THIRD AMENDMENT
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THIS THIRD AMENDMENT dated as of December 15, 2000 (this
"Amendment"), amends the Second Amended and Restated Credit Agreement dated
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as of October 3, 1997 (the "Credit Agreement") among The Earthgrains Company
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(the "Company"), various financial institutions (the "Lenders") and Bank of
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America, N.A. (formerly known as Bank of America National Trust and Savings
Association), as Administrative Agent (in such capacity, the "Administrative
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Agent"). Terms defined in the Credit Agreement are, unless otherwise defined
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herein or the context otherwise requires, used herein as defined therein.
WHEREAS, the Company, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Effective on (and subject to the occurrence
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of) the Amendment Effective Date (as defined below), the Credit Agreement
shall be amended as set forth below:
1.1 Amendment to Definition of Xxxx Restructuring Charges. The
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definition of "Xxxx Restructuring Charges" in Section 1.1 is amended in its
entirety to read as follows: Xxxx Restructuring Charges means the first
$7,000,000 of restructuring and other cash charges taken by the Company
after September 12, 2000, including those taken in connection with the
acquisition by the Company of Xxxx Holdings, Inc. and the related closure of
plants including those in Des Moines, Iowa and Louisville, Kentucky.
1.2 Amendment to Definition of EBITA. The definition of "EBITA" in
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Section 1.1 is amended in its entirety to read as follows:
EBITA means, for any Computation Period, the Company's
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consolidated earnings from continuing operations for such period, plus,
to the extent deducted in determining such earnings, Interest Expense,
income taxes, any amortization of the goodwill on the Company's balance
sheet as of January 2, 1996, any non-cash special charge, all AmeriServe
Bankruptcy Charges, the first $35,000,000 of costs (including lost operating
income) related to the strike by certain bakery workers and other employees
in August and September of 2000 and, without duplication, all Restructuring
Charges and all Xxxx Restructuring Charges.
1.3 Amendment of Leverage Ratio. Subsection 8.1(a) is amended in its
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entirety to read as follows:
(a) Leverage Ratio. The Company shall not permit the
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Leverage Ratio to be greater than (i) if the Covenant Stepdown Date has not
occurred, (A) at any time prior to the last day of the fourth fiscal quarter
of fiscal year 2001, .65 to 1, (B) at any time thereafter but prior to the
last day of the fourth fiscal quarter of fiscal year 2002, .625 to 1, and
(C) at any time thereafter .60 to 1; and (ii) if the Covenant Stepdown Date
has occurred, (A) at any time prior to the last day of the second fiscal
quarter of fiscal year 2001, .625 to 1, and (B) at any time thereafter, .55
to 1.
SECTION 2 Representations and Warranties. The Company represents
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and warrants to the Lenders that (a) each warranty set forth in Article VI
of the Credit Agreement, as amended hereby (as so amended, the "Amended
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Credit Agreement"), is true and correct as of the date of the execution and
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delivery of this Amendment by the Company, with the same effect as if made
on such date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they were true and correct
as of such earlier date), (b) the execution and delivery by the Company of
this Amendment, and the performance by the Company of its obligations under
the Amended Credit Agreement, (i) are within the powers of the Company, (ii)
have been duly authorized by all necessary action on the part of the
Company, (iii) have received all necessary governmental approval and (iv) do
not and will not contravene or conflict with any Requirement of Law or any
provision of the Organization Documents of the Company or of any document
evidencing any Contractual Obligation to which the Company or any Subsidiary
is a party or any order, injunction, writ or decree of any Governmental
Authority to which the Company or any Subsidiary or any of its or their
property is subject and (c) the Amended Credit Agreement is the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
SECTION 3 Effectiveness. The amendments set forth in Section 1
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above shall become effective on the date (the "Amendment Effective Date")
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when the Administrative Agent shall have received (i) for the account of
each Lender which has delivered (by facsimile or otherwise) a signed
counterpart of this Amendment to the Administrative Agent at or prior to
5:00 p.m., Chicago time, on December 15, 2000, an amendment fee in an amount
equal to 0.05% of such Lender's Commitment, and (iii) each of the following
documents, each in form and substance satisfactory to the Administrative
Agent:
(a) counterparts of this Amendment executed by the Company and the
Required Lenders;
(b) a certificate, certified by the Secretary or an Assistant
Secretary of the Company, certifying the names and true signatures
of the officers of the Company authorized to sign this Amendment;
and
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(c) such other documents as the Administrative Agent or any Lender
may reasonably request in connection with the Company's
authorization, execution and delivery of this Amendment.
SECTION 4 Miscellaneous.
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4.1 Continuing Effectiveness, etc. As herein amended, the Credit
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Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Amendment Effective Date, all
references in the Credit Agreement and the Notes to "Credit Agreement",
"Agreement" or similar terms shall refer to the Amended Credit Agreement.
4.2 Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 Governing Law. This Amendment shall be a contract made under
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and governed by the laws of the State of Illinois applicable to contracts
made and to be fully performed within such state.
4.4 Successors and Assigns. This Amendment shall be binding upon
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the Company, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Company, the
Lenders and the Administrative Agent and the respective successors and
assigns of the Lenders and the Administrative Agent.
Delivered at Chicago, Illinois, as of the day and year first above written.
THE EARTHGRAINS COMPANY
By:
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Vice President and Treasurer
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BANK OF AMERICA, N.A.,
as Administrative Agent
By:
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Title:
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BANK OF AMERICA, N.A., as Swing Line
Lender, as an Issuing Lender and as a Lender
By:
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Title:
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THE CHASE MANHATTAN BANK,
as Co-Agent and as a Lender
By:
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Title:
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BANK ONE, NA (Main Office Chicago),
as Co-Agent and as a Lender
By:
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Title:
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Agent and as a Lender
By:
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Title:
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WACHOVIA BANK, N.A.
By:
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Title:
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XXXXX FARGO BANK, N.A.
By:
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Title:
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XXX XXXX XX XXX XXXX
By:
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Title:
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BANCO BILBAO VIZCAYA
By:
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Title:
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UBS AG, STAMFORD BRANCH
By:
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Title:
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By:
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Title:
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SUN TRUST BANK, ATLANTA
By:
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Title:
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By:
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Title:
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AMSOUTH BANK
By:
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Title:
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By:
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Title:
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