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EXHIBIT 10.30
AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of September 30, 1996, is made
by and among RALCORP HOLDINGS, INC., a Missouri corporation (the "Borrower"),
THE PERSONS IDENTIFIED AS A "LENDER" ON THE SIGNATURE PAGES HERETO (the
"Lenders") and NATIONSBANK, N.A., as agent for the Lenders (in such capacity,
the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of March 12, 1996, as
amended or waived from time to time thereafter (as previously amended or
waived, the "5-Year Credit Agreement") among the Borrower, the Lenders and the
Agent, the Lenders have made available a $175,000,000 5-year revolving credit
facility to the Borrower;
WHEREAS, pursuant to a Credit Agreement dated as of March 12, 1996, as
amended or waived from time to time thereafter (as previously amended or
waived, the "364-Day Credit Agreement", and, together with the 5-Year Credit
Agreement, the "Credit Agreements") among the Borrower, the Lenders and the
Agent, the Lenders have made available a $100,000,000 364-day revolving credit
facility to the Borrower; and
WHEREAS, the parties hereto have agreed to enter into this Agreement in
order to evidence certain agreements of the parties with respect to the Credit
Agreements as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, the following term used in this
Agreement has the following meaning:
"Effective Date" is defined in Subpart 4.1.
2
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Agreement, including
its preamble and recitals, have the meanings provided in the Credit
Agreements.
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PART II
5-YEAR CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Effective Date, the
parties hereto hereby agree as follows with respect to the 5-Year Credit
Agreement:
SUBPART 2.1. Amendments to Section 1.01.
(a) The definition of "Commitment" set forth in Section 1.01 of the
5-Year Credit Agreement is hereby amended in its entirety to read as
follows:
"Commitment" shall mean, (i) with respect to each Lender, the
commitment of such Lender (A) to make Revolving Loans in an
aggregate principal amount at any time outstanding of up to such
Lender's Commitment Percentage multiplied by the Revolving
Committed Amount (as such Revolving Committed Amount may be reduced
or increased from time to time pursuant to Section 2.04) and (B) to
purchase participation interests in the Swingline Loans in
accordance with the provisions of Section 2.03(b)(iii), and (ii)
with respect to the Swingline Lender, the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal
amount at any time outstanding of up to the Swingline Committed
Amount.
(b) The definition of "Interest Period" set forth in Section 1.01 of
the 5-Year Credit Agreement is hereby amended in its entirety to read as
follows:
"Interest Period" shall mean (i) as to any Eurodollar Loan, a
period of one (1) week or a period of one, two, three or six
months' duration, as the Borrower may elect, commencing in each
case on the date of the borrowing (including conversions,
extensions and renewals), (ii) as to any Fixed Rate Loan, a period
commencing in each case on the date of the borrowing and ending on
the date specified in the applicable Competitive Bid whereby the
offer to make such Fixed Rate Loan was extended (such ending date
in any event to be not less than 15 nor more than 180 days from the
date of borrowing) and (iii) as to any Quoted Rate Swingline Loan,
a period commencing in each case on the
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date of the borrowing and ending on the date agreed to by the
Borrower and the Swingline Lender in accordance with the provisions
of Section 2.03(b)(i) (such ending date in any event to be not more
than 7 Business Days from the date of borrowing); provided,
however, (A) if any Interest Period would end on a day which is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then on
the next preceding Business Day), (B) no Interest Period shall
extend beyond the Maturity Date, (C) in the case of Eurodollar
Loans made, extended or converted during the Term Loan Amortization
Period, no Interest Period shall extend beyond any principal
amortization payment date unless the portion of the Term Loans
comprised of Base Rate Loans, together with the portion of the Term
Loans comprised of Eurodollar Loans with Interest Periods expiring
prior to the date such principal amortization payment is due, is at
least equal to the amount of such principal amortization payment
due on such date and (D) in the case of Eurodollar Loans (other
than any Eurodollar Loans having a one (1) week Interest Period),
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall, subject to
clause (A) above, end on the last Business Day of such calendar
month.
(c) The definition of "Loan" set forth in Section 1.01 of the 5-Year
Credit Agreement is hereby amended in its entirety to read as follows:
"Loan" or "Loans" shall mean the Revolving Loans (or any
Revolving Loan bearing interest at the Base Rate or the Adjusted
Eurodollar Rate and referred to as a Base Rate Loan or a Eurodollar
Loan), the Competitive Loans, the Swingline Loans, and/or the Term
Loans (or any Term Loan bearing interest at the Base Rate or the
Adjusted Eurodollar Rate and referred to as a Base Rate Loan or a
Eurodollar Loan), individually or collectively, as appropriate.
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(d) The definition of "Unused Revolving Committed Amount" set forth
in Section 1.01 of the 5-Year Credit Agreement is hereby amended in its
entirety to read as follows:
"Unused Revolving Committed Amount" shall mean, for any
period, (i) at all times prior to the first to occur of a
Commitment Increase Event and the ▇▇▇▇▇▇▇ Resorts Disposition, the
amount by which (A) the sum of (1) the then applicable Revolving
Committed Amount plus (2) $140,000,000 exceeds (B) the daily
average sum for such period of (1) the outstanding aggregate
principal amount of all Loans other than Swingline Loans and
Competitive Loans and (2) 50% of the outstanding aggregate
principal amount of all Swingline Loans and (ii) at all times
thereafter, the amount by which (A) the then applicable Revolving
Committed Amount exceeds (B) the daily average sum for such period
of (1) the outstanding aggregate principal amount of all Loans
other than Swingline Loans and Competitive Loans and (2) 50% of the
outstanding aggregate principal amount of all Swingline Loans.
(e) The following additional definitions are hereby added to Section
1.01 in appropriate alphabetical order:
A "Commitment Increase Event" shall be deemed to occur if the
▇▇▇▇▇▇▇ Resorts Disposition shall not have occurred by January 28,
1997.
"▇▇▇▇▇▇▇ Resorts" shall mean ▇▇▇▇▇▇▇ Resorts, Inc., a Colorado
corporation wholly-owned by the Borrower.
"▇▇▇▇▇▇▇ Resorts Credit Agreement" shall mean that certain
Credit Agreement dated as of September 30, 1996, as amended from
time to time, among ▇▇▇▇▇▇▇ Resorts, the lenders party thereto and
NationsBank, N.A. as agent for such lenders.
"▇▇▇▇▇▇▇ Resorts Disposition" shall mean the occurrence of
both of (i) the sale by the Borrower of all of the capital stock of
▇▇▇▇▇▇▇ Resorts and (ii) the receipt by the Agent of evidence
satisfactory to it that (a) all of the obligations of ▇▇▇▇▇▇▇
Resorts
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under the ▇▇▇▇▇▇▇ Resorts Credit Agreement shall have been
satisfied in full and (b) the Commitments under and as defined in
the ▇▇▇▇▇▇▇ Resorts Credit Agreement shall have been terminated.
"Term Loans" shall have the meaning assigned to such term in
Section 2.01(e).
"Term Loan Amortization Date" shall have the meaning assigned
to such term in Section 2.01(e).
"Term Loan Termination Date" shall have the meaning assigned
to such term in Section 2.01(e).
SUBPART 2.2. Amendments to Section 2.01. Section 2.01 of the
5-Year Credit Agreement is hereby amended in the following respects:
(a) Subsection (a) of Section 2.01 of the 5-Year Credit Agreement is
hereby amended in its entirety to read as follows:
(a) Revolving Commitment. Subject to and upon the terms and
conditions and relying upon the representations and warranties
herein set forth, each Lender agrees, severally and not jointly, at
any time and from time to time from the Closing Date until the
Maturity Date, to make revolving credit loans (each a "Revolving
Loan" and, collectively, "Revolving Loans") to the Borrower for the
purposes set forth in Section 7.10; provided, however, (i) with
regard to each Lender individually, such Lender's pro rata share of
outstanding Revolving Loans shall not exceed such Lender's
Commitment Percentage of the Revolving Committed Amount, (ii) with
regard to the Lenders collectively, the aggregate amount of
Revolving Loans outstanding shall not exceed ONE HUNDRED
THIRTY-FIVE MILLION DOLLARS ($135,000,000), as such maximum amount
may be reduced or increased from time to time as provided in
Section 2.04 or as otherwise provided herein (such amount, as so
reduced or increased from time to time, the "Revolving Committed
Amount"), and (iii) in addition to the limitations set forth in the
preceding subparagraphs (i) and (ii), in no event shall the sum of
Revolving Loans outstanding plus Competitive
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Loans outstanding exceed the Revolving Committed Amount. Revolving
Loans hereunder may consist of Base Rate Loans or Eurodollar Loans
(or a combination thereof) as the Borrower may request, and may be
repaid and reborrowed in accordance with the provisions hereof.
(b) The following new subsection (e) is added to Section 2.01 of the
5-Year Credit Agreement immediately succeeding existing subsection (d)
thereof:
(e) Amortization of Certain Loans.
(i) The principal balance of the Revolving Loans, Competitive
Loans and Swingline Loans, if any, in excess of $175,000,000
outstanding as of the date of reduction of the Revolving Committed
Amount required pursuant to the terms of Section 2.04(a)(ii) shall
be payable in sixteen (16) equal consecutive quarterly
installments on the last day of each March, June, September and
December commencing with the first of such dates to occur after the
date of such reduction of the Revolving Committed Amount (each such
date referred to herein as a "Term Loan Amortization Date" and the
last such date referred to herein as the "Term Loan Termination
Date"). Revolving Loans, Competitive Loans and/or Swingline Loans
remaining outstanding after the date of the reduction of the
Revolving Committed Amount required pursuant to the terms of
Section 2.04(a)(ii) shall be referred to collectively as the "Term
Loans". The Term Loans may be comprised of Base Rate Loans and
Eurodollar Loans as the Borrower may elect in accordance with the
provisions hereof, and amounts repaid or prepaid on the Term Loans
may not be reborrowed.
(ii) It is the intention of the parties hereto that the Term
Loans bear interest on the same terms as apply to Revolving Loans
prior to the Maturity Date.
SUBPART 2.3. Amendments to Section 2.04. Section 2.04 of the
5-Year Credit Agreement is hereby amended in its entirety to read as
follows:
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SECTION 2.04. Termination and Reduction of Commitments;
Commitment Increase Event.
(a) Termination and Reduction.
(i) The Borrower may from time to time permanently reduce or
terminate the aggregate Revolving Committed Amount in whole or in
part (in minimum aggregate amounts of the lesser of $5,000,000 or
the full remaining amount of the Revolving Committed Amount) upon
three Business Days' prior written notice to the Agent; provided,
however, no such termination or reduction shall be made which would
reduce the Revolving Committed Amount to an amount less than the
sum of Revolving Loans outstanding plus Competitive Loans
outstanding. The Agent shall promptly notify each of the Lenders
of receipt by the Agent of any notice from the Borrower pursuant to
this Section 2.04(a)(i).
(ii) If the Commitment Increase Event shall occur pursuant to
the terms of Section 2.04(b), then the Revolving Committed Amount
shall automatically be permanently reduced to $175,000,000 on March
11, 1997.
(iii) The Commitments of the Lenders to make, extend or
convert Revolving Loans shall automatically terminate on the
Maturity Date.
(b) Commitment Increase Event. Upon the occurrence of the
Commitment Increase Event and receipt by the Agent of evidence
satisfactory to it that (i) all of the obligations of ▇▇▇▇▇▇▇
Resorts under the ▇▇▇▇▇▇▇ Resorts Credit Agreement have been
satisfied in full and (ii) the Commitments under and as defined in
the ▇▇▇▇▇▇▇ Resorts Credit Agreement have been terminated, the
Revolving Committed Amount automatically shall be increased by
$140,000,000
SUBPART 2.4. Amendments to Section 3.02. Section 3.02 of the
5-Year Credit Agreement is hereby amended in its entirety to read as
follows:
SECTION 3.02. Prepayments.
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(a) Revolving Loans. The Borrower shall have the right to
prepay Revolving Loans in whole or in part from time to time
without premium or penalty; provided, however, that (A) each such
partial prepayment shall be a minimum principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof
and (B) no Eurodollar Loan may be prepaid prior to the last day of
the Interest Period applicable thereto unless accompanied by
payment of amounts specified in Section 3.07. Amounts prepaid on
the Revolving Loans may be reborrowed in accordance with the
provisions hereof.
(b) Competitive Loans. Competitive Loans may not be prepaid
unless accompanied by payment of amounts specified in Section 3.07.
(c) Swingline Loans. The Borrower shall have the right to
prepay Swingline Loans which are Base Rate Loans in whole or in
part from time to time without premium or penalty; provided,
however, that (A) each such partial prepayment shall be a minimum
principal amount of $100,000 or an integral multiple of $100,000 in
excess thereof. Swingline Loans which are Quoted Rate Swingline
Loans may not be prepaid unless accompanied by payment of amounts
specified in Section 3.07. Amounts prepaid on the Swingline Loans
may be reborrowed in accordance with the provisions hereof.
(d) Term Loans. The Borrower shall have the right to prepay
Term Loans in whole or in part from time to time without
premium or penalty; provided, however, that (A) each such partial
prepayment shall be a minimum principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (B) no
Eurodollar Loan may be prepaid prior to the last day of the
Interest Period applicable thereto unless accompanied by payment of
amounts specified in Section 3.07. Amounts prepaid on the Term
Loans may not be reborrowed.
(d) Application. Amounts prepaid hereunder shall be applied
to the Revolving Loans, the Competitive Loans, the Swingline Loans,
and the Term Loans as the Borrower may elect, provided that, if the
Borrower shall fail to specify its application, prepayments
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shall be applied first to Swingline Loans (and with respect to Base
Rate Loans and Quoted Rate Swingline Loans comprising such Loans,
first to Base Rate Loans and then to Quoted Rate Swingline Loans in
direct order of Interest Period maturities), second to Revolving
Loans (and with respect to Base Rate Loans and Eurodollar Loans
comprising such Loans, first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities),
third to the Competitive Loans (in direct order of Interest Period
maturities), and fourth, during the Term Loan Amortization Period
to the Term Loans, ratably to the remaining principal installments
of the Term Loans (and with respect to Base Rate Loans and
Eurodollar Loans comprising such Loans, first to Base Rate Loans
and then to Eurodollar Loans in direct order of Interest Period
maturities).
(e) General. All prepayments of Loans shall be subject to
Section 3.07 but otherwise without premium or penalty and shall be
accompanied by accrued interest on the principal amount being
prepaid to the date of prepayment and all other amounts due and
payable hereunder with respect to such Loans.
SUBPART 2.5. Amendments to Section 4.02. The first sentence of
Section 4.02 of the 5-Year Credit Agreement is hereby amended in its
entirety to read as follows:
SECTION 4.02. Pro Rata Treatment. Except to the extent
otherwise provided herein, each Revolving Loan and Term Loan, each
payment or prepayment of principal of any Revolving Loan or Term
Loan, each payment of interest on the Revolving Loans or Term
Loans, each payment of Unused Fees, each reduction and increase of
the Revolving Committed Amount and each conversion or extension of
any Revolving Loan or Term Loan, shall be allocated pro rata among
the Lenders in accordance with their respective Commitment
Percentages.
SUBPART 2.6. Amendments to Section 5.02. Subsection (a) of Section
5.02 of the 5-Year Credit Agreement is hereby amended in its entirety to
read as follows:
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SECTION 5.02. Each Loan. The obligation of each Lender to make,
convert or extend any Loan (including the obligation of the Swingline
Lender to make any Swingline Loan) is subject to satisfaction of the
following conditions in addition to satisfaction on the Closing Date of
the conditions set forth in Section 5.01:
(a) (i) In the case of any Revolving Loan, the Agent shall
have received an appropriate Notice of Borrowing or Notice of
Extension/Conversion; (ii) in the case of any Competitive Loan, the
applicable Competitive Loan Lender shall have received an
appropriate notice of acceptance of its related Competitive Bid;
(iii) in the case of any Swingline Loan, the Swingline Lender shall
have received an appropriate notice of borrowing in accordance with
the provisions of Section 2.03(b)(i); and (iv) in the case of any
Term Loan, the Agent shall have received notice pursuant to the
terms of Section 2.01(e)(i);
SUBPART 2.7. Amendments to Section 8.01. The word "and" at the end
of existing subsection (e) of Section 8.01 of the 5-Year Credit Agreement
is hereby deleted, the "." at the end of existing subsection (f) of
Section 8.01 of the 5-Year Credit Agreement is hereby deleted and a ";"
and the word "and" are hereby substituted therefor, and the following new
subsection (g) is hereby added to Section 8.01 of the 5-Year Credit
Agreement immediately succeeding such subsection (f):
SECTION 8.01. Funded Indebtedness. The Borrower will not,
nor will it permit any of its Subsidiaries to, contract, create,
incur, assume or permit to exist any Funded Indebtedness, except:
**********
(g) (i) indebtedness of ▇▇▇▇▇▇▇ Resorts arising under that
certain Credit Agreement dated as of September 30, 1996 among
▇▇▇▇▇▇▇ Resorts, the lenders party thereto and NationsBank, N.A.,
as Agent for such lenders; and
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(ii) Guaranty Obligations of the Borrower in respect of the
indebtedness referred to in subsection (g)(i) above.
PART III
364-DAY CREDIT AGREEMENT
SUBPART 3.1. Termination of 364-Day Credit Agreement. Effective on
(and subject to the occurrence of) the Effective Date, the 364-Day Credit
Agreement and the Commitments under and as defined therein automatically
shall be terminated (notwithstanding any notice requirements pursuant to
Section 2.04 of the 364-Day Credit Agreement, but subject to the terms of
Section 11.11 of the 364-Day Credit Agreement).
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Effective Date. The agreements of the parties set
forth in Part II and Part III of this Agreement shall be and become
effective as of the date hereof (the "Effective Date") when all of the
conditions set forth in this Part IV shall have been satisfied.
SUBPART 4.1.1. Execution of Counterparts of Agreement. The Agent
shall have received counterparts of this Agreement, which collectively
shall have been duly executed on behalf of each of the Borrower and the
Lenders.
SUBPART 4.1.2. ▇▇▇▇▇▇▇ Resorts Credit Documents. The Credit
Agreement dated as of September 30, 1996 among ▇▇▇▇▇▇▇ Resorts, Inc., the
lenders party thereto and NationsBank, N.A., as agent for such lenders,
shall have become effective in accordance with the terms of Section 10.03
thereof and all conditions precedent set forth in Section 5.01 thereof
shall have been satisfied.
SUBPART 4.1.3. Prepayments of Loans. The Agent shall have
received, on behalf of the Lenders, (i) payment of the outstanding
Revolving Loans, Competitive Loans and/or Swingline Loans under the
5-Year Credit Agreement to the extent necessary to reduce the aggregate
outstanding
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principal balance of such Loans to $135,000,000 (it being understood
and agreed by the parties hereto that any notice requirement pursuant to
the terms of the 5-Year Credit Agreement shall not be applicable in
connection with such payment, but that such payment shall be subject to
the terms of Section 3.07 of the 5-Year Credit Agreement) and (ii)
payment of the principal of and accrued but unpaid interest on the
outstanding Loans, and all accrued but unpaid Fees, under the 364-Day
Credit Agreement (it being understood and agreed by the parties hereto
that any notice requirement pursuant to the terms of the 364-Day Credit
Agreement shall not be applicable in connection with such payment, but
that such payment shall be subject to the terms of Section 3.07 of the
364-Day Credit Agreement).
SUBPART 4.1.4. Other Documents. The Agent shall have received such
other documentation as the Agent may reasonably request in connection
with the foregoing.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Agreement to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart
of this Agreement.
SUBPART 5.2. Instrument Pursuant to Credit Agreements. This
Agreement is a Credit Document executed pursuant to the Credit Agreements
and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of
the Credit Agreements.
SUBPART 5.3. References in Other Credit Documents. At such time as
this Agreement shall become effective pursuant to the terms of Subpart
4.1, all references in the Credit Documents (as defined in the 5-Year
Credit Agreement) to the Credit Agreement shall be deemed to refer to the
5-Year Credit Agreement as amended by this Agreement.
SUBPART 5.4. Representations and Warranties. The Borrower hereby
represents and warrants that (i) the representations and warranties
contained in Section 6 of the 5-Year Credit Agreement are correct on and
as of the date
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hereof as though made on and as of such date and after giving effect to
the amendments contained herein and (ii) no Default or Event of Default
exists under the 5-Year Credit Agreement on and as of the date hereof and
after giving effect to the amendments contained herein.
SUBPART 5.5. Survival. Except as expressly modified and amended in
this Agreement, all of the terms and provisions and conditions of each of
the Credit Agreements shall remain unchanged.
SUBPART 5.6. Counterparts. This Agreement 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.
SUBPART 5.7. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
SUBPART 5.8. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[The remainder of this page has been left blank intentionally]
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Each of the parties hereto has caused a counterpart of this Agreement to be
duly executed and delivered as of the date first above written.
BORROWER: RALCORP HOLDINGS, INC.
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By
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Title:
LENDERS: NATIONSBANK, N.A.
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By
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Title:
BANK OF AMERICA, NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
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Title:
THE BANK OF NEW YORK
By
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Title:
THE BOATMEN'S NATIONAL BANK
OF ST. LOUIS
By
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Title:
THE FIRST NATIONAL BANK OF CHICAGO
16
By
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Title:
THE CHASE MANHATTAN BANK, N.A.
By
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Title:
[Signatures continued]
WACHOVIA BANK OF GEORGIA, N.A.
By
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Title:
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION
By
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Title:
CREDIT SUISSE
By
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Title:
By
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Title:
AGENT: NATIONSBANK, N.A.
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By
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Title:
