EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated
as of March 21, 2005, among TASTY BAKING COMPANY (the "Company"), the direct
and indirect subsidiaries of the Company parties hereto (together with the
Company, the "Borrowers"), the several banks and other financial institutions
parties hereto (individually, the "Bank"; collectively, the "Banks") and PNC
BANK, NATIONAL ASSOCIATION, as administrative agent for the Banks (in such
capacity, the "Agent").
WHEREAS, the Borrowers, the Banks and the Agent are parties to
a Credit Agreement dated as of January 31, 2002, as amended by the First
Amendment to Credit Agreement dated as of January 29, 2003, the Second Amendment
to Credit Agreement dated as of March 18, 2003, the Third Amendment to Credit
Agreement dated as of July 28, 2003, the Fourth Amendment to Credit Agreement
dated as of November 7, 2003, the Fifth Amendment to Credit Agreement dated as
of January 23, 2004, the Sixth Amendment to Credit Agreement dated as of January
21, 2005 and the Waiver and Seventh Amendment to Credit Agreement dated as of
February 28, 2005 (as heretofore so amended, supplemented or otherwise modified,
the "Credit Agreement"); and
WHEREAS, the Borrowers, the Agent, and the Banks have agreed
to amend the Credit Agreement by (i) extending the 364 Day Termination Date and
(ii) amending certain financial covenants, all on the terms and subject to the
conditions set forth herein.
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. Amendment to Credit Agreement. Effective as of the date set forth
above, the Credit Agreement is hereby amended as follows:
(a) The definitions of "364 Day Termination Date" and "Accepted
Non-Cash Charges" in Section 1.1 are hereby amended and restated
to read in full as follows:
""364 Day Termination Date": with respect to the 364
Day Facility, the earlier of (a) March 19, 2006 or such later date to which the
364 Day Termination Date shall have been extended pursuant to subsection
2.14(d)(i) hereof and (b) the date the 364 Day Commitments are terminated as
provided herein.
"Accepted Non-Cash Charges": shall mean the non-cash
pension expense of the Company recorded in the fiscal quarter ending December
25, 2004 in the amount of $771,000."
(b) Section 6.2 is amended and restated to read in full as follows:
"6.12 Capital Expenditures. Contract for, purchase or
make any expenditure or commitments for Capital Expenditures in an aggregate
amount in excess of $9,000,000 during the fiscal year ending December 25, 2004,
or in excess of $10,000,000 for any fiscal year ending thereafter; provided,
however, in the event the 364 Termination Date is extended for an additional 364
days beyond March 19, 2006, the aggregate Capital Expenditures permitted for the
fiscal year ending December 31, 2006 and any fiscal year ending thereafter shall
be in an amount mutually agreed to by the Borrowers and the Agent."
3. Representations and Warranties. The Borrowers hereby represent and
warrant to the Banks and the Agent that:
(a) There exists no Default or Event of Default under the Credit
Agreement as amended hereby;
(b) The representations and warranties made in the Credit Agreement,
as amended hereby, 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 only as of such date or period; and
(c) This Amendment has been duly authorized executed and delivered so
as to constitute the legal, valid and binding obligation of the Borrowers party
thereto, enforceable in accordance with its respective terms.
4. 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 Borrowers shall have delivered to the Agent the following, all
of which shall be in form and substance satisfactory to the Agent and shall be
duly completed and executed:
(i) This Amendment;
(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) No Default or Event of Default shall have occurred and be
continuing as of the date hereof.
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5. 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.
6. Miscellaneous.
(a) 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.
(b) 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.
(c) In consideration of the Agent's and the Banks' agreement to amend
the existing credit facility, the Borrowers hereby waive and release the Agent
and the Banks and their respective officers, attorneys, agents and employees
from any liability, suit, damage, claim, loss or expense of any kind or failure
whatsoever and howsoever arising that it ever had up until, or has as of, the
date of this Amendment.
(d) This Amendment constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous understandings and agreements.
(e) The Borrowers agree to pay all of the Agent's reasonable
out-of-pocket expenses incurred in connection with the preparation, negotiation
and execution of this Amendment including without limitation, the reasonable
fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP.
(f) In the event any provisions of this Amendment shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
(g) This Amendment shall be governed by and construed according to the
laws of the Commonwealth of Pennsylvania.
(h) This Amendment shall inure to the benefit of, and be binding upon,
the parties hereto and their respective successors and assigns and may be
executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(i) The headings used in this Amendment are for convenience of
reference only, do not form a part of this Amendment and shall not affect in any
way the meaning or interpretation of this Amendment.
(j) 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.
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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.
TASTY BAKING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Senior Vice President
TASTYKAKE INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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President
TBC FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Treasurer
TASTY BAKING OXFORD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Treasurer
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PNC BANK, NATIONAL ASSOCIATION,
as a Bank, as Swing Line Bank, as
Issuing Bank and as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Vice President
CITIZENS BANK OF PENNSYLVANIA, as
a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Senior Vice President
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