September 15, 2005
American Italian Pasta Company
0000 X. Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
Re: Waivers under Credit Agreement
Ladies/Gentlemen:
Please refer to the Credit Agreement dated as of July 16, 2001 (as
previously amended or otherwise modified, the "Credit Agreement") among American
Italian Pasta Company (the "Company"), various financial institutions and Bank
of America, N.A., as administrative agent (in such capacity, the "Administrative
Agent"). Capitalized terms used but not otherwise defined herein shall have the
respective meanings given to them in the Credit Agreement.
At the request of the Company, the Required Lenders waive until the
Waiver Termination Date (as defined below) any Event of Default (collectively,
the "Known Defaults") arising from (a) the failure of the Company to comply with
Section 10.6.1 (Minimum Fixed Charge Coverage Ratio), 10.6.2 (Maximum Leverage
Ratio) and 10.6.4 (Minimum EBITDA) of the Credit Agreement for the Computation
Period ended July 1, 2005 and the Computation Period ending September 30, 2005,
(b) the failure of the Company to comply with Section 10.2(i) of the Credit
Agreement or the inaccuracy of the representation and warranty in Section 9.4 of
the Credit Agreement or of any certificate delivered pursuant to Section 10.1.1,
10.1.2 or 10.1.3 with respect to any financial statements previously delivered
by the Company to the Administrative Agent or any Lender pursuant to the Credit
Agreement, in each case to the extent arising out of the matters described by
the Company in its press release dated August 9, 2005 and in conference calls
with the Lenders held on July 12, 2005, August 11, 2005 and September 8, 2005
(the "Disclosed Matters"), and (c) the failure by the Company to deliver
financial statements and the corresponding compliance certificate pursuant to
Sections 10.1.2 and 10.1.3 of the Credit Agreement for the Fiscal Quarter ended
July 1, 2005 so long as, in the case of this clause (c), the Company delivers to
the Administrative Agent and the Lenders, not later than September 19, 2005,
financial statements for such Fiscal Quarter together with (i) a statement to
the effect that such financial statements accurately set forth the financial
condition and results of operations of the Company and its Subsidiaries for, and
as of the end of, such Fiscal Quarter, without giving effect to the Permitted
Adjustments (as defined below) and (ii) calculations in reasonable detail (but
without giving effect to the Permitted Adjustments) of the financial covenants
set forth in Section 10.6 of the Credit Agreement as of the last day of such
Fiscal Quarter. For purposes of the foregoing, "Permitted Adjustments" means (x)
adjustments resulting (or that may result) from the pending investigation by the
audit committee of the Company's board of directors, (y) adjustments that may
result from the Disclosed Matters and (z) normal year-end audit adjustments.
As used herein, "Waiver Termination Date" means the earliest to occur
of (i) failure of the Company to comply with the requirements set forth in
clause (c) of the preceding paragraph, (ii) the occurrence of any Event of
Default or Unmatured Event of Default other than the Known
Defaults, (iii) December 16, 2005 and (iv) the date of the effectiveness of an
amendment to the Credit Agreement amending the financial covenants set forth in
clause (a) of the preceding paragraph. The Company acknowledges that (absent the
Required Lenders granting, in their sole and complete discretion, a subsequent
waiver or amendment), immediate Events of Default shall exist on the Waiver
Termination Date as a result of (x) the Known Defaults and (y) any other
then-existing event that constitutes an Event of Default.
In consideration of the waivers set forth above, the Company agrees
with the Lenders that, during the Waiver Period and at any time thereafter
during the existence of an Event of Default, the Company will not, and will not
permit any Subsidiary to, make any Restricted Payment of the type described in
clause (iii) of the proviso to Section 10.10 of the Credit Agreement, other than
repurchases of the Company's capital stock (a) from current or former employees
of the Company or any Subsidiary pursuant to the American Italian Pasta Company
2000 Equity Incentive Plan, (b) from the Company's 401-k plan and (c) pursuant
to the terms of any other employee benefit arrangement as in effect prior to
September 1, 2005.
This waiver letter is limited to the matters specifically set forth
herein and shall not be deemed to constitute a waiver, consent or amendment with
respect to any other matter whatsoever. Except as specifically set forth herein,
the Credit Agreement shall remain in full force and effect and is hereby
ratified in all respects.
This waiver letter shall become effective when the Administrative Agent
has received (a) counterparts hereof executed by the Required Lenders and
acknowledged by the Company and each Guarantor and (b) a waiver fee for each
Lender that, on or prior to 5:00 p.m. (Chicago time) on September 15, 2005,
delivers an executed counterpart hereof to the Administrative Agent, such waiver
fee to equal 0.10% of the sum of (i) the outstanding principal amount of such
Xxxxxx's Term Loan and (ii) such Xxxxxx's Revolving Commitment.
This waiver letter may be executed in counterparts and by the parties
hereto on separate counterparts. A signature page hereto delivered by facsimile
shall be effective as delivery of an original counterpart.
This letter agreement shall be a contract made under and governed by
the laws of the State of Illinois applicable to contracts made and to be
performed entirely within such State.
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A. (f/k/a Bank
One, NA), as Documentation Agent and as a
Lender
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL
ASSOCIATION, as Syndication
Agent and as a Lender
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
ING CAPITAL LLC
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
Title: Managing Director
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KEYBANK NATIONAL ASSOCIATION, as Co-Agent
and as a Lender
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as Co-Agent
and as a Lender
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
XXXXX FARGO BANK, N.A., as Co-Agent and
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
BANCA NAZIONALE DEL LAVORO S.P.A.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Relationship Manager
By: /s/ Xxxxxxxxx Xx Xxxxx
--------------------------------------
Name: Xxxxxxxxx Xx Xxxxx
Title: Senior Manager
THE BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
COMERICA BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COMMERCE BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, as Co-Agent and as a
Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
UNICREDITO ITALIANO
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
UMB BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
COBANK, ACB
By: /s/ X. Xxxxxxx Xxxx
--------------------------------------
Name: X. Xxxxxxx Xxxx
Title: Vice President
FARM CREDIT SERVICES OF MINNESOTA VALLEY
PCA D/B/A FCS COMMERCIAL FINANCE GROUP
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Commercial Loan Officer
AGFIRST, FCB
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
X.X. XXXXXX, FCB (f/k/a Farm Credit Bank
of Wichita)
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
FARM CREDIT SERVICES OF AMERICA, PCA
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
GREENSTONE FARM CREDIT SERVICES, FLCA
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President-Lending Officer
NORTHWEST FARM CREDIT SERVICES, PCA
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Senior Vice President
Canadian Imperial Bank of Commerce
By: /s/ Xxxx X'Xxxx
--------------------------------------
Name: Xxxx X'Xxxx
Title: Authorized Signatory
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
/s/ Xxxxx X. Xxxxx, Xx.
-----------------------------------------
BDC FINANCE, LLC
Name: Xxxxx X. Xxxxx, Xx.
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH
By: DBServices New Jersey, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Farm Credit Services of Missouri, PCA
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Vice President, Capital Markets
Citigroup Financial Products, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
ACKNOWLEDGED AND AGREED:
AMERICAN ITALIAN PASTA COMPANY
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: President & CEO
AIPC FINANCE, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent
AIPC SALES CO.
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: President & CEO
AIPC WISCONSIN, LIMITED PARTNERSHIP
By: America Italian Pasta Company, its General Partner
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: President & CEO
AIPC MISSOURI, LLC
By: American Italian Pasta Company, its Managing Member
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name: Xxx Xxxxxxx
Title: President & CEO
AIPC SOUTH CAROLINA, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent
AIPC ARIZONA, LLC
By: AIPC Finance, Inc., its sole Member
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent