SECOND AMENDMENT
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THIS SECOND AMENDMENT dated as of December 13, 1999 (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 Addition of Definitions. Section 1.1 is amended by adding the
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following definitions in proper alphabetical sequence:
Covenant Stepdown Date means the date on which the aggregate
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of all equity securities issued by the Company after the date of the
Second Amendment to this Agreement plus the aggregate amount of all
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Preferred Securities issued by any Special Purpose Trust equals or
exceeds $150,000,000.
Debenture means any debt security which is issued by the
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Company to a Special Purpose Trust in exchange for proceeds of
Preferred Securities and which is subordinated to the obligations
of the Company hereunder in a manner reasonably acceptable to the
Required Lenders.
Xxxx Restructuring Charges means the first $5,000,000 of
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restructuring charges taken by the Company in connection with the
acquisition by the Company of Xxxx Holdings, Inc.
Preferred Securities means preferred securities issued by a
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Special Purpose Trust which (i) provide, among other things, that
dividends are payable only out of proceeds of interest payments on
Debentures and (ii) are treated in whole or in part as equity for
rating agency purposes while being treated as debt for tax purposes.
Special Purpose Trust means a special purpose business trust
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established by the Company of which the Company will hold all the
common securities, which will be the issuer of Preferred Securities,
and which will loan to the Company (such loan being evidenced by
Debentures) the net proceeds of the issuance and sale of any
Preferred Securities.
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 and, without duplication, all Restructuring Charges and all
Xxxx Restructuring Charges.
1.3 Amendment to Definition of Indebtedness. The definition of
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Indebtedness in Section 1.1 is amended by adding the following sentence at
the end thereof:
Notwithstanding the foregoing, on and after the Covenant Stepdown
Date "Indebtedness" shall not include (x) the obligations of a
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Special Purpose Trust under any Preferred Securities or (y) the
obligations of the Company under any Debentures or under any guaranty
of any Preferred Securities so long as such guaranty has been
subordinated to the obligations of the Company hereunder in a
manner reasonably satisfactory to the Required Lenders.
1.4 Amendment of Leverage Covenant. Section 8.1(a) is amended in its
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entirety to read as follows:
8.1 Financial Condition Covenants.
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(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, .60 to 1, and (C) at any time thereafter .55
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, .60 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
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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) evidence, satisfactory
to the Administrative Agent, that the Company has completed the acquisition
of Xxxx Holdings, Inc., (ii) for the account of each Lender which has delivered
a signed counterpart of this Amendment to the Administrative Agent prior to
the Amendment Effective Date, 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) copies, certified by the Secretary or Assistant Secretary of
the Company, of resolutions of the Board of Directors of the
Company authorizing or ratifying the execution, delivery and
performance by the Company of this Amendment;
(c) 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;
(d) an opinion of Xxxxx Xxxx LLP, counsel to the Company; and
(e) 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.
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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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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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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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