<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED OCTOBER 4, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER: NO. 333-8379
------------------------------
KEEBLER CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 36-1894790
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
677 LARCH AVE., ELMHURST, IL 60126
(Address of principal executive offices)
630-833-2900
(Registrant's telephone number, including area code)
NOT APPLICABLE.
(Former name, former address and former fiscal year,
if changed since last report)
--------------------
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS REQUIRED
TO BE FILED BY SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DURING
THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE REGISTRANT WAS
REQUIRED TO FILE SUCH REPORTS) AND (2) HAS BEEN SUBJECT TO SUCH FILING
REQUIREMENTS FOR THE PAST 90 DAYS. YES |X| NO | |
NUMBER OF SHARES OF COMMON STOCK, $1.00 PAR VALUE, OUTSTANDING AS OF THE CLOSE
OF BUSINESS ON NOVEMBER 10, 1997: 1,000,000.
================================================================================
<PAGE>
PART I: FINANCIAL INFORMATION
ITEM 1: FINANCIAL STATEMENTS
<TABLE>
KEEBLER CORPORATION
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS)
<CAPTION>
OCTOBER 4, December 28,
1997 1996
----------------- -----------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 60,901 $ 11,404
Trade accounts and notes receivable, net 129,785 137,150
Receivables from affiliates 235 -
Inventories, net:
Raw materials 23,006 25,296
Package materials 10,949 9,842
Finished goods 86,902 76,054
Other 2,107 1,473
----------------- -----------------
122,964 112,665
Deferred income taxes 44,052 55,929
Other 22,741 19,337
----------------- -----------------
Total current assets 380,678 336,485
PROPERTY, PLANT, AND EQUIPMENT, NET 470,795 486,080
TRADEMARKS AND TRADENAMES, NET 155,043 158,033
GOODWILL, NET 47,341 48,280
PREPAID PENSION 42,421 43,359
ASSETS HELD FOR SALE 3,178 6,785
OTHER ASSETS 16,685 22,502
----------------- -----------------
Total assets $ 1,116,141 $ 1,101,524
================= =================
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS.
2
</TABLE>
<PAGE>
<TABLE>
KEEBLER CORPORATION
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS)
<CAPTION>
OCTOBER 4, December 28,
1997 1996
----------------- -----------------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt $ 31,265 $ 18,570
Trade accounts payable 97,815 96,754
Other liabilities and accruals 228,434 186,586
Income taxes payable 24,162 -
Plant and facility closing costs and severance 10,309 19,860
----------------- -----------------
Total current liabilities 391,985 321,770
LONG-TERM DEBT 341,890 412,705
OTHER LIABILITIES:
Deferred income taxes 49,226 64,957
Postretirement/postemployment obligations 59,138 56,382
Plant and facility closing costs and severance 11,602 16,124
Deferred compensation 17,075 18,205
Other 16,756 20,708
----------------- -----------------
Total other liabilities 153,797 176,376
COMMITMENTS AND CONTINGENCIES
SHAREHOLDERS' EQUITY:
Common stock ($1 par value; 1,000,000 shares authorized and issued) 1,000 1,000
Additional paid-in capital 172,568 172,568
Retained earnings 54,901 17,105
----------------- -----------------
Total shareholders' equity 228,469 190,673
----------------- -----------------
Total liabilities and shareholders' equity $ 1,116,141 $ 1,101,524
================= =================
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS.
3
</TABLE>
<PAGE>
<TABLE>
KEEBLER CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS)
<CAPTION>
KEEBLER CORPORATION KEEBLER CORPORATION || UBIUS
-------------------------------- --------------------------------||----------------
TWELVE Twelve FORTY Thirty-Six || Four
WEEKS ENDED Weeks Ended WEEKS ENDED Weeks Ended || Weeks Ended
OCTOBER 4, 1997 October 5, 1996 OCTOBER 4, 1997 October 5, 1996||January 26, 1996
--------------- --------------- --------------- ---------------||----------------
<S> <C> <C> <C> <C> ||<C>
||
NET SALES $ 485,295 $ 452,329 $ 1,542,157 $ 1,171,354 || $ 101,656
||
COSTS AND EXPENSES: ||
Cost of sales 208,345 217,348 668,446 560,719 || 54,870
Selling, marketing, and administrative ||
expenses 234,775 220,197 770,442 571,310 || 71,427
Other 2,334 1,844 6,880 4,366 || 857
--------------- -------------- --------------- ---------------||---------------
INCOME (LOSS) FROM CONTINUING OPERATIONS 39,841 12,940 96,389 34,959 || (25,498)
||
Interest (income) from affiliates - - - - || (875)
Interest (income) (382) - (710) (399)|| (3)
Interest expense to affiliates - - - - || 664
Interest expense 7,557 10,428 27,292 27,390 || 98
--------------- -------------- --------------- ---------------||---------------
INTEREST EXPENSE (INCOME), NET 7,175 10,428 26,582 26,991 || (116)
--------------- -------------- --------------- ---------------||---------------
||
INCOME (LOSS) FROM CONTINUING OPERATIONS ||
BEFORE INCOME TAX EXPENSE 32,666 2,512 69,807 7,968 || (25,382)
Income tax expense 13,720 1,367 29,319 4,382 || -
--------------- -------------- --------------- ---------------||---------------
||
INCOME (LOSS) FROM CONTINUING OPERATIONS ||
BEFORE EXTRAORDINARY ITEM 18,946 1,145 40,488 3,586 || (25,382)
||
DISCONTINUED OPERATIONS: ||
Gain on disposal of the Frozen Food ||
businesses, net of tax - - - - || 18,910
--------------- -------------- --------------- ---------------||---------------
||
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM 18,946 1,145 40,488 3,586 || (6,472)
EXTRAORDINARY ITEM: ||
Loss on early extinguishment of debt, ||
net of tax - - 2,692 1,925 || -
--------------- -------------- --------------- ---------------||---------------
||
NET INCOME (LOSS) $ 18,946 $ 1,145 $ 37,796 $ 1,661 || $ (6,472)
=============== ============== =============== ===============||===============
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS.
4
</TABLE>
<PAGE>
<TABLE>
KEEBLER CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<CAPTION>
KEEBLER CORPORATION || UBIUS
------------------------------------ || ----------------
FORTY Thirty-Six || Four
WEEKS ENDED Weeks Ended || Weeks Ended
OCTOBER 4, 1997 October 5, 1996 || January 26, 1996
--------------- --------------- || ----------------
<S> <C> <C> || <C>
||
CASH FLOWS PROVIDED FROM (USED BY) OPERATING ACTIVITIES ||
Net income (loss) $ 37,796 $ 1,661 || $ (6,472)
Adjustments to reconcile net income (loss) to cash from ||
operating activities: ||
Depreciation and amortization 45,523 33,140 || 1,973
Deferred income taxes (3,854) - || -
Gain on the disposal of the Frozen Food businesses, net of tax - - || (18,910)
Loss on early extinguishment of debt, net of tax 2,692 1,925 || -
(Gain) loss on sale of property, plant, and equipment (422) (26)|| 33
Changes in assets and liabilities: ||
Trade accounts and notes receivable, net 7,365 22,264 || 22,068
Accounts receivable/payable from affiliates, net (235) - || (1,941)
Inventories, net (10,299) (34,255)|| 4,353
Recoverable income taxes and income taxes payable 26,112 3,545 || 25
Other current assets (3,404) (6,353)|| 1,192
Deferred debt issue costs (1,250) (6,123)|| -
Trade accounts payable and other current liabilities 42,724 21,773 || 11,550
Restructuring reserves - - || (14,469)
Plant and facility closing costs and severance (14,027) (32,994)|| -
Other, net (313) 9,554 || 246
---------------- -----------------||------------------
Cash provided from (used by) operating activities 128,408 14,111 || (352)
||
CASH FLOWS (USED BY) PROVIDED FROM INVESTING ACTIVITIES ||
Capital expenditures (26,097) (17,989)|| (3,228)
Proceeds from property disposals 5,306 3,389 || 644
Disposition of the Frozen Food businesses - - || 67,749
Purchase of Sunshine Biscuits, Inc., net of cash acquired - (142,670)|| -
Working capital adjustment paid by UB Investment (Netherlands) B.V. - 32,609 || -
---------------- -----------------||------------------
Cash (used by) provided from investing activities (20,791) (124,661)|| 65,165
||
CASH FLOWS (USED BY) PROVIDED FROM FINANCING ACTIVITIES ||
Long-term debt borrowings 109,750 220,000 || -
Long-term debt repayments (167,870) (130,987)|| (2,377)
Revolving Loan facility, net - 23,600 || (63,300)
---------------- -----------------||------------------
Cash (used by) provided from financing activities (58,120) 112,613 || (65,677)
---------------- -----------------||------------------
Increase (decrease) in cash and cash equivalents 49,497 2,063 || (864)
Cash and cash equivalents at beginning of period 11,404 2,114 || 2,978
---------------- -----------------||------------------
Cash and cash equivalents at end of period $ 60,901 $ 4,177 || $ 2,114
================ =================||==================
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THESE CONSOLIDATED FINANCIAL STATEMENTS.
5
</TABLE>
<PAGE>
KEEBLER CORPORATION
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
- --------------------------------------------------------------------------------
THE CONSOLIDATED FINANCIAL STATEMENTS OF KEEBLER CORPORATION ("THE COMPANY")
INCLUDE THE FINANCIAL STATEMENTS OF UB INVESTMENTS US, INC. ("UBIUS"), THE
PREDECESSOR COMPANY, FOR THE FOUR WEEKS ENDED JANUARY 26, 1996, THE DATE THE
COMPANY WAS ACQUIRED BY INFLO HOLDINGS CORPORATION ("INFLO"), AND THE SUCCESSOR
COMPANY FOR THE FORTY WEEKS ENDED OCTOBER 4, 1997 AND THE THIRTY-SIX WEEKS ENDED
OCTOBER 5, 1996. THE DISTINCTION BETWEEN THE PREDECESSOR COMPANY'S AND THE
SUCCESSOR COMPANY'S CONSOLIDATED FINANCIAL STATEMENTS HAS BEEN MADE BY INSERTING
A DOUBLE LINE BETWEEN SUCH CONSOLIDATED FINANCIAL STATEMENTS. THE CONSOLIDATED
FINANCIAL STATEMENTS FOR THE FOUR WEEKS ENDED JANUARY 26, 1996 INCLUDE "THE
FROZEN FOOD BUSINESSES", DEFINED AS BERNARDI ITALIAN FOODS CO., THE ORIGINAL
CHILI BOWL, INC., AND CHINESE FOOD PROCESSING CORPORATION, ALL OF WHICH WERE
WHOLLY OWNED SUBSIDIARIES OF UBIUS PRIOR TO THEIR SALE ON DECEMBER 31, 1995.
1. BASIS OF PRESENTATION
INTERIM FINANCIAL STATEMENTS
The unaudited interim consolidated financial statements included herein were
prepared pursuant to the rules and regulations for interim reporting under the
Securities Exchange Act of 1934. Accordingly, certain information and footnote
disclosures normally accompanying the annual financial statements were omitted.
The interim consolidated financial statements and notes should be read in
conjunction with the annual audited consolidated financial statements and notes
thereto. The accompanying unaudited interim consolidated financial statements
contain all adjustments, consisting only of normal adjustments, which in the
opinion of management were necessary for a fair statement of the results for the
interim periods. Results for the interim periods are not necessarily indicative
of results for the full year.
FISCAL PERIODS PRESENTED
The Company's fiscal year consists of thirteen four-week periods (52 or 53
weeks) and ends on the Saturday nearest December 31. The first quarter consists
of four four-week periods. In 1996, the acquisition of Keebler Corporation
closed on the last day of the first four-week period. The 1996 year-to-date
information can be derived from the sum of the thirty-six weeks ended October 5,
1996 of Keebler Corporation and the four weeks ended January 26, 1996 of UBIUS.
RECLASSIFICATIONS
Certain reclassifications of prior period data have been made to conform with
the current period reporting.
2. ASSETS HELD FOR SALE
Subsequent to the acquisition of Sunshine Biscuits, Inc. ("Sunshine"),
management decided to close and sell the production plant in Santa Fe Springs,
California. The land and buildings, which were valued at a fair market value of
$3.6 million as of the date of acquisition, were sold on March 27, 1997. No gain
or loss was recognized from the sale of the idle facility.
6
<PAGE>
KEEBLER CORPORATION
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
3. DEBT COMMITMENTS
Long-term debt consisted of the following at October 4, 1997:
<TABLE>
<CAPTION>
Interest Rate Final Maturity OCTOBER 4, 1997
----------------- --------------------------- ----------------------
(IN THOUSANDS)
<S> <C> <C> <C>
Revolving Loans Floating December 28, 2002 $ -
Term Note 6.938% December 28, 2002 230,000
Senior Subordinated Notes 10.750% June 15, 2006 125,000
Other Senior Debt various 2001-2005 18,155
----------------------
373,155
Less: Current maturities (31,265)
----------------------
$ 341,890
======================
</TABLE>
On April 8, 1997, the Company amended the primary credit financing facility in
order to obtain more favorable terms, fees, and interest rates. The Second
Amended and Restated Credit Agreement ("Credit Agreement") specifically provides
for available borrowings of $380.0 million consisting of a $140.0 million
Revolving Loan facility and a $240.0 million Term Note. Any unused borrowings
under the Revolving Loan facility are subject to a commitment fee. The current
commitment fee will vary from 0.125% - 0.375% based on the relationship of debt
to adjusted earnings.
In conjunction with the amendment to the Credit Agreement, Term Notes B and C
were extinguished by using $40.0 million of borrowings under the Revolving Loan
facility, $109.8 million of increased borrowings against Term Note A, and $3.8
million from cash resources. The Company recorded a before-tax extraordinary
charge of $4.6 million related primarily to expensing certain bank fees which
were being amortized and which were incurred at the time Term Notes B and C were
issued. The related after-tax charge was $2.7 million.
On November 10, 1997, the Company made a $40.0 million pre-payment of principal
on the Term Note. The pre-payment resulted in the recognition of a $0.5 million
after-tax extraordinary charge related to the expensing of certain unamortized
bank fees which were incurred at the time the Term Note was issued.
7
<PAGE>
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
SET FORTH BELOW IS A DISCUSSION OF THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS FOR THE FORTY WEEKS ENDED OCTOBER 4, 1997 AND OCTOBER 5, 1996. THE
FORTY WEEKS ENDED OCTOBER 5, 1996 INCLUDE BOTH THE THIRTY-SIX WEEKS OF KEEBLER
CORPORATION UNDER CURRENT MANAGEMENT AND THE FOUR WEEKS ENDED JANUARY 26, 1996
OF UBIUS UNDER FORMER MANAGEMENT. THE FIRST FOUR WEEKS OF 1996 INCLUDE THE
FROZEN FOOD BUSINESSES WHICH WERE PRESENTED AS A DISCONTINUED OPERATION. THE
FROZEN FOOD BUSINESSES WERE SOLD BY UBIUS PRIOR TO THE ACQUISITION OF UBIUS BY
INFLO. SUBSEQUENT TO THE ACQUISITION, UBIUS CHANGED ITS NAME TO KEEBLER
CORPORATION. THE FOLLOWING DISCUSSION OF RESULTS OF OPERATIONS AND LIQUIDITY AND
CAPITAL RESOURCES SHOULD BE READ IN CONJUNCTION WITH THE CONSOLIDATED FINANCIAL
STATEMENTS OF KEEBLER CORPORATION AND UBIUS AND RELATED NOTES THERETO APPEARING
ELSEWHERE.
RESULTS OF OPERATIONS
MATTERS AFFECTING COMPARABILITY
The Company's results of operations for the twelve and forty weeks ended October
4, 1997 include the operating results of Sunshine whereas the comparable twelve
and forty weeks of the prior year only include the operating results of Sunshine
from the acquisition date of June 4, 1996 through September 30, 1996. The
Company's results for the thirty-six weeks ended October 5, 1996 have been
combined with the operating results of the predecessor company for the first
four weeks ended January 26, 1996 to compare the first forty weeks of 1997 and
1996. Results of operations expressed as a percentage of net sales for the
twelve and forty weeks ended October 4, 1997 and October 5, 1996 are set forth
below:
<TABLE>
<CAPTION>
Twelve Weeks Ended Forty Weeks Ended
----------------------- ------------------------
October 4, October 5, October 4, October 5,
1997 1996 1997 1996
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
NET SALES 100.0 % 100.0 % 100.0 % 100.0 %
COSTS AND EXPENSES:
Cost of sales 42.9 48.0 43.3 48.4
Selling, marketing, and
administrative expenses 48.4 48.7 50.0 50.5
Other 0.5 0.4 0.5 0.4
----------- ----------- ----------- -----------
INCOME (LOSS) FROM CONTINUING OPERATIONS 8.2 2.9 6.2 0.7
INTEREST EXPENSE, NET 1.5 2.3 1.7 2.1
----------- ----------- ----------- -----------
INCOME (LOSS) FROM CONTINUING OPERATIONS
BEFORE INCOME TAX EXPENSE 6.7 0.6 4.5 (1.4)
Income tax expense 2.8 0.3 1.9 0.3
----------- ----------- ----------- -----------
INCOME (LOSS) FROM CONTINUING OPERATIONS
BEFORE EXTRAORDINARY ITEM 3.9 0.3 2.6 (1.7)
DISCONTINUED OPERATIONS:
Gain on disposal of the Frozen Food
businesses, net of tax -- -- -- 1.5
----------- ----------- ----------- -----------
INCOME (LOSS) BEFORE EXTRAORDINARY ITEM 3.9 0.3 2.6 (0.2)
EXTRAORDINARY ITEM:
Loss on early extinguishment of debt, -- -- 0.2 0.2
net of tax ----------- ----------- ----------- -----------
NET INCOME (LOSS) 3.9 % 0.3 % 2.4 % (0.4) %
=========== =========== =========== ===========
</TABLE>
8
<PAGE>
NET SALES. Net sales for the third quarter of 1997 were $485.3 million, up 7.3%
as compared to net sales of $452.3 million for the comparable quarter a year
ago. For the forty weeks ended October 4, 1997, net sales of $1,542.2 million
were 21.1% higher compared to the same period of the prior year. In 1997, the
Company continued to focus on shifting the sales mix to core brands, while
discontinuing or repositioning several less strategic products. Increased net
sales resulting from volume growth in core brands, new products and line
extensions, and selected price increases more than offset revenue losses
associated with discontinued or de-emphasized products or brands repositioned at
higher price points. Higher net sales for the forty weeks ended October 4, 1997
were partially due to the acquisition of the Sunshine business. Sunshine results
in 1996 were only included from the acquisition date of June 4, 1996 and
accounted for 12.7% of the Company's net sales. For the forty weeks ended
October 4, 1997, net sales of Sunshine products were 27.5% of the Company's
total net sales and were 16.6% higher for the quarter compared to the prior year
after receiving the full benefit of being sold through the Company's national
direct store door sales and distribution system.
GROSS PROFIT. The improvement in gross profit, noted in earlier quarters,
continued in the third quarter of 1997. Gross profit was $42.0 million and
$216.3 million higher for the twelve and forty weeks ended October 4, 1997,
respectively, compared to the same periods in the prior year. In addition, gross
profit as a percentage of net sales was 5.1 percentage points higher for both
the quarter and on a year-to-date basis compared to the same periods in 1996.
The improvement in the gross margin percentage for 1997 resulted largely from
both a shift toward higher margin brands and improved operating efficiencies. In
addition, gross profit as a percent of net sales reflected the benefit of lower
commodity prices, particularly in flour. Current year gross margins also
received the full benefit of higher capacity utilization associated with the
streamlining of production facilities which began in 1996.
SELLING, MARKETING, AND ADMINISTRATIVE EXPENSES. Selling, marketing, and
administrative expenses were $14.6 million and $127.7 million higher for the
twelve and forty weeks ended October 4, 1997, respectively, as compared to the
same periods a year ago. Increased spending was attributed primarily to higher
marketing expense in support of new product introductions. Despite higher
spending levels, selling, marketing and administrative expenses as a percentage
of net sales remained relatively consistent with last year as a result of
increased volume and a more efficient fixed cost structure, particularly in the
selling and distribution network.
OTHER. Other expense of $2.3 million for the twelve weeks ended October 4, 1997
was $0.5 million higher than the twelve weeks ended October 5, 1996. The
increase in the quarter was due to higher amortization expense. Other expense
for the first forty weeks in 1997 was $1.7 million higher as compared to the
same period in 1996. The year-to-date increase was mainly attributed to the
amortization of Sunshine intangibles for forty weeks in 1997 versus sixteen
weeks in 1996, as well as higher bank service charges.
INCOME (LOSS) FROM CONTINUING OPERATIONS. Income from continuing operations of
$39.8 million and $96.4 million for the twelve and forty weeks ended October 4,
1997, respectively, was $26.9 million and $86.9 million higher than the same
periods a year ago. The improvement primarily resulted from volume growth in the
core brands, the inclusion of the Sunshine business, increased gross margins,
and a more efficient fixed cost structure. The total benefits realized more than
offset the incremental marketing, amortization, and other expenses.
INTEREST EXPENSE. Net interest expense for the third quarter of 1997 was $3.3
million lower than the third quarter of 1996. The decrease in interest expense
for the quarter was primarily due to a lower average debt balance resulting from
the early extinguishment of Term Notes which occurred in the first quarter of
1997, as well as lower interest rates. For the first forty weeks of 1997,
interest expense of $26.6 million was only $0.3 million lower than the same
period in 1996, as the average debt balance for these periods was comparable.
Additional debt incurred late in second quarter of 1996 to fund the acquisition
of Sunshine was offset by the benefit associated with the early extinguishment
of debt in the first quarter of 1997, resulting in a comparable average debt
balance.
9
<PAGE>
INCOME TAXES. Income taxes, for the quarter and the forty weeks ended October 4,
1997, were provided at an effective tax rate of 42%. The effective tax rate
exceeded the statutory rate due to nondeductible expenses, principally
amortization of intangibles, including trademarks, tradenames, and goodwill. For
the third quarter and forty weeks ended October 5, 1996, income taxes were
provided at a higher effective tax rate based on a preliminary estimate of
nondeductible expenses.
DISCONTINUED OPERATIONS. In 1995, the predecessor company adopted plans to
discontinue the operations of the Frozen Food businesses, and in the first four
weeks of 1996, a gain of $18.9 million, net of income taxes, was recognized on
the disposal of the Frozen Food businesses.
EXTRAORDINARY ITEM NET OF INCOME TAXES. In the first quarter of 1997 and the
second quarter of 1996, the Company recorded extraordinary charges related to
the write-off of unamortized bank fees due to the early extinguishment of debt.
The after-tax extraordinary charge recorded was $2.7 million in the first
quarter of 1997 and $1.9 million in the second quarter of 1996. The tax benefits
on the extraordinary charges were $1.9 million and $1.3 million, respectively.
NET INCOME (LOSS). Net income of $18.9 million for the quarter and $37.8 million
for the first forty weeks of 1997 was $17.8 million and $42.6 million higher
than the comparable periods for 1996. The substantial growth in net earnings for
both the quarter and on a year-to-date basis was primarily attributed to
increased volume in core brands, the inclusion of the Sunshine business,
improved gross margins, and a more efficient fixed cost structure.
LIQUIDITY AND CAPITAL RESOURCES
During the first forty weeks of 1997, cash provided from operating activities
was $128.4 million. Net earnings of $37.8 million for the forty weeks ended
October 4, 1997 and reduced funding of current liabilities and income taxes were
the primary contributors to the positive cash flow from operations. An increased
investment in inventory, spending on plant and facility closing costs and
severance, and the payment of an arbitration award partially offset the benefits
noted above. The increase in inventory from year end reflected normal seasonal
inventory replenishment. Spending on plant and facility closing costs and
severance relating to exit costs associated with the acquisition of both Keebler
and Sunshine, although down from the prior year, accounted for $14.0 million of
cash used by operations for the forty weeks ended October 4, 1997. In addition,
the Company paid an arbitration award regarding a contract packaging
arrangement, which was entered into prior to ownership by INFLO, in the amount
of $6.8 million plus legal fees.
Cash used by investing activities of $20.8 million for the first forty weeks of
1997, was primarily used to fund capital expenditures. Capital spending of $26.1
million was made principally to enhance, update, or realign the existing
production lines, provide distribution and production efficiencies, and achieve
near-term cost savings. Proceeds received from asset disposals of $5.3 million
partially offset capital expenditures. The sale of the Santa Fe Springs plant
accounted for $3.6 million of the year-to-date proceeds with the remainder of
the proceeds provided mainly from the sale of trucks and machinery and
equipment.
For the first forty weeks of 1997, cash flows used by financing activities were
$58.1 million. During the first quarter of 1997, the Company entered into the
Second Amended and Restated Credit Agreement under which Term Notes of $153.6
million were extinguished. The extinguishment was funded primarily by a draw
down on the Revolving Loan facility and $109.8 million of additional borrowings
against other Term Notes. During the first forty weeks of 1997, the draw down on
the Revolving Loan facility was completely repaid and $14.3 million of scheduled
principal payments were made on the Term Notes and other debt.
10
<PAGE>
As of October 4, 1997, cash and cash equivalents were $60.9 million, long-term
debt was $341.9 million, and current maturities were $31.3 million. Available
borrowings under the Company's Revolving Loan facility were $140.0 million for
which there was no outstanding balance as of October 4, 1997. The Company met
all financial covenants contained in the financing agreements. On November 10,
1997, the Company made a $40.0 million pre-payment of principal on the Term
Note. The pre-payment resulted in the recognition of a fourth quarter 1997
after-tax extraordinary charge of $0.5 million related to the expensing of
certain bank fees which were incurred at the time the Term Note was issued.
Available cash as well as existing short-term credit facilities are expected to
be sufficient to meet the Company's normal operating requirements for the
foreseeable future.
FORWARD-LOOKING STATEMENTS
When used in this discussion, the words "believes" and "expects" and similar
expressions are intended to identify forward-looking statements. Such statements
are subject to certain risks and uncertainties, over which the Company may have
no control, which could cause actual results to differ materially from those
projected. Readers are cautioned not to place undue reliance on these
forward-looking statements which speak only as of the date hereof. The Company
undertakes no obligations to republish revised forward-looking statements to
reflect events or circumstances after the date thereof or to reflect the
occurrence of unanticipated events. Readers are also urged to carefully review
and consider the various disclosures made by the Company, in this report, as
well as the Company's periodic reports filed with the Securities and Exchange
Commission.
11
<PAGE>
<TABLE>
PART II: OTHER INFORMATION
ITEM 6: EXHIBITS AND REPORTS ON FORM 8-K
<CAPTION>
(a) Exhibits
Exhibit
NUMBER DESCRIPTION
------ -----------
<S> <C>
10.15 $380,000,000 Second Amended and Restated Credit Agreement dated as of April 8,
1997, among Keebler Corporation, as the Borrower; Various Financial Institutions,
as the Lenders; the Bank of Nova Scotia, as the Administrative Agent for the
Lenders; and the First National Bank of Chicago, Bank of Montreal, Suntrust Bank,
Atlanta, and Nationsbank, N.A. (South), as the Co-Agents
10.15(a) First Amendment to Second Amended and Restated Credit Agreement dated as of October
3, 1997,among Keebler Corporation, as the Borrower, Various Financial Institutions,
as the Lenders, the Co-Agents, and the Bank of Nova Scotia, as the Administrative
Agent for the Lenders
10.16 Stock Appreciation Rights Plan of Keebler Corporation for Certain Management
Employees dated March 4, 1997
27 Financial Data Schedule
(b) Reports on Form 8-K
None.
</TABLE>
12
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
KEEBLER CORPORATION
By: /S/ SAM K. REED
---------------------------------------------------------
Sam K. Reed
President and Chief Executive Officer
Date: November 10, 1997
By: /S/ E. NICHOL MCCULLY
---------------------------------------------------------
E. Nichol McCully
Sr. Vice President and Chief Financial Officer
Date: November 10, 1997
By: /S/ JAMES T. SPEAR
---------------------------------------------------------
James T. Spear
Vice President Finance and Corporate Controller
Chief Accounting Officer
Date: November 10, 1997
13
<PAGE>
U.S. $380,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of April 8, 1997
(Amending and Restating the Amended and Restated Credit Agreement
dated as of June 4, 1996),
among
KEEBLER CORPORATION
(formerly known as KEEBLER HOLDING CORP.),
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders,
and
THE FIRST NATIONAL BANK OF CHICAGO,
BANK OF MONTREAL,
SUNTRUST BANK, ATLANTA
and
NATIONSBANK, N.A. (SOUTH),
as the Co-Agents for the Lenders.
<PAGE>
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.................................................................................3
1.2. Use of Defined Terms.........................................................................39
1.3. Cross-References.............................................................................39
1.4. Accounting and Financial Determinations......................................................39
ARTICLE II
CONTINUATION OF CERTAIN EXISTING LOANS
AND EXISTING LETTERS OF CREDIT;
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments and Continuation of Certain Existing Loans.......................................40
2.1.1. Incremental Term Loan Commitments............................................................40
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.....................................40
2.1.3. Letter of Credit Commitment..................................................................41
2.1.4. Lenders Not Permitted or Required To Make the Loans..........................................42
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit..................................42
2.2. Reduction of the Commitment Amounts..........................................................42
2.2.1. Optional.....................................................................................43
2.2.2. Mandatory....................................................................................43
2.3. Borrowing Procedures and Funding Maintenance.................................................44
2.3.1. Incremental Term Loans and Revolving Loans...................................................44
2.3.2. Swing Line Loans.............................................................................44
2.4. Continuation and Conversion Elections........................................................46
2.5. Funding......................................................................................47
2.6. Issuance Procedures..........................................................................47
2.6.1. Other Lenders' Participation.................................................................48
2.6.2. Disbursements; Conversion to Revolving Loans.................................................49
2.6.3. Reimbursement................................................................................49
2.6.4. Deemed Disbursements.........................................................................50
2.6.5. Nature of Reimbursement Obligations..........................................................51
2.7. Notes........................................................................................52
2.8. Registered Notes.............................................................................52
<PAGE>
SECTION PAGE
- ------- ----
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application......................................................53
3.1.1. Repayments and Prepayments...................................................................53
3.1.2. Application..................................................................................57
3.2. Interest Provisions..........................................................................57
3.2.1. Rates........................................................................................57
3.2.2. Post-Maturity Rates..........................................................................58
3.2.3. Payment Dates................................................................................58
3.3. Fees.........................................................................................59
3.3.1. Commitment Fee...............................................................................59
3.3.2. Administrative Agent's Fee...................................................................59
3.3.3. Letter of Credit Fee.........................................................................60
3.3.4. Amendment Fee................................................................................60
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful...................................................................60
4.2. Deposits Unavailable.........................................................................61
4.3. Increased LIBO Rate Loan Costs, etc..........................................................61
4.4. Funding Losses...............................................................................62
4.5. Increased Capital Costs......................................................................62
4.6. Taxes........................................................................................63
4.7. Payments, Computations, etc..................................................................65
4.8. Sharing of Payments..........................................................................65
4.9. Setoff.......................................................................................66
4.10. Mitigation...................................................................................66
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension.....................................................................67
5.1.1. Resolutions, etc.............................................................................67
5.1.2. Affirmation and Consent......................................................................67
5.1.3. Closing Date Certificate.....................................................................68
5.1.4. Delivery of Notes............................................................................68
5.1.5. Prepayment of Term-B and Term-C Loans, Accrued Interest and Fees. ...........................68
5.1.6. Amendments to Existing Mortgages.............................................................68
5.1.7. Closing Fees, Expenses, etc..................................................................68
5.1.8. Continuation of Certain Existing Loans/Commitments...........................................68
-ii-
<PAGE>
SECTION PAGE
- ------- ----
5.1.9. Opinion of Counsel...........................................................................69
5.1.10. Audited Financials...........................................................................69
5.2. All Credit Extensions........................................................................69
5.2.1. Compliance with Warranties, No Default, etc..................................................69
5.2.2. Credit Extension Request.....................................................................70
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc............................................................................70
6.2. Due Authorization, Non-Contravention, etc....................................................71
6.3. Government Approval, Regulation, etc.........................................................71
6.4. Validity, etc................................................................................72
6.5. Financial Information........................................................................72
6.6. No Material Adverse Change...................................................................72
6.7. Litigation, Labor Controversies, etc.........................................................72
6.8. Subsidiaries.................................................................................73
6.9. Ownership of Properties......................................................................73
6.10. Taxes........................................................................................73
6.11. Pension and Welfare Plans....................................................................73
6.12. Environmental Warranties.....................................................................74
6.13. Regulations G, U and X.......................................................................75
6.14. Accuracy of Information......................................................................75
6.15. Seniority of Obligations, etc................................................................76
6.16. Solvency.....................................................................................77
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants........................................................................77
7.1.1. Financial Information, Reports, Notices, etc.................................................77
7.1.2. Compliance with Laws, etc....................................................................80
7.1.3. Maintenance of Properties....................................................................80
7.1.4. Insurance....................................................................................80
7.1.5. Books and Records............................................................................81
7.1.6. Environmental Covenant.......................................................................81
7.1.7. Future Subsidiaries..........................................................................82
7.1.8. Future Leased Property and Future Acquisitions of Real Property..............................83
7.1.9. Use of Proceeds, etc.........................................................................84
7.1.10. Borrower Pledge Agreement....................................................................84
7.1.11. Hedging Obligations..........................................................................85
7.2. Negative Covenants...........................................................................85
7.2.1. Business Activities..........................................................................85
7.2.2. Indebtedness.................................................................................85
-iii-
<PAGE>
SECTION PAGE
- ------- ----
7.2.3. Liens........................................................................................87
7.2.4. Financial Condition..........................................................................88
7.2.5. Investments..................................................................................89
7.2.6. Restricted Payments, etc.....................................................................92
7.2.7. Capital Expenditures, etc....................................................................96
7.2.8. Consolidation, Merger, etc...................................................................98
7.2.9. Asset Dispositions, etc......................................................................98
7.2.10. Modification of Certain Agreements..........................................................100
7.2.11. Transactions with Affiliates................................................................101
7.2.12. Negative Pledges, Restrictive Agreements, etc...............................................101
7.2.13. Stock of Subsidiaries.......................................................................102
7.2.14. Sale and Leaseback..........................................................................102
7.2.15. No Investments, etc. in Designated Subsidiaries.............................................103
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default................................................................103
8.1.1. Non-Payment of Obligations..................................................................103
8.1.2. Breach of Warranty..........................................................................103
8.1.3. Non-Performance of Certain Covenants and Obligations........................................103
8.1.4. Non-Performance of Other Covenants and Obligations..........................................103
8.1.5. Default on Other Indebtedness...............................................................104
8.1.6. Judgments...................................................................................104
8.1.7. Pension Plans...............................................................................104
8.1.8. Change in Control...........................................................................105
8.1.9. Bankruptcy, Insolvency, etc.................................................................105
8.1.10. Impairment of Security, etc.................................................................106
8.1.11. Subordinated Notes..........................................................................106
8.1.12. Redemption..................................................................................106
8.1.13. Termination of Receivables Facility.........................................................107
8.2. Action if Bankruptcy, etc...................................................................107
8.3. Action if Other Event of Default............................................................107
ARTICLE IX
THE AGENTS
9.1. Actions.....................................................................................108
9.2. Funding Reliance, etc.......................................................................109
9.3. Exculpation.................................................................................109
9.4. Successor...................................................................................110
-iv-
<PAGE>
SECTION PAGE
- ------- ----
9.5. Credit Extensions by each Agent.............................................................110
9.6. Credit Decisions............................................................................111
9.7. Copies, etc.................................................................................111
9.8. The Co-Agents...............................................................................111
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc....................................................................111
10.2. Notices.....................................................................................113
10.3. Payment of Costs and Expenses...............................................................114
10.4. Indemnification.............................................................................114
10.5. Survival....................................................................................116
10.6. Severability................................................................................116
10.7. Headings....................................................................................117
10.8. Execution in Counterparts, Effectiveness, etc...............................................117
10.9. Governing Law; Entire Agreement.............................................................117
10.10. Successors and Assigns......................................................................117
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes.....................117
10.11.1. Assignments.................................................................................118
10.11.2. Participations..............................................................................120
10.11.3. Assignment of Registered Notes..............................................................121
10.12. Other Transactions..........................................................................122
10.13. Forum Selection and Consent to Jurisdiction.................................................122
10.14. Waiver of Jury Trial........................................................................123
10.15. Confidentiality.............................................................................123
10.16. Disclosure Schedule Amendment...............................................................124
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C> <C>
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Amendment Fee Calculation Amounts
SCHEDULE III - Percentages and Administrative Information
SCHEDULE IV - Fiscal Quarters
SCHEDULE V - Existing Letters of Credit, Existing Loans
SCHEDULE VI - Incremental Commitments and Incremental Loans
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Swing Line Note
EXHIBIT A-3 - Form of Term Note
EXHIBIT A-4 - Form of Registered Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F-1 - Form of Borrower Security Agreement
EXHIBIT F-2 - Form of Subsidiary Security Agreement
EXHIBIT G-1 - Form of Holdings Pledge Agreement
EXHIBIT G-2 - Form of Borrower Pledge Agreement
EXHIBIT G-3 - Form of Subsidiary Pledge Agreement
EXHIBIT H-1 - Form of Subsidiary Guaranty
EXHIBIT H-2 - Form of Holdings Guaranty
EXHIBIT I - Form of Mortgage
EXHIBIT J - Form of Lender Assignment Agreement
EXHIBIT K - Form of Intercompany Subordination Agreement
EXHIBIT L - [Intentionally Omitted]
EXHIBIT M - Form of Seller Note
</TABLE>
-vi-
<PAGE>
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 8,
1997 (amending and restating the Existing Credit Agreement, as defined below),
is among KEEBLER CORPORATION (formerly known as Keebler Holding Corp.), a
Delaware corporation (the "BORROWER", as the surviving corporation of the merger
(the "MERGER") of Keebler Acquisition Corp. with and into UB Investments US
Inc., a Delaware corporation ("UBI")), the various financial institutions as are
or may become parties hereto (collectively, the "LENDERS"), THE BANK OF NOVA
SCOTIA ("SCOTIABANK"), as administrative agent (the "ADMINISTRATIVE AGENT") for
the Lenders, and THE FIRST NATIONAL BANK OF CHICAGO, SUNTRUST BANK, ATLANTA,
BANK OF MONTREAL and NATIONSBANK, N.A. (SOUTH), as co-agents (collectively
referred to as the "CO-AGENTS") for the Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, dated as of January 26, 1996
(the "ORIGINAL AGREEMENT"; as amended and restated by the Amended and Restated
Credit Agreement, dated as of June 4, 1996, and as further amended or otherwise
modified prior to the Amendment Effective Date (such capitalized term, and other
capitalized terms used in these recitals, to have the meanings provided in
SECTION 1.1), the "EXISTING CREDIT AGREEMENT"), among the Borrower, the
financial institutions parties thereto on the Amendment Effective Date (the
"EXISTING LENDERS"), certain financial institutions as the co-agents for the
Existing Lenders and Scotiabank, as administrative agent for the Existing
Lenders,
(i) Scotiabank (in its capacity as the Issuer) issued those letters of
credit (referred to as the "EXISTING LETTERS OF CREDIT") described in
ITEM A of SCHEDULE V hereto,
(ii) Scotiabank (in its capacity as Swing Line Lender) made swing line
loans (the "EXISTING SWING LINE LOANS") to the Borrower, with the
outstanding principal amount of Existing Swing Line Loans on the
Amendment Effective Date set forth in ITEM B of SCHEDULE V hereto, and
(iii)the Existing Lenders made revolving loans (the "EXISTING REVOLVING
LOANS") and/or term loans (the "EXISTING TERM LOANS") to the Borrower,
with the outstanding principal
<PAGE>
amounts of the Existing Revolving Loans and Existing Term Loans on the
Amendment Effective Date as set forth in ITEM C of SCHEDULE V hereto
(the Existing Term Loans, Existing Swing Line Loans and Existing
Revolving Loans are collectively referred to as the "EXISTING LOANS");
WHEREAS, the Borrower desires to amend and restate in its entirety the
Existing Credit Agreement to, among other things, prepay the outstanding
principal amount of all Existing Term Loans (other than the Existing Term-A
Loans) and increase the aggregate principal amount of Term Loans outstanding
hereunder as set forth in CLAUSE (i) below, and to obtain from the Lenders (and
the Issuer, as the case may be)
(i) an Incremental Term Loan Commitment pursuant to which Borrowings of
Incremental Term Loans will be made in a maximum, original principal
amount of the Incremental Term Loan Commitment Amount to the Borrower
in a single Borrowing to occur on the Amendment Effective Date;
(ii) a Revolving Loan Commitment (to include availability for Revolving
Loans, Swing Line Loans and Letters of Credit) pursuant to which
Borrowings of Revolving Loans, in a maximum aggregate principal amount
(together with all Swing Line Loans and Letter of Credit Outstandings)
not to exceed $140,000,000, will be made to the Borrower from time to
time prior to the Revolving Loan Commitment Termination Date;
(iii)a Letter of Credit Commitment pursuant to which the Issuer will issue
Letters of Credit for the account of the Borrower and its Subsidiaries
from time to time prior to the Revolving Loan Commitment Termination
Date in a maximum aggregate Stated Amount at any one time outstanding
not to exceed $45,000,000 (PROVIDED, that the aggregate outstanding
principal amount of Revolving Loans, Swing Line Loans and Letter of
Credit Outstandings at any time shall not exceed the then existing
Revolving Loan Commitment Amount); and
(iv) a Swing Line Loan Commitment pursuant to which Borrowings of Swing
Line Loans in an aggregate outstanding principal amount not to exceed
$20,000,000 will be made prior to the Revolving Loan Commitment
Termination Date (PROVIDED, that the aggregate outstanding principal
amount of Swing Line Loans, Revolving Loans and Letter of Credit
Outstandings at any time shall not exceed the then existing Revolving
Loan Commitment Amount);
-2-
<PAGE>
with all the proceeds of the Credit Extensions to be used for the purposes set
forth in SECTION 7.1.9; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including ARTICLE V), to (i) amend and restate
in its entirety the Existing Credit Agreement in accordance with the terms
hereof, (ii) continue as Term Loans hereunder the Existing Term-A Loans, (iii)
make the Incremental Term Loans in the amount set forth above, (iv) continue as
Revolving Loans hereunder the Existing Revolving Loans, (v) continue as Swing
Line Loans hereunder the Existing Swing Line Loans, (vi) continue as Letters of
Credit hereunder the Existing Letters of Credit, and (vii) extend such
Commitments (including as increased) and make Loans to the Borrower and issue
(or participate in) Letters of Credit for the account of the Borrower and its
Subsidiaries pursuant to the Commitments described above;
NOW, THEREFORE, the parties hereto agree as set forth above and as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ACCOUNT" means any account (as that term is defined in Section 9-106 of
the UCC) of the Borrower or any of its wholly-owned U.S. Subsidiaries arising
from the sale or lease of goods or rendering of services.
"ACQUIRED BUSINESSES" means the businesses of UBI and its Subsidiaries
other than UBI's frozen foods business, conducted primarily by Bernardi's
Italian Foods Co., The Original Chili Bowl, Inc. and the Chinese Food Processing
Corp., the salty snacks business conducted by Keebler Company and other
Subsidiaries of UBI, Keebler Company's convenience sales division, the Kame
Oriental Foods business of Shaffer, Clarke & Co., Inc., and the businesses of
U.H.B.C., Inc. and U.B.F.C., Inc.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each other
Person as shall have subsequently been
-3-
<PAGE>
appointed as the successor Administrative Agent pursuant to SECTION 9.4.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 15% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent and the Co-Agents.
"AGREEMENT" means, on any date, this Second Amended and Restated Credit
Agreement as originally in effect on the Amendment Effective Date and as
thereafter from time to time amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.
"ALTERNATE BASE RATE" means, on any date and with respect to all Base Rate
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the Administrative
Agent at its Domestic Office as its base rate for Dollar loans in the
United States; and
(b) the Federal Funds Rate most recently determined by the Administrative
Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base Rate.
"AMENDMENT EFFECTIVE DATE" means the date this Agreement becomes effective
pursuant to SECTION 10.8 and the Incremental
-4-
<PAGE>
Term Loans are made in accordance with the terms of this Agreement.
"APPLICABLE COMMITMENT FEE MARGIN" means at all times during the applicable
periods set forth below, the applicable percentage per annum set forth below
under the column entitled "Applicable Commitment Fee Margin":
Applicable
DEBT TO EBITDA RATIO COMMITMENT FEE MARGIN
-------------------- ---------------------
Greater than or equal to 3.5:1 0.375%
Greater than or equal to 3.00:1 and less than 3.5:1 0.300%
Greater than or equal to 2.5:1 and less than 3.00:1 0.250%
Less than 2.5:1 0.200%
The Debt to EBITDA Ratio used to compute the Applicable Commitment Fee
Margin shall be the Debt to EBITDA Ratio set forth in the Compliance Certificate
most recently delivered by the Borrower to the Administrative Agent pursuant to
CLAUSE (c) of SECTION 7.1.1; changes in the Applicable Commitment Fee Margin
resulting from a change in the Debt to EBITDA Ratio shall become effective upon
delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to CLAUSE (c) of SECTION 7.1.1. If the Borrower shall fail
to deliver a Compliance Certificate within the number of days after the end of
any Fiscal Quarter as required pursuant to CLAUSE (c) of SECTION 7.1.1 (without
giving effect to any grace period), the Applicable Commitment Fee Margin from
and including the first day after the date on which such Compliance Certificate
was required to be delivered to but not including the date the Borrower delivers
to the Administrative Agent a Compliance Certificate shall conclusively equal
the highest Applicable Commitment Fee Margin set forth above.
"APPLICABLE MARGIN" means at all times during the applicable periods set
forth below,
(a) with respect to the unpaid principal amount of each Revolving Loan and
each Term Loan maintained as a Base Rate Loan, the applicable
percentage per annum set forth below under the column entitled
"Applicable Margin for Base Rate Loans"; and
(b) with respect to the unpaid principal amount of each Revolving Loan and
each Term Loan maintained as a LIBO
-5-
<PAGE>
Rate Loan, the applicable percentage per annum set forth below
under the column entitled "Applicable Margin for LIBO Rate Loans":
<TABLE>
FOR REVOLVING LOANS AND TERM LOANS:
- -----------------------------------
<CAPTION>
Applicable Applicable
DEBT TO EBITDA RATIO MARGIN FOR BASE RATE LOANS MARGIN FOR LIBO RATE LOANS
- -------------------- -------------------------- --------------------------
<S> <C> <C>
Less than 2.5:1 0.000% 0.625%
Greater than or equal to 2.5:1 and less than
3.0:1 0.000% 0.875%
Greater than or equal to 3.0:1 and less than
3.50:1 0.125% 1.125%
Greater than or equal to 3.50:1 0.375% 1.375%
</TABLE>
The Debt to EBITDA Ratio used to compute the Applicable Margin for
Revolving Loans and Term Loans shall be the Debt to EBITDA Ratio set forth in
the Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent pursuant to CLAUSE (c) of SECTION 7.1.1; changes in the
Applicable Margin for Revolving Loans and Term Loans resulting from a change in
the Debt to EBITDA Ratio shall become effective upon delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate pursuant to CLAUSE (c)
of SECTION 7.1.1. If the Borrower shall fail to deliver a Compliance Certificate
within the number of days after the end of any Fiscal Quarter as required
pursuant to CLAUSE (c) of SECTION 7.1.1 (without giving effect to any grace
period), the Applicable Margin for Revolving Loans and Term Loans from and
including the first day after the date on which such Compliance Certificate was
required to be delivered to but not including the date the Borrower delivers to
the Administrative Agent a Compliance Certificate shall conclusively equal the
highest Applicable Margin for Revolving Loans and Term Loans set forth above.
"ARTAL" means ARTAL Luxembourg S.A., a corporation organized under the laws
of Luxembourg.
"ASSIGNEE LENDER" is defined in SECTION 10.11.1.
"AUTHORIZED OFFICER" means, relative to any Obligor, those of its officers
whose signatures and incumbency shall have been
-6-
<PAGE>
certified to the Administrative Agent and the Lenders pursuant to SECTION 5.1.1.
"BANK CONFIDENTIAL OFFERING MEMORANDUM" means, collectively, (i) the
Confidential Offering Memorandum, dated January, 1996, and (ii) the Confidential
Offering Memorandum, dated May, 1996.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWER" is defined in the PREAMBLE.
"BORROWER PLEDGE AGREEMENT" means the Pledge Agreement, dated as of
January 26, 1996, executed and delivered by the Borrower pursuant to clause (b)
of Section 5.1.9 of the Original Credit Agreement, a conformed copy of which is
attached hereto as EXHIBIT G-2, as amended, supplemented, amended and restated
or otherwise modified from time to time pursuant to the terms thereof.
"BORROWER SECURITY AGREEMENT" means the Security Agreement, dated as of
January 26, 1996, executed and delivered by the Borrower pursuant to Section
5.1.10 of the Original Credit Agreement, a conformed copy of which is attached
hereto as EXHIBIT F-1, as amended, supplemented, amended and restated or
otherwise modified from time to time pursuant to the terms thereof.
"BORROWING" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
SECTION 2.1.
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of EXHIBIT B-1
hereto.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday on
which banks are authorized or required to be closed in New York City;
and
(b) relative to the making, continuing, prepaying or repaying of any LIBO
Rate Loans, any day on which dealings in Dollars are carried on in the
London interbank market.
-7-
<PAGE>
"CAPITAL EXPENDITURES" means for any period, the sum, without duplication,
of
(a) the aggregate amount of all expenditures of the Borrower and its
Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities incurred
during such period.
"CAPITALIZED LEASE LIABILITIES" means, without duplication, all monetary
obligations of the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"CAPITAL STOCK" means (i) any and all shares, interests, participations or
other equivalents of or interests in (however designated) corporate stock,
including shares of preferred or preference stock, (ii) all partnership
interests (whether general or limited) in any Person which is a partnership,
(iii) all membership interests or limited liability company interests in any
limited liability company, and (iv) all equity or ownership interests in any
Person of any other type.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year after
such time, issued or guaranteed by the United States Government;
(b) commercial paper, maturing not more than nine months from the date of
issue, which is issued by
(i) a corporation (other than an Affiliate of any Obligor) organized
under the laws of any state of the United States or of the
District of Columbia and rated at least A-1 by S&P or P-1 by
Moody's, or
(ii) any Lender (or its holding company);
-8-
<PAGE>
(c) any certificate of deposit or bankers acceptance, maturing not more
than one year after such time, which is issued by either
(i) a commercial banking institution that is a member of the Federal
Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000, or
(ii) any Lender;
(d) short-term tax-exempt securities rated not lower than MIG-1/1+ by
either Moody's or S&P with provisions for liquidity or maturity
accommodations of 183 days or less;
(e) any money market or similar fund the assets of which are comprised
exclusively of any of the items specified in CLAUSES (a) through (d)
above and as to which withdrawals are permitted at least every 90
days; or
(f) any repurchase agreement entered into with any Lender or any
commercial banking institution of the stature referred to in CLAUSE
(c)(i) which
(i) is secured by a fully perfected security interest in any
obligation of the type described in CLAUSE (a), and
(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation
of such commercial banking institution thereunder.
"CASH FLOW COVERAGE RATIO" means, as of the close of any Fiscal Quarter,
the ratio computed (except as set forth in the proviso set forth below) for the
period consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters with respect to the Borrower and its Subsidiaries on a
consolidated basis of:
(a) the excess (for all such Fiscal Quarters) of
(i) the sum of (A) EBITDA PLUS (B) management and consulting fees
paid pursuant to SECTION 7.2.11
OVER
----
(ii) Capital Expenditures;
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<PAGE>
TO
- --
(b) the sum (for all such Fiscal Quarters) of
(i) Interest Expense;
PLUS
----
(ii) scheduled, mandatory principal repayments of Debt (including
scheduled amortization repayments of Existing Term Loans under
the terms of the Existing Credit Agreement and principal
repayments of the Term Loans pursuant to the provisions of CLAUSE
(f) of SECTION 3.1.1, but excluding the amount of Debt which is
refinanced with other Debt pursuant to SECTION 7.2.2, to the
extent so refinanced (including the principal repayments of
Subordinated Debt to the extent made with the proceeds of other
Subordinated Debt issued to refinance or replace such original
Subordinated Debt in accordance with the terms of this
Agreement));
PLUS
----
(iii) all federal, state, local and foreign income taxes actually paid
in cash by the Borrower and its Subsidiaries;
PLUS
----
(iv) the payment of any dividends pursuant to CLAUSE (d)(iv) of
SECTION 7.2.6;
PLUS
----
(v) management and consulting fees paid pursuant to SECTION 7.2.11.
"CASUALTY EVENT" means the damage, destruction or condemnation, as the case
may be, of property of the Borrower or any of its Subsidiaries.
"CASUALTY PROCEEDS" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by the Borrower or any
of its Subsidiaries in connection with such Casualty Event, but excluding any
proceeds or awards required to be paid to a creditor (other than the Lenders)
which holds a first-priority Lien permitted by
-10-
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SECTION 7.2.3 on the property which is the subject of such Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CERTIFICATE OF MERGER" means the certificate of merger, dated January 26,
1996, of the Borrower.
"CHANGE IN CONTROL" means
(a) at any time prior to any Initial Public Offering,
(i) the failure of the Permitted ARTAL Investor Group to own free and
clear of all Liens at least 35% of the outstanding voting shares
of Capital Stock of Holdings on a fully diluted basis, LESS up to
3.75% of such voting Capital Stock issued or issuable pursuant to
the Sunshine Warrants;
(ii) the failure of Flowers to own, directly or indirectly through
wholly-owned Subsidiaries, free and clear of all Liens, at least
35% of the outstanding voting shares of Capital Stock of Holdings
on a fully diluted basis, LESS up to 3.75% of such voting Capital
Stock issued or issuable pursuant to the Sunshine Warrants; or
(iii) the failure of Holdings to directly own, free and clear of all
Liens (other than in favor of the Administrative Agent pursuant
to a Loan Document), 100% of the outstanding voting shares of
Capital Stock of the Borrower on a fully diluted basis; or
(b) at any time after an Initial Public Offering,
(i) the failure of the Permitted ARTAL Investor Group to own,
directly or indirectly through any wholly-owned Subsidiaries,
free and clear of all Liens, at least 20% of the outstanding
voting shares of Capital Stock of Holdings on a fully diluted
basis;
(ii) the failure of Flowers to own, directly or indirectly through any
wholly-owned Subsidiaries, free and clear of all Liens, at least
20% of the outstanding
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<PAGE>
voting shares of Capital Stock of Holdings on a fully diluted
basis;
(iii) the failure of the Permitted ARTAL Investor Group and Flowers in
the aggregate to own, directly or indirectly through any
wholly-owned Subsidiaries, free and clear of all Liens, at least
51% of the outstanding voting shares of Capital Stock of Holdings
on a fully diluted basis;
(iv) any "person" or "group" (as such terms are used in Rule 13d-5
under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), and Sections 13(d) and 14(d) of the Exchange
Act) of persons (other than the Permitted ARTAL Investor Group or
Flowers or, in either case, any of their wholly-owned
Subsidiaries) becomes, directly or indirectly, in a single
transaction or in a related series of transactions by way of
merger, consolidation, or other business combination or
otherwise, the "beneficial owner" (as such term is used in
Rule 13d-3 of the Exchange Act) of more than 20% of the total
voting power in the aggregate of all classes of Capital Stock of
Holdings then outstanding entitled to vote generally in elections
of directors of Holdings;
(v) during any period of 24 consecutive months, individuals who at
the beginning of such period constituted the Board of Directors
of Holdings (together with any new directors whose election to
such Board or whose nomination for election by the stockholders
of Holdings was approved by ARTAL or Flowers or a vote of a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of
Holdings then in office; or
(vi) the failure of Holdings to directly own, free and clear of all
Liens (other than in favor of the Administrative Agent pursuant
to a Loan Document), 100% of the outstanding shares of Capital
Stock of the Borrower on a fully diluted basis.
"CLOSING DATE CERTIFICATE" means a certificate of an Authorized Officer of
the Borrower substantially in the form of EXHIBIT D hereto, delivered pursuant
to SECTION 5.1.5.
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<PAGE>
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, as the context may require, a Lender's Letter of Credit
Commitment, Revolving Loan Commitment, Swing Line Loan Commitment or Incremental
Term Loan Commitment.
"COMMITMENT AMOUNT" means, as the context may require, the Letter of Credit
Commitment Amount, the Revolving Loan Commitment Amount, the Swing Line Loan
Commitment Amount or the Incremental Term Loan Commitment Amount.
"COMMITMENT TERMINATION DATE" means, as the context may require, the
Revolving Loan Commitment Termination Date or the Term Loan Commitment
Termination Date.
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Event of Default described in CLAUSES (a)
through (d) of SECTION 8.1.9; or
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans to be due and payable pursuant to
SECTION 8.3, or
(ii) in the absence of such declaration, the giving of notice by the
Administrative Agent, acting at the direction of the Required
Lenders, to the Borrower that the Commitments have been
terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and executed by
the chief financial Authorized Officer of the Borrower, substantially in the
form of EXHIBIT E hereto.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
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<PAGE>
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT C hereto.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"COPYRIGHT SECURITY AGREEMENT" means any Copyright Security Agreement
executed and delivered by any Obligor in substantially the form of EXHIBIT C to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified.
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any Stated
Expiry Date of any previously issued Letter of Credit, by the Issuer.
"CREDIT EXTENSION REQUEST" means, as the context may require, any Borrowing
Request or Issuance Request.
"DEBT" means the outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries of the type referred to in CLAUSES (a), (b)
(except to the extent that the reimbursement obligations under letters of credit
are guaranteed by UB Investments plc or the Seller, and without duplication of
letters of credit issued to support obligations under industrial development
revenue bonds to the extent the obligations arising under such bonds are
otherwise included in this definition), (c), (e) and (f) of the definition of
"Indebtedness" or any Contingent Liability in respect thereof.
"DEBT TO EBITDA RATIO" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Debt outstanding on the last day of such Fiscal Quarter
TO
- --
-14-
<PAGE>
(b) EBITDA computed for the period consisting of such Fiscal Quarter and
each of the three immediately preceding Fiscal Quarters;
PROVIDED, that in computing the Debt to EBITDA Ratio for the first Fiscal
Quarter of the 1997 Fiscal Year, the amount set forth in CLAUSE (b) above shall
be determined by reference to the sum of (i) EBITDA for such Fiscal Quarter and
the three immediately preceding Fiscal Quarters PLUS (ii) $2,500,000.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DESIGNATED SUBSIDIARY" means, individually Keebler International Prep
Track & Field Invitational Foundation, an Illinois Not-For-Profit corporation,
Keebler Company Foundation, an Illinois Not-For-Profit corporation and Keebler
Foreign Sales Corporation, a U.S. Virgin Islands corporation and collectively
means all such corporations.
"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISBURSEMENT DUE DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DOLLAR" and the sign "$" mean lawful money of the United States.
"DOMESTIC OFFICE" means, relative to any Lender, the office of such Lender
designated as such on SCHEDULE III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
"EBITDA" means, for any applicable period, the sum (without duplication) of
(a) Net Income,
PLUS
- ----
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<PAGE>
(b) the amount deducted, in determining Net Income, representing
amortization,
PLUS
- ----
(c) the amount deducted, in determining Net Income, of all income taxes
(whether paid or deferred) of the Borrower and its Subsidiaries,
PLUS
- ----
(d) Interest Expense,
PLUS
- ----
(e) the amount deducted, in determining Net Income, representing
depreciation of assets,
PLUS
- ----
(f) an amount equal to the amount of all extraordinary, non-recurring
non-cash charges deducted in arriving at Net Income,
MINUS
- -----
(g) an amount equal to the amount of all extraordinary, non-recurring
non-cash credits included in arriving at Net Income.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local statutes,
laws, ordinances, codes, rules and regulations (including consent decrees and
administrative orders) relating to public health and safety and protection of
the environment.
"EQUITY CONTRIBUTION" means (i) the issuance by Holdings of the Seller Note
and (ii) the cash contribution to the equity of the Borrower on January 26, 1996
in a minimum amount of $125,000,000 (net of incurred expenses in an amount not
to exceed $1,300,000).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXCHANGE ACT" is defined in CLAUSE (b)(iv) of the definition of "Change in
Control".
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<PAGE>
"EXEMPTED PROPERTIES" is defined in CLAUSE (a)(viii) of SECTION 7.2.9.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING LENDERS" is defined in the FIRST RECITAL.
"EXISTING LETTERS OF CREDIT" is defined in the FIRST RECITAL.
"EXISTING LOANS" is defined in the FIRST RECITAL.
"EXISTING REVOLVING LOANS" is defined in the FIRST RECITAL.
"EXISTING SWING LINE LOANS" is defined in the FIRST RECITAL.
"EXISTING TERM LOANS" is defined in the FIRST RECITAL.
"EXISTING TERM-A LOANS" means the Term-A Loans outstanding under (and as
defined in) the Existing Credit Agreement.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers
of recognized standing selected by it.
"FEE LETTER" means, collectively, (i) the confidential fee letter, dated as
of December 29, 1995, among ARTAL, Flowers and the Administrative Agent,
(ii) the confidential fee letter, dated as of May 2, 1996, between the Borrower
and the Administrative Agent and (iii) the confidential fee letter, dated as of
March 18, 1997, between the Borrower and the Administrative Agent.
"FISCAL QUARTER" means any quarter beginning and ending on the dates set
forth in SCHEDULE IV.
"FISCAL YEAR" means any period of 52 (or, if applicable, 53) consecutive
weeks ending on the Saturday occurring nearest to
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December 31 of any year; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1996 FISCAL YEAR") refer to the Fiscal Year
ending on the Saturday occurring nearest to December 31 of that calendar year,
even if such date occurs in the next calendar year.
"FLOWERS" means Flowers Industries, Inc., a Georgia corporation.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in SECTION 1.4.
"GFI" means G.F. Industries, a Nevada corporation.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under interest rate swap agreements, interest rate cap agreements
and interest rate collar agreements, and all other agreements or arrangements
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HOLDINGS" means INFLO Holdings Corporation, a Delaware corporation.
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<PAGE>
"HOLDINGS GUARANTY" means the Guaranty, dated as of January 26, 1996,
executed and delivered by an Authorized Officer of Holdings pursuant to clause
(b) of Section 5.1.8 of the Original Credit Agreement, a conformed copy of which
is attached hereto as EXHIBIT H-2, as amended, supplemented, restated or
otherwise modified from time to time in accordance with its terms.
"HOLDINGS PLEDGE AGREEMENT" means the Pledge Agreement, dated as of January
26, 1996, executed and delivered by an Authorized Officer of Holdings pursuant
to clause (a) of Section 5.1.9 of the Original Credit Agreement, a conformed
copy of which is attached hereto as EXHIBIT G-1, as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms.
"IMMATERIAL SUBSIDIARY" means, at any date of determination, any Subsidiary
or group of Subsidiaries of the Borrower having assets as at the end of and
EBITDA for the immediately preceding four Fiscal Quarter period for which the
relevant financial information has been delivered pursuant to CLAUSE (a) or
CLAUSE (b) of SECTION 7.1.1 of less than $2,000,000 individually or in the
aggregate.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters relevant
to such financial statement; or
(c) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to
cause such Obligor to be in default of any of its obligations under
SECTION 7.2.4.
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM GENERIS
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
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<PAGE>
"INCREMENTAL TERM LOANS" is defined in SECTION 2.1.1.
"INCREMENTAL TERM LOAN COMMITMENT" is defined in SECTION 2.1.1.
"INCREMENTAL TERM LOAN COMMITMENT AMOUNT" means, on any date, $109,750,000.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments for borrowed money in respect thereof;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon and interest not yet due) secured by a Lien on property owned
or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether
or not such indebtedness shall have been assumed by such Person or is
limited in recourse; PROVIDED, HOWEVER, that, for purposes of
determining the amount of any Indebtedness of the type described in
this clause, if recourse with respect to such Indebtedness is limited
to specific property financed with such Indebtedness, the amount of
such Indebtedness shall be limited to the fair market value
(determined on a basis reasonably acceptable to the Administrative
Agent) of such property or the principal amount of such Indebtedness,
whichever is less;
(f) all Receivables Facility Outstandings; and
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(g) all Contingent Liabilities of such Person in respect of any of the
foregoing;
PROVIDED, that, Indebtedness shall not include unsecured Indebtedness incurred
in the ordinary course of business in the nature of accrued liabilities and open
accounts extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding the Indebtedness incurred through
the borrowing of money or Contingent Liabilities in connection therewith. For
all purposes of this Agreement, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"INDEMNIFIED LIABILITIES" is defined in SECTION 10.4.
"INDEMNIFIED PARTIES" is defined in SECTION 10.4.
"INDENTURE" means the Indenture, dated as of June 15, 1996, by and among
the Borrower, the Subsidiaries of the Borrower from time to time parties thereto
(as guarantors) and U.S. Trust Company of New York, as the trustee, as such
Indenture may be amended, supplemented, amended and restated or otherwise
modified in accordance with the terms of SECTION 7.2.10.
"INITIAL PUBLIC OFFERING" means any sale of the Capital Stock of Holdings
to the public pursuant to an initial, primary offering registered under the
Securities Act of 1933 and, for purposes of the Change of Control definition
only, pursuant to which no less than 10% of the Capital Stock of Holdings
outstanding after giving effect to such offering was sold pursuant to such
offering.
"INTERCOMPANY SUBORDINATION AGREEMENT" means an agreement to be executed
and delivered pursuant to the terms of this Agreement (including CLAUSE (g) of
SECTION 7.2.2), substantially in the form of EXHIBIT K hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with its terms.
"INTEREST COVERAGE RATIO" means, at the close of any Fiscal Quarter, the
ratio computed (except as set forth in the proviso set forth below) for the
period consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
TO
- --
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<PAGE>
(b) Interest Expense (for all such Fiscal Quarters).
"INTEREST EXPENSE" means, for any Fiscal Quarter, the aggregate
consolidated cash interest expense (net of interest income) of the Borrower and
its Subsidiaries for such Fiscal Quarter, as determined in accordance with GAAP,
including (i) the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense and (ii) interest (or other fees in
the nature of interest or discount accrued and paid or payable in cash for such
Fiscal Quarter) in respect of the Permitted Receivables Transaction.
"INTEREST PERIOD" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTION 2.3.1 or
2.4 and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six (or, if available to all relevant Lenders and at the
discretion of the Administrative Agent, nine or twelve) months thereafter (or,
if such month has no numerically corresponding day, on the last Business Day of
such month), in either case as the Borrower may select in its relevant notice
pursuant to SECTION 2.3 or 2.4; PROVIDED, HOWEVER, that
(a) the Borrower shall not be permitted to select Interest Periods to be
in effect at any one time which have expiration dates occurring on
more than ten different dates;
(b) Interest Periods commencing on the same date for Loans comprising part
of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period
shall end on the Business Day next preceding such numerically
corresponding day); and
(d) no Interest Period for any Loan may end later than the Stated Maturity
Date for such Loan.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person (excluding
commission, travel and similar advances to officers and employees made
in the ordinary course of business); and
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(b) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"ISSUANCE REQUEST" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
EXHIBIT B-2 hereto.
"ISSUER" means, collectively, Scotiabank in its individual capacity
hereunder as issuer of the Letters of Credit and such other Lender as may be
designated by Scotiabank (and agreed to by the Borrower and such Lender) in its
individual capacity as the issuer of Letters of Credit.
"KEEBLER ACQUISITION" means the acquisition by the Borrower from the Seller
of all of the outstanding Shares of UBI and certain assets of certain
Subsidiaries of the Seller, as further set forth in the Keebler Purchase
Agreement.
"KEEBLER PURCHASE AGREEMENT" means the Stock Purchase Agreement, dated
November 5, 1995, as amended by a first amendment, dated January 26, 1996 (as
originally executed and delivered and amended by the first amendment, and as
otherwise further amended or modified in accordance with CLAUSE (a) of SECTION
7.2.10), between Holdings (with the rights and obligations thereunder being
assigned to the Borrower) and the Seller.
"KEEBLER TRANSACTION" means the Keebler Acquisition, the Merger, the Equity
Contribution, the execution of the Bridge Note Agreement and issuance of the
Bridge Notes (as such terms are defined in the Existing Credit Agreement), the
execution of the Existing Credit Agreement and the making of the initial Credit
Extension thereunder, and any and all transactions relating to any of the
foregoing.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement
substantially in the form of EXHIBIT J hereto.
"LENDERS" is defined in the PREAMBLE.
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"LETTER OF CREDIT" is defined in SECTION 2.1.3.
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to SECTION 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligations of each such Lender to participate in such Letters of Credit
pursuant to SECTION 2.6.1.
"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum amount
of $45,000,000, as such amount may be reduced from time to time pursuant to
SECTION 2.2.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit,
PLUS
- ----
(b) the then aggregate amount of all unpaid and outstanding Reimbursement
Obligations in respect of such Letters of Credit.
"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans, the
rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of the Administrative Agent's LIBO Rate Loan and for a period
approximately equal to such Interest Period.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined pursuant to the following formula:
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LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such on SCHEDULE III hereto or designated in the Lender Assignment
Agreement or such other office of a Lender as designated from time to time by
notice from such Lender to the Borrower and the Administrative Agent, whether or
not outside the United States, which shall be making or maintaining LIBO Rate
Loans of such Lender hereunder.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"LOAN" means, as the context may require, a Revolving Loan, a Swing Line
Loan or a Term Loan of any type.
"LOAN DOCUMENT" means this Agreement, the Notes, the Letters of Credit,
each Fee Letter, each Pledge Agreement, the Subsidiary Guaranty, the Holdings
Guaranty, each Mortgage, the Intercompany Subordination Agreement, each Security
Agreement, each Patent Security Agreement, each Trademark Security Agreement,
each Copyright Security Agreement, and each other agreement, document or
instrument delivered in connection with this Agreement or any
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other Loan Document, whether or not specifically mentioned herein or therein.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
financial condition, operations, assets, business or properties of Holdings and
its Subsidiaries, taken as a whole, or the Borrower and its Subsidiaries, taken
as a whole, (b) a material impairment of the ability of the Borrower or any
other Obligor (other than any Immaterial Subsidiary) to perform its respective
material obligations under the Loan Documents to which it is or will be a party,
or (c) an impairment of the validity or enforceability of, or a material
impairment of the rights, remedies or benefits available to the Administrative
Agent, the Issuer or the Lenders under, this Agreement or any other Loan
Document.
"MERGER" is defined in the PREAMBLE.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means, collectively, each Mortgage or Deed of Trust executed and
delivered pursuant to the terms of the Original Credit Agreement and the
Existing Credit Agreement or this Agreement, including CLAUSE (b) of SECTION
7.1.9, substantially in the form of EXHIBIT I hereto, as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms.
"NET DEBT PROCEEDS" means, with respect to the incurrence, sale or issuance
(to the extent permitted by the terms of this Agreement) by the Borrower or any
of its Subsidiaries to any Person of any Debt (other than Debt permitted by
SECTION 7.2.2 as in effect on the Amendment Effective Date (or as hereafter
permitted under such Section with the consent of the Required Lenders),
including Debt arising in connection with the Permitted Receivables
Transaction), the EXCESS of:
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from such sale or issuance,
OVER
- ----
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional
fees, sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such incurrence, sale or issuance which have not been
paid to Affiliates of the Borrower in connection therewith.
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<PAGE>
"NET DISPOSITION PROCEEDS" means, with respect to a Permitted Disposition
of the assets of the Borrower or any of its Subsidiaries, the excess of
(a) the gross cash proceeds received by the Borrower or any of its
Subsidiaries from any Permitted Disposition and any cash payments
received in respect of promissory notes or other non-cash
consideration delivered to the Borrower or such Subsidiary in respect
of any Permitted Disposition,
LESS
- ----
(b) the sum of
(i) all reasonable and customary fees and expenses with respect to
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all
other reasonable fees, expenses and charges, in each case
actually incurred in connection with such Permitted Disposition
which have not been paid to Affiliates of the Borrower,
(ii) all taxes and other governmental costs and expenses actually paid
or estimated by the Borrower (in good faith) to be payable in
cash in connection with such Permitted Disposition, and
(iii)payments made by the Borrower or any of its Subsidiaries to
retire Indebtedness (other than the Loans) of the Borrower or any
of its Subsidiaries where payment of such Indebtedness is
required in connection with such Permitted Disposition;
PROVIDED, HOWEVER, that if, after the payment of all taxes with respect to such
Permitted Disposition, the amount of estimated taxes, if any, pursuant to CLAUSE
(b)(ii) above exceeded the tax amount actually paid in cash in respect of such
Permitted Disposition, the aggregate amount of such excess shall be immediately
payable, pursuant to CLAUSE (c) of SECTION 3.1.1, as Net Disposition Proceeds.
"NET EQUITY PROCEEDS" means with respect to the sale or issuance by
Holdings to any Person of any stock, warrants or options or the exercise of any
such warrants or options after the Amendment Effective Date (other than pursuant
to (i) capital contributions (from other than an Initial Public Offering or in
connection with a Refinancing) which are concurrently contributed
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to the Borrower, or (ii) any subscription agreement, incentive plan or similar
arrangement with any officer or employee of Holdings or any of its
Subsidiaries), the EXCESS of:
(a) the gross cash proceeds received by Holdings from such sale, exercise
or issuance,
OVER
- ----
(b) all reasonable and customary underwriting commissions and legal,
investment banking, brokerage and accounting and other professional
fees, sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such sale or issuance which have not been paid to
Affiliates of Holdings in connection therewith.
"NET INCOME" means, for any period, the net income of the Borrower and its
Subsidiaries for such period on a consolidated basis, excluding extraordinary
gains.
"NET WORTH" means the consolidated net worth of the Borrower and its
Subsidiaries.
"NON-U.S. LENDER" means any Lender (including each Assignee Lender) that is
not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) any estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"NON-U.S. SUBSIDIARY" means any Subsidiary of the Borrower that is not
incorporated or organized in or under the laws of the United States or any state
thereof.
"NOTE" means, as the context may require, a Revolving Note, a Swing Line
Note, a Registered Note or a Term Note.
"OAKLAND PROPERTY" is defined in CLAUSE (a)(viii) of SECTION 7.2.9.
"OBLIGATIONS" means all obligations (monetary or otherwise) of the Borrower
and each other Obligor arising under or in connection with this Agreement, the
Notes, each Letter of Credit and each other Loan Document, and Hedging
Obligations owed to a Lender or an Affiliate thereof (or a Person that was a
Lender or an Affiliate of a Lender at the time the applicable Rate
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Protection Agreement was entered into), unless the Lender or such Affiliate (or
other Person) otherwise agrees.
"OBLIGOR" means the Borrower or any other Person (other than the
Administrative Agent or any Lender) obligated under any Loan Document.
"ORGANIC DOCUMENT" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of Capital
Stock.
"ORIGINAL AGREEMENT" is defined in the FIRST RECITAL.
"PARTICIPANT" is defined in SECTION 10.11.2.
"PATENT SECURITY AGREEMENT" means any Patent Security Agreement executed
and delivered by any Obligor in substantially the form of EXHIBIT A to any
Security Agreement, as amended, supplemented, amended and restated or otherwise
modified.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"PENSION PLAN" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Term Loans or Revolving Loans, as the case may be, as set forth
opposite its name on SCHEDULE III hereto under the applicable column heading or
set forth in Lender Assignment Agreement(s) under the applicable column heading,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to SECTION 10.11. A Lender shall not have any Commitment to
make Revolving Loans or Term Loans (as the case may be) if its percentage under
the respective column heading is zero.
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"PERMITTED ARTAL INVESTOR GROUP" means ARTAL or any of its direct or
indirect wholly-owned Subsidiaries and ARTAL Group S.A., a Luxembourg
corporation or any of its direct or indirect wholly-owned Subsidiaries.
"PERMITTED DISPOSITION" means a sale, disposition or other conveyance of
assets by the Borrower or any of its Subsidiaries in accordance with the terms
of CLAUSE (b) (other than as permitted by CLAUSE (a) or (c)) of SECTION 7.2.9.
"PERMITTED RECEIVABLES TRANSACTION" means any transaction providing for the
sale or financing of Accounts with customary limited recourse based on the
collectability of the Accounts sold; PROVIDED, HOWEVER, that the expiration
date, term, conditions and structure (including the legal and organizational
structure of Receivables Co. and the restrictions imposed on its activities) of,
and the documentation relating to, the Permitted Receivables Transaction must be
on terms and conditions satisfactory to the Administrative Agent.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PLEDGE AGREEMENT" means, as the context may require, the Holdings Pledge
Agreement, the Borrower Pledge Agreement or the Subsidiary Pledge Agreement.
"PRO FORMA BALANCE SHEET" is defined in CLAUSE (b) of SECTION 5.1.13.
"QUALIFIED ASSETS" is defined in CLAUSE (c) of SECTION 3.1.1.
"QUARTERLY PAYMENT DATE" means the last day of each Fiscal Quarter, or, if
any such day is not a Business Day, the next succeeding Business Day.
"RATE PROTECTION AGREEMENT" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by the Borrower pursuant to the
terms of this Agreement under which the counterparty to such agreement is (or at
the time such Rate Protection Agreement was entered into, was) a Lender or an
Affiliate of a Lender.
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<PAGE>
"RECEIVABLES CO." means any special purpose, bankruptcy-remote wholly-owned
Subsidiary of the Borrower organized after the date hereof (or such other Person
agreed to by the Administrative Agent) that purchases Accounts generated by the
Borrower or any of its Subsidiaries in connection with the Permitted Receivables
Transaction.
"RECEIVABLES FACILITY OUTSTANDINGS" means, at any date of determination,
with respect to the Permitted Receivables Transaction, the aggregate cash
proceeds received by the Borrower or any of its Subsidiaries from the sale or
financing of Accounts pursuant to the Permitted Receivables Transaction which
are outstanding on the date of determination.
"RECEIVABLES PROCEEDS" means, with respect to the Permitted Receivables
Transaction, the maximum amount of the commitment to purchase Accounts under the
Permitted Receivables Transaction.
"REFINANCING" means, the sale by public offering or private placement by
the Borrower of the Refinancing Notes in order to refinance all or any portion
of the then outstanding principal amount of the Subordinated Notes outstanding
on the Amendment Effective Date or other Refinancing Notes in up to the amounts
permitted pursuant to CLAUSE (h) of SECTION 7.2.2, in accordance with the terms
of this Agreement.
"REFINANCING NOTE INDENTURE" means, collectively, each indenture, if any,
to be executed by the Borrower and a trustee to be named therein, pursuant to
which the Refinancing Notes are issued and governed by, which Refinancing Note
Indenture shall (i) contain subordination provisions that are no less favorable
to the holders of "Senior Indebtedness", "Senior Debt" or terms of similar
import as used in such Refinancing Note Indenture than the subordination
provisions contained in the Indenture, (ii) not provide for any amortization (in
whole or in part) of the Refinancing Notes prior to July 26, 2005, (iii) provide
for accrued interest on the Refinancing Notes at a maximum rate per annum not in
excess of the rate of interest then prevailing in the unsecured senior
subordinated debt capital markets (as reasonably determined in good faith by the
Administrative Agent) for companies comparable to the Borrower (based upon,
INTER ALIA, historical and current financial performance, credit ratios and the
industry in which the Borrower participates) at the time of the Refinancing, and
(iv) contain such other terms and conditions which, taken as a whole, are
comparable to those contained in indentures then prevailing in the unsecured
senior subordinated debt capital markets (as reasonably determined in good faith
by the Required Lenders) for companies comparable to the Borrower (based upon,
INTER ALIA, historical and current financial
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performance, credit ratios and the industry in which the Borrower participates)
at the time of the Refinancing, as such indenture may be amended, supplemented,
amended and restated or otherwise modified pursuant to SECTION 7.2.10.
"REFINANCING NOTES" means, collectively, the unsecured senior subordinated
notes, if any, to be issued by the Borrower pursuant to the Refinancing Note
Indenture in connection with a Refinancing of the Subordinated Notes outstanding
on the Amendment Effective Date or other Refinancing Notes in up to the amounts
permitted pursuant to CLAUSE (h) of SECTION 7.2.2 which Refinancing Notes shall
not have any terms that are inconsistent with the Refinancing Note Indenture
pursuant to which they were issued.
"REFUNDED SWING LINE LOANS" is defined in CLAUSE (b) of SECTION 2.3.2.
"REGISTER" is defined in CLAUSE (b) of SECTION 2.8.
"REGISTERED NOTE" means a promissory note of the Borrower payable to any
Registered Noteholder, in the form of EXHIBIT A-4 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Lender resulting
from outstanding Term Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"REGISTERED NOTEHOLDER" means any Lender that has been issued a Registered
Note.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"RELEASE" means a "release", as such term is defined in CERCLA.
"REPORTING PERIOD" means, in the case of the first Reporting Period, the
period beginning on January 26, 1996 and ending on February 24, 1996, and in the
case of each other Reporting Period, each four week period thereafter, other
than the 13th Reporting Period of Fiscal Year 1997 (which shall be the five week
period ending January 3, 1998) and the 13th Reporting Period of Fiscal Year 2003
(which shall be the five week period ending January 3, 2004).
"REQUIRED LENDERS" means, at any time, Lenders holding at least 51% of the
Total Exposure Amount.
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"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as in effect from time to
time.
"RESTRICTED PAYMENTS" is defined in SECTION 7.2.6.
"RESTRUCTURING CHARGES" means the charges incurred or to be incurred in an
amount not to exceed (after giving effect to the Sunshine Acquisition) an
aggregate amount of $132,000,000 in cash in connection with the restructuring of
the ongoing business and operations of the Borrower and its Subsidiaries
following January 26, 1996, as more fully described in each Bank Confidential
Offering Memorandum.
"REVOLVING LOAN" is defined in CLAUSE (a) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT" is defined in CLAUSE (a) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT AMOUNT" means, on any date, $140,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means the earliest of
(a) April 7, 2003;
(b) the date on which the Revolving Loan Commitment Amount is terminated
in full or reduced to zero pursuant to SECTION 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (b) or (c), the
Revolving Loan Commitments shall terminate automatically and without any further
action.
"REVOLVING LOAN LENDERS" means Lenders with a Revolving Loan Commitment.
"REVOLVING NOTE" means a promissory note of the Borrower payable to any
Lender, substantially in the form of EXHIBIT A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory
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notes accepted from time to time in substitution therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Services.
"SANTA FE PROPERTY" is defined in CLAUSE (a)(vii) of SECTION 7.2.9.
"SCOTIABANK" is defined in the preamble.
"SECURITY AGREEMENT" means, as the context may require, the Borrower
Security Agreement or the Subsidiary Security Agreement.
"SELLER" means UB Investments (Netherlands) B.V., a Netherlands
corporation.
"SELLER NOTE" means the unsecured promissory note of Holdings in a
principal amount equal to $32,500,000 payable to the Seller (or its assignee)
pursuant to the Keebler Purchase Agreement, in the form attached hereto as
EXHIBIT M.
"SHARES" means 1,000,000 shares of common stock, par value $1.00 per share,
of UBI.
"SOLVENT" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature, and (d) such
Person is not engaged in business or a transaction, and such person is not about
to engage in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"STATED AMOUNT" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
"STATED EXPIRY DATE" is defined in SECTION 2.6.
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"STATED MATURITY DATE" means April 7, 2003.
"SUBORDINATED DEBT" means, as the context may require, (i) the unsecured
Debt of the Borrower evidenced by the Subordinated Notes and (ii) to the extent
permitted by the Required Lenders, any other unsecured Debt of the Borrower
subordinated in right of payment to the Obligations pursuant to documentation
containing maturities, amortization schedules, covenants, defaults, remedies,
subordination provisions and other material terms in form and substance
satisfactory to the Administrative Agent and Required Lenders.
"SUBORDINATED GUARANTY" means, collectively, each guaranty, if any,
executed from time to time by Holdings or any Subsidiary of the Borrower (other
than the Designated Subsidiaries and Receivables Co.) pursuant to which the
guarantor thereunder has any Contingent Liability with respect to any
Subordinated Debt (other than the Seller Note).
"SUBORDINATED NOTE" means, as the context may require, (i) the 10 3/4%
senior subordinated notes due 2006 issued under the Indenture and outstanding on
the Amendment Effective Date and (ii) the Refinancing Notes, and collectively
means all of the above notes, as, in each case, amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with
SECTION 7.2.10 or refinanced in accordance with CLAUSE (h) of SECTION 7.2.2.
"SUBORDINATED NOTEHOLDER" means, at any time, any holder of a Subordinated
Note.
"SUBORDINATED NOTE INDENTURE" means, as the context may require, the
Indenture and each Refinancing Note Indenture, and collectively means all of the
above agreements and indentures, in each case, as such agreements or indentures
may hereafter be amended, supplemented, restated or otherwise modified from time
to time in accordance with SECTION 7.2.10.
"SUBORDINATION PROVISIONS" is defined in SECTION 8.1.11.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interest) of any other class or classes of such entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly
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or indirectly owned by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"SUBSIDIARY GUARANTOR" means, on the Amendment Effective Date, each
Subsidiary of the Borrower (other than the Designated Subsidiaries) and
thereafter, each Subsidiary of the Borrower that is required, pursuant to CLAUSE
(a) of SECTION 7.1.7, to execute and deliver a supplement to the Subsidiary
Guaranty.
"SUBSIDIARY GUARANTY" means, collectively, each Guaranty executed and
delivered by each Subsidiary Guarantor pursuant to the terms of the Original
Credit Agreement, the Existing Credit Agreement and this Agreement,
substantially in the form of EXHIBIT H-1 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
its terms.
"SUBSIDIARY PLEDGE AGREEMENT" means, collectively, each Pledge Agreement
executed and delivered by certain Subsidiaries of the Borrower pursuant to the
terms of the Existing Credit Agreement and this Agreement, substantially in the
form of EXHIBIT G-3 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its terms.
"SUBSIDIARY SECURITY AGREEMENT" means, collectively, each Security
Agreement executed and delivered by certain Subsidiaries of the Borrower
pursuant to the terms of the Existing Credit Agreement and this Agreement,
substantially in the form of EXHIBIT F-2 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
its terms.
"SUNSHINE" means Sunshine Biscuits, Inc., a Delaware corporation.
"SUNSHINE ACQUISITION" means the acquisition by the Borrower from GFI all
of the outstanding Sunshine Shares, as further set forth in the Sunshine
Purchase Agreement.
"SUNSHINE PURCHASE AGREEMENT" means the Stock Purchase Agreement, dated as
of June 4, 1996 (as originally executed and delivered, and as otherwise amended
or modified in accordance with CLAUSE (a) of SECTION 7.2.10), among GFI,
Holdings and the Borrower.
"SUNSHINE SHARES" means 100 shares of common stock, no par value, of
Sunshine.
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"SUNSHINE TRANSACTION" means the Sunshine Acquisition, the issuance of the
Sunshine Warrants and the issuance of common stock of Holdings to GFI in
connection therewith.
"SUNSHINE WARRANTS" means warrants to acquire up to 7.5% of the Capital
Stock of Holdings issued in connection with the Sunshine Acquisition.
"SWING LINE LENDER" means Scotiabank (or another Lender designated by
Scotiabank with the consent of the Borrower, if such Lender agrees to be the
Swing Line Lender hereunder), in such Person's capacity as the maker of Swing
Line Loans.
"SWING LINE LOAN" is defined in CLAUSE (b) of SECTION 2.1.2.
"SWING LINE LOAN COMMITMENT" means, with respect to the Swing Line Lender,
the Swing Line Lender's obligation pursuant to CLAUSE (b) of SECTION 2.1.2 to
make Swing Line Loans and, with respect to each Lender with a Commitment to make
Revolving Loans (other than the Swing Line Lender), such Lender's obligation to
participate in Swing Line Loans pursuant to SECTION 2.3.2.
"SWING LINE LOAN COMMITMENT AMOUNT" means, on any date, $20,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"SWING LINE NOTE" means a promissory note of the Borrower payable to the
Swing Line Lender, in substantially the form of EXHIBIT A-2 hereto (as such
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to the Swing Line
Lender resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"TAXES" is defined in SECTION 4.6.
"TERM LOAN" means, collectively, the Existing Term-A Loans and the
Incremental Term Loans.
"TERM LOAN COMMITMENT TERMINATION DATE" means, with respect to the
Incremental Term Loans, the earlier of
(a) the Amendment Effective Date (immediately after the making of the
Incremental Term Loans on such date); or
(b) the date on which any Commitment Termination Event occurs.
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Upon the occurrence of any event described in CLAUSE (a) or (b), the Term Loan
Commitments shall terminate automatically and without any further action.
"TERM NOTE" means each promissory note of the Borrower payable to the order
of any Lender, in the form of EXHIBIT A-3 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"TOTAL EXPOSURE AMOUNT" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the then effective Revolving
Loan Commitment Amount.
"TRADEMARK SECURITY AGREEMENT" means any Trademark Security Agreement
executed and delivered by any Obligor substantially in the form of EXHIBIT B to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with the terms of such
Security Agreement.
"TRANCHE" means, as the context may require, the Loans constituting Term
Loans, Swing Line Loans or Revolving Loans.
"TRUCK SALE PROCEEDS" means the aggregate amount of cash or other
consideration received by the Borrower or any of its Subsidiaries from (i) the
transactions described in CLAUSE (b)(i) of SECTION 7.2.7 and (ii) up to
$10,000,000 of the amount of proceeds generated by the sale or other disposition
of trucks to the extent such proceeds are paid to the Seller or any of its
Affiliates as required pursuant to the terms of the Keebler Purchase Agreement.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UBI" is defined in the PREAMBLE.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York.
"UNITED BISCUITS" means United Biscuits (Holdings) plc., a corporation
organized under the laws of the United Kingdom.
"UNITED STATES" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
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"WAIVER" means an agreement in favor of the Administrative Agent for the
benefit of the Lenders and the Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"WELFARE PLAN" means a "WELFARE PLAN", as such term is defined in section
3(1) of ERISA, and to which the Borrower has any liability.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
"YEAR 1" is defined in CLAUSE (a) of SECTION 7.2.7.
"YEAR 2" is defined in CLAUSE (a) of SECTION 7.2.7.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each other
Loan Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under SECTION 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") as in
effect as of December 28, 1996.
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ARTICLE II
CONTINUATION OF CERTAIN EXISTING LOANS
AND EXISTING LETTERS OF CREDIT;
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. COMMITMENTS AND CONTINUATION OF CERTAIN EXISTING LOANS. On the
terms and subject to the conditions of this Agreement (including ARTICLE V),
(a) each Lender severally agrees to the continuation of Existing Revolving
Loans, Existing Swing Line Loans and Existing Term-A Loans hereunder
and to make Loans (other than Swing Line Loans) pursuant to the
Commitments hereunder and the Swing Line Lender agrees to make Swing
Line Loans pursuant to the Swing Line Loan Commitment hereunder in
each case as described in this ARTICLE II; and
(b) each Issuer severally agrees that it will issue Letters of Credit
pursuant to SECTION 2.1.3, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to SECTION 2.6.1.
SECTION 2.1.1. INCREMENTAL TERM LOAN COMMITMENTS. Each of the parties
hereto acknowledges and agrees that the Existing Term-A Loans shall continue as
Term Loans for all purposes under this Agreement and the Loan Documents. In
addition, subject to compliance by the Borrower with the terms of SECTIONS
2.1.4, 5.1 and 5.2, in a single Borrowing on the Amendment Effective Date (which
shall be a Business Day) occurring on or prior to the Incremental Term Loan
Commitment Termination Date, each Lender, as applicable, will make loans
(relative to such Lender, its "INCREMENTAL TERM LOANS") to the Borrower in an
amount equal to that principal amount set forth opposite such Lender's name on
SCHEDULE VI hereto (with the commitment of each such applicable Lender described
in this Section herein referred to as its Incremental "TERM LOAN COMMITMENT").
No amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.2. REVOLVING LOAN COMMITMENT AND SWING LINE LOAN COMMITMENT.
Each of the parties hereto acknowledge and agree that the Existing Revolving
Loans and Existing Swing Line Loans shall continue as Revolving Loans and Swing
Line Loans for all purposes under this Agreement and the Loan Documents. In
addition, subject to compliance by the Borrower with the terms of SECTION 2.1.4,
SECTION 5.1 and SECTION 5.2, the Revolving Loans and Swing Line Loans will be
made as set forth below.
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(a) From time to time on any Business Day occurring concurrently with (or
after) the making of the Incremental Term Loans but prior to the
Revolving Loan Commitment Termination Date, each Lender that has a
Percentage of the Revolving Loan Commitment in excess of zero will
make loans (relative to such Lender, together with its Existing
Revolving Loans, its "REVOLVING LOANS") to the Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing of the
Revolving Loans requested by the Borrower to be made on such day. The
Commitment of each Lender described in this CLAUSE (a) is herein
referred to as its "REVOLVING LOAN COMMITMENT". On the terms and
subject to the conditions hereof, the Borrower may from time to time
borrow, prepay and reborrow the Revolving Loans.
(b) From time to time on any Business Day occurring concurrently with (or
after) the making of the Incremental Term Loans, but prior to the
Revolving Loan Commitment Termination Date, the Swing Line Lender will
make Loans (relative to the Swing Line Lender, its "SWING LINE LOANS")
to the Borrower equal to the principal amount of the Swing Line Loans
requested by the Borrower. On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow
such Swing Line Loans.
SECTION 2.1.3. LETTER OF CREDIT COMMITMENT. Each of the parties hereto
acknowledge and agree that all Existing Letters of Credit shall continue as
Letters of Credit for all purposes under this Agreement and the Loan Documents.
In addition, subject to compliance by the Borrower with the terms of SECTION
2.1.5, SECTION 5.1 and SECTION 5.2, from time to time on any Business Day
occurring from and after the Amendment Effective Date but prior to the Revolving
Loan Commitment Termination Date, the Issuer will
(a) issue one or more standby (including direct pay) or documentary
letters of credit (together with the Existing Letters of Credit,
individually referred to as a "LETTER OF CREDIT" and collectively
referred to as the "LETTERS OF CREDIT") for the account of the
Borrower or certain of its Subsidiaries, as described in SECTION 2.6,
in the Stated Amount requested by the Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby (including direct
pay) Letter of Credit previously issued hereunder to a date not later
than the earlier of (x) the Revolving Loan Commitment Termination Date
and (y) one year from the date of such extension.
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SECTION 2.1.4. LENDERS NOT PERMITTED OR REQUIRED TO MAKE THE LOANS. No
Lender shall be permitted or required to, and the Borrower shall not request
that any Lender, make
(a) any Incremental Term Loan if, after giving effect thereto, the
aggregate original principal amount of all the Incremental Term Loans
(i) of all Lenders would exceed the Incremental Term Loan Commitment
Amount; or
(ii) of such Lender would exceed the amount set forth opposite such
Lender's name on SCHEDULE VI hereto for Incremental Term Loans;
(b) any Revolving Loan or Swing Line Loan if, after giving effect thereto,
the aggregate outstanding principal amount of all the Revolving Loans
and Swing Line Loans
(i) of all the Revolving Loan Lenders, together with the aggregate
amount of all Letter of Credit Outstandings, would exceed the
Revolving Loan Commitment Amount; or
(ii) of such Revolving Loan Lender (other than the Swing Line Lender),
together with such Lender's Percentage of the aggregate amount of
all Letter of Credit Outstandings, would exceed such Lender's
Percentage of the Revolving Loan Commitment Amount; or
(c) any Swing Line Loan if after giving effect to the making of such Swing
Line Loan, the outstanding principal amount of all Swing Line Loans
would exceed the then existing Swing Line Loan Commitment Amount.
SECTION 2.1.5. ISSUER NOT PERMITTED OR REQUIRED TO ISSUE LETTERS OF CREDIT.
No Issuer shall be permitted or required to issue any Letter of Credit if, after
giving effect thereto, (a) the aggregate amount of all Letter of Credit
Outstandings would exceed the Letter of Credit Commitment Amount or (b) the sum
of the aggregate amount of all Letter of Credit Outstandings plus the aggregate
principal amount of all Revolving Loans and Swing Line Loans then outstanding
would exceed the Revolving Loan Commitment Amount.
SECTION 2.2. REDUCTION OF THE COMMITMENT AMOUNTS. The Commitment Amounts
are subject to reductions from time to time pursuant to this SECTION 2.2.
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SECTION 2.2.1. OPTIONAL. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Credit Extension hereunder,
voluntarily reduce the Swing Line Loan Commitment Amount, the Letter of Credit
Commitment Amount or the Revolving Loan Commitment Amount; PROVIDED, HOWEVER,
that all such reductions shall require at least three Business Days' prior
notice to the Administrative Agent and be permanent, and any partial reduction
of any Commitment Amount shall be in a minimum amount of $5,000,000 and in an
integral multiple of $1,000,000. Any reduction of the Revolving Loan Commitment
Amount which reduces the Revolving Loan Commitment Amount below the sum of (i)
the Swing Line Loan Commitment Amount and (ii) the Letter of Credit Commitment
Amount shall result in an automatic and corresponding reduction of the Swing
Line Loan Commitment Amount and/or Letter of Credit Commitment Amount (as
directed by the Borrower in a notice to the Administrative Agent delivered
together with the notice of such voluntary reduction in the Revolving Loan
Commitment Amount) to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the part of the
Swing Line Lender or the Issuer.
SECTION 2.2.2. MANDATORY. The Revolving Loan Commitment Amount shall be
reduced as set forth below.
(a) Following the prepayment in full of the Term Loans, the Revolving Loan
Commitment Amount shall, without any further action, automatically and
permanently be reduced on the date the Term Loans would otherwise have
been required to be prepaid with any Net Disposition Proceeds, Net
Equity Proceeds or Net Debt Proceeds, in an amount equal to the amount
by which the Term Loans would otherwise be required to be prepaid if
Term Loans had been outstanding; PROVIDED, that (notwithstanding the
foregoing), the maximum aggregate amount of Net Disposition Proceeds,
Net Equity Proceeds and Net Debt Proceeds required to be applied to
reduce the Revolving Loan Commitment Amount shall not exceed
$40,000,000 over the term of this Agreement.
(b) The Revolving Loan Commitment Amount shall be reduced on the Business
Day on which the Permitted Receivables Transaction is consummated in
an amount equal to the Receivables Proceeds.
(c) Any reduction of the Revolving Loan Commitment Amount which reduces
the Revolving Loan Commitment Amount below the sum of (i) the Swing
Line Loan Commitment Amount and (ii) the Letter of Credit Commitment
Amount shall result in an automatic and corresponding reduction of the
Swing
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Line Loan Commitment Amount and/or Letter of Credit Commitment Amount
(as directed by the Borrower in a notice to the Administrative Agent)
to an aggregate amount not in excess of the Revolving Loan Commitment
Amount, as so reduced, without any further action on the part of the
Swing Line Lender or the Issuer.
SECTION 2.3. BORROWING PROCEDURES AND FUNDING MAINTENANCE. Loans shall be
made by the Lenders in accordance with this Section.
SECTION 2.3.1. INCREMENTAL TERM LOANS AND REVOLVING LOANS. By delivering a
Borrowing Request to the Administrative Agent on or before 12:00 noon, New York
time, on a Business Day, the Borrower may from time to time irrevocably request,
on not less than one (in the case of Base Rate Loans) and three (in the case of
LIBO Rate Loans) nor more than (in each case) five Business Days' notice, that a
Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, and in the case of Base Rate
Loans, in a minimum amount of $1,000,000 and an integral multiple thereof, or,
in either case, in the unused amount of the applicable Commitment. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 11:00 a.m., New York time, on such
Business Day each Lender shall deposit with the Administrative Agent same day
funds in an amount equal to such Lender's Percentage of the requested Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. SWING LINE LOANS. (a) By telephonic notice, promptly
followed (within three Business Days) by the delivery of a confirming Borrowing
Request, to the Swing Line Lender on or before 12:00 noon, New York time, on a
Business Day, the Borrower may from time to time irrevocably request that Swing
Line Loans be made by the Swing Line Lender in an aggregate minimum principal
amount of $200,000 and an integral multiple of $100,000. Each request by the
Borrower for a Swing Line Loan shall constitute a representation and warranty by
the Borrower that on the date of such request and (if different) the date of the
making of the Swing Line Loan, both immediately before and after giving effect
to such Swing Line Loan and the application
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of the proceeds thereof, the statements made in SECTION 5.2.1 are true and
correct. All Swing Line Loans shall be made as Base Rate Loans and shall not be
entitled to be converted into LIBO Rate Loans. The proceeds of each Swing Line
Loan shall be made available by the Swing Line Lender, by its close of business
on the Business Day telephonic notice is received by it as provided in the
preceding sentences, to the Borrower by wire transfer to the accounts the
Borrower shall have specified in its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more than four
full Business Days or (ii) after giving effect to any request for a
Swing Line Loan or a Revolving Loan the aggregate principal amount of
Revolving Loans and Swing Line Loans outstanding to the Swing Line
Lender, together with the Swing Line Lender's Percentage of all Letter
of Credit Outstandings, would exceed the Swing Line Lender's
Percentage of the Revolving Loan Commitment Amount, the Swing Line
Lender, at any time in its sole and absolute discretion, may request
each Lender that has a Revolving Loan Commitment, and each such
Lender, including the Swing Line Lender hereby agrees, to make a
Revolving Loan (which shall always be initially funded as a Base Rate
Loan) in an amount equal to such Lender's Percentage of the amount of
the Swing Line Loans ("REFUNDED SWING LINE LOANS") outstanding on the
date such notice is given. On or before 11:00 a.m. (New York time) on
the first Business Day following receipt by each Lender of a request
to make Revolving Loans as provided in the preceding sentence, each
such Lender (other than the Swing Line Lender) shall deposit in an
account specified by the Administrative Agent to the Lenders from time
to time the amount so requested in same day funds, whereupon such
funds shall be immediately delivered to the Swing Line Lender (and not
the Borrower) and applied to repay the Refunded Swing Line Loans. On
the day such Revolving Loans are made, the Swing Line Lender's
Percentage of the Refunded Swing Line Loans shall be deemed to be
paid. Upon the making of any Revolving Loan pursuant to this clause,
the amount so funded shall become due under such Lender's Revolving
Note and shall no longer be owed under the Swing Line Note. Each
Lender's obligation to make the Revolving Loans referred to in this
clause shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of any
Default; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Obligor; (iv) the acceleration
or maturity of any Loans or the termination of the Revolving Loan
Commitment after the making of any Swing Line
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Loan; (v) any breach of this Agreement by the Borrower or any other
Lender; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(c) In the event that (i) the Borrower or any Subsidiary is subject to any
bankruptcy or insolvency proceedings as provided in SECTION 8.1.9 or
(ii) the Swing Line Lender otherwise requests, each Lender with a
Revolving Loan Commitment shall acquire without recourse or warranty
an undivided participation interest equal to such Lender's Percentage
of any Swing Line Loan otherwise required to be repaid by such Lender
pursuant to the preceding clause by paying to the Swing Line Lender on
the date on which such Lender would otherwise have been required to
make a Revolving Loan in respect of such Swing Line Loan pursuant to
the preceding clause, in same day funds, an amount equal to such
Lender's Percentage of such Swing Line Loan, and no Revolving Loans
shall be made by such Lender pursuant to the preceding clause. From
and after the date on which any Lender purchases an undivided
participation interest in a Swing Line Loan pursuant to this clause,
the Swing Line Lender shall distribute to such Lender (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's participation interest is outstanding
and funded) its ratable amount of all payments of principal and
interest in respect of such Swing Line Loan in like funds as received;
PROVIDED, HOWEVER, that in the event such payment received by the
Swing Line Lender is required to be returned to the Borrower, such
Lender shall return to the Swing Line Lender the portion of any
amounts which such Lender had received from the Swing Line Lender in
like funds.
(d) Notwithstanding anything herein to the contrary, the Swing Line Lender
shall not be obligated to make any Swing Line Loans if it has elected
after the occurrence of a Default not to make Swing Line Loans and has
notified the Borrower in writing or by telephone of such election. The
Swing Line Lender shall promptly give notice to the Lenders of such
election not to make Swing Line Loans.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one (in the case of a conversion of LIBO
Rate Loans to Base Rate Loans) and three (in the case of a continuation of LIBO
Rate Loans or a conversion of Base Rate Loans into LIBO Rate Loans) nor more
than (in each case) five Business Days' notice that all, or any portion in an
aggregate minimum amount of $5,000,000 and an integral multiple of $1,000,000,
in the case of the
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continuation of, or conversion into, LIBO Rate Loans, or an aggregate minimum
amount of $1,000,000 and an integral multiple thereof, in the case of the
conversion into Base Rate Loans, (other than Swing Line Loans as provided in
CLAUSE (a) of SECTION 2.3.2) be, in the case of Base Rate Loans, converted into
LIBO Rate Loans or, in the case of LIBO Rate Loans, be converted into a Base
Rate Loan or continued as a LIBO Rate Loan (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three
Business Days before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); PROVIDED, HOWEVER, that (x) each such conversion
or continuation shall be pro rated among the applicable outstanding Loans of the
relevant Lenders, and (y) no portion of the outstanding principal amount of any
Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing.
SECTION 2.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrower; PROVIDED, HOWEVER,
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility; and PROVIDED, FURTHER,
HOWEVER, that such Lender shall cause such foreign branch, Affiliate or
international banking facility to comply with the applicable provisions of
CLAUSE (b) of SECTION 4.6 with respect to such LIBO Rate Loan. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of SECTION 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. ISSUANCE PROCEDURES. By delivering to the Administrative Agent
an Issuance Request on or before 12:00 noon, New York time, on a Business Day,
the Borrower may, from time to time irrevocably request, on not less than three
nor more than ten Business Days' notice (or such other notice as may be
acceptable to the Issuer in its sole discretion), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice prior to the then existing Stated Expiry Date of a Letter
of Credit (unless a shorter or longer notice period is acceptable to the Issuer
in
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its sole discretion), in the case of a request for the extension of the Stated
Expiry Date of a Letter of Credit, that the Issuer issue, or extend the Stated
Expiry Date of, as the case may be, an irrevocable Letter of Credit for the
Borrower's account or for the account of any wholly-owned Subsidiary of the
Borrower that is a signatory to the Subsidiary Guaranty and Subsidiary Security
Agreement and whose outstanding Capital Stock is pledged to the Administrative
Agent for the benefit of the Lenders pursuant to a Pledge Agreement, in such
form as may be requested by the Borrower and approved by the Issuer, solely for
the purposes described in SECTION 7.1.9. Notwithstanding anything to the
contrary contained herein or in any separate application for any Letter of
Credit, the Borrower hereby acknowledges and agrees that it shall be obligated
to reimburse the Issuer upon each Disbursement of a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such Letter of Credit
issued hereunder (whether the account party on such Letter of Credit is the
Borrower or a Subsidiary of the Borrower). Upon receipt of an Issuance Request,
the Administrative Agent shall promptly notify the Issuer and each Lender
thereof. Each Letter of Credit shall by its terms be stated to expire on a date
(its "STATED EXPIRY DATE") no later than the earlier to occur of (i) the
Revolving Loan Commitment Termination Date or (ii) in the case of standby
(including direct pay) Letters of Credit, one year from the date of its issuance
and, in the case of documentary Letters of Credit, 180 days from the date of its
issuance. The Issuer will make available to the beneficiary thereof the original
of each Letter of Credit which it issues hereunder.
SECTION 2.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage to make Revolving Loans, and the Issuer shall be deemed to have
irrevocably granted and sold to such Lender a participation interest in such
Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Revolving Loan Commitment Percentage, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrower in
accordance with SECTION 2.6.3. In addition, such Lender shall, to the extent of
its Percentage to make Revolving Loans, be entitled to receive a ratable portion
of the Letter of Credit fees payable pursuant to SECTION 3.3.3 with respect to
each Letter of Credit and of interest payable pursuant to SECTION 3.2 with
respect to any Reimbursement Obligation. To the extent that any Lender has
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reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrower or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. DISBURSEMENTS; CONVERSION TO REVOLVING LOANS. The Issuer
will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of any Letter of Credit issued by the Issuer, together
with notice of the date (the "DISBURSEMENT DATE") such payment shall be made
(each such payment, a "DISBURSEMENT"). Subject to the terms and provisions of
such Letter of Credit and this Agreement, the Issuer shall make such payment to
the beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon,
New York time, on the first Business Day following the Disbursement Date (the
"DISBURSEMENT DUE DATE"), the Borrower will reimburse the Administrative Agent,
for the account of the Issuer, for all amounts which the Issuer has disbursed
under such Letter of Credit, together with interest thereon at the rate per
annum otherwise applicable to Revolving Loans (made as Base Rate Loans) from and
including the Disbursement Date to but excluding the Disbursement Due Date and,
thereafter (unless such Disbursement is converted into a Base Rate Loan on the
Disbursement Due Date), at a rate per annum equal to the rate per annum then in
effect with respect to overdue Revolving Loans (made as Base Rate Loans)
pursuant to SECTION 3.2.2 for the period from the Disbursement Due Date through
the date of such reimbursement; PROVIDED, HOWEVER, that, if no Default shall
have then occurred and be continuing, unless the Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse the Issuer for the applicable Disbursement, then
the amount of the Disbursement shall be deemed to be a Revolving Loan
constituting a Base Rate Loan and following the giving of notice thereof by the
Administrative Agent to the Lenders, each Lender with a commitment to make
Revolving Loans (other than the Issuer) will deliver to the Issuer on the
Disbursement Due Date immediately available funds in an amount equal to such
Lender's Percentage of such Revolving Loan. Each conversion of Disbursement
amounts into Revolving Loans shall constitute a representation and warranty by
the Borrower that on the date of the making of such Revolving Loan all of the
statements set forth in SECTION 5.2.1 are true and correct.
SECTION 2.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT OBLIGATION")
of the Borrower under SECTION 2.6.2 to reimburse the Issuer with respect to each
Disbursement (including interest thereon) not converted into a Base Rate Loan
pursuant to SECTION 2.6.2, and, upon the failure of the Borrower
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to reimburse the Issuer and the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender's (to the extent it has a Revolving Loan
Commitment) obligation under SECTION 2.6.1 to reimburse the Issuer or fund its
Percentage of any Disbursement converted into a Base Rate Loan, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower or such
Lender, as the case may be, may have or have had against the Issuer or any such
Lender, including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the Issuer's
good faith opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; PROVIDED, HOWEVER, that after paying in full its Reimbursement
Obligation hereunder, nothing herein shall adversely affect the right of the
Borrower or such Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 2.6.4. DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default of the type described in SECTION 8.1.9 or,
with notice from the Administrative Agent acting at the direction of the
Required Lenders, upon the occurrence and during the continuation of any other
Event of Default,
(a) an amount equal to that portion of all Letter of Credit Outstandings
attributable to the then aggregate amount which is undrawn and
available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuer under such Letters
of Credit (notwithstanding that such amount may not in fact have been
so paid or disbursed); and
(b) upon notification by the Administrative Agent to the Borrower of its
obligations under this Section, the Borrower shall be immediately
obligated to reimburse the Issuer for the amount deemed to have been
so paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Events of Default giving rise to the deemed
disbursements
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hereunder shall have been cured or waived, the Administrative Agent shall return
to the Borrower all amounts then on deposit with the Administrative Agent
pursuant to this Section, together with accrued interest at the Federal Funds
Rate, which have not been applied to the satisfaction of such Obligations.
SECTION 2.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. The Borrower and, to
the extent set forth in SECTION 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal effect
of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal effect
of any instrument transferring or assigning or purporting to transfer
or assign a Letter of Credit or the rights or benefits thereunder or
the proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions required in
order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any document or
draft required in order to make a Disbursement under a Letter of
Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the Issuer in good faith (and not constituting gross negligence or willful
misconduct) shall be binding upon the Borrower, each Obligor and each such
Lender, and shall not put the Issuer under
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any resulting liability to the Borrower, any Obligor or any such Lender, as the
case may be.
SECTION 2.7. NOTES. Each Lender's Loans under a Commitment shall be
evidenced by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the applicable Commitment Amount.
All Swing Line Loans made by the Swing Line Lender shall be evidenced by a Swing
Line Note payable to the order of the Swing Line Lender in a maximum principal
amount equal to the Swing Line Loan Commitment Amount. The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any continuation of
such grid), which notations, if made, shall evidence, INTER ALIA, the date of,
the outstanding principal of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall be conclusive
and binding on the Borrower absent manifest error; PROVIDED, HOWEVER, that the
failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor.
SECTION 2.8. REGISTERED NOTES. (a) Any Non-U.S. Lender that could become
completely exempt from withholding of any Taxes in respect of payment of any
interest due to such Non-U.S. Lender under this Agreement if the Notes held by
such Lender were in registered form for U.S. Federal income tax purposes may
request the Borrower (through the Administrative Agent), and the Borrower agrees
(i) to exchange for any Notes held by such Lender, or (ii) to issue to such
Lender on the date it becomes a Lender, promissory notes(s) registered as
provided in CLAUSE (b) of this SECTION 2.8 (each, a "REGISTERED NOTE", to be in
substantially the form of EXHIBIT A-4 hereto). Registered Notes may not be
exchanged for Notes that are not Registered Notes.
(b) The Borrower shall maintain, or cause to be maintained, a register
(the "REGISTER") (which, at the request of the Borrower, shall be kept
by the Administrative Agent on behalf of the Borrower at no extra
charge to the Borrower at the address to which notices to the
Administrative Agent are to be sent under this Agreement) on which it
enters the name of the registered owner of the Non-U.S. Lender
Obligation(s) evidenced by a Registered Note.
(c) The Register shall be available for inspection by the Borrower and any
Lender at any reasonable time upon reasonable prior notice.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS; APPLICATION.
SECTION 3.1.1. REPAYMENTS AND PREPAYMENTS. The Borrower shall repay in full
the unpaid principal amount of each Loan upon the Stated Maturity Date therefor.
Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount
of any
(i) Loans (other than Swing Line Loans), PROVIDED, HOWEVER, that
(A) any such prepayment of the Term Loans shall be made PRO RATA
among Term Loans of the same type and if applicable, having
the same Interest Period of all Lenders that have made such
Term Loans, and any such prepayment of Revolving Loans shall
be made PRO RATA among the Revolving Loans of the same type
and, if applicable, having the same Interest Period of all
Lenders that have made such Revolving Loans;
(B) the Borrower shall comply with SECTION 4.4 in the event that
any LIBO Rate Loan is prepaid on any day other than the last
day of the Interest Period for such Loan;
(C) all such voluntary prepayments shall require at least three
but no more than five Business Days' prior written notice to
the Administrative Agent; and
(D) all such voluntary partial prepayments shall be, in the case
of LIBO Rate Loans, in an aggregate minimum amount of
$5,000,000 and an integral multiple of $1,000,000 and, in
the case of Base Rate Loans, in an aggregate minimum amount
of $1,000,000 and an integral multiple of $500,000; or
(ii) Swing Line Loans, PROVIDED that all such voluntary prepayments
shall require prior telephonic notice to the Swing Line Lender on
or before 1:00 p.m., New York time, on the day of such prepayment
(such
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notice to be confirmed in writing within 24 hours thereafter);
(b) shall, no later than one Business Day following the receipt of any Net
Disposition Proceeds, deliver to the Administrative Agent a
calculation of the amount of such Net Disposition Proceeds and,
subject to the following proviso, make a mandatory prepayment of the
Term Loans in an amount equal to 100% of such Net Disposition
Proceeds, to be applied as set forth in SECTION 3.1.2; PROVIDED, that,
at the option of the Borrower and so long as no Default shall have
occurred and be continuing, the Borrower may use or cause the
appropriate Subsidiary to use the Net Disposition Proceeds to pay
Restructuring Charges or to purchase assets useful in the business of
the Borrower and its Subsidiaries or to purchase a majority
controlling interest in a Person owning such assets or to increase any
such controlling interest already maintained by it (with such assets
or interests collectively referred to as "QUALIFIED ASSETS") within
365 days after the consummation (and with the Net Disposition
Proceeds) of such sale, conveyance or disposition, and in the event
the Borrower elects to exercise its right to purchase Qualified Assets
or pay Restructuring Charges with the Net Disposition Proceeds
pursuant to this clause, the Borrower shall deliver a certificate of
an Authorized Officer to the Administrative Agent within 30 days
following the receipt of Net Disposition Proceeds setting forth the
amount of the Net Disposition Proceeds which the Borrower expects to
use to purchase Qualified Assets or apply to a payment of
Restructuring Charges during such 365 day period; PROVIDED, FURTHER,
that the Borrower and its Subsidiaries shall only be permitted to pay
Restructuring Charges out of Net Disposition Proceeds and/or reinvest
Net Disposition Proceeds in Qualified Assets as follows:
(i) the maximum amount of Restructuring Charges paid with Net
Disposition Proceeds from January 26, 1996 through the Stated
Maturity Date shall not exceed $30,000,000;
(ii) the maximum amount of Net Disposition Proceeds invested in
Qualified Assets from the Amendment Effective Date through the
Stated Maturity Date shall not exceed $50,000,000 (and then only
to the extent permitted by SECTION 7.2.5); and
(iii)the maximum aggregate amount of Net Disposition Proceeds applied
as set forth in CLAUSES
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(b)(i) and (b)(ii) above shall not exceed $50,000,000 over the
term of this Agreement.
If and to the extent that the Borrower has elected to reinvest Net Disposition
Proceeds as permitted above, then on the date which is 365 days (in the case of
CLAUSE (c)(i) below) and 370 days (in the case of CLAUSE (c)(ii) below) after
the relevant sale, conveyance or disposition, the Borrower shall (i) deliver a
certificate of an Authorized Officer to the Administrative Agent certifying as
to the amount and use of such Net Disposition Proceeds actually used to purchase
Qualified Assets or pay Restructuring Charges and (ii) deliver to the
Administrative Agent, for application in accordance with this clause and SECTION
3.1.2, an amount equal to the remaining unused Net Disposition Proceeds;
(c) shall, concurrently with the receipt by Holdings of any Net Equity
Proceeds or the Borrower or any of its Subsidiaries of any Net Debt
Proceeds, deliver to the Administrative Agent a calculation of the
amount of such Net Debt Proceeds or Net Equity Proceeds, and no later
than 5 Business Days following the delivery of such calculation, make
a mandatory prepayment of the Term Loans in an amount equal to 75% of
Net Debt Proceeds and 50% of Net Equity Proceeds, as the case may be,
to be applied as set forth in SECTION 3.1.2; PROVIDED, that such 75%
of Net Debt Proceeds and 50% of Net Equity Proceeds shall be deposited
in a cash collateral account with the Administrative Agent upon
receipt pending application to the Loans pursuant to this clause;
(d) shall, within 60 days following the receipt by the Borrower or any of
its Subsidiaries of any Casualty Proceeds in excess of $1,000,000
(individually or in the aggregate over the course of a Fiscal Year),
make a mandatory prepayment of the Term Loans in an amount equal to
100% of such Casualty Proceeds, to be applied as set forth in SECTION
3.1.2; PROVIDED, that no mandatory prepayment of Casualty Proceeds
shall be required under this clause if (i) the Borrower informs the
Administrative Agent no later than 60 days following the occurrence of
the Casualty Event resulting in such Casualty Proceeds of its or its
Subsidiary's good faith intention to apply such Casualty Proceeds to
the rebuilding or replacement of such damaged, destroyed or condemned
assets or property and in fact uses such Casualty Proceeds to rebuild
or replace the damaged, destroyed or condemned asset or property
within 365 days following the receipt of such Casualty Proceeds, with
the amount of Casualty Proceeds unused after such 365 day period
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being applied to the Loans pursuant to SECTION 3.1.2; PROVIDED,
FURTHER, however, that at any time when any Default shall have
occurred and be continuing or Casualty Proceeds not applied as
provided above shall exceed $5,000,000, such Casualty Proceeds will be
deposited in an account maintained with the Administrative Agent for
disbursement at the request of the Borrower to pay for such rebuilding
or replacement;
(e) shall, on each date when any reduction in the Revolving Loan
Commitment Amount shall become effective, including pursuant to
SECTION 2.2 or SECTION 3.1.2, make a mandatory prepayment of Revolving
Loans and (if necessary) Swing Line Loans, and (if necessary) deposit
with the Administrative Agent cash collateral for Letter of Credit
Outstandings) in an aggregate amount equal to the excess, if any, of
the aggregate outstanding principal amount of all Revolving Loans,
Swing Line Loans and Letters of Credit Outstanding over the Revolving
Loan Commitment Amount as so reduced;
(f) shall, on the Stated Maturity Date and on each Quarterly Payment Date
occurring on or during any period set forth below, make a scheduled
repayment of the aggregate outstanding principal amount, if any, of
all Term Loans in an amount equal to the amount set forth below
opposite the Stated Maturity Date or such Quarterly Payment Date (as
such amounts may have otherwise been reduced pursuant to this
Agreement), as applicable:
<TABLE>
<CAPTION>
<S> <C>
07/12/97 through (and including)
04/25/98 $ 5,000,000
04/26/98 through (and including)
04/24/99 $10,000,000
04/25/99 through (and including)
12/28/02 $11,250,000
Stated Maturity Date for
Term Loans $11,250,000, or the then
outstanding principal amount of
all Term Loans, if different; and
</TABLE>
(g) shall, immediately upon any acceleration of the Stated Maturity Date
of any Loans or Obligations pursuant to SECTION 8.2 or SECTION 8.3,
repay all Loans and provide the
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Administrative Agent with cash collateral in an amount equal to the
Letter of Credit Outstandings, unless, pursuant to SECTION 8.3, only a
portion of all Loans and Obligations are so accelerated (in which case
the portion so accelerated shall be so prepaid or cash collateralized
with the Administrative Agent).
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by SECTION 4.4. No prepayment of
principal of any Revolving Loans or Swing Line Loans pursuant to CLAUSE (a) of
SECTION 3.1.1 shall cause a reduction in the Revolving Loan Commitment Amount or
the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. APPLICATION. (a) Subject to CLAUSE (b), each prepayment or
repayment of the principal of the Loans shall be applied, to the extent of such
prepayment or repayment, FIRST, to the principal amount thereof being maintained
as Base Rate Loans, and SECOND, to the principal amount thereof being maintained
as LIBO Rate Loans.
(b) Each voluntary prepayment of Term Loans and each prepayment of Term
Loans made pursuant to CLAUSES (b), (c) and (d) of SECTION 3.1.1 shall
be applied to the remaining Term Loan amortization payments required
pursuant to CLAUSE (f) of SECTION 3.1.1, in each case PRO RATA in
accordance with the amount of each such remaining Term Loan
amortization payment), until all such Term Loans have been paid in
full.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this SECTION 3.2.
SECTION 3.2.1. RATES. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that Loans
comprising a Borrowing accrue interest at a rate per annum:
(a) with respect to Revolving Loans and Term Loans,
(i) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Margin; and
(ii) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted)
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for such Interest Period plus the Applicable Margin; and
(b) with respect to Swing Line Loans, equal to the sum of the Alternate
Base Rate from time to time in effect plus the Applicable Margin
payable for Revolving Loans that are Base Rate Loans.
Prior to the Amendment Effective Date interest shall accrue and be payable on
Loans under (and as defined in) the Existing Credit Agreement at the rates set
forth in the Existing Credit Agreement. All LIBO Rate Loans shall bear interest
from and including the first day of the applicable Interest Period to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such LIBO Rate Loan.
SECTION 3.2.2. POST-MATURITY RATES. After the date any principal amount of
any Loan shall have become due and payable (whether on the Stated Maturity Date,
upon acceleration or otherwise), or any other monetary Obligation (other than
overdue Reimbursement Obligations which shall bear interest as provided in
SECTION 2.6.2) of the Borrower shall have become due and payable, the Borrower
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such amounts at a rate per annum equal to
(a) in the case of any overdue principal amount of Loans, overdue interest
thereon, overdue commitment fees or other overdue amounts owing in
respect of Loans or other obligations (or the related Commitments)
under a particular Tranche, the rate that would otherwise be
applicable to Base Rate Loans under such Tranche pursuant to
SECTION 3.2.1 plus 2%; and
(b) in the case of overdue monetary Obligations (other than as described
in CLAUSE (a)), the Alternate Base Rate plus 4%.
SECTION 3.2.3. PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date;
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(d) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall exceed three
months, on the third month anniversary of such Interest Period);
(e) with respect to any Base Rate Loans converted into LIBO Rate Loans on
a day when interest would not otherwise have been payable pursuant to
CLAUSE (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to SECTION 8.2 or SECTION 8.3, immediately upon
such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. FEES. The Borrower agrees to pay the fees set forth in this
SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for the period (including any portion thereof when any of the
Lender's Commitments are suspended by reason of the Borrower's inability to
satisfy any condition of ARTICLE V) commencing on January 26, 1996 and
continuing through the Revolving Loan Commitment Termination Date, a commitment
fee at the rate of the Applicable Commitment Fee Margin on such Lender's
Percentage of the average daily unused portion of the Revolving Loan Commitment
Amount (net of Letter of Credit Outstandings); PROVIDED, that prior to the
Amendment Effective Date, the commitment fee shall accrue based on the
"Revolving Loan Commitment Amount" and the Applicable Commitment Fee Margin, as
such terms are defined in the Existing Credit Agreement. Such commitment fees
shall be payable by the Borrower in arrears on each Quarterly Payment Date and
on the Revolving Loan Commitment Termination Date. The making of Swing Line
Loans by the Swing Line Lender shall constitute the usage of the Revolving Loan
Commitment with respect to the Swing Line Lender only and the commitment fees to
be paid by the Borrower to the Lenders (other than the Swing Line Lender) shall
be calculated and paid accordingly.
SECTION 3.3.2. ADMINISTRATIVE AGENT'S FEE. The Borrower agrees to pay to
the Administrative Agent, for its own account,
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the non-refundable fees in the amounts and on the dates set forth in the Fee
Letter.
SECTION 3.3.3. LETTER OF CREDIT FEE. The Borrower agrees to pay to the
Administrative Agent, for the PRO RATA account of the Issuer and each other
Lender that has a Revolving Loan Commitment, a Letter of Credit fee in an amount
equal to (a) with respect to each standby (including direct pay) Letter of
Credit, the Applicable Margin per annum for Revolving Loans that are maintained
as LIBO Rate Loans multiplied by the Stated Amount of each such Letter of
Credit, and (b) with respect to each documentary Letter of Credit, 0.5625% per
annum multiplied by the Stated Amount of each such Letter of Credit, such fees
being in each case payable quarterly in arrears on each Quarterly Payment Date.
The Borrower further agrees to pay to the Issuer for its own account on the date
of issuance of each Letter of Credit an issuance fee in an amount equal to the
greater of (x) $100 and (y) 1/5 of 1% per annum of the Stated Amount thereof.
SECTION 3.3.4. AMENDMENT FEE. The Borrower agrees to pay to the
Administrative Agent, for the account of each Lender (including Scotiabank) that
executes and delivers this Agreement the amount set forth opposite the name of
such Lender on SCHEDULE II hereto.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue, maintain or
convert any Loans as LIBO Rate Loans shall, upon such determination, forthwith
be suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist (with the date of such
notice being the "REINSTATEMENT DATE"), and (i) all LIBO Rate Loans previously
made by such Lender shall automatically convert into Base Rate Loans at the end
of the then current Interest Periods with respect thereto or sooner, if required
by such law or assertion and (ii) all Loans thereafter made by such Lender and
outstanding prior to the Reinstatement Date shall be made as Base Rate Loans,
with interest thereon
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being payable on the same date that interest is payable with respect to
corresponding Borrowing of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall have
determined that
(a) Dollar deposits in the relevant amount and for the relevant Interest
Period are not available to the Administrative Agent in its relevant
market; or
(b) by reason of circumstances affecting the Administrative Agent's
relevant market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under SECTION 2.3 and SECTION 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. The Borrower agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
Taxes, referred to in SECTION 4.6) arising after the date of any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority that results in such increase in cost or
reduction in amounts receivable. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
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SECTION 4.4. FUNDING LOSSES. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal amount of
any LIBO Rate Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to SECTION 3.1 or
otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance with the
Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate Loans
in accordance with the Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence
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of manifest error, be conclusive and binding on the Borrower. In determining
such amount, such Lender may use any method of averaging and attribution that it
(in its sole and absolute discretion) shall deem applicable.
SECTION 4.6. TAXES. (a) All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations and fees) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (i) Taxes imposed on
the Administrative Agent as a result of a present or former connection between
the applicable lending office of the Administrative Agent, and Taxes imposed on
any Lender as a result of a present or former connection between the applicable
lending office of a Lender, in each case and the jurisdiction of the
governmental authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or taken any action to enforce,
this Agreement) or (ii) any taxes to the extent that they are in effect and
would apply as of the date any Person becomes a Lender or Assignee Lender, or as
of the date that any Lender changes its applicable lending office, to the extent
such taxes become applicable as a result of such change (other than a change in
an applicable lending office made pursuant to SECTION 4.10 below) (such
non-excluded items being called "TAXES"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(iii)pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that
the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such
withholding or deduction been required, PROVIDED, HOWEVER, that
the Borrower shall not be required to increase any such amounts
payable to any Lender
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that is not organized under the laws of the United States or a
state thereof if such Lender fails to comply with the
requirements of CLAUSE (b) of SECTION 4.6.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay to such Person such additional amounts
(including any penalties, interest or expenses) as is necessary in order that
the net amount received by such Person (including any Taxes on such additional
amount) shall equal the amount of such Taxes paid by such Person.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender
listed on the signature pages hereof, or, in the case of an Assignee
Lender, on or prior to the date it becomes a Lender, execute and
deliver to the Borrower and the Administrative Agent, two or more (as
the Borrower or the Administrative Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001 or,
solely if such Lender is claiming exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", United States Internal
Revenue Service Forms W-8 and a certificate signed by a duly
authorized officer of such Lender representing that such Lender is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code, or
such other forms or documents (or successor forms or documents),
appropriately completed, as may be applicable to establish the extent,
if any, to which a payment to such Lender is exempt from withholding
or deduction of Taxes; and (ii) deliver to the Borrower and the
Administrative Agent two further copies of any such form or documents
on or before the date that any such form or document expires or
becomes obsolete and after the occurrence of any event requiring a
change in the most recent such form or document previously delivered
by it to the Borrower.
(c) If the Borrower determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender
or the Administrative Agent, the
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relevant Lender or the Administrative Agent, as applicable, shall
cooperate with the Borrower in challenging such Tax at the Borrower's
expense if requested by the Borrower.
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes, each Letter of Credit or any other Loan Document shall be
made by the Borrower to the Administrative Agent for the PRO RATA account of the
Lenders entitled to receive such payment. All such payments required to be made
to the Administrative Agent shall be made, without setoff, deduction or
counterclaim, not later than 12:00 noon, New York time, on the date due, in same
day or immediately available funds, to such account as the Administrative Agent
shall specify from time to time by notice to the Borrower. Funds received after
that time shall be deemed to have been received by the Administrative Agent on
the next succeeding Business Day. The Administrative Agent shall promptly remit
in same day funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan, 365 days or, if appropriate, 366 days). Whenever
any payment to be made shall otherwise be due on a day which is not a Business
Day, such payment shall (except as otherwise required by CLAUSE (c) of the
definition of the term "INTEREST PERIOD") be made on the next succeeding
Business Day and such extension of time shall be included in computing interest
and fees, if any, in connection with such payment.
SECTION 4.8. SHARING OF PAYMENTS. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligation (other than
pursuant to the terms of SECTIONS 4.3, 4.4 and 4.5) in excess of its PRO RATA
share of payments then or therewith obtained by all Lenders entitled thereto,
such Lender shall purchase from the other Lenders such participation in Credit
Extensions made by them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery ratably with each of them; PROVIDED,
HOWEVER, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to
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such selling Lender's ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
TO
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(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to SECTION 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. SETOFF. Each Lender shall, upon the occurrence of any Default
described in CLAUSES (a) through (d) of SECTION 8.1.9 or, with the consent of
the Required Lenders, upon the occurrence of any other Event of Default, have
the right to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Borrower
hereby grants to each Lender a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with or otherwise held by such Lender; PROVIDED, HOWEVER,
that any such appropriation and application shall be subject to the provisions
of SECTION 4.8. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such Lender;
PROVIDED, HOWEVER, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
SECTION 4.10. MITIGATION. Each Lender agrees that if it makes any demand
for payment under SECTION 4.3, 4.4, 4.5, or 4.6,
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or if any adoption or change of the type described in SECTION 4.1 shall occur
with respect to it, it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under SECTION 4.3, 4.4, 4.5,
or 4.6, or would eliminate or reduce the effect of any adoption or change
described in SECTION 4.1.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. INITIAL CREDIT EXTENSION. The obligations of (i) the Existing
Lenders to continue Existing Revolving Loans, Existing Swing Line Loans and
Existing Term-A Loans as Loans under this Agreement, (ii) the Issuer to continue
Existing Letters of Credit as Letters of Credit under this Agreement and (iii)
the Lenders to fund the Incremental Term Loans hereunder shall be subject to the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this SECTION 5.1.
SECTION 5.1.1. RESOLUTIONS, ETC. The Administrative Agent shall have
received from each Obligor a certificate, dated the date of the initial Credit
Extension hereunder, of its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force and effect
authorizing the execution, delivery and performance of this Agreement,
the Notes and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of those of its officers authorized to
act with respect to this Agreement, the Notes and each other Loan
Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Obligor canceling or
amending such prior certificate.
SECTION 5.1.2. AFFIRMATION AND CONSENT. The Administrative Agent shall have
received an affirmation and consent in form and substance satisfactory to it
executed and delivered by an Authorized Officer of each Obligor (other than the
Borrower) under the Existing Credit Agreement and related Loan Documents.
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SECTION 5.1.3. CLOSING DATE CERTIFICATE. The Administrative Agent shall
have received, with counterparts for each Lender, the Closing Date Certificate,
substantially in the form of EXHIBIT D hereto, dated the date of the initial
Credit Extension hereunder and duly executed and delivered by the chief
executive, financial or accounting (or equivalent) Authorized Officer of the
Borrower, in which certificate the Borrower shall agree and acknowledge that the
statements made therein shall be deemed to be true and correct representations
and warranties of the Borrower made as of such date under this Agreement, and,
at the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.4. DELIVERY OF NOTES. The Administrative Agent shall have
received, for the account of each Lender, its Notes, issued (in the case of
Existing Lenders) in substitution and exchange for, and not in satisfaction of,
the Revolving Notes and Term-A Notes delivered under (and as defined in) the
Existing Credit Agreement, duly executed and delivered by the Borrower.
SECTION 5.1.5. PREPAYMENT OF TERM-B AND TERM-C LOANS, ACCRUED INTEREST AND
FEES. The outstanding principal amount of all Term-B Loans and all Term-C Loans
(as such terms are defined in the Existing Credit Agreement), together with all
interest and fees owing under the terms of the Existing Credit Agreement in
respect of all outstanding Loans (as defined in the Existing Credit Agreement)
and all fees (including commitment fees and fees payable in respect of Letters
of Credit) accrued through the date hereof and other amounts due and payable
with respect thereto (including under Section 4.4 of the Existing Credit
Agreement), shall have been paid in full.
SECTION 5.1.6. AMENDMENTS TO EXISTING MORTGAGES. The Administrative Agent
shall have received amendments, in form and substance satisfactory to it, to
each Mortgage that was filed against real property of the Borrower or any of its
Subsidiaries pursuant to the terms of the Existing Credit Agreement, executed
and delivered by the applicable mortgagor thereunder.
SECTION 5.1.7. CLOSING FEES, EXPENSES, ETC. The Administrative Agent shall
have received for its own account, or for the account of each Lender, as the
case may be, all fees, costs and expenses due and payable pursuant to SECTIONS
3.3 and 10.3, if then invoiced.
SECTION 5.1.8. CONTINUATION OF CERTAIN EXISTING LOANS/COMMITMENTS. The
Administrative Agent shall have received evidence satisfactory to it that the
Existing Lenders with Revolving Loan Commitments and those Lenders holding
Existing
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Term-A Loans (or, in place of one or more such Existing Lenders, other financial
institutions satisfactory to the Administrative Agent and the Borrower (such
consent not to be unreasonably withheld)), shall have committed to continue
hereunder all Existing Term-A Loans and Existing Revolving Loans and Revolving
Loan Commitments under (and as defined in) the Existing Credit Agreement in the
same respective amounts under this Agreement (in the case of the Revolving Loan
Commitment Amount, however, after giving effect to the decrease in the Revolving
Loan Commitment Amount effectuated by this Agreement).
SECTION 5.1.9. OPINION OF COUNSEL. The Administrative Agent shall have
received an opinion letter, dated the date of the making of the Incremental Term
Loans and addressed to the Administrative Agent and all Lenders, from Thomas E.
O'Neill, general counsel to the Borrower and each Obligor, in form and substance
satisfactory to the Administrative Agent.
SECTION 5.1.10. AUDITED FINANCIALS. The Lenders shall have received the
audited financial statements and a Compliance Certificate, in each case in
respect of the 1996 Fiscal Year (as required pursuant to CLAUSES (b) and (c) of
SECTION 7.1.1), the results of which shall be satisfactory to the Lenders.
SECTION 5.2. ALL CREDIT EXTENSIONS. The obligation of each Lender and the
Issuer to make any Credit Extension (including the initial Credit Extension
hereunder, but subject to CLAUSES (b) and (c) of SECTION 2.3.2) shall be subject
to the satisfaction of each of the conditions precedent set forth in this
SECTION 5.2.
SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before and
after giving effect to any Credit Extension the following statements shall be
true and correct:
(a) the representations and warranties set forth in ARTICLE VI and in each
other Loan Document shall, in each case, be true and correct in all
material respects with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) no material adverse development shall have occurred in any litigation,
action, proceeding, labor controversy, arbitration or governmental
investigation disclosed pursuant to SECTION 6.7;
(c) the sum of (x) the aggregate outstanding principal amount of all
Revolving Loans and Swing Line Loans and
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(y) all Letter of Credit Outstandings does not exceed the Revolving
Loan Commitment Amount; and
(d) no Default hereunder (and, on the Amendment Effective Date, no Default
under (and as defined in) the Existing Credit Agreement) shall have
then occurred and be continuing.
SECTION 5.2.2. CREDIT EXTENSION REQUEST. The Administrative Agent shall
have received a Borrowing Request, if Loans (other than Swing Line Loans) are
being requested, or an Issuance Request, if a Letter of Credit is being issued
or extended. Each of the delivery of a Borrowing Request or Issuance Request and
the acceptance by the Borrower of the proceeds of such Credit Extension shall
constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds thereof) the statements
made in SECTION 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative Agent to
enter into this Agreement, continue the Existing Loans as Loans hereunder,
continue the Existing Letters of Credit as Letters of Credit hereunder and to
make Credit Extensions hereunder, each of Holdings and the Borrower represents
and warrants unto the Administrative Agent, the Issuer and each Lender as set
forth in this ARTICLE VI.
SECTION 6.1. ORGANIZATION, ETC. Each of Holdings, the Borrower and each of
the Borrower's Subsidiaries (a) is a corporation validly organized and existing
and in good standing under the laws of the State of its incorporation, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business requires such qualification,
except to the extent that the failure to qualify would not reasonably be
expected to result in a Material Adverse Effect, and (b) has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to (i) enter into and perform its Obligations in connection with the
Keebler Transaction, the Sunshine Transaction and under this Agreement, the
Notes and each other Loan Document to which it is a party and (ii) own and hold
under lease its property and to conduct its business substantially as currently
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conducted by it except, in the case of this CLAUSE (b)(ii), where the failure
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Obligor of each Loan Document executed or
to be executed by it and the Borrower's and, where applicable, each such other
Obligor's participation in the consummation of the Keebler Transaction and the
Sunshine Transaction are within the Borrower's and each such Obligor's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene the Borrower's or any such Obligor's Organic Documents;
(b) contravene any contractual restriction, law or governmental regulation
or court decree or order binding on or affecting Holdings, the
Borrower or any such Obligor, where such contravention, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect; or
(c) result in, or require the creation or imposition of, any Lien on any
of the Borrower's or any other Obligor's properties, except pursuant
to the terms of a Loan Document.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by the Borrower or any other Obligor of this Agreement,
the Notes or any other Loan Document to which it is a party, or for the
Borrower's and each such other Obligor's participation in the consummation of
the Keebler Transaction or the Sunshine Transaction, except as have been duly
obtained or made and are in full force and effect or those which the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect. Neither Holdings, the Borrower nor any of the Borrower's Subsidiaries is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
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SECTION 6.4. VALIDITY, ETC. This Agreement constitutes, and the Notes and
each other Loan Document executed by the Borrower will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of the
Borrower enforceable in accordance with their respective terms; and each Loan
Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its terms, in each
case with respect to this SECTION 6.4 subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
SECTION 6.5. FINANCIAL INFORMATION. The
(a) audited consolidated balance sheet of the Acquired Businesses as at
December 30, 1995 and the related consolidated statements of earnings
and cash flow;
(b) audited consolidated balance sheet of Sunshine as at March 31, 1996
and the related consolidated statements of earnings and cash flow; and
(c) the audited consolidated balance sheet of the Borrower and its
Subsidiaries and related consolidated statement of earnings and cash
flow, as at December 28, 1996;
copies of which have been furnished to the Administrative Agent and each Lender,
have, in each case, been prepared in accordance with GAAP consistently applied,
and present fairly the consolidated financial condition of the corporations
covered thereby as at the dates thereof and the results of their operations for
the periods then ended.
SECTION 6.6. NO MATERIAL ADVERSE CHANGE. Since December 28, 1996, there has
been no material adverse change in the financial condition, operations, assets,
business or properties of the Borrower and its Subsidiaries, taken as a whole.
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC. There is no pending or,
to the knowledge of the Borrower, threatened litigation, action, proceeding,
labor controversy arbitration or governmental investigation affecting any
Obligor, or any of their respective properties, businesses, assets or revenues,
which
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(a) could reasonably be expected to result in a Material Adverse Effect, or (b)
purports to affect the legality, validity or enforceability of the Keebler
Acquisition, the Merger, the Sunshine Acquisition, the Equity Contribution, the
issuance of the Subordinated Notes, this Agreement, the Notes or any other Loan
Document, except as disclosed in ITEM 6.7 ("Litigation") of the Disclosure
Schedule.
SECTION 6.8. SUBSIDIARIES. Neither Holdings nor the Borrower has any
Subsidiaries, except those Subsidiaries
(a) which are identified in ITEM 6.8 ("Existing Subsidiaries") of the
Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance with SECTION
7.2.5 or 7.2.8.
SECTION 6.9. OWNERSHIP OF PROPERTIES. The Borrower and each of its
Subsidiaries owns good title to all of its properties and assets (other than
insignificant properties and assets), real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens or material
claims (including material infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to SECTION
7.2.3.
SECTION 6.10. TAXES. Each of Holdings, the Borrower and each of the
Borrower's Subsidiaries has filed all Federal, State and other material tax
returns and reports required by law to have been filed by it and has paid all
taxes and governmental charges thereby shown to be owing, except any such taxes
or charges which are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.
SECTION 6.11. PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of the Existing Credit Agreement and prior to the date of any Credit Extension
hereunder, no Pension Plan has been terminated that has resulted in a liability
to the Borrower of more than $5,000,000, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA in excess of $5,000,000. No condition exists or
event or transaction has occurred with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by the Borrower of any
material liability, fine or penalty other than such condition, event or
transaction which would not reasonably be expected to have a
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Material Adverse Effect. Except as disclosed in ITEM 6.11 ("Employee Benefit
Plans") of the Disclosure Schedule, since the date of the last financial
statement the Borrower has not materially increased any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Subtitle B of Title I
of ERISA.
SECTION 6.12. ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM 6.12
("Environmental Matters") of the Disclosure Schedule or as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying groundwater) owned
or leased by the Borrower or any of its Subsidiaries have been, and
continue to be, owned or leased by the Borrower and its Subsidiaries
in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or threatened
(i) written claims, complaints, notices or requests for information
received by the Borrower or any of its Subsidiaries with respect
to any alleged violation of any Environmental Law, or
(ii) written complaints, notices or inquiries to the Borrower or any
of its Subsidiaries regarding potential liability under any
Environmental Law;
(c) to the best knowledge of the Borrower, there have been no Releases of
Hazardous Materials at, on or under any property now or previously
owned or leased by the Borrower or any of its Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
or desirable for their businesses;
(e) no property now or previously owned or leased by the Borrower or any
of its Subsidiaries is listed or, to the knowledge of the Borrower or
any of its Subsidiaries, proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
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(f) to the best knowledge of the Borrower, there are no underground
storage tanks, active or abandoned, including petroleum storage tanks,
on or under any property now or previously owned or leased by the
Borrower or any of its Subsidiaries;
(g) the Borrower and its Subsidiaries have not directly transported or
directly arranged for the transportation of any Hazardous Material to
any location (i) which is listed or to the knowledge of the Borrower
or any of its Subsidiaries, proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state list, or (ii) which is the subject of federal, state or local
enforcement actions or other investigations;
(h) to the best knowledge of the Borrower, there are no polychlorinated
biphenyls or friable asbestos present in a manner or condition at any
property now or previously owned or leased by the Borrower or any
Subsidiary of the Borrower; and
(i) to the best knowledge of the Borrower, no conditions exist at, on or
under any property now or previously owned or leased by the Borrower
or any of its Subsidiaries which, with the passage of time, or the
giving of notice or both, would give rise to liability under any
Environmental Law.
SECTION 6.13. REGULATIONS G, U AND X. Neither Holdings nor the Borrower is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Credit Extensions will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Exchange Act or any "margin stock". Terms for which meanings are
provided in F.R.S. Board Regulation G, U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.14. ACCURACY OF INFORMATION. All material factual information
concerning the financial condition, operations or prospects of Holdings, the
Borrower and the Borrower's Subsidiaries heretofore or contemporaneously
furnished by or on behalf of Holdings or the Borrower in writing to the
Administrative Agent, the Issuer or any Lender for purposes of or in connection
with the Existing Credit Agreement, this Agreement or any transaction
contemplated thereby or hereby or with respect to the Keebler Transaction or the
Sunshine Transaction (including such information contained in each Bank
Confidential Offering Memorandum) is, and all other such factual information
hereafter
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furnished by or on behalf of Holdings or the Borrower to the Administrative
Agent, the Issuer or any Lender will be, true and accurate in every material
respect on the date as of which such information is dated or certified and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
Any term or provision of this section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made herein
with respect thereto; PROVIDED, HOWEVER, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
each of Holdings and the Borrower has reviewed such factual matters and nothing
has come to its attention in the context of such review which would lead it to
believe that such factual matters were not or are not true and correct in all
material respects or that such factual matters omit to state any material fact
necessary to make such assumptions, estimates, projections or opinions not
misleading in any material respect.
SECTION 6.15. SENIORITY OF OBLIGATIONS, ETC. The Borrower has the power and
authority to incur the Indebtedness evidenced by the Subordinated Notes as
provided for under each Subordinated Note Indenture and has (or will have) duly
authorized, executed and delivered each Subordinated Note Indenture, as
applicable. The Borrower has (or will have) issued, pursuant to due
authorization, the Subordinated Notes under each Subordinated Note Indenture.
Once executed and delivered by the Borrower, each Subordinated Note Indenture
will constitute the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing. The
subordination provisions of the Subordinated Notes and contained in each
Subordinated Note Indenture will be enforceable against the holders of the
Subordinated Notes by the holder of any "Senior Indebtedness", "Senior Debt" or
similar term referring to the Obligations, as applicable in such Subordinated
Note Indenture, which has not effectively waived the benefits thereof. All
monetary Obligations, including those to pay principal of and interest
(including post-petition interest, whether or not permitted as a claim) on the
Loans and Reimbursement Obligations, and fees and expenses in connection
therewith, constitute "Senior Indebtedness", "Senior Debt" or similar term
referring to the
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Obligations, as applicable in such Subordinated Note Indenture, and all such
Obligations are entitled to the benefits of the subordination created by such
Subordinated Note Indenture. The Borrower acknowledges that the Administrative
Agent and each Lender is entering into this Agreement, and is extending its
Commitments, in reliance upon the subordination provisions of (or to be
contained in) each Subordinated Note Indenture, the Subordinated Notes and this
Section.
SECTION 6.16. SOLVENCY. The Keebler Transaction and the Sunshine
Transaction (including the incurrence of the Credit Extensions hereunder, the
issuance and sale of the Subordinated Notes, the incurrence by the Borrower of
the Indebtedness represented by the Notes and the Subordinated Notes, the
execution and delivery by Holdings and the Subsidiary Guarantors of the Holdings
Guaranty and the Subsidiary Guaranty and the application of the proceeds of the
Credit Extensions and loans under the Subordinated Notes), will not involve or
result in any fraudulent transfer or fraudulent conveyance under the provisions
of Section 548 of the Bankruptcy Code (11 U.S.C. Section 101 ET SEQ., as from
time to time hereafter amended, and any successor or similar statute) or any
applicable state law respecting fraudulent transfers or fraudulent conveyances.
After giving effect to the Keebler Transaction and the Sunshine Transaction,
each of the Borrower, Holdings and the Subsidiary Guarantors is Solvent.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. The Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, the Borrower will perform the
obligations set forth in this SECTION 7.1.
SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. The Borrower
will furnish, or will cause to be furnished, to each Lender, the Issuer and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower (or, if the Borrower is required to file such information on
a Form 10-Q with the Securities and Exchange Commission, promptly
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following such filing), a consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such Fiscal Quarter, together
with the related consolidated statement of earnings and cash flow for
such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter
(it being understood that the foregoing requirement may be satisfied
by delivery of the Borrower's report to the Securities and Exchange
Commission on Form 10-Q), certified by the chief financial Authorized
Officer of the Borrower;
(b) as soon as available and in any event within 120 days after the end of
each Fiscal Year of the Borrower (or, if the Borrower is required to
file such information on a Form 10-K with the Securities and Exchange
Commission, promptly following such filing), a copy of the annual
audit report for such Fiscal Year for the Borrower and its
Subsidiaries, including therein a consolidated balance sheet for the
Borrower and its Subsidiaries as of the end of such Fiscal Year,
together with the related consolidated statement of earnings and cash
flow of the Borrower and its Subsidiaries for such Fiscal Year (it
being understood that the foregoing requirement may be satisfied by
delivery of the Borrower's report to the Securities and Exchange
Commission on Form 10-K), in each case certified (without any
Impermissible Qualification) by Coopers & Lybrand or another "Big Six"
firm of independent public accountants, together with a certificate
from such accountants to the effect that, in making the examination
necessary for the signing of such annual report by such accountants,
they have not become aware of any Default that has occurred and is
continuing, or, if they have become aware of such Default, describing
such Default and the steps, if any, being taken to cure it;
(c) together with the delivery of the financial information required
pursuant to CLAUSES (a) and (b), a Compliance Certificate, in
substantially the form of EXHIBIT E, executed by the chief financial
Authorized Officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Administrative Agent) compliance with the
financial covenants set forth in SECTION 7.2.4;
(d) as soon as possible and in any event within three Business Days after
obtaining knowledge of the occurrence of each Default, a statement of
the chief financial Authorized Officer of the Borrower setting forth
details of such
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Default and the action which the Borrower has taken and proposes to
take with respect thereto;
(e) as soon as possible and in any event within five Business Days after
(x) the occurrence of any material adverse development with respect to
any litigation, action, proceeding, or labor controversy described in
SECTION 6.7 and the action which the Borrower has taken and proposes
to take with respect thereto or (y) the commencement of any labor
controversy, litigation, action, proceeding of the type described in
SECTION 6.7, notice thereof and of the action which the Borrower has
taken and proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of all reports
and registration statements which Holdings, the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(g) as soon as practicable after the chief financial officer or the chief
executive officer of the Borrower or a member of the Borrower's
Controlled Group becomes aware of (i) formal steps in writing to
terminate any Pension Plan or (ii) the occurrence of any event with
respect to a Pension Plan which, in the case of (i) or (ii), could
reasonably be expected to result in a contribution to such Pension
Plan by (or a liability to) the Borrower or a member of the Borrower's
Controlled Group in excess of $5,000,000, (iii) the failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA,
(iv) the taking of any action with respect to a Pension Plan which
could reasonably be expected to result in the requirement that the
Borrower furnish a bond to the PBGC or such Pension Plan or (v) any
material increase in the contingent liability of the Borrower with
respect to any post-retirement Welfare Plan benefit, notice thereof
and copies of all documentation relating thereto;
(h) promptly upon receipt or delivery (as the case may be) thereof, all
material notices or reports required to be delivered under the Keebler
Purchase Agreement or the Sunshine Purchase Agreement, including
copies of the Net Current Assets Schedule (under the Keebler Purchase
Agreement), as defined in clause (b) of Section 1.3 of the Keebler
Purchase Agreement and any reports or notices otherwise delivered
pursuant to such Sections;
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(i) promptly following the delivery or receipt, as the case may be, of any
material written notice or communication pursuant to or in connection
with any Subordinated Note Indenture or any of the Subordinated Notes,
a copy of such notice or communication; and
(j) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as
any Lender or the Issuer through the Administrative Agent may from
time to time reasonably request.
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will cause
each of its Subsidiaries to, comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include (without
limitation):
(a) the maintenance and preservation of its corporate existence and
qualification as a foreign corporation, except where the failure to so
qualify could not reasonably be expected to have a Material Adverse
Effect; and
(b) the payment, before the same become delinquent, of all material taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent being contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION 7.1.3. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause
each of its Subsidiaries to, maintain, preserve, protect and keep its properties
(other than insignificant properties) in good repair, working order and
condition (ordinary wear and tear excepted), and make necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless the Borrower determines
in good faith that the continued maintenance of any of its properties is no
longer economically desirable.
SECTION 7.1.4. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its properties and business against such
casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses and will, upon request of the
Administrative Agent, furnish to the Issuer and each Lender at reasonable
intervals a certificate of an Authorized Officer of the Borrower setting forth
the nature and
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extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section.
SECTION 7.1.5. BOOKS AND RECORDS. The Borrower will, and will cause each of
its Subsidiaries to, keep books and records which accurately reflect in all
material respects all of its business affairs and transactions and permit the
Administrative Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
to visit all of its offices, to discuss its financial matters with its officers
and independent public accountant (and the Borrower hereby authorizes such
independent public accountant to discuss the Borrower's financial matters with
the Issuer and each Lender or its representatives whether or not any
representative of the Borrower is present) and to examine, and photocopy
extracts from, any of its books or other corporate records.
SECTION 7.1.6. ENVIRONMENTAL COVENANT. The Borrower will and will cause
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in compliance
with all Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith,
and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply
with the terms of this clause could not reasonably be expected to have
a Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of all
written claims, complaints, notices or inquiries relating to the
condition of its facilities and properties or compliance with
Environmental Laws which relate to environmental matters which would
have, or would reasonably be expected to have, a Material Adverse
Effect, and promptly cure and have dismissed with prejudice any
material actions and proceedings relating to compliance with
Environmental Laws, except to the extent being diligently contested in
good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP have been set aside on its books; and
(c) provide such information and certifications which the Administrative
Agent may reasonably request from time to time to evidence compliance
with this SECTION 7.1.6.
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SECTION 7.1.7. FUTURE SUBSIDIARIES. Upon any Person becoming a Subsidiary
of the Borrower, or upon the Borrower or any Subsidiary acquiring additional
Capital Stock of any existing Subsidiary (other than the Designated Subsidiaries
that are not-for-profit corporations and Receivables Co.), the Borrower shall
notify the Administrative Agent of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to execute and
deliver to the Administrative Agent, with counterparts for each
Lender, a supplement to the Subsidiary Guaranty and a supplement to
the Subsidiary Security Agreement (and, if such Subsidiary owns any
real property having a value as determined in good faith by the
Administrative Agent in excess of $5,000,000, a Mortgage (other than,
in the case of Sunshine, the Exempted Properties), together with
acknowledgment copies of Uniform Commercial Code financing statements
(form UCC-1) executed and delivered by the Subsidiary naming the
Subsidiary as the debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, filed under the
Uniform Commercial Code and any other applicable recording statutes,
in the case of real property, of all jurisdictions as may be necessary
or, in the opinion of the Administrative Agent, desirable to perfect
the security interest of the Administrative Agent pursuant to the
Subsidiary Security Agreement or a Mortgage, as the case may be; and
(b) the Borrower shall promptly deliver, or cause to be delivered, to the
Administrative Agent under a Pledge Agreement (or a supplement
thereto) certificates (if any) representing all of the issued and
outstanding shares of Capital Stock of such Subsidiary owned by the
Borrower or any Subsidiary of the Borrower, as the case may be, along
with undated stock powers for such certificates, executed in blank,
or, if any securities subject thereto are uncertificated securities,
confirmation and evidence satisfactory to the Administrative Agent
that appropriate book entries have been made in the relevant books or
records of a financial intermediary or the issuer of such securities,
as the case may be, under applicable law resulting in the perfection
of the security interest granted in favor of the Administrative Agent
pursuant to the terms of a Pledge Agreement;
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Administrative Agent, as the Administrative Agent
may reasonably require; PROVIDED, that notwithstanding the foregoing, no
Non-U.S. Subsidiary shall be required to execute and deliver a Mortgage, a
supplement to the
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Subsidiary Guaranty or a supplement to the Security Agreement, nor will the
Borrower or any Subsidiary of the Borrower be required to deliver in pledge
pursuant to a Pledge Agreement in excess of 65% of the total combined voting
power of all classes of Capital Stock of a Non-U.S. Subsidiary entitled to vote,
if the Borrower has delivered evidence satisfactory to the Administrative Agent
that such actions would result in material adverse tax consequences to the
Borrower and its Subsidiaries (after giving effect to the utilization of any
available tax credits).
SECTION 7.1.8. FUTURE LEASED PROPERTY AND FUTURE ACQUISITIONS OF REAL
PROPERTY. (a) Prior to entering into any new lease of real property or renewing
any existing lease of real property, the Borrower shall, and shall cause each of
its Subsidiaries to, use its (and their) best efforts (which shall not require
the expenditure of cash or the making of any material concessions under the
relevant lease) to deliver to the Administrative Agent a Waiver executed by the
lessor of any real property that is to be leased by the Borrower or such
Subsidiary for a term in excess of one year in any state which by statute grants
such lessor a "landlord's" (or similar) Lien which is superior to the
Administrative Agent's, to the extent the value of any personal property of the
Borrower or its Subsidiaries to be held at such leased property exceeds (or it
is anticipated that the value of such personal property will, at any point in
time during the term of such leasehold term, exceed) $5,000,000.
(b) In the event that the Borrower or any of its Subsidiaries shall acquire
any real property having a value as determined in good faith by the
Administrative Agent in excess of $5,000,000 (other than in the case of
Sunshine, the Exempted Properties), the Borrower or the applicable Subsidiary
shall, promptly after such acquisition, execute a Mortgage and provide the
Administrative Agent with
(i) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such Mortgage as may
be necessary or, in the reasonable opinion of the Administrative
Agent, desirable effectively to create a valid, perfected first
priority Lien, subject to Liens permitted by SECTION 7.2.3,
against the properties purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor of the
Administrative Agent and the Lenders in amounts and in form and
substance and issued by insurers, reasonably satisfactory to the
Administrative Agent, with respect to the property purported to
be covered by such Mortgage,
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insuring that title to such property is marketable and that the
interests created by the Mortgage constitute valid first Liens
thereon free and clear of all defects and encumbrances other than
as approved by the Administrative Agent, and such policies shall
also include a revolving credit endorsement and such other
endorsements as the Administrative Agent shall request and shall
be accompanied by evidence of the payment in full of all premiums
thereon; and
(iii)such other approvals, opinions, or documents as the
Administrative Agent may reasonably request.
SECTION 7.1.9. USE OF PROCEEDS, ETC. The Borrower shall apply the proceeds
of the Credit Extensions made on and following the Amendment Effective Date
(a) in the case of Revolving Loans,
(i) after giving effect to the making of the Incremental Term Loans,
to repay the aggregate principal amount of the Term-B Loans and
Term-C Loans outstanding on the Amendment Effective Date, in an
amount not to exceed $45,000,000;
(ii) to pay transaction costs, fees and expenses associated with the
effectiveness of this Agreement; and
(iii)for working capital and general corporate purposes of the
Borrower and its Subsidiaries; and
(b) in the case of Letters of Credit, for issuing documentary and standby
(including direct pay) Letters of Credit for working capital and
general corporate purposes of the Borrower and certain of its
Subsidiaries, as described in SECTION 2.6; and
(c) in the case of Incremental Term Loans, to refinance a portion of the
aggregate principal amount of Term-B Loans and Term-C Loans
outstanding on the Amendment Effective Date.
SECTION 7.1.10. BORROWER PLEDGE AGREEMENT. The Borrower covenants and
agrees that, in its capacity as a Pledged Share Issuer under (and as defined in)
the Holdings Pledge Agreement, the Borrower agrees that it will cooperate in all
reasonable respects necessary to enable the Administrative Agent to exercise its
rights and remedies under the terms of the Holdings Pledge Agreement and agrees
to comply with the last sentence of Section 4.2 of the Holdings Pledge
Agreement.
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SECTION 7.1.11. HEDGING OBLIGATIONS. The Borrower shall maintain in a
notional amount equal to at least 50% of the outstanding principal amount of the
Term Loans incurred on January 26, 1996 pursuant to (and as defined in) the
Original Agreement an interest rate swap, cap, collar or similar arrangement on
the terms contained in the Rate Protection Agreement that it entered into
pursuant to Section 7.1.11 of the Original Agreement (or such other terms as
shall be reasonably satisfactory to the Administrative Agent) through January
26, 1999.
SECTION 7.2. NEGATIVE COVENANTS. The Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated, all Letters of Credit have terminated or expired and all
Obligations have been paid and performed in full, the Borrower will perform the
obligations set forth in this SECTION 7.2.
SECTION 7.2.1. BUSINESS ACTIVITIES. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except
business activities of the type in which the Borrower and its Subsidiaries are
engaged on the date hereof and such activities as may be incidental, similar or
related thereto.
SECTION 7.2.2. INDEBTEDNESS. The Borrower will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than, without
duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) [INTENTIONALLY OMITTED];
(c) Indebtedness existing as of the Amendment Effective Date which is
identified in ITEM 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule, and any refinancing or replacement thereof, but only in
amounts not in excess of the outstanding amounts on the date of such
refinancing (which shall not exceed the committed amount on the
Amendment Effective Date);
(d) to the extent not prohibited in whole or in part by the terms of any
Subordinated Note Indenture, Indebtedness incurred by the Borrower or
any of its Subsidiaries (i) to any Person providing financing for the
acquisition of any assets permitted to be acquired pursuant to SECTION
7.2.7 to finance its acquisition of such assets,
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(ii) in respect of Capitalized Lease Liabilities (but only to the
extent otherwise permitted by SECTION 7.2.7) and (iii) from time to
time for general corporate purposes; PROVIDED, that the maximum
aggregate amount of all Indebtedness permitted under this CLAUSE (d)
shall not at any time exceed $50,000,000;
(e) Hedging Obligations of the Borrower or any of its Subsidiaries;
(f) intercompany Indebtedness of any Subsidiary of the Borrower owing to
the Borrower or any other Subsidiary of the Borrower, which
Indebtedness
(i) shall (except in the case of Indebtedness of Receivables Co.) be
evidenced by one or more promissory notes in form and substance
satisfactory to the Administrative Agent which have been duly
executed and delivered to (and endorsed to the order of) the
Administrative Agent in pledge pursuant to a Pledge Agreement;
(ii) shall not be forgiven or otherwise discharged for any
consideration other than payment (Dollar for Dollar) in cash
unless the Administrative Agent otherwise consents; and
(iii)shall, in the case of Receivables Co. be incurred only in
connection with the Permitted Receivables Transaction on terms
satisfactory to the Administrative Agent;
(g) unsecured intercompany Indebtedness of the Borrower owing to a
Subsidiary of the Borrower that has previously executed and delivered
to the Administrative Agent the Intercompany Subordination Agreement,
which shall be evidenced by one or more promissory notes in form and
substance satisfactory to the Administrative Agent that have been duly
executed and delivered to (and endorsed to the order of) the
Administrative Agent in pledge pursuant to a Pledge Agreement;
(h) unsecured Subordinated Debt of the Borrower owing to the Subordinated
Noteholders in an aggregate outstanding principal amount not to exceed
$125,000,000 evidenced by the Subordinated Notes and governed by the
terms of a Subordinated Note Indenture;
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(i) Indebtedness of Receivables Co. incurred in connection with the
Permitted Receivables Transaction in an aggregate amount at any time
not to exceed $145,000,000, PROVIDED, that the provisions of
CLAUSE (g) of SECTION 3.1.1 are complied with; and
(j) Indebtedness of Subsidiaries of the Borrower (other than the
Designated Subsidiaries and Receivables Co.) pursuant to the
Subordinated Guaranty;
PROVIDED, HOWEVER, that no Indebtedness otherwise permitted by CLAUSE (d) or (f)
(as such clause relates to Loans made by the Borrower to its Subsidiaries) may
be incurred if, after giving effect to the incurrence thereof, any Default shall
have occurred and be continuing.
SECTION 7.2.3. LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations, granted pursuant to any
Loan Document;
(b) [INTENTIONALLY OMITTED];
(c) Liens granted prior to June 4, 1996 to secure payment of Indebtedness
of the type permitted and described in CLAUSE (c) of SECTION 7.2.2;
(d) Liens granted to secure payment of Indebtedness of the type permitted
and described in CLAUSE (d) of SECTION 7.2.2; PROVIDED, that the
obligations secured thereby do not exceed in the aggregate $35,000,000
at any time outstanding;
(e) Liens for taxes, assessments or other governmental charges or levies,
including Liens pursuant to Section 107(l) of CERCLA or other similar
law, not at the time delinquent or thereafter payable without penalty
or being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(f) Liens of carriers, warehousemen, mechanics, repairmen, materialmen and
landlords or other like liens incurred in the ordinary course of
business for sums not overdue for a period of more than 30 days or
being diligently contested in good faith by appropriate
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proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(g) Liens incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of
tenders, statutory obligations, insurance obligations, leases and
contracts (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 30 days after the entry thereof
or with respect to which execution has been stayed or the payment of
which is covered in full by a bond or (subject to a customary
deductible) by insurance maintained with responsible insurance
companies;
(i) Liens with respect to recorded minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and
fixtures which do not materially detract from the value or materially
impair the use by the Borrower or any such Subsidiary in the ordinary
course of their business of the property subject thereto;
(j) leases or subleases granted by the Borrower or any of its Subsidiaries
to any other Person in the ordinary course of business;
(k) Liens in the nature of trustees' Liens granted pursuant to any
indenture governing any Indebtedness permitted by SECTION 7.2.2, in
each case in favor of the trustee under such indenture and securing
only obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof; and
(l) Liens on Accounts of Receivables Co. created in connection with the
Permitted Receivables Transaction.
SECTION 7.2.4. FINANCIAL CONDITION.
(a) NET WORTH. The Borrower will not permit Net Worth at any time from and
after the Amendment Effective Date to be less than $170,000,000 plus
50% of cumulative Net Income (in excess of zero) from December 28,
1996 to the date of determination of Net Worth.
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(b) DEBT TO EBITDA RATIO. The Borrower will not permit the Debt to EBITDA
Ratio as of the end of any Fiscal Quarter occurring during any period
set forth below to be greater than the ratio set forth opposite such
period:
Debt To
PERIOD EBITDA RATIO
------ ------------
Amendment Effective Date
through 07/12/97 4.00:1.0
07/13/97 through 10/04/97 3.75:1.0
10/05/97 through 01/02/99 3.25:1.0
01/03/99 through 01/01/00 2.75:1.0
01/02/00 through 12/30/00 2.25:1.0
12/31/00 and thereafter 2.00:1.0
(c) INTEREST COVERAGE RATIO. The Borrower will not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter occurring after the
Amendment Effective Date to be less than 3.0:1.0.
(d) CASH FLOW COVERAGE RATIO. The Borrower will not permit the Cash Flow
Coverage Ratio as of the end of any Fiscal Quarter occurring during
any period set forth below to be less than the ratio set forth
opposite such period:
Cash Flow
PERIOD COVERAGE RATIO
------ --------------
Amendment Effective Date
through 01/01/00 1.20:1.0
01/02/00 and thereafter 1.25:1.0
SECTION 7.2.5. INVESTMENTS. The Borrower will not, and will not permit any
of its Subsidiaries to, make, incur, assume or suffer to exist any Investment in
any other Person, except:
(a) Investments existing on June 4, 1996 and identified in ITEM 7.2.5(a)
("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
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(c) without duplication, Investments (i) permitted as Indebtedness
pursuant to SECTION 7.2.2 and (ii) to the extent that Receivables Co.
is not a Subsidiary of the Borrower, Investments in Receivables Co. in
connection with the Permitted Receivables Transaction made by the
Borrower and/or its Subsidiaries on terms satisfactory to the
Administrative Agent;
(d) without duplication, Investments permitted as Capital Expenditures
pursuant to SECTION 7.2.7;
(e) Investments by the Borrower in any of its Subsidiaries, or by any such
Subsidiary in any of its Subsidiaries, by way of contributions to
capital; PROVIDED, that such Investments in Receivables Co. shall only
be made in connection with the Permitted Receivables Transaction on
terms satisfactory to the Administrative Agent;
(f) Investments made by the Borrower or any of its Subsidiaries, solely
with proceeds which either (i) have been contributed, directly or
indirectly, to the Borrower or such Subsidiary as cash equity from
holders of the Borrower's common stock for the purpose of making an
Investment identified in a notice to the Administrative Agent on or
prior to the date that such capital contribution is made or (ii) are
Net Disposition Proceeds which are being reinvested by the Borrower or
such Subsidiary of the Borrower in Qualified Assets in accordance with
the terms of CLAUSE (c) of SECTION 3.1.1 and (in the case of this
CLAUSE (f)(ii) only), which Investments shall result in the Borrower
or such Subsidiary acquiring a majority controlling interest in the
Person in which such Investment was made or increasing any such
controlling interest already maintained by it;
(g) to the extent not restricted by the terms of any Subordinated Debt, a
one time Investment by way of a loan or advance by the Borrower to GFI
and/or ARTAL and/or Flowers and/or any of their respective Affiliates
in a principal amount which, when aggregated with the amount of the
dividend or distribution (if any) made pursuant to CLAUSE (e) of
SECTION 7.2.6 on or prior to the date the Investment permitted
pursuant to this clause is made, shall not exceed $25,000,000;
PROVIDED, that such Investment may only be made if (i) after giving
effect to the making of such Investment, the Debt to EBITDA Ratio
shall be less than 3.0:1.0 on a PRO FORMA basis for the most recent
two full Fiscal Quarters immediately preceding the date of the payment
of such Investment for which the relevant financial information has
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been delivered pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1,
and (ii) an Authorized Officer of the Borrower shall have delivered a
certificate to the Administrative Agent in form and substance
satisfactory to the Administrative Agent (including a calculation of
the Debt to EBITDA Ratio in reasonable detail) certifying to the
accuracy of CLAUSE (g)(i) above and certifying that no Default shall
have occurred and be continuing on the date such Investment is made,
nor would a Default result from the making of such Investment;
(h) Investments to the extent the consideration received pursuant to
CLAUSE (b)(i) of SECTION 7.2.9 is not all cash;
(i) other Investments made by the Borrower or any of its Subsidiaries
(other than Receivables Co.) in an aggregate amount, when aggregated
with the amounts of Capital Expenditures made or committed to be made
pursuant to CLAUSE (b)(v) of SECTION 7.2.7, not to exceed $50,000,000
(net, for so long as such amount is restricted pursuant to the terms
of any Subordinated Note Indenture, of Investments made in Qualified
Assets with Net Disposition Proceeds pursuant to CLAUSE (f)(ii)
above), which Investments shall result in the Borrower or the relevant
Subsidiary acquiring (subject to SECTION 7.2.1) a majority controlling
interest in the Person in which such Investment was made or increasing
any such controlling interest maintained by it in such Person; and
(j) Investments in the form of loans or advances made to Holdings or to
management or employees of Holdings, the Borrower or any of their
respective Subsidiaries in an aggregate outstanding amount not to
exceed $2,500,000 at any time;
PROVIDED, HOWEVER, that
(k) any Investment which when made complies with the requirements of the
definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements;
(l) the Investments permitted above shall only be permitted to be made to
the extent not prohibited in whole or in part by the terms of any
Subordinated Note Indenture; and
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(m) no Investment otherwise permitted by CLAUSE (e), (f), (g), (i) or (j)
shall be permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be continuing.
SECTION 7.2.6. RESTRICTED PAYMENTS, ETC. On and at all times after January
26, 1996:
(a) the Borrower will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any
class of Capital Stock (now or hereafter outstanding) of the Borrower
or on any warrants, options or other rights with respect to any shares
of any class of Capital Stock (now or hereafter outstanding) of the
Borrower (other than dividends or distributions payable in its common
stock or warrants to purchase its common stock or splits or
reclassifications of its stock into additional or other shares of its
common stock) or apply, or permit any of its Subsidiaries to apply,
any of its funds, property or assets to the purchase, redemption,
sinking fund or other retirement of, or agree or permit any of its
Subsidiaries to purchase or redeem, any shares of any class of Capital
Stock (now or hereafter outstanding) of the Borrower, or warrants,
options or other rights with respect to any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower
(collectively, "RESTRICTED PAYMENTS");
(b) the Borrower will not, and will not permit any of its Subsidiaries to
(i) make any payment or prepayment of principal of, or interest on,
any Subordinated Notes (A) on any day other than, in the case of
interest only, the stated, scheduled date for such payment of
interest set forth in the applicable Subordinated Notes or in the
applicable Subordinated Note Indenture, or (B) which would
violate the terms of this Agreement or the subordination
provisions of such Subordinated Note Indenture; or
(ii) redeem, purchase or defease, any Subordinated Notes; and
(c) the Borrower will not, and will not permit any Subsidiary to, make any
deposit for any of the foregoing purposes;
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PROVIDED, HOWEVER, that,
(d) notwithstanding the provisions of CLAUSE (a) above, the Borrower shall
be permitted to make Restricted Payments to Holdings (in the case of
CLAUSE (d)(iv) below, commencing on February 1, 2002, and then only to
the extent not prohibited in whole or in part by the terms of any
Subordinated Debt), to the extent necessary to enable Holdings
(i) to pay its overhead expenses in an amount not to exceed $50,000
in any Fiscal Year,
(ii) to pay its taxes,
(iii)so long as (A) no Default shall have occurred and be continuing
on the date such Restricted Payment is declared or to be made,
nor would a Default result from the making of such Restricted
Payment, (B) after giving effect to the making of such Restricted
Payment the Borrower shall be in PRO FORMA compliance with the
covenants set forth in SECTION 7.2.4 for the most recent full
Fiscal Quarter immediately preceding the date of the payment of
such Restricted Payment for which the relevant financial
information has been delivered pursuant to CLAUSE (a) or
CLAUSE (b) of SECTION 7.1.1, and (C) an Authorized Officer of the
Borrower shall have delivered a certificate to the Administrative
Agent in form and substance satisfactory to the Administrative
Agent (including a calculation of the compliance with the
covenants set forth in SECTION 7.2.4) certifying as to the
accuracy of CLAUSE (d)(iii)(A) and (d)(iii)(B) above, to
purchase, redeem, acquire or otherwise retire for value shares of
Capital Stock of Holdings held by officers or employees of
Holdings or any of its Subsidiaries, or options on any such
shares or related stock appreciation rights or similar securities
owned by officers or employees (or their estates of beneficiaries
under their estates), in all cases only upon death, disability,
retirement, termination of employment or pursuant to the terms of
such stock option plan or any other agreement under which such
shares of Capital Stock, options, related rights or similar
securities were issued (collectively referred to as a
"REDEMPTION"), in an aggregate amount, in the case of this CLAUSE
(d)(iii), not to exceed $1,000,000 in any Fiscal Year; PROVIDED,
that the Borrower can carry forward to each succeeding Fiscal
Year the
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aggregate amount of Restricted Payments permitted (but not made)
pursuant to this CLAUSE (d)(iii) in prior Fiscal Years, with up
to a maximum amount of $4,000,000 of Restricted Payments over the
term of this Agreement permitted to be made pursuant to this
CLAUSE (d)(iii) (net of any amounts contributed in cash to the
capital of the Borrower by a replacement officer or employee
following a Redemption as the result of the death, disability,
retirement or termination of employment of another officer or
employee of Holdings or any of its Subsidiaries after January 26,
1996); and
(iv) to pay, on a quarterly basis, accrued interest then due and
payable in cash pursuant to the terms of the Seller Note, but
only if (A) no Default shall have occurred and be continuing on
the date such dividend is declared or to be made, nor would a
Default result from the making of such dividend, (B) after giving
effect to the making of such dividend, the Debt to EBITDA Ratio
shall be less than 2.0:1.0 on a PRO FORMA basis for the most
recent two full Fiscal Quarters immediately preceding the date of
the payment of such dividend for which the relevant financial
information has been delivered pursuant to CLAUSE (a) or
CLAUSE (b) of SECTION 7.1.1, and (C) an Authorized Officer of the
Borrower shall have delivered a certificate to the Administrative
Agent in form and substance satisfactory to the Administrative
Agent (including a calculation of the Debt to EBITDA Ratio in
reasonable detail) certifying to the accuracy of
CLAUSE (d)(iv)(A) and (d)(iv)(B) above;
(e) notwithstanding the provisions of CLAUSE (a) above, the Borrower
shall, to the extent not prohibited in whole or in part by the terms
of any Subordinated Debt, be permitted to declare and pay a one time
cash dividend in an amount which, when aggregated with the amount of
the Investment (if any) made pursuant to CLAUSE (g) of SECTION 7.2.5
on or prior to the date the dividend or distribution permitted
pursuant to this clause is made, shall not exceed $25,000,000 if
(i) no Default shall have occurred and be continuing on the date such
dividend is declared or to be made, nor would a Default result from
the making of such dividend, (ii) after giving effect to the making of
such dividend, the Debt to EBITDA Ratio shall be less than 3.0:1.0 on
a PRO FORMA basis for the most recent two full Fiscal Quarters
immediately preceding the date of the payment of such dividend for
which the relevant financial information has been delivered pursuant
to CLAUSE (a) or
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CLAUSE (b) of SECTION 7.1.1, and (iii) an Authorized Officer of the
Borrower shall have delivered a certificate to the Administrative
Agent in form and substance satisfactory to the Administrative Agent
(including a calculation of the Debt to EBITDA Ratio in reasonable
detail) certifying to the accuracy of CLAUSE (e)(i) and (e)(ii) above;
(f) notwithstanding the provisions of CLAUSE (a) above, the Borrower
shall, to the extent permitted by the Subordinated Debt, be permitted
to make Restricted Payments to Holdings in a maximum amount (subject
to reduction as set forth in the PROVISO below) not to exceed
$10,000,000, but only if Holdings promptly (and in any event within
three Business Days following such Restricted Payment) applies such
Restricted Payment to a prepayment of the principal amount of the
Seller Note, and in any event only if (i) no Default shall have
occurred and be continuing on the date such dividend is declared or to
be made, nor would a Default result from the making of such dividend
and (ii) after giving effect to the making of such dividend, the Debt
to EBITDA Ratio shall be less than 3.0:1.0 on a pro forma basis for
the most recent two full Fiscal Quarters immediately preceding the
date of the payment of such dividend for which the relevant financial
information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) of
SECTION 7.1.1, and (iii) an Authorized Officer of the Borrower shall
have delivered a certificate to the Administrative Agent in form and
substance satisfactory to the Administrative Agent (including a
calculation of the Debt to EBITDA Ratio in reasonable detail)
certifying to the accuracy of CLAUSE (f)(i) and (f)(ii); PROVIDED,
that notwithstanding the foregoing, in no event shall the amount of
the Restricted Payment permitted pursuant to this clause when
aggregated with the principal amount of Subordinated Notes redeemed,
purchased or defeased in accordance with CLAUSE (g)(i) below exceed
$40,000,000; and
(g) notwithstanding the provisions of CLAUSE (b) above, the Borrower shall
be permitted to
(i) redeem, purchase or defease the Subordinated Notes in an amount
which, when aggregated with the aggregate amount of Restricted
Payments made in accordance with CLAUSE (f) above, does not
exceed $40,000,000, but only if (A) no Default shall have
occurred and be continuing on the date such redemption, purchase
or defeasance is to occur, nor would a Default result therefrom,
(B) the Debt to EBITDA Ratio shall be less than 3.0:1.0 on a PRO
FORMA basis for the most
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recent two full Fiscal Quarters immediately preceding the date of
such redemption, purchase or defeasance for which the relevant
financial information has been delivered pursuant to CLAUSE (a)
or CLAUSE (b) of SECTION 7.1.1, and (c) an Authorized Officer of
the Borrower shall have delivered a certificate to the
Administrative Agent in form and substance satisfactory to the
Administrative Agent (including a calculation of the Debt to
EBITDA Ratio in reasonable detail) certifying to the accuracy of
CLAUSE (g)(i)(A) and (g)(i)(B) above;
(ii) refinance and repay Dollar for Dollar the Subordinated Notes and
accrued interest and fees thereon with the net proceeds of other
unsecured Subordinated Debt with all terms and conditions
reasonably satisfactory to the Required Lenders, as permitted
pursuant to CLAUSE (h)(iv) of SECTION 7.2.2, upon which issuance
such other Subordinated Debt shall be deemed for all purposes of
this Agreement and the Loan Documents to be "Refinancing Notes"
issued pursuant to the "Refinancing Note Indenture".
SECTION 7.2.7. CAPITAL EXPENDITURES, ETC. (a) The Borrower will not, and
will not permit any of its Subsidiaries to, make or commit to make Capital
Expenditures in any Fiscal Year, except, to the extent not prohibited in whole
or in part by the terms of any Subordinated Note Indenture, Capital Expenditures
which do not aggregate in excess of the amount set forth below opposite such
Fiscal Year:
Maximum Capital
FISCAL YEAR EXPENDITURES
----------- ---------------
1996 $32,000,000
1997 $50,000,000
1998 $60,000,000
1999 through 2001 $65,000,000
2002 and thereafter $70,000,000;
PROVIDED, that to the extent the amount of Capital Expenditures permitted to be
made in any Fiscal Year ("YEAR 1") pursuant to this clause exceeds the aggregate
amount of Capital Expenditures actually made during such Fiscal Year, such
excess amount may be carried forward to (but only to) and, to the extent not
prohibited in whole or in part by the terms of any Subordinated Note Indenture,
made in the next succeeding Fiscal Year ("YEAR 2") (any such amount to be
certified by the Borrower to the Administrative Agent in the Compliance
Certificate delivered
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for the last Fiscal Quarter of Year 1), and any such amount carried forward to
Year 2 shall be deemed to be used only after the Borrower and its Subsidiaries
have fully used the amount of Capital Expenditures permitted by this Section
without giving effect to such carry-forward; PROVIDED, HOWEVER, that so long as
the Borrower or any of its Subsidiaries has committed to make Capital
Expenditures in Year 2 with the amount carried forward to such year pursuant to
this clause, such committed amount can actually be expended in the Fiscal Year
immediately succeeding Year 2.
(b) The parties acknowledge and agree that the permitted Capital
Expenditure levels set forth in CLAUSE (a) above shall be exclusive
of:
(i) the aggregate Dollar amount of the purchase price of trucks
leased by the Borrower or any of its Subsidiaries on January 26,
1996 which are determined in the good faith judgment of the
Borrower to be unnecessary to its ongoing operations and which
are then purchased from the lessor and promptly thereafter sold
to third parties;
(ii) Net Disposition Proceeds which have been reinvested by the
Borrower or a Subsidiary of the Borrower in Qualified Assets in
accordance with the terms of CLAUSE (c) of SECTION 3.1.1 and
Casualty Proceeds to the extent applied to rebuild or replace
property in accordance with the terms of CLAUSE (f) of SECTION
3.1.1;
(iii)the amount of Capital Expenditures actually made with cash
capital contributions (other than capital contributions made by
the Borrower in any of its Subsidiaries or by any Subsidiary of
the Borrower in another Subsidiary of the Borrower, except to the
extent the source thereof is a capital contribution from
Holdings) after January 26, 1996 to the Borrower or any of its
Subsidiaries and specifically identified in a certificate
delivered by an Authorized Officer of the Borrower to the
Administrative Agent on or about the time such capital
contribution is made;
(iv) the amount of Capital Expenditures resulting from the
Restructuring Charges as certified to the Administrative Agent by
the Borrower in the first Compliance Certificate delivered by the
Borrower following such Capital Expenditure; and
(v) Capital Expenditures in an amount which, when aggregated with the
amount of Investments made pursuant to
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CLAUSE (i) of SECTION 7.2.5, shall not exceed $50,000,000 over
the term of this Agreement.
SECTION 7.2.8. CONSOLIDATION, MERGER, ETC. The Borrower will not, and will
not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with,
or merge into or with, any other corporation, or purchase or otherwise acquire
all or substantially all of the assets of any Person (or of any division
thereof) except
(a) any such Subsidiary (other than Receivables Co.) may liquidate or
dissolve voluntarily into, and may merge with and into, the Borrower
(so long as the Borrower is the surviving corporation of such
combination or merger) or any other Subsidiary (other than Receivables
Co.), and the assets or stock of any Subsidiary may be purchased or
otherwise acquired by the Borrower or any other Subsidiary (other than
a Designated Subsidiary and Receivables Co.); PROVIDED, that
notwithstanding the above, a Subsidiary may only liquidate or dissolve
into, or merge with and into, another Subsidiary of the Borrower
(other than a Designated Subsidiary and Receivables Co.) if, after
giving effect to such combination or merger, the Borrower continues to
own (directly or indirectly), and the Administrative Agent continues
to have pledged to it pursuant to a Pledge Agreement, a percentage of
the issued and outstanding shares of Capital Stock (on a fully diluted
basis) of the Subsidiary surviving such combination or merger that is
equal to or in excess of the percentage of the issued and outstanding
shares of Capital Stock (on a fully diluted basis) of the Subsidiary
that does not survive such combination or merger that was (immediately
prior to the combination or merger) owned by the Borrower or pledged
to the Administrative Agent; and
(b) so long as no Default has occurred and is continuing or would occur
after giving effect thereto, the Borrower or any of its Subsidiaries
may purchase all or substantially all of the assets of any Person (or
any division thereof) not then a Subsidiary, or acquire such Person by
merger, if permitted (without duplication) pursuant to the provisos
contained in CLAUSE (c) of SECTION 3.1.1, SECTION 7.2.7 or CLAUSES (f)
or (i) of SECTION 7.2.5.
SECTION 7.2.9. ASSET DISPOSITIONS, ETC. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
all or any
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part of its assets, whether now owned or hereafter acquired (including accounts
receivable and Capital Stock of Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or conveyance of such assets
is (i) in the ordinary course of its business (and does not constitute
a sale, transfer, lease, contribution or other conveyance of all or a
substantial part of the Borrower's or such Subsidiary's assets) or is
of obsolete or worn out property, (ii) permitted by SECTION 7.2.8,
(iii) the sale or other disposition of trucks as described in the
definition of "Truck Sale Proceeds", (iv) one constituting all or a
portion of the assets comprising the Borrower's bakery located in
Atlanta, Georgia, (v) between Subsidiary Guarantors or from a
Subsidiary to the Borrower, (vi) the sale or conveyance of Sunshine's
real and personal property located in Santa Fe Springs, California
(collectively referred to as the "SANTA FE PROPERTY") or (vii) the
sale or conveyance of Sunshine's real and personal property used as a
bakery and located in Oakland, California (collectively referred to as
the "OAKLAND PROPERTY"; the Oakland Property and the Santa Fe Property
collectively referred to as the "EXEMPTED PROPERTIES"); PROVIDED, that
the aggregate consideration received for the Exempted Properties shall
not exceed $6,000,000;
(b) (i) such sale, transfer, lease, contribution or conveyance of such
assets is for fair market value and the consideration consists of no
less than 80% (or, in the case of the Borrower's (or its Subsidiary's)
factory and related assets in Chicago, Illinois used in the production
of ice cream cones, 50%) in cash, (ii) the Net Disposition Proceeds
received from such assets, together with the Net Disposition Proceeds
of all other assets sold, transferred, leased, contributed or conveyed
pursuant to this CLAUSE (b) since January 26, 1996, does not exceed
(individually or in the aggregate) $100,000,000 over the term of this
Agreement and (iii) the Net Disposition Proceeds generated from such
sale, transfer, lease, contribution or conveyance not theretofore
reinvested in Qualified Assets in accordance with CLAUSE (c) of
SECTION 3.1.1 (with the amount permitted to be so reinvested in
Qualified Assets in any event not to exceed $50,000,000 over the term
of this Agreement) is applied as Net Disposition Proceeds to prepay
the Loans pursuant to the terms of CLAUSE (c) of SECTION 3.1.1 and
SECTION 3.1.2; or
(c) such sale is of Accounts pursuant to the Permitted Receivables
Transaction.
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7.2.10. MODIFICATION OF CERTAIN AGREEMENTS.
(a) Without the prior written consent of the Required Lenders, the
Borrower will not, and will not permit any of its Subsidiaries to,
consent to any amendment, supplement, amendment and restatement,
waiver or other modification of any of the terms or provisions
contained in, or applicable to, the Certificate of Merger or the
Keebler Purchase Agreement or the Sunshine Purchase Agreement or any
schedules, exhibits or agreements related (in each case) thereto, in
each case which would adversely affect the rights or remedies of the
Lenders, or the Borrower's or any Subsidiary's ability to perform
hereunder or under any Loan Document or which would increase the
purchase price with respect to the Keebler Acquisition or the Sunshine
Acquisition or, in the case of the Keebler Purchase Agreement and the
Sunshine Purchase Agreement, which would increase the Borrower's or
any of its Subsidiaries' obligations or liabilities, contingent or
otherwise (other than adjustments to the purchase price made pursuant
to the terms of such Purchase Agreements).
(b) Except as otherwise permitted pursuant to the terms of this Agreement,
without the prior written consent of the Required Lenders, the
Borrower will not consent to any amendment, supplement or other
modification of any of the terms or provisions contained in, or
applicable to, any Subordinated Debt (including any Subordinated Note
Indenture or any of the Subordinated Notes), or any guarantees
delivered in connection with any Subordinated Debt (including any
Subordinated Guaranty) (collectively, the "RESTRICTED AGREEMENTS"), or
make any payment in order to obtain an amendment thereof or change
thereto, if the effect of such amendment, supplement, modification or
change is to (i) increase the principal amount of, or increase the
interest rate on, or add or increase any fee with respect to such
Subordinated Debt or any such Restricted Agreement, advance any dates
upon which payments of principal or interest are due thereon or change
any of the covenants with respect thereto in a manner which is more
restrictive to the Borrower or any of its Subsidiaries or (ii) change
any event of default or condition to an event of default with respect
thereto, change the redemption, prepayment or defeasance provisions
thereof, change the subordination provisions thereof, or change any
collateral therefor (other than to release such collateral), if (in
the case of this CLAUSE (b)(ii)), the effect of such amendment or
change, individually or together with all other amendments or changes
made, is to increase the obligations of the obligor thereunder or to
confer any additional rights on the holders of such Subordinated Debt,
or any such Restricted Agreement (or a trustee or other representative
on their behalf).
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(c) Without the prior written consent of the Administrative Agent, the
Borrower will not, and will not permit any of its Subsidiaries to,
(i) optionally terminate the Permitted Receivables Transaction, or
(ii) consent to any amendment, supplement, or other modification to
any of the terms of the documents, instruments and agreements
delivered in connection with the Permitted Receivables Transaction,
other than any such amendment, modification or change which (A) would
extend the maturity thereof or (B) does not in any way adversely
affect the interests of the Agents, the Lenders or the Issuer
hereunder or under the Loan Documents or (C) is of a technical or
clarifying nature).
SECTION 7.2.11. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
(other than any Obligor) unless such arrangement or contract is fair and
equitable to the Borrower or such Subsidiary and is an arrangement or contract
of the kind which would be entered into by a prudent Person in the position of
the Borrower or such Subsidiary with a Person which is not one of its
Affiliates; PROVIDED, HOWEVER, that notwithstanding the foregoing,
(a) the Borrower may pay to The Invus Group Ltd. and/or Flowers management
and consulting fees in an amount not to exceed in the aggregate
$1,500,000 per annum, PROVIDED, FURTHER, that no such payment shall be
made during the occurrence and continuation of a Default, or if such
payment would result in a Default; and
(b) Indebtedness permitted by CLAUSE (f)(iii) of SECTION 7.2.2,
Investments permitted by CLAUSE (c)(ii), (e) or (g) of SECTION 7.2.5
and Restricted Payments permitted by SECTION 7.2.6 shall not be
restricted by this SECTION 7.2.11.
SECTION 7.2.12. NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. The Borrower
will not, and will not permit any of its Subsidiaries to, enter into any
agreement (excluding (i) any restrictions existing under the Loan Documents or,
in the case of CLAUSES (a)(i) and (b), any other agreements in effect on January
26, 1996, (ii) in the case of CLAUSES (a)(i) and (b), any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which has been entered
into in connection with the sale or disposition of all or substantially all of
the Capital Stock or assets of such Subsidiary pursuant to a transaction
otherwise permitted hereby, (iii) in the case of CLAUSE (a)(i), restrictions (A)
in respect of Indebtedness secured by Liens
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permitted by SECTION 7.2.3, but only to the extent such restrictions apply to
the assets encumbered thereby, or (B) contained in documents or agreements
delivered in connection with the Permitted Receivables Transaction, provided
that such restrictions are only effective against the Accounts financed or
acquired thereby), (iv) in the case of CLAUSE (a), restrictions under a
Subordinated Note Indenture, (v) in the case of CLAUSE (b), restrictions on
Receivables Co. contained in documentation delivered for the Permitted
Receivables Transaction, or (vi) any restrictions existing under any agreement
that amends, refinances or replaces any agreement containing the restrictions
referred to in CLAUSE (i), (ii), (iii) or (v) above; PROVIDED, that the terms
and conditions of any such agreement referred to in CLAUSE (i), (ii), (iii) or
(v) are not materially less favorable to the Lenders or materially more
restrictive to any Obligor a party thereto than those under the agreement so
amended, refinanced or replaced) prohibiting
(a) the (i) creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or
(ii) ability of the Borrower or any other Obligor to amend or
otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments
of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.13. STOCK OF SUBSIDIARIES. The Borrower will not permit any
Subsidiary to issue any Capital Stock (whether for value or otherwise) to any
Person other than the Borrower or another wholly-owned Subsidiary (other than a
Designated Subsidiary) of the Borrower.
SECTION 7.2.14. SALE AND LEASEBACK. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any agreement or arrangement with
any other Person providing for the leasing by the Borrower or any of its
Subsidiaries of real or personal property which has been or is to be sold or
transferred by the Borrower or any of its Subsidiaries to such other Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Borrower or any of
its Subsidiaries.
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SECTION 7.2.15. NO INVESTMENTS, ETC. IN DESIGNATED SUBSIDIARIES.
Notwithstanding anything to the contrary in this Agreement, in no event shall
the aggregate amount of Investments by the Borrower and its Subsidiaries in, or
transfers of cash or property by the Borrower or its Subsidiaries to, the
Designated Subsidiaries in the aggregate exceed $200,000 in any Fiscal Year.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following events or
occurrences described in this SECTION 8.1 shall constitute an "EVENT OF
DEFAULT".
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. (a) The Borrower shall default
in the payment or prepayment of (i) any Reimbursement Obligation (including
pursuant to SECTIONS 2.6 and 2.6.2) on the applicable Disbursement Due Date or
any deposit of cash for collateral purposes on the date required pursuant to
SECTION 2.6.4 or (ii) any principal of any Loan when due, or (b) any Obligor
(including the Borrower) shall default (and such default shall continue
unremedied for a period of three Business Days) in the payment when due of any
interest or commitment fee or of any other monetary Obligation.
SECTION 8.1.2. BREACH OF WARRANTY. Any representation or warranty of the
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Borrower or any other Obligor to the Administrative Agent, the Issuer or any
Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to ARTICLE V)
is or shall be incorrect when made in any material respect.
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. The
Borrower shall default in the due performance and observance of any of its
obligations under SECTION 7.1.9, SECTION 7.1.10, SECTION 7.1.12, SECTION 7.2 or
SECTIONS 4.1.4 through (and including) 4.1.12 of the Holdings Guaranty.
SECTION 8.1.4. NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof
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shall have been given to the Borrower by the Administrative Agent at the
direction of the Required Lenders.
SECTION 8.1.5. DEFAULT ON OTHER INDEBTEDNESS. A default shall occur (i) in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (which, for purposes of this
Section, shall also include all other items which, in accordance with GAAP,
would be included as liabilities on the liability side of the balance sheet of
Holdings and its Subsidiaries as of the date at which Indebtedness is to be
determined), other than Indebtedness described in SECTION 8.1.1, of the Borrower
or any of its Subsidiaries or any other Obligor having a principal amount,
individually or in the aggregate, in excess of $1,000,000, or (ii) a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness having a principal amount, individually or in the
aggregate, in excess of $5,000,000 if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed maturity.
SECTION 8.1.6. JUDGMENTS. Any judgment or order for the payment of money in
excess of $1,000,000 (not covered by insurance from a responsible insurance
company that is not denying its liability with respect thereto) shall be
rendered against the Borrower or any of its Subsidiaries or any other Obligor
and remain unpaid and either
(a) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order; or
(b) there shall be any period of 60 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 8.1.7. PENSION PLANS. Any of the following events shall occur with
respect to any Pension Plan
(a) the termination of any Pension Plan if, as a result of such
termination, the Borrower would be required to make a contribution to
such Pension Plan, or would reasonably expect to incur a liability or
obligation to such Pension Plan, in excess of $5,000,000; or
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(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA in an
amount in excess of $5,000,000.
SECTION 8.1.8. CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 8.1.9. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of its
Subsidiaries or any other Obligor (other than one or more Immaterial
Subsidiaries) shall
(a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Subsidiaries or any other Obligor (other than such Immaterial
Subsidiaries) or any property of any thereof, or make a general
assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence, permit or
suffer to exist the appointment of a trustee, receiver, sequestrator
or other custodian for the Borrower or any of its Subsidiaries or any
other Obligor (other than such Immaterial Subsidiaries) or for a
substantial part of the property of any thereof, and such trustee,
receiver, sequestrator or other custodian shall not be discharged
within 60 days, provided that the Borrower, each Subsidiary and each
other Obligor hereby expressly authorizes the Administrative Agent,
the Issuer and each Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or any of its
Subsidiaries or any other Obligor (other than such Immaterial
Subsidiaries), and, if any such case or proceeding is not commenced by
the Borrower or such Subsidiary or such other Obligor, such case or
proceeding shall be consented to or acquiesced in by the Borrower or
such Subsidiary or such other Obligor or shall result in the entry of
an order for relief or shall remain for 60 days undismissed, provided
that the Borrower, each Subsidiary and each other Obligor hereby
expressly
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authorizes the Administrative Agent, the Issuer and each Lender to
appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.1.10. IMPAIRMENT OF SECURITY, ETC. Any Loan Document, or any Lien
granted thereunder, shall (except in accordance with its terms), in whole or in
part, terminate, cease to be in full force and effect or cease to be the legally
valid, binding and enforceable obligation of any Obligor party thereto; the
Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability thereof; or
any Lien securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien, subject only to those exceptions expressly
permitted by such Loan Document, except to the extent any event referred to
above (a) relates to assets of the Borrower or any of its Subsidiaries which are
immaterial, (b) results from the failure of the Administrative Agent to maintain
possession of certificates representing securities pledged under any Pledge
Agreement or to file continuation statements under the Uniform Commercial Code
of any applicable jurisdiction or (c) is covered by a lender's title insurance
policy and the relevant insurer promptly after the occurrence thereof shall have
acknowledged in writing that the same is covered by such title insurance policy.
SECTION 8.1.11. SUBORDINATED NOTES. The subordination provisions relating
to the Seller Note or to any Subordinated Note Indenture (the "SUBORDINATION
PROVISIONS") shall fail to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms thereof,
or the principal or interest on any Loan, Reimbursement Obligation or other
monetary Obligations shall fail to constitute Senior Indebtedness (as defined in
the Indenture) or the same (or any other similar term) used to define the
monetary Obligations (as set forth in the Refinancing Note Indenture or any
other agreement or indenture governing Subordinated Debt); or Holdings, or any
of its Subsidiaries shall, directly or indirectly, disavow or contest in any
manner (i) the effectiveness, validity or enforceability of any of the
Subordination Provisions, or (ii) that any of such Subordination Provisions
exist for the benefit of the Administrative Agent, the Issuer and the Lenders.
SECTION 8.1.12. REDEMPTION. Any holder of the Seller Note or any
Subordinated Noteholder of any Subordinated Debt evidenced by the Subordinated
Notes, or any other Subordinated Debt shall
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file an action seeking the rescission thereof or damages or injunctive relief
relating thereto; or any event shall occur which, under the terms of the Seller
Note, the Indenture, the Refinancing Note Indenture or any other agreement or
indenture relating to Subordinated Debt, as the case may be, shall require
Holdings, the Borrower or any of its Subsidiaries to purchase, redeem or
otherwise acquire or offer to purchase, redeem or otherwise acquire all or any
portion of the principal amount of the Seller Note or any such Subordinated Debt
(other than with Excluded Proceeds in accordance with the terms hereof or as
permitted pursuant to CLAUSE (h) of SECTION 7.2.2); or Holdings, the Borrower or
any of its Subsidiaries shall for any other reason purchase, redeem or otherwise
acquire or offer to purchase, redeem or otherwise acquire, or make any other
payments in respect of the principal amount of any such Subordinated Debt or the
Seller Note.
SECTION 8.1.13. TERMINATION OF RECEIVABLES FACILITY. Any event or
circumstance shall occur which permits or requires the Persons purchasing, or
financing the purchase of, Accounts under the Permitted Receivables Transaction
to stop so purchasing or financing such Accounts, other than by reason of the
occurrence of the stated expiry date of the Permitted Receivables Transaction;
PROVIDED, that any notices or cure periods that are conditions to the rights of
such Persons to stop purchasing, or financing the purchase of, such Accounts
have been given or have expired, as the case may be.
SECTION 8.2. ACTION IF BANKRUPTCY, ETC. If any Event of Default described
in SECTION 8.1.3 (as it relates to SECTION 7.1.10) or in CLAUSES (a) through (d)
of SECTION 8.1.9 shall occur with respect to the Borrower, any Subsidiary or any
other Obligor, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all outstanding
Loans and all other Obligations shall automatically be and become immediately
due and payable, without notice or demand.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than any Event of Default described in SECTION 8.1.3 (as it relates to
SECTION 7.1.10) or CLAUSES (a) through (d) of SECTION 8.1.9 with respect to the
Borrower or any Subsidiary or any other Obligor) shall occur for any reason,
whether voluntary or involuntary, and be continuing, the Administrative Agent,
upon the direction of the Required Lenders, shall by notice to the Borrower
declare all or any portion of the outstanding principal amount of the Loans and
other Obligations to be due and payable, require the Borrower to provide cash
collateral to be deposited with the Administrative Agent in an
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amount equal to the Stated Amount of all issued Letters of Credit and/or declare
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, the Borrower shall deposit with
the Administrative Agent cash collateral in an amount equal to the Stated Amount
of all issued Letters of Credit and/or, as the case may be, the Commitments
shall terminate.
ARTICLE IX
THE AGENTS
SECTION 9.1. ACTIONS. Each Lender hereby appoints The First National Bank
of Chicago, SunTrust Bank, Atlanta, Bank of Montreal, and NationsBank, N.A.
(South), each as a Co-Agent and Scotiabank as its Administrative Agent under and
for purposes of this Agreement, the Notes and each other Loan Document. Each
Lender authorizes the Administrative Agent to act on behalf of such Lender under
this Agreement, the Notes and each other Loan Document and, in the absence of
other written instructions from the Required Lenders received from time to time
by the Administrative Agent (with respect to which the Administrative Agent
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel), to exercise such powers hereunder and thereunder
as are specifically delegated to or required of the Administrative Agent by the
terms hereof and thereof, together with such powers as may be reasonably
incidental thereto. Each Lender hereby indemnifies (which indemnity shall
survive any amendment and restatement of, or termination of, this Agreement) the
Administrative Agent, ratably in accordance with their respective Term Loans
outstanding and Commitments (or, if no Term Loans or Commitments are at the time
outstanding and in effect, then ratably in accordance with the principal amount
of Term Loans held by such Lender, and their respective Commitments as in effect
in each case on the date of the termination of this Agreement), from and against
any and all liabilities, obligations, losses, damages, claims, costs or expenses
of any kind or nature whatsoever which may at any time be imposed on, incurred
by, or asserted against, the Administrative Agent in any way relating to or
arising out of this Agreement, the Notes and any other Loan Document, including
reasonable attorneys' fees, and as to which the Administrative Agent is not
reimbursed by the Borrower or any other Obligor (and without limiting the
obligation of the Borrower or any other Obligor to do so); PROVIDED, HOWEVER,
that no Lender shall be liable for the payment of any portion of such
liabilities,
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obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted solely
from the Administrative Agent's gross negligence or willful misconduct. The
Administrative Agent shall not be required to take any action hereunder, under
the Notes or under any other Loan Document, or to prosecute or defend any suit
in respect of this Agreement, the Notes or any other Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent's
determination, inadequate, the Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 5:00
p.m., New York time, on the day prior to a Borrowing that such Lender will not
make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender severally agrees and the
Borrower agrees to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 9.3. EXCULPATION. Neither the Administrative Agent or any Co-Agent
nor any of their respective directors, officers, employees or agents shall be
liable to any Lender for any action taken or omitted to be taken by it under
this Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own willful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement or
any other Loan Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency of any collateral
security, nor to make any inquiry respecting the performance by the Borrower of
its obligations hereunder or under any other Loan Document. Any such inquiry
which may be made by
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any Agent shall not obligate it to make any further inquiry or to take any
action. The Administrative Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to be genuine and
to have been presented by a proper Person.
SECTION 9.4. SUCCESSOR. Any Co-Agent may resign as such upon one Business
Day's notice to the Borrower and the Administrative Agent. The Administrative
Agent may resign as such at any time upon at least 30 days' prior notice to the
Borrower and all Lenders. If the Administrative Agent at any time shall resign,
the Required Lenders may, with the prior consent of the Borrower (which consent
shall not be unreasonably withheld), appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
(a) this ARTICLE IX shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Administrative Agent under
this Agreement; and
(b) SECTION 10.3 and SECTION 10.4 shall continue to inure to its benefit.
SECTION 9.5. CREDIT EXTENSIONS BY EACH AGENT. Each Agent shall have the
same rights and powers with respect to (x) the Credit Extensions made by it or
any of its Affiliates, and (y) the Notes held by it or any of its Affiliates as
any other
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Lender and may exercise the same as if it were not an Agent. Each Agent and its
respective Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any Subsidiary or Affiliate
of the Borrower as if such Agent were not an Agent hereunder.
SECTION 9.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
SECTION 9.7. COPIES, ETC. The Administrative Agent shall give prompt notice
to each Lender of each notice or request required or permitted to be given to
the Administrative Agent by the Borrower pursuant to the terms of this Agreement
(unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 9.8. THE CO-AGENTS. Notwithstanding anything else to the contrary
contained in this Agreement or any other Loan Document, none of the Co-Agents,
in such capacity, shall have any rights, duties or responsibilities under this
Agreement or any other Loan Document, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against any of such Co-Agent in such capacity.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement
and of each other Loan Document may from time to
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time be amended, modified or waived, if such amendment, modification or waiver
is in writing and consented to by the Borrower and the Required Lenders;
PROVIDED, HOWEVER, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken
by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this SECTION 10.1, or CLAUSE (a) of SECTION 10.10, change the
definition of "Required Lenders", increase any Commitment Amount or
the Percentage of any Lender, reduce any fees described in ARTICLE
III, release Holdings from its obligations under the Holdings Guaranty
or any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty or all or substantially all of collateral security (except in
each case as otherwise specifically provided in this Agreement
(including the sale or transfer of Accounts in accordance with the
Permitted Receivables Transaction), the Subsidiary Guaranty, a
Security Agreement or a Pledge Agreement) or extend any Commitment
Termination Date shall be made without the consent of each Lender
adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment of principal of or interest on or fees payable in respect of
any Loan (or reduce the principal amount of or rate of interest on or
fees payable in respect of any Loan) or any Reimbursement Obligation
(which shall in each case include the conversion of all or any part of
the Obligations into equity of any Obligor) shall be made without the
consent of the holder of the Note evidencing such Loan or, in the case
of a Reimbursement Obligation, the Issuer owed, and those, Lenders
participating in, such Reimbursement Obligation;
(d) extend the due date for, or reduce the amount of, any mandatory
prepayment of principal of any Loan or any mandatory reduction in the
Revolving Loan Commitment Amount shall be made unless consented to by,
so long as any such Loans are outstanding (or, in the case of
Revolving Loan Lenders, the Revolving Loan Commitment is in effect),
Lenders holding at least 51% of the outstanding principal amount of
the Tranche of Loans (or Revolving Loan Commitments, in the case of
Revolving Loan Lenders) adversely affected by such amendment,
modification or waiver;
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(e) affect adversely the interests, rights or obligations of the
Administrative Agent (in its capacity as Administrative Agent), the
Issuer (in its capacity as Issuer), or the Swing Line Lender (in its
capacity as Swing Line Lender) shall be effective unless consented to
by the Administrative Agent, the Issuer or the Swing Line Lender, as
the case may be; or
(f) have the effect (either immediately or at some later time) of enabling
the Borrower to satisfy a condition precedent to the making of a
Revolving Loan or the issuance of a Letter of Credit without the
consent of Lenders holding at least 51% of the aggregate outstanding
principal amount of the Revolving Loans or, if no Revolving Loans are
outstanding, at least 51% of the Revolving Loan Commitments.
No failure or delay on the part of the Administrative Agent, the Issuer, any
Lender or the holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Borrower in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, the Issuer, any Lender or the holder of any Note under
this Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 10.2. NOTICES. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by facsimile and addressed, delivered or transmitted to such party, in the
case of the Borrower or the Administrative Agent, at its address or facsimile
number set forth below its signatures in this Agreement, and if to any other
party, as set forth on SCHEDULE III hereto or set forth in the Lender Assignment
Agreement or at such other address or facsimile number as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted (telephonic confirmation in
the case of facsimile).
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SECTION 10.3. PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay on
demand all reasonable expenses of the Administrative Agent (including the
reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with
(a) the syndication by the Administrative Agent of the Loans, the
negotiation, preparation, execution and delivery of this Agreement and
of each other Loan Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to
this Agreement or any other Loan Document as may from time to time
hereafter be required, whether or not the transactions contemplated
hereby are consummated;
(b) the filing, recording, refiling or rerecording of each Mortgage, each
Pledge Agreement and each Security Agreement and/or any Uniform
Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Mortgage, Pledge Agreement or Security Agreement; and
(c) the preparation and review of the form of any document or instrument
relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Administrative Agent, the
Issuer and the Lenders harmless from all liability for, any stamp or other
similar taxes which may be payable in connection with the execution or delivery
of this Agreement, the Credit Extensions made hereunder, or the issuance of the
Notes and Letters of Credit or any other Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent, the Issuer and each Lender upon
demand for all reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses) incurred by the Administrative Agent, the Issuer or such Lender
in connection with (x) the negotiation of any restructuring or "work-out",
whether or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION 10.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds the Administrative Agent,
the Issuer and each Lender and each of their respective Affiliates, and each of
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their respective partners, officers, directors, employees and agents, and each
other Person controlling any of the foregoing within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Exchange Act, (collectively, the "INDEMNIFIED PARTIES"), free and harmless from
and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, fees, and expenses actually incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "INDEMNIFIED LIABILITIES"),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension
hereunder and under (or as defined in) the Existing Credit Agreement;
(b) the entering into and performance of the Existing Credit Agreement,
this Agreement and any other Loan Document hereunder and also as such
term is defined in the Existing Credit Agreement by any of the
Indemnified Parties (including any action brought by or on behalf of
the Borrower as the result of any determination by the Required
Lenders pursuant to ARTICLE V not to make any Credit Extension);
(c) any investigation, litigation or proceeding related to any acquisition
or proposed acquisition by the Borrower or any of its Subsidiaries of
all or any portion of the stock or assets of any Person, whether or
not the Administrative Agent, the Issuer or such Lender is party
thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the Borrower's or any of its Subsidiaries' compliance with or
liability under Environmental Law or the Release by the Borrower or
any of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or releases from, any real property
owned or operated by the Borrower or any Subsidiary thereof of any
Hazardous Material present on or under such property in a manner
giving rise to liability at or prior to the time the Borrower or such
Subsidiary owned or operated such property (including any
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losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, the Borrower or such
Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. The Borrower and its permitted successors and
assigns hereby waive, release and agree not to make any claim, or bring any cost
recovery action against, the Administrative Agent, the Issuer or any Lender
under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted, except to the extent arising out of the gross negligence or
willful misconduct of any Indemnified Party. It is expressly understood and
agreed that to the extent that any of such Persons is strictly liable under any
Environmental Laws, the Borrower's obligation to such Person under this
indemnity shall likewise be without regard to fault on the part of the Borrower
with respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be unenforceable
for any reason, the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 10.5. SURVIVAL. The obligations of the Borrower under SECTIONS 4.3,
4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under SECTIONS
4.8 and 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations, the termination or expiration of all Letters
of Credit and the termination of all Commitments. The representations and
warranties made by the Borrower and each other Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document. In addition, the Borrower
acknowledges and agrees that all provisions of the Existing Credit Agreement and
Loan Documents (as defined in the Existing Credit Agreement) that by their terms
survive termination of the Existing Credit Agreement shall continue to survive
and that its obligations in respect thereof shall be included as "Obligations".
SECTION 10.6. SEVERABILITY. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or
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affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 10.7. HEADINGS. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be executed by the Borrower and the Administrative Agent and be deemed to
be an original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower, the Issuer and each Lender (or notice
thereof satisfactory to the Administrative Agent) shall have been received by
the Administrative Agent and notice thereof shall have been given by the
Administrative Agent to the Borrower, the Issuer and each Lender.
SECTION 10.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the
Notes and the other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that:
(a) the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Administrative
Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are subject
to SECTION 10.11.
SECTION 10.11. SALE AND TRANSFER OF LOANS AND NOTES; PARTICIPATIONS IN
LOANS AND NOTES. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons, on a non PRO
RATA basis, in accordance with this SECTION 10.11.
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SECTION 10.11.1. ASSIGNMENTS. Any Lender,
(a) with the written consents of the Borrower and the Administrative Agent
(which consents shall not be unreasonably delayed or withheld and
which consent, in the case of the Borrower, shall be deemed to have
been given in the absence of a written notice delivered by the
Borrower to the Administrative Agent, on or before the fifth Business
Day after receipt by the Borrower of such Lender's request for such
consent), may at any time assign and delegate to one or more
commercial banks or other financial institutions, and
(b) with notice to the Borrower and the Administrative Agent, but without
the consent of either the Borrower or the Administrative Agent, may
assign and delegate to any of its Affiliates or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans, participations in Letters of
Credit and Swing Line Loans and Term Loans, of a constant, and not a varying,
percentage) in a minimum aggregate amount of (i) $1,000,000 (if such assignment
and delegation is to a then existing Lender) and (ii) $5,000,000 (if such
assignment and delegation is to a Person not then a Lender) or the then
remaining amount of a Lender's Loans and Commitments; PROVIDED, HOWEVER, that
any such Assignee Lender will comply, if applicable, with the provisions
contained in SECTION 4.6 and the Borrower, each other Obligor and the
Administrative Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Assignee Lender until
(c) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect
to such Assignee Lender, shall have been given to the Borrower and the
Administrative Agent by such Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to the Borrower
and the Administrative Agent a Lender Assignment Agreement, accepted
by the Administrative Agent; and
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(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and
(y) the assignor Lender, to the extent that rights and obligations hereunder
have been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) new Notes evidencing such Assignee Lender's
assigned Loans and Commitments and, if the assignor Lender has retained Loans
and Commitments hereunder, replacement Notes in the principal amount of the
Loans and Commitments retained by the assignor Lender hereunder (such Notes to
be in exchange for, but not in payment of, those Notes then held by such
assignor Lender). Each such Note shall be dated the date of the predecessor
Notes. The assignor Lender shall mark the predecessor Notes "exchanged" and
deliver them to the Borrower. Accrued interest on that part of the predecessor
Notes evidenced by the new Notes, and accrued fees, shall be paid as provided in
the Lender Assignment Agreement. Accrued interest on that part of the
predecessor Notes evidenced by the replacement Notes shall be paid to the
assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500, unless such assignment and delegation is by a Lender to its
Affiliate or if such assignment and delegation is by a Lender to the Federal
Reserve Bank, as provided below. Any attempted assignment and delegation not
made in accordance with this SECTION 10.11.1 shall be null and void.
Notwithstanding any other term of this SECTION 10.11.1, the agreement of the
Swing Line Lender to provide the Swing Line Loan Commitment shall not impair or
otherwise restrict in any manner the ability of the Swing Line Lender to make
any assignment of its Loans or Commitments, it being understood and agreed that
the Swing Line Lender may terminate its Swing Line Loan Commitment, to the
extent such Swing Line Commitment would exceed its Revolving Loan Commitment
after giving effect to such assignment,
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in connection with the making of any assignment. Nothing contained in this
SECTION 10.11.1 shall prevent or prohibit any Lender from pledging its rights
(but not its obligations to make Loans) under this Agreement and/or its Loans
and/or its Notes hereunder to a Federal Reserve Bank in support of borrowings
made by such Lender from such Federal Reserve Bank. In the event that S&P,
Moody's or Thompson's BankWatch (or InsuranceWatch Ratings Service, in the case
of Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit or Swing Line Loans becomes a Lender, downgrade
the long-term certificate of deposit rating or long-term senior unsecured debt
rating of such Lender, and the resulting rating shall be below BBB-, Baa3 or C
(or BB, in the case of Lender that is an insurance company (or B, in the case of
an insurance company not rated by InsuranceWatch Ratings Service)), then each of
the Issuer and (if different) the Swing Line Lender shall have the right, but
not the obligation, upon notice to such Lender and the Administrative Agent, to
replace such Lender with an Assignee Lender in accordance with and subject to
the restrictions contained in this Section, and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitment under this Agreement to
such Assignee Lender; PROVIDED, HOWEVER, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made, and Letters of
Credit participated in, by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
SECTION 10.11.2. PARTICIPATIONS. Any Lender may at any time sell to one or
more commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "PARTICIPANT") participating interests in any of
the Loans, Commitments, or other interests of such Lender hereunder; PROVIDED,
HOWEVER, that
(a) no participation contemplated in this Section shall relieve such
Lender from its Commitments or its other obligations hereunder or
under any other Loan Document;
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(b) such Lender shall remain solely responsible for the performance of its
Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and
each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under
any other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, agree to (i) any reduction in the interest rate or amount of
fees that such Participant is otherwise entitled to, (ii) a decrease
in the principal amount, or an extension of the final Stated Maturity
Date, of any Loan in which such Participant has purchased a
participating interest or (iii) a release of all or substantially all
of the collateral security under the Loan Documents or all or
substantially all of the Subsidiary Guarantors under the Subsidiary
Guaranty, in each case except as otherwise specifically provided in a
Loan Document; and
(e) the Borrower shall not be required to pay any amount under SECTIONS
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the amount
which it would have been required to pay had no participating interest
been sold.
The Borrower acknowledges and agrees, subject to CLAUSE (e) above, that each
Participant, for purposes of SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and
10.4, shall be considered a Lender.
SECTION 10.11.3. ASSIGNMENT OF REGISTERED NOTES. A Registered Note and the
Obligation(s) evidenced thereby may be assigned or otherwise transferred in
whole or in part pursuant to the terms of SECTION 10.11.1 and only by
registration of such assignment or transfer of such Registered Note and the
Obligation(s) evidenced thereby on the Register (and each Registered Note shall
expressly so provide). Any assignment or transfer of all or part of such
Obligation(s) and the Registered Note(s) evidencing the same shall be registered
on the Register only upon surrender for registration of assignment or transfer
of the Registered Note(s) evidencing such Obligation(s), duly endorsed by (or
accompanied by a written instrument of assignment
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or transfer duly executed by) the Registered Noteholder thereof, and thereupon
one or more new Registered Note(s) in the same aggregate principal amount shall
be issued to the designated Assignee Lender, and the old Registered Note shall
be returned by the Administrative Agent to the Borrower marked "canceled." Prior
to the due presentment for registration of assignment or transfer of any
Registered Note, the Borrower and the Administrative Agent shall treat the
Person in whose name such Obligation(s) and the Registered Note(s) evidencing
the same is registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding any notice to the
contrary.
SECTION 10.12. OTHER TRANSACTIONS. Nothing contained herein shall preclude
the Administrative Agent, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.13. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS
OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER
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THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.14. WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT, THE ISSUER,
THE LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR
THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE ISSUER AND THE LENDERS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. CONFIDENTIALITY. The Lenders shall hold all non-public
information obtained pursuant to or in connection with this Agreement or
obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries in accordance with their customary
procedures for handling confidential information of this nature, but may make
disclosure to any of their examiners, Affiliates, outside auditors, counsel and
other professional advisors in connection with this Agreement or as reasonably
required by any potential BONA FIDE transferee, participant or assignee, or in
connection with the exercise of remedies under a Loan Document, or as requested
by any governmental agency or representative thereof or pursuant to legal
process; PROVIDED, HOWEVER, that
(a) unless specifically prohibited by applicable law or court order, each
Lender shall notify the Borrower of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this SECTION 10.15, each
Lender shall require any such BONA FIDE transferee, participant and
assignee receiving a disclosure of non-public information to agree in
writing
(i) to be bound by this SECTION 10.15; and
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(ii) to require such Person to require any other Person to whom such
Person discloses such non-public information to be similarly
bound by this SECTION 10.15; and
(c) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the
Borrower or any Subsidiary.
SECTION 10.16. DISCLOSURE SCHEDULE AMENDMENT. By their signature below each
of the parties hereto agree that the Disclosure Schedule is amended in its
entirety to read as set forth on SCHEDULE I hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
KEEBLER CORPORATION
By: /s/ E. NICHOL MCCULLY
-----------------------------------
Title: Sr. Vice President &
Chief Financial Officer
Address: 677 Larch Avenue
Elmhurst, Illinois 60126
Facsimile No.: (708) 833-3372
Attention: E. Nichol McCully
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
By: /s/ TERRY K. FRYETT
-----------------------------------
Title:
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Terry Fryett
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CO-AGENTS
---------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ KATHLEEN COMELLA
-----------------------------------
Name: Kathy Comella
Title: Vice President
BANK OF MONTREAL
By: /s/ PETER E. WALSH
-----------------------------------
Name: Peter E. Walsh
Title: Director
SUNTRUST BANK, ATLANTA
By: /s/ THOMAS R. BANKS
-----------------------------------
Name: Thomas R. Banks
Title: Assistant Vice President
NATIONSBANK, N.A. (SOUTH)
By: /s/ GREG MCCRERY
-----------------------------------
Name: Greg McCrery
Title: Vice President
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LENDERS
-------
THE BANK OF NOVA SCOTIA
By: /s/ TERRY K. FRYETT
-----------------------------------
Name: Terry K. Fryett
Title:
THE BANK OF MONTREAL
By: /s/ PETER E. WALSH
-----------------------------------
Name: Peter E. Walsh
Title: Director
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ KATHLEEN COMELLA
-----------------------------------
Name: Kathleen Comella
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
By: /s/ GREG MCCRERY
-----------------------------------
Name: Greg McCrery
Title: Vice President
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SUNTRUST BANK, ATLANTA
By: /s/ THOMAS R. BANKS
-----------------------------------
Name: Thomas R. Banks
Title: Assistant Vice President
By: /s/ C. WES BURTON, JR.
-----------------------------------
Name: C. Wes Burton, Jr.
Title: Vice President
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ PAUL DE KLERK
-----------------------------------
Name: Paul de Klerk
Title: Group Vice President
By: /s/ RONALD G. BRANDON
-----------------------------------
Name: Ronald G. Brandon
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By: /s/ J. MARK BERRY
-----------------------------------
Name: J. Mark Berry
Title: Vice President
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ MICHEL DE KONKOLY THEGE
-----------------------------------
Name: Michel de Konkoly Thege
Title: Deputy General Manager
By: /s/ DANA W. HEMENWAY
-----------------------------------
Name: Dana W. Hemenway
Title: Vice President
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SOCIETE GENERALE
By: /s/ JOHN M. STACK
-----------------------------------
Name: John M. Stack
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ BRADLEY S. MARCUS
-----------------------------------
Name: Bradley S. Marcus
Title: Senior Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/ PIETER J. VAN TULDER
-----------------------------------
Name: Pieter J. van Tulder
Title: Vice President And Manager
Multinational Group
By: /s/ JOHN EBERLY
-----------------------------------
Name: John Eberly
Title: Assistant Treasurer
BANQUE NATIONALE DE PARIS
By: /s/ ARNAUD COLLIN DU BOCAGE
-----------------------------------
Name: Arnaud Collin du Bocage
Title: Executive Vice President &
General Manager
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BHF-BANK, AKTIENGESELLSCHAFT
By: /s/ THOMAS J. SCIFO
-----------------------------------
Name: Thomas J. Scifo
Title: Assistant Vice President
By: /s/ DANA L. MCDOUGALL
-----------------------------------
Name: Dana L. McDougall
Title: Vice President
CIBC INC.
By: /s/ SUSAN B. SHELLENBACK
-----------------------------------
Name: Susan B. Shellenback
Title: Director
COMERICA BANK
By: /s/ GREGORY N. BLOCK
-----------------------------------
Name: Gregory N. Block
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ PETER L. CHINNICI
-----------------------------------
Name: PETER L. CHINNICI
Title: JOINT GENERAL MANAGER
-130-
<PAGE>
GENERALE BANK, NEW YORK BRANCH
By: /s/ A. EDWIN MATTHEWS
-----------------------------------
Name: A. Edwin Matthews
Title: Senior Vice President
By: /s/ PETER POLLAERT
-----------------------------------
Name: Peter Pollaert
Title: Senior Vice President
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ STEPHEN B. KING
-----------------------------------
Name: STEPHEN B. KING
Title: AUTHORIZED SIGNATORY
HIBERNIA NATIONAL BANK
By: /s/ CHRISTOPHER B. PITRE
-----------------------------------
Name: Christopher B. Pitre
Title: Assistant Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ ARMUND J. SCHOEN, JR.
-----------------------------------
Name: Armund J. Schoen, Jr.
Title: Vice President &
Deputy General Manager
FIRSTRUST BANK
By: /s/ EDWARD D'ANCONA
-----------------------------------
Name: Edward D'Ancona
Title: Vice President
-131-
<PAGE>
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.7
LITIGATION
----------
None.
<PAGE>
ITEM 6.8
<TABLE>
SUBSIDIARIES
------------
<CAPTION>
COMPANY STATE OF INCORPORATION
<S> <C>
WHOLLY-OWNED SUBSIDIARIES OF
INFLO HOLDINGS CORPORATION
1.Keebler Corporation (the "Borrower") Delaware
WHOLLY-OWNED SUBSIDIARIES OF THE BORROWER
1.Keebler Leasing Corp. Delaware
2.Keebler Company ("Keebler") Delaware
3.Johnston's Ready-Crust Company Delaware
4.Bake-Line Products, Inc. Illinois
5.Sunshine Biscuits, Inc. Delaware
WHOLLY-OWNED SUBSIDIARIES OF KEEBLER
1.Steamboat Corporation Georgia
2.Illinois Baking Corporation Delaware
3.Keebler Cookie and Cracker Company Nevada
4.Hollow Tree Company Delaware
5.Keebler Company/Puerto Rico, Inc. Delaware
6.Keebler H.C., Inc. Illinois
7.Keebler-Georgia, Inc. Georgia
8.Keebler Foreign Sales Corporation Virgin Islands
NOT FOR PROFIT CORPORATIONS OF WHICH KEEBLER IS THE
SOLE MEMBER*
1.Keebler International Prep Track & Field Illinois
Invitational Foundation
2.Keebler Company Foundation Illinois
____________________________
*ILLINOIS NOT FOR PROFIT CORPORATION ACT SECTION 106.05 PROHIBITS NOT FOR PROFIT CORPORATIONS FROM HAVING OR ISSUING
STOCK.
</TABLE>
<PAGE>
ITEM 6.11
EMPLOYEE BENEFIT PLANS
----------------------
None.
<PAGE>
ITEM 6.12
ENVIRONMENTAL MATTERS
---------------------
None.
<PAGE>
ITEM 7.22(c)
ONGOING INDEBTEDNESS
--------------------
1.Loan Agreement, dated February 1, 1993, between Summit County, Ohio and
Keebler Company relating to $995,000 aggregate principal amount of industrial
development revenue refunding bonds issued by Summit County, Ohio ("Summit
County IRB's").
i)Creditor:Summit County, Ohio
ii)Amount Outstanding:$995,000
2.Lease Agreement, dated February 1, 1993, between The Industrial Development
Board of The City of Homewood, Alabama and Keebler Company relating to $560,000
aggregate principal amount of industrial development revenue refunding bonds
issued by The Industrial Development Board of the City of Homewood, Alabama
("Homewood IRB's").
i)Creditor:The Industrial Development Board of The City of Homewood, Alabama
ii)Amount Outstanding:$560,000
3.Loan Agreement, dated February 1, 1993, between the City of Evansville,
Indiana and Keebler Company relating to $505,000 aggregate principal amount of
industrial development revenue refunding bonds issued by the City of Evansville,
Indiana ("Evansville IRB's").
i)Creditor:City of Evansville, Indiana
ii)Amount Outstanding:$505,000
4.Loan Agreement, dated January 1, 1993, between the City of Bluffton, Indiana
and Keebler Company relating to $5,300,000 aggregate principal amount of
industrial development revenue refunding bonds issued by the City of Bluffton,
Indiana.
i)Creditor:City of Bluffton, Indiana
ii)Amount Outstanding:$3,900,000
5.Loan Agreement, dated February 1, 1993, between Village of Alsip, Illinois and
Keebler Company relating to $3,750,000 aggregate principal amount of industrial
development revenue refunding bonds issued by the Village of Alsip, Illinois
("Alsip IRB's").
i)Creditor:Village of Alsip, Illinois
ii)Amount Outstanding:$3,750,000
6.Loan Agreement, dated January 1, 1993, between Howard County, Maryland and
Keebler Company relating to $925,000 aggregate principal amount of industrial
development revenue refunding bonds issued by Howard County, Maryland.
i)Creditor:Howard County, Maryland
ii)Amount Outstanding:$875,000
-1-
<PAGE>
7.Loan Agreement, dated January 1, 1993, between the City of Fort Wayne, Indiana
and Keebler Company relating to aggregate principal amount of $825,000
industrial development revenue refunding bonds issued by the City of Fort Wayne,
Indiana.
i)Creditor:City of Fort Wayne, Indiana
ii)Amount Outstanding:$775,000
8.Loan Agreement, dated January 1, 1993, between the Village of Menomonee Falls,
Wisconsin and Keebler Company relating to $850,000 aggregate principal amount of
industrial development revenue refunding bonds issued by the Village of
Menomonee Falls, Wisconsin.
i)Creditor:Village of Menomonee Falls, Wisconsin
ii)Amount Outstanding:$800,000
9.Loan Agreement, dated January 1, 1993, between the Industrial Development
Authority of the City of Springfield, Missouri and Keebler Company relating to
$850,000 aggregate principal amount of industrial development revenue refunding
bonds, issued by the Industrial Development Authority of the City of
Springfield, Missouri.
i)Creditor:Industrial Development Authority of the City of Springfield, Missouri
ii)Amount Outstanding:$800,000
10.Financing Agreement, dated January 1, 1993, between Lehigh County Industrial
Development Authority and Keebler Company relating to $1,125,000 aggregate
principal amount of industrial development revenue refunding bonds issued by
Lehigh County Industrial Development Authority.
i)Creditor:Lehigh County Industrial Development Authority
ii)Amount Outstanding:$925,000
11.Financing Agreement, dated January 1, 1992, between the Lehigh County
Industrial Development Authority and Keebler Company, relating to $6,340,000
aggregate principal amount of industrial revenue refunding bonds issued by the
Lehigh County Industrial Development Authority ("Lehigh 1992 IRB's").
i)Creditor:Lehigh County Industrial Development Authority
ii)Amount Outstanding:$4,340,000
12.Letter of Credit #S243004 with Continental Casualty relating to
Automobile/General Liability insurance.
i)Creditor:Continental Casualty
ii)Amount Outstanding:$1,095,000
-2-
<PAGE>
13.Letter of Credit #S245282 with Transportation Insurance relating to Workers'
Compensation insurance.
i)Creditor:Transportation Insurance
ii)Amount Outstanding:$795,000
14.Letter of Credit #S250171 with Transportation Insurance relating to Workers'
Compensation insurance.
i)Creditor:Transportation Insurance
ii)Amount Outstanding:$1,155,000
15.Letter of Credit #S254296 with Trans. Ins. Cont. Casualty relating to
Workers' Compensation insurance.
i)Creditor:Trans. Ins. Cont. Casualty
ii)Amount Outstanding:$1,030,000
16.Letter of Credit #S257646 with Trans. Ins. Cont. Casualty relating to
Workers' Compensation insurance.
i)Creditor:Trans. Ins. Cont. Casualty
ii)Amount Outstanding:$2,500,000
17.Letter of Credit #S261336 with Trans. Ins. Cont. Casualty relating to
Workers' Compensation insurance.
i)Creditor:Trans. Ins. Cont. Casualty
ii)Amount Outstanding:$2,755,000
18.Letter of Credit #S245281 with Continental Casualty relating to
Automobile/General Liability insurance.
i)Creditor:Continental Casualty
ii)Amount Outstanding:$1,202,000
19.Letter of Credit #250172 with Continental Casualty relating to
Automobile/General Liability insurance.
i)Creditor:Continental Casualty
ii)Amount Outstanding:$1,425,000
-3-
<PAGE>
20.Letter of Credit #S254299 with Continental Casualty relating to
Automobile/General Liability insurance.
i)Creditor:Continental Casualty
ii)Amount Outstanding:$1,450,000
21.Letter of Credit #S257645 with Continental Casualty relating to
Automobile/General Liability insurance.
i)Creditor:Continental Casualty
ii)Amount Outstanding:$1,734,000
22.Letter of Credit #S261337 with Continental Casualty relating to
Automobile/General Liability insurance.
i)Creditor:Continental Casualty
ii)Amount Outstanding:$1,850,000
23.Gerber Debt-Grand Rapids.
i)Creditor:Gerber
ii)Amount Outstanding:$58,423
24.Letter of Credit #LASB-227341 issued by Bank of America relating to
obligations under a lease with Fleet Capital Corporation f/k/a Fleet Credit
Corporation.
Amount Outstanding:0.00
-4-
<PAGE>
ITEM 7.2.5(a)
ONGOING INVESTMENTS
-------------------
THE FOLLOWING ARE THE ONLY INVESTMENTS MAINTAINED BY THE BORROWER AND ITS
SUBSIDIARIES IN ANY OTHER PERSON:
I.The Borrower directly owns 100% of all classes of the outstanding stock of the
following corporations:
Keebler Leasing corp.
Keebler Company ("Keebler")
Johnston's Ready-Crust Company
Bake-Line Products, Inc.
Sunshine Biscuits, Inc.
II.Keebler directly owns 100% of all classes of the outstanding stock of the
following corporations:
Steamboat Corporation
Illinois Baking Corporation
Keebler Cookie and Cracker Company
Hollow Tree Company
Keebler Company/Puerto Rico, Inc.
Keebler H.C., Inc.
Keebler-Georgia, Inc.
Keebler Foreign Sales Corporation
III.Keebler is the sole member of the following Illinois not for profit
corporations:
Keebler International Prep Track & Field Invitational Foundation
Keebler Company Foundation
-5-
<PAGE>
<TABLE>
SCHEDULE II
<CAPTION>
FEE FEE
INVITED ACTUAL OFFERED AMOUNT
INSTITUTION COMMITMENT COMMITMENT (BPS) ALLOCATION ($)
<S> <C> <C> <C> <C> <C>
The Bank of Nova Scotia $50,000,000 $50,000,000 22.0 $40,000,000 $88,000.00
Bank of Montreal $35,000,000 $35,000,000 22.0 $28,000,000 $61,600.00
First Chicago NBD $35,000,000 $35,000,000 22.0 $28,000,000 $61,600.00
Nationsbank $35,000,000 $35,000,000 22.0 $28,000,000 $61,600.00
Sun Trust Bank $35,000,000 $35,000,000 22.0 $28,000,000 $61,600.00
ABN AMRO Bank $25,000,000 $25,000,000 18.0 $20,000,000 $36,000.00
Northern Trust $25,000,000 $25,000,000 18.0 $20,000,000 $36,000.00
Rabobank Nederland $25,000,000 $25,000,000 18.0 $20,000,000 $36,000.00
Societe Generale $25,000,000 $25,000,000 18.0 $20,000,000 $36,000.00
Wachovia Bank $25,000,000 $35,000,000 18.0 $20,000,000 $36,000.00
Banque Francaise du Commerce Exterieur $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Banque Nationale de Paris $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
BHF Bank $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Canadian Imperial Bank of Commerce $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Comerica Bank $15,000,000 $25,000,000 12.5 $12,000,000 $15,000.00
Fuji Bank $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Generale Bank $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Goldman Sachs $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Hibernia $15,000,000 $25,000,000 12.5 $12,000,000 $15,000.00
Long Term Credit Bank of Japan $15,000,000 $15,000,000 12.5 $12,000,000 $15,000.00
Firstrust Bank *** $10,000,000 $10,000,000 12.5 $8,000,000 $10,000.00
TOTAL $475,000,000 $505,000,000 $380,000,000 $674,400.00
</TABLE>
<PAGE>
<TABLE>
SCHEDULE III to
Credit Agreement
PERCENTAGES AND ADMINISTRATIVE INFORMATION
------------------------------------------
<CAPTION>
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
<S> <C> <C> <C>
THE BANK OF NOVA SCOTIA 10.526315789473684% 10.526315789473684%
DOMESTIC OFFICE: LIBOR OFFICE:
One Liberty Plaza One Liberty Plaza
New York, NY 10006 New York, NY 10006
Facsimile No.: Facsimile No.:
(212) 225-5090 (212) 225-5090
Attention: Attention:
Donald McWeeney Donald McWeeney
BANK OF MONTREAL 7.368421052631579% 7.368421052631579%
DOMESTIC OFFICE: LIBOR OFFICE:
115 South LaSalle St. 115 South LaSalle St.
Chicago, IL 60603 Chicago, IL 60603
Facsimile No.: Facsimile No.:
(312) 750-6057 (312) 750-6057
Attention: Attention:
Peter Walsh Peter Walsh
Director Director
THE FIRST NATIONAL BANK OF 7.368421052631579% 7.368421052631579%
CHICAGO
DOMESTIC OFFICE: LIBOR OFFICE:
One First National Plaza One First National Plaza
Chicago, IL 60670 Chicago, IL 60670
Facsimile No.: Facsimile No.:
(312) 732-4840 (312) 732-4840
Attention: Attention:
Yvette Thompkins Yvette Thompkins
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
NATIONSBANK, N.A. (SOUTH) 7.368421052631579% 7.368421052631579%
DOMESTIC OFFICE: LIBOR OFFICE:
NC1-001-15-03 NC1-001-15-03
One Independence Center One Independence Center
101 North Tryon Street 101 North Tryon Street
Charlotte, NC 28255-0001 Charlotte, NC 28255-0001
Facsimile No.: Facsimile No.:
(704) 386-8694 (704) 386-8694
Attention: Attention:
Judy Dudley Judy Dudley
Corporate Credit Services Corporate Credit
Services
SUNTRUST BANK, ATLANTA 7.368421052631579% 7.368421052631579%
DOMESTIC OFFICE: LIBOR OFFICE:
P.O. Box 4418 P.O. Box 4418
Mail Code 126 Mail Code 126
Atlanta, GA 30302-4418 Atlanta, GA 30302-4418
Facsimile No.: Facsimile No.:
(404) 588-8833 (404) 588-8833
Attention: Attention:
Tom Banks Tom Banks
III-2
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
ABN AMRO BANK N.V. 5.263157894736842% 5.263157894736842%
DOMESTIC OFFICE: LIBOR OFFICE:
500 Park Avenue 500 Park Avenue
New York, NY 10022 New York, NY 10022
Facsimile No.: Facsimile No.:
(212) 754-6114 (212) 754-6114
Attention: Attention:
Barbara Tsiakaros Barbara Tsiakaros
THE NORTHERN TRUST COMPANY 5.263157894736842% 5.263157894736842%
DOMESTIC OFFICE: LIBOR OFFICE:
50 South LaSalle Street 50 South LaSalle Street
Chicago, IL 60675 Chicago, IL 60675
Facsimile No.: Facsimile No.:
(312) 444-5055 (312) 444-5055
Attention: Attention:
Diane Baer Diane Baer
III-3
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
COOPERATIVE CENTRALE 5.263157894736842% 5.263157894736842%
RAIFFEISEN-
BOERENLEENBANK,
B.A., NEW YORK BRANCH
DOMESTIC OFFICE: LIBOR OFFICE:
245 Park Avenue 245 Park Avenue
New York, NY 10167 New York, NY 10167
Facsimile No.: Facsimile No.:
(212) 916-7930 (212) 916-7930
Attention: Attention:
D. Rivers D. Rivers
Corporate Services Dept. Corporate Services
Dept.
SOCIETE GENERALE 5.263157894736842% 5.263157894736842%
DOMESTIC OFFICE: LIBOR OFFICE:
1221 Avenue of the Americas 1221 Avenue of the
New York, NY 10020 Americas
Facsimile No.: New York, NY 10020
(212) 278-6178 Facsimile No.:
Attention: (212) 278-6178
Erick Rinner Attention:
Ricky Tretola Erick Rinner
Ricky Tretola
III-4
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
WACHOVIA BANK OF GEORGIA, 5.263157894736842% 5.263157894736842%
N.A.
DOMESTIC OFFICE: LIBOR OFFICE:
Southeast Corporate Division Southeast Corporate
191 Peachtree Street, N.E. Division
Atlanta, GA 30303 191 Peachtree Street,
Facsimile No: N.E.
(404) 332-5016 Atlanta, GA 30303
Attention: Facsimile No:
J. Timothy Toler (404) 332-5016
Vice President Attention:
J. Timothy Toler
Vice President
BANQUE FRANCAISE DU 3.157894736842105% 3.157894736842105%
COMMERCE EXTERIEUR
DOMESTIC OFFICE: LIBOR OFFICE:
645 Fifth Avenue 645 Fifth Avenue
New York, NY 10022 New York, NY 10022
Facsimile No.: Facsimile No.:
(212) 872-5045 (212) 872-5045
Attention: Attention:
Pieter van Tulder Pieter van Tulder
BANQUE NATIONALE DE PARIS 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
209 S. LaSalle 209 S. LaSalle
Chicago, IL 60604 Chicago, IL 60604
Facsimile No.: Facsimile No.:
(312) 977-1380 (312) 977-1380
Attention: Attention:
Michelle Tolliver Michelle Tolliver
Vice President Vice President
III-5
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
BHF-BANK, 3.157894736842105% 3.157894736842105%
AKTIENGESELLSCHAFT
DOMESTIC OFFICE: LIBOR OFFICE:
590 Madison Avenue 590 Madison Avenue
New York, NY 10020 New York, NY 10020
Facsimile No.: Facsimile No.:
(212) 756-5536 (212) 756-5536
Attention: Attention:
Renate Boston Renate Boston
Assistant Treasurer Assistant Treasurer
CIBC INC. 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
Two Paces West Two Paces West
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Facsimile No.: Facsimile No.:
(707) 319-4950 (707) 319-4950
Attention: Attention:
Debra Quintero Debra Quintero
Credit Operations Credit Operations
III-6
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
-------------------- -------------------
COMERICA BANK 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
One Mid America Plaza P.O. Box 75000
Suite 612 Detroit, MI 48275-3269
Oakbrook Terrace, IL 60181 Facsimile No.:
Facsimile No.: (313) 222-3351
(630) 575-2164 Attention:
Attention: Beverly Jones
Gregory N. Block
THE FUJI BANK LIMITED 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
225 W. Wacker Drive 225 W. Wacker Drive
Suite 2000 Suite 2000
Chicago, IL 60606 Chicago, IL 60606
Facsimile No.: Facsimile No.:
(312) 621-0539/419-3677 (312) 621-0539/
419-3677
Attention: Attention:
Cely Navarro Cely Navarro
III-7
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
GENERALE BANK 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
520 Madison Avenue 520 Madison Avenue
New York, NY 10022 New York, NY 10022
Facsimile No.: Facsimile No.:
(212) 750-9597 (212) 750-9597
Attention: Attention:
Doug Riahi Doug Riahi
GOLDMAN SACHS CREDIT PARTNERS L.P. 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
85 Broad Street 85 Broad Street
6th Floor 6th Floor
New York, NY 10004 New York, NY 10004
Facsimile No.: Facsimile No.:
(212) 357-4597 (212) 357-4597
Attention: Attention:
Kathy King Kathy King
HIBERNIA NATIONAL BANK 3.157894736842105% 3.157894736842105%
DOMESTIC OFFICE: LIBOR OFFICE:
313 Carondelet Street 313 Carondelet Street
New Orleans, LA 70130 New Orleans, LA 70130
Facsimile No.: Facsimile No.:
(504) 533-5344 (504) 533-5344
Attention: Attention:
Colleen Lacy Colleen Lacy
National Accounts National Accounts
III-8
<PAGE>
SCHEDULE III
(con't)
PERCENTAGE OF PERCENTAGE OF
REVOLVING LOANS TERM LOANS
------------------- -------------------
THE LONG-TERM CREDIT 3.157894736842105% 3.157894736842105%
BANK OF JAPAN, LTD.
DOMESTIC OFFICE: LIBOR OFFICE:
190 South LaSalle Street 190 South LaSalle Street
Suite 800 Suite 800
Chicago, IL 60603 Chicago, IL 60603
Facsimile No.: Facsimile No.:
(312) 704-8717 (312) 704-8717
Attention: Attention:
David Miller David Miller
Assistant Vice President Assistant V.P.
FIRSTRUST BANK 2.105263157894737% 2.105263157894737%
DOMESTIC OFFICE: LIBOR OFFICE:
1931 Cottman Avenue 1931 Cottman Avenue
Philidelphia, PA 19111-3897 Philidelphia, PA
Facsimile No.: 19111-3897
(215)728-8767 Facsimile No.:
Attention: (215)728-8767
Kent D. Nelson Attention:
Kent D. Nelson
III-9
</TABLE>
<PAGE>
SCHEDULE IV
FISCAL QUARTERS
================================================================================
1996
================================================================================
1/26/96 through (and including) 04/20/96
4/21/96 through (and including) 07/13/96
07/14/96 through (and including) 10/05/96
10/06/96 through (and including) 12/28/96
1997
================================================================================
12/29/96 through (and including) 04/19/97
04/20/97 through (and including) 07/12/97
07/13/97 through (and including) 10/04/97
10/05/97 through (and including) 01/03/98
1998
================================================================================
01/04/98 through (and including) 04/25/98
04/26/98 through (and including) 07/18/98
07/19/98 through (and including) 10/10/98
10/11/98 through (and including) 01/02/99
1999
================================================================================
01/03/99 through (and including) 04/24/99
04/25/99 through (and including) 07/17/99
07/18/99 through (and including) 10/09/99
10/10/99 through (and including) 01/01/00
2000
================================================================================
01/02/00 through (and including) 04/22/00
04/23/00 through (and including) 07/15/00
07/16/00 through (and including) 10/07/00
10/08/00 through (and including) 12/30/00
2001
================================================================================
12/31/00 through (and including) 04/21/01
04/22/01 through (and including) 07/14/01
<PAGE>
07/15/01 through (and including) 10/06/01
10/07/01 through (and including) 12/29/01
2002
================================================================================
12/30/01 through (and including) 04/20/02
04/21/02 through (and including) 07/13/02
07/14/02 through (and including) 10/05/02
10/06/02 through (and including) 12/28/02
2003
================================================================================
12/29/02 through (and including) 04/19/03
04/20/03 through (and including) 07/12/03
07/13/03 through (and including) 10/04/03
10/05/03 through (and including) 01/03/04
2004
================================================================================
01/04/04 through (and including) 04/24/04
04/25/04 through (and including) 07/17/04
07/18/04 through (and including) 10/09/04
10/10/04 through (and including) 01/01/05
2005
================================================================================
01/02/05 through (and including) 04/23/05
04/24/05 through (and including) 07/16/05
07/17/05 through (and including) 10/08/05
10/09/05 through (and including) 12/31/05
2006
================================================================================
01/01/06 through (and including) 04/22/06
04/23/06 through (and including) 07/15/06
07/16/06 through (and including) 10/07/06
10/08/06 through (and including) 12/30/06
2007
================================================================================
12/31/06 through (and including) 04/21/07
04/22/07 through (and including) 07/14/07
<PAGE>
07/15/07 through (and including) 10/06/07
10/07/07 through (and including) 12/29/07
<PAGE>
<TABLE>
SCHEDULE V
Item A. EXISTING LETTERS OF CREDIT.
---------------------------
<CAPTION>
BENEFICIARY STATED AMOUNT DATE OF ISSUANCE EXPIRY DATE
- ----------- ------------- ---------------- -----------
<S> <C> <C> <C>
Fort Wayne $514,962 March 13, 1996 February 15, 1997
National Bank
First Trust of $571,047 March 13, 1996 February 15, 1997
Illinois, National Association
First Trust of $1,014,628 March 13, 1996 February 15, 1997
Illinois, National Association
First Trust of $3,823,973 March 13, 1996 February 15, 1997
Illinois, National Association
First-Citizens Bank & Trust $4,557,000 April 25, 1996 April 25, 1997
Company
</TABLE>
Item B. OUTSTANDING SWING LINE LOANS.
-----------------------------
None
Item C. OUTSTANDING LOANS
-----------------
Existing Revolving Loans: None
Existing Term Loans: $283,837,500
<PAGE>
<TABLE>
KEEBLER CORPORATION ALLOCATIONS
($ AMOUNTS)
<CAPTION>
SCHEDULE VI
to Credit Agreement
Commitments
-----------
Revolver 140,000,000.00
Term 240,000,000.00
Existing Term Loan 130,250,000.00
Incremental Term Loan 109,750,000.00
Deal Total $380,000,000.00
INSTITUTIONS REVOLVER TERM EXISTING TERM LOAN INCREMENTAL TERM LOAN TOTAL
<S> <C> <C> <C> <C> <C>
THE BANK OF NOVA SCOTIA $14,736,842.11 $25,263,157.89 $10,427,483.27 $14,835,674.62 $40,000,000.00
Bank of Montreal $10,315,789.47 $17,684,210.53 $11,108,380.09 $6,575,830.44 $28,000,000.00
First Chicago NBD $10,315,789.47 $17,684,210.53 $7,941,814.42 $9,742,396.11 $28,000,000.00
Nationsbank $10,315,789.47 $17,684,210.53 $8,886,704.07 $8,797,506.46 $28,000,000.00
Sun Trust Bank $10,315,789.47 $17,684,210.53 $8,886,848.84 $8,797,361.69 $28,000,000.00
ABN AMRO Bank $7,368,421.05 $12,631,578.95 $4,887,687.24 $7,743,891.71 $20,000,000.00
Northern Trust $7,368,421.05 $12,631,578.95 $2,818,709.82 $9,812,869.13 $20,000,000.00
Rabobank Nederland $7,368,421.05 $12,631,578.95 $5,776,357.65 $6,855,221.30 $20,000,000.00
Societe Generale $7,368,421.05 $12,631,578.95 $4,887,687.24 $7,743,891.71 $20,000,000.00
Wachovia Bank $7,368,421.05 $12,631,578.95 $2,818,709.82 $9,812,869.13 $20,000,000.00
Banque Francaise du Commerce Exterieur $4,421,052.63 $7,578,947.37 $4,443,352.04 $3,135,595.33 $12,000,000.00
Banque Nationale de Paris $4,421,052.63 $7,578,947.37 $4,887,687.24 $2,691,260.13 $12,000,000.00
BHF Bank $4,421,052.63 $7,578,947.37 $8,886,631.69 ($1,307,684.32) $12,000,000.00
Canadian Imperial Bank of Commerce $4,421,052.63 $7,578,947.37 $7,109,435.64 $469,511.73 $12,000,000.00
Comerica Bank $4,421,052.63 $7,578,947.37 $4,887,687.24 $2,691,260.13 $12,000,000.00
Fuji Bank $4,421,052.63 $7,578,947.37 $4,887,687.24 $2,691,260.13 $12,000,000.00
Generale Bank $4,421,052.63 $7,578,947.37 $4,443,352.04 $3,135,595.33 $12,000,000.00
Goldman Sachs $4,421,052.63 $7,578,947.37 $3,226,839.65 $4,352,107.72 $12,000,000.00
Hibernia $4,421,052.63 $7,578,947.37 $4,443,352.04 $3,135,595.33 $12,000,000.00
Long Term Credit Bank of Japan $4,421,052.63 $7,578,947.37 $4,443,352.04 $3,135,595.33 $12,000,000.00
Firstrust Bank $2,947,368.42 $5,052,631.58 $2,888,178.82 $2,164,452.76 $8,000,000.00
Lender to the Existing Term Loan $0.00 $0.00 $2,818,709.82 ($2,818,709.82) $0.00
Lender to the Existing Term Loan $0.00 $0.00 $2,221,676.02 ($2,221,676.02) $0.00
Lender to the Existing Term Loan $0.00 $0.00 $2,221,676.02 ($2,221,676.02) $0.00
TOTAL $140,000,000.00 $240,000,000.00 $130,250,000.00 $109,750,000.00 $380,000,000.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE VI (cont'd)
to Credit Agreement
INSTITUTIONS REVOLVER TERM EXISTING TERM LOAN INCREMENTAL TERM LOAN TOTAL
<S> <C> <C> <C> <C> <C>
THE BANK OF NOVA SCOTIA 10.526315789473684% 10.526315789473684% 8.005745312859885% 13.517698974703273% 10.526315789473684%
Bank of Montreal 7.368421052631579% 7.368421052631579% 8.528506786948177% 5.991645044479079% 7.368421052631579%
First Chicago NBD 7.368421052631579% 7.368421052631579% 6.097362318618042% 8.876898502337849% 7.368421052631579%
Nationsbank 7.368421052631579% 7.368421052631579% 6.822805428023033% 8.015951213044000% 7.368421052631579%
Sun Trust Bank 7.368421052631579% 7.368421052631579% 6.822916575815739% 8.015819304160173% 7.368421052631579%
ABN AMRO Bank 5.263157894736842% 5.263157894736842% 3.752542986564299% 7.055937774367582% 5.263157894736842%
Northern Trust 5.263157894736842% 5.263157894736842% 2.164076637236084% 8.941110822203573% 5.263157894736842%
Rabobank Nederland 5.263157894736842% 5.263157894736842% 4.434823531669866% 6.246215305119290% 5.263157894736842%
Societe Generale 5.263157894736842% 5.263157894736842% 3.752542986564299% 7.055937774367582% 5.263157894736842%
Wachovia Bank 5.263157894736842% 5.263157894736842% 2.164076637236084% 8.941110822203573% 5.263157894736842%
Banque Francaise du
Commerce Exterieur 3.157894736842105% 3.157894736842105% 3.411402717850288% 2.857034467809615% 3.157894736842105%
Banque Nationale de Paris 3.157894736842105% 3.157894736842105% 3.752542986564299% 2.452173237741278% 3.157894736842105%
BHF Bank 3.157894736842105% 3.157894736842105% 6.822749857965451% -1.191511910322503% 3.157894736842105%
Canadian Imperial Bank of
Commerce 3.157894736842105% 3.157894736842105% 5.458299915547025% 0.427801119290253% 3.157894736842105%
Comerica Bank 3.157894736842105% 3.157894736842105% 3.752542986564299% 2.452173237741278% 3.157894736842105%
Fuji Bank 3.157894736842105% 3.157894736842105% 3.752542986564299% 2.452173237741278% 3.157894736842105%
Generale Bank 3.157894736842105% 3.157894736842105% 3.411402717850288% 2.857034467809615% 3.157894736842105%
Goldman Sachs 3.157894736842105% 3.157894736842105% 2.477420076775432% 3.965474003117132% 3.157894736842105%
Hibernia 3.157894736842105% 3.157894736842105% 3.411402717850288% 2.857034467809615% 3.157894736842105%
Long Term Credit Bank of
Japan 3.157894736842105% 3.157894736842105% 3.411402717850288% 2.857034467809615% 3.157894736842105%
Firstrust Bank 2.105263157894737% 2.105263157894737% 2.217411761996161% 1.972166522958878% 2.105263157894737%
Lender to the Existing
Term Loan 0.000000000000000% 0.000000000000000% 2.164076637236084% -2.568300519362187% 0.000000000000000%
Lender to the Existing
Term Loan 0.000000000000000% 0.000000000000000% 1.705701358925144% -2.024306168564920% 0.000000000000000%
Lender to the Existing
Term Loan 0.000000000000000% 0.000000000000000% 1.705701358925144% -2.024306168564920% 0.000000000000000%
TOTAL 100.000000000000000% 100.000000000000000% 100.000000000000000% 100.000000000000000% 100.000000000000000%
</TABLE>
<PAGE>
EXHIBIT A-1
REVOLVING NOTE
$________________________ April 8, 1997
FOR VALUE RECEIVED, the undersigned, KEEBLER CORPORATION (formerly known as
KEEBLER HOLDING CORP.), a Delaware corporation (the "BORROWER"), promises to pay
to the order of ______________________ (the "LENDER") on the Stated Maturity
Date for Revolving Loans the principal sum of _________________________
($____________) or, if less, the aggregate unpaid principal amount of all
Revolving Loans shown on the schedule attached hereto (and any continuation
thereof) made (or continued) by the Lender pursuant to the Second Amended and
Restated Credit Agreement, dated as of April 8, 1997 (as so amended and
restated, and together with any further amendments, supplements, amendment and
restatements and other modifications from time to time thereafter made thereto,
the "CREDIT AGREEMENT"), among the Borrower, The Bank of Nova Scotia, as
Administrative Agent, the various financial institutions (including the Lender)
as are, or may from time to time become, parties thereto and the Co-Agents named
therein. Unless otherwise defined, terms used in this Note have the meanings
provided in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the Revolving Notes referred to in, and evidences
Indebtedness incurred (or continued) under, the Credit Agreement, to which
reference is made for a description of the security for this Note and for a
statement of the terms and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be declared to be
immediately due and payable.
<PAGE>
*[This Note is issued in substitution and exchange for, and not in
satisfaction or payment of, the Revolving Note, dated June 4, 1996 (the
"EXISTING REVOLVING NOTE"), payable to the order of the Lender and issued under
the Existing Credit Agreement, and the Indebtedness originally evidenced by the
Existing Revolving Note which is now evidenced by this Note shall be a
continuing Indebtedness, and nothing herein contained shall be construed to deem
the Existing Revolving Note paid, or to release or terminate any Lien given to
secure the Existing Revolving Note, which Liens shall continue to secure the
Indebtedness evidenced by this Note.]
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
KEEBLER CORPORATION
By_____________________________
Title:
_________________________
* TO BE INCLUDED IN NOTES TO ONGOING LENDERS.
-2-
<PAGE>
<TABLE>
REVOLVING LOANS AND PRINCIPAL PAYMENTS
<CAPTION>
||========|===================|==========|===================|===================|===============|=================||
|| | Amount of | | Amount of | | | ||
|| | Revolving | | Principal | Unpaid Principal | | ||
|| | Loan Made | Interest | Repaid | Balance | | ||
|| |-------------------| Period |-------------------|-------------------| | ||
|| | | | (If Ap- | | | | | | ||
|| | Alternate | LIBO | plic- | Alternate | LIBO | Alternate | LIBO | | Notation ||
|| Date | Base Rate | Rate | able) | Base Rate | Rate | Base Rate | Rate | Total | Made By ||
||=================================================================================================================||
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||=================================================================================================================||
</TABLE>
-3-
<PAGE>
EXHIBIT A-2
SWING LINE NOTE
$20,000,000 April 8, 1997
FOR VALUE RECEIVED, the undersigned, KEEBLER CORPORATION (formerly known as
KEEBLER HOLDING CORP.), a Delaware corporation (the "BORROWER"), promises to pay
to the order of THE BANK OF NOVA SCOTIA (the "LENDER") on the Stated Maturity
Date for Swing Line Loans the principal sum of TWENTY MILLION DOLLARS
($20,000,000) or, if less, the aggregate unpaid principal amount of all Swing
Line Loans shown on the schedule attached hereto (and any continuation thereof)
made (or continued) by the Lender pursuant to the Second Amended and Restated
Credit Agreement, dated as of April 8, 1997 (as so amended and restated, and
together with any further amendments, supplements, amendment and restatements
and other modifications from time to time thereafter made thereto, the "CREDIT
AGREEMENT"), among the Borrower, The Bank of Nova Scotia, as Administrative
Agent, the various financial institutions (including the Lender) as are, or may
from time to time become, parties thereto and the Co-Agents named therein.
Unless otherwise defined, terms used in this Note have the meanings provided in
the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Lender pursuant to the Credit Agreement.
This Note is the Swing Line Note referred to in, and evidences Indebtedness
incurred (or continued) under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the terms
and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be immediately due and
payable.
This Note is issued in substitution and exchange for, and not in
satisfaction or payment of, the Swing Line Note, dated June 4, 1996 (the
"EXISTING SWING LINE NOTE"), payable to the order of the Lender and issued under
the Existing Credit
<PAGE>
Agreement, and the Indebtedness originally evidenced by the Existing Swing Line
Note which is now evidenced by this Note shall be a continuing Indebtedness, and
nothing herein contained shall be construed to deem the Existing Swing Line Note
paid, or to release or terminate any Lien given to secure the Existing Swing
Line Note, which Liens shall continue to secure the Indebtedness evidenced by
this Note.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
KEEBLER CORPORATION
By___________________________
Title:
-2-
<PAGE>
<TABLE>
SWING LINE LOANS AND PRINCIPAL PAYMENTS
<CAPTION>
||===============|========================|============================|=============================|==========================||
|| | | | | ||
|| | Amount of Swing | Amount of Principal | Outstanding Principal | ||
|| Date | Line Loan | Payment | Balance | Notation Made By ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
<S> <C> <C> <C> <C>
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||---------------|------------------------|----------------------------|-----------------------------|--------------------------||
|| | | | | ||
|| | | | | ||
||==============================================================================================================================||
</TABLE>
-3-
<PAGE>
EXHIBIT A-3
TERM NOTE
$____________________________ April 8, 1997
FOR VALUE RECEIVED, the undersigned, KEEBLER CORPORATION (formerly known as
KEEBLER HOLDING CORP.), a Delaware corporation (the "BORROWER"), promises to pay
to the order of ________________________ (the "LENDER") the principal sum of
____________________ ($__________) or, if less, the aggregate unpaid principal
amount of all Term Loans shown on the schedule attached hereto (and any
continuation thereof) made (or continued) by the Lender pursuant to the Second
Amended and Restated Credit Agreement, dated as of April 8, 1997 (as so amended
and restated, and together with any further amendments, supplements, amendment
and restatements and other modifications from time to time thereafter made
thereto, the "CREDIT AGREEMENT"), among the Borrower, The Bank of Nova Scotia,
as Administrative Agent, the various financial institutions (including the
Lender) as are, or may from time to time become, parties thereto and the
Co-Agents named therein, payable in installments as set forth in the Credit
Agreement, with a final installment (in the amount necessary to pay in full this
Note) due and payable on the Stated Maturity Date for Term Loans. Unless
otherwise defined, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Note is one of the Term Notes referred to in, and evidences
Indebtedness incurred (or continued) under, the Credit Agreement, to which
reference is made for a description of the security for this Note and for a
statement of the terms and conditions on which the Borrower is permitted and
required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be declared to be
immediately due and payable.
<PAGE>
*[This Term Note is issued (in part) in substitution and exchange for, and
not in satisfaction or payment of, the Term-A Note, dated June 4, 1996, payable
to the order of the Lender and issued under the Existing Credit Agreement (the
"EXISTING TERM-A NOTE"), and the Indebtedness originally evidenced by the
Existing Term-A Note which is now evidenced by this Term Note shall be a
continuing Indebtedness, and nothing herein contained shall be construed to deem
the Existing Term Note paid, or to release or terminate any Lien given to secure
the Existing Term Note, which Liens shall continue to secure the Indebtedness
evidenced by this Term Note. This Term Note also evidences the aggregate
Indebtedness of the Borrower to the Lender resulting from the outstanding
Incremental Term Loans.]
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
KEEBLER CORPORATION
By:_____________________________
Title:
__________________________
* TO BE INCLUDED IN NOTES TO ONGOING LENDERS.
-2-
<PAGE>
<TABLE>
TERM LOANS AND PRINCIPAL PAYMENTS
<CAPTION>
||========|===================|==========|===================|===================|===============|=================||
|| | | | Amount of | | | ||
|| | Amount of Term | | Principal | Unpaid Principal | | ||
|| | Loan Made | Interest | Repaid | Balance | | ||
|| |-------------------| Period |-------------------|-------------------| | ||
|| | | | (If Ap- | | | | | | ||
|| | Alternate | LIBO | plic- | Alternate | LIBO | Alternate | LIBO | | Notation ||
|| Date | Base Rate | Rate | able) | Base Rate | Rate | Base Rate | Rate | Total | Made By ||
||=================================================================================================================||
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||--------|-----------|-------|----------|-----------|-------|-----------|-------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||=================================================================================================================||
</TABLE>
-3-
<PAGE>
EXHIBIT A-4
REGISTERED NOTE
THIS REGISTERED NOTE MAY NOT BE TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS REGISTERED NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE
ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT
AGREEMENT.
$_____________ April 8, 1997
FOR VALUE RECEIVED, the undersigned, KEEBLER CORPORATION (formerly known as
KEEBLER HOLDING CORP.), a Delaware corporation (the "BORROWER"), promises to pay
to the order of ________________ (the "LENDER") the principal sum of
_________________________ ($__________) or, if less, the aggregate unpaid
principal amount of all Term Loans shown on the schedule attached hereto (and
any continuation thereof) made (or continued) by the Lender pursuant to the
Second Amended and Restated Credit Agreement, dated as of April 8, 1997 (as so
amended and restated, and together with any further amendments, supplements,
amendment and restatements and other modifications from time to time thereafter
made thereto, the "CREDIT AGREEMENT"), among the Borrower, The Bank of Nova
Scotia, as Administrative Agent, the various financial institutions (including
the Lender) as are, or may from time to time become, parties thereto and the
Co-Agents named therein, amending and restating in its entirety the Existing
Credit Agreement, payable in installments as set forth in the Credit Agreement,
with a final installment (in the amount necessary to pay in full this Note) due
and payable on the Stated Maturity Date. Unless otherwise defined, terms used
herein have the meanings provided in the Credit Agreement.
The Borrower also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money of
the United States of America in same day or immediately available funds to the
account designated by the Administrative Agent pursuant to the Credit Agreement.
This Registered Note is one of the Notes referred to in, and evidences
Indebtedness incurred (or continued) under, the Credit Agreement, to which
reference is made for a description of the security for this Registered Note and
for a statement of the
<PAGE>
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Registered Note and on which such Indebtedness may be declared to be immediately
due and payable.
As provided in Section 10.11.3 of the Credit Agreement, this Registered
Note and the Obligation(s) evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of this Registered Note and the Obligation(s) evidenced hereby on the
Register described in clause (b) of Section 2.8 of the Credit Agreement. Any
assignment or transfer of all or part of such Obligations(s) and this Registered
Note evidencing the same shall be registered on the Register only upon surrender
for registration of assignment or transfer of this Registered Note evidencing
such Obligations(s), duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the Registered Noteholder hereof, and
thereupon one or more new Registered Note(s) in the same aggregate principal
amount shall be issued to the designated Assignee Lender, and this Registered
Note shall be returned by the Administrative Agent to the Borrower marked
"canceled". Prior to the due presentment for registration of assignment or
transfer of this Registered Note, the Borrower and the Administrative Agent
shall treat the Person in whose name such Obligation(s) and this Registered
Note(s) evidencing the same is registered as the owner thereof for the purpose
of receiving all payments thereon and for all other purposes, notwithstanding
any notice to the contrary. This Registered Note may not be exchanged for
promissory notes that are not Registered Notes.
*[This Registered Note is issued in substitution and exchange for, and not
in satisfaction or payment of, the Registered Note, dated June 4, 1996, payable
to the order of the Lender and issued under the Existing Credit Agreement (the
"EXISTING REGISTERED NOTE"), and the Indebtedness originally evidenced by the
Existing Registered Note which is now evidenced by this Registered Note shall be
a continuing Indebtedness, and nothing herein contained shall be construed to
deem the Existing Registered Note paid, or to release or terminate any Lien
given to secure the Existing Registered Note, which Liens shall continue to
secure the Indebtedness evidenced by this Registered Note. This Registered Note
also evidences the aggregate Indebtedness of the Borrower to the Lender
resulting from the outstanding Incremental Term Loans (as defined in the Credit
Agreement).]
___________________
* TO BE INCLUDED IN REGISTERED NOTES TO EXISTING LENDERS.
2
<PAGE>
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
KEEBLER CORPORATION
By:______________________________
Title:
3
<PAGE>
<TABLE>
TERM LOANS AND PRINCIPAL PAYMENTS
<CAPTION>
||=========|=============|=================|=============|=============|===============|=================||
|| | Amount of | | Amount of | Unpaid | | ||
|| | Term Loan | | Principal | Principal | | ||
|| | Made | | Repaid | Balance | | ||
|| |-------------| |-------------|-------------| | ||
|| | | | | | | | | | ||
|| | Base | LIBO | Interest Period | Base | LIBO | Base | LIBO | | Notation ||
|| Date | Rate | Rate | (If Applicable) | Rate | Rate | Rate | Rate | Total | Made By ||
||=======================================================================================================||
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||---------|------|------|-----------------|------|------|------|------|---------------|-----------------||
|| | | | | | | | | | ||
|| | | | | | | | | | ||
||=======================================================================================================||
</TABLE>
4
<PAGE>
EXHIBIT B-1
BORROWING REQUEST
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: ________________________
KEEBLER CORPORATION
-------------------
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of the
Second Amended and Restated Credit Agreement, dated as of April 8, 1997(as so
amended and restated, and together with any further amendments, supplements,
amendment and restatements and other modifications from time to time thereafter
made thereto, the "CREDIT AGREEMENT"), among Keebler Corporation (formerly known
as Keebler Holding Corp.), a Delaware corporation (the "BORROWER"), the various
financial institutions as are, or may from time to time become, parties thereto
(the "LENDERS"), the Co-Agents named therein, and The Bank of Nova Scotia, as
administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
The Borrower hereby requests that a [Revolving Loan] [Incremental Term
Loan] [Swing Line Loan] be made in the aggregate principal amount of $__________
on __________, ____ as a [LIBO Rate Loan having an Interest Period of _______
months] [Base Rate Loan].
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the
Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Loans requested hereby
constitute a representation and warranty by the Borrower that, on the date of
such Loans, and before and after giving effect thereto and to the application of
the proceeds therefrom, all statements set forth in Section 5.2.1 are true and
correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing requested
hereby, any matter certified to herein by it
<PAGE>
will not be true and correct in all material respects at such time as if then
made, it will immediately so notify the Administrative Agent. Except to the
extent, if any, that prior to the time of the Borrowing requested hereby, the
Administrative Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed once again to be
certified as true and correct in all material respects at the date of such
Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following persons at the financial institutions indicated respectively:
Amount to be Person to be Paid Name, Address, etc.
--------------------------
Transferred Name Account No. of Transferee Lender
- ------------ ---- ----------- --------------------
$__________ _____________ ___________ ____________________
____________________
Attention: _________
$__________ _____________ ___________ ____________________
____________________
Attention: _________
Balance of The Borrower _______________________________________
such proceeds ____________________
Attention: _________
-2-
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this request to be executed
and delivered by its duly Authorized Officer this ____ day of April, 1997.
KEEBLER CORPORATION
By:______________________________
Title:
-3-
<PAGE>
EXHIBIT B-2
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: ______________
KEEBLER CORPORATION
-------------------
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to Section
2.4 of the Second Amended and Restated Credit Agreement, dated as of April 8,
1997 (as so amended and restated, and together with any further amendments,
supplements, amendment and restatements and other modifications from time to
time thereafter made thereto, the "CREDIT AGREEMENT"), among Keebler Corporation
(formerly known as Holding Corp.), a Delaware corporation (the "BORROWER"), the
various financial institutions as are, or may from time to time become, parties
thereto (the "LENDERS"), the Co-Agents named therein and The Bank of Nova
Scotia, as Administrative Agent. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that on ____________,
(1) $___________ of the presently outstanding principal amount of the
[Term Loans] [Revolving Loans] originally made on ____________, [and
$__________ of the presently outstanding principal amount of the [Term
Loans] [Revolving Loans] originally made on ___________],
(2) and all presently being maintained as 1/[Base Rate Loans] [LIBO
Rate Loans],
(3) be [converted into] [continued as],
(4) [LIBO Rate Loans having an Interest Period of ______ months] [Base
Rate Loans].
_______________________
1/ Select appropriate interest rate option.
<PAGE>
The Borrower hereby:
(a) certifies and warrants that no Default has occurred and is
continuing; and
(b) agrees that if prior to the time of such continuation or
conversion any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed to be certified at the date of such continuation or conversion as if
then made.
The Borrower has caused this Continuation/Conversion Notice to be executed
and delivered, and the certification and warranties contained herein to be made,
by its Authorized Officer this ___ day of __________.
KEEBLER CORPORATION
By:_____________________________
Title:
-2-
<PAGE>
EXHIBIT D
CLOSING DATE CERTIFICATE
KEEBLER CORPORATION
-------------------
This certificate is delivered pursuant to the Second Amended and Restated
Credit Agreement, dated as of April 8, 1997 (as so amended and restated, and
together with any further amendments, supplements, amendment and restatements
and other modifications from time to time thereafter made thereto, the "CREDIT
AGREEMENT"), among Keebler Corporation (formerly known as Keebler Holding
Corp.), a Delaware corporation (the "BORROWER"), the various financial
institutions as are, or may from time to time become, parties thereto (the
"LENDERS"), the Co-Agents named therein and The Bank of Nova Scotia, as
Administrative Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein or in any of the attachments hereto have the
meanings provided in the Credit Agreement.
The undersigned hereby certifies, represents and warrants that, as of the
Amendment Effective Date, all of the conditions to the Initial Credit Extensions
as set forth in Section 5.1 of the Credit Agreement have been met.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered, and the certification, representations and warranties
contained herein to be made, by its duly Authorized Officer this 8th day of
April, 1997.
KEEBLER CORPORATION
By:___________________________
Title:
<PAGE>
EXHIBIT E
COMPLIANCE CERTIFICATE
KEEBLER CORPORATION
-------------------
This Compliance Certificate is delivered pursuant to clause (c) of Section
7.1.1 of the Second Amended and Restated Credit Agreement, dated as of April 8,
1997 (as so amended and restated, and together with any further amendments,
supplements, amendment and restatements and other modifications from time to
time thereafter made thereto, the "CREDIT AGREEMENT"), among Keebler Corporation
(formerly known as Keebler Holding Corp.), a Delaware corporation (the
"BORROWER"), the various financial institutions as are, or may from time to time
become, parties thereto (the "LENDERS"), the Co-Agents named therein and The
Bank of Nova Scotia, as Administrative Agent. Unless otherwise defined herein or
the context otherwise requires, terms used herein or in any of the attachments
hereto have the meanings provided in the Credit Agreement.
The Borrower hereby certifies, represents and warrants that for the period
(the "COMPUTATION PERIOD") commencing on _____________, and ending on
___________ (such latter date being the "COMPUTATION DATE") no Default had
occurred and was continuing. The Borrower hereby further certifies, represents
and warrants that as of the Computation Date:
(a) Net Worth (the consolidated net worth of the Borrower and its
Subsidiaries) was $_________. The minimum Net Worth required pursuant to
clause (a) of Section 7.2.4 of the Credit Agreement on the Computation Date
was $________, as computed on ATTACHED 1 hereto.
(b) The Debt to EBITDA ratio was ________:1, as computed on
ATTACHMENT 2 hereto. The maximum Debt to EBITDA ratio permitted pursuant to
clause (b) of Section 7.2.4 of the Credit Agreement on the Computation Date
was ________:1.
(c) The Interest Coverage Ratio was ________:1, as computed on
ATTACHMENT 3 hereto. The minimum Interest Coverage Ratio permitted pursuant
to clause (c) of Section 7.2.4 of the Credit Agreement on the Computation
Date was ________:1.
(d) The Cash Flow Coverage Ratio was ________:1, as computed on
ATTACHMENT 4 hereto. The minimum Cash Flow Coverage Ratio permitted
pursuant to clause (d) of Section
<PAGE>
7.2.4 of the Credit Agreement on the Computation Date was ________:1.
The Equipment and Inventory is located as indicated on ITEM A of
ATTACHMENT 5 hereto or as set forth on the relevant Item of the relevant
Security Agreement or in a previous Compliance Certificate.
The chief executive office of the Borrower or any Subsidiary where the
Borrower or any Subsidiary keeps their records concerning the Receivables, and
all originals of all chattel paper which evidences Receivables, is located as
indicated on ITEM C of ATTACHMENT 5 hereto or as set forth on the relevant Item
of the relevant Security Agreement or in a previous Compliance Certificate.
Neither the Borrower nor any Subsidiary has changed its legal name, used
any tradename (except as listed in the Borrower Security Agreement or the
Subsidiary Security Agreement (as applicable)) or been the subject of any merger
or other corporate reorganization except (i) as indicated on ITEM D of
ATTACHMENT 5 hereto, (ii) as set forth on the relevant Item of the relevant
Security Agreement or (iii) as set forth in a previous Compliance Certificate.
The Deposit Accounts are located as indicated on ITEM E of ATTACHMENT 5
hereto or as set forth on the relevant Item of the relevant Security Agreement
or in a previous Compliance Certificate.
-2-
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Compliance Certificate to
be executed and delivered, and the certification and warranties contained herein
to be made, by its chief financial Authorized Officer on _______________.
KEEBLER CORPORATION
By________________________
Title:
-3-
<PAGE>
Attachment 1
(to __/__/__ Compliance
Certificate)
NET WORTH (ADJUSTED)
--------------------
on ___________
(the "Computation Date")
NET WORTH (ADJUSTED):
- ---------------------
1. Net Income: the net income of the Borrower and its
Subsidiaries (in excess of zero), on a consolidated
basis, excluding extraordinary gains, from
December 28, 1996 to the date of determination......... $_____________
2. The amount in Item 1 divided by 2...................... $_____________
3. NET WORTH (ADJUSTED): the amount in ITEM 2 plus
$170,000,000........................................... $_____________
1-1
<PAGE>
Attachment 2
(to __/__/__ Compliance
Certificate)
DEBT TO EBITDA RATIO
--------------------
on ___________
(the "Computation Date")
DEBT TO EBITDA RATIO:
- --------------------
1. Debt: the outstanding principal amount of all
Indebtedness of the Borrower and its Subsidiaries
on the last day of the ________ Fiscal Quarter
(PROVIDED that Debt shall not include unsecured
Indebtedness incurred in the ordinary course of
business in the nature of accrued liabilities
and open accounts extended by suppliers on normal
trade terms in connection with purchases of goods
and services, but excluding the Indebtedness
incurred through the borrowing of money or Contingent
Liabilities in connection therewith. Debt of the
Borrower and its Subsidiaries shall include the
Indebtedness of any partnership or joint venture
in which the Borrower or its Subsidiaries is a
general partner or a joint venturer (to the
extent the Borrower or its Subsidiaries is liable
for such Indebtedness)), comprised of:
(a) all obligations of the Borrower and its
Subsidiaries for borrowed money and all
obligations of the Borrower and its
Subsidiaries evidenced by bonds,
debentures, notes or other similar
instruments for borrowed money in
respect thereof.................................. $_____________
2-2
<PAGE>
(b) all obligations, contingent or otherwise,
relative to the face amount of all letters
of credit, whether or not drawn, and banker's
acceptances issued for the account of the
Borrower and its Subsidiaries (except to the
extent that the reimbursement obligations
under letters of credit are guaranteed by
UB Investments plc., and without duplication
of letters of credit issued to support
obligations under industrial development
revenue bonds to the extent the obligations
arising under such bonds are otherwise
included in this definition)..................... $_____________
(c) all obligations of the Borrower and its
Subsidiaries as lessee under leases which
have been or should be, in accordance with
GAAP, recorded as Capitalized Lease Liabilities.. $_____________
(d) whether or not so included as liabilities
in accordance with GAAP, all obligations of
the Borrower and its Subsidiaries to pay the
deferred purchase price of property or
services, and indebtedness (excluding
prepaid interest thereon and interest not
yet due) secured by a Lien on property owned
or being purchased by the Borrower or its
Subsidiaries (including indebtedness arising
under conditional sales or other title retention
agreements), whether or not such indebtedness
shall have been assumed by the Borrower or its
Subsidiaries or is limited in recourse; PROVIDED,
HOWEVER, that, for purposes of determining the
amount of any Indebtedness of the type described
in this clause, if recourse with respect to such
Indebtedness is limited to specific property
financed with such Indebtedness, the amount of
such Indebtedness shall be limited to the fair
market value (determined on a basis reasonably
acceptable to the Administrative Agent) of such
property or the principal amount of such
Indebtedness, whichever is less.................. $_____________
2-3
<PAGE>
(e) all Receivables Facility Outstandings............ $_____________
(f) all Contingent Liabilities of the
Borrower and its Subsidiaries in
respect of any of the foregoing.................. $_____________
2. Debt: the sum of ITEMS 1(a) through 1(f).............. $_____________
3. *EBITDA: the sum (without duplication) of:
(a) Net Income (the net income of the
Borrower and its Subsidiaries for
such period on a consolidated basis,
excluding extraordinary gains)................... $_____________
(b) the amount deducted, in determining Net
Income, representing amortization................ $_____________
(c) the amount deducted, in determining Net
Income, of all income taxes (whether
paid or deferred) of the Borrower and
its Subsidiaries................................. $_____________
(d) Interest Expense (the aggregate
consolidated cash interest expense
(net of interest income) of the Borrower
and its Subsidiaries for such Fiscal
Quarters, as determined in accordance
with GAAP, including (i) the portion of
any payments made in respect of Capitalized
Lease Liabilities allocable to interest
expense and (ii) interest (or other fees
in the nature of interest or discount
accrued and paid or payable in cash for
such Fiscal Quarter) in respect of the
Permitted Receivables Transaction)............... $_____________
(e) the amount deducted, in determining Net
Income, representing depreciation of assets...... $_____________
(f) an amount equal to the amount of all
extraordinary, non-recurring non-cash
charges deducted in arriving at Net Income....... $_____________
____________________________
* Computed for the period consisting of such Fiscal Quarter and each of the
three immediately preceding Fiscal Quarters.
2-4
<PAGE>
(g) an amount equal to the amount of all
extraordinary, non-recurring non-cash
credits included in arriving at Net Income....... $_____________
4. EBITDA: the sum of ITEMS 3(a) through 3(f)
minus ITEM 3(g)....................................... $_____________
5. DEBT TO EBITDA RATIO: ratio of ITEM 2 to ITEM 4...... : 1.0
--------------
2-5
<PAGE>
Attachment 3
(to __/__/__ Compliance
Certificate)
*INTEREST COVERAGE RATIO
-----------------------
on ___________
(the "Computation Date")
INTEREST COVERAGE RATIO:
- -----------------------
1. EBITDA (see ITEM 4 of ATTACHMENT 2)................... $_____________
2. Interest Expense (see ITME 3(d) of ATTACHMENT 2)...... $_____________
3. INTEREST COVERAGE RATIO: ratio of ITEM 1 to ITEM 2... : 1.0
--------------
_____________________
* At the close of any Fiscal Quarter, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters.
3-1
<PAGE>
Attachment 4
(to __/__/__ Compliance
Certificate)
*CASH FLOW COVERAGE RATIO
------------------------
on ___________
(the "Computation Date")
CASH FLOW COVERAGE RATIO:
- ------------------------
1. (a) EBITDA (see ITEM 4 of ATTACHMENT 2).............. $_____________
(b) the amount of all management and consulting
fees paid pursuant to Section 7.2.11 of the
Credit Agreement................................. $_____________
(c) the sum of ITEMS 1(a) and 1(b)................... $_____________
2. Capital Expenditures: the sum (without duplication) of:
(a) the aggregate amount of all expenditures
of the Borrower and its Subsidiaries for
fixed or capital assets made during such
period which, in accordance with GAAP,
would be classified as capital expenditures...... $_____________
(b) the aggregate amount of all Capitalized
Lease Liabilities incurred during such period.... $_____________
(c) the sum of ITEMS 2(a) and 2(b)................... $_____________
4. The amount in ITEM 1(c) minus the amount in ITEM 2(c). $_____________
5. Interest Expense (see ITEM 3(d) of ATTACHMENT 2)...... $_____________
____________________
* As of the close of any Fiscal Quarter, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters with respect to the Borrower and its Subsidiaries on a
consolidated basis.
4-1
<PAGE>
6. Scheduled, mandatory principal repayments
of Debt (including *[scheduled amortization
repayments of Existing Term Loans under the
terms of the Existing Credit Agreement and]
principal repayments of the Term Loans pursuant
to the provisions of clause (f) of Section 3.1.1
of the Credit Agreement, but excluding the amount
of Debt which is refinanced with other Debt pursuant
to Section 7.2.2 of the Credit Agreement, to the
extent so refinanced (including the principal
repayments of Subordinated Debt to the extent
made with the proceeds of other Subordinated
Debt issued to refinance or replace such original
Subordinated Debt in accordance with the terms
of the Credit Agreement))............................. $_____________
7. All federal, state, local and foreign income
taxes actually paid in cash by the Borrower and
its Subsidiaries...................................... $_____________
8. the payment of any dividends pursuant to
clause (d)(iv) of Section 7.2.6 of the
Credit Agreement...................................... $_____________
9. the amount of all management and consulting
fees paid pursuant to Section 7.2.11 of the
Credit Agreement...................................... $_____________
11. The sum of ITEMS 5 through 9.......................... $_____________
12. CASH FLOW COVERAGE RATIO: ratio of ITEM 4 to ITEM 11. : 1.0
--------------
___________________________
* BNS - IS THIS STILL NECESSARY/APPROPRIATE?
4-2
<PAGE>
Attachment 5
(to __/__/__ Compliance
Certificate)
Item A. CHANGE OF LOCATION OF EQUIPMENT
-------------------------------
DESCRIPTION NEW LOCATION
----------- ------------
1.
2.
3.
4.
5.
Item B. CHANGE OF LOCATION OF INVENTORY
-------------------------------
DESCRIPTION NEW LOCATION
----------- ------------
1.
2.
3.
4.
5.
Item C. CHANGE OF PLACE OF BUSINESS, ETC.
---------------------------------
NAME OF BORROWER OR SUBSIDIARY NEW ADDRESS
------------------------------ -----------
1.
2.
3.
4.
5.
5-1
<PAGE>
Item D. CHANGE OF TRADE OR LEGAL NAMES
------------------------------
New Trade Name or
NAME OF BORROWER OR SUBSIDIARY NEW LEGAL NAME
------------------------------ --------------
1.
2.
3.
4.
5.
Item E. NEW DEPOSIT ACCOUNTS
--------------------
Account
BANK ADDRESS OF BANK TYPE OF ACCOUNT NUMBER
---- --------------- --------------- ------
5-2
<PAGE>
EXHIBIT F-1
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT F-2
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT G-1
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT G-2
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT G-3
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT H-1
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT H-2
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT I
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT J
LENDER ASSIGNMENT AGREEMENT
(NOTICE)
To: KEEBLER CORPORATION
677 Larch Avenue
Elmhurst, Illinois 60126
Attention: E. Nichol McCully
To: THE BANK OF NOVA SCOTIA,
as the Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention: ____________________
KEEBLER CORPORATION
-------------------
Gentlemen and Ladies:
We refer to clause (d) of Section 10.11.1 of the Second Amended and
Restated Credit Agreement, dated as of April 8, 1997 (as so amended and
restated, and together with any further amendments, supplements, amendment and
restatements and other modifications from time to time thereafter made thereto,
the "CREDIT AGREEMENT"), among Keebler Corporation (formerly known as Keebler
Holding Corp.), a Delaware corporation (the "BORROWER"), the various financial
institutions as are, or may from time to time become, parties thereto (the
"LENDERS"), the Co-Agents named therein and The Bank of Nova Scotia, as
Administrative Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Credit Agreement.
This agreement is delivered to you pursuant to clause (d) of Section
10.11.1 of the Credit Agreement and also constitutes notice to each of you,
pursuant to clause (c) of Section 10.11.1 of the Credit Agreement, of the
assignment and delegation to _______________ (the "ASSIGNEE") of $____________
of the [insert type of Loans being assigned] and (constituting ___% of the
Commitments) of _____________ (the "ASSIGNOR") outstanding under the Credit
Agreement on the date hereof. After giving effect to the foregoing assignment
and delegation, the Assignor's and the Assignee's Percentages for the purposes
of the Credit Agreement are set forth opposite such Person's name on the
signature pages hereof.
<PAGE>
[Add paragraph dealing with accrued interest and fees with
respect to the Loans assigned.]
The Assignee hereby acknowledges and confirms that it has received a copy
of the Credit Agreement and the exhibits related thereto, together with copies
of the documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Loans thereunder. The Assignee further
confirms and agrees that in becoming a Lender and in making its Commitments and
Loans under the Credit Agreement, the Assignee has performed its own analysis of
the creditworthiness and financial condition of the Borrower and the other
Obligors and such actions have and will be made without recourse to, or
representation or warranty by the Administrative Agent.
Except as otherwise provided in the Credit Agreement, effective as of the
date of acceptance hereof by the Administrative Agent
(a) the Assignee
(i) shall be deemed automatically to have become a party to the
Credit Agreement, have all the rights and obligations of a "Lender"
under the Credit Agreement and the other Loan Documents as if it were
an original signatory thereto to the extent specified in the second
paragraph hereof;
(ii) agrees to be bound by the terms and conditions set forth in
the Credit Agreement and the other Loan Documents as if it were an
original signatory thereto; and
(b) the Assignor shall be released from its obligations under the
Credit Agreement and the other Loan Documents to the extent specified in
the second paragraph hereof.
The Assignor and the Assignee hereby agree that the [Assignor] [Assignee]
will pay to the Administrative Agent the processing fee referred to in Section
10.11.1 of the Credit Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and Commitments and requests the
Administrative Agent to acknowledge receipt of this document:
-2-
<PAGE>
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback):
LIBOR Office:
Telephone:
Facsimile:
Telex (Answerback):
(B) Payment Instructions:
The Assignee agrees to furnish the tax form required by the second to last
sentence of Section 4.6 (if so required) of the Credit Agreement no later than
the date of acceptance hereof by the Administrative Agent.
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
-3-
<PAGE>
ADJUSTED PERCENTAGE [THE ASSIGNOR],
- ------------------- as Assignor
Term Loan Commitment
and
Term Loans: __% By: _____________________
Title:
Revolving Loan
Commitment
and
Revolving Loans: __%
PERCENTAGE [THE ASSIGNEE],
- ---------- as Assignee
Term Loan Commitment
and
Term Loans: __% By: _____________________
Title:
Revolving Loan
Commitment
and
Revolving Loans: __%
Accepted and Acknowledged
this __ day of _______, ____
The Bank of Nova Scotia,
as Administrative Agent
By:________________________
Title:
KEEBLER CORPORATION
By:_______________________
Title:
-4-
<PAGE>
EXHIBIT K
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT L
SEE EXISTING CREDIT AGREEMENT
<PAGE>
EXHIBIT M
SEE EXISTING CREDIT AGREEMENT
<PAGE>
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of October 3, 1997 (this "AMENDATORY
AGREEMENT"), to the Existing Credit Agreement (as defined below), is made among
KEEBLER CORPORATION (formerly known as Keebler Holding Corp.), a Delaware
corporation (the "BORROWER"), the various financial institutions signatories
hereto (the "LENDERS"), the Co-Agents (as defined below) and THE BANK OF NOVA
SCOTIA, as administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders.
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower, the Lenders, the Co-Agents and the
Administrative Agent are parties to an Second Amended and Restated Credit
Agreement, dated as of April 8, 1997 (as further amended, supplemented, amended
and restated or otherwise modified to the date hereof, the "EXISTING CREDIT
AGREEMENT");
WHEREAS, the Borrower has requested that the Lenders amend certain
pricing provisions contained in the Existing Credit Agreement and release
certain of the Collateral, subject in part to the Borrower achieving investment
grade status; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects as provided below (the Existing Credit Agreement, as so amended by this
Amendatory Agreement, being referred to as the "CREDIT AGREEMENT");
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. CERTAIN DEFINITIONS. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
<PAGE>
"AMENDATORY AGREEMENT" is defined in the PREAMBLE.
"AMENDMENT NO. 1" is defined in SUBPART 3.1.
"BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in the THIRD RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"LENDERS" is defined in the PREAMBLE.
"FIRST AMENDMENT EFFECTIVE DATE" is defined in SUBPART 3.1.
"IMPLIED DEBT RATING" means the implied rating of the Borrower's senior
Indebtedness from either S&P or Moody's.
SUBPART 1.2. OTHER DEFINITIONS. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with SUBPART 2.1; except as so amended, the Existing Credit Agreement shall
continue in full force and effect in accordance with its terms.
SUBPART 2.1. AMENDMENTS TO ARTICLE I. Article I of the Existing Credit
Agreement is hereby amended in accordance with SUBPARTS 2.1.1 and 2.1.2.
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"AMENDMENT NO. 1" means the First Amendment to Second Amended
and Restated Credit Agreement, dated as of October 3, 1997, among the
Borrower, the Lenders, the Co-Agents and the Administrative Agent.
"FIRST AMENDMENT EFFECTIVE DATE" is defined in
Subpart 3.1 of Amendment No. 1.
-2-
<PAGE>
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is further
amended as follows:
(a) The pricing chart contained in the definition of
"Applicable Commitment Fee Margin" is hereby amended in its entirety to
read as follows:
Applicable
DEBT TO EBITDA RATIO COMMITMENT FEE MARGIN
-------------------- ---------------------
Greater than or equal to 3.5:1 0.375%
Greater than or equal to 3.00:1
and less than 3.50:1 0.300%
Greater than or equal to 2.50:1
and less than 3.00:1 0.250%
Greater than or equal to 2.00:1
and less than 2.50:1 0.200%
Greater than or equal to 1.50:1
and less than 2.00:1 0.150%
Less than 1.50:1 0.125%
(b) The pricing chart contained in, the definition of
"Applicable Margin" is hereby amended in its entirety to read as
follows:
<TABLE>
<CAPTION>
Applicable Applicable
Margin For Base Margin For LIBO
DEBT TO EBITDA RATIO RATE LOANS RATE LOANS
- -------------------- --------------- ---------------
<S> <C> <C>
Greater than or equal to 3.50:1 0.375% 1.375%
Greater than or equal to 3.00:1
and less than 3.50:1 0.125% 1.125%
Greater than or equal to 2.50:1
and less than 3.00:1 0.000% 0.875%
Greater than or equal to 2.00:1
and less than 2.50:1 0.000% 0.625%
Greater than or equal to 1.50:1
and less than 2.00:1 0.000% 0.500%
Less than 1.50:1 0.000% 0.400%
</TABLE>
-3-
<PAGE>
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. FIRST AMENDMENT EFFECTIVE DATE. This Amendatory Agreement
(and the amendments and modifications contained herein) shall become effective,
and shall thereafter be referred to as "AMENDMENT NO. 1", on the date (the
"FIRST AMENDMENT EFFECTIVE DATE") when all of the conditions set forth in this
SUBPART 3.1 have been satisfied.
SUBPART 3.1.1. EXECUTION OF COUNTERPARTS. The Administrative Agent
shall have received counterparts of this Amendatory Agreement, duly executed and
delivered on behalf of the Borrower and each of the Lenders.
SUBPART 3.1.2. DELIVERY OF AFFIRMATION AND CONSENT. The Administrative
Agent shall have received the Affirmation and Consent duly executed and
delivered by the parties thereto in substantially the form of ANNEX I hereto.
SUBPART 3.1.3. LEGAL DETAILS, ETC. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendatory Agreement shall be satisfactory to
the Administrative Agent and its counsel.
PART IV
RELEASE OF COLLATERAL
Each of the Lenders hereby acknowledges and agrees that (a) on and as
of the First Amendment Effective Date, all Collateral granted by the Borrower
and each of the Borrower's Subsidiaries pursuant to a Loan Document (other than
a Pledge Agreement) shall be released from the Lien of such Loan Document and
(b) as soon as practicable after the Administrative Agent receives evidence
reasonably satisfactory to it from the Borrower that an Implied Debt Rating of
BBB- from S&P or Baa3 from Moody's is currently in effect, all Collateral
pledged by Holdings, the Borrower and each of the Borrower's Subsidiaries
pursuant to a Pledge Agreement shall be released from the Lien of such Pledge
Agreement. Each of the Lenders hereby authorizes the Administrative Agent to
take all actions and execute all documentation necessary to effect the
foregoing. Notwithstanding the foregoing, the Borrower
-4-
<PAGE>
acknowledges and agrees that the provisions of Section 7.2.3 of the Credit
Agreement shall remain in full force and effect.
PART V
MISCELLANEOUS
SUBPART 5.1. CROSS-REFERENCES. References in this Amendatory Agreement
to any Part or Subpart are, unless otherwise specified or otherwise required by
the context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 5.2. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT. This
Amendatory Agreement is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement.
SUBPART 5.3. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. The Borrower
represents and warrants on the First Amendment Effective Date for its
Subsidiaries and itself, both before and after giving effect to this Amendatory
Agreement, as follows:
(a) the representations and warranties set forth in Article VI
of the Credit Agreement and in each other Loan Document are, in each
case, true and correct in all material respects (unless stated to
relate solely to an earlier date, in which case such representations
and warranties were true and correct in all material respects as of
such earlier date);
(b) no material adverse development has occurred in any
litigation, action, proceeding, labor controversy, arbitration or
governmental investigation disclosed pursuant to Section 6.7 of the
Credit Agreement;
(c) the sum of (x) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (y) all Letter of
Credit Outstandings does not exceed the Revolving Loan Commitment
Amount; and
(d) no Default has occurred and is continuing.
SUBPART 5.4. SUCCESSORS AND ASSIGNS. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
-5-
<PAGE>
SUBPART 5.5. COUNTERPARTS. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 5.6. GOVERNING LAW. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
-6-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
KEEBLER CORPORATION
By: /s/ E. NICHOL MCCULLY
------------------------------
Name: E. Nichol McCully
Title: Sr. Vice President and
Chief Financial Officer
THE BANK OF NOVA SCOTIA, as
Administrative Agent, the Issuer
and a Lender
By: /s/ TERRY K. FRYETT
------------------------------
Name: Terry K. Fryett
Title: Authorized Signatory
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Lender
By: /s/ BRETT NEUBERT
------------------------------
Name: Brett Neubert
Title: Authorized Agent
<PAGE>
BANK OF MONTREAL, as a Co-Agent and
a Lender
By: /s/ PETER E. WALSH
------------------------------
Name: Peter E. Walsh
Title: Director
<PAGE>
SUNTRUST BANK, ATLANTA, as a Co-Agent
and a Lender
By: /s/ THOMAS R. BANKS
------------------------------
Name: Thomas R. Banks
Title: Assistant Vice President
By: /s/ DAVID W. PENTER
------------------------------
Name: David W. Penter
Title: Group Vice President
<PAGE>
NATIONSBANK, N.A. successor by merger to
NATIONSBANK, N.A. (SOUTH), as a
Co-Agent and a Lender
By: /s/ KATHRYN W. ROBINSON
------------------------------
Name: Kathryn W. Robinson
Title: Senior Vice President
<PAGE>
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ DAPHNE LEE
------------------------------
Name: Daphne Lee
Title: Vice President
By: /s/ RONALD BRANDON
------------------------------
Name: Ronald Brandon
Title: Assistant Vice President
<PAGE>
THE NORTHERN TRUST COMPANY
By: /s/ J. MARK BERRY
------------------------------
Name: J. Mark Berry
Title: Vice President
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,"RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ ROBERT B. BENOIT
------------------------------
Name: Robert B. Benoit
Title: Senior Vice President
By: /s/ ANGELA R. REILLY
------------------------------
Name: Angela R. Reilly
Title: Vice President
<PAGE>
SOCIETE GENERALE
By: /s/ JOHN M. STACK
------------------------------
Name: John M. Stack
Title: Director
<PAGE>
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ J. TIMOTHY TOLER
------------------------------
Name: J. Timothy Toler
Title: Senior Vice President
<PAGE>
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/ PIETER J. VAN TULDER
------------------------------
Name: Pieter J. van Tulder
Title: Vice President and Manager
Multinational Group
By: /s/ JOHN RIGO
------------------------------
Name: John Rigo
Title: Assistant Vice President
<PAGE>
BANQUE NATIONALE DE PARIS
By: /s/ ARNAUD COLLIN DU BOCAGE
------------------------------
Name: Arnaud Collin du Bocage
Title: Executive Vice President and
General Manager
<PAGE>
COMERICA BANK
By: /s/ GREGORY N. BLOCK
------------------------------
Name: Gregory N. Block
Title: Vice President
<PAGE>
THE FUJI BANK, LIMITED
By: /s/ PETER L. CHINNICI
------------------------------
Name: Peter L. Chinnici
Title: Joint General Manager
<PAGE>
GENERALE BANK, NEW YORK BRANCH
By: /s/ A. EDWIN MATTHEWS
------------------------------
Name: A. Edwin Matthews
Title: Senior Vice President
By: /s/ HANTZEL NEUKOMM
------------------------------
Name: Hantzel Neukomm
Title: Senior Vice President
<PAGE>
HIBERNIA NATIONAL BANK
By: /s/ CHRISTOPHER B. PITRE
------------------------------
Name: Christopher B. Pitre
Title: Assistant Vice President
<PAGE>
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ ARMUND J. SCHOEN, JR.
------------------------------
Name: Armund J. Schoen, Jr.
Title: Senior Vice President
<PAGE>
FIRSTRUST BANK
By: /s/ EDWARD D'ANCONA
------------------------------
Name: Edward D'Ancona
Title: Chief Banking Officer
<PAGE>
ANNEX I
AFFIRMATION AND CONSENT
-----------------------
October 3, 1997
The Bank of Nova Scotia,
as Administrative Agent
under the Credit Agreement
referred to below
-and-
Each of the Lenders party
to the Credit Agreement
referred to below.
KEEBLER CORPORATION
-------------------
Ladies and Gentlemen:
This Affirmation and Consent is being delivered to the Administrative
Agent and the Lenders pursuant to Subpart 3.1.2 of the First Amendment, dated as
of the date hereof ("AMENDMENT NO. 1"), to the Second Amended and Restated
Credit Agreement, dated as of April 8, 1997 (as further amended or otherwise
modified prior to the date hereof, the "EXISTING CREDIT AGREEMENT"), among
Keebler Corporation (formerly known as Keebler Holding Corp.), a Delaware
corporation (the "BORROWER"), The Bank of Nova Scotia, as Administrative Agent,
the various financial institutions as are, or may from time to time become,
parties thereto (the "LENDERS") and the Co-Agents named therein. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in, or by reference in, Amendment No. 1.
By its signature below, each of the undersigned Obligors hereby
acknowledges the amendments to the Existing Credit Agreement pursuant to the
terms and provisions set forth in Amendment No. 1. Each of the undersigned
Obligors hereby reaffirms, as of the First Amendment Effective Date, (i) the
covenants and agreements contained in each Loan Document to which it is a party,
including, in each case, as such covenants and agreements may be modified by
Amendment No. 1 and the transactions contemplated thereby, (ii) its grant of
security interest pursuant to the Subsidiary Pledge Agreement (in the case of
each Subsidiary) and the Holdings Pledge Agreement (in the case of Holdings),
and (iii) its guarantee of payment of the Obligations pursuant to the Subsidiary
Guaranty and the Holdings Guaranty (as applicable).
<PAGE>
Each of the undersigned Obligors hereby certifies that, as of the date
hereof (both before and after giving effect to the occurrence of the First
Amendment Effective Date), the representations and warranties made by it in the
Loan Documents to which it is a party are true and correct in all material
respects with the same effect as if made on the date hereof (unless stated to
relate solely to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date).
Each of the undersigned Obligors further confirms that each Loan
Document to which it is a party is and shall continue to be in full force and
effect and the same are hereby ratified and confirmed in all respects, except
that upon the occurrence of the First Amendment Effective Date, all references
in such Loan Documents to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", or words of similar import shall mean the Credit
Agreement and the Loan Documents, as the case may be, in each case after giving
effect to the amendments and other modifications provided for in Amendment No.
1.
Each of the undersigned Obligors hereby acknowledges and agrees that
the acceptance by the Administrative Agent and each Lender of this document
shall not be construed in any manner to establish any course of dealing on the
Administrative Agent's or Lender's part, including the providing of any notice
or the requesting of any acknowledgement not otherwise expressly provided for in
any Loan Document with respect to any future amendment, waiver, supplement or
other modification to any Loan Document or any arrangement contemplated by any
Loan Document.
-2-
<PAGE>
IN WITNESS WHEREOF, each of the undersigned Obligors have executed and
delivered this Affirmation and Consent as of the date first above written.
INFLO HOLDINGS CORPORATION
By: /s/ E. NICHOL MCCULLY
------------------------------
Name: E. Nichol McCully
Title: Sr. Vice President and Chief
Financial Officer
BAKE-LINE PRODUCTS INC.
HOLLOW TREE COMPANY
ILLINOIS BAKING CORPORATION
JOHNSTON'S READY-CRUST COMPANY
KEEBLER COOKIE AND CRACKER COMPANY
KEEBLER COMPANY/PUERTO RICO, INC.
KEEBLER H.C. INC.
KEEBLER COMPANY
KEEBLER-GEORGIA, INC.
STEAMBOAT CORPORATION
By: /s/ E. NICHOL MCCULLY
------------------------------
Name: E. Nichol McCully
Title: Sr. Vice President and Chief
Financial Officer
KEEBLER LEASING CORP.
By: /s/ E. NICHOL MCCULLY
------------------------------
Name: E. Nichol McCully
Title: Sr. Vice President and Chief
Financial Officer
<PAGE>
EXHIBIT A
---------
STOCK APPRECIATION RIGHTS PLAN
OF
KEEBLER CORPORATION
FOR
CERTAIN MANAGEMENT EMPLOYEES
1. PURPOSE OF THE PLAN
-------------------
The purpose of this Stock Appreciation Rights Plan of Keebler
Corporation for Certain Management Employees is to provide certain employees of
the Company, or its subsidiaries or affiliates, with an incentive-based
opportunity to share in the success of the Company, as reflected in the share
price of the Company's sole shareholder and untimate parent entity, INFLO
Holdings Corporation, resulting from their individual contributions, and to
encourage an interest by such employees in the financial success of the Company.
2. DEFINITIONS
-----------
(a) "Appreciation Unit" means a unit of participation in the Plan,
representing the right to receive on the Trigger Date an amount in cash equal to
the difference between the Exercise Value and the Initial Value of such unit.
(b) "Board of Directors" means the Board of Directors of the Company.
(c) "Employee" means certain management employees of the Company, or
its subsidiaries or affiliates, selected by the Company to receive Appreciation
Units.
(d) "Company" means Keebler Corporation, a Delaware corporation, and
its successors and assigns.
(e) "EBITDA Target" shall mean the dollar amounts set forth in Section
5(b) under the heading "EBITDA Target", PROVIDED THAT, to the extent that (i)
the Company or any of its subsidiaries or affiliates disposes or acquires assets
or businesses outside of the ordinary course of business, the Plan Committee
will decrease or increase, as the case may be, the EBITDA Target to reflect such
dispositions or acquisitions, and (ii) the Plan Committee reserves the right to
adjust the EBITDA Target for existing or future periods by increasing or
decreasing the EBITDA Target to reflect changes in business circumstances.
(f) "Exercise Value" means an amount equal to the fair market value of
one INFLO Share on the Trigger Date, as determined in good faith by the Board of
Directors, based on such factors as the Board of Directors deems appropriate,
including but not limited to, the consideration, if any, received by
shareholders of the Company for INFLO Shares on the Trigger Date. Such
determination of Exercise Value shall, in the absence of fraud, be final,
conclusive and binding upon the Employees.
(g) "Final Vesting Date" means the day after the Trigger Date.
<PAGE>
(h) "INFLO" means INFLO Holdings Corporation, a Delaware corporation.
(i) "INFLO Shares" means shares of the Class A Common Stock, par value
$.01 per share, of INFLO.
(j) "Initial Value" means U.S. $10.00, as adjusted pursuant to Section
5(e) and/or Section 7 hereof.
(k) "Permanent Disability" means if the Employee is unable to engage in
the activities required by the Employee's job by reason of any
medically-determined physical or mental impairment which can be expected to
result in death or which has lasted, or can be expected to last, for a
continuous period of not less than twelve (12) months (in each case, as
determined in good faith by a majority of the Plan Committee, which
determination shall be conclusive).
(l) "Plan" means this Stock Appreciation Rights Plan of the Company for
Certain Management Employees, as it may be amended from time to time.
(m) "Plan Committee" means a Committee as determined, from time to
time, by the Board of Directors and initially comprised of the persons having
the following responsibilities:
a) the President of the Company
b) the Chief Financial Officer of the Company, and
c) the Vice President of Human Resources of Keebler Company.
(n) "Trigger Date" means the date of the Trigger Event, as determined
by the Board of Directors.
(o) "Trigger Event" means the first to occur after the effective date
of the Plan of any of the following:
(i) a sale of all, or substantially all, of the assets of INFLO to
a person or entity who is not an affiliate of Artal Luxembourg
S.A. ("Artal") or Flowers Industries, Inc. ("Flowers");
(ii) a sale by Artal, Flowers or any of their affiliates resulting
in more than fifty percent (50%) of the voting stock of INFLO
being held by a person, entity or group that does not include
Artal, Flowers or any of their affiliates;
(iii) a merger or consolidation of INFLO into another person or
entity which is not an affiliate of Artal or Flowers;
(iv) the offer and sale to the public of twenty percent (20%) or
more of the INFLO Shares, or of twenty percent (20%) or more
of the common equity of the Company.
2
<PAGE>
3. ADMINISTRATION OF THE PLAN
--------------------------
(a) ADMINISTRATION. The Plan Committee shall administer the Plan.
Except as provided in Section 9 hereof, the Plan Committee shall have the
authority, subject to the terms of the Plan, to interpret the Plan; to adopt,
amend and rescind rules and regulations for the administration of the Plan; and
to make all other determinations that in the judgment of the Plan Committee are
necessary or advisable for the administration of the Plan. All determinations
and actions of the Plan Committee relating to the administration and
interpretation of the Plan shall be final, conclusive and binding on the Company
and the Employees. The Plan Committee shall not, however, have the authority to
(i) increase the maximum number of Appreciation Units which may be granted under
the plan, or (ii) amend the definition of "Trigger Event" without the prior
approval of the Board of Directors.
(b) INDEMNIFICATION. The members of the Board of Directors and of the
Plan Committee shall not be liable for any action, omission, interpretation,
construction or determination made in good faith with respect to the Plan, any
Appreciation Unit award or the rights of any person under the Plan. The members
of the Board of Directors and of the Plan Committee shall be indemnified by the
Company to the maximum extent permitted by law in respect of any claim, loss,
damage or expense (including attorneys' fees) arising from their acts, omissions
and conduct under or in connection with the Plan, any Appreciation Unit award or
the rights of any person under the Plan.
4. ELIGIBILITY
-----------
Only those certain management Employees selected by the Company, and so
notified in writing by the Company, shall be eligible to participate in the
Plan. The awarding of any Appreciation Units to an Employee shall neither
entitle such Employee to, nor disqualify such Employee from, participation in
any other award or incentive plan of the Company.
5. GRANT, VESTING AND FORFEITURE OF APPRECIATION UNITS
---------------------------------------------------
(a) MAXIMUM GRANT. Notwithstanding any other provision of the Plan, the
maximum aggregate number of Appreciation Units that may be granted at any one
time under this Plan is One Hundred Thousand (100,000).
(b) PRELIMINARY VESTING. Each Employee covered by this Plan shall have
the right to preliminarily vest up to two thousand (2,000) Appreciation Units in
the following manner:
1) For Plan Year 1996, twenty percent (20%) of the Appreciation
Units (400 Appreciation Units) multiplied by the applicable
Performance Percentage.
2) For Plan Year 1997, twenty percent (20%) of the Appreciation
Units (400 Appreciation Units) multiplied by the applicable
Performance Percentage.
3) For Plan Year 1998, twenty percent (20%) of the Appreciation
Units (400 Appreciation Units) multiplied by the applicable
Performance Percentage.
3
<PAGE>
4) For Plan Year 1999, twenty percent (20%) of the Appreciation
Units (400 Appreciation Units) multiplied by the applicable
Performance Percentage.
5) For Plan Year 2000, twenty percent (20%) of the Appreciation
Units (400 Appreciation Units) multiplied by the applicable
Performance Percentage.
The Performance Percentage is intended to incent the attainment
of the Company's target earnings (EBITDA Target). Consequently, the Performance
Percentage for each respective Plan Year shall equal
PERFORMANCE PERCENTAGE OF EBITDA
PERCENTAGE TARGET ACHIEVED
---------- --------------------
0% Less than 90%
50% 90%
55% 91%
60% 92%
65% 93%
70% 94%
75% 95%
80% 96%
85% 97%
90% 98%
95% 99%
100% 100% or greater
The respective Plan Year EBITDA Targets are currently as
follows:
PLAN YEAR EBITDA TARGET
--------- -------------
1996 $103.9 million
1997 $182.8 million
1998 $222.8 million
1999 $237.2 million
2000 $241.9 million
(c) FINAL VESTING. Final Vesting shall occur only on the Final Vesting
Date. For example, if in Plan Year 1997, the Company's EBITDA is $173.66 million
(95% of $182.8 million), the Performance Percentage would be 75% and an Employee
would vest 300 Appreciation Units. If, on the Trigger Date, the then-applicable
Exercise Value is $40, then the value of each Appreciation Unit would equal $30
(the excess of the Exercise Value [$40] over the Initial Value [$10]) multiplied
by three hundred (300) Appreciation Units equaling eight thousand dollars
($8,000), but only in the event that the Employee is employed by the Company, or
its subsidiaries or affiliates, on the Trigger Date or covered by Section 8
hereof.
(d) CATCH-UP. If, in any year the Performance Percentage is less than
one hundred percent (100%) and in a subsequent year the EBITDA exceeds the
applicable EBITDA Target, and the cumulative EBITDA of all years exceeds the
cumulative EBITDA Targets for all prior
4
<PAGE>
years, the Board of Directors may, at their sole discretion, elect to
preliminarily vest fifty percent (50%) of the Appreciation Units which were not
vested because the Performance Percentage for such period was less than one
hundred percent (100%).
(e) FORFEITURE. Notwithstanding any other provision of this Plan, if
(A) an Employee voluntarily terminates his or her employment with the Company,
or its subsidiaries or affiliates, prior to the Trigger Date, (B) the Company,
or its subsidiaries or affiliates, terminates an Employee for any reason prior
to the Trigger Date, or (C) an Employee's employment with the Company, or its
subsidiaries or affiliates, is terminated at any time by reason of early
retirement, then in each case all Appreciation Units granted to such Employee,
including all such Appreciation Units that have preliminarily vested, shall be
forfeited and the Employee shall have no rights with respect thereto under the
Plan.
(f) STOCK SPLITS, ETC. The Plan Committee shall adjust the number of
Appreciation Units granted and the Initial Value as appropriate to reflect any
stock split, stock dividend, recapitalization or other capital adjustment of the
Company.
(g) ADDITIONAL TERMS. Appreciation Units may include any terms and
conditions, consistent with the Plan, as the Plan Committee may determine.
6. PAYMENT IN RESPECT OF APPRECIATION UNITS
----------------------------------------
(a) PAYMENT. If Final Vesting occurs, each holder of vested
Appreciation Units shall receive a cash payment in an amount equal to the
product of (i) the excess (if any) of the Exercise Value over the Initial Value
and (ii) the number of vested Appreciation Units held on the Trigger Date by
such person.
(b) TIMING. Payment of the amounts described in Section 6(a) hereof
will be made by the Company to the holders of Appreciation Units within twelve
(12) months from the date that the Exercise Value is determined and may, at the
election of the Company, be payable (in such twelve [12]-month time period) in
two (2) equal installments, without interest.
(c) RECORDS. It shall be the responsibility of the Company to maintain
records of each Employee's current mailing address. The Employees shall
cooperate with the Company in keeping such records complete and up-to-date. In
the event the Company does not have the current mailing address of an Employee
at the time payment is otherwise to be made hereunder, and the Company is unable
to ascertain such address within a reasonable period of time after such payment
was to have been made, all amounts otherwise payable to such Employee shall be
placed in an interest-bearing escrow account until such Employee, beneficiary or
estate is located or until the first anniversary of the Final Vesting Date,
whichever comes first. In the event such Employee shall properly claim any funds
placed in such escrow account on or before such first anniversary, such funds
shall be paid over to such Employee together with any accrued interest thereon.
In the event any funds placed in such escrow account have not been properly
claimed on or before such first anniversary, the interests of all Employees in
such funds shall be forfeited.
5
<PAGE>
(d) TAXES. Any payment under the Plan may be reduced by any amounts
required to be withheld or paid with respect to such payment under all
applicable federal, state and local tax and other laws and regulations which may
be in effect as of the date of such payment.
7. NEW PARTICIPANTS
----------------
Subject to the limitations set forth in Section 5(a), the Company may,
from time to time add Employees to the Plan PROVIDED THAT (i) new participants
shall be eligible for preliminary vesting pursuant to Section 5(b) only in
whole-year increments and for the Plan Year(s) identified to such Employee in
writing, and (ii) the Plan Committee shall, in writing, establish an Initial
Value applicable for all Appreciation Units for such Employee at the Plan
Committee's sole discretion (which shall not, however, be less than ten dollars
[$10.00] and is likely to approximate the Plan Committee's assessment of the
value of a Share at the year-end preceding the Plan Year for which such Employee
is eligible for preliminary vesting).
8. DEATH OR DISABILITY
-------------------
In the event of the death or Permanent Disability of an Employee
covered by the Plan prior to the Trigger Date, (i) the Employee shall retain
preliminary vesting for all Appreciation Units preliminarily vested prior to
such death or permanent disability, (ii) the Employee shall not be entitled to
future preliminary vesting for any Appreciation Units not then vested and (iii)
such Employee or Employee's beneficiary shall not be entitled to any payment
relating to preliminarily-vested Appreciation Units prior to the final Vesting
Date and Section 6(b) hereof.
9. AMENDMENT AND TERMINATION
-------------------------
The Board of Directors shall have the power to amend the Plan at any
time; PROVIDED, HOWEVER, that, other than as provided herein, the Board of
Directors may not materially modify the terms and conditions of an Appreciation
Unit award without the consent of the Employee to which such award was made, and
no amendment, suspension or termination of the Plan will alter, terminate,
impair or adversely affect any right or obligation of any Employee under any
Appreciation Unit award previously granted under the Plan without the consent of
such Employee.
10. MISCELLANEOUS
-------------
(a) NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or in any
instrument executed pursuant to the Plan shall be construed as conferring upon
any Employee any right to continue in the employ of the Company, or its
subsidiaries or affiliates, or restrict the Company's, or its susidairies' or
affiliates', right to terminate the employment of any Employee.
(b) NO TRANSFER. Employee shall not have the right or power to sell,
exchange, pledge, transfer, assign or otherwise encumber or dispose of such
Employee's interest in the Plan or in any Appreciation Unit. Any Appreciation
Unit granted to such Employee shall be solely for the benefit of such Employee.
An Employee's interest in the Plan or in any Appreciation Unit shall not be
subject to seizure for the payment of any debt, judgment, alimony or separate
6
<PAGE>
maintenance or be transferable by operation of law in the event of such
Employee's bankruptcy or insolvency.
(c) NO EQUITY, ETC. Nothing in the Plan shall give an Employee or any
other person any equity or other interest of any kind in the assets of the
Company or create a trust or fiduciary relationship of any kind between the
Company and the Employee.
(d) FREEDOM OF ACTION. Subject to Section 9 hereof, nothing in the Plan
shall be construed to prevent the Company from taking any action which is deemed
by it to be appropriate or in its best interest. No Employee shall have any
claim against the Company in respect of any such action taken in good faith.
(e) CHOICE OF LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Delaware.
(f) EFFECTIVE DATE. The Plan shall be effective as of January 26, 1996.
Adopted on [March 4, 1997]
7
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the Keebler
Corporation Consolidated Balance Sheet at October 4, 1997 and Consolidated
Statement of Operations for the forty weeks ended October 4, 1997 found on pages
2 through 4 of the Company's Form 10-Q, and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 10-MOS
<FISCAL-YEAR-END> JAN-03-1998
<PERIOD-START> DEC-29-1996
<PERIOD-END> OCT-04-1997
<CASH> 60,901
<SECURITIES> 0
<RECEIVABLES> 135,492
<ALLOWANCES> 5,707
<INVENTORY> 122,964
<CURRENT-ASSETS> 380,678
<PP&E> 555,853
<DEPRECIATION> 85,058
<TOTAL-ASSETS> 1,116,141
<CURRENT-LIABILITIES> 391,985
<BONDS> 341,890
0
0
<COMMON> 1,000
<OTHER-SE> 227,469
<TOTAL-LIABILITY-AND-EQUITY> 1,116,141
<SALES> 1,542,157
<TOTAL-REVENUES> 1,542,157
<CGS> 668,446
<TOTAL-COSTS> 1,438,888
<OTHER-EXPENSES> 6,880
<LOSS-PROVISION> 12,817
<INTEREST-EXPENSE> 26,582
<INCOME-PRETAX> 69,807
<INCOME-TAX> 29,319
<INCOME-CONTINUING> 40,488
<DISCONTINUED> 0
<EXTRAORDINARY> (2,692)
<CHANGES> 0
<NET-INCOME> 37,796
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
