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Ex 99(b)(2)
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment (this "Amendment") is entered into as of October 16,
1998 by and among Ralcorp Holdings, Inc., a Missouri corporation (the
"Borrower"), The First National Bank of Chicago, individually and as agent
("Agent"), and the other financial institutions signatory hereto.
RECITALS
A. The Borrower, the Agent and the Lenders are party to that certain
credit agreement dated as of January 31, 1997 (the "Credit Agreement"). Unless
otherwise specified herein, capitalized terms used in this Amendment shall have
the meanings ascribed to them by the Credit Agreement.
B. The Borrower, the Agent and the undersigned Lenders wish to amend
the Credit Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date"
(as defined below), the Credit Agreement shall be amended as follows:
(a) Article I is amended by adding and/or amending
the following definitions:
(i) The definition of "Applicable Commitment Fee
Percentage" is amended in its entirety to read as follows:
"Applicable Commitment Fee Percentage" means
.175%.
(ii) The definition of "Applicable Eurodollar
Margin" is amended in its entirety to read as follows:
"Applicable Eurodollar Margin" means .60%.
(iii) The definition of "Commitment" is amended in
its entirety to read as follows:
"Commitment" means, for each Lender, the
obligation of such Lender to make Loans (other than
Swing Line Loans) and participate in Facility
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Letters of Credit not exceeding the amount set forth
opposite such Lender's name in Schedule 1 attached
hereto and as set forth in any Notice of Assignment
relating to any assignment which has become effective
pursuant to Section 12.3.2, as such amount may be
modified from time to time pursuant to the terms
hereof.
(iv) The definition of "Required Lenders" is amended
in its entirety to read as follows:
"Required Lenders" means Lenders in the
aggregate having 100% of the Aggregate Commitment or,
if the Aggregate Commitment has been terminated, 100%
of the sum of (a) the aggregate unpaid principal
amount of the outstanding Loans plus (b) the
aggregate amount of the outstanding Facility Letter
of Credit Obligations.
(v) The definition of "Utilization Margin" is amended
in its entirety to read as follows:
"Utilization Margin" means (a) .10% at all
times when the sum of the aggregate principal amount
of all outstanding Loans and the aggregate amount of
Facility Letter of Credit Obligations equals or
exceeds 50% of the Aggregate Commitment and (b) 0% at
all other times.
(vi) A new definition shall be added to the Credit
Agreement to read as follows:
"Year 2000 Issues" means anticipated costs,
problems and uncertainties associated with the
inability of certain computer applications to
effectively handle data including dates on and after
January 1, 2000, as such inability affects the
business, operations and financial condition of the
Borrower and its Subsidiaries.
(vii) A new definition shall be added to the Credit
Agreement to read as follows:
"Year 2000 Program" is defined in Section
5.25.
(b) Exhibit G to the Credit Agreement is amended and
replaced in the form attached hereto as Exhibit G.
(c) A new Schedule 1 attached hereto shall be added
to the Credit Agreement as Schedule 1 thereto.
(d) A new Section 5.25 is added to the Credit
Agreement to read as
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follows:
5.25. Year 2000. The Borrower has made a full and
complete assessment of the Year 2000 Issues and has a realistic and
achievable program for remediating the Year 2000 Issues on a timely
basis (the "Year 2000 Program"). Based on such assessment and on the
Year 2000 Program the Borrower does not reasonably anticipate that Year
2000 Issues will have a Material Adverse Effect.
(e) Section 6.2 is amended in its entirety to read as
follows:
6.2 Use of Proceeds. The Borrower will, and will
cause each Subsidiary to, use the proceeds of the Advances to meet the
general corporate needs of the Borrower and its Subsidiaries, including
the making of Investments and Purchases and stock repurchases permitted
hereunder. The Borrower will not, nor will it permit any Subsidiary to,
use any of the proceeds of the Advances or any Facility Letter of
Credit to purchase or carry any "margin stock" (as defined in
Regulation U) or to finance the Purchase of any Person which has not
been approved and recommended by the board of directors (or functional
equivalent thereof) of such Person.
(f) Section 6.10 is amended in its entirety to read
as follows:
6.10 Capital Stock and Dividends. The Borrower will
not, nor will it permit any Subsidiary to, (a) issue or have
outstanding any preferred stock, other than preferred stock not having
mandatory redemption, retirement and other repurchase dates commencing
less than 91 days after the Facility Termination Date then in effect or
(b) declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own capital stock)
or redeem, repurchase or otherwise acquire or retire any of its capital
stock or any options or other rights in respect thereof at any time
outstanding, except that (i) any Subsidiary may declare and pay
dividends or make distributions to the Borrower or to a Guarantor, (ii)
so long as no Default or Unmatured Default exists before or after
giving effect to the declaration or payment of such dividends, the
Borrower may declare and, within 45 days thereafter, pay dividends on
its capital stock in an amount which, when added to the amount of all
prior dividends does not exceed 10% of Net Worth at such time (before
giving effect to such dividend) and (iii) so long as no Default or
Unmatured Default exists before or after giving effect to the
repurchase of such stock, the Borrower may, after the date hereof,
repurchase its common stock in an aggregate amount not to exceed
$100,000,000.
(g) Section 6.11(d) is amended by deleting the
reference therein to "$50,000,000" and replacing it with
"$100,000,000".
(h) Section 6.24.1 is amended in its entirety to read
as follows:
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6.24.1. Adjusted Net Worth. At all times after the
date hereof, maintain a minimum Adjusted Net Worth at least equal to
the sum of (a) an amount equal to 90% of Adjusted Net Worth as of
September 30, 1998 (but no less than $213,500,000) minus the
aggregate amount of stock repurchases by the Company after the date
hereof not to exceed $100,000,000 plus (b) the sum of all proceeds (net
of related costs, expenses, fees and taxes) received by the Borrower or
any Subsidiary of the Borrower from the issuance of its capital stock,
plus (c) for each Fiscal Quarter ending after the date hereof and prior
to the time of determination, 50% of the Borrower's positive Adjusted
Net Income for such Fiscal Quarter.
2. Representations and Warranties of the Borrower. The
Borrower represents and warrants that:
(a) The execution, delivery and performance by the
Borrower of this Amendment have been duly authorized by all necessary
corporate action and that this Amendment is a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except as the enforcement thereof may be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights
generally;
(b) Each of the representations and warranties
contained in the Credit Agreement is true and correct in all material
respects on and as of the date hereof as if made on the date hereof;
(c) After giving effect to this Amendment, no Default
or Unmatured Default has occurred and is continuing.
3. Effective Date. This Amendment shall become effective upon
(a) the execution and delivery hereof by the Borrower, the Agent and all the
Lenders, (b) the execution and delivery of the Reaffirmation of Guaranty in the
form attached hereto as Exhibit A by Xxxxxxx, Inc., Flavor House Products, Inc.,
Nutcracker Brands, Inc., Sugar Kake Cookie, Inc. and Xxxxx Company and (c) the
execution and delivery by the Borrower of a new Note for each Lender in the
amount of its Commitment specified in Schedule 1 hereto (the "Effective Date").
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Agent or any Lender under the Credit Agreement or any Loan
Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this
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Agreement", "hereunder", "hereof", "herein" or words of similar import
shall mean and be a reference to the Credit Agreement as amended
hereby.
5. Costs and Expenses.
The Borrower hereby affirms its obligation under
Section 9.7 of the Credit Agreement to reimburse the Agent for all
reasonable costs, internal charges and out-of-pocket expenses paid or
incurred by the Agent in connection with the preparation, negotiation,
execution and delivery of this Amendment, including but not limited to
the attorneys' fees and time charges of attorneys for the Agent with
respect thereto.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed an original but
all such counterparts shall constitute one and the same instrument.
(signature page to follow)
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date and year first above written.
RALCORP HOLDINGS, INC.
By:________________________________
Its:_______________________________
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent
By:________________________________
Its:_______________________________
THE TORONTO DOMINION (TEXAS), INC.
By:________________________________
Its:_______________________________
WACHOVIA BANK OF GEORGIA, N.A.
By:________________________________
Its:_______________________________
