EXHIBIT 99.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of March 3, 2005
(this "Amendment"), is among LANCASTER COLONY CORPORATION, an Ohio corporation
(the "Borrower"), the Lenders and JPMORGAN CHASE BANK, N.A., successor by merger
to Bank One, NA (Main Office Chicago), a national banking association, as LC
Issuer and as Agent.
RECITALS
A. The Borrower, the Agent, the LC Issuer and the Lenders are
parties to a Credit Agreement dated as of February 13, 2001, as amended by a
First Amendment to Credit Agreement dated as of June 24, 2003 (the "Credit
Agreement").
B. The Borrower desires to amend the Credit Agreement, and the Agent
and the Lenders are willing to do so in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth
in Article III hereof, the Credit Agreement shall be amended as follows:
1.1 The definitions of Cash Equivalent Investments and Facility
Termination Date in Section 1.1 are restated as follows.
"Cash Equivalent Investments" means (i) short-term obligations of,
or fully guaranteed by, the United States of America, (ii) securities or
commercial paper rated A-2 or better by S&P, P-2 or better by Xxxxx'x, or F-2 or
better by Fitch with a maturity of one year or less, (iii) demand deposit
accounts maintained at, or securities issued or guaranteed by, banks whose
commercial paper is rated A-2 or better by S&P, P-2 or better by Xxxxx'x, or F-2
or better by Fitch, (iv) money market accounts, sweep accounts and other similar
accounts, (v) securities with provisions for liquidity or maturity
accommodations (i.e. auction rate securities, put-option bonds) of one year or
less that are (a) rated not lower than BBB by S&P or Baa2 by Xxxxx'x or (b)
issued or guaranteed by any financial institution having a short-term credit
rating of A-2 or better by S&P, P-2 or better by Xxxxx'x, or F-2 or better by
Fitch, and (vi) certificates of deposit issued by and time deposits with (in
each case with a maturity of one year or less) commercial banks (whether
domestic or foreign) having capital and surplus in excess of $100,000,000.
"Facility Termination Date" means February 15, 2008 or any later
date as may be specified as the Facility Termination Date in accordance with
Section 2.21 or any earlier date on which the Aggregate Commitment is reduced to
zero or otherwise terminated pursuant to the terms hereof.
1.2 The following definitions are added to Section 1.1 in appropriate
alphabetical order:
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any unfunded liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention by
the PBGC to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability that is not eliminated by the application of Section 4208(e) or
4209 of ERISA with respect to the withdrawal or partial withdrawal from any Plan
or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability, that is not eliminated by the application of Section 4208(e) or 4209
of ERISA, or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
1.3 Section 5.9 is restated as follows:
5.9. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability
is reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than Thirty Million Dollars (U.S.$30,000,000) the fair market value of the
assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than Thirty Million Dollars (U.S.$30,000,000) the fair market value of the
assets of all such underfunded Plans.
1.4 Section 6.1(iv) is restated as follows:
(iv) As soon as possible and in any event within 30 days after the
Borrower knows of the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and
its Subsidiaries in an aggregate amount exceeding One Million
Dollars (U.S.$1,000,000); and
1.5 Section 7.10 is restated as follows
7.10. An ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Borrower
and its Subsidiaries in an aggregate amount exceeding Thirty Million Dollars
(U.S.$30,000,000) for all periods.
1.6 The Pricing Schedule attached to the Credit Agreement is replaced
with the Pricing Schedule attached hereto. The Applicable Margin is set at Level
I Status until adjusted based on the Financials for the fiscal quarter ending
December 31, 2004.
1.7 Notwithstanding anything in the Credit Agreement to the contrary,
the Borrower, the Agent, the LC Issuer and the Lenders agree that the Commitment
of SunTrust Bank is hereby terminated and SunTrust Bank shall no longer be a
Lender under the Credit Agreement on and after the date this Amendment is
effective, and that all
other Commitments shall continue (resulting in an Aggregate Commitment of
$100,000,000).
ARTICLE II. REPRESENTATIONS. Each of the Borrower and each Guarantor
(by signing the Consent and Agreement hereto) represents and warrants to the
Agent, the LC Issuer and the Lenders that:
2.1 It has the power and authority and legal right to execute and
deliver this Amendment and the Consent and Agreement hereto, as the case may be,
and to perform its obligations thereunder. The execution and delivery by it of
this Amendment and the Consent and Agreement hereto, as the case may be, and the
performance of its obligations thereunder have been duly authorized by proper
corporate and other required proceedings, and this Amendment and the Consent and
Agreement hereto, as the case may be, to which it is a party constitute legal,
valid and binding obligations of it, enforceable against it in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
2.2 After giving effect to the amendments contained herein, the
representations and warranties contained in Article V of the Credit Agreement
and in the other Loan Documents are true on and as of the date hereof with the
same force and effect as if made on and as of the date hereof.
2.3 No Default or Unmatured Default exists or has occurred and is
continuing on the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall
become effective as of the date hereof when each of the following conditions is
satisfied:
3.1 The Borrower and the Lenders shall have signed this Amendment.
3.2 The Guarantors shall have signed the Consent and Agreement hereto.
3.3 The Borrower shall have delivered or caused to be delivered to the
Agent such other documents and satisfied such other conditions, if any, as
reasonably requested by the Agent.
ARTICLE IV. MISCELLANEOUS.
4.1 The Company agrees to pay an amendment fee to each Lender (other
than SunTrust Bank) signing this Amendment on or before 5:00 p.m., Chicago time,
on March 3, 2005 in an amount equal to $4,000, payable on or within two Business
Days of the effective date of this Amendment.
4.2 References in the Credit Agreement or in any other Loan Document to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby and as further amended from time to time.
4.3 Except as expressly amended hereby, the Borrower and Guarantors (by
signing the Consent and Agreement hereto) agree that the Credit Agreement and
all other Loan Documents are ratified and confirmed, as amended hereby, and
shall remain in full force and effect in accordance with their terms and that
they have no set off, counterclaim, defense or other claim or dispute with
respect to any of the foregoing. Each of the Borrower and the Guarantors (by
signing the Consent and Agreement hereto) acknowledges and agrees that the Agent
and the Lenders have fully performed all of their obligations under all Loan
Documents or otherwise with respect to the Borrower and the Guarantors, all
actions taken by the Agent and the Lenders are reasonable and appropriate under
the circumstances and within their rights under the Loan Documents and they are
not aware of any currently existing claims or causes of action against the Agent
or any Lender, any subsidiary of affiliate thereof or any of their successors or
assigns, and waives any such claims or causes of action.
4.4 Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement. This Amendment may be signed upon any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument, and telecopied signatures shall be
effective as originals.
IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the day and year first above
written.
LANCASTER COLONY CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Secretary
JPMORGAN CHASE BANK, N.A., as Agent,
LC Issuer and as a Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------
Title: Managing Director
THE HUNTINGTON NATIONAL BANK, as
Documentation Agent and as a Lender
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Director
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Title: Senior Vice President
FIFTH THIRD BANK, CENTRAL OHIO
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------
Title: Vice President
CONSENT AND AGREEMENT
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above
Amendment and the consummation of the transactions contemplated hereby and
acknowledges and agrees to all of the representations, covenants, terms and
provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty and all other agreements executed by
any of the undersigned in connection with the Credit Agreement or otherwise in
favor of the Agent, the LC Issuer or the Lenders (collectively, the "Guarantor
Documents") are hereby ratified and confirmed and shall remain in full force and
effect, and each of the undersigned acknowledges that it has no setoff,
counterclaim or defense with respect to any Guarantor Document; and
(c) acknowledges that its consent and agreement hereto is a
condition to the Lenders' obligation under this Amendment and it is in its
interest and to its financial benefit to execute this consent and agreement.
X.X. XXXXX COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Secretary
DEE ZEE, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Secretary
INDIANA GLASS COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Secretary
KONETA, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Secretary
LANCASTER GLASS CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Secretary
X. XXXXXXXX COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
--------------------------
Title: Secretary
NEW YORK FROZEN FOODS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Secretary
PRETTY PRODUCTS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Secretary
MARZETTI FROZEN PASTA, INC.
(FORMERLY XXXXXX FOODS, INC.)
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Secretary
SISTER XXXXXXXX'X HOMEMADE ROLLS, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Treasurer
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Secretary
PRICING SCHEDULE
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
---------- -------- -------- --------- -------- -------
Eurodollar Rate and 0.295% 0.30% 0.375% 0.45% 0.45%
Letter of Credit
Applicable Margin
Facility Fee 0.08% 0.10% 0.125% 0.15% 0.20%
Applicable Margin
Floating Rate 0% 0% 0% 0% 0%
Applicable Margin
Until adjusted for the first time based on the Debt to Capitalization Ratio as
of the end of the first full fiscal quarter ending after the Effective Date, the
Applicable Margin and Applicable Fee Rate will be set at Level I. Thereafter,
the Applicable Margin and the Applicable Fee Rate will vary with the Borrower's
Debt to Capitalization Ratio as set forth above.
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Debt to
Capitalization Ratio is less than or equal to 0.25 to 1.00.
"Level II Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, (i) the
Borrower has not qualified for Level I Status and (ii) the Debt to
Capitalization Ratio is less than 0.30 to 1.00.
"Level III Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Debt to Capitalization Ratio is less than 0.35 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, (i) the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Debt to Capitalization Ratio is less than 0.40 to 1.00.
"Level V Status" exists at any date if the Borrower has not qualified for
Level I Status, Level II Status, Level III Status or Level IV Status.
"Status" means either Level I Status, Level II Status, Level III Status or
Level IV Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective 50 days after the end of each
of the first three fiscal quarters of each fiscal year and 95 days after the end
of each fiscal year of the Borrower. If the Borrower fails to deliver the
Financials to the Agent at the time required pursuant to Section 6.1 or any
Default has occurred and is continuing, then the Applicable Margin and
Applicable Fee Rate shall be set at Level V Status.
