FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10(g)
FIRST
AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of
November 2, 2006, among TASTY BAKING COMPANY (the
“Company”), the direct and indirect subsidiaries of the
Company parties
hereto (together with the Company, each a “Borrower” and collectively,
the “Borrowers”), the several banks and other financial institutions
parties to the Credit Agreement (as hereinafter defined) (collectively,
the
“Banks”), and PNC BANK, NATIONAL ASSOCIATION, as agent for the Banks (in such
capacity, the “Agent”).
WI
T N E S S E T H:
WHEREAS,
the Borrowers, the Banks and the Agent are parties to a Credit Agreement,
dated
as of September 13, 2005 (as heretofore amended, supplemented or otherwise
modified, the "Credit Agreement");
WHEREAS,
the Company has advised the Agent and the Banks that the Company
has entered into that certain Option Agreement dated as of July 7, 2006
(the
“Option Agreement”) with Keystone Redevelopment Partners, LLC (the
“Purchaser”) pursuant to which the Company has sold to the Purchaser
an
option to purchase (the “Real Estate Option”) that certain real property
located at 0000 Xxx Xxxxxx, Xxxxxxxxxxxx, XX (the “Tasty Property”); and
WHEREAS,
the Borrowers, the Agent, and the Banks have agreed to amend the Credit
Agreement by modifying the Minimum Tangible Net Worth covenant, subject
to the
terms hereof.
NOW,
THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Defined
Terms. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
2.
Consent
to Sale of Tasty Property. The Agent and the Banks hereby consent
to (a) the sale of the Real Estate Option to the Purchaser pursuant to
the terms
of the Option Agreement and (b) upon the exercise of the Real Estate Option
by
the Purchaser, the final sale of the Tasty Property to the Purchaser which
shall
be consistent in all material respects with the terms of the Option Agreement.
For the avoidance of doubt, the sale of the Real Estate Option and the
final
sale of the Tasty Property, when and if it occurs, shall not constitute
a
Default or an Event of Default.
3. Amendment
to Credit Agreement. Effective the date set forth above, subsection
6.1(a) of the Credit Agreement is hereby amended and restated to read in
full as
follows:
“(a)
Minimum
Tangible Net Worth. Permit the Tangible Net Worth of the Company and its
consolidated Subsidiaries at any time to be less than the sum of (i)
$38,500,000, plus (ii) on a cumulative basis any non-cash pension gains
recorded
during any fiscal quarter commencing with the fiscal quarter ending September
30, 2005, minus (iii) on a cumulative basis any non-cash pension charges
recorded for any fiscal quarter commencing with the fiscal quarter ending
September 30, 2005, plus (iv) on a cumulative basis fifty percent (50%)
of net
income (or, in the case of a deficit, zero percent (0%)) for the Company
and its
consolidated Subsidiaries in respect of each fiscal quarter commencing
with the
Borrowers’ fiscal quarter ending June 30, 2005, with each increase or decrease
to be effective as of the last day of each such fiscal quarter.”
4. Representations
and Warranties. Each Borrower hereby represents and warrants to the
Banks and the Agent that:
(a) There
exists no Default or Event of Default under the Credit Agreement;
(b) The
representations and warranties made in the Loan Documents are true and
correct
in all material respects on and as of the date hereof as if made on and
as of
the date hereof, except that any such representation and warranty that
is given
as of a particular date or period and relates solely to such date or period
is
true and correct in all material respects as of such date or period; and
(c)
The
execution and delivery of this Amendment by and on behalf of each Borrower
has
been duly authorized by all requisite action on behalf of such Borrower,
and
this Amendment constitutes the legal, valid and binding obligation of each
Borrower, enforceable against it in accordance with their terms.
5.
Conditions
Precedent. The effectiveness of the amendments set forth herein is
subject to the fulfillment, to the satisfaction of the Agent and its counsel,
of
the following conditions precedent:
(a) The
Agent
having received the following, all of which shall be in form and substance
satisfactory to the Agent and its counsel:
(i) This
Amendment duly executed by the Borrowers, the Agent and the Banks;
and
(ii)
Such
additional documents, certificates, and information as the Agent may require
pursuant to the terms hereof or otherwise reasonably request.
(b) The
representations and warranties set forth in the Credit Agreement, as amended
hereby, shall be true and correct in all material respects on and as of
the date
hereof, except that any such representation and warranty that is given
as of a
particular date or period and relates solely to such date or period shall
be
true and correct in all material respects only as of such date or period.
(c) There
exists no Default or Event of Default under the Credit Agreement as amended
hereby.
6.
Borrowers’
Ratification. The Borrowers agree that they have no defenses or
set-offs against the Banks or the Agent or their respective officers, directors,
employees, agents or attorneys, with respect to the Credit Agreement and
the
other Loan Documents, all of which are in full force and effect, and that
all of
the terms and conditions of the Credit Agreement and the other Loan Documents
not inconsistent herewith shall remain in full force and effect unless
and until
modified or amended in writing in accordance with their terms. The Borrowers
hereby ratify and confirm their respective obligations under the Credit
Agreement and the other Loan Documents and agree that the execution and
delivery
of this Amendment does not in any way diminish or invalidate any of their
obligations thereunder.
7.
Limited
Effect. All terms, conditions, provisions and covenants in the
Credit Agreement and the other Loan Documents and all other documents delivered
to the Agent and the Banks in connection therewith shall remain unaltered
and in
full force and effect except as modified or amended hereby. To the extent
that
any term or provision of this Amendment is or may be deemed expressly
inconsistent with any term or provision in the Credit Agreement or any
of the
Loan Documents or any other document executed in connection therewith,
the terms
and provisions hereof shall control. Except as set forth herein, the execution,
delivery and effectiveness of this Amendment shall neither operate as a
waiver
of any right, power or remedy of the Agent or the Banks under any of the
Credit
Agreement or the other Loan Documents nor constitute a waiver of any Default
or
Event of Default thereunder.
8.
Integration.
This Amendment constitutes the sole agreement of the parties with respect
to the
terms hereof and shall supersede all oral negotiations and the terms of
prior
writings with respect thereto.
9.
Severability.
Any provision of this Amendment which is prohibited or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
10. Miscellaneous.
(a) Expenses.
The Borrowers agree to pay all of the Agent’s reasonable out-of-pocket fees and
expenses incurred in connection with the preparation, negotiation and execution
of this Amendment and the other documents executed in connection herewith,
including without limitation, the reasonable fees and expenses of counsel
to the
Agent.
(b) Governing
Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(c)
Successor
and Assigns. This Amendment shall inure to the benefit of, and be
binding upon, the parties hereto and their respective successors and assigns.
(d)
Counterparts.
This Amendment may be executed in one or more counterparts, each of which
shall
be deemed to be an original, and all of which shall constitute one and
the same
instrument.
(e)
Headings.
The headings of any paragraph of this Amendment are for convenience only
and
shall not be used to interpret any provision hereof.
(f)
Modifications.
No modification hereof or any agreement referred to
herein
shall be binding or enforceable unless in writing and signed on behalf
of the
party against whom enforcement is sought.
[Signatures
to Follow]
IN
WITNESS
WHEREOF, the parties hereto have caused this Amendment to be duly executed
and
delivered by their proper and duly authorized officers as of the day and
year
first above written.
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TASTY
BAKING COMPANY
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By:
/s/ Xxxxxx X. Xxxxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxxxx
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Title:
Corporate Treasurer
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TASTYKAKE
INVESTMENT COMPANY
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By:
/s/ Xxxxxx X. Xxxxxxxxxx
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Name:
Xxxxxx X. Xxxxxxxxxx
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Title:
Treasurer
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TBC
FINANCIAL SERVICES, INC.
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By:
/s/ Xxxxxx X. Xxxxxxxxxx
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Name:Xxxxxx
X. Xxxxxxxxxx
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Title:
Treasurer
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TASTY
BAKING OXFORD, INC.
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By:
/s/ Xxxxxx X. Xxxxxxxxxx
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Name:Xxxxxx
X. Xxxxxxxxxx
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Title:
Treasurer
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PNC
BANK, NATIONAL ASSOCIATION,
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as
Agent, Swing Line Bank, Issuing Bank and a Bank
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By:
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx
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Senior
Vice President
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CITIZENS
BANK OF PENNSYLVANIA, as a Bank
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By:
/s/ Xxxx X. Xxxxxxxxx
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Xxxx
X. Xxxxxxxxx
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Senior
Vice President
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