EXHIBIT 4.4
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 Connecticut
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 29th day of March, 2004.
J&J SNACK FOODS CORP.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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BAKERS BEST SNACK FOODS CORP.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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FEDERAL PBC COMPANY
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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THE ICEE COMPANY
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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J&J RESTAURANT GROUP, L.L.C.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Manager
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J&J SNACK FOODS SALES CORP.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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J&J SNACK FOODS CORP. OF PENNSYLVANIA
By: /s/ Dennis G. Moore
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Print Name: Dennis G.. Moore
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Title: Vice President
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J&J SNACK FOODS TRANSPORT CORP.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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J&J SNACK FOODS CORP. OF CALIFORNIA
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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J&J SNACK FOODS INVESTMENT CORP.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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J&J SNACK FOODS CORP./MIDWEST
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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J&J SNACK FOODS CORP./MIA
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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COUNTRY HOME BAKERS, INC.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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PRETZELS, INC.
By: /s/ Dennis G. Moore
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Print Name: Dennis G. Moore
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Title: Vice President
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WACHOVIA BANK, National Association,
as a Bank
By: /s/ Ellen Dodel
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Print Name: Ellen Dodel
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Title: Vice President
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CITIZENS BANK OF PENNSYLVANIA,
as Agent and as a Bank
By: /s/ Devon Starks
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Print Name: Devon Starks
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Title: Vice President
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