Ralcorp Holdings, Inc. Fifth Supplement to Note Purchase Agreements Dated as of December 21, 2005
Exhibit 10.3
Ralcorp
Holdings, Inc.
Fifth
Supplement to Note Purchase Agreements
Dated
as
of December 21, 2005
Re: $75,000,000
5.43% Senior Notes, Series F,
Due
December 21,
2012
Ralcorp
Holdings, Inc.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated
as
of
December 21,
2005
To
the
Series F Purchasers named in
Schedule A
hereto
Ladies
and Gentlemen:
This
Fifth Supplement to Note Purchase Agreements (the or this "Fifth
Supplement")
is
among Ralcorp Holdings, Inc., a Missouri corporation (the "Company")
and the
institutional investors named on Schedule A attached hereto (the
"Series
F Purchasers").
Reference
is hereby made to the Note Purchase Agreements dated as of May 22, 2003 (as
amended and supplemented from time to time, the "Note
Purchase Agreements"),
among
the Company and the purchasers listed on Schedule A thereto. All
capitalized terms not otherwise defined herein shall have the same meaning
as
specified in the Note Purchase Agreements. Reference is further made to
Section 4.13 of the Note Purchase Agreements which requires that, prior to
the delivery of any Additional Notes, the Company and each Additional Purchaser
shall execute and deliver a Supplement.
The
Company hereby agrees with the Series F Purchasers as follows:
1. The
Company has authorized the issue and sale of $75,000,000 aggregate principal
amount of the 5.43% Senior Notes, Series F, due December 21, 2012 (the
"Series
F Notes").
The
Series F Notes, together with the Series A Notes initially issued pursuant
to the Note Purchase Agreements, the $145,000,000 aggregate principal amount
of
4.24% Senior Notes, Series B, due December 22, 2010 (the "Series B
Notes")
issued
pursuant to the First Supplement to Note Purchase Agreements dated as of
December 22, 2003 (the "First
Supplement"),
the
$50,000,000 aggregate principal amount of 5.43% Senior Notes, Series C, due
December 22, 2013 (the "Series C
Notes")
issued
pursuant to the Second Supplement to Note Purchase Agreements dated as of
December 22, 2003 (the "Second
Supplement"),
the
$75,000,000 aggregate principal amount of 4.76% Senior Notes, Series D, due
December 22, 2013 (the "Series
D Notes")
issued
pursuant to the Third Supplement to Note Purchase Agreement dated as of December
22, 2003 (the "Third
Supplement"),
the
$100,000,000 aggregate principal amount of 5.57% Senior Notes, Series E, due
December 21, 2015 (the "Series
E Notes")
issued
pursuant to the Fourth Supplement to Note Purchase Agreements dated as of
December 21, 2005 (the "Fourth
Supplement"),
and
each series of Additional Notes which may from time to time hereafter be issued
pursuant to the provisions of Section 2.2 of the Note Purchase Agreements,
are collectively referred to as the "Notes"
(such
term shall also include any such notes issued in substitution therefor pursuant
to Section 13 of the Note Purchase Agreements). The Series F Notes shall be
substantially in the form set out in Exhibit 1 hereto with such changes
therefrom, if any, as may be approved by the Series F Purchasers and the
Company.
2. Subject
to the terms and conditions hereof and as set forth in the Note Purchase
Agreements and on the basis of the representations and warranties hereinafter
set forth, the Company agrees to issue and sell to each Series F Purchaser,
and
each Series F Purchaser agrees to purchase from the Company, Series F Notes
in
the principal amount set forth opposite such Series F Purchaser’s name on
Schedule A hereto at a price of 100% of the principal amount thereof on the
closing date hereafter mentioned.
3. The
sale
and purchase of the Series F Notes to be purchased by each Series F Purchaser
shall occur at the offices of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m.
Chicago
time, at a closing (the "Closing")
on
December 21, 2005 or on such other Business Day thereafter on or prior to
December 23, 2005 as may be agreed upon by the Company and the Series F
Purchasers. At the Closing the Company will deliver to each Series F Purchaser
the Series F Notes to be purchased by such Series F Purchaser in the form of
a
single Series F Note (or such greater number of Series F Notes in denominations
of at least $100,000 as such Series F Purchaser may request) dated the date
of
the Closing and registered in such Series F Purchaser’s name (or in the name of
such Series F Purchaser’s nominee), against delivery by such Series F Purchaser
to the Company or its order of immediately available funds in the amount of
the
purchase price therefor by wire transfer of immediately available funds for
the
account of the Company to account number ▇▇▇▇▇▇▇ and account name Ralcorp
Holdings, Inc. at JPMorgan Chase Bank, N.A. in New York, New York,
ABA #▇▇▇▇▇▇▇▇▇. If, at the Closing, the Company shall fail to tender such
Series F Notes to any Series F Purchaser as provided above in this
Section 3, or any of the conditions specified in Section 4 shall not
have been fulfilled to any Series F Purchaser’s satisfaction, such Series F
Purchaser shall, at such Series F Purchaser’s election, be relieved of all
further obligations under this Fifth Supplement, without thereby waiving any
rights such Series F Purchaser may have by reason of such failure or such
nonfulfillment.
4. The
obligation of each Series F Purchaser to purchase and pay for the Series F
Notes
to be sold to such Series F Purchaser at the Closing is subject to the
fulfillment to such Series F Purchaser’s satisfaction, prior to the Closing, of
the conditions set forth in Section 4 of the Note Purchase Agreements with
respect to the Series F Notes to be purchased at the Closing, and to the
following additional conditions:
(a) Except
as
supplemented, amended or superceded by the representations and warranties set
forth in Exhibit A hereto, each of the representations and warranties of
the Company set forth in Section 5 of the Note Purchase Agreements shall be
correct as of the date of Closing and the Company shall have delivered to each
Series F Purchaser an Officer’s Certificate, dated the date of the Closing
certifying that such condition has been fulfilled.
(b) Contemporaneously
with the Closing, (i) the Company shall sell to each Series F Purchaser,
and each Series F Purchaser shall purchase, the Series F Notes to be purchased
by such Series F Purchaser at the Closing as specified in Schedule A and
(ii) the Company shall sell to each purchaser and each purchaser shall
purchase the Series E Notes to be purchased by such purchaser at the
Closing and as specified in Schedule A to the Fourth
Supplement.
5. Maturity.
As provided therein, the entire unpaid principal balance of the Series F Notes
shall be due and payable on the stated maturity date thereof.
6. Optional
Prepayments with Make-Whole Amount. The Company may, at its
option, upon notice as provided below, prepay at any time all, or from time
to
time any part of, the Series F Notes, in an amount not less than 10% of the
aggregate principal amount of the Series F Notes then outstanding in the case
of
a partial prepayment, at 100% of the principal amount so prepaid, plus the
Make-Whole Amount determined for the prepayment date with respect to such
principal amount. The Company will give each holder of Series F Notes written
notice of each optional prepayment under this Section 6 of this Fifth
Supplement not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. Each such notice shall specify such date, the
aggregate principal amount of the Series F Notes to be prepaid on such date,
the
principal amount of each Series F Note held by such holder to be prepaid
(determined in accordance with Section 7 of this Fifth Supplement), and the
interest to be paid on the prepayment date with respect to such principal amount
being prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Series
F
Notes a certificate of a Senior Financial Officer specifying the calculation
of
such Make-Whole Amount as of the specified prepayment date.
7. Allocation
of
Partial Prepayments for Series F Notes.
In the case of each partial prepayment of the Series F Notes pursuant to Section
6 of this Fifth Supplement, the principal amount of the Series F Notes to be
prepaid shall be allocated among all of the Series F Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
8. Maturity;
Surrender, etc. for Series F Notes.
In the case of each prepayment of Series F Notes pursuant to Section 6 of
this Fifth Supplement and Section 8.3 of the Note Purchase Agreements, the
principal amount of each Series F Note to be prepaid shall mature and become
due
and payable on the date fixed for such prepayment, together with interest on
such principal amount accrued to such date and the applicable Make-Whole Amount,
if any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount
shall
cease to accrue. Any Series F Note paid or prepaid in full shall be surrendered
to the Company and cancelled and shall not be reissued, and no Series F Note
shall be issued in lieu of any prepaid principal amount of any Series F
Note.
9. Purchase
of Series F Notes.
The Company will not and will not permit any Affiliate to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of the outstanding
Series F Notes except upon the payment or prepayment of the Series F Notes
in
accordance with the terms of this Fifth Supplement, Section 8.3 of the Note
Purchase Agreements and the Series F Notes. The Company will promptly cancel
all
Series F Notes acquired by it or any Affiliate pursuant to any payment,
prepayment or purchase of Series F Notes pursuant to any provision of this
Agreement and no Series F Notes may be issued in substitution or exchange for
any such Series F Notes.
10. Make-Whole
Amount for Series F Notes.
The term "Make-Whole
Amount"
means,
with respect to any Series F Note, an amount equal to the excess, if any, of
the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Series F Note over the amount of such Called Principal,
provided that the Make-Whole Amount may in no event be less than zero. For
the
purposes of determining the Make-Whole Amount, the following terms have the
following meanings:
"Called
Principal"
means,
with respect to any Series F Note, the principal of such Series F Note that
is
to be prepaid pursuant to Section 6 of this Fifth Supplement or has become
or is declared to be immediately due and payable pursuant to Section 12.1
of the Note Purchase Agreements, as the context requires.
"Discounted
Value"
means,
with respect to the Called Principal of any Series F Note, the amount obtained
by discounting all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the Settlement Date
with
respect to such Called Principal, in accordance with accepted financial practice
and at a discount factor (applied on the same periodic basis as that on which
interest on the Series F Notes is payable) equal to the Reinvestment Yield
with
respect to such Called Principal.
"Reinvestment
Yield"
means,
with respect to the Called Principal of any Series F Note, .50% over the yield
to maturity implied by (i) the yields reported, as of 10:00 A.M. (New York
City time) on the second Business Day preceding the Settlement Date with respect
to such Called Principal, on the display designated as "Page PX1" on the
Bloomberg Financial Markets (or such other display as may replace Page PX1
on
Bloomberg Financial Markets) for actively traded U.S. Treasury securities having
a maturity equal to the Remaining Average Life of such Called Principal as
of
such Settlement Date, or (ii) if such yields are not reported as of such
time or the yields reported as of such time are not ascertainable, the Treasury
Constant Maturity Series Yields reported, for the latest day for which such
yields have been so reported as of the second Business Day preceding the
Settlement Date with respect to such Called Principal, in Federal Reserve
Statistical Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant maturity equal to
the
Remaining Average Life of such Called Principal as of such Settlement Date.
Such
implied yield will be determined, if necessary, by (a) converting U.S.
Treasury ▇▇▇▇ quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity closest to and greater
than the Remaining Average Life and (2) the actively traded U.S. Treasury
security with the maturity closest to and less than the Remaining Average
Life.
"Remaining
Average Life"
means,
with respect to any Called Principal, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called Principal
into (ii) the sum of the products obtained by multiplying (a) the
principal component of each Remaining Scheduled Payment with respect to such
Called Principal by (b) the number of years (calculated to the nearest
one-twelfth year) that will elapse between the Settlement Date with respect
to
such Called Principal and the scheduled due date of such Remaining Scheduled
Payment.
"Remaining
Scheduled Payments"
means,
with respect to the Called Principal of any Series F Note, all payments of
such
Called Principal and interest thereon that would be due after the Settlement
Date with respect to such Called Principal if no payment of such Called
Principal were made prior to its scheduled due date, provided that if such
Settlement Date is not a date on which interest payments are due to be made
under the terms of the Series F Notes, then the amount of the next succeeding
scheduled interest payment will be reduced by the amount of interest accrued
to
such Settlement Date and required to be paid on such Settlement Date pursuant
to
Section 6 of this Fifth Supplement or Section 12.1 of the Note Purchase
Agreements.
"Settlement
Date" means,
with respect to the Called Principal of any Series F Note, the date on which
such Called Principal is to be prepaid pursuant to Section 6 of this Fifth
Supplement or has become or is declared to be immediately due and payable
pursuant to Section 12.1 of the Note Purchase Agreements, as the context
requires.
11. Each
Series F Purchaser, as to itself, represents and warrants that the
representations and warranties set forth in Section 6 of the Note Purchase
Agreements are true and correct on the date hereof with respect to the purchase
of the Series F Notes by such Series F Purchaser.
12. The
Company and each Series F Purchaser agree to be bound by and comply with the
terms and provisions of the Note Purchase Agreements, as supplemented hereby,
as
fully and completely as if such Series F Purchaser were an original signatory
to
the Note Purchase Agreements.
13. Additional
Series F Provisions.
Pursuant to the provisions of Section 2.2(ii) and Section 2.2(iii) of
the Note Purchase Agreements:
(a) In
the
event that the Series A Notes are not outstanding, the "Proposed Prepayment
Date" under Section 8.3(c) for any holder of Series F Notes shall be deemed
to be the first Business Day which is at least 15 days after the date of the
notice of prepayment contemplated by Sections 8.3(a) and
8.3(b).
(b) The
holders
of the Series F Notes (and no other holders) agree to waive payment of the
amount otherwise required by clause (y) of the penultimate sentence of the
last paragraph of Section 12.1 of the Note Purchase Agreements (but no
other amount) and, in consideration therefor, and in lieu of the amount
otherwise payable under said clause (y), the Company agrees, upon any
Series F Notes becoming due and payable under Section 12.1, whether
automatically or by declaration, to pay such holders of the Series F Notes
the
Make-Whole Amount in respect of the Series F Notes, together with all other
amounts required to be paid pursuant to Section 12.1.
(c) The
holders of the Series F Notes (and no other holders) agree to waive payment
of
interest at the Default Rate on overdue interest, principal and premium, if
any,
otherwise required by clause (a) of the first sentence of Section 12.3
of the Note Purchase Agreements in connection with any rescission of
acceleration of the Series F Notes and, in consideration therefor and in lieu
of
the amount otherwise payable at the Default Rate, the Company agrees that as
a
condition precedent to any rescission of acceleration of the Series F Notes,
interest on any such overdue interest, principal and premium, if any, shall
be
paid at the overdue rate applicable to the Series F Notes as more fully
described at the end of the first paragraph of Exhibit 1
hereto.
14. Governing
Law.
This Fifth Supplement shall be governed by and construed in accordance with
the
laws of the State of New York, excluding choice-of-law principles of the law
of
such State that would require the application of the laws of a jurisdiction
other than such State
[Signature
Page Follows]
The
execution hereof shall constitute a contract between the Company and the Series
F Purchasers for the uses and purposes hereinabove set forth, and this Fifth
Supplement may be executed in any number of counterparts, each executed
counterpart constituting an original but all together only one
agreement.
Ralcorp
Holdings, Inc.
By:
/s/
▇.
▇.
▇▇▇▇▇▇
Name:
▇. ▇. ▇▇▇▇▇▇
Title: Co-Chief
Executive Officer
and President
Accepted
as of the date first written above.
The
Prudential Insurance Company of
America
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Vice President
Prudential
Retirement Insurance and
Annuity Company
By: Prudential
Investment Management, Inc., as
investment manager
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
Security
Benefit Life Insurance Company,
Inc.
By: Prudential
Private Placement Investors, L.P.
(as
Investment Advisor)
By: Prudential
Private Placement Investors, Inc.
(as
its
General Partner)
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
Accepted
as of the date first written above.
Farmers
New World Life Insurance Company
By: Prudential
Private Placement Investors, L.P.
(as
Investment Advisor)
By: Prudential
Private Placement Investors, Inc.
(as
its
General Partner)
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
Gateway
Recovery Trust
By: Prudential
Investment Management, Inc., as
Asset
Manager
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
Accepted
as of the date first written above.
Metropolitan
Life Insurance Company
By:
/s/
▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Managing Director
Accepted
as of the date first written above.
The
Northwestern Mutual Life Insurance Company
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Its Authorized Representative
Accepted
as of the date first written above.
Massachusetts
Mutual Life Insurance Company
By:
Babson Capital Management LLC, as
Investment Adviser
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Managing Director
C.M.
Life
Insurance Company
By:
Babson Capital Management LLC, as
Investment Sub-Adviser
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Managing Director
MassMutual
Asia Limited
By:
Babson Capital Management LLC, as
Investment Adviser
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Managing Director
Accepted
as of the date first written above.
Connecticut
General Life Insurance Company
By: Cigna
Investments, Inc. (authorized agent)
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Managing Director
Accepted
as of the date first written above.
MONY
Life
Insurance Company
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Investment Officer
AXA
Equitable Life Insurance Company
By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Investment Officer
Accepted
as of the date first written above.
Horizon
Blue Cross Blue Shield of New Jersey
By: Alliance
Capital Management LP, its
Investment Advisor
By:
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Senior Vice President
Accepted
as of the date first written above.
Teachers
Insurance and Annuity Association of America
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇.▇▇▇▇▇▇
Title:
Director
Accepted
as of the date first written above.
PHL
Variable Insurance Company
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
Accepted
as of the date first written above.
Jefferson
Pilot Financial Insurance Company
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title:
Vice President
Each
of
the undersigned ratifies and confirms as of the date hereof its obligations
under the Subsidiary Guarantee dated May 22, 2003, as amended, modified or
supplemented.
▇▇▇▇▇▇▇,
Inc.
Sugar
Kake Cookie Inc. (f/k/a Cascade Cookie Company, Inc.)
Flavor
House Products, Inc.
Nutcracker
Brands, Inc.
RH
Financial Corporation
Ripon
Foods, Inc.
Heritage
Wafers, LLC
The
Carriage House Companies, Inc. (by itself and as successor by merger to The
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Company, LLC)
Value
Added Bakery Holding Company
Bakery
Chef, L.L.C. (successor by merger to Bakery Chef, Inc.)
Community
Shops, Inc.
The
Bun
Basket, Inc.
Lofthouse
Bakery Products, Inc.
Medallion
Foods, Inc.
By:
/s/
▇.
▇. ▇▇▇▇▇▇
Name:
▇. ▇. ▇▇▇▇▇▇
Title: Authorized Signatory