[CONFORMED COPY]
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of December 27, 2007 (this "Amendment")
amends the Amended and Restated Credit Agreement dated as of March 13, 2006 (as
previously amended, the "Credit Agreement") among American Italian Pasta Company
(the "Company"), various financial institutions (the "Lenders") and Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent"). Capitalized terms used but not otherwise defined herein have the
respective meanings given to them in the Credit Agreement.
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. On the Amendment Effective Date (as defined
below), theCredit Agreement shall be amended as follows:
1.1 Amendments to Section 1.1. Section 1.1 is amended as follows:
(a) The definitions of Applicable Base Rate Margin, Applicable
Eurodollar Margin, Consolidated EBITDA and Pricing Reset Date are amended in
their entirety to read as follows, respectively:
Applicable Base Rate Margin means (i) initially, 5.00% per
annum; and (ii) beginning on the Pricing Reset Date, 4.50% per annum.
Applicable Eurodollar Margin means (i) initially, 6.00% per
annum; and (ii) beginning on the Pricing Reset Date, 5.50% per annum.
Consolidated EBITDA means, with respect to the Company and its
Subsidiaries for any Computation Period, an amount equal to the result
of
(a) Consolidated Net Income for such period; plus
(b) to the extent deducted in determining such Consolidated
Net Income, (i) Interest Expense, income tax expense, depreciation and
amortization, (ii) Pending Matters Costs and/or the fees and expenses
relating to the engagement of the Management Consultant; provided that
the Company may only include, of such Pending Matters Costs and
Management Consultant fees and expenses incurred after the Effective
Time, up to a maximum amount equal to the Pending Matters Costs Cap;
(iii) non-cash and cash items relating to the matters disclosed in the
Company's August 9, 2005 press release, the Company's October 27, 2005
press release, the Company's February 14, 2006 press release, and the
subsequent oral update by the Company to the Lenders on February 28,
2006, (iv) cash settlements, judgments, and penalties relating to the
Pending Matters (other than accounting matters in connection with the
Pending Matter 1) incurred after the
Effective Time up to a maximum amount equal to the Pending Matters
Settlement Cap, (v) all non-cash expenses related to the granting of
stock-based compensation to members of the Company's Board of
Directors, officers and employees of the Company and its Subsidiaries,
(vi) non-cash losses from the write-down of fixed or intangible assets
(excluding non-cash losses that result in an accrual of a reserve for
cash charges in any future period), (vii) losses from the sale by the
Company or any Subsidiary of fixed or intangible assets, (viii)
extraordinary losses, (ix) casualty losses and (x) the first
$5,000,000 of Pending Matters Costs incurred by the Company and its
Subsidiaries after September 29, 2007 (including out-of-pocket costs
and expenses arising out of the Company's pending restatement of its
2005 and 2006 audited financial statements), including related legal
fees, accounting fees and costs (including for temporary accounting
services), public relations fees and fees of the Audit Committee of
the Board of Directors, but excluding amounts paid to the Management
Consultant; minus
(c) to the extent included in determining such Consolidated
Net Income, (i) gains from the sale by the Company or any Subsidiary of
fixed or intangible assets, (ii) extraordinary gains, (iii) casualty
gains, and (iv) net revenue relating to the granting of stock options
that would not otherwise be required to be treated as expenses in
accordance with GAAP;
provided that, for purposes of determining Consolidated EBITDA, (A) the
consolidated net income of any Person (or division or similar business
unit) acquired by the Company or any Subsidiary during such period
(plus, to the extent deducted in determining such consolidated net
income, interest expense, income tax expense, depreciation and
amortization of such Person (or division or business unit)) shall be
included on a pro forma basis for the portion of such period prior to
the date of such Acquisition (as if the consummation of such
Acquisition and the incurrence or assumption of any Debt in connection
therewith occurred on the first day of such period) and (B) the
consolidated net income of any Person (or division or similar business
unit) disposed of by the Company or any Subsidiary during such period
(plus, to the extent deducted in determining such consolidated net
income, interest expense, income tax expense, depreciation and
amortization of such Person (or division or business unit)) shall be
excluded on a pro forma basis for the portion of such period prior to
the date of such disposition (as if the consummation of such
disposition occurred on the first day of such period).
Pricing Reset Date means the third Business Day following the
date on which the Company has delivered copies of annual audit reports
of the Company and its Subsidiaries for Fiscal Years 2005, 2006 and
2007 that satisfy the applicable requirements of Section 10.1.1.
(b) The definition of "2005/2006 Audit Delivery Deadline" is deleted.
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(c) The following definition of "Audit Delivery Deadline" is added in
appropriate alphabetical sequence:
Audit Delivery Deadline - see Schedule 1.2.
1.2 Amendment to Section 10.1.1. The opening text of Section 10.1.1 (up to
but not including the first comma therein) is deleted and replaced by the
following:
Promptly when available and in any event not later than (a) the Audit
Delivery Deadline with respect to Fiscal Years 2005, 2006 and 2007 and (b)
December 31 following the end of each Fiscal Year ending thereafter
(commencing with Fiscal Year 2008)
1.3 Amendments to Schedule 1.2. Schedule 1.2 is amended by deleting the
definition of "2005/2006 Audit Delivery Deadline" and inserting the following
definition of "Audit Delivery Deadline": in appropriate alphabetical sequence:
Audit Delivery Deadline means June 30, 2008.
1.4 Deletion of Schedule. Schedule 1.3 is deleted in its entirety.
SECTION 2 Representations and Warranties. The Company represents and
warrants to the Administrative Agent and the Lenders that:
(a) the warranties of the Company contained in Section 9 of the Credit
Agreement are true and correct in all material respects on the date hereof and
will be true and correct on the date of the effectiveness of this Amendment
(except to the extent that any warranty relates to an earlier date, in which
case such warranty was true and correct as of such earlier date);
(b) no Event of Default or Unmatured Event of Default exists.
SECTION 3 EffectivenUess. This Amendment shall become effective on the date
(the "Amendment Effective Date") when the Administrative Agent shall have
received the following:
(a) a counterpart of this Amendment signed by the Company;
(b) a Second Amendment Addendum substantially in the form of Exhibit A (a
"Second Amendment Addendum") signed by each Lender;
(c) evidence that the Company has paid all accrued and invoiced fees and
expenses of the Administrative Agent and the Arranger (including reasonable
attorneys' fees);
(d) a Confirmation substantially in the form of Exhibit B signed by each
Loan Party;
(e) an amendment fee for the account of each Lender that delivers a signed
counterpart hereof to the Administrative Agent prior to 5:00 pm, New York time,
on December 27, 2007, such fee to be in an amount equal to 0.20% of the sum of
(i) the amount of such
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Lender's Revolving Commitment plus (ii) the current principal amount of such
Lender's Term Loan; and
(f) such other documents as the Administrative Agent may reasonably
request.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the effectiveness of this Amendment, all references in the
Credit Agreement to "this Agreement" and in the other Loan Documents to the
"Credit Agreement" or similar terms shall refer to the Credit Agreement as
amended hereby.
4.2 Counterparts. This Amendment may be executed in any number of
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. Delivery to the
Administrative Agent of a counterpart hereof, or a signature page hereto or a
Second Amendment Addendum, by facsimile transmission or e-mail shall be
effective as delivery of a manually executed counterpart hereof.
4.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such state.
4.4 Successors and Assigns. This Amendment shall be binding upon 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 as of the day and year first above written.
AMERICAN ITALIAN PASTA COMPANY
By: /s/ Xxxx X. Xxxxx
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Vice President / Controller
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxx
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Vice President
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EXHIBIT A
FORM OF
SECOND AMENDMENT ADDENDUM
To: Bank of America, N.A., individually and as administrative agent (in such
capacity, the "Administrative Agent")
Please refer to (a) the Amended and Restated Credit Agreement dated as
of March 13, 2006 (as previously amended, the "Credit Agreement") among American
Italian Pasta Company (the "Company"), various financial institutions (the
"Lenders") and the Administrative Agent; and (b) the Second Amendment dated as
of the date hereof (the "Second Amendment") to the Credit Agreement.
The undersigned hereby (a) approves and consents to the Second
Amendment and (b) agrees that the Administrative Agent may attach this Second
Amendment Addendum to a counterpart of the Second Amendment to evidence such
approval and consent.
This Second Amendment Addendum shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such state.
Delivery to the Administrative Agent of this Second Amendment Addendum
by facsimile transmission or e-mail shall be effective as delivery of a manually
executed counterpart hereof.
IN WITNESS WHEREOF, the undersigned has caused this Second Amendment
Addendum to be duly executed and delivered by its proper and duly authorized
officer as of December [__], 2007.
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[Please type legal name of Lender above]
By:
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Name:
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Title:
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EXHIBIT B
FORM OF
CONFIRMATION
Dated as of December [__], 2007
To: Bank of America, N.A., individually and as administrative agent (in such
capacity, the "Administrative Agent"), and the other financial institutions
that are parties to the Credit Agreement referred to below
Please refer to (a) the Amended and Restated Credit Agreement dated as
of March 13, 2006 (as previously amended, the "Credit Agreement") among American
Italian Pasta Company (the "Company"), various financial institutions (the
"Lenders") and the Administrative Agent; and (b) the Second Amendment dated as
of the date hereof (the "Second Amendment") to the Credit Agreement. The Credit
Agreement, as amended by the Second Amendment, is called the "Amended Credit
Agreement." Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Amended Credit Agreement.
Each of the undersigned confirms to the Lenders and the Administrative
Agent that each Loan Document to which such undersigned is a party continues in
full force and effect on the date hereof after giving effect to the Second
Amendment and is the legal, valid and binding obligation of such undersigned,
enforceable against such undersigned in accordance with its terms.
IN WITNESS WHEREOF, the undersigned have executed this Confirmation as
the date first above written.
AMERICAN ITALIAN PASTA COMPANY
By: _________________________________
Name: ______________________________
Title: ________________________________
AIPC FINANCE, INC.
By: _________________________________
Name: ______________________________
Title: ________________________________
AIPC SALES CO.
By: _________________________________
Name: ______________________________
Title: ________________________________
AIPC WISCONSIN, LIMITED PARTNERSHIP
By: America Italian Pasta Company, its
General Partner
By: ___________________________
Name: _________________________
Title: __________________________
AIPC MISSOURI, LLC
By: American Italian Pasta Company, its
Managing Member
By: ___________________________
Name: _________________________
Title: __________________________
AIPC SOUTH CAROLINA, INC.
By: _________________________________
Name: ______________________________
Title: ________________________________
AIPC ARIZONA, LLC
By: AIPC Finance, Inc., its sole Member
By: ___________________________
Name: _________________________
Title: __________________________
