FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT (this "Amendment"), dated as of
September 20, 2000, among AMERICAN ITALIAN PASTA COMPANY (the "Company"), the
Banks from time to time party hereto, DEUTSCHE BANK SECURITIES INC., as Arranger
(in such capacity, the "Arranger") and BANKERS TRUST COMPANY, as Agent (in such
capacity, the "Agent"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Banks, the Arranger and the Agent are
parties to a Credit Agreement, dated as of October 30, 1992, amended and
restated as of July 1, 1994, further amended and restated as of February 26,
1996, further amended and restated as of April 11, 1997, further amended and
restated as of October 17, 1997 and further amended and restated as of April 26,
2000 (as in effect on the date hereof, the "Credit Agreement");
WHEREAS, the Company wishes to acquire certain assets used in the
manufacture, marketing and sale of the Mueller's brand of pasta and to assume
certain related liabilities, in each case pursuant to, and in accordance with
the terms of, an Asset Purchase Agreement, dated as of October 4, 2000, between
the Company and Bestfoods (as amended, modified, or supplemented to the date
hereof, the "Mueller's Brand Asset Purchase Agreement") (with such acquisition
and assumption on the basis set forth above being herein called the "Mueller's
Brand Acquisition"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend, and the Banks wish to grant certain consents to,
the Credit Agreement, in each case as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments and Consents to Credit Agreement.
1. Section 7 of the Credit Agreement is hereby amended by inserting
the following new Section 7.26 immediately following Section 7.25:
"7.26 Consummation of the Mueller's Brand Acquisition. At the time
of consummation thereof, each element of the Mueller's Brand Acquisition
shall have been consummated in accordance with the terms of the Mueller's
Brand Asset Purchase Agreement (and without giving effect to any
amendments, modifications or waivers of any terms or conditions thereof
unless consented to by the Required Banks) and all applicable laws. At the
time of consummation thereof, all material consents and approvals of, and
filings and registrations with, and all other actions in respect of, all
governmental agencies, authorities or instrumentalities required in order
to make or
consummate the Mueller's Brand Acquisition in accordance with
all applicable laws and all material third party approvals required in
connection with the Mueller's Brand Acquisition have been obtained, given,
filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). All applicable
waiting periods with respect thereto have or, prior to the time when
required, will have, expired without, in all such cases, any action being
taken by any competent authority, which restrains, prevents, or imposes
material adverse conditions upon the consummation of any element of the
Mueller's Brand Acquisition. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the consummation of any element of the Mueller's Brand
Acquisition, the occurrence of any Credit Event, or the performance by the
Borrower or any of its Subsidiaries of their respective obligations under
all applicable laws. At the time of the consummation of the Mueller's
Brand Acquisition and immediately after giving effect thereto, no Default
or Event of Default exists.".
2. Section 9.02 of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing at the end of clause (vii) of said Section,
(ii) deleting the period appearing at the end of clause (viii) of said Section
and inserting the text "; and" in lieu thereof and (iii) inserting the following
new clause (ix) immediately following clause (viii) of said Section:
"(ix) the Mueller's Brand Acquisition shall be permitted, so
long as (v) same is consummated on or prior to February 1, 2001, (w) the
sole consideration paid to effect the Mueller's Brand Acquisition consists
of (1) 686,666 unregistered shares of Class A Common Stock (the "MBA
Shares"), (2) aggregate net cash consideration of $16,725,718 (as adjusted
as set forth in Sections 3.2 and 4.2(l) of the Mueller's Brand Asset
Purchase Agreement), (3) the contingent Earn-Out Payment (as defined in
the Mueller's Brand Asset Purchase Agreement), (4) the assumption by the
Borrower of the Assumed Liabilities under, and as defined in, the
Mueller's Brand Asset Purchase Agreement and (5) the release and indemnity
by the Company of certain claims against Bestfoods under the Mueller's
Brand Asset Purchase Agreement as set forth in Article XIII to the
Mueller's Brand Asset Purchase Agreement, (x) after giving effect to the
issuance of the MBA Shares, no Change of Control shall have occurred, (y)
the Mueller's Brand Acquisition shall have been consummated in accordance
with the requirements of Section 7.26 and (z) there shall have been
delivered to the Agent true and correct copies of the Mueller's Brand
Asset Purchase Agreement and all documents entered into in connection with
the Mueller's Brand Acquisition, certified as such by an officer of the
Company, all of which shall be reasonably satisfactory in form and
substance to the Agent.".
3. Notwithstanding anything to the contrary contained in
Section 9.03 of the Credit Agreement, the Borrower may acquire MBA Shares from
Bestfoods as payment for amounts required to be paid to the Borrower pursuant to
Article X of the Mueller's Brand Asset Purchase Agreement, so long as (i) such
acquisition is made in accordance with the requirements of Section 10.8 thereof,
and (ii) the only "consideration" for such acquisition of MBA Shares is
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the Borrower's forgiveness of Bestfood's obligation to make a cash payment
pursuant to said Article X (with such foregiveness to be in a like amount as the
value of such MBA Shares so acquired (assuming a valuation of $30 per share)).
4. Section 9.11(iii) of the Credit Agreement is hereby amended by
inserting the text ", provided that notwithstanding the foregoing, the Company
may enter into the Mueller's Brand Asset Purchase Agreement (which, inter alia,
obligates the Company to make certain "make-whole" payments to Bestfoods on the
terms provided therein in the event Bestfoods does not receive $30 per share
pursuant to its sale of the MBA Shares), so long as the Mueller's Brand
Acquisition shall have been consummated in accordance with the requirements of
Section 9.02(ix) on or prior to February 1, 2001" immediately prior to the text
", (iv) amend," appearing in said Section.
5. Notwithstanding anything to the contrary contained in Section
9.11(vi) of the Credit Agreement, the Company may terminate the CPC Contract
concurrently with the consummation of the Mueller's Brand Acquisition in
accordance with the requirements of Section 9.02(ix) of the Credit Agreement.
6. Section 11.01 of the Credit Agreement is hereby further amended
by inserting in the appropriate alphabetical order the following new
definitions:
"First Amendment" shall mean the First Amendment to this Agreement,
dated as of September 20, 2000.
"MBA Shares" shall have the meaning provided in Section 9.02.
"Mueller's Brand Acquisition" shall have the meaning provided in the
First Amendment.
"Mueller's Brand Asset Purchase Agreement" shall have the meaning
provided in the First Amendment.
II. Miscellaneous Provisions.
1. In order to induce the Banks to enter into this Amendment, the
Company hereby represents and warrants that:
(a) no Default or Event of Default exists as of the First Amendment
Effective Date (as defined below), both immediately before and immediately
after giving effect to this Amendment;
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in all
material respects on the First Amendment Effective Date both immediately
before and after giving effect to this Amendment, with the same effect as
though such representations and warranties had been made on and as of the
First Amendment Effective Date (it being understood that any
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representation or warranty made as of a specific date shall be true and
correct in all material respects as of such specific date); and
(c) at the time of the consummation of the Mueller's Brand
Acquisition (and immediately after giving effect thereto), the
consummation of same shall not (i) contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii)
conflict or be inconsistent with or result in any breach of the terms,
covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or
impose) any Lien (except pursuant to the Credit Documents) upon any of the
material properties or assets of the Company or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed of trust, credit
agreement or loan agreement, or any other material agreement, contract or
instrument to which the Company or any of its Subsidiaries is a party or
by which it or any of its material property or assets is bound or to which
it may be subject or (iii) violate any provision of the certificate of
incorporation, by-laws, certificate of limited partnership, limited
partnership agreement or any equivalent organizational document of the
Borrower or any of its Subsidiaries.
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Company and the Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when each of the Company, the Agent and the Banks
constituting the Required Banks shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including by way
of facsimile transmission) the same to the Agent at its Notice Office.
6. From and after the First Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
AMERICAN ITALIAN PASTA COMPANY
By:
Name:
Title:
BANKERS TRUST COMPANY, Individually
and as Agent
By
Name:
Title:
DEUTSCHE BANK SECURITIES, INC.,
as Arranger
By
Name:
Title:
BANK OF SCOTLAND
By
Name:
Title:
BANK ONE, WISCONSIN
By
Name:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By
Name:
Title:
COMMERCE BANK, N.A.
By
Name:
Title:
BANK POLSKA KASA OPIEKI S.A.
By
Name:
Title:
UMB BANK, N.A.
By
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
Name:
Title:
WACHOVIA BANK, N.A.
By
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.p.A.-
New York Branch
By
Name:
Title:
BANK OF AMERICA, N.A.
successor by merger to
NATIONSBANK, N.A.
By
Name:
Title:
FIRSTAR BANK, N.A.
successor by merger to
MERCANTILE BANK
By
Name:
Title:
BANCO ESPIRITO SANTO, S.A.
By
Name:
Title: