EX-4.2






Exhibit 4.2




Execution Copy




 





Bob Evans Farms, Inc.

a Delaware corporation




Bob Evans Farms, Inc.

an Ohio corporation

(as Successor to BEF Holding Co., Inc.)




 






Second Amendment

Dated as of February 24, 2009




to




Note Purchase Agreement

Dated as of July 28, 2004




 






	 	 	 	 	 	 	 
	 

	 	Re:

	 	$40,000,000 4.61% Senior Notes, Series B,
	 	 
	 

	 	 	 	Due July 28, 2010	 	 
	 

	 	 	 	$95,000,000 5.12% Senior Notes, Series C,	 	 
	 

	 	 	 	Due July 28, 2014	 	 
	 

	 	 	 	$25,000,000 5.67% Senior Notes, Series D,	 	 
	 

	 	 	 	Due July 28, 2016	 	 






 















 








Second Amendment to Note Purchase Agreement




     This Second Amendment dated as of February 24, 2009 (the or this “Second Amendment”)
to the Note Purchase Agreement dated as of July 28, 2004 is between Bob Evans Farms, Inc.,
a Delaware corporation (the “Company”), Bob Evans Farms, Inc., an Ohio Corporation (the “Issuer”)
as successor to BEF Holding Co., Inc. and each of the institutions which is a signatory to this
Second Amendment (collectively, the “Noteholders”).



R e c i t a l s:




     A. The Company, the Issuer and each of the Noteholders have heretofore entered into the Note
Purchase Agreement dated as of July 28, 2004, as amended by that certain First Amendment to Note
Purchase Agreement dated as of January 15, 2005 (the “Note Agreement”). The Issuer has heretofore
issued the $40,000,000 4.61% Senior Notes, Series B due July 28, 2010 (the “Series B Notes”),
$95,000,000 5.12% Senior Notes, Series C due July 28, 2014 (the “Series C Notes”) and $25,000,000
5.67% Senior Notes, Series D due July 28, 2016 (the “Series D Notes” and together with the Series B
Notes and Series C Notes, the “Notes”) pursuant to the Note Agreement. The Noteholders are the
holders of the outstanding principal amount of the Notes to set forth opposite their names on the
signature pages hereto.



     B. The Company, the Issuer and the Noteholders now desire to amend the Note Agreement in the
respects, but only in the respects, hereinafter set forth.



     C. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Note Agreement unless herein defined or the context shall otherwise require.



     D. All requirements of law have been fully complied with and all other acts and things
necessary to make this Second Amendment a valid, legal and binding instrument according to its
terms for the purposes herein expressed have been done or performed.



     Now, therefore, upon the full and complete satisfaction of the conditions precedent
to the effectiveness of this Second Amendment set forth in §3.1 hereof, and in consideration of
good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the
Company, the Issuer and the Noteholders do hereby agree as follows:



Section 1. Amendments.




     Section 1.1. Section 9 of the existing Note Agreement shall be and is hereby amended by
inserting a new Section 9.7 to read in its entirety as follows:



     Section 9.7. Additional Restrictions. If at any time the Company or any Subsidiary is a party
to or shall enter into any agreement, instrument or other document with respect to any
Indebtedness, including, without limitation, any amendment to or modification or replacement of an
agreement existing on the date of Closing (a “Reference Agreement”), or any subsequent amendment or
modification to any such Reference Agreement (or waiver or consent modifying













 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment





the terms of any Reference Agreement), which Reference Agreement includes financial covenants
(whether expressed in ratios or as numerical or dollar thresholds in respect of future financial
performance or condition), including such financial covenants which are expressed as “events of
default”, in each case which are not otherwise included in this Agreement (herein referred to as
“New Covenants”) or which would be more beneficial to the holders than relevant similar covenants
or like provisions contained in this Agreement (herein referred to as “Improved Covenants” and,
together with New Covenants, “Additional Covenants”), then such Additional Covenants and all
related provisions and definitions shall be deemed incorporated by reference into Section 7.2(a),
Section 10 and Section 12(c) of this Agreement, mutatis mutandi, as if set forth fully in this
Agreement effective as of the date when such Additional Covenants became effective under the
applicable Reference Agreement. The Company shall





     (1) provide a copy of such Additional Covenants and all related provisions and
definitions to the holders of the Notes promptly upon entering into the Reference Agreement,
including with such copy a notice to the holders of the date on which such Additional
Covenants became or will become effective, provided that the failure of the Company to
provide a copy of such Additional Covenants to the holders shall not adversely affect the
automatic incorporation of the Additional Covenants into this Agreement as provided above in
this Section 9.7; and




     (2) as promptly as possible following delivery of such copy, provide the draft of a
statement of incorporation (a “Memorialization”) to be executed by the Company and the
holders, which Memorialization shall set out the terms of the Additional Covenants and
related provisions and definitions as incorporated into this Agreement, with all appropriate
changes required in connection with incorporating the Additional Covenants mutatis mutandi.


If the Company fails to provide a draft of a Memorialization, then any holder may produce a draft
for the consideration of the Company and the other holders. Any Memorialization executed and
delivered by the Company and by the Required Holders (or all holders if pursuant to Section 18.1
the relevant amendment would require the consent of all holders) shall be good and sufficient
evidence of the terms of any such Additional Covenant as incorporated into this Agreement, provided
that the failure of the holders and the Company to execute and deliver any Memorialization shall
not adversely affect the automatic incorporation of the Additional Covenants into this Agreement as
provided above in this Section 9.7.




     Notwithstanding the foregoing, provided that no Default or Event of Default has occurred and
is then continuing, (A) if any Additional Covenant that has been incorporated herein pursuant to
this Section 9.7 is subsequently amended or modified in the relevant Reference Agreement with the
effect that such Additional Covenant is made less restrictive on the Company, such Additional
Covenant, as amended or modified, shall be deemed incorporated by reference into this Agreement,
mutatis mutandi, as if set forth fully in this Agreement, effective beginning on the Effective Date
and (B) if any Additional Covenant that has been incorporated herein pursuant to this Section 9.7
is subsequently removed or terminated from the relevant Reference Agreement or the Company and its
Subsidiaries are otherwise no longer required to comply therewith under the relevant Reference
Agreement, the Company and its Subsidiaries



-2-









 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment





shall, beginning on the Effective Date, no longer be or remain obligated to comply with such
Additional Covenant hereunder; provided, however, that in no event shall an Improved Covenant be
amended, modified, terminated or removed pursuant to this Section 9.7 such that it is made less
restrictive on the Company than the form of the relevant similar covenant or like provision in this
Agreement that it replaced, amended or modified, it being the intent of this Agreement in such
cases to return such covenants or provisions, upon the Effective Date, to the text of such covenant
or provision as it existed immediately prior to the incorporation of such Improved Covenant
pursuant to this Section 9.7. For purposes of this Section 9.7, “Effective Date” shall mean that
day which is the first to occur of (a) the first Business Day falling at least 365 days after the
effective date of the removal, termination, amendment or modification, as applicable, of the
Additional Covenant under the relevant Reference Agreement and (b) the day on which the holders of
Notes receive a compliance certificate pursuant to Section 7.2 hereof in connection with the
Company’s quarterly or annual financial statements, as applicable, covering the next subsequent
financial period of the Company following the financial period in which such Additional Covenant
was removed, terminated, amended or modified, as applicable, under the relevant Reference Agreement
indicating that the Company was in compliance with such Additional Covenant as of the end of such
financial period.




     Section 1.2. Section 10.3 of the Note Agreement shall be and is hereby amended by replacing
“60%” in subparagraph (a) with “55%.”



     Section 1.3. Section 10 of the existing Note Agreement shall be and is hereby amended to
include the following new Section:



     Section 10.11. Restricted Payments. The Company will not, and will not permit any of its
Subsidiaries to, on or prior to October 23, 2009, declare or make, or incur any liability to
declare or make, any Restricted Payment. Any failure to comply with this covenant shall constitute
a Default under Section 12(c) hereof. The Company may agree to the same covenant in that certain
Note Purchase Agreement dated as of July 28, 2008 without creating a Default or Event of Default
under Section 10.8 solely as a result of such covenant.



     Section 1.4. Schedule B to the existing Note Agreement shall be and is hereby amended to
include the following new definitions:



     “Distribution” means, in respect of any corporation, association or other business entity:




     (a) dividends or other distributions or payments on capital stock or other equity
interest of such corporation, association or other business entity (except distributions in
such stock or other equity interest); and




     (b) the redemption or acquisition of such stock or other equity interests or of
warrants, rights or other options to purchase such stock or other equity interests (except
when solely in exchange for such stock or other equity interests) unless made,
contemporaneously, from the net proceeds of a sale of such stock or other equity interests.



-3-









 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






     “Restricted Payment” means




     (a) any Distribution in respect of the Company or any Subsidiary of the Company,
including, without limitation, any Distribution resulting in the acquisition by the Company
of securities which would constitute treasury stock; provided that, so long as no Default or
Event of Default shall have occurred and be continuing, the following Distributions shall
not constitute Restricted Payments: (i) dividends paid on the Company’s common stock on a
pro rata basis in the ordinary course of business to all holders of common stock in an
amount not to exceed $0.16 per share (as adjusted for any splits, combinations and any
similar actions with respect to the Company’s common stock) per fiscal quarter, (ii)
Distributions on account of capital stock or other equity interests of a Subsidiary of the
Company owned legally and beneficially by the Company or another Subsidiary of the Company),
(iii) Distributions pursuant to and in accordance with employment contracts, dividend
reinvestment and stock purchase plans, stock option or equity plans or other benefit plans
or similar arrangements (including but not limited to any 401(k) plan) for consultants,
management (including directors and officers) or employees of the Company and its
Subsidiaries generally consistent with past practices, (iv) Distributions consisting of
repurchases of stock or other equity interests of the Company in connection with the
exercise of stock options or the vesting of equity awards, in each case by or in respect of
employees or management of the Company and its Subsidiaries, and (v) de minimis
Distributions on account of preferred stock of a Subsidiary of the Company which preferred
stock was previously cancelled during fiscal year 2009 of the Company in an amount not to
exceed $60,000 in the aggregate, and




     (b) any payment, repayment, redemption, retirement, repurchase or other acquisition,
direct or indirect, by the Company or any Subsidiary of, on account of, or in respect of,
the principal of any Subordinated Debt (or any installment thereof) prior to the regularly
scheduled maturity date thereof (as in effect on the date such Subordinated Debt was
originally incurred).



     For purposes of this Agreement, the amount of any Restricted Payment made in property shall be
the greater of (x) the Fair Market Value of such property (as determined in good faith by the board
of directors (or equivalent governing body) of the Person making such Restricted Payment) and (y)
the net book value thereof on the books of such Person, in each case determined as of the date on
which such Restricted Payment is made.



     “Subordinated Debt” means any Consolidated Indebtedness that is in any manner subordinated in
right of payment or security in any respect to Consolidated Indebtedness evidenced by the Notes
provided that in no event shall intercompany Indebtedness of the Company and its Subsidiaries be
considered Subordinated Debt, and provided further that in no event shall Indebtedness of the
Company or the Issuer be considered Subordinated Debt solely as a result of the failure of the
Company, the Issuer or the Subsidiary Guarantor to guarantee the payment of the obligations
thereunder.



-4-









 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






     Section 1.5. The definition of “Consolidated Income Available for Fixed Charges” set forth in
Schedule B to the Note Agreement shall be and is hereby amended in its entirety to read as follows:




     “Consolidated Income Available for Fixed Charges” means, with respect to any period,
Consolidated Net Income for such period plus all amounts deducted in the computation thereof
on account of (a) Fixed Charges, (b) taxes imposed on or measured by income or excess
profits, and (c) for any determination of “Consolidated Income Available for Fixed Charges”
for the fiscal quarters ended January 23, 2009, April 24, 2009, July 24, 2009, and October
23, 2009, write-downs recorded in the Company’s third quarter of fiscal 2009 related to the
impairment of goodwill and other intangible assets in connection with the acquisition of
Mimi’s Cafe in an amount not to exceed $67,962,000 in the aggregate.



     Section 1.6. The definition of “Notes” set forth in Schedule B to the Note Agreement shall be
and is hereby amended in its entirety to read as follows:




     “Notes” is defined in Section 1, and shall, in any event, include any replacement notes
issued in connection with that certain Assumption Agreement dated as of December 31, 2008 by
the Issuer for the benefit of the Noteholders.



Section 2. Representations and Warranties of the Company.




     Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which
representations shall survive the execution and delivery of this Second Amendment), the Company and
the Issuer, jointly and severally, represent and warrant to the Noteholders that:




     (a) this Second Amendment has been duly authorized, executed and delivered by each of
them and this Second Amendment constitutes the legal, valid and binding obligation, contract
and agreement of each of them enforceable against each of them in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles relating to or limiting creditors’ rights generally;




     (b) the Note Agreement, as amended by this Second Amendment, constitutes the legal,
valid and binding obligation, contract and agreement of each of them enforceable against
each of them in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors’ rights generally;




     (c) the execution, delivery and performance by each of them of this Second Amendment
(i) has been duly authorized by all requisite corporate action and, if required, shareholder
action, (ii) does not require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or
regulation or any of their charter documents or by-laws, (2) any order of any court or any
rule, regulation or order of any other agency or government binding upon either of



-5-









 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment







them, or (3) any provision of any material indenture, agreement or other instrument to which
either of them is a party or by which any of their properties or assets are or may be bound,
or (B) result in a breach or constitute (alone or with due notice or lapse of time or both)
a default under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this §2.1(c); and




     (d) as of the date hereof and after giving effect to this Second Amendment, no Default
or Event of Default has occurred which is continuing.



Section 3. Conditions to Effectiveness of This Second Amendment.




     Section 3.1. This Second Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been satisfied:




     (a) executed counterparts of this Second Amendment, duly executed by the Company, the
Issuer and the holders of at least 51% of the outstanding principal of the Notes, shall have
been delivered to the Noteholders;




     (b) the representations and warranties of the Company and the Issuer set forth in §2
hereof are true and correct on and with respect to the date hereof;




     (c) executed counterparts of a First Amendment dated as of the date hereof to the Note
Purchase Agreement dated as of July 28, 2008 duly executed by the Company, the Issuer and
the holders of at least 51% of the aggregate outstanding principal of the Series A and
Series B Notes issued thereunder, shall have been delivered to the Noteholders;




     (d) the Company shall have paid a fee to each Noteholder in an amount equal to 0.15% of
the unpaid principal balance of each Note held by such Noteholder; and




     (e) the Company and the Issuer’s counsel shall have delivered its opinion, dated the
date hereof, substantially in the form of Exhibit A hereto, which opinion shall be
reasonably satisfactory to the holders of the Notes.


Upon receipt of all of the foregoing, this Second Amendment shall become effective.




Section 4. Payment of Noteholders’ Counsel Fees and Expenses.




     Section 4.1. The Company agrees to pay upon demand, the reasonable fees and expenses of
Chapman and Cutler LLP, counsel to the Noteholders, in connection with the negotiation,
preparation, approval, execution and delivery of this Second Amendment.  




-6-









 






			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






Section 5. Miscellaneous.




     Section 5.1. This Second Amendment shall be construed in connection with and as part of the
Note Agreement, and except as modified and expressly amended by this Second Amendment, all terms,
conditions and covenants contained in the Note Agreement and the Notes are hereby ratified and
shall be and remain in full force and effect.



     Section 5.2. Any and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Second Amendment may refer to the Note Agreement
without making specific reference to this Second Amendment but nevertheless all such references
shall include this Second Amendment unless the context otherwise requires.



     Section 5.3. The descriptive headings of the various Sections or parts of this Second
Amendment are for convenience only and shall not affect the meaning or construction of any of the
provisions hereof.



     Section 5.4. This Second Amendment shall be governed by and construed in accordance with New
York law.



     Section 5.5. The Company hereby ratifies and confirms its continued guarantee of the
obligations of the Issuer under the Note Agreement and the Notes pursuant to the terms of the Note
Agreement, and confirms that all of the terms, provisions and conditions thereof continue
unimpaired and remain in full force and effect as of the date hereof.



[Remainder of Page Intentionally Blank]




-7-









 








			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






     Section 5.6. The execution hereof by you shall constitute a contract between us for the uses
and purposes hereinabove set forth, and this Second Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original, but all together only one
agreement.



	 	 	 	 	 
	 	Very truly yours,



Bob Evans Farms, Inc., an Ohio corporation

 	 
	 	By:  	/s/ Tod P. Spornhauer
 	 
	 	 	Name:  	Tod P. Spornhauer 	 
	 	 	Title: Senior Vice President — Finance,

Controller and Assistant Treasurer 	 
	 
	 	Bob Evans Farms, Inc., a Delaware corporation

 	 
	 	By:  	/s/ Tod P. Spornhauer
 	 
	 	 	Name:  	Tod P. Spornhauer 	 
	 	 	Title: Senior Vice President — Finance,

Controller and Assistant Treasurer 	 
	 




-8-









 








Accepted as of the date first written above.




	 	 	 	 	 
	 	Metropolitan Life Insurance Company

 	 
	 	By:  	/s/ Judith A. Gulotta 	 
	 	       Name:  Judith A. Gulotta 	 
	 	       Title:    Managing Director 	 
	 
	 	 Amount of Notes held: $8,571,473.68 	 
	 	 	 














 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	Nationwide Life Insurance Company


Nationwide Life and Annuity Insurance
Company

Nationwide Mutual Insurance Company

 	 
	 	By:  	/s/ Thomas A. Gleason
 	 
	 	 	Name:  	Thomas A. Gleason 	 
	 	 	Title:  	Senior Investment Professional 	 
	 
	 	 Amount of Notes held: $10,000,125.00 	 
	 	 	 


















 











			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	Pacific Life Insurance Company

 	 
	 	By:  	/s/ Cathy Schwartz
 	 
	 	 	Name:  	Cathy Schwartz 	 
	 	 	Title:  	Assistant Vice President 	 
	 	 	 
	 	By:  	                   /s/ Violet Osterberg
 	 
	 	 	Name:  	Violet Osterberg 	 
	 	 	Title:  	Assistant Secretary 	 
	 
	 	Amount of Notes held: $10,000,125.00
 	 
	 	 	 














 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	Wachovia Capital Markets, LLC

 	 
	 	By:  	/s/ Mark W. Ponder
 	 
	 	 	Name:  	Mark W. Ponder 	 
	 	 	Title:  	Managing Director 	 
	 
	 	Amount of Notes held: $10,285,768.42
 	 
	 	 	 














 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	Northwest Farm Credit Services, PCA

 	 
	 	By:  	/s/ Casey Kinzer
 	 
	 	 	Name:  	Casey Kinzer 	 
	 	 	Title:  	Account Manager 	 
	 
	 	Amount of Notes held: $17,142,947.37 	 
	 	 	 














 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	The Northwestern Mutual Life Insurance Company

 	 
	 	By:  	/s/ Timothy S. Collins
 	 
	 	 	Name:  	Timothy S. Collins 	 
	 	 	Its:  Authorized Representative 	 
	 
	 	Amount of Notes held: $27,857,210.53 	 
	 	 	 














 





			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	The Guardian Life Insurance Company of

    America

 	 
	 	By:  	/s/ Brian Keating
 	 
	 	 	Name:  	Brian Keating 	 
	 	 	Its:  Managing Director 	 
	 
	 	Amount of Notes held: $10,000,000 	 
	 	 	 


















 











			
	 	 	 
	Bob Evans Farms, Inc.
	 	Second Amendment






	 	 	 	 	 
	 	Great-West Life & Annuity Insurance Company

 	 
	 	By:  	/s/ James G. Lowery
 	 
	 	 	Name:  	James G. Lowery 	 
	 	 	Its: 	 
	 	 	 
	 	By:  	                   /s/ Eve Hampton
 	 
	 	 	Name:  	Eve Hampton 	 
	 	 	Its:  Vice President, Investments 	 
	 
	 	Amount of Notes held: $10,952,486.84 	 
	 	 	 














 





Acknowledgment and Consent




     The undersigned acknowledges receipt of a copy of, and hereby consents to, the Second
Amendment, ratifies and confirms its continued guarantee of the obligations of the Company under
the Note Agreement and the Notes pursuant to the terms of the Subsidiary Guaranty, and confirms
that all of the terms, provisions and conditions thereof continue unimpaired and remain in full
force and effect on this 24th day of February, 2009.



	 	 	 	 	 
	 	Mimi’s Café, LLC, a Delaware limited liability company

 	 
	 	By:  	/s/ Tod P. Spornhauer
 	 
	 	 	Name:  	Tod P. Spornhauer 	 
	 	 	Title: Manager, Assistant Treasurer and

Assistant Secretary