SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10
(b)
SECOND AMENDMENT TO CREDIT
AGREEMENT
THIS SECOND AMENDMENT TO CREDIT
AGREEMENT (the “Amendment”) is made effective
as of the 16th day of July, 2008 by and among TASTY BAKING COMPANY, a
Pennsylvania corporation (“Company”), the direct and
indirect subsidiaries of the Company from time to time parties to the Credit
Agreement (as defined below) (the “Subsidiary Borrowers” and with
the Company, collectively, the “Borrowers”), each lender from
time to time party to the Credit Agreement (collectively, the “Lenders” and individually, a
“Lender”), and CITIZENS BANK OF PENNSYLVANIA, as
Administrative Agent, Collateral Agent, Swing Line Lender and L/C Issuer (the
“Agent”).
BACKGROUND
A. Borrowers,
Lenders and Agent have previously entered into a certain Credit Agreement dated
September 6, 2007, as amended by that certain First Amendment to Credit
Agreement dated December 12, 2007 (as amended and as may be further amended,
supplemented or restated from time to time, the “Credit Agreement”), pursuant
to which, inter
alia, Agent and
Lenders agreed to extend to Borrowers certain credit facilities subject to the
terms and conditions set forth therein.
B. Borrowers,
Lenders and Agent have agreed to amend the terms of the Credit Agreement in
accordance with the terms and conditions hereof.
C. Capitalized
terms used herein and not otherwise defined in this Amendment shall have the
meanings set forth therefor in the Credit Agreement.
NOW THEREFORE, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Fixed
Asset Revolving Loans. Notwithstanding anything to the
contrary contained in the Credit Agreement, including without limitation Sections
2.05 and 4.04 thereof, subject to the terms and conditions set forth in
this Amendment, each Lender severally agrees to make Fixed Asset Loans on a
revolving basis to Borrowers from time to time, on any Business Day during the
period from and including the date hereof to December 31, 2009 (the “Fixed Asset Revolving Loan
Advance Period”), in an outstanding amount not to exceed such Lender’s
Commitment of Fixed Asset Loans for an aggregate principal amount not to exceed
Ten Million Dollars ($10,000,000) at any time (the “Fixed Asset Revolving Loan
Sublimit”). Borrowers acknowledge and agree that after giving
effect to any Fixed Asset Loan made under the Fixed Asset Revolving Loan
Sublimit, the aggregate outstanding amount of such loans shall reduce the
Aggregate Commitments for Fixed Asset Loans to be made available to Borrowers on
a dollar-for-dollar basis. Within the limits of each Lender’s
Commitment for Fixed Asset Loans, and subject to the other terms and conditions
hereof, Borrowers may borrow and reborrow under the Fixed Asset Revolving Loan
Sublimit without payment of any penalty or premium until the expiration of the
Fixed Asset Revolving Loan Advance Period. Upon expiration of the
Fixed Asset Revolving Loan Advance Period, all Fixed Asset Loans will, at
Borrowers’ option, be immediately due and payable or be deemed to be advanced as
non-revolving Fixed Asset Loans and automatically reduce the Aggregate
Commitments for Fixed Asset Loans to be made available to Borrowers on a
dollar-for-dollar basis.
2. Conditions
of Fixed Asset Loans under Fixed Asset Revolving Loan
Sublimit. The obligation of each Lender to honor any Request
for Credit Extension of a Fixed Asset Loan to be made under the Fixed Asset
Revolving Loan Sublimit is subject to the following conditions
precedent:
2.1 Except as
otherwise provided in the Credit Agreement, Agent shall have received and
approved a Fixed Asset Loan Notice duly executed on behalf of Borrowers with
such information and supporting documentation as Agent may require, including
without limitation:
(a) a copy of
the applicable invoices, purchase orders, certificates of delivery, certificates
of installation and other documentation related to the particular items of Navy
Yard Equipment as Agent may reasonably require and evidence, as necessary, that
the requested Borrowing was not covered by prior requests for advances under the
Fixed Asset Loans, the PIDC Financing, the MELF Financing, the Job Bank Term
Loans or any grants received by Borrowers;
(b) a duly
executed Certificate of Advance in the form of Exhibit L attached to
the Credit Agreement;
(c) evidence
that the amount to be funded under such Borrowing shall not exceed the
installment amount then due under the applicable purchase order, invoice, or
other documentation for the applicable item of Navy Yard Equipment;
and
(d) if the
Borrowing is to pay an installment due upon delivery or installation of an item
of Navy Yard Equipment, evidence that the item is fully insured as required
under Section
6.07 of the Credit Agreement.
2.2 Borrowers
shall immediately apply the proceeds of any and all advances of the PIDC
Financing and the MELF Financing to reduce the then outstanding principal
balance of advances under the Fixed Asset Revolving Loan Sublimit.
2.3 Lenders
shall have no obligation to make any Fixed Asset Loan advances under the Fixed
Asset Revolving Loan Sublimit which would cause the aggregate outstanding amount
of all advances of Fixed Asset Loans to exceed $55,000,000.
2.4 Borrowers
shall have paid all fees and expenses then due and payable and required to be
paid by pursuant to the Credit Agreement.
2.5 Advances
under the Fixed Asset Revolving Loan Sublimit will accrue interest on the same
terms and conditions as Fixed Asset Loans under the Credit Agreement and be
payable as provided thereunder.
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2.6 Each
Request for Credit Extension of a Fixed Asset Loan to be made under the Fixed
Asset Revolving Loan Sublimit shall be subject to Agent’s review and approval
and the proceeds of all advances under the Fixed Asset Revolving Loan Sublimit
shall be used by Borrowers in accordance with Section
3 below.
3. Use of
Proceeds of Fixed Asset Revolving Loan Sublimit. Borrowers
shall use the proceeds of the Fixed Asset Loans made under the Fixed Asset
Revolving Loan Sublimit as interim financing prior to the funding of the PIDC
Financing and MELF Financing (i) to pay for certain costs related to the
purchase and installation of bakery equipment (ovens and related equipment) at
the Borrowers’ Navy Yard Project in Philadelphia County, Pennsylvania in
accordance with the Line Item Budget and Disbursement Schedule and (ii) to pay
for the issuance of letters of credit in connection with the purchase of certain
of the Navy Yard Equipment in accordance with the Line Item Budget and
Disbursement Schedule.
4. Other
References. All references in the Credit Agreement and all the
Loan Documents to the term “Loan Documents” shall mean the
Loan Documents as defined therein and this Amendment and any and all other
documents executed and delivered by Borrowers pursuant to and in connection
herewith.
5. Covenants
and Representations and Warranties. Borrowers
hereby:
5.1 ratify,
confirm and agree that the Credit Agreement, as amended by this Amendment, and
all other Loan Documents are valid, binding and in full force and effect as of
the date of this Amendment, and enforceable in accordance with their
terms.
5.2 agree that
they have no defense, set-off, counterclaim or challenge against the payment of
any sums owed or owing under the Loan Documents or the enforcement of any of the
terms of the Loan Documents.
5.3 ratify,
confirm and continue all liens, security interests, pledges, rights and remedies
granted to Agent for the benefit of Lenders in the Loan Documents and agree that
such liens, security interests and pledges shall secure all of the Obligations
under the Loan Documents as amended by this Amendment.
5.4 represent
and warrant that all representations and warranties in the Loan Documents are
true and complete as of the date of this Amendment.
5.5 agree that
their failure to comply with or perform any of their covenants or agreements in
this Amendment will constitute a Default or an Event of Default under the Loan
Documents subject to applicable notice and cure periods set forth in Section
9.01 of the Credit Agreement.
5.6 represent
and warrant that no condition or event exists after taking into account the
terms of this Amendment which would constitute a Default or an Event of
Default.
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5.7 represent
and warrant that the execution and delivery of this Amendment by Borrowers and
all documents and agreements to be executed and delivered pursuant to this
Amendment:
(a) have been
duly authorized by all requisite action of Borrowers;
(b) will not
conflict with or result in a breach of, or constitute a default (or with the
passage of time or the giving of notice or both, will constitute a default)
under, any of the terms, conditions, or provisions of any applicable statute,
law, rule, regulation or ordinance or any Borrower’s Articles of Incorporation
or By-Laws or any indenture, mortgage, loan or credit agreement or instrument to
which any Borrower is a party or by which it may be bound or affected, or any
judgment or order of any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign; and
(c) will not
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of Borrowers under the
terms or provisions of any such agreement or instrument, except liens in favor
of Lenders.
6. No
Novation or Waiver. Nothing contained herein constitutes a
novation of the Credit Agreement or any of the documents collateral thereto and
shall not constitute a release, termination or waiver of any of the liens,
security interests, rights or remedies granted to Agent and Lenders in the
Credit Agreement or any of the other Loan Documents, which liens, security
interests, rights or remedies are hereby ratified, confirmed, extended and
continued as security for all obligations secured by the Credit
Agreement. Nothing contained herein constitutes an agreement or
obligation by Agent or Lenders to grant any further amendments to the Credit
Agreement or any of the other Loan Documents.
7. Inconsistencies. To
the extent of any inconsistency between the terms and conditions of this
Amendment and the terms and conditions of the Credit Agreement or the other Loan
Documents, the terms and conditions of this Amendment shall
prevail. All terms and conditions of the Credit Agreement and the
other Loan Documents not inconsistent herewith, shall remain in full force and
effect and are hereby ratified and confirmed by Borrowers.
8. Binding
Effect. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
9. No Third
Party Beneficiaries. The rights and benefits of this Amendment
and the Loan Documents shall not inure to the benefit of any third
party.
10. Headings. The
headings of the Sections of this Amendment are inserted for convenience only and
shall not be deemed to constitute a part of this Amendment.
11. Severability. The
provisions of this Amendment and all other Loan Documents are deemed to be
severable, and the invalidity or unenforceability of any provision shall not
affect or impair the remaining provisions which shall continue in full force and
effect.
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12. Modifications. No
modifications of this Amendment or any of the Loan Documents shall be binding or
enforceable unless done in accordance with Section
11.01 of the Credit Agreement.
13. Law
Governing. This Amendment has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth, without regard to
any rules or principles regarding conflicts of law or any rule or canon of
construction which interprets agreements against the draftsman.
14. Waiver of
Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
15. Counterparts;
Facsimile Signatures. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original without the production of any other
counterpart. Any signature delivered via facsimile or other
electronic means shall be deemed an original signature hereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
parties hereto have executed this Amendment as of the date first above
written.
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BORROWERS:
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TASTY
BAKING COMPANY
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By:
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/s/ Xxxxxx X.
Xxxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxxx
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Title:
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Vice
President and Corporate Treasurer
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TASTYKAKE
INVESTMENT COMPANY
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By:
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/s/ Xxxxxx X.
Xxxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxxx
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Title:
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Treasurer
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TBC
FINANCIAL SERVICES, INC.
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By:
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/s/ Xxxxxx X.
Xxxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxxx
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Title:
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Treasurer
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TASTY
BAKING OXFORD, INC.
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By:
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/s/ Xxxxxx X.
Xxxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxxxxx
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Title:
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Treasurer
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AGENT:
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CITIZENS BANK OF
PENNSYLVANIA,
as Administrative Agent, Collateral Agent and L/C
Issuer
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By:
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/s/ W. Xxxxxxx
Xxxxxx
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Name:
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W.
Xxxxxxx Xxxxxx
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Title:
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Senior
Vice President
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CITIZENS BANK OF PENNSYLVANIA,
as Lender
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By:
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/s/ W. Xxxxxxx
Xxxxxx
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Name:
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W.
Xxxxxxx Xxxxxx
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Title:
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Senior
Vice President
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BANK OF AMERICA, N.A., as
Lender
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By:
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/s/ Xxxxxx
Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Vice
President
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SOVEREIGN BANK, as
Lender
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By:
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/s/ Xxxxxx
Xxxxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxxxx
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Title:
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Senior
Vice President
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MANUFACTURERS AND TRADERS TRUST
COMPANY, as Lender
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By:
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/s/ Xxxxx X.
Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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Vice
President
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