and made available for filing on the closing
date of the Polaner Acquisition; and
(D) the Acquisition Agreement shall have been collaterally assigned to
Agent, for the benefit of Agent and Lenders, pursuant to a Collateral
Assignment of Representations, Warranties, Covenants, Indemnities and
Rights reasonably satisfactory to Agent.
Nothing in this subsection 2 shall be construed by Borrower to be a waiver of
any other term or condition of the Credit Agreement or a consent to any other
transaction.
3. Representations and Warranties. To induce Agent and Lenders to enter
into this Agreement, Borrower, Holdings and each Subsidiary Guarantor represents
and warrants to Agent on behalf of the Lenders that the execution, delivery and
performance by Borrower, Holdings and each Subsidiary Guarantor of this
Agreement are within their respective corporate powers, have been duly
authorized by all necessary corporate action and do not and will not contravene
or conflict with any provision of law applicable to Borrower, Holdings or any
Subsidiary Guarantor, the Certificate of Incorporation or Bylaws of Borrower,
Holdings or any Subsidiary Guarantor, or any order, judgment or decree of any
court or other agency of government or any contractual obligation binding upon
Borrower, Holdings or any Subsidiary Guarantor; and the Credit Agreement and the
other Loan Documents, as amended or reaffirmed as of the date hereof, are the
legal, valid and binding obligation of each of Borrower, Holdings and each
Subsidiary Guarantor, enforceable against each such Person in accordance with
its terms.
4. Conditions. The effectiveness of the amendments stated in this
Agreement is subject to each of the following conditions precedent or, in the
case of clause (H) below, conditions subsequent:
(A) Execution of Agreement. This Agreement shall have been duly
executed and delivered by Borrower, Holdings, each Subsidiary Guarantor listed
on the signature pages hereof and by the Requisite Lenders.
(B) Fee Letters; Payment of Fees. Borrower shall have executed and
delivered fee letters to (a) the Lenders executing this Agreement which have
purchased a portion of the $10,000,000 increase in the Revolving Loan Commitment
provided for hereunder, setting forth
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Borrower's agreement to pay certain fees to the Lenders in consideration for
such Commitment increase and the consents set forth herein, (b) the Lenders
executing this Agreement which have consented to the transactions set forth
herein but which have not purchased a portion of such Commitment increase,
setting forth Borrower's agreement to pay certain fees to the Lenders in
consideration for such consent, and (c) Agent, setting forth Borrower's
agreement to pay certain fees to Agent, and Borrower shall have paid or caused
to be paid to Agent and/or Lenders any such fees payable on the Second Amendment
Effective Date pursuant to any such fee letters.
(C) Notes. Borrower shall have executed and delivered to each
applicable Lender new notes evidencing the Revolving Loan Commitment of such
Lender after giving effect to the Commitment increase effected hereby.
(D) Side Letter. BRS shall have executed and delivered a letter
agreement setting forth its agreement that, if Availability during any period of
fifteen (15) consecutive Business Days is less than $2,000,000, BRS shall make
an additional cash contribution to the common equity of Borrower of not less
than $5,000,000, which contribution shall be made no later than the tenth (10th)
Business Day following the last day of such fifteen (15) Business Day period.
(E) No Default. No Default or Event of Default under the Credit
Agreement, as amended hereby, shall have occurred and be continuing.
(F) Warranties and Representations. The warranties and
representations of the Loan Parties contained in this Agreement, the Credit
Agreement, as amended hereby, and the other Loan Documents, shall be true and
correct as of the effective date hereof, with the same effect as though made on
such date.
(G) Consent of Holders of Subordinated Indebtedness. To the extent
consents, waivers or amendments are required based on the amendment or consent
provided for in this Agreement or the Polaner Acquisition, Borrower shall have
provided Agent with copies of all documents executed by the Borrower, Holdings
or the holders of Subordinated Indebtedness, which documents shall be in form
and substance satisfactory to Agent.
(H) Conditions Subsequent. (1) As promptly as practicable following
the Second Amendment Effective Date, Borrower shall execute and deliver such
modifications to the existing mortgages or deeds of trust in favor of Agent as
may be necessary to reflect the increase in the Revolving Loan Commitment
effected pursuant to this Agreement.
(2) Upon consummation of the Polaner Acquisition, Borrower shall have
delivered or caused to be delivered all documents and instruments necessary or
appropriate to evidence that Agent, on behalf of the Lenders, shall, upon
consummation of the Polaner Acquisition, have a first priority perfected
security interest in and to substantially all of the assets acquired by Roseland
Distribution pursuant to the Polaner Acquisition and, without duplication of the
foregoing, each
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of the other conditions set forth in subsection 2 hereof shall have been met or
satisfied.
5. Miscellaneous.
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(A) Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(B) Governing Law. This Agreement shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles. Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(C) Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Agreement.
(D) Successors and Assigns. This Agreement shall be binding upon
Borrower, Holdings, each Subsidiary Guarantor, Agent and Lenders and their
respective successors and assigns, and shall inure to the sole benefit of each
of Borrower, Holdings, each Subsidiary Guarantor, Agent and Lenders and the
successors and assigns of each of Borrower, Holdings, each Subsidiary Guarantor,
Agent and Lenders.
(E) References. Any reference to the Credit Agreement contained in
any notice, request, certificate, or other document executed concurrently with
or after the execution and delivery of this Agreement shall be deemed to include
this Agreement unless the context shall otherwise require.
(F) Continued Effectiveness; Reaffirmation. Notwithstanding anything
contained herein, the terms of this Agreement are not intended to and do not
serve to effect a novation as to the Credit Agreement. The parties hereto
expressly do not intend to extinguish the Credit Agreement. Instead, it is the
express intention of the parties hereto to reaffirm the indebtedness created
under the Credit Agreement which is evidenced by the Notes and secured by the
Collateral. The Credit Agreement as amended hereby and each of the other Loan
Documents remains in full force and effect. Holdings hereby reaffirms its
continuing liability as a guarantor for the Obligations of Borrower under the
Credit Agreement pursuant to the Holdings Guaranty and acknowledges and agrees
that the Liens on its Collateral granted under the Loan Documents are continuing
and are hereby reaffirmed. Each of the Subsidiary Guarantors hereby reaffirms
its continuing liability as a guarantor for the Obligations of Borrower under
the Credit Agreement pursuant to the Existing Subsidiary Guaranty and the
Additional Subsidiary Guaranty, as applicable, and acknowledges and agrees that
the Liens on its Collateral granted under the Loan Documents are continuing and
are hereby reaffirmed.
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(signatures pages follow)
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
B&G FOODS, INC., as Borrower
By: /s/David Wenner
-------------------------------
Title: President
----------------------------
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Commitment to make Revolving HELLER FINANCIAL, INC., as Agent and a
Loans Lender
$11,000,000
Percentage of Revolving By: /s/
Loan Commitment: ----------------------------------
18.33300% Title:
-------------------------------
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Commitment to make Revolving Loans BANKBOSTON, N.A.
$9,000,000 as a Lender
Percentage of Revolving
Loan Commitment: By: /s/
15.00000% ----------------------------------
Title: Managing Director
-------------------------------
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Commitment to make Revolving Loans BANK AUSTRIA CREDITANSTALT
CORPORATE $10,000,000 FINANCE, INC., as a Lender
Percentage of Revolving
Loan Commitment: By: /s/Clifford L. Weiss
16.66675% ----------------------------------
Title: Vice President
-------------------------------
By: /s/Catherine K. MacDonald
----------------------------------
Title: Vice President
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Commitment to make Revolving Loans FIRST SOURCE FINANCIAL LLP, by
$10,000,000 FIRST SOURCE FINANCIAL INC., its
Percentage of Revolving agent/manager, as a Lender
Loan Commitment:
16.66675% By: /s/Kathi J. Inorio
----------------------------------
Title: Vice President
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Commitment to make Revolving Loans IBJ WHITEHALL BANK & TRUST COMPANY,
$10,000,000 as a Lender
Percentage of Revolving
Loan Commitment: By: /s/Mark H. Minter
16.66675% ----------------------------------
Title: Managing Director
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Commitment to make Revolving Loans THE BANK OF NEW YORK, as a Lender
$10,000,000
Percentage of Revolving By: /s/Frank S. Bridges
Loan Commitment: -------------------------------
16.66675% Title: Vice President
----------------------------
By:
-------------------------------
Title:
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Guarantors:
B&G FOODS HOLDINGS CORP.
By: /s/David Wenner
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Title: President
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BGH HOLDINGS, INC.
By: /s/David Wenner
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Title: President
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ROSELAND DISTRIBUTION COMPANY,
formerly known as B&G FOODS, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
BLOCH & GUGGENHEIMER, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
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RWBV ACQUISITION CORP.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
BURNS & RICKER, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
TRAPPEY'S FINE FOODS, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
MAPLE GROVE FARMS OF VERMONT, INC.
By: /s/David Wenner
-------------------------------
Title: President
-----------------------------
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