BOB EVANS FARMS, INC. AND BEF HOLDING CO., INC. FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT Dated as of January 15, 2005
Exhibit 4.3
XXX XXXXX FARMS, INC.
AND
BEF HOLDING CO., INC.
AND
BEF HOLDING CO., INC.
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
Dated as of January 15, 2005
Re: | Note Purchase Agreement dated as of July 28, 2004 and $190,000,000 aggregate principal amount of Senior Notes due July 28, 2007-2016 |
To each of the institutional investors (the “Noteholders”)
Named in Schedule I attached hereto
Named in Schedule I attached hereto
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement dated as of July 28, 2004 (the “Note Purchase
Agreement”) by and among Xxx Xxxxx Farms, Inc., a Delaware corporation (the “Company”), BEF Holding
Co., Inc., a Delaware corporation (the “Issuer”), and each of the institutional investors party
thereto, under and pursuant to which, among other things, the Issuer originally issued and sold (i)
$30,000,000 aggregate principal amount of its 3.74% Senior Notes, Series A, due July 28, 2007 (the
“Series A Notes”), (ii) $40,000,000 aggregate principal amount of its 4.61% Senior Notes, Series B,
due July 28, 2010 (the “Series B Notes”), (iii) $95,000,000 aggregate principal amount of its 5.12%
Senior Notes, Series C, due July 28, 2014 (the “Series C Notes”), and (iv) $25,000,000 aggregate
principal amount of its 5.67% Senior Notes, Series D, due July 28, 2016 (the “Series D Notes,” and
together with the Series A Notes, the Series B Notes and the Series C Notes, the “Notes”). Terms
used but not otherwise defined herein shall have the meanings ascribed to such terms in the Note
Purchase Agreement.
Xxx Xxxxx Farms, Inc. | First Amendment to | |
BEF Holding Co., Inc. | Note Purchase Agreement |
WHEREAS, the Issuer, the Company and the holders of the Notes wish to correct (effective from
the date of the Closing) the mistaken method of computation of interest in the form of Series D
Notes and in each Series D Note issued under the Note Purchase Agreement;
NOW THEREFORE, the Company and the Issuer hereby jointly and severally agree with you in this
First Amendment to Note Purchase Agreement (this or the “First Amendment”) as follows:
SECTION 1. | AMENDMENT TO EXHIBIT 1(D) (FORM OF 5.67% SENIOR NOTE, SERIES D) OF NOTE PURCHASE AGREEMENT. |
The first paragraph of Exhibit 1(d) of the Note Purchase Agreement shall be and is hereby
amended in its entirety to read as follows:
“FOR VALUE RECEIVED, the undersigned, BEF HOLDING CO., INC., a Delaware
corporation (the “Issuer”), hereby promises to pay to [ ], or its registered
assigns, the principal sum of $[ ] DOLLARS on July 28, 2016, with interest
(computed on the basis of a 360-day year of twelve 30-day months) (a) on the
unpaid balance thereof at the rate of 5.67% per annum from the date hereof,
payable quarterly, on the 28th of each January, April, July and October in
each year, commencing October 28, 2004, until the principal hereof shall
have become due and payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make-Whole Amount (as
defined in the Note Purchase Agreement referred to below), payable quarterly
as aforesaid (or, at the option of the registered holder hereof, on demand),
at a rate per annum from time to time equal to the greater of (i) 7.67% or
(ii) 2% over the rate of interest publicly announced by National City Bank
from time to time in Cleveland, Ohio as its “base” or “prime” rate.
Capitalized terms used but not defined herein shall have the meaning
assigned thereto in the Note Purchase Agreement.”
Each holder of a Series D Note hereby agrees that interest on the unpaid balance of such Note
is and was, from and after the Closing Date, to be “computed on the basis of a 360-day year of
twelve 30-day months”. In furtherance of this First Amendment, the Issuer agrees to issue new
Series D Notes, as modified as provided in Section 1 of this First Amendment, but in all other
respects identical to the Note issued to each holder at Closing (each a “Replacement Note”) and
each such holder agrees to surrender the Series D Note delivered to it at Closing in exchange for
such Replacement Note.
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Xxx Xxxxx Farms, Inc. | First Amendment to | |
BEF Holding Co., Inc. | Note Purchase Agreement |
Section 3.1 Ratification of Note Purchase Agreement and the Notes. Except as herein expressly
amended, the Note Purchase Agreement and the Notes are in all respects ratified and confirmed. If
and to the extent that any of the terms or provisions of the Note Purchase Agreement or the Notes,
as the case may be, is in conflict or inconsistent with any of the terms or provisions of this
First Amendment, this First Amendment shall govern.
Section 3.2 References to Note Purchase Agreement. References in the Note Purchase Agreement
or in any Note, certificate, instrument or other document related to or delivered in connection
with the transactions contemplated by the Note Purchase Agreement shall be deemed to be references
to the Note Purchase Agreement and the Series D Notes as amended hereby and as further amended from
time to time.
Section 3.3. Successors and Assigns. This First Amendment shall be binding upon the Company,
the Issuer and each Noteholder and their successors and assigns, including each successive holder
or holders of any Notes.
Section 3.4. Requisite Approval. This First Amendment shall be effective as of the date first
written above upon the satisfaction of the following conditions precedent: (a) the Company, the
Issuer and the Required Holders (including all of the holders of the Series D Notes) shall have
executed this First Amendment, (b) the Subsidiary Guarantor shall have executed and delivered the
Acknowledgment and Consent in respect of the Subsidiary Guaranty and this First Amendment in the
form attached hereto as Exhibit A, and (c) the Company and the Issuer shall have paid all
reasonable out-of-pocket expenses incurred by each Noteholder in connection with the consummation
of the transactions contemplated by this First Amendment.
Section 3.6. Governing Law. The Note Purchase Agreement, as amended by this First Amendment,
and the Notes shall be construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of the laws of a jurisdiction other than such
State.
[Signature Pages Follow]
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Xxx Xxxxx Farms, inc. |
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By: | /s/ Xxx Spornhuaer | |||
Its Senior Vice President of Finance | ||||
BEF Holding Co., Inc. |
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By: | /s/ Xxx Xxxxxxxxxx | |||
Its Senior Vice President of Finance | ||||
Metropolitan Life Insurance Company |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Director | |||
General American Life Insurance Company By: Metropolitan Life Insurance Company, its Investment Manger |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Director | |||
New England Life Insurance Company By: Metropolitan Life Insurance Company, its Investment Manger |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Director | |||
Nationwide Life Insurance Company Nationwide Life and Annuity Insurance Co. Nationwide Mutual Insurance Co. |
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By | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Authorized Signatory |
Pacific Life Insurance Company (Nominee: Mac & Co.) |
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By | /s/ Xxxxxx Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Assistant Vice President | |||
By | /s/ Xxxxx X. Xxxx | |||
Name: | Xxxxx X. Xxxx | |||
Title: | Assistant Secretary | |||
Teachers Insurance and Annuity Association of America |
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By | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Managing Director | |||
Allstate Life Insurance Company |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
By | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Authorized Signatories | ||||
Allstate Insurance Company |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
By | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Authorized Signatories | ||||
American Heritage Life Insurance Co. |
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By | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
By | /s/ Xxxxx X. Xxxxxxx | |||
Name: | Xxxxx X. Xxxxxxx | |||
Authorized Signatories |
Xxxxxxx National Life Insurance Company By: PPM American, Inc. as attorney in fact, on behalf of Xxxxxxx National Life Insurance Company |
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By | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Vice President | |||
The Prudential Assurance Company Limited By: PPM American, Inc. as attorney in fact, on behalf of Xxxxxxx National Life Insurance Company |
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By | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Vice President | |||
Ameritas Life Insurance Corp. By: Ameritas Life Insurance Advisors, Inc., as Agent |
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By | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Vice President — Fixed Income Securities | |||
Acacia Life Insurance Company By: Ameritas Life Insurance Advisors, Inc., as Agent |
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By | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Vice President — Fixed Income Securities | |||
The Northwestern Mutual Life Insurance Company |
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By | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Its Authorized Representative | ||||
The guardian Life Insurance Company of america |
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By | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Director, Fixed Income |
NOTEHOLDERS
Outstanding | ||||
Aggregate Principal | ||||
amount of | ||||
Names of Noteholders | notes | |||
Metropolitan Life Insurance Company |
$ | 17,000,000 | ||
General American Life Insurance Company |
$ | 2,000,000 | ||
New England Life Insurance Company |
$ | 1,000,000 | ||
Nationwide Life Insurance Company |
$ | 17,000,000 | ||
Nationwide Life and Annuity Insurance Company |
$ | 5,000,000 | ||
Nationwide Mutual Insurance Company |
$ | 3,000,000 | ||
Pacific Life Insurance Company |
$ | 25,000,000 | ||
Teachers Insurance and Annuity Association of America |
$ | 15,000,000 | ||
Allstate Life Insurance Company |
$ | 28,000,000 | ||
Allstate Insurance Company |
$ | 7,000,000 | ||
American Heritage Life Insurance Company |
$ | 5,000,000 | ||
Xxxxxxx National Life Insurance Company |
$ | 20,000,000 | ||
The Prudential assurance Company Limited |
$ | 15,000,000 | ||
Ameritas Life Insurance Corp. |
$ | 3,000,000 | ||
Acacia Life Insurance Company |
$ | 2,000,000 | ||
The Northwestern Mutual Life Insurance Company |
$ | 15,000,000 | ||
The Guardian Life Insurance Company of America |
$ | 10,000,000 | ||
total |
$ | 190,000,000 |
SCHEDULE I
(to First Amendment to Note Purchase Agreement)
(to First Amendment to Note Purchase Agreement)
ACKNOWLEDGMENT AND CONSENT
To the institutional investors named in
Schedule I to the First Amendment (as hereinafter described)
Schedule I to the First Amendment (as hereinafter described)
This Acknowledgment and Consent (this “Acknowledgment and Consent”), dated as of January 15,
2005, is being delivered by the undersigned (the “Subsidiary Guarantor”), in respect of that
certain Subsidiary Guaranty dated as of July 28, 2004 (the “Subsidiary Guaranty”), given in favor
of the institutional investors referred therein, and in connection with the transactions
contemplated by the First Amendment to Note Purchase Agreement, effective as of even date
herewith (the “First Amendment”), by and among Xxx Xxxxx Farms, Inc., a Delaware corporation (the
“Company”), BEF Holding Co., Inc., a Delaware corporation (the “Issuer”), and each of the
institutional investors party thereto, in respect of the original Note Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such
terms in the First Amendment.
By executing this Acknowledgment and Consent as of the date hereof, the Subsidiary
Guarantor:
(i) acknowledges receipt of a copy of, and hereby consents to the terms of, the
First Amendment;
(ii) ratifies and confirms the Subsidiary Guaranty; and
(iii) confirms that the Subsidiary Guaranty continues unimpaired and in full force
effect.
[Signature Pages for Acknowledgment and Consent Follow]
EXHIBIT A
(to First Amendment to Note Purchase Agreement)
(to First Amendment to Note Purchase Agreement)
This Acknowledgment and Consent may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signatures to this Acknowledgment and Consent may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party sending the
same.
MIMI’S CAFE, LLC |
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By | /s/ Xxx Xxxxxxxxxx | |||
Its: Senior Vice President of Finance | ||||