EXECUTION COPY
AMENDMENT NO. 3 dated as of August 14, 2002 (this "Amendment") to the
Credit Agreement dated as of January 28, 1999 (as amended by Amendment No. 1
dated as of May 10, 2000, and Amendment No. 2 dated as of July 30, 2001, the
"Credit Agreement"), among New World Pasta Company, a Delaware corporation (the
"Borrower"), the various financial institutions parties thereto (the "Lenders"),
Xxxxxx Xxxxxxx Senior Funding, Inc., as Syndication Agent, and The Bank of Nova
Scotia, as Lead Arranger and the Administrative Agent (the "Administrative
Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
willing, on the terms and subject to the conditions set forth below, to amend
certain provisions of the Credit Agreement (the Credit Agreement, after giving
effect to the amendments contained herein, being referred to as the "Amended
Credit Agreement");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
agreements herein, the parties hereto agree as follows:
ARTICLE I.
SECTION 1.1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit Agreement.
SECTION 1.2. Effectiveness. The Borrower, the Lenders and the
Administrative Agent agree that the following amendments to the Credit Agreement
in this Article I shall become effective on the Third Amendment Effective Date.
SECTION 1.3. Amendments to Section 1.1
(a) Section 1.1 of the Credit Agreement is amended by inserting or
replacing the following definitions in appropriate alphabetical order in Section
1.1:
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date, any Term Loan Commitment Termination
Date, the Term-C Loan Commitment Termination Date or the Term-D Loan Commitment
Termination Date.
"Debt" means the outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries of the type referred to in clauses (a), (b), (c)
and (e) of the definition of "Indebtedness" or any Contingent Liability in
respect thereof, other than the principal amount of
any Term-C Loan and any Term-D Loan as long as the interest thereon is payable
in kind and not in cash.
"Lender Obligations" means the Obligations other than the Term-C
Obligations and the Term-D Obligations.
"Loan" means, as the context may require, a Revolving Loan, a Swing Line
Loan, a Term-A Loan, or a Term-B Loan, in each case, of any type or a Term-C
Loan or a Term-D Loan.
"Net Debt Proceeds" means, with respect to the incurrence, sale or issuance
(to the extent permitted by the terms of this Agreement) by the Borrower or any
of its Subsidiaries to any Person of any Debt (other than (i) Debt permitted by
Section 7.2.2 as in effect on the date of the Third Amendment, including the
Subordinated Notes, and (ii) proceeds of the Term-C Loans and the Term-D Loans,
but Net Debt Proceeds shall include Excess High Yield Net Debt Proceeds), the
excess of:
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from such incurrence, sale or issuance,
less
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional fees,
sales commissions and disbursements and all other reasonable fees, expenses
and charges, in each case actually incurred in connection with such
incurrence, sale or issuance (but excluding any such amounts paid to
Affiliates of the Borrower in connection therewith in transactions which
are not permitted under Section 7.2.11).
"Note" means, as the context may require, a Revolving Note, a Swing Line
Note, a Term-A Note, a Term-B Note, a Term-C Note or a Term-D Note.
"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit Extension
hereunder, Lenders having at least 51% of the sum of the Revolving Loan
Commitments, Term-A Loan Commitments and Term-B Loan Commitments;
(b) on and after the date of the making of the initial Credit
Extension hereunder and prior to the Lender Credit Termination Date,
Lenders holding at least 51% of the Total Exposure Amount; and
(c) on and after the Lender Credit Termination Date, Lenders holding
at least 51% of the outstanding principal amount of all Term-C Loans and
Term-D Loans.
"Stated Maturity Date" means
(a) in the case of any Revolving Loan, January 28, 2005;
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(b) in the case of any Term-A Loan, January 28, 2005;
(c) in the case of any Term-B Loan, January 28, 2006;
(d) in the case of any Term-C Loan, June 30, 2006; and
(e) in the case of any Term-D Loan, June 30, 2006.
"Term-D Lender" means, at any time, a Lender holding any Term-D Loan, but
solely in such capacity.
"Term-D Loan" is defined in Section 2.1.1.
"Term-D Loan Borrowing Date" means the date on which Term-D Loans are made.
"Term-D Loan Commitment" is defined in Section 2.1.1.
"Term-D Loan Commitment Amount" means, on any date, $23,000,000.
"Term-D Loan Commitment Termination Date" means, the earlier of:
(a) August 14, 2002, if at least $15,000,000 of the Term-D Loans have
not been made on or prior to such date; and
(b) June 30, 2006, if the undrawn amount of the Term-D Loan
Commitment Amount has not been fully drawn by such date.
"Term-D Note" means a promissory note of the Borrower payable to the order
of any Lender in the form of Exhibit 1.1 to the Third Amendment (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Term-D Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Term-D Obligations" means the unpaid principal balance of and accrued
interest on the Term-D Loans.
"Term-D Percentage" means, relative to any Lender, the applicable
percentage relating to Term-D Loans, as set forth opposite its name on Schedule
I to the Third Amendment under the applicable column heading or as set forth in
Lender Assignment Agreement(s) under the applicable column heading, as such
percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11. A Lender shall not have any Commitment to make Term-D
Loans if its percentage under the respective column heading is zero.
"Third Amendment" means Amendment No. 3 dated as of August 14, 2002 to this
Agreement.
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"Warrant" means, collectively, warrants to purchase up to 51,402,000 common
shares of the Borrower issued in connection with the Second Amendment and
warrants to purchase up to 23,000,000 common shares of the Borrower to be issued
by the Borrower to JLL Pasta, LLC in connection with the Third Amendment.
SECTION 1.4. Amendment to Section 2.1.1. Section 2.1.1 of the Credit
Agreement is amended by adding the following new paragraph at the end thereof:
"Subject to compliance by the Borrower with the terms of Section 5.4,
on each Term-D Loan Borrowing Date (which shall be a Business Day)
occurring on or prior to the Term-D Loan Commitment Termination Date, each
Lender that has a Term-D Percentage in excess of zero will make loans
(relative to such Lender, its "Term-D Loans") to the Borrower equal to such
Lender's Term-D Percentage of the aggregate amount of the Borrowing of
Term-D Loans requested by the Borrower to be made on such Term-D Loan
Borrowing Date (with the commitment of each such Lender described in this
sentence referred to as its "Term-D Loan Commitment"). No amounts paid or
prepaid with respect to Term-D Loans may be reborrowed. The aggregate
amount of the Term-D Loans shall not exceed the Term-D Loan Commitment
Amount.
SECTION 1.5. Amendment to Section 2.1.4. Section 2.1.4 of the Credit
Agreement is amended by deleting the word "or" at the end of clause (c) thereof,
deleting the period at the end of clause (d) thereof and inserting in lieu
thereof "; or" and inserting a new clause (e) as follows:
"(e) any Term-D Loan if, after giving effect thereto, the aggregate
original principal amount of all the Term-D Loans of all Lenders would
exceed the Term-D Loan Commitment Amount or the aggregate principal amount
of all the Term-D Loans of such Lender would exceed such Lender's Term-D
Percentage of the Term-D Loan Commitment Amount."
SECTION 1.6. Amendment to Section 2.3. Section 2.3 of the Credit
Agreement is amended by adding the following Section 2.3.4 at the end thereof:
"SECTION 2.3.4. By delivering a borrowing request substantially in the
form of Exhibit C hereto to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the Borrower may request, on not
less than one Business Day's notice, that a Term-D Loan be made in a
minimum amount of $1,000,000 or in the unused amount of the Term-D Loan
Commitment. On or before 11:00 a.m., New York time, on such Term-D
Borrowing Date each Lender shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender's Term-D Percentage of the
requested Borrowing. Such deposit will be made to an account which the
Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the
Administrative Agent shall make such funds available to the Borrower by
wire transfer to the accounts the Borrower shall have specified in its
Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan."
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SECTION 1.7. Amendment to Section 2.7. The first sentence of clause
(b)(ii) of Section 2.7 of the Credit Agreement is amended by deleting said
sentence in its entirety and inserting in lieu thereof the following:
"The Borrower hereby agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver
to such Lender, as applicable, a Revolving Note, a Swing Line Note, a
Term-A Note, a Term-B Note, a Term-C Note or a Term-D Note evidencing the
Loans made by such Lender."
SECTION 1.8. Amendment to Section 3.1.1(a). Clause (a)(i)(E) of
Section 3.1.1 of the Credit Agreement is amended and restated to read as
follows:
"(E) the Borrower shall not make or be permitted to make any voluntary
prepayments of the Term-C Loans or Term-D Loans before the Lender Credit
Termination Date; and"
SECTION 1.9. Amendment to Section 3.1.1(i). Section 3.1.1 of the
Credit Agreement is amended by deleting the period at the end of clause (j) and
inserting the following thereafter:
"; and
(k) shall, on the Stated Maturity Date, make a repayment of the
aggregate outstanding principal amount, if any, of all Term-D Loans."
SECTION 1.10. Amendment to Section 3.2.1. Section 3.2.1 of the Credit
Agreement is amended by deleting the word "and" at the end of clause (c)
thereof, deleting the period at the end of clause (d) thereof and inserting ";
and" in lieu thereof and inserting a new clause (e) as follows:
"(e) with respect to Term-D Loans, equal to a rate per annum of 8.00%.
SECTION 1.11. Amendment to Section 3.2.2. Section 3.2.2 of the Credit
Agreement is amended by deleting said Section 3.2.2 in its entirety and
inserting in lieu thereof the following:
"SECTION 3.2.2. Post-Maturity Rates. After the date any principal
amount of any Loan shall have become due and payable (whether on the Stated
Maturity Date, upon acceleration or otherwise), or any other monetary
Obligation of the Borrower shall have become due and payable, the Borrower
shall pay, but only to the extent permitted by law, interest (after as well
as before judgment) (a) on such amounts due and payable in connection with
the Term Loans or the Revolving Loans at a rate per annum equal to the rate
that would otherwise be applicable to Base Rate Loans plus 2%, (b) on such
amounts due and payable in connection with the Term-C Loans at a rate per
annum equal to 2% plus the rate otherwise in effect on the Term-C Loans and
(c) on such amounts due and payable in connection with the Term-D Loans at
a rate per annum equal to 2% plus the rate otherwise in effect on the
Term-D Loans."
SECTION 1.12. Amendment to Section 3.2.3. Section 3.2.3 of the Credit
Agreement is amended by deleting the word "and" at the end of clause (e)
thereof, deleting the period at the end of clause (f) thereof and inserting ";
and" in lieu thereof and inserting a new clause (g) as follows:
"(g) with respect to each Term-D Loan, on each Quarterly Payment Date
occurring after the initial Term-D Loan Borrowing Date, provided, however,
that until the Lender Credit Termination Date, such interest shall not be
payable in cash but shall instead be capitalized on each Quarterly Payment
Date by adding the amount thereof to the principal balance of each such
Term-D Loan."
SECTION 1.13. Amendment to Section 4.8. Section 4.8 of the Credit
Agreement is amended by deleting said Section 4.8 in its entirety and inserting
in lieu thereof the following:
"SECTION 4.8 Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application
of setoff or otherwise) on account of any Loan or any Reimbursement
Obligation (other than pursuant to the terms of Sections 4.3, 4.4 and 4.5)
in excess of its pro rata share of payments then or therewith obtained by
all Lenders (other than the Term-C Lender or the Term-D Lenders) entitled
thereto, such Lender shall purchase from the other Lenders (other than the
Term-C Lender or the Term-D Lenders) such participation in Credit
Extensions (other than the Credit Extensions of the Term-C Loan and Term-D
Loans) made by them as shall be necessary to cause such purchasing Lender
to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or
other recovery is thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase
price to the ratable extent of such recovery together with an amount equal
to such selling Lender's ratable share (according to the proportion of
1. the amount of such selling Lender's required repayment to the
purchasing Lender
to
2. the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant
to this Section may, to the fullest extent permitted by law, exercise all
its rights of payment (including pursuant to Section 4.9) with respect to
such participation as fully as if such Lender were the direct creditor of
the Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders entitled under
this Section to share in the benefits of any recovery on such secured
claim.
In the event that any Term-C Lender or any Term-D Lender shall obtain
any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of any Term-C Loan or any
Term-D Loan (other than pursuant to Section 4.3 of the Second Amendment or
Section 4.3 of the Third Amendment) prior to the Lender Credit Termination
Date, then such Term-C Lender or Term-D Lender, as applicable, shall
purchase for cash, at par, a subordinated (on terms and conditions
acceptable to the Lender selling such participation in its sole
discretion), undivided participating interest in the outstanding Loans of
each Lender (and, if elected by such Lender, Letters of Credit), other than
Term-C Loans and Term-D Loans, in a maximum amount equal to with respect to
any Loan (other than the Term-C Loan and the Term-D Loans) the quotient of
(x) the unpaid principal amount of such Loan divided by (y) the aggregate
unpaid principal amount of all Loans (other than the Term-C Loans and the
Term-D Loans)."
SECTION 1.14. Amendment to Article V. Article V of the Credit
Agreement is amended by inserting a new Section 5.4 as follows:
"SECTION 5.4. Credit Extension of Term-D Loans. The obligations of the
Lenders to fund Credit Extensions of each Term-D Loan shall be subject to the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this Section 5.4:
5.4.1 Loan Documents. The Administrative Agent shall have received, as
to the initial Term-D Loan only, a copy of the resolutions of the Borrower
authorizing the execution, delivery and performance of the Loan Documents
to which it is a party, certified by the Secretary or an Assistant
Secretary of the Borrower, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
Section 5.4.2. Fees and Expenses. As to the initial Term-D Loan only,
the Administrative Agent shall have received all fees and expenses due and
payable pursuant to this Agreement (including all previously invoiced fees
and expenses).
Section 5.4.3. Opinions of Counsel. As to the initial Term-D Loan
only, the Administrative Agent shall have received opinions, dated the
initial Term-D Loan Borrowing Date and addressed to the Administrative
Agent and all Lenders, from Skadden, Arps, Slate Xxxxxxx & Xxxx LLP,
special New York counsel to the Borrower and each other Obligor,
satisfactory in form and substance to the Administrative Agent with respect
to such matters as the Administrative Agent may reasonably request with
respect to the transactions contemplated hereby.
Section 5.4.4. Representations and Warranties. Both before and after
giving effect to the Third Amendment and the Borrowing of any Term-D Loan,
the representations and warranties set forth in Article III of the Third
Amendment and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in
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which case such representations and warranties shall be true and correct in
all material respects as of such earlier date).
Section 5.4.5. No Default. Both before and after giving effect to the
Third Amendment and the Borrowing of any Term-D Loan, no Default or Event
of Default shall have occurred and be continuing.
Section 5.4.6. Deadline and Minimum Initial Borrowing. As to the
initial Term-D Loan only, the foregoing conditions in this Section 5.4
shall have been satisfied on or before Term-D Loan Commitment Termination
Date. The minimum amount of the initial Term-D Loan shall be $15,000,000.
Section 5.4.7. Receipt of Funds. Notwithstanding anything to the
contrary contained in the Credit Agreement, no advance of a Term-D Loan
shall be made by any Term-D Lender to the Borrower unless and until the
Administrative Agent shall have received the entire amount of such advance
as a portion of the purchase price pursuant to the Subordination and
Participation Agreement dated as of the date hereof between The Bank of
Nova Scotia and JLL Pasta, LLC.
SECTION 1.15. Amendments to Section 7.1.7. Section 7.1.7 of the Credit
Agreement is hereby amended by inserting the following new paragraph at the end
thereof:
"Notwithstanding anything to the contrary contained herein, so
long as no Event of Default shall have occurred and be continuing, the
Borrower and NWP Delaware, LLC shall not be obligated to perfect the
Administrative Agent's security interest in the 1997 CESSNA 421C
aircraft with aircraft serial number 421C-0274 and engine serial
number 226084R 608252 owned by NWP Delaware, LLC."
SECTION 1.16. Amendments to Section 7.2.9. The first paragraph of
Section 7.2.9 of the Credit Agreement is amended by deleting said paragraph in
its entirety and substituting in lieu thereof the following new paragraph:
"The Borrower will not, and will not permit any of its Subsidiaries
to, sell, transfer, lease, contribute or otherwise convey, or grant
options, warrants (other than the issuance of warrants required by the
Senior Subordinated Increasing Rate Note Purchase Agreement or in
connection with the issuance of the Senior Subordinated High Yield Notes or
the issuance of the Warrants in connection with the Term-C Loans or Term-D
Loans) or other rights with respect to, all or any part of its assets,
whether now owned or hereafter acquired (including accounts receivable and
Capital Stock of Subsidiaries) to any Person, unless:"
SECTION 1.17. Amendments to Section 10.4. Section 10.4 of the Credit
Agreement is amended by (i) replacing the parenthetical after the word
"Affiliates" appearing in the sixth line thereof with : "(and, in the case of
the Term-C Lender, its participants, and in the case of any Term-D Lender, its
participants)"; and (ii) replacing the parenthetical after the term "Loan
Document" appearing in clause (b) thereof with: "(and, in the case of the Term-C
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Lender's participants, the relevant participation agreement and, in the case of
any Term-D Lender's participants, the relevant participation agreement)."
SECTION 1.18. Amendments to Section 10.11.2. Section 10.11.2 of the
Credit Agreement is amended by deleting the word "and" at the end of clause (e)
thereof, deleting the period at the end of clause (f) thereof and inserting ";
and" in lieu thereof and inserting a new clause (g) as follows:
"(g) each Term-D Lender shall be entitled to sell a participation to
JLL Pasta, LLC pursuant to a participation agreement and JLL Pasta, LLC shall be
entitled only to the rights set forth in such participation agreement."
SECTION 1.19. Amendments to Article X. Article X of the Credit
Agreement is amended by inserting a new Section 10.17 as follows:
"SECTION 10.17. Lien Subordination. Each Term-D Lender agrees that any
Lien granted to the Administrative Agent for the benefit of such Lender to
secure any Term-D Obligations shall be junior and subordinate to all other
Liens granted under the Loan Documents to the extent set forth in Exhibit
10.17 to the Third Amendment."
ARTICLE II.
FEES; CONDITIONS TO EFFECTIVENESS
SECTION 2.1. Fees.
(a) The Borrower agrees to pay to each Lender consenting to this
Amendment on or before August 14, 2002 an amendment fee equal to .125% of the
outstanding principal amount of all outstanding Term Loans (other than Term-C
Loans) plus .125% of the Revolving Loan Commitment Amount (computed before
giving effect to this Amendment) of such Lender (the "Amendment Fee"). Such fee
shall be fully earned and nonrefundable upon the Third Amendment Effective Date.
The Borrower shall pay the Amendment Fee to the Administrative Agent on the
Third Amendment Effective Date for the benefit of such consenting Lenders.
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, all fees and expenses due and payable in connection with this
Amendment and the participation agreement relating to the Term-D Loans.
SECTION 2.2. Third Amendment Effective Date. This Amendment and the
amendments contained herein shall be and become effective on the date (the
"Third Amendment Effective Date") when the Administrative Agent shall have
received the following:
(a) counterparts of this Amendment, duly executed by and delivered on
behalf of (i) the Borrower, (ii) the Required Lenders and (iii) Lenders
holding 100% of the aggregate Term-D Loan Commitments;
(b) a copy of the resolutions of the Borrower authorizing the
execution, delivery and performance of this Amendment, certified by the
Secretary or an Assistant Secretary
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of the Borrower, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded; and
(c) the Amendment Fee pursuant to Section 2.1 and any other fees or
expenses required to be paid in connection herewith.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. In order to induce the
Lenders and the Administrative Agent to enter into this Amendment, the Borrower
hereby represents and warrants to each Agent and each Lender, as of the date
hereof and as of the initial Term-D Loan Borrowing Date, as follows:
(a) Good Standing and Power. The Borrower is duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(b) Corporate Authority. The Borrower has full corporate power and
authority to execute, deliver and perform this Amendment and the Amended Credit
Agreement and to incur the obligations provided for herein and therein, all of
which have been duly authorized by all proper and necessary corporate action. No
consent or approval of stockholders is required as a condition to the validity
or performance or the exercise by the Administrative Agent or any Lender of any
of its rights or remedies under the Amended Credit Agreement.
(c) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from governmental
authorities and other persons, if any, which are necessary for the execution and
delivery of this Amendment, the performance by the Borrower of its obligations
hereunder and under the Amended Credit Agreement and the exercise by the
Administrative Agent and the Lenders of their respective rights and remedies
hereunder and thereunder, have been effected or obtained and are in full force
and effect.
(d) Binding Agreements. This Amendment and the Amended Credit
Agreement constitute the valid and legally binding obligations of the Borrower
enforceable in accordance with their terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to general equity
principles.
(e) No Conflicts. There is no statute, regulation, rule, order or
judgment, and no provision of any agreement or instrument binding on the
Borrower or affecting its properties and no provision of the certificate of
incorporation or by-laws of the Borrower, which would prohibit, conflict with or
in any way prevent the execution, delivery, or performance of the terms of this
Amendment or the Amended Credit Agreement or the incurrence of the obligations
provided for herein and therein, or result in or require the creation or
imposition of any lien, security interest or other encumbrance (other than in
favor of the Administrative Agent for the benefit of the Lenders) on any of the
Borrower's properties as a consequence of the execution,
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delivery and performance of this Amendment or the Amended Credit Agreement or
the transactions contemplated hereby and thereby.
(f) No Default. As of the date hereof, and after giving effect to this
Amendment, there does not exist any Event of Default or event which, upon the
giving of notice or lapse of time or both, would constitute an Event of Default.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1. Full Force and Effect; Limited Amendment. Except as
expressly modified hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the Notes
shall remain unamended and unwaived and shall continue to be, and shall remain,
in full force and effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein and shall not be deemed to be a waiver
of, consent to or modification of any other term or provision of the Credit
Agreement or any Note or of any transaction or further or future action which
would require the consent of the Lenders under the Credit Agreement.
SECTION 4.2. Loan Document Pursuant to Credit Agreement;
Confidentiality. This Amendment is executed pursuant to the Credit Agreement and
shall be construed, administered and applied in accordance with all of the terms
and provisions of the Credit Agreement (and, following the Third Amendment
Effective Date, the Amended Credit Agreement). Any breach of any representation
or warranty or covenant or agreement contained in this Amendment shall be deemed
to be an Event of Default for all purposes of the Amended Credit Agreement. The
provisions of Section 10.15 of the Credit Agreement apply to this Amendment.
SECTION 4.3. Fees and Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, negotiation, execution and delivery of this Amendment and the
documents and transactions contemplated hereby (including the participation
agreement relating to the Term-D Loans). The Borrower guarantees the payment of
all amounts due by the participant under the Subordination and Participation
Agreement entered into between any Term-D Lender and JLL Pasta, LLC. This
guarantee is an absolute and unconditional guarantee of payment and not merely
of collection. The obligations of the Borrower under this guarantee shall
constitute Obligations and the term "Obligations" in Section 1.1 of the Credit
Agreement is hereby amended to include such obligations of the Borrower. The
Borrower waives all defenses available to a surety. The Borrower shall pay such
amounts immediately and the Term-D Lenders shall not be obligated to seek
recourse against any other person (including the participant thereunder) or any
other asset before seeking recourse against the Borrower. This guarantee shall
survive payment in full of the Obligations.
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SECTION 4.4. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 4.5. Execution in Counterparts. This Amendment may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 4.6. Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION 4.7. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.8. GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
NEW WORLD PASTA COMPANY
By: ______________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Lead Arranger, Administrative Agent and
Letter of Credit Issuer
By: ________________________________
Name:
Title:
LENDERS:
THE BANK OF NOVA SCOTIA
By: _____________________________
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: XXXXXX XXXXXX & CO., L.P.
as Investment Advisor
By: ______________________________
Name:
Title:
NORTHWOODS CAPITAL III, LIMITED
By: XXXXXX XXXXXX & CO., L.P.
as Collateral Manager
By: ______________________________
Name:
Title:
ARES III CLO Ltd.
By: ARES CLO Management, LLC
Its: Investment Manager
By: _____________________________
Name:
Title:
THE BANK OF NEW YORK
By: _____________________________
Name:
Title:
BLACK DIAMOND CLO 1998-1 Ltd.
By: _____________________________
Name:
Title:
BLACK DIAMOND CLO 2000-1 Ltd.
By: _____________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: Black Diamond
By: _____________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Xxxxx Xxxxx Management
as Investment Advisor
By: _____________________________
Name:
Title:
FOOTHILL INCOME TRUST, L.P.
By: FIT GP, LLC, its General Partner
By: _____________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _____________________________
Name:
Title:
KZH WATERSIDE LLC
By: General Re
By: _____________________________
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: _____________________________
Name:
Title:
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: _____________________________
Name:
Title:
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: _____________________________
Name:
Title:
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: _____________________________
Name:
Title:
INVESCO EUROPEAN CDO I S.A.
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: _____________________________
Name:
Title:
OASIS COLLATERALIZED HIGH INCOME
PORTFOLIO-I, LTD.
By: INVESCO Senior Secured Management, Inc.
As Subadvisor
By: _____________________________
Name:
Title:
SEQUILS-LIBERTY, LTD
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: _____________________________
Name:
Title:
KEY CORPORATE CAPITAL INC.
By: _____________________________
Name:
Title:
PERSEUS CDO I, LIMITED
By: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: _____________________________
Name:
Title:
ESCROW ADMINISTRATION CONCENTRATE ACCOUNT
By: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: _____________________________
Name:
Title:
NATEXIS BANQUES POPULAIRES
By: _____________________________
Name:
Title:
PPM SHADOW CREEK FUNDING TRUST
By: _____________________________
Name:
Title:
PPM SPYGLASS FUNDING TRUST
By: _____________________________
Name:
Title:
PPM AMERICA, INC., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance
Company
By: _____________________________
Name:
Title:
LIBERTY-XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
by Xxxxx Xxx & Xxxxxxx Incorporated
As Portfolio Manager
By: _____________________________
Name:
Title:
XXXXX XXX & FARNHAM CLO I Ltd.,
by Xxxxx Xxx & Xxxxxxx Incorporated
As Portfolio Manager
By: _____________________________
Name:
Title:
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY,
by Xxxxx Xxx & Xxxxxxx Incorporated, as
Advisor to the Xxxxx Xxx Floating Rate
Limited Liability Company
By: _____________________________
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX MANAGEMENT INC.,
as Collateral Manager
By: _____________________________
Name:
Title:
XXX XXXXXX CLO II, LIMITED
By: XXX XXXXXX MANAGEMENT INC.,
as Collateral Manager
By: _____________________________
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: XXX XXXXXX MANAGEMENT INC.,
as Collateral Manager
By: _____________________________
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By: XXX XXXXXX MANAGEMENT INC.,
as Collateral Manager
By: _____________________________
Name:
Title:
XXXXX FARGO BANK, N.A.
By: _____________________________
Name:
Title:
The undersigned each hereby expressly (i) acknowledges the
terms of the foregoing Amendment, (ii) ratifies and affirms its obligations
under the Loan Documents (as defined in the Credit Agreement, including
guarantees, security agreements and pledge agreements) executed and delivered by
the undersigned in favor of the Administrative Agent for the benefit of the
Lenders, and (iii) acknowledges, renews and extends its continued liability
under all such Loan Documents and agrees such Loan Documents remain in full
force and effect, including with respect to the obligations of the Borrower as
modified by the foregoing Amendment.
PASTA ACQUISITION CORP.
By: _____________________________________
Name:
Title:
THE PRINCE COMPANY, INC.
By: _____________________________________
Name:
Title:
RONZONI FOODS INTERNATIONAL CORPORATION
By: _____________________________________
Name:
Title:
