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EXHIBIT 4.08
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FIVE-YEAR CREDIT AGREEMENT
dated as of
January 19, 2001
among
KELLOGG COMPANY
The Borrowing Subsidiaries Party Hereto
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE MANHATTAN INTERNATIONAL LIMITED,
as London Agent
THE CHASE MANHATTAN BANK OF CANADA,
as Canadian Agent
the Australian Agent
CITIBANK, N.A.,
BANK OF AMERICA, N.A.,
as Co-Syndication Agents
BARCLAYS BANK PLC,
as Documentation Agent
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JP MORGAN,
as Advisor, Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions
SECTION 1.01. Defined Terms.........................................................1
SECTION 1.02. Classification of Loans and Borrowings...............................28
SECTION 1.03. Terms Generally......................................................28
SECTION 1.04. Accounting Terms; GAAP...............................................28
SECTION 1.05. Exchange Rates.......................................................29
SECTION 1.06. Determinations Made in Good Faith....................................29
ARTICLE II The Credits
SECTION 2.01. Commitments..........................................................30
SECTION 2.02. Loans and Borrowings.................................................31
SECTION 2.03. Requests for Revolving Borrowings....................................33
SECTION 2.04. Competitive Bid Procedure............................................34
SECTION 2.05. Canadian Bankers' Acceptances........................................36
SECTION 2.06. Australian Reliquification Bills.....................................39
SECTION 2.07. Funding of Borrowings and B/A Drawings...............................39
SECTION 2.08. Interest Elections...................................................40
SECTION 2.09. Termination and Reduction of Commitments; Adjustment of Tranche
Commitments..........................................................42
SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt........................44
SECTION 2.11. Prepayment of Loans..................................................45
SECTION 2.12. Fees.................................................................46
SECTION 2.13. Interest.............................................................48
SECTION 2.14. Alternate Rate of Interest...........................................49
SECTION 2.15. Increased Costs......................................................49
SECTION 2.16. Break Funding Payments...............................................51
SECTION 2.17. Taxes................................................................51
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..........52
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.......................54
SECTION 2.20. Borrowing Subsidiaries...............................................55
SECTION 2.21. Additional Reserve Costs.............................................55
SECTION 2.22. Redenomination of Certain Designated Foreign Currencies..............56
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ARTICLE III Representations and Warranties
SECTION 3.01. Organization and Qualification.......................................56
SECTION 3.02. Subsidiaries.........................................................57
SECTION 3.03. Corporate Authority and Validity of Obligations......................57
SECTION 3.04. Margin Stock.........................................................57
SECTION 3.05. Financial Reports....................................................57
SECTION 3.06. No Material Adverse Change...........................................58
SECTION 3.07. Litigation...........................................................58
SECTION 3.08. Tax Returns..........................................................58
SECTION 3.09. Approvals............................................................59
SECTION 3.10. ERISA................................................................59
SECTION 3.11. Environmental Matters................................................59
SECTION 3.12. Properties...........................................................59
SECTION 3.13. Compliance with Laws.................................................59
SECTION 3.14. Investment and Holding Company Status................................60
SECTION 3.15. Disclosure...........................................................60
ARTICLE IV Conditions
SECTION 4.01. Effective Date.......................................................60
SECTION 4.02. Each Borrowing.......................................................63
SECTION 4.03. Initial Borrowing by each Borrowing Subsidiary.......................63
ARTICLE V Affirmative Covenants
SECTION 5.01. Corporate Existence..................................................63
SECTION 5.02. Maintenance..........................................................64
SECTION 5.03. Taxes................................................................64
SECTION 5.04. Insurance............................................................64
SECTION 5.05. Financial Reports and Other Information..............................64
SECTION 5.06. Books and Records; Inspection Rights.................................65
SECTION 5.07. Compliance with Laws.................................................65
ARTICLE VI Negative Covenants
SECTION 6.01. Indebtedness.........................................................66
SECTION 6.02. Liens................................................................66
SECTION 6.03. Sale and Leaseback Transactions......................................67
SECTION 6.04. Fundamental Changes..................................................67
SECTION 6.05. Use of Proceeds......................................................68
SECTION 6.06. Minimum Net Worth....................................................68
SECTION 6.07. Interest Expense Coverage Ratio......................................68
ARTICLE VII
Events of Default.................................69
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ARTICLE VIII
The Agents.....................................72
ARTICLE IX
Guarantee.....................................74
ARTICLE X
Miscellaneous
SECTION 10.01. Notices.............................................................75
SECTION 10.02. Waivers; Amendments.................................................76
SECTION 10.03. Expenses; Indemnity; Damage Waiver..................................77
SECTION 10.04. Successors and Assigns..............................................78
SECTION 10.05. Survival............................................................81
SECTION 10.06. Counterparts; Integration; Effectiveness............................81
SECTION 10.07. Severability........................................................81
SECTION 10.08. Right of Setoff.....................................................82
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process..........82
SECTION 10.10. WAIVER OF JURY TRIAL................................................82
SECTION 10.11. Headings............................................................83
SECTION 10.12. Confidentiality.....................................................83
SECTION 10.13. Interest Rate Limitation............................................83
SECTION 10.14. Conversion of Currencies............................................84
SECTION 10.15. Australian Agent....................................................84
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SCHEDULES
Schedule 2.01 -- Commitments
Schedule 2.18 -- Payment Accounts
Schedule 3.02 -- Significant Subsidiaries
Schedule 3.07 -- Litigation
Schedule 3.10 -- ERISA
Schedule 3.11 -- Environmental Matters
Schedule 4.01(h) -- Indebtedness to be Refinanced on the Acquisition Date
Schedule 6.01 -- Outstanding Indebtedness After Giving Effect to the Acquisition
Schedule 6.02 -- Existing Liens
Schedule 6.03 -- Sale-Leaseback Transactions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Borrowing Subsidiary Agreement
Exhibit B-2 -- Form of Borrowing Subsidiary Termination
Exhibit C -- Reserve Costs
Exhibit D-1 -- Form of Opinion of Gary H. Pilnick, Vice President and Deputy General
Counsel
Exhibit D-2 -- Form of Opinion of Kirkland & Ellis, Counsel for the Borrowers
Exhibit E -- Form of Compliance Certificate
Exhibit F -- Form of Note
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FIVE-YEAR CREDIT AGREEMENT dated as of
January 19, 2001, among KELLOGG COMPANY, a Delaware
corporation, the BORROWING SUBSIDIARIES party hereto,
the LENDERS party hereto, THE CHASE MANHATTAN BANK,
as Administrative Agent, CHASE MANHATTAN
INTERNATIONAL LIMITED, as London Agent, THE CHASE
MANHATTAN BANK OF CANADA, as Canadian Agent, the
Australian Agent, CITIBANK, N.A. and BANK OF AMERICA,
N.A., as Co-Syndication Agents, and BARCLAYS BANK
PLC, as Documentation Agent.
The Company intends to acquire (the "Acquisition") Keebler (such term
and each other capitalized term used but not defined herein having the meaning
given it in Article I) for cash in the amount of approximately US$4,600,000,000.
In connection with the Acquisition, the Company will (a) refinance certain
Indebtedness of the Company and Keebler, (b) obtain the credit facilities
provided under this Agreement and under the 364-Day Credit Agreement, and (c)
issue Senior Notes in a public offering or in a Rule 144A or other private
placement or, to the extent it shall not have issued Senior Notes by the date of
the Acquisition, establish the Bridge Facility, in an aggregate principal amount
taken together not in excess of US$4,000,000,000.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" has the meaning assigned to such term in the
preamble to this Agreement.
"Acquisition Agreements" means collectively, (a) the Agreement
and Plan of Restructuring and Merger, dated October 26, 2000, among Flowers
Industries, Inc., Kellogg Company and Kansas Merger Subsidiary, Inc., and (b)
the Agreement and Plan of Merger dated as of October 26, 2000, among Keebler
Foods Company, Kellogg Company and FK Acquisition Corp.
"Acquisition Date" means the date on which the conditions
specified in paragraphs (g), (h) and (i) of Section 4.01 are satisfied (or
waived in accordance with Section 10.02).
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"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserves applicable to such
Eurocurrency Borrowing.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder, or any successor
thereto appointed in accordance with Article VIII.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent, the
London Agent, the Canadian Agent and the Australian Agent.
"Agreement Currency" has the meaning assigned to such term in
Section 10.14(b).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate, or the Federal Funds Effective Rate, respectively.
"Applicable Agent" means (a) with respect to a Loan or
Borrowing denominated in US Dollars, or with respect to any payment that does
not relate to any Loan or Borrowing, the Administrative Agent, (b) with respect
to a Loan or Borrowing denominated in Euro or Sterling, the London Agent, (c)
with respect to a Loan or Borrowing denominated in Canadian Dollars or a B/A,
the Canadian Agent, and (d) with respect to a Loan or a Borrowing denominated in
Australian Dollars, the Australian Agent.
"Applicable Creditor" has the meaning assigned to such term in
Section 10.14(b).
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, B/A Drawing or Bill Rate Loan or with respect to
the facility fees and utilization fees payable hereunder, as the case may be,
the applicable rate per annum set forth below under the caption "Eurocurrency,
B/A Drawing and Bill Rate Spread", "Facility Fee Rate" or "Utilization Fee
Rate", as the case may be, based upon the ratings by Moody's and S&P,
respectively, applicable on such date to the Index Debt:
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EUROCURRENCY, B/A
DRAWING AND BILL
INDEX DEBT RATINGS RATE SPREAD FACILITY FEE RATE UTILIZATION FEE RATE
- ----------------------- ----------------- ----------------- --------------------
Category 1 0.275 0.100 0.125
A-/A3 or higher
Category 2 0.375 0.125 0.125
BBB+/Baa1
Category 3 0.475 0.150 0.125
BBB/Baa2
Category 4 0.675 0.200 0.125
BBB-/Baa3
Category 5 0.950 0.300 0.250
lower than BBB-/Baa3 or
unrated
For purposes of the foregoing, (i) if either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 5;
(ii) if the ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the higher of the two ratings unless (A) one
of the two ratings is more than two Categories lower than the other and neither
rating is in Category 5, in which case the Applicable Rate shall be determined
by reference to the Category next above that of the lower of the two ratings or
(B) either rating is or is deemed to be in Category 5, in which case the
Applicable Rate shall be determined by reference to Category 5 and (iii) if the
ratings established or deemed to have been established by Moody's and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of Moody's or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Company and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by
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Section 10.04), and accepted by the Administrative Agent, in the form of
Exhibit A or any other form approved by the Administrative Agent and the
Company.
"Attributable Debt" means, with respect to any Sale-Leaseback
Transaction, the present value (discounted at the rate set forth or implicit in
the terms of the lease included in such Sale-Leaseback Transaction, compounded
semiannually) of the total obligations of the lessee for rental payments (other
than amounts required to be paid on account of taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
which do not constitute payments for property rights or amounts related to
contingent rents (such as those based on sales)) during the remaining term of
the lease included in such Sale-Leaseback Transaction (including any period for
which such lease has been extended). In the case of any lease which is
terminable by the lessee upon payment of a penalty, the Attributable Debt shall
be the lesser of the Attributable Debt determined assuming termination upon the
first date such lease may be terminated (in which case the Attributable Debt
shall also include the amount of the penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated) or the Attributable Debt determined assuming no such
termination. Any determination of any rate implicit in the terms of the lease
included in such Sale-Leaseback Transaction made in accordance with generally
accepted financial practices by the Company shall absent manifest error be
binding and conclusive.
"Australian Agent" means the financial institution that has
been designated as such by the Company pursuant to Section 10.15.
"Australian Bank Bill Rate" means, for any Interest Period,
the rate per annum which is:
(a) the average determined bid rate (rounded upwards if
necessary to the nearest four decimal places) for
Bills accepted by a bank having a tenor which is
closest to that Interest Period and published on the
"BBSY" reference page of the Reuters Monitor System
at or about 10:10 a.m. (Local Time) on the first day
of that Interest Period; or
(b) if on that day that rate is not published by 10:30
a.m., the rate determined by the Australian Agent in
good faith to be the average determined bid rate for
Bills accepted by a bank on that day having a tenor
which is closest to that Interest Period.
"Australian Borrowing Subsidiary" means any Subsidiary that is
incorporated or otherwise organized under the laws of Australia or any political
subdivision thereof that has been designated as such pursuant to Section 2.20
and that has not ceased to be an Australian Borrowing Subsidiary as provided in
such Section.
"Australian Dollars" or "A$" means the lawful currency of
Australia.
"Australian Lending Office" means, as to any Australian
Tranche Lender, the applicable branch, office or Affiliate of such Australian
Tranche Lender designated by such Australian Tranche Lender to make Loans in
Australian Dollars.
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"Australian Tranche Commitment" means, with respect to each
Australian Tranche Lender, the commitment of such Australian Tranche Lender to
make Australian Tranche Revolving Loans pursuant to Section 2.01(e), expressed
as an amount representing the maximum aggregate permitted amount of such
Lender's Australian Tranche Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.09 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Australian Tranche
Lender's Australian Tranche Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Australian Tranche Lender shall
have assumed its Australian Tranche Commitment, as applicable. The aggregate
amount of the Australian Tranche Commitments on the date hereof is
US$40,000,000.
"Australian Tranche Lender" means a Lender with an Australian
Tranche Commitment or with outstanding Australian Tranche Revolving Loans.
"Australian Tranche Percentage" means, with respect to any
Australian Tranche Lender, the percentage of the total Australian Tranche
Commitments represented by such Lender's Australian Tranche Commitment. If the
Australian Tranche Commitments have terminated or expired, the Australian
Tranche Percentages shall be determined based upon the Australian Tranche
Commitments most recently in effect, giving effect to any assignments.
"Australian Tranche Revolving Borrowing" means a Borrowing
comprised of Australian Tranche Revolving Loans.
"Australian Tranche Revolving Credit Exposure" means, at any
time, the sum of (a) the aggregate principal amount of the Australian Tranche
Revolving Loans denominated in US Dollars at such time and (b) the US Dollar
Equivalent of the aggregate principal amount of the Australian Tranche Revolving
Loans denominated in Australian Dollars outstanding at such time. The Australian
Tranche Revolving Credit Exposure of any Lender at any time shall be such
Lender's Australian Tranche Percentage of the total Australian Tranche Revolving
Credit Exposure at such time.
"Australian Tranche Revolving Loan" means a Loan made by an
Australian Tranche Lender pursuant to Section 2.01(e). Each Australian Tranche
Revolving Loan denominated in US Dollars shall be a Eurocurrency Loan or an ABR
Loan, and each Australian Tranche Revolving Loan denominated in Australian
Dollars shall be a Bill Rate Loan.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"B/A" means a bill of exchange, including a depository bill
issued in accordance with the Depository Bills and Notes Act (Canada),
denominated in Canadian Dollars, drawn by a Canadian Borrowing Subsidiary and
accepted by a Canadian Tranche Lender in accordance with the terms of this
Agreement.
"B/A Drawing" means B/As accepted and purchased on the same
date and as to which a single Contract Period is in effect including any B/A
Equivalent Loans accepted and purchased on the same date and as to which a
single Contract Period is in effect. For greater
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certainty, all provisions of this Agreement which are applicable to B/As are
also applicable, mutatis mutandis, to B/A Equivalent Loans
"B/A Equivalent Loan" is defined in Section 2.5(k).
"Bill" has the meaning assigned to such term in the Bills of
Exchange Act 1909 (Cwlth) and a reference to the drawing or acceptance or
endorsement of, or other dealing with, a Bill is to be interpreted in accordance
with that Act.
"Bill Rate", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Australian Bank Bill Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type and
currency, made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect, or (b) a
Competitive Loan or group of Competitive Loans of the same Type and currency
made on the same date and as to which a single Interest Period is in effect.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in US Dollars, US$25,000,000 and (b) in the case of a Borrowing
denominated in any other currency, the smallest amount of such other currency
that is a multiple of 1,000,000 units of such currency that has a US Dollar
Equivalent in excess of US$5,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in US Dollars, US$5,000,000 and (b) in the case of a Borrowing
denominated in any other currency, 1,000,000 units of such currency.
"Borrowing Request" means a request by a Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, each of the
Subsidiaries that (a) is named on the signature pages to this Agreement or (b)
has been designated as a Borrowing Subsidiary by the Company pursuant to Section
2.20, other than any such Subsidiary that has ceased to be a Borrowing
Subsidiary as provided in Section 2.20.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit B-1.
"Borrowing Subsidiary Termination" means a Borrowing
Subsidiary Termination substantially in the form of Exhibit B-2.
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"Bridge Facility" means the US$4,000,000,000 senior unsecured
bridge credit facility made available to the Company under the Bridge Agreement
dated as of the date hereof, 2001, among the Company, the lenders named therein
and Chase, as administrative agent, with no changes therefrom adverse to the
Lenders, as amended from time to time.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, (a) when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market, (b) when used in connection with a Loan denominated in
Euro, the term "Business Day" shall also exclude any day on which the TARGET
payment system is not open for the settlement of payments in Euro, (c) when used
in connection with a Loan denominated in Canadian Dollars or a B/A, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in deposits in Toronto and (d) when used in connection with a Loan
denominated in Australian Dollars, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in deposits in Australian
Dollars in the Sydney or Melbourne markets.
"Calculation Date" means (a) the last Business Day of each
calendar quarter and (b) solely with respect to any Designated Foreign Currency
for a requested new Borrowing for which an Exchange Rate was not established on
the immediately preceding Calculation Date, the Business Day immediately
preceding the date on which such Borrowing is to be made, provided that the
Administrative Agent may in addition designate the last day of any other month
as a Calculation Date if it reasonably determines that there has been
significant volatility in the foreign currency markets.
"CAM" shall mean the mechanism for the allocation and exchange
of interests in Loans and other extensions of credit under the several Tranches
and collections thereunder established under the final paragraph of Article VII.
"CAM Exchange" shall mean the exchange of the Lender's
interests provided for in final paragraph of Article VII.
"CAM Exchange Date" shall mean the date on which any event
referred to in paragraph (g) or (h) of Article VII shall occur in respect of the
Company.
"CAM Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the aggregate US
Dollar Equivalent (determined on the basis of Exchange Rates prevailing on the
CAM Exchange Date) of the Obligations owed to such Lender (whether or not at the
time due and payable) immediately prior to the CAM Exchange Date and (b) the
denominator shall be the aggregate US Dollar Equivalent (as so determined) of
the Obligations owed to all the Lenders (whether or not at the time due and
payable) immediately prior to the CAM Exchange Date.
"Canadian Agent" means The Chase Manhattan Bank of Canada, in
its capacity as Canadian agent for the Lenders hereunder, or any successor
thereto appointed in accordance with Article VIII.
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"Canadian Base Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the next 1/16 or 1%) equal to the
greater of (a) the interest rate per annum publicly announced from time to time
by Canadian Agent as its reference rate in effect on such day at its principal
office in Toronto for determining interest rates applicable to commercial loans
denominated in Canadian Dollars in Canada (each change in such reference rate
being effective from and including the date such change in publicly announced as
being effective) and (b) the interest rate per annum equal to the sum of (i) the
CDOR Rate on such day (or, if such rate is not so reported on the Reuters Screen
CDOR Page, the average of the rate quotes for bankers' acceptances denominated
in Canadian Dollars with a term of 30 days received by the Canadian Agent at
approximately 10:00 a.m., Toronto time, on such day (or, if such day is not a
Business Day, on the next preceding Business Day) from one or more banks of
recognized standing selected by it) and (ii) 0.50% per annum.
"Canadian Borrowing Subsidiary" means any Subsidiary that is
incorporated or otherwise organized under the laws of Canada or any political
subdivision thereof that has been designated as such pursuant to Section 2.20
and that has not ceased to be a Canadian Borrowing Subsidiary as provided in
such Section.
"Canadian Dollars" or "C$" means the lawful money of Canada.
"Canadian Lending Office" means, as to any Canadian Tranche
Lender, the applicable branch, office or Affiliate of such Canadian Tranche
Lender designated by such Canadian Tranche Lender to make Loans in Canadian
Dollars and to accept and purchase or arrange for the purchase of B/As.
"Canadian Tranche Commitment" means, with respect to each
Canadian Tranche Lender, the commitment of such Canadian Tranche Lender to make
Canadian Tranche Revolving Loans pursuant to Section 2.01(d) and to accept and
purchase or arrange for the purchase of B/As pursuant to Section 2.05, expressed
as an amount representing the maximum aggregate permitted amount of such
Canadian Tranche Lender's Canadian Tranche Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04. The initial amount of each Canadian
Tranche Lender's Canadian Tranche Commitment is set forth on Schedule 2.01, or
in the Assignment and Acceptance pursuant to which such Canadian Tranche Lender
shall have assumed its Canadian Tranche Commitment, as applicable. The aggregate
amount of the Canadian Tranche Commitments on the date hereof is US$60,000,000.
"Canadian Tranche Lender" means a Lender with a Canadian
Tranche Commitment or with outstanding Canadian Tranche Revolving Loans.
"Canadian Tranche Percentage" means, with respect to any
Canadian Tranche Lender, the percentage of the total Canadian Tranche
Commitments represented by such Lender's Canadian Tranche Commitment. If the
Canadian Tranche Commitments have terminated or expired, the Canadian Tranche
Percentages shall be determined based upon the Canadian Tranche Commitments most
recently in effect, giving effect to any assignments.
"Canadian Tranche Revolving Borrowing" means a Borrowing
comprised of Canadian Tranche Revolving Loans.
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"Canadian Tranche Revolving Credit Exposure" means, at any
time, the sum of (a) the aggregate principal amount of the Canadian Tranche
Revolving Loans denominated in US Dollars outstanding at such time, (b) the US
Dollar Equivalent of the aggregate principal amount of the Canadian Tranche
Revolving Loans denominated in Canadian Dollars outstanding at such time, and
(c) the US Dollar Equivalent of the aggregate face amount of the B/As accepted
by the Canadian Lenders and outstanding at such time. The Canadian Tranche
Revolving Credit Exposure of any Lender at any time shall be such Lender's
Canadian Tranche Percentage of the total Canadian Tranche Revolving Credit
Exposure at such time.
"Canadian Tranche Revolving Loan" means a Loan made by a
Canadian Tranche Lender pursuant to Section 2.01(d). Each Canadian Tranche
Revolving Loan denominated in US Dollars shall be a Eurocurrency Loan or an ABR
Loan, and each Canadian Tranche Revolving Loan denominated in Canadian Dollars
shall be a Canadian Base Rate Loan.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CDOR Rate" means, on any date, an interest rate per annum
equal to the average discount rate applicable to bankers' acceptances
denominated in Canadian Dollars with a term of 30 days (for purposes of the
definition of "Canadian Base Rate") or with a term equal to the Contract Period
of the relevant B/As (for purposes of the definition of "Discount Rate")
appearing on the Reuters Screen CDOR Page (or on any successor or substitute
page of such Screen, or any successor to or substitute for such Screen,
providing rate quotations comparable to those currently provided on such page of
such Screen, as determined by the Canadian Agent from time to time) at
approximately 10:00 a.m., Toronto time, on such date (or, if such date is not a
Business Day, on the next preceding Business Day).
"Change in Control" means (a) any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of 40% or more in voting power of
the outstanding Voting Stock of the Company or (b) members of the Board of
Directors of the Company on the date hereof plus any additional members of such
Board whose nomination for election to such Board is recommended or approved by
a majority of the then current members of such Board shall at any time fail to
constitute a majority of such Board.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
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"Chase" means The Chase Manhattan Bank and its successors.
"Class", when used in reference to (a) any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are US
Tranche Revolving Loans, UK Tranche Revolving Loans, Euro Tranche Revolving
Loans, Canadian Tranche Revolving Loans, Australian Tranche Revolving Loans or
Competitive Loans and (b) any Commitment, refers to whether such Commitment is a
US Tranche Commitment, a UK Tranche Commitment, a Euro Tranche Commitment, a
Canadian Tranche Commitment or an Australian Tranche Commitment.
"CMIL" means Chase Manhattan International Limited and its
successors.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means a US Tranche Commitment, a UK Tranche
Commitment, a Euro Tranche Commitment, a Canadian Tranche Commitment or an
Australian Tranche Commitment.
"Company" means Kellogg Company, a Delaware corporation.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Loan Exposure" means, with respect to any Lender
at any time, the sum of (a) the aggregate principal amount of the outstanding
Competitive Loans of such Lender denominated in US Dollars and (b) the sum of
the US Dollar Equivalents of the aggregate principal amounts of the outstanding
Competitive Loans of such Lender denominated in Designated Foreign Currencies.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus, without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense (including,
without duplication, foreign withholding taxes and any state single business
unitary or other similar taxes) for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) any non-cash charges for
such period, (v) fees and expenses incurred in connection with the Transactions,
(vi) fees and expenses in an aggregate amount for any fiscal year not in excess
of $20,000,000 incurred in connection with the issuance of any Indebtedness or
equity, acquisitions, investments or asset sales or divestitures permitted
hereunder and (vii) any (A) cash charges in an aggregate amount for any fiscal
year not in excess of $50,000,000 or (B) any noncash charges, in each case
arising out of the restructuring, consolidation, severance or discontinuance of
any portion of the operations, employees and/or
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management of any entities or businesses of the Company or any of the
Subsidiaries, determined without giving effect to any extraordinary gains or
losses for such period to the extent included in determining Consolidated Net
Income, all determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the sum
of (a) the cash interest expense (including imputed interest expense in respect
of Capital Lease Obligations) of the Company and the Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, and (b) any
interest accrued during such period in respect of Indebtedness of the Company or
any Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP; provided
that there shall be excluded from Consolidated Interest Expense (i) any fees
paid to the Administrative Agent and (ii) any payments made to obtain any
interest rate hedging agreements; and provided further, solely for purposes of
determining compliance with Section 6.07, in the event the Company or any
Subsidiary acquired any Person or line of business during the relevant period,
Consolidated Interest Expense will be determined giving pro forma effect to any
incurrence of Indebtedness related to such acquisition as if such incurrence of
Indebtedness had occurred on the first day of the relevant period.
"Consolidated Net Income" means, for any period, the net
income or loss of the Company and the Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP; provided that (a) there shall be
excluded the income of any Person (other than the Company) in which any other
Person (other than the Company or any Subsidiary or any director holding
qualifying shares or other third parties holding nominal amounts of shares, as
required by or in compliance with applicable law) owns an Equity Interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Company or any of the Subsidiaries during such period, and (b)
solely for purposes of determining compliance with Section 6.07, in the event
the Company or any Subsidiary acquired any Person or line of business during the
relevant period, Consolidated Net Income will be determined giving pro forma
effect to such acquisition as if such acquisition and any related incurrence of
Indebtedness had occurred on the first day of the relevant period, but shall not
take into account any cost savings projected to be realized as a result of such
acquisition other than cost savings permitted to be included under Regulation
S-X of the Securities and Exchange Commission.
"Consolidated Net Sales" means, for any period, the net sales
of the Company and the Subsidiaries for such period, as reported as a line item
in the Company's income statements as filed with the Company's Form 10-Q Report
or Form 10-K Report, as applicable.
"Consolidated Net Worth" means the excess of Consolidated
Total Assets over the consolidated total liabilities of the Company and its
consolidated Subsidiaries.
"Consolidated Total Assets" means the total assets of the
Company and its Subsidiaries determined in accordance with GAAP; provided that
for purposes of determining compliance with Sections 6.01, 6.02 and 6.03, in the
event the Company or any Subsidiary acquires any Person or line of business
after the fiscal quarter end referred to in such Section, "Consolidated Total
Assets" as of such fiscal quarter end shall be deemed to include the assets of
such Person or line of business from and after the date of such acquisition.
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"Contract Period" means, with respect to any B/A, the period
commencing on the date such B/A is issued and accepted and ending on the date
30, 60, 90 or 180 days thereafter, as the applicable Canadian Borrowing
Subsidiary may elect (in each case subject to availability); provided that if
such Contract Period would end on a day other than a Business Day, such Contract
Period shall be extended to the next succeeding Business Day.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Controlled Group" means all of a controlled group of
corporations and all trades and businesses (whether or not incorporated) under
common control that, together with the Company or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Foreign Currency" means (a) Sterling, Euro,
Canadian Dollars, Australian Dollars and Yen and (b) any other currency
specified by the Company in a notice to the Administrative Agent for a proposed
Competitive Borrowing which, at the time such Borrowing is made, is freely
transferable and convertible into US Dollars in the London market and for which,
at such time, LIBO Rates can be determined by reference to the Telerate screen
as provided in the definition of "LIBO Rate".
"Discount Proceeds" means, with respect to any B/A, an amount
(rounded upward, if necessary, to the nearest C$.01) calculated by multiplying
(a) the face amount of such B/A by (b) the quotient obtained by dividing (i) one
by (ii) the sum of (A) one and (B) the product of (x) the Discount Rate
(expressed as a decimal) applicable to such B/A and (y) a fraction of which the
numerator is the Contract Period applicable to such B/A and the denominator is
365, with such quotient being rounded upward or downward to the fifth decimal
place and .000005 being rounded upward.
"Discount Rate" means, with respect to a B/A being accepted
and purchased on any day, (a) for a Lender which is a Schedule I Lender, (i) the
CDOR Rate applicable to such B/A or, (ii) if the discount rate for a particular
Contract Period is not quoted on the Reuters Screen CDOR Page, the arithmetic
average (as determined by the Canadian Agent) of the percentage discount rates
(expressed as a decimal and rounded upward, if necessary, to the nearest 1/100
of 1%) quoted to the Canadian Agent by the Schedule I Reference Lenders as the
percentage discount rate at which each such bank would, in accordance with its
normal practices, at approximately 10:00 a.m., Toronto time, on such day, be
prepared to purchase bankers' acceptances accepted by such bank having a face
amount and term comparable to the face amount and Contract Period of such B/A,
and (b) for a lender which is a Schedule II Lender or a Schedule III Lender, the
lesser of (i) the CDOR Rate applicable to such B/A plus 0.10% per annum and (ii)
the arithmetic average (as determined by the Canadian Agent) of the percentage
discount rates (expressed as a decimal and rounded upward, if necessary, to the
nearest 1/100 of 1%) quoted to the Canadian Agent by
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the Schedule II Reference Lenders as the percentage discount rate at which each
such bank would, in accordance with its normal practices, at approximately 10:00
a.m., Toronto time, on such day, be prepared to purchase bankers' acceptances
accepted by such bank having a face amount and term comparable to the face
amount and Contract Period of such B/A.
"Effective Date" means the date on which the conditions
specified in paragraphs (a) through (f) of Section 4.01 are satisfied (or waived
in accordance with Section 10.02).
"EMU Legislation" means the legislative measures of the
European Union for the introduction of, changeover to or operation of the Euro
in one or more member states.
"Environmental Laws" means all federal, state, local and
foreign statutes, laws (including common law), regulations, ordinances,
judgments, permits and other governmental rules or restrictions relating to
human health, safety (including occupational safety and health standards), and
protection of the environment or to emissions, discharges or releases of
pollutants, contaminants, hazardous substances or wastes into the environment,
including ambient air, surface or ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the cleanup or other remediation thereof.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Laws, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" has the meaning assigned to such term in Section 3.10.
"Euro" or "E." means the single currency of the European Union
as constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Euro Borrowing Subsidiary" means any Subsidiary that is
incorporated or otherwise organized under the laws of any member state of the
European Union or any political subdivision thereof that has been designated as
such pursuant to Section 2.20 and that has not ceased to be a Euro Borrowing
Subsidiary as provided in such Section.
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate
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determined by reference to the Adjusted LIBO Rate (or, in the case of a
Competitive Loan, the LIBO Rate).
"Euro Lending Office" means, as to any Euro Tranche Lender,
the applicable branch, office or Affiliate of such Euro Tranche Lender
designated by such Euro Tranche Lender to make Loans in Euro.
"Euro Tranche Commitment" means, with respect to each Euro
Tranche Lender, the commitment of such Euro Tranche Lender to make Euro Tranche
Revolving Loans pursuant to Section 2.01(c), expressed as an amount representing
the maximum aggregate permitted amount of such Euro Tranche Lender's Euro
Tranche Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender under Section
10.04. The initial amount of each Euro Tranche Lender's Euro Tranche Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Euro Tranche Lender shall have assumed its Euro Tranche Commitment,
as applicable. The aggregate amount of the Euro Tranche Commitments on the date
hereof is US$55,000,000.
"Euro Tranche Lender" means a Lender with a Euro Tranche
Commitment or with outstanding Euro Tranche Revolving Loans.
"Euro Tranche Percentage" means, with respect to any Euro
Tranche Lender, the percentage of the total Euro Tranche Commitments represented
by such Lender's Euro Tranche Commitment. If the Euro Tranche Commitments have
terminated or expired, the Euro Tranche Percentages shall be determined based
upon the Euro Tranche Commitments most recently in effect, giving effect to any
assignments.
"Euro Tranche Revolving Borrowing" means a Borrowing comprised
of Euro Tranche Revolving Loans.
"Euro Tranche Revolving Credit Exposure" means, at any time,
the sum of (a) the aggregate principal amount of the Euro Tranche Revolving
Loans denominated in US Dollars outstanding at such time and (b) the US Dollar
Equivalent of the aggregate principal amount of the Euro Tranche Revolving Loans
denominated in Euros outstanding at such time. The Euro Tranche Revolving Credit
Exposure of any Lender at any time shall be such Lender's Euro Tranche
Percentage of the total Euro Tranche Revolving Credit Exposure at such time.
"Euro Tranche Revolving Loan" means a Loan made by a Euro
Tranche Lender pursuant to Section 2.01(c). Each Euro Tranche Revolving Loan
denominated in US Dollars shall be a Eurocurrency Loan or an ABR Loan, and each
Euro Tranche Revolving Loan denominated in Euro shall be a Eurocurrency Loan.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Rate" means on any day, for purposes of determining
the US Dollar Equivalent of any other currency, the rate at which such other
currency may be exchanged into US Dollars, as set forth at approximately 11:00
a.m., London time, on such day on the Reuters World Currency Page for such
currency. In the event that such rate does not appear on any Reuters
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World Currency Page, the Exchange Rate shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Company, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 a.m., Local Time, on such date for the purchase of
US Dollars for delivery two Business Days later; provided that if at the time of
any such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" means, with respect to any Agent, any Lender
or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction described in clause (a) above, (c) in the case of a Lender, any
withholding tax imposed by the United States of America that is in effect and
would apply to amounts payable by the Company from an office within such
jurisdiction to the US Lending Office of such Lender at the time such Lender
becomes a party to this Agreement (or designates a new US Lending Office), (d)
in the case of a UK Tranche Lender (other than an assignee pursuant to a request
by the Company under Section 2.19(b) or by operation of the CAM), any
withholding tax imposed by the United Kingdom (or any political subdivision
thereof) that is in effect and would apply to amounts payable by a UK Borrowing
Subsidiary from an office within such jurisdiction to the UK Lending Office of
such UK Tranche Lender at the time such UK Tranche Lender becomes a party to
this Agreement (or designates a new UK Lending Office), (e) in the case of a
Euro Tranche Lender (other than an assignee pursuant to a request by the Company
under Section 2.19(b) or by operation of the CAM), any withholding tax imposed
by Germany or Spain (or any political subdivision thereof) that is in effect and
would apply to amounts payable by a Euro Borrowing Subsidiary from an office
within such jurisdiction to the applicable Euro Lending Office of such Euro
Tranche Lender at the time such Euro Tranche Lender becomes a party to this
Agreement (or designates a new Euro Lending Office), (f) in the case of a
Canadian Tranche Lender (other than an assignee pursuant to a request by the
Company under Section 2.19(b) or by operation of the CAM), any withholding tax
imposed by Canada (or any political subdivision thereof) that is in effect and
would apply to amounts payable by a Canadian Borrowing Subsidiary from an office
within such jurisdiction to the Canadian Lending Office of such Canadian Tranche
Lender at the time such Canadian Tranche Lender becomes a party to this
Agreement (or designates a new Canadian Lending Office), (g) in the case of an
Australian Tranche Lender (other than an assignee pursuant to a request by the
Company under Section 2.19(b) or by operation of the CAM), any withholding tax
imposed by Australia (or any political subdivision thereof) that is in effect
and would apply to amounts payable by an Australian Borrowing Subsidiary from an
office within such jurisdiction to the Australian Lending Office of such
Australian Tranche Lender at the time such Australian Tranche Lender becomes a
party to this Agreement (or designates a new Australian Lending Office), and (h)
any withholding tax that is attributable to such Lender's failure to comply with
Section 2.17(e), except, in the case of clauses (c), (d), (e), (f) or (g) above,
to the extent that (i) such Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive
additional
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amounts from any Borrower with respect to any withholding tax pursuant to
Section 2.17, or (ii) such withholding tax shall have resulted from the making
of any payment to a location other than the office designated by the Applicable
Agent or such Lender for the receipt of payments of the applicable type.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financed Portion" means, at any time, with respect to a
Securitization, the greatest amount of the claims of the parties providing
financing (whether through direct purchases of receivables or interests therein
or through other financing arrangements), however evidenced, including direct
claims on collections of a party providing financing and including debt or
equity interests or securities (other than any seller's interests retained by
any wholly owned Subsidiary) of a purchasing vehicle, permitted to be
outstanding at such time under such Securitization (assuming the satisfaction of
all conditions to issuance) or, if greater, the maximum purchase limit, however
denominated, under such Securitization.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer, assistant treasurer or controller of
the Company.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means, as to any Borrower, any Lender that is
organized under the laws of a jurisdiction other than that in which such
Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America or, when reference is made to another jurisdiction,
generally accepted accounting principles in effect from time to time in such
jurisdiction.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
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"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
(i) endorsements for collection or deposit, (ii) standard contractual
indemnities not related to the borrowing of money or Indebtedness, in each case
in the ordinary course of business, or (iii) recourse at customary levels in
connection with Securitizations accounted for as sales. The amount of any
Guarantee of any guaranteeing Person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (b) the maximum amount for which
such guaranteeing Person may be liable pursuant to the terms of the instrument
embodying such Guarantee, unless such primary obligation and the maximum amount
for which such guaranteeing Person may be liable are not stated or determinable,
in which case the amount of such Guarantee shall be such guaranteeing Person's
maximum reasonably anticipated liability (assuming such Person is required to
perform) in respect thereof as determined by such Person in good faith.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Laws.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, currency swap agreement,
commodity price protection agreement or other interest or currency exchange rate
or commodity price hedging arrangement. The "principal amount" of any Hedging
Agreement of the Company or any Subsidiary at any time shall be deemed to be the
aggregate amount at such time of the payments that would be required to be made
by the Company or such Subsidiary in the event of any early termination at such
time of such Hedging Agreement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed,
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(g) all Guarantees by such Person of Indebtedness of others, (h) all Capital
Lease Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor. Indebtedness shall not include trade payables and
accrued expenses arising in the ordinary course of business.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated November 2000 relating to the Company and the Transactions.
"Interest Election Request" means a request by a Borrower to
convert or continue a Revolving Borrowing or B/A Drawing in accordance with
Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan
or Canadian Base Rate Loan, the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan or Bill Rate Borrowing, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurocurrency Borrowing with an Interest Period
of more than three months' duration, each day prior to the last day of such
Interest Period that occurs at intervals of three months' duration after the
first day of such Interest Period, and (c) with respect to any Fixed Rate Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing or Bill Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as the applicable Borrower may
elect, or any other period agreed to by the applicable Borrower and each Lender,
and (b) with respect to any Fixed Rate Borrowing, the period (which shall not be
less than 7 days or more than 360 days) commencing on the date of such Borrowing
and ending on the date specified in the applicable Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing or Bill Rate
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency
Borrowing or Bill Rate Borrowing that
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commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Judgment Currency" has the meaning assigned to such term in
Section 10.14(b).
"Keebler" means Keebler Foods Company, a Delaware corporation.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate per annum determined by the Applicable Agent
at approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
average (rounded upward, if necessary, to the next 1/100 of 1%) of the
respective interest rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major banks in the London
interbank market by Chase at approximately 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, each Borrowing
Subsidiary Agreement, each Borrowing Subsidiary Termination and each promissory
note delivered pursuant to this Agreement, as such documents may be amended,
modified, supplemented or restated from time to time.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing
denominated in US Dollars, New York City time, (b) with respect to a Loan or
Borrowing denominated in any Designated Foreign Currency (other than Canadian
Dollars and Australian Dollars), London time, (c) with respect to a Loan or
Borrowing denominated in Canadian Dollars or a B/A, Toronto time, and (d) with
respect to a Loan or Borrowing denominated in Australian Dollars, Sydney time.
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"London Agent" means CMIL, in its capacity as London agent for
the Lenders hereunder, or any successor thereto appointed in accordance with
Article VIII.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Margin Stock" means "margin stock" as defined in Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means (a) any condition or change
that has affected or would reasonably be expected to affect materially and
adversely the business, assets, liabilities or financial condition of the
Company and the Subsidiaries taken as a whole or (b) a material adverse effect
on the rights of or benefits available to the Lenders under any Loan Document.
"Maturity Date" means the fifth anniversary of the date of
this Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Obligations" means (a)(i) the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) all reimbursement obligations of the Canadian Borrowing
Subsidiaries in respect of B/As accepted hereunder and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Company or any other Borrower under this
Agreement or any other Loan Document and (b) all obligations of the Borrowers
under each Hedging Agreement entered into with a counterparty that was a Lender
or an Affiliate of a Lender at the time such Hedging Agreement was entered into,
provided that for purposes of the final paragraph of Article VII "Obligations"
shall include only the obligations described in clause (a)(i) and (ii) above.
"Offering Memorandum" means the offering memorandum relating
to the Senior Notes.
"Other Taxes" means any and all present or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" has the meaning assigned to such term in Section 3.10.
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"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments or other
governmental charges that are not yet due or are being contested in
compliance with Section 5.03;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days, are in de minimis amounts or are being
contested in good faith and by appropriate proceedings with adequate
reserves under GAAP being provided therefor;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance, health insurance and other social security laws or
regulations and withholding taxes;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way, minor
defects or irregularities in title and similar encumbrances on real
property imposed by law or arising in the ordinary course of business
that do not secure any monetary obligations and do not interfere with
the ordinary conduct of business of the Company or any Subsidiary;
(g) rights of set-off in favor of financial institutions
(other than in respect of amounts deposited to secure Indebtedness);
(h) liens in the nature of trustee's liens granted pursuant to
any indenture securing obligations to pay compensation to such trustee,
to reimburse its expenses and to indemnify it under the terms thereof;
(i) licenses, leases or subleases (other than Capital Leases
and other financing leases) granted to third parties (other than to
secure Indebtedness) not interfering in any material respect with the
business of the Company or any Subsidiary;
(j) liens arising in connection with contracts with or made at
the request of the United States of America, any State of the United
States of America or any department, agency or instrumentality of the
foregoing; and
(k) liens arising from deposits with or the giving of any form
of security to any Governmental Authority required as a condition to
the transaction of business or exercise of any privilege, franchise or
license;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
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"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means, for the Company and each Subsidiary at any time,
an employee pension benefit plan which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (a) is maintained by a member of the Controlled Group for employees of a
member of the Controlled Group, (b) is maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions, or (c) under which a member of the Controlled
Group has 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 a contributing
sponsor under Section 4069 of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible, whether now
owned or hereafter acquired.
"Quotation Day" means, with respect to any Eurocurrency
Borrowing and any Interest Period, the day on which it is market practice in the
relevant interbank market for prime banks to give quotations for deposits in the
currency of such Borrowing for delivery on the first day of such Interest
Period. If such quotations would normally be given by prime banks on more than
one day, the Quotation Day will be the last of such days.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing more than 50% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time; provided that, for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, "Required
Lenders" will mean, at any time, Lenders having Revolving Credit Exposures and
outstanding Competitive Loans representing more than 50% of the sum of the total
Revolving Credit Exposures and outstanding Competitive Loans at such time.
"Reset Date" has the meaning assigned to such term in Section
1.05.
"Reuters Screen CDOR Page" means the display designated as
page CDOR on the Reuters Monitor Money Rates Service or such other page as may,
from time to time, replace
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that page on that service for the purpose of displaying bid quotations for
bankers' acceptances accepted by leading Canadian banks.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of such Lender's US Tranche Revolving Credit Exposure, UK
Tranche Revolving Credit Exposure, Euro Tranche Revolving Credit Exposure,
Canadian Tranche Revolving Credit Exposure and Australian Tranche Revolving
Credit Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Sections 2.01
and 2.03.
"Sale-Leaseback Transaction" means any arrangement whereby the
Company or a Subsidiary shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred; provided that any
such arrangement (a) involving no party other than the Company and any Wholly
Owned Subsidiary or (b) entered into within 180 days after the acquisition,
construction or substantial improvement of the subject property shall not be
deemed to be a "Sale-Leaseback Transaction".
"Schedule I Lender" means any Lender named on Schedule I to
the Bank Act (Canada).
"Schedule I Reference Lenders" means Royal Bank of Canada,
Canadian Imperial Bank of Commerce, The Toronto-Dominion Bank, Bank of Montreal
and Bank of Nova Scotia, and any other Schedule I Lender as may be agreed by the
applicable Borrowers and the Canadian Agent from time to time.
"Schedule II Lender" means any Lender named on Schedule II to
the Bank Act (Canada).
"Schedule II Reference Lender" means The Chase Manhattan Bank
of Canada.
"Schedule III Lender" means any Lender named on Schedule III
to the Bank Act (Canada).
"SEC" means the Securities and Exchange Commission or any
successor.
"Securitization" means the transfer or pledge of accounts
receivable or interests in accounts receivable (a) to a trust, partnership,
corporation or other entity, which transfer or pledge is funded by such entity
in whole or in part by the issuance to one or more lenders or investors of
indebtedness or securities that are paid principally from the cash flow derived
from such accounts receivable or interests in accounts receivable, or (b)
directly to an investor or other purchaser.
"Senior Notes" means the Company's unsecured Senior Notes to
be issued by the Company pursuant to the Senior Note Documents.
"Senior Note Documents" means the indenture providing for the
issuance of the Senior Notes substantially in the form approved prior to the
date hereof by the Lenders, which form shall provide that the Senior Notes are
unsecured and are not Guaranteed by any Subsidiary
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and shall otherwise have customary market terms reasonably acceptable to the
Lenders, with no changes therefrom adverse to the Lenders, and all other
instruments, agreements and other documents evidencing or governing the Senior
Notes or providing for any other right in respect thereof.
"S&P" means Standard & Poor's.
"Significant Subsidiary" means (a) each Borrowing Subsidiary,
(b) any Subsidiary that directly or indirectly owns or Controls any other
Significant Subsidiary, (c) each Subsidiary identified as a Significant
Subsidiary on Schedule 3.02, (d) any Subsidiary designated from time to time by
the Company as a Significant Subsidiary by written notice to the Administrative
Agent and (e) any other Subsidiary (i) the consolidated net sales of which were
greater than 5% of the Company's Consolidated Net Sales as of the last day of
the most recent fiscal period for which financial statements have been delivered
pursuant to Section 5.05(a) or (b) (or, prior to the first delivery of such
financial statements, greater than 5% of the consolidated net sales of the
Person in whose financial statements such Subsidiary is included in the most
recent financial statements referred to in Section 3.05(a) or (b)) or (ii) the
consolidated assets of which as of the last day of such fiscal period were
greater than 5% of Consolidated Total Assets as of such date (or, prior to the
first delivery of such financial statements, greater than 5% of the consolidated
total assets of the Person in whose financial statements such Subsidiary is
included in the most recent financial statements referred to in Section 3.05(a)
or (b)). The Company will not permit the total consolidated assets or the
consolidated net sales of the Significant Subsidiaries (together with the
directly owned assets of the Company) to at any time represent less than 90% of
Consolidated Total Assets or Consolidated Net Sales of the Company and its
Subsidiaries, respectively, in each case as of and for the period of four fiscal
quarters ended on the last day of the most recent fiscal period for which
financial statements have been delivered pursuant to Section 5.05(a) or (b) (or,
prior to the first delivery of such financial statements, the consolidated total
assets or consolidated net sales as of such date or for such period of the
Persons in whose financial statements the Significant Subsidiaries are included
in the most recent financial statements referred to in Section 3.05(a) or (b)).
For purposes of making the determinations required by this definition, net sales
and assets of foreign Subsidiaries shall be converted into US Dollars at the
rates used in preparing the consolidated balance sheet of the Company (or, prior
to the first delivery of financial statements pursuant to Section 5.05(a) or
(b), the Person in whose financial statements such foreign Subsidiary is
included in the most recent financial statements referred to in Section 3.05(a)
or (b)) included in the applicable financial statements.
"Statutory Reserves" means, with respect to any currency, any
reserve, liquid asset or similar requirements established by any Governmental
Authority of the United States or of the jurisdiction of such currency or any
jurisdiction in which Loans in such currency are made to which banks in such
jurisdiction are subject for any category of deposits or liabilities customarily
used to fund loans in such currency or by reference to which interest rates
applicable to Loans in such currency are determined.
"Sterling" or "L." means the lawful money of the United
Kingdom.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial
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statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" means any direct or indirect subsidiary of the
Company. At all times on and after the Acquisition Date, Keebler and the
subsidiaries of Keebler acquired in the Acquisition will constitute
Subsidiaries.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"364-Day Credit Agreement" means the Company's 364-Day Credit
Agreement dated as of the date hereof.
"Tranche" means a category of Commitments and extensions of
credits thereunder. For purposes hereof, each of the following comprises a
separate Tranche: (a) the US Tranche Commitments and the US Tranche Revolving
Loans, (b) the UK Tranche Commitments and the UK Tranche Revolving Loans, (c)
the Euro Tranche Commitments and the Euro Tranche Revolving Loans, (d) the
Canadian Tranche Commitments, the Canadian Tranche Revolving Loans and
Obligation in respect of outstanding B/As and (e) the Australian Tranche
Commitments and the Australian Tranche Revolving Loans.
"Tranche Percentage" means, with respect to any Lender holding
any Commitment or Loan under any Tranche, such Lender's US Tranche Percentage,
UK Tranche Percentage, Euro Tranche Percentage, Canadian Tranche Percentage or
Australian Tranche Percentage, as applicable.
"Transactions" means the execution, delivery and performance
by the Borrowers of this Agreement and the other Loan Documents, the borrowing
of Loans and purchases and acceptances of B/As hereunder and the use of the
proceeds thereof, the establishment of the Company's commercial paper program,
the Acquisition and the refinancing of Indebtedness and the other transactions
contemplated to be effected on the Acquisition Date in connection therewith.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate, the
Alternate Base Rate, Canadian Base Rate, the Australian Bank Bill Rate or, in
the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"UK Borrowing Subsidiary" means any Subsidiary that is
incorporated or otherwise organized under the laws of the United Kingdom or any
political subdivision thereof that has been designated as such pursuant to
Section 2.20 and that has not ceased to be a UK Borrowing Subsidiary as provided
in such Section.
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"UK Lending Office" means, as to any UK Tranche Lender, the
applicable branch, office or Affiliate of such UK Tranche Lender designated by
such UK Tranche Lender to make Loans in Sterling.
"UK Tranche Commitment" means, with respect to each UK Tranche
Lender, the commitment of such UK Tranche Lender to make UK Tranche Revolving
Loans pursuant to Section 2.01(b), expressed as an amount representing the
maximum aggregate permitted amount of such UK Tranche Lender's UK Tranche
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender under Section 10.04. The
initial amount of each UK Tranche Lender's UK Tranche Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such UK
Tranche Lender shall have assumed its UK Tranche Commitment, as applicable. The
aggregate amount of the UK Tranche Commitments on the date hereof is
US$250,000,000.
"UK Tranche Lender" means a Lender with a UK Tranche
Commitment or with outstanding UK Tranche Revolving Loans.
"UK Tranche Percentage" means, with respect to any UK Tranche
Lender, the percentage of the total UK Tranche Commitments represented by such
Lender's UK Tranche Commitment. If the UK Tranche Commitments have terminated or
expired, the UK Tranche Percentages shall be determined based upon the UK
Tranche Commitments most recently in effect, giving effect to any assignments.
"UK Tranche Revolving Borrowing" means a Borrowing comprised
of UK Tranche Revolving Loans.
"UK Tranche Revolving Credit Exposure" means, at any time, the
sum of (a) the aggregate principal amount of the UK Tranche Revolving Loans
denominated in US Dollars outstanding at such time and (b) the US Dollar
Equivalent of the aggregate principal amount of the UK Tranche Revolving Loans
denominated in Sterling outstanding at such time. The UK Tranche Revolving
Credit Exposure of any Lender at any time shall be such Lender's UK Tranche
Percentage of the total UK Tranche Revolving Credit Exposure at such time.
"UK Tranche Revolving Loan" means a Loan made by a UK Tranche
Lender pursuant to Section 2.01(b). Each UK Tranche Revolving Loan denominated
in US Dollars shall be a Eurocurrency Loan or an ABR Loan, and each UK Tranche
Revolving Loan denominated in Sterling shall be a Eurocurrency Loan.
"Unfunded Vested Liabilities" means, for any Plan at any time,
the amount (if any) by which (a) the present value of all vested nonforfeitable
accrued benefits under such Plan exceeds (b) the fair market value of all Plan
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the Controlled Group to the PBGC or the
Plan under Title IV of ERISA.
"US Borrowing Subsidiary" means any Subsidiary that is
incorporated or otherwise organized under the laws of the United States or any
political subdivision thereof that
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has been designated as such pursuant to Section 2.20 and that has not ceased to
be a US Borrowing Subsidiary as provided in such Section.
"US Dollars" or "US$" refers to lawful money of the United
States of America.
"US Dollar Equivalent" means, on any date of determination,
(a) with respect to any amount in US Dollars, such amount, and (b) with respect
to any amount in any Designated Foreign Currency, the equivalent in US Dollars
of such amount, determined by the Administrative Agent pursuant to Section 1.05
using the Exchange Rate with respect to such Designated Foreign Currency at the
time in effect under the provisions of such Section.
"US Lending Office" means, as to any Lender, the applicable
branch, office or Affiliate of such US Tranche Lender designated by such US
Tranche Lender to make Loans in US Dollars.
"US Tranche Commitment" means, with respect to each US Tranche
Lender, the commitment of such US Tranche Lender to make US Tranche Revolving
Loans pursuant to Section 2.01(a), expressed as an amount representing the
maximum aggregate permitted amount of such Lender's US Tranche Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each US Tranche Lender's US Tranche Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such US
Tranche Lender shall have assumed its US Tranche Commitment, as applicable. The
aggregate amount of the US Tranche Commitments on the date hereof is
US$745,000,000.
"US Tranche Lender" means a Lender with a US Tranche
Commitment or with outstanding US Tranche Revolving Loans.
"US Tranche Percentage" means, with respect to any US Tranche
Lender, the percentage of the total US Tranche Commitments represented by such
Lender's US Tranche Commitment. If the US Tranche Commitments have terminated or
expired, the US Tranche Percentages shall be determined based upon the US
Tranche Commitments most recently in effect, giving effect to any assignments.
"US Tranche Revolving Borrowing" means a Borrowing comprised
of US Tranche Revolving Loans.
"US Tranche Revolving Credit Exposure" means, at any time, the
aggregate principal amount of the US Tranche Revolving Loans outstanding at such
time. The US Tranche Revolving Credit Exposure of any Lender at any time shall
be such Lender's US Tranche Percentage of the total US Tranche Revolving Credit
Exposure at such time.
"US Tranche Revolving Loan" means a Loan made by a US Tranche
Lender pursuant to Section 2.01(a). Each US Tranche Revolving Loan shall be a
Eurocurrency Loan or an ABR Loan.
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"Voting Stock" of any Person means capital stock of any class
of classes or other Equity Interests (however designated) having ordinary voting
power for the election of directors or the equivalent governing body of such
Person, other than stock or other Equity Interests having such power only by
reason of happening of a contingency.
"Welfare Plan" means a "welfare plan" as defined in Section
3(l) of ERISA.
"Wholly Owned Subsidiary" means any Subsidiary all the Equity
Interests in which, other than directors' qualifying shares and/or other nominal
amounts of Equity Interests that are required to be held by Persons (other than
the Company or its Wholly Owned Subsidiaries, as applicable) under applicable
law, are owned, directly or indirectly, by the Company.
"Yen" or "Y." means the lawful money of Japan.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "US Tranche Revolving Loan" or a "Revolving Loan") or by Type (e.g., a
"Eurocurrency Loan") or by Class and Type (e.g., a "Eurocurrency Revolving
Loan"). Borrowings also may be classified and referred to by Class (e.g., a "US
Tranche Revolving Borrowing" or a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. References herein to the taking of any action hereunder of an
administrative nature by any Borrower shall be deemed to include references to
the Company taking such action on such Borrower's behalf and the Agents are
expressly authorized to accept any such action taken by the Company as having
the same effect as if taken by such Borrower. Each reference herein to the
"knowledge" of the Company or any Subsidiary shall be deemed to be a reference
to the knowledge of any member of senior management of the Company or such
Subsidiary, any Financial Officer and, in the case of any reference to knowledge
of any specific subject matter, the senior manager of the department or office
of the Company responsible for such matter.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance
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with GAAP, as in effect from time to time; provided that, if the Company
notifies the Administrative Agent that the Company requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Company that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m.,
New York City time, on each Calculation Date (determined without regard to
clause (b) of the definition of such term), the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to
Sterling, Euro, Canadian Dollars, Australian Dollars and each Designated Foreign
Currency that is represented by an outstanding Borrowing as of such Calculation
Date and (ii) give notice thereof to the Lenders and the Company. Not later than
1:00 p.m., New York City time, on the Business Day immediately preceding the
date of any Borrowing in a Designated Foreign Currency for which no Exchange
Rate shall have been determined on the most recent Calculation Date, the
Administrative Agent shall (i) determine the Exchange Rate as of such Business
Day with respect to each Designated Foreign Currency and (ii) give notice
thereof to the Lenders and the Company. The Exchange Rates so determined shall
become effective on the first Business Day immediately following the relevant
Calculation Date (a "Reset Date") or other date of determination, shall remain
effective until the next succeeding Reset Date, and shall for all purposes of
this Agreement (other than Section 10.14 or any other provision expressly
requiring the use of a current Exchange Rate) be the Exchange Rates employed in
converting any amounts between US Dollars and Designated Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date and each date on which Revolving Loans denominated in any Designated
Foreign Currency are made, the Administrative Agent shall (i) determine the
aggregate amount of each of the UK Tranche Revolving Credit Exposure, the Euro
Tranche Revolving Credit Exposure, the Canadian Tranche Revolving Credit
Exposure and the Australian Tranche Revolving Credit Exposure and the aggregate
US Dollar Equivalent of the principal amounts of the Competitive Loans
denominated in Designated Foreign Currencies then outstanding (after giving
effect to any Loans made or repaid on such date) and (ii) notify the Lenders and
the Company of the results of such determination.
SECTION 1.06. Determinations Made in Good Faith. All
determinations hereunder made by any party hereto shall be made in good faith.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions set forth herein, each US Tranche Lender agrees to make US Tranche
Revolving Loans to the Company and the US Borrowing Subsidiaries from time to
time during the Availability Period in US Dollars in an aggregate principal
amount that will not result in (i) such Lender's US Tranche Revolving Credit
Exposure exceeding such Lender's US Tranche Commitment, (ii) the sum of the
total US Tranche Revolving Credit Exposures exceeding the total US Tranche
Commitments or (iii) the sum of the aggregate Revolving Credit Exposures plus
the total Competitive Loan Exposures exceeding the total Commitments.
(b) Subject to the terms and conditions set forth herein, each
UK Tranche Lender agrees from time to time during the Availability Period (i) to
make UK Tranche Revolving Loans in Sterling to the UK Borrowing Subsidiaries
from its UK Lending Office and (ii) to make UK Tranche Revolving Loans in US
Dollars to the Company and the US Borrowing Subsidiaries from its US Lending
Office in an aggregate principal amount that will not result in (A) such
Lender's UK Tranche Revolving Credit Exposure exceeding such Lender's UK Tranche
Commitment, (B) the sum of the total UK Tranche Revolving Credit Exposures
exceeding the total UK Tranche Commitments or (C) the sum of the aggregate
Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding
the total Commitments.
(c) Subject to the terms and conditions set forth herein, each
Euro Tranche Lender agrees from time to time during the Availability Period (i)
to make Euro Tranche Revolving Loans in Euro to the Euro Borrowing Subsidiaries
from its Euro Lending Office and (ii) to make Euro Tranche Revolving Loans in US
Dollars to the Company and the US Borrowing Subsidiaries from its US Lending
Office in an aggregate principal amount that will not result in (A) such
Lender's Euro Tranche Revolving Credit Exposure exceeding such Lender's Euro
Tranche Commitment, (B) the sum of the total Euro Tranche Revolving Credit
Exposures exceeding the total Euro Tranche Commitments or (C) the sum of the
aggregate Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeding the total Commitments.
(d) Subject to the terms and conditions set forth herein, each
Canadian Tranche Lender agrees from time to time during the Availability Period
(i) to make Canadian Tranche Revolving Loans in Canadian Dollars to the Canadian
Borrowing Subsidiaries from its Canadian Lending Office and/or to cause its
Canadian Lending Office to accept and purchase or arrange for the acceptance and
purchase of drafts drawn by the Canadian Borrowing Subsidiaries in Canadian
Dollars as B/As, and (ii) to make Canadian Tranche Revolving Loans in US Dollars
to the Company and the US Borrowing Subsidiaries from its US Lending Office in
an aggregate principal amount that will not result in (A) such Lender's Canadian
Tranche Revolving Credit Exposure exceeding such Lender's Canadian Tranche
Commitment, (B) the sum of the total Canadian Tranche Revolving Credit Exposures
exceeding the total Canadian Tranche Commitments or (C) the sum of the aggregate
Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding
the total Commitments.
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(e) Subject to the terms and conditions set forth herein, each
Australian Tranche Lender agrees from time to time during the Availability
Period (i) to make Australian Tranche Revolving Loans in Australian Dollars to
the Australian Borrowing Subsidiaries from its Australian Lending Office and
(ii) to make Australian Tranche Revolving Loans in US Dollars to the Company and
the US Borrowing Subsidiaries from its US Lending Office in an aggregate
principal amount that will not result in (A) such Lender's Australian Tranche
Revolving Credit Exposure exceeding such Lender's Australian Tranche Commitment,
(B) the sum of the total Australian Tranche Revolving Credit Exposures exceeding
the total Australian Tranche Commitments or (C) the sum of the aggregate
Revolving Credit Exposures plus the total Competitive Loan Exposures exceeding
the total Commitments.
(f) Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans during the Availability Period.
SECTION 2.02. Loans and Borrowings. (a) Each US Tranche
Revolving Loan shall be made as part of a Borrowing consisting of US Tranche
Revolving Loans made by the US Tranche Lenders (or their Affiliates as provided
in paragraph (b) below) ratably in accordance with their respective US Tranche
Commitments. Each UK Tranche Revolving Loan shall be made as part of a Borrowing
consisting of UK Tranche Revolving Loans made by the UK Tranche Lenders (or
their Affiliates as provided in paragraph (b) below) ratably in accordance with
their respective UK Tranche Commitments. Each Euro Tranche Revolving Loan shall
be made as part of a Borrowing consisting of Euro Tranche Revolving Loans made
by the Euro Tranche Lenders (or their Affiliates as provided in paragraph (b)
below) ratably in accordance with their respective Euro Tranche Commitments.
Each Canadian Tranche Revolving Loan shall be made as part of a Borrowing
consisting of Canadian Tranche Revolving Loans made by the Canadian Tranche
Lenders (or their Affiliates as provided in paragraph (b) below) ratably in
accordance with their respective Canadian Tranche Commitments. Each Australian
Tranche Revolving Loan shall be made as part of a Borrowing consisting of
Australian Tranche Revolving Loans made by the Australian Tranche Lenders (or
their Affiliates as provided in paragraph (b) below) ratably in accordance with
their respective Australian Tranche Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.04. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each US Tranche Revolving
Borrowing shall be comprised entirely of Eurocurrency Loans or ABR Loans, as the
applicable Borrower may request in accordance herewith; (ii) each UK Tranche
Revolving Borrowing shall be comprised entirely of (A) in the case of a UK
Tranche Revolving Borrowing denominated in Sterling, Eurocurrency Loans, and (B)
in the case of a UK Tranche Revolving Borrowing denominated in US Dollars,
Eurocurrency Loans or ABR Loans, as the applicable Borrower may request in
accordance herewith; (iii) each Euro Tranche Revolving Borrowing shall be
comprised entirely of (A) in the case of a Euro Tranche Revolving Borrowing
denominated in Euros, Eurocurrency Loans, and (B) in the case of a Euro Tranche
Revolving Borrowing denominated in US Dollars, Eurocurrency Loans or ABR Loans,
as the applicable Borrower may request in accordance herewith; (iv) each
Canadian Tranche Revolving Borrowing shall be comprised entirely of (A) in the
case of a Canadian Tranche Revolving Borrowing denominated in Canadian Dollars,
Canadian Base Rate
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Loans, and (B) in the case of a Canadian Tranche Revolving Borrowing denominated
in US Dollars, Eurocurrency Loans or ABR Loans, as the applicable Borrower may
request in accordance herewith; (v) each Australian Tranche Revolving Borrowing
shall be comprised entirely of (A) in the case of an Australian Tranche
Revolving Borrowing denominated in Australian Dollars, Bill Rate Loans, and (B)
in the case of an Australian Tranche Revolving Borrowing denominated in US
Dollars, Eurocurrency Loans or ABR Loans, as the applicable Borrower may request
in accordance therewith; and (vi) each Competitive Borrowing shall be comprised
entirely of Eurocurrency Loans or Fixed Rate Loans as the applicable Borrower
may request in accordance herewith. Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of any Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be an integral multiple
of the Borrowing Multiple and not less than the Borrowing Minimum. At the time
that each ABR Revolving Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of US$1,000,000 and not less than
US$5,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
amount that is equal to the entire unused balance of the total US Tranche
Commitments, UK Tranche Commitments, Euro Tranche Commitments, Canadian Tranche
Commitments or Australian Tranche Commitments, as the case may be, and a
Canadian Base Rate Borrowing denominated in Canadian Dollars may be in an
aggregate amount that is equal to the entire unused balance of the Canadian
Tranche Commitments. Each Competitive Borrowing shall be in an aggregate amount
that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum. Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there shall not at any time be outstanding more
than a total of (i) 10 Eurocurrency Revolving Borrowings denominated in US
Dollars or (ii) 3 Eurocurrency Revolving Borrowings denominated in any single
other currency.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Revolving Borrowing if the Interest Period requested with respect thereto would
end after the Maturity Date, or to request any Competitive Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
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SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the applicable Borrower shall notify the Applicable Agent
of such request by telephone or by telecopy (a) in the case of a Eurocurrency
Borrowing, not later than 11:00 a.m., Local Time, three Business Days before the
date of the proposed Borrowing, (b) in the case of an ABR Borrowing, not later
than 11:00 a.m., Local Time, on the Business Day of the proposed Borrowing or
(c) in the case of a Canadian Base Rate Borrowing, not later than 11:00 a.m.,
Local Time on the Business Day of the proposed Borrowing. Each such Borrowing
Request shall be irrevocable and, if telephonic, shall be confirmed promptly by
hand delivery or telecopy to the Applicable Agent of a written Borrowing Request
in a form agreed to by the Applicable Agent and the Company and signed by the
applicable Borrower, or by the Company on behalf of the applicable Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf
the Company is requesting such Borrowing);
(ii) whether the requested Borrowings is to be a US Tranche
Borrowing, a UK Tranche Borrowing, a Euro Tranche Borrowing, a Canadian
Tranche Borrowing or an Australian Tranche Borrowing;
(iii) the currency and aggregate amount of the requested
Borrowing;
(iv) the date of such Borrowing, which shall be a Business
Day;
(v) the Type of the requested Borrowing;
(vi) in the case of a Eurocurrency Borrowing or a Bill Rate
Borrowing, the initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(vii) the location and number of the relevant Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
If no currency is specified with respect to any requested Eurocurrency
Borrowing, then the relevant Borrower shall be deemed to have selected (i) in
the case of any UK Borrowing Subsidiary, Sterling, (ii) the case of any Euro
Borrowing Subsidiary, Euro, (iii) in the case of any Canadian Borrowing
Subsidiary, Canadian Dollars, (iv) in the case of any Australian Borrowing
Subsidiary, Australian Dollars, and (v) in the case of the Company and any other
Borrowing Subsidiary, US Dollars. If no election as to the Type of Revolving
Borrowing is specified, then the requested Revolving Borrowing shall be (A) in
the case of a Borrowing denominated in US Dollars, an ABR Borrowing (ii) in the
case of a Borrowing denominated in Canadian Dollars, a Canadian Base Rate
Borrowing, (iii) in the case of a Borrowing denominated in Australian Dollars, a
Bill Rate Borrowing, and (iv) in the case of a Borrowing denominated in any
other currency, a Eurocurrency Borrowing. If no Interest Period is specified
with respect to any requested Eurocurrency Revolving Borrowing or Bill Rate
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Applicable Agent shall advise each
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Lender of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans denominated
in US Dollars or any Designated Foreign Currency (excluding Australian Dollars);
provided that after giving effect to any Borrowing of Competitive Loans the sum
of the total Revolving Credit Exposures plus the total Competitive Loans shall
not exceed the total Commitments. To request Competitive Bids, the Company or
the applicable Borrowing Subsidiary shall notify the Applicable Agent of such
request by telephone or by telecopy, in the case of a Eurocurrency Borrowing,
not later than 11:00 a.m., Local Time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., Local Time, one Business Day before the date of the proposed
Borrowing; provided that the Borrowers may submit up to (but not more than) five
Competitive Bid Requests on the same day, but a Competitive Bid Request shall
not be made within five Business Days after the date of any previous Competitive
Bid Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Applicable Agent of a written
Competitive Bid Request in a form approved by the Applicable Agent and signed by
the applicable Borrower, or by the Company on behalf of the applicable Borrower.
Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf
the Company is requesting such Borrowing);
(ii) the aggregate principal amount and currency of the
requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be a Eurocurrency Borrowing
or a Fixed Rate Borrowing;
(v) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period" and shall end no later than the Maturity Date; and
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Applicable Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the applicable Borrower in response to a
Competitive Bid Request. Each Competitive Bid by a Lender must be in a form
approved by the Applicable Agent and must be received
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by the Applicable Agent by telecopy, in the case of a Eurocurrency Competitive
Borrowing, not later than 9:30 a.m., Local Time, three Business Days before the
proposed date of such Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., Local Time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to the
form approved by the Applicable Agent may be rejected by the Applicable Agent,
and the Applicable Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be an amount at least equal to the Borrowing Minimum and an integral
multiple of the Borrowing Multiple and which may equal the entire principal
amount of the Competitive Borrowing requested by the applicable Borrower) of the
Competitive Loan or Loans that the Lender is willing to make, (ii) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan
or Loans (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) and (iii) the Interest Period applicable to
each such Loan and the last day thereof.
(c) The Applicable Agent shall promptly notify the applicable
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, a
Borrower may accept or reject any Competitive Bid. The applicable Borrower shall
notify the Applicable Agent by telecopy or by telephone, confirmed by telecopy
in a form approved by the Applicable Agent, whether and to what extent it has
decided to accept or reject each Competitive Bid, in the case of a Eurocurrency
Competitive Borrowing, not later than 11:00 a.m., Local Time, three Business
Days before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 11:00 a.m., Local Time, on the proposed
date of the Competitive Borrowing; provided that (i) the failure of a Borrower
to give such notice shall be deemed to be a rejection of each Competitive Bid,
(ii) a Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by a Borrower shall not exceed the aggregate amount of the requested
Competitive Borrowing specified in the related Competitive Bid Request, (iv) to
the extent necessary to comply with clause (iii) above, a Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of at least the Borrowing Minimum that is an integral multiple of the
Borrowing Multiple; provided further that if a Competitive Loan must be in an
amount less than the Borrowing Minimum because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of US$1,000,000 (or, in the
case of a Competitive Loan denominated in a Designated Foreign Currency, the
smallest amount of such currency that (i) is an integral multiple of 1,000,000
units of such currency and (ii) has a US Dollar Equivalent in excess of
US$1,000,000) or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of the Borrowing Multiple in a manner determined
by the applicable Borrower. A notice given by a Borrower pursuant to this
paragraph shall be irrevocable.
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(e) The Applicable Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Applicable Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the applicable Borrower at least one quarter of an hour earlier
than the time by which the other Lenders are required to submit their
Competitive Bids to the Applicable Agent pursuant to paragraph (b) of this
Section.
SECTION 2.05. Canadian Bankers' Acceptances. (a) Each
acceptance and purchase of B/As of a single Contract Period pursuant to Section
2.01(d) or Section 2.08 shall be made ratably by the Canadian Tranche Lenders in
accordance with the amounts of their Canadian Tranche Commitments. The failure
of any Canadian Tranche Lender to accept any B/A required to be accepted by it
shall not relieve any other Canadian Tranche Lender of its obligations
hereunder; provided that the Canadian Tranche Commitments are several and no
Canadian Tranche Lender shall be responsible for any other Canadian Tranche
Lender's failure to accept B/As as required.
(b) The B/As of a single Contract Period accepted and
purchased on any date shall be in an aggregate amount that is an integral
multiple of C$1,000,000 and not less than C$5,000,000. The face amount of each
B/A shall be C$100,000 or any whole multiple thereof. If any Canadian Tranche
Lender's ratable share of the B/As of any Contract Period to be accepted on any
date would not be an integral multiple of C$100,000, the face amount of the B/As
accepted by such Lender may be increased or reduced to the nearest integral
multiple of C$100,000 by the Canadian Agent in its sole discretion. B/As of more
than one Contract Period may be outstanding at the same time; provided that
there shall not at any time be more than a total of three B/A Drawings
outstanding.
(c) To request an acceptance and purchase of B/As, a Borrower
shall notify the Canadian Agent of such request by telephone or by telecopy not
later than 10:00 a.m., Local Time, one Business Day before the date of such
acceptance and purchase. Each such request shall be irrevocable and, if
telephonic, shall be confirmed promptly by hand delivery or telecopy to the
Canadian Agent of a written request in a form approved by the Canadian Agent and
signed by such Borrower. Each such telephonic and written request shall specify
the following information:
(i) the aggregate face amount of the B/As to be accepted and
purchased;
(ii) the date of such acceptance and purchase, which shall be
a Business Day;
(iii) the Contract Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "Contract
Period" (and which shall in no event end after the Maturity Date); and
(iv) the location and number of the Borrower's account to
which any funds are to be disbursed, which shall comply with the
requirements of Section 2.07. If no Contract Period is specified with
respect to any requested acceptance and purchase of B/As, then the
Borrower shall be deemed to have selected a Contract Period of 30 days'
duration.
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Promptly following receipt of a request in accordance with this paragraph, the
Canadian Agent shall advise each Canadian Tranche Lender of the details thereof
and of the amount of B/As to be accepted and purchased by such Lender.
(d) Each Borrower hereby appoints each Canadian Tranche Lender
as its attorney to sign and endorse on its behalf, manually or by facsimile or
mechanical signature, as and when deemed necessary by such Lender, blank forms
of B/As. It shall be the responsibility of each Canadian Tranche Lender to
maintain an adequate supply of blank forms of B/As for acceptance under this
Agreement. Each Borrower recognizes and agrees that all B/As signed and/or
endorsed on its behalf by any Canadian Tranche Lender shall bind such Borrower
as fully and effectually as if manually signed and duly issued by authorized
officers of such Borrower. Each Canadian Tranche Lender is hereby authorized to
issue such B/As endorsed in blank in such face amounts as may be determined by
such Lender; provided that the aggregate face amount thereof is equal to the
aggregate face amount of B/As required to be accepted by such Lender. No
Canadian Tranche Lender shall be liable for any damage, loss or claim arising by
reason of any loss or improper use of any such instrument unless such loss or
improper use results from the bad faith, gross negligence or willful misconduct
of such Lender. Each Canadian Tranche Lender shall maintain a record with
respect to B/As (i) received by it from the Canadian Agent in blank hereunder,
(ii) voided by it for any reason, (iii) accepted and purchased by it hereunder
and (iv) canceled at their respective maturities. Each Canadian Tranche Lender
further agrees to retain such records in the manner and for the periods provided
in applicable provincial or Federal statutes and regulations of Canada and to
provide such records to each Borrower upon its request and at its expense. Upon
request by any Borrower, a Lender shall cancel all forms of B/A that have been
pre-signed or pre-endorsed on behalf of such Borrower and that are held by such
Lender and are not required to be issued pursuant to this Agreement.
(e) Drafts of each Borrower to be accepted as B/As hereunder
shall be signed as set forth in paragraph (d) above. Notwithstanding that any
Person whose signature appears on any B/A may no longer be an authorized
signatory for any of the Lenders or such Borrower at the date of issuance of
such B/A, such signature shall nevertheless be valid and sufficient for all
purposes as if such authority had remained in force at the time of such issuance
and any such B/A so signed shall be binding on such Borrower.
(f) Upon acceptance of a B/A by a Lender, such Lender shall
purchase, or arrange the purchase of, such B/A from the applicable Borrower at
the Discount Rate for such Lender applicable to such B/A accepted by it and
provide to the Canadian Agent the Discount Proceeds for the account of such
Borrower as provided in Section 2.07. The acceptance fee payable by the
Applicable Borrower to a Lender under Section 2.12 in respect of each B/A
accepted by such Lender shall be set off against the Discount Proceeds payable
by such Lender under this paragraph. Notwithstanding the foregoing, in the case
of any B/A Drawing resulting from the conversion or continuation of a B/A
Drawing or Canadian Tranche Revolving Loan pursuant to Section 2.08, the net
amount that would otherwise be payable to such Borrower by each Lender pursuant
to this paragraph will be applied as provided in Section 2.08(f).
(g) Each Lender may at any time and from time to time hold,
sell, rediscount or otherwise dispose of any or all B/A's accepted and purchased
by it.
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(h) Each B/A accepted and purchased hereunder shall mature at
the end of the Contract Period applicable thereto.
(i) Each Borrower waives presentment for payment and any other
defense to payment of any amounts due to a Lender in respect of a B/A accepted
and purchased by it pursuant to this Agreement which might exist solely by
reason of such B/A being held, at the maturity thereof, by such Lender in its
own right and each Borrower agrees not to claim any days of grace if such Lender
as holder sues each Borrower on the B/A for payment of the amounts payable by
such Borrower thereunder. On the specified maturity date of a B/A, or such
earlier date as may be required pursuant to the provisions of this Agreement,
each Borrower shall pay the Lender that has accepted and purchased such B/A the
full face amount of such B/A, and after such payment such Borrower shall have no
further liability in respect of such B/A and such Lender shall be entitled to
all benefits of, and be responsible for all payments due to third parties under,
such B/A.
(j) At the option of each Borrower and any Lender, B/As under
this Agreement to be accepted by that Lender may be issued in the form of
depository bills for deposit with The Canadian Depository for Securities Limited
pursuant to the Depository Bills and Notes Act (Canada). All depository bills so
issued shall be governed by the provisions of this Section 2.22.
(k) If a Canadian Tranche Lender is not a chartered bank under
the Bank Act (Canada) or if a Canadian Tranche Lender notifies the Canadian
Agent in writing that it is otherwise unable to accept B/As, such Canadian
Tranche Lender will, instead of accepting and purchasing B/As, make a Loan (a
"B/A Equivalent Loan") to the Canadian Borrower in the amount and for the same
term as the draft which such Canadian Tranche Lender would otherwise have been
required to accept and purchase hereunder. Each such Canadian Tranche Lender
will provide to the Canadian Agent the Discount Proceeds of such B/A Equivalent
Loan for the account of the Canadian Borrower in the same manner as such
Canadian Tranche Lender would have provided the Discount Proceeds in respect of
the draft which such Canadian Tranche Lender would otherwise have been required
to accept and purchase hereunder. Each such B/A Equivalent Loan will bear
interest at the same rate which would result if such Canadian Tranche Lender had
accepted (and been paid an acceptance fee) and purchased (on a discounted basis)
a B/A for the relevant Contract Period (it being the intention of the parties
that each such B/A Equivalent Loan shall have the same economic consequences for
the Lenders and the Borrower as the B/A which such B/A Equivalent Loan
replaces). All such interest shall be paid in advance on the date such B/A
Equivalent Loan is made, and will be deducted from the principal amount of such
B/A Equivalent Loan in the same manner in which the Discount Proceeds of a B/A
would be deducted from the face amount of the B/A. Subject to the repayment
requirements of this Agreement, on the last day of the relevant Contract Period
for such B/A Equivalent Loan, the Borrower shall be entitled to convert each
such B/A Equivalent Loan into another type of Loan, or to roll over each such
B/A Equivalent Loan into another B/A Equivalent Loan, all in accordance with the
applicable provisions of this Agreement.
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SECTION 2.06. Australian Reliquification Bills. Each
Australian Borrowing Subsidiary (the "Applicable Subsidiary") agrees, with
respect to Loans denominated in Australian Dollars made to it:
(a) To draw Bills when and in the form required by the
Australian Agent on behalf of an Australian Tranche Lender. However,
(i) the discounted value of those Bills, when added to the total of the
discounted value of all other Bills drawn as required by the Australian
Agent on behalf of the Australian Tranche Lender under this clause and
which are outstanding, may not exceed the Australian Tranche Lender's
Loans to which the Bills relate and (ii) no Bill is to be drawn which
would mature after the Maturity Date.
(b) The Applicable Subsidiary irrevocably appoints each
Australian Tranche Lender and each authorized officer of each
Australian Tranche Lender individually as its attorney to draw, accept
or endorse the Bills and agrees to ratify all action taken by an
attorney under this Section 2.06.
(c) The Applicable Subsidiary's obligation to draw Bills
ceases, and the appointment of an Australian Tranche Lender and its
authorized officers as attorney for this purpose is revoked, on payment
by the Applicable Subsidiary to the Australian Agent of all amounts
owing to that Australian Tranche Lender under this Agreement.
(d) Each Australian Tranche Lender unconditionally and
irrevocably indemnifies the Applicable Subsidiary against liability or
loss arising from, and any costs, charges and expenses (including stamp
duty) incurred in connection with, any Bill drawn at such Australian
Tranche Lender's request under this Section 2.06.
SECTION 2.07. Funding of Borrowings and B/A Drawings. (a) Each
Lender shall make each Loan to be made by it and disburse the Discount Proceeds
(net of applicable acceptance fees) of each B/A to be accepted and purchased by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds in the applicable currency by 1:00 p.m., Local Time, to the
account of the Applicable Agent most recently designated by it for such purpose
by notice to the applicable Lenders. The Applicable Agent will make such Loans
or Discount Proceeds (net of applicable acceptance fees) available to the
applicable Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower maintained with the Applicable Agent (i)
in New York City, in the case of Loans denominated in US Dollars, (ii) in
London, in the case of Loans denominated in Sterling, Euro or any Designated
Foreign Currency other than Canadian Dollars and Australian Dollars, (iii) in
Toronto, in the case of Loans denominated in Canadian Dollars or B/As, and (iv)
in Sydney, in the case of Loans denominated in Australian Dollars, and
designated by such Borrower in the applicable Borrowing Request or Competitive
Bid Request.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing or acceptance and
purchase of B/As that such Lender will not make available to the Applicable
Agent such Lender's share of such Borrowing or the applicable Discount Proceeds
(net of applicable acceptance fees), the Applicable Agent may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable
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Borrowing or the applicable Discount Proceeds (net of applicable acceptance
fees) available to the Applicable Agent, then the applicable Lender and the
Borrowers severally agree to pay to the Applicable Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the applicable Borrower to but
excluding the date of payment to the Applicable Agent, at (i) in the case of
such Lender, the greater of (x)(A) the Federal Funds Effective Rate, in the case
of Loans denominated in US Dollars and (B) the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount, in the case of
Loans denominated in any other currency, and (y) a rate determined by the
Applicable Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of a Borrower, the interest rate applicable to
such Borrowing or the applicable Discount Rate, as the case may be. If such
Lender pays such amount to the Applicable Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing or such Lender's
purchase of B/As.
SECTION 2.08. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing or a Bill Rate Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Each B/A Drawing shall have a Contract Period as specified in the applicable
request therefor. Thereafter, the applicable Borrower may elect to convert such
Borrowing or B/A Drawing to a different Type or to continue such Borrowing or
B/A Drawing and, in the case of a Eurocurrency Revolving Borrowing or a Bill
Rate Borrowing, may elect Interest Periods therefor, all as provided in this
Section, it being understood that no B/A Drawing may be converted or continued
other than at the end of the Contract Period applicable thereto. The applicable
Borrower may elect different options with respect to different portions of the
affected Borrowing or B/A Drawing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing
or accepting the B/As comprising such B/A Drawing, as the case may be, and any
Loans or B/As resulting from an election made with respect to any such portion
shall be considered a separate Borrowing or B/A Drawing. Notwithstanding any
other provision of this Section, no Borrowing or B/A Drawing may be converted
into or continued as a Borrowing or B/A Drawing with an Interest Period ending
after the Maturity Date. This Section shall not apply to Competitive Borrowings,
which may not be converted or continued.
(b) To make an election pursuant to this Section, a Borrower
(or the Company on its behalf) shall notify the Applicable Agent of such
election by telephone or by telecopy (i) in the case of an election that would
result in a Borrowing, by the time and date that a Borrowing Request would be
required under Section 2.03 if such Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on the effective
date of such election, and (ii) in the case of an election that would result in
a B/A Drawing or the continuation of a B/A Drawing, by the time and date that a
request would be required under Section 2.05 if such Borrower were requesting an
acceptance and purchase of B/As to be made on the effective date of such
election. Each such Interest Election Request shall be irrevocable and, if
telephonic, shall be confirmed promptly by hand delivery or telecopy to the
Applicable Agent of a written Interest Election Request in a form approved by
the Applicable Agent and signed by the applicable Borrower (or the Company on
its behalf). Notwithstanding any other provision of this Section, no Borrower
shall be permitted to (i) change the currency of any Borrowing, (ii) elect an
Interest Period for Eurocurrency Loans or Bill Rate Loans that does not comply
with Section 2.02(d) or
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(iii) convert any Borrowing or B/A Drawing to a Borrowing or B/A Drawing not
available under the Class of Commitments pursuant to which such Borrowing or B/A
Drawing was made.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing or B/A Drawing to which such Interest
Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing or B/A Drawing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below
shall be specified for each resulting Borrowing or B/A Drawing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a Eurocurrency Borrowing, a Canadian Base Rate Borrowing, a
B/A Drawing or a Bill Rate Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing or
a Bill Rate Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period", and in
the case of an election of a B/A Drawing, the Contract Period to be
applicable thereto, which shall be a period contemplated by the
definition of the term "Contract Period".
If any such Interest Election Request requests a Eurocurrency Borrowing, a B/A
Drawing or a Bill Rate Borrowing but does not specify an Interest Period or a
Contract Period, then the applicable Borrower shall be deemed to have selected
an Interest Period or Contract Period of one month's or 30 days' duration, as
applicable.
(d) Promptly following receipt of an Interest Election
Request, the Applicable Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing or B/A Drawing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing, Bill Rate Borrowing
or B/A Drawing prior to the end of the Interest Period or Contract Period
applicable thereto, then, unless such Borrowing or B/A Drawing is repaid as
provided herein, at the end of such Interest Period or Contract Period, such
Borrowing, Bill Rate Borrowing or B/A Drawing shall (i) in the case of a
Borrowing denominated in US Dollars, be converted to an ABR Borrowing, (ii) in
the case of a Borrowing or B/A Drawing denominated in Canadian Dollars, be
converted to a Canadian Base Rate Borrowing, and (iii) in the case of any other
Eurocurrency Borrowing or any Bill Rate Borrowing, become due and payable on the
last day of such Interest Period. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Company, then, so
long as an Event of Default is continuing (i) no outstanding Revolving Borrowing
denominated in US Dollars may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid, each Eurocurrency Revolving
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Borrowing denominated in US Dollars shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
(f) Upon the conversion of any Canadian Tranche Borrowing (or
portion thereof), or the continuation of any B/A Drawing (or portion thereof),
to or as a B/A Drawing, the net amount that would otherwise be payable to a
Borrower by each Lender pursuant to Section 2.05(f) in respect of such new B/A
Drawing shall be applied against the principal of the Canadian Tranche Revolving
Loan made by such Lender as part of such Canadian Tranche Borrowing (in the case
of a conversion), or the reimbursement obligation owed to such Lender under
Section 2.05(i) in respect of the B/As accepted by such Lender as part of such
maturing B/A Drawing (in the case of a continuation), and such Borrower shall
pay to such Lender an amount equal to the difference between the principal
amount of such Canadian Tranche Revolving Loan or the aggregate face amount of
such maturing B/As, as the case may be, and such net amount.
SECTION 2.09. Termination and Reduction of Commitments;
Adjustment of Tranche Commitments. (a) Unless previously terminated, the
Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments under any Tranche; provided that (i) each reduction
of the Commitments under any Tranche shall be in an amount that is an integral
multiple of US$1,000,000 and not less than US$5,000,000 and (ii) the Company
shall not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the sum of
the total Revolving Credit Exposures plus the total Competitive Loan Exposures
would exceed the total Commitments or the sum of the Revolving Credit Exposures
under any Tranche would exceed the sum of the Commitments under such Tranche.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under any Tranche under
paragraph (b) of this Section at least three Business Days prior to the
effective date of such termination or reduction, specifying such election and
the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the other Agents and the applicable Lenders of
the contents thereof. Each notice delivered by the Company pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments under any Tranche shall be made ratably among the Lenders in
accordance with their respective Commitments under such Tranche.
(d) (i) The Company may, by written notice to the
Administrative Agent, request that the total Commitments under any Tranche be
increased by an amount for each increased Tranche of not less than US$5,000,000,
and that simultaneous decreases be made to the Commitments under other Tranches
in amounts that will result in the sum of the total Commitments remaining
unchanged after giving effect to such increases and decreases. Such notice shall
set forth the amount of the requested increase or decrease in each Tranche, and
the date on which such adjustment is requested to become effective (which shall
be not less than
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10 Business Days or more than 30 days after the date of such notice), and shall
offer each Lender holding a Commitment under any increasing Tranche the
opportunity to increase its Commitment in such Tranche by its Tranche Percentage
of the proposed increased amount. Each such Lender shall, by notice to the
Company and the Administrative Agent given not more than 5 Business Days after
the date of the Company's notice, either agree to increase its applicable
Commitment by all or a portion of the offered amount (each Lender so agreeing
being an "Increasing Lender" with respect to such Tranche) or decline to
increase its applicable Commitment (and any Lender that does not deliver such a
notice within such period of 5 Business Days shall be deemed to have declined to
increase its Commitment) (each Lender so declining or deemed to have declined
being a "Non-Increasing Lender" with respect to such Tranche). In the event that
on the 5th Business Day after the Company shall have delivered a notice pursuant
to the first sentence of this paragraph the Lenders shall have agreed pursuant
to the preceding sentence to increase their Commitments under any Tranche by an
aggregate amount less than the increase in the total Commitments requested by
the Company, the Company may arrange for one or more banks or other financial
institutions (any such bank or other financial institution being called an
"Augmenting Lender" with respect to such Tranche), which may include any Lender,
to extend Commitments in an aggregate amount equal to the unsubscribed amount;
provided that each Augmenting Lender, if not already a Lender hereunder, shall
be subject to the approval of the Administrative Agent (which approval shall not
be unreasonably withheld) and the Borrowers and each Augmenting Lender shall
execute all such documentation as the Administrative Agent shall reasonably
specify to evidence the Commitment of such Augmenting Lender and/or its status
as a Lender hereunder. Any increase in the Commitments under any Tranche may be
made in an amount which is less than the increase requested by the Company if
the Company is unable to arrange for, or chooses not to arrange for, Augmenting
Lenders. Not less than three Business Days prior to the effective date (the
"Increase Effective Date") of any increase (each a "Commitment Increase") in the
total Commitments under any Tranche pursuant to this Section 2.09(d), the
Company shall by written notice to the Administrative Agent confirm the
decreases (each a "Commitment Decrease") to be made to the Commitments under the
other Tranches specified in the original notice given in respect of the proposed
adjustments or shall specify the Commitment Decreases to made in lieu thereof
that will result in the sum of the total Commitments remaining unchanged after
giving effect to the Commitment Increases and Commitment Decreases to be made on
the Increase Effective Date.
(ii) On the Increase Effective Date, (A) the aggregate
principal amount of the Revolving Loans outstanding under each Tranche under
which a Commitment Increase will become effective (the "Initial Loans" under
such Tranche) immediately prior to giving effect to the applicable Commitment
Increase on the Increase Effective Date shall be deemed to be repaid, (B) after
the effectiveness of the Commitment Increase, the Borrowers holding Commitments
under such Tranche shall be deemed to have made new Borrowings (the "Subsequent
Borrowings") in an aggregate principal amount equal to the aggregate principal
amount of the Initial Loans under such Tranche and of the types and for the
Interest Periods specified in a Borrowing Request delivered to the
Administrative Agent in accordance with Section 2.03, (C) each Lender under such
Tranche shall pay to the Applicable Agent in same day funds an amount equal to
the difference, if positive, between (x) such Lender's Tranche Percentage
(calculated after giving effect to the Commitment Increase) of the Subsequent
Borrowings and (y) such Lender's Tranche Percentage (calculated without giving
effect to the Commitment Increase) of the Initial Loans, (D) after the
Applicable Agent receives the funds specified in clause (C) above, the
Applicable Agent shall pay to each Lender under such Tranche the portion of such
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funds that is equal to the difference, if positive, between (1) such Lender's
Tranche Percentage (calculated without giving effect to the Commitment Increase)
of the Initial Loans and (2) such Lender's Tranche Percentage (calculated after
giving effect to the Commitment Increase) of the amount of the Subsequent
Borrowings, (E) each Non-Increasing Lender, each Increasing Lender and each
Augmenting Lender shall be deemed to hold its Tranche Percentage of each
Subsequent Borrowing (each calculated after giving effect to the Commitment
Increase) and (F) each applicable Borrower shall pay each Increasing Lender and
each Non-Increasing Lender any and all accrued but unpaid interest on the
Initial Loans. The deemed payments made pursuant to clause (A) above in respect
of each Eurocurrency Loan or Bill Rate Loan shall be subject to indemnification
by the Borrowers pursuant to the provisions of Section 2.16 if the Increase
Effective Date occurs other than on the last day of the Interest Period relating
thereto and breakage costs result.
(iii) On the Increase Effective Date, each Commitment Decrease
shall be made ratably among the Lenders holding Commitments under the decreasing
Tranche in accordance with their respective Commitments under such Tranche.
(iv) Commitment Increases, Commitment Decreases and new
Commitments created pursuant to this Section 2.09(d) shall become effective on
the date specified in the original notice delivered by the Company pursuant to
the first sentence of paragraph (d)(i) above.
(v) Notwithstanding the foregoing, no increase in the
Commitments under any Tranche (or in any Commitment of any Lender) or addition
of an Augmenting Lender shall become effective under this Section unless, (A)
the Company shall not have withdrawn its request under paragraph (d)(i) above by
written notice to the Administrative Agent not less than three Business Days
prior to the Increase Effective Date, (B) on the date of such increase, the
conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be
satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by a financial officer of the Company, and
(C) the Administrative Agent shall have received (with sufficient copies for
each of the Lenders) documents consistent with those delivered pursuant to
Section 4.03(b) in connection with the designation of a new Borrowing Subsidiary
as to the corporate power and authority of the applicable Borrowers to borrow
hereunder after giving effect to such increase.
SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay (i) to the Applicable
Agent for the account of each Lender the unpaid principal amount of each
Revolving Loan on the Maturity Date and the face amount of each B/A, if any,
accepted by such Lender as provided in Section 2.05, and (ii) to the Applicable
Agent for the account of each Lender the unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each Borrower to
such Lender resulting from each Loan made or B/A accepted by such Lender,
including the amounts of principal and interest and amounts in respect of B/As
payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period, if any, applicable thereto, and the amount of
each B/A and the Contract Period applicable thereto, (ii) the amount of any
principal, interest or other amount in respect of any B/A due and payable or
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to become due and payable from each Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Agents hereunder for the account of the
Lenders and each Lender's share thereof. Each other Agent shall promptly provide
the Administrative Agent with all information needed to maintain such accounts
in respect of the Loans or B/A Drawings administered by such Agent.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of any Borrower to repay the Loans
in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it
be evidenced by a promissory note. In such event, each Borrower shall execute
and deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in substantially the form attached hereto as Exhibit F. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.11. Prepayment of Loans. (a) The Borrowers shall
have the right at any time and from time to time to prepay any Borrowing and
amounts owed in respect of outstanding B/As in whole or in part, subject to
prior notice in accordance with paragraph (d) of this Section and payment of any
amounts required under Section 2.16; provided that the Borrowers shall not have
the right to prepay any Competitive Loan without the prior consent of the Lender
thereof.
(b) In the event and on each occasion that the sum of the
total Revolving Credit Exposures plus the total Competitive Loan Exposures
exceeds the total Commitments, or the sum of the Revolving Credit Exposures
under any Tranche exceeds the sum of the Commitments under such Tranche, the
Borrowers shall promptly prepay Revolving Borrowings in an aggregate amount
sufficient to eliminate such excess. If on any Reset Date, the aggregate amount
of the sum of the Revolving Credit Exposures under any Tranche exceeds 105% of
the sum of the Commitments under such Tranche, then each applicable Borrower
shall, not later than the next Business Day, prepay one or more Borrowings or
amounts owing in respect of outstanding B/As in an aggregate amount sufficient
to eliminate such excess.
(c) Prior to any optional or mandatory prepayment of
Borrowings or amounts owing in respect of outstanding B/A Drawings, the
applicable Borrower shall select the Borrowing or Borrowings and the B/A Drawing
or B/A Drawings to be prepaid and shall specify such selection in the notice of
such prepayment pursuant to paragraph (d) below.
(d) The Company shall notify the Applicable Agent by telephone
(confirmed by telecopy) or by telecopy of any prepayment hereunder (i) in the
case of prepayment of a Eurocurrency Revolving Borrowing or a Bill Rate
Borrowing, not later than 11:00 a.m., Local time, three Business Days before the
date of prepayment, or (ii) in the case of prepayment of an ABR Revolving
Borrowing, a Canadian Base Rate Borrowing or a B/A Drawing, not later than
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11:00 a.m., Local time, on the Business Day of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof, or amount owed in respect of an
outstanding B/A Drawing or portion thereof, to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing or amounts owing in respect of a B/A Drawing shall be in an amount
that would be permitted in the case of an advance of a Revolving Borrowing of
the same Type as provided in Section 2.02 or an acceptance and purchase of B/As
as provided in Section 2.05. Each prepayment of a Revolving Borrowing or B/A
Drawing shall be applied ratably to the Loans included in the prepaid Borrowing
or the B/As included in such B/A Drawing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
(e) Amounts to be applied pursuant to this Section or Article
VII to prepay or repay amounts to become due with respect to outstanding B/As
shall be deposited in the Prepayment Account (as defined below). The Canadian
Agent shall apply any cash deposited in the Prepayment Account allocable to
amounts to become due in respect of B/As on the last day of their respective
Contract Periods until all amounts due in respect of outstanding B/As have been
prepaid or until all the allocable cash on deposit has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by a Borrower with the Canadian Agent and over which the Canadian
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal for application in accordance with this paragraph (e). The
Canadian Agent will, at the request of such Borrower, invest amounts on deposit
in the Prepayment Account in short-term, cash equivalent investments selected by
the Canadian Agent in consultation with such Borrower that mature prior to the
last day of the applicable Contract Periods of the B/As to be prepaid; provided,
however, that the Canadian Agent shall have no obligation to invest amounts on
deposit in the Prepayment Account if an Event of Default shall have occurred and
be continuing. Such Borrower shall indemnify the Canadian Administrative Agent
for any losses relating to the investments so that the amount available to
prepay amounts due in respect of B/As on the last day of the applicable Contract
Period is not less than the amount that would have been available had no
investments been made pursuant thereto. Other than any interest earned on such
investments (which shall be for the account of such Borrower, to the extent not
necessary for the prepayment of B/As in accordance with this Section), the
Prepayment Account shall not bear interest. Interest or profits, if any, on such
investments shall be deposited in the Prepayment Account and reinvested and
disbursed as specified above. If the maturity of the Loans and all amounts due
hereunder has been accelerated pursuant to Article VII, the Canadian Agent may,
in its sole discretion, apply all amounts on deposit in the Prepayment Account
to satisfy any of the Obligations in respect of Canadian Tranche Revolving Loans
and B/As (and each Borrower hereby grants to the Canadian Agent a security
interest in its Prepayment Account to secure such Obligations).
SECTION 2.12. Fees (a) (i) The Borrowers agree to pay to the
Administrative Agent, in US Dollars, for the account of the office (or
Affiliate) of each Lender from which such Lender would make Loans to the Company
in US Dollars hereunder (which office or Affiliate shall be specified by each
Lender in each Tranche in a notice delivered to the Administrative Agent prior
to the initial payment to such Lender under this paragraph) a facility fee,
which shall
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accrue at the relevant Facility Fee Rate specified in the definition of
Applicable Rate on the daily amount of the Commitments of such Lender (whether
used or unused) during the period from and including the date of this Agreement
to but excluding the Maturity Date; provided that, if such Lender continues to
have any Revolving Credit Exposure after the Maturity Date, then such facility
fee shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the Maturity Date to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year, on any date prior to the Maturity Date on
which all the Commitments shall have terminated and on the Maturity Date,
commencing on the first such date to occur after the date hereof; provided that
any facility fees accruing after the Maturity Date shall be payable on demand.
All facility fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(ii) For each day on which the US Dollar Equivalent of the
aggregate principal amount of the Loans and B/As outstanding under this
Agreement is in excess of 50% of the total Commitments as of such day (and for
each day after the day on which the Commitments terminate) the Borrowers agree
to pay to the Administrative Agent, in US Dollars, for the account of the office
(or Affiliate) of each Lender specified as the payment office for the facility
fee under paragraph (a) above (each a "Payment Date") a utilization fee, which
shall accrue at the relevant Utilization Fee Rate specified in the definition of
Applicable Rate on the daily amount of the outstanding Loans and B/As of such
Lender on such day. On each day on which a utilization fee is not due under the
immediately preceding sentence, the Borrowers agree to pay to the Administrative
Agent, in US Dollars, for the account of the Payment Office of each Lender in
each Tranche under which the aggregate principal amount of the Loans and, if
applicable, B/As outstanding is in excess of 50% of the total Commitments under
such Tranche as of such day, a utilization fee which shall accrue at the
relevant Utilization Fee Rate specified in the definition of Applicable Rate on
the daily amount of the outstanding Loans and, if applicable, B/As under such
Tranche of such Lender on such day. Accrued utilization fees shall be payable in
arrears on the last day of March, June, September and December of each year, on
any date prior to the Maturity Date on which the Commitments terminate and on
the Maturity Date, commencing on the first such date to occur after the date
hereof; provided that any utilization fees accruing after the Maturity Date
shall be payable on demand. All utilization fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) Each Canadian Borrowing Subsidiary agrees to pay to the
Canadian Agent, for the account of each Canadian Tranche Lender, on each date on
which B/As drawn by such Canadian Borrowing Subsidiary are accepted hereunder,
in Canadian Dollars, an acceptance fee computed by multiplying (i) the
Applicable Rate for B/A Drawings on such date by (ii) a fraction, the numerator
of which is the number of days in the Contract Period applicable to such B/A and
the denominator of which is 365.
(c) The Borrowers agree to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between any Borrower and the Administrative Agent.
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(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for its own account
or, in the case of facility fees and utilization fees, for distribution to the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate and the Loans
comprising each Canadian Base Rate Borrowing shall bear interest at the Canadian
Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest (i) in the case of a Eurocurrency Revolving Borrowing, at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, (ii) in the case of a Bill Rate Borrowing, at the Australian
Bank Bill Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate or (iii) in the case of a Eurocurrency Competitive Borrowing, at
the LIBO Rate for the Interest Period in effect for such Borrowing plus (or
minus, as applicable) the Margin applicable to such Borrowing.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section, (ii) in the case of any other amount
payable in Canadian Dollars, 2% plus the rate applicable to Canadian Base Rate
Loans as provided in paragraph (a) above or (iii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan or Canadian Base Rate Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurocurrency Revolving Loan or Bill Rate Loan prior to the
end of the current Interest Period therefor, accrued interest on such Loan shall
be payable on the effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on Borrowings denominated in Sterling
or Australian Dollars and (ii) interest computed by reference to the Canadian
Base Rate or to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days
(or, except in the case of Borrowings denominated in Sterling, 366 days in a
leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate, Canadian Base Rate,
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Adjusted LIBO Rate, LIBO Rate or Australian Bank Bill Rate shall be determined
by the Applicable Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate,
as applicable, for such Interest Period; or
(b) the Applicable Agent is advised by the Required Lenders
(or, in the case of a Eurocurrency Competitive Loan, the Lender that is
required to make such Loan) that the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Applicable Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Applicable Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing in such
currency shall be ineffective, and such Borrowing shall be converted to or
continued on the last day of the Interest Period applicable thereto (A) if such
Borrowing is denominated in US Dollars, as an ABR Borrowing, or (B) if such
Borrowing is denominated in any other currency, as a Borrowing bearing interest
at such rate as the Lenders and the Company may agree adequately reflects the
costs to the Lenders of making or maintaining their Loans (or, in the absence of
such agreement, shall be repaid as of the last day of the current Interest
Period applicable thereto), (ii) if any Borrowing Request requests a
Eurocurrency Revolving Borrowing in such currency, such Borrowing shall be made
as an ABR Borrowing (or such Borrowing shall not be made if the applicable
Borrower revokes (and in such circumstances, such Borrowing Request may be
revoked notwithstanding any other provision of this Agreement) such Borrowing
Request by telephonic notice, confirmed promptly in writing, not later than one
Business Day prior to the proposed date of such Borrowing) and (iii) any request
by a Borrower for a Eurocurrency Competitive Borrowing denominated in such
currency shall be ineffective; provided that (A) if the circumstances giving
rise to such notice do not affect all the Lenders, then requests by a Borrower
for Eurocurrency Competitive Borrowings may be made to Lenders that are not
affected thereby and (B) if the circumstances giving rise to such notice affect
only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law or the
applicability of any Statutory Reserves shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except to the extent
any such reserve requirement is reflected in the Adjusted LIBO Rate);
or
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(ii) impose on any Lender or the London, Canadian or
Australian interbank markets any other condition affecting this
Agreement or Eurocurrency Loans, Fixed Rate Loans, B/A Drawings or Bill
Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan, Fixed Rate Loan or Bill
Rate Loan or obtaining funds for the purchase of B/As (or of maintaining its
obligation to make any such Loan or to accept and purchase B/As) or to increase
the cost to such Lender or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrowers will pay to such Lender such additional amount or
amounts as will compensate such Lender on an after-tax basis for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) If the cost to any Lender of making or maintaining any
Loan to or obtaining funds for the purchase of B/As from any Borrowing
Subsidiary is increased (or the amount of any sum received or receivable by any
Lender (or its applicable lending office) is reduced) by an amount deemed in
good faith by such Lender to be material, by reason of the fact that such
Borrowing Subsidiary is incorporated in, or conducts business in, a jurisdiction
outside the United States, such Borrowing Subsidiary shall indemnify such Lender
for such increased cost or reduction within 15 days after demand by such Lender
(with a copy to the Administrative Agent). A certificate of such Lender claiming
compensation under this paragraph and setting forth the additional amount or
amounts to be paid to it hereunder (and the basis for the calculation of such
amount or amounts) shall be conclusive in the absence of manifest error.
(d) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section, together with
supporting documentation or computations, shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay such Lender the
amount shown as due on any such certificate within 10 Business Days after
receipt thereof.
(e) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Company shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
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(f) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan, Fixed Rate Loan or Bill Rate
Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan or Bill Rate Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or to issue B/As for acceptance and purchase on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.11(c) and is revoked in accordance
therewith), (d) the failure to borrow any Competitive Loan after accepting the
Competitive Bid to make such Loan, or (e) the assignment of any Eurocurrency
Loan, Fixed Rate Loan or Bill Rate Loan or the right to receive payment in
respect of a B/A other than on the last day of the Interest Period or Contract
Period, as the case may be, applicable thereto as a result of a request by the
Company pursuant to Section 2.19 or the CAM Exchange, then, in any such event,
the Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurocurrency Loan or Bill Rate
Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate or Australian Bank Bill Rate, as
applicable, that would have been applicable to such Loan, for the period from
the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for deposits in the applicable currency of a
comparable amount and period from other banks in the eurocurrency market or bill
rate market, as applicable. A certificate of any Lender setting forth any amount
or amounts that such Lender is entitled to receive pursuant to this Section,
together with supporting documentation or computations, shall be delivered to
the Company and shall be conclusive absent manifest error. The Borrowers shall
pay such Lender the amount shown as due on any such certificate within 10
Business Days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrowers hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if any Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions of
Indemnified Taxes or Other Taxes (including deductions applicable to additional
sums payable under this Section) the Agent or Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
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(c) The Borrowers shall indemnify each Agent and each Lender,
within 10 Business Days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes paid by such Agent or such Lender on or
with respect to any payment by or on account of any obligation of the Borrowers
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate setting forth in reasonable detail the amount and
nature of such payment or liability delivered to the Company by a Lender, or by
an Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Borrower to a Governmental Authority, the Company
shall deliver to the Applicable Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Applicable Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Applicable Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Company as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Company advising it of the availability of
such exemption or reduction and containing all applicable documentation.
(f) If an Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by a Borrower or with respect to which a Borrower
has paid additional amounts pursuant to this Section 2.17, it shall pay over
such refund to the Company (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrowers under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of such Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrowers, upon the request of such Agent or
such Lender, agree to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Agent or such Lender in the event such Agent or such Lender
is required to repay such refund to such Governmental Authority. This Section
shall not be construed to require any Agent or any Lender to make available its
tax returns (or any other information relating to its taxes which it deems
confidential) to any Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise)
prior to 2:00 p.m., Local Time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such
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time on any date may, in the discretion of the Applicable Agent, be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Applicable
Agent to the applicable account specified on Schedule 2.18 for the account of
the applicable Lenders or, in any such case, to such other account as the
Applicable Agent shall from time to time specify in a notice delivered to the
Company, except that payments pursuant to Sections 2.15, 2.16, 2.17 and 10.03
shall be made directly to the Persons entitled thereto. The Applicable Agent
shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any
payment under any Loan Document shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. All payments hereunder of principal or
interest in respect of any Loan or amounts owing in respect of any B/A Drawing
(or of any breakage indemnity in respect of any Loan or B/A Drawing) shall be
made in the currency of such Loan or B/A Drawing; all other payments hereunder
and under each other Loan Document shall be made in US Dollars, except as
otherwise expressly provided. Any payment required to be made by an Agent
hereunder shall be deemed to have been made by the time required if such Agent
shall, at or before such time, have taken the necessary steps to make such
payment in accordance with the regulations or operating procedures of the
clearing or settlement system used by such Agent to make such payment. Any
amount payable by any Agent to one or more Lenders in the national currency of a
member state of the European Union that has adopted the Euro as its lawful
currency shall be paid in Euro.
(b) If at any time insufficient funds are received by and
available to any Agent from any Borrower to pay fully all amounts of principal,
interest and fees then due from such Borrower hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due from such
Borrower hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal then due from such Borrower hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or amounts owing in respect of any B/A
Drawing resulting in such Lender receiving payment of a greater proportion of
the aggregate amount of its Revolving Loans or amounts owing in respect of any
B/A Drawing and accrued interest thereon under any Tranche than the proportion
received by any other Lender under such Tranche, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Revolving Loans or amounts owing in respect of any B/A Drawing, as applicable,
of other Lenders under such Tranche to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders under such Tranche ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans or amounts owing in respect of any B/A Drawing
under such Tranche; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by any Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
a Borrower or any Subsidiary or Affiliate thereof (as to which the
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provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice
from the Company prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the
applicable Borrower will not make such payment, the Applicable Agent may assume
that such Borrower has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders, the amount
due. In such event, if such Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Applicable Agent forthwith
on demand the amount so distributed to such Lender with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Applicable Agent, at (i) the greater of the
Federal Funds Effective Rate and a rate determined by the Applicable Agent in
accordance with banking industry rules on interbank compensation (in the case of
an amount denominated in US Dollars) and (ii) the rate reasonably determined by
the Applicable Agent to be the cost to it of funding such amount (in the case of
an amount denominated in any other currency).
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.07(b) or paragraph (d) of this Section 2.18,
then the Applicable Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Applicable Agent
for the account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, or if any
Borrower is required to pay any additional interest to any Lender pursuant to
Section 2.21, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign
its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.15, 2.17 or 2.21 as the case may be, in the future and (ii) would not subject
such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. Each Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Borrower is required to pay any additional interest to any Lender
pursuant to Section 2.21, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another
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Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans), accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17 or additional interest required pursuant to Section
2.21, such assignment will result in a material reduction in such compensation,
payments or additional interest.
SECTION 2.20. Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any Wholly Owned Subsidiary of the
Company as a US Borrowing Subsidiary, a UK Borrowing Subsidiary, a Euro
Borrowing Subsidiary, a Canadian Borrowing Subsidiary or an Australian Borrowing
Subsidiary, as applicable, by delivery to the Administrative Agent of a
Borrowing Subsidiary Agreement executed by such Subsidiary and the Company, and
upon such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrowing Subsidiary and a party to this Agreement. Upon the execution by the
Company and delivery to the Administrative Agent of a Borrowing Subsidiary
Termination with respect to any Borrowing Subsidiary, such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this Agreement; provided that
no Borrowing Subsidiary Termination will become effective as to any Borrowing
Subsidiary (other than to terminate such Borrowing Subsidiary's right to make
further Borrowings under this Agreement) at a time when any principal of or
interest on any Loan to such Borrowing Subsidiary shall be outstanding
hereunder. Promptly following receipt of any Borrowing Subsidiary Agreement or
Borrowing Subsidiary Termination, the Administrative Agent shall send a copy
thereof to each Lender.
SECTION 2.21. Additional Reserve Costs. (a) If and so long as
any Lender is required to make special deposits with the Bank of England, to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Lender's Eurocurrency Loans in any Designated Foreign Currency, such Lender may
require the relevant Borrower to pay, contemporaneously with each payment of
interest on each of such Loans, additional interest on such Loan at a rate per
annum equal to the Mandatory Costs Rate calculated in accordance with the
formula and in the manner set forth in Exhibit C hereto.
(b) If and so long as any Lender is required to comply with
reserve assets, liquidity, cash margin or other requirements of any monetary or
other authority (including any such requirement imposed by the European Central
Bank or the European System of Central Banks, but excluding requirements
reflected in the Statutory Reserves or the Mandatory Costs Rate) in respect of
any of such Lender's Eurocurrency Loans in any Designated Foreign Currency, such
Lender may require the relevant Borrower to pay, contemporaneously with each
payment of interest on each of such Lender's Eurocurrency Loans subject to such
requirements, additional interest on such Loan at a rate per annum specified by
such Lender to be the cost to such Lender of complying with such requirements in
relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the relevant Lender, which determination shall
be conclusive absent manifest error, and notified to the relevant Borrower (with
a copy to the Administrative Agent) at least five
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Business Days before each date on which interest is payable for the relevant
Loan, and such additional interest so notified to the relevant Borrower by such
Lender shall be payable to the Administrative Agent for the account of such
Lender on each date on which interest is payable for such Loan.
SECTION 2.22. Redenomination of Certain Designated Foreign
Currencies. (a) Each obligation of any party to this Agreement to make a payment
denominated in the national currency unit of any member state of the European
Union that adopts the Euro as its lawful currency after the date hereof shall be
redenominated into Euro at the time of such adoption (in accordance with the EMU
Legislation). If, in relation to the currency of any such member state, the
basis of accrual of interest expressed in this Agreement in respect of that
currency shall be inconsistent with any convention or practice in the London
Interbank Market for the basis of accrual of interest in respect of the Euro,
such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU Legislation and (i) without
limiting the liability of any Borrower for any amount due under this Agreement
and (ii) without increasing any Commitment of any Lender, all references in this
Agreement to minimum amounts (or integral multiples thereof) denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall, immediately upon such
adoption, be replaced by references to such minimum amounts (or integral
multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euro.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent (in consultation
with the Company) may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant
market conventions or practices relating to the Euro.
ARTICLE III
Representations and Warranties
Each of the Company and the Borrowing Subsidiaries represents
and warrants to the Lenders that:
SECTION 3.01. Organization and Qualification. Each Borrower is
duly organized, validly existing and in good standing (to the extent such
concept is relevant to such Person in its jurisdiction of organization) under
the laws of the jurisdiction of its organization, has full and adequate
corporate power to carry on its business as now conducted, and is duly licensed
or qualified and, to the extent relevant, in good standing in each jurisdiction
in which the nature of the business transacted by it or the nature of the
Property owned or leased by it makes such licensing or qualification necessary,
except where such failure to be so licensed or qualified and in good standing
would not have a Material Adverse Effect.
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SECTION 3.02. Subsidiaries. Each Significant Subsidiary is
duly organized, validly existing and in good standing (to the extent such
concept is relevant to such Person in its jurisdiction of organization) under
the laws of the jurisdiction of its organization, has the requisite power to
carry on its business as now conducted, and is duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
transacted by it or the nature of the Property owned or leased by it makes such
licensing or qualification necessary, except where such failure would not have a
Material Adverse Effect. All the issued and outstanding Equity Interests in each
Significant Subsidiary are validly issued and outstanding and fully paid and
nonassessable and all such shares owned by the Company or a Subsidiary are
owned, beneficially and of record, by the Company or such Subsidiary, free of
any Lien other than Permitted Encumbrances. The Significant Subsidiaries after
giving effect to the transactions to occur on the Acquisition Date are listed on
Schedule 3.02.
SECTION 3.03. Corporate Authority and Validity of Obligations.
Each Borrower has the requisite right and authority to consummate the
Transactions, to enter into this Agreement and each other Loan Document to which
it is a party, to make the Borrowings herein provided for, to issue its notes in
evidence thereof and to perform all of its obligations hereunder and under each
other Loan Document to which it is a party; each of the Transactions has been
duly authorized by the Borrowers and the execution, delivery and performance of
this Agreement and the other Loan Documents have been duly authorized by all
necessary corporate, company or partnership action by each Borrower party
thereto and constitute valid and binding obligations of the Borrowers
enforceable in accordance with their terms; and none of the Transactions, this
Agreement, the other Loan Documents and the performance or observance by any
Borrower or any Subsidiary of any of the matters or things herein or therein
provided for contravene any provision of law or judgment or any charter or
by-law provision of any Borrower or any material covenant, indenture or
agreement of or affecting any Borrower or a substantial portion of any of their
respective Properties.
SECTION 3.04. Margin Stock. None of the Borrowers nor any of
the Subsidiaries is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock, and none of the Borrowers nor any of the Subsidiaries will use the
proceeds of any Loan in a manner that violates any provision of Regulation U or
X of the Board of Governors of the Federal Reserve System.
SECTION 3.05. Financial Reports. (a) The consolidated balance
sheet of the Company and the Subsidiaries and the related consolidated
statements of earnings, shareholders' equity and cash flows of the Company and
the Subsidiaries and accompanying notes thereto (i) as at December 31, 1999, and
for the year then ended, which financial statements are accompanied by the
report of PriceWaterhouseCoopers LLP, and (ii) as at September 30, 2000, and for
the fiscal quarter and the portion of the fiscal year then ended, certified by
the Company's chief financial officer, heretofore furnished to the
Administrative Agent, fairly present in all material respects the consolidated
financial condition of the Company and the Subsidiaries as at such dates and
their consolidated results of operations, shareholders' equity and cash flows
for the periods then ended in conformity with GAAP, subject to year-end
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
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(b) The consolidated balance sheet of Keebler and its
subsidiaries and the related consolidated statements of earnings, shareholders'
equity and cash flows of Keebler and its subsidiaries and accompanying notes
thereto (i) as at January 1, 2000, and for the year then ended, which financial
statements are accompanied by the report of PriceWaterhouseCoopers LLP, and (ii)
as at September 30, 2000, and for the fiscal quarter and the portion of the
fiscal year then ended, certified by Keebler's chief financial officer,
heretofore furnished to the Administrative Agent, to the best of the Company's
knowledge, fairly present in all material respects the consolidated financial
condition of Keebler and its subsidiaries as at such dates and their
consolidated results of operations, shareholders' equity and cash flows for the
periods then ended in conformity with GAAP, subject to year-end adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(c) The Company has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of September 30, 2000, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements
included in the Information Memorandum (which assumptions are believed by the
Company to be reasonable), (ii) is based on the best information available to
the Company after due inquiry, (iii) accurately reflects all adjustments
necessary to give effect to the Transactions and (iv) presents fairly, in all
material respects, the pro forma financial position of the Company and its
consolidated Subsidiaries as of September 30, 2000, as if the Transactions had
occurred on such date. The representations and warranties set forth in clauses
(iii) and (iv) are limited to the best of the Company's knowledge to the extent
they relate to Keebler and its subsidiaries.
SECTION 3.06. No Material Adverse Change. Since September 30,
2000, there has not occurred or become known any condition or change that has
affected or would reasonably be expected to affect materially and adversely the
business, assets, liabilities or financial condition of the Company, and its
Subsidiaries taken as a whole.
SECTION 3.07. Litigation. There is no litigation or
governmental proceeding pending, or to the knowledge of the Company threatened,
against the Company, any Subsidiary or Keebler or any of its subsidiaries which
if adversely determined would (a) impair the validity or enforceability of, or
materially impair the ability of the Company or any other Borrower to perform
its obligations under, this Agreement or any other Loan Document or (b) except
as disclosed on Schedule 3.07 or in the Company's Form 10-Ks and 10-Qs filed
with the SEC covering periods through September 30, 2000, or in Keebler's Form
10-Ks and 10-Qs filed with the SEC covering periods through October 7, 2000,
result in any Material Adverse Effect.
SECTION 3.08. Tax Returns. The Company has filed consolidated
United States federal income tax returns for all taxable years ended on or
before December 31, 1999 and such returns of the Company for the taxable year
ended December 31, 1996 and all taxable years ended before such date have been
examined and approved by the Internal Revenue Service as filed, and any
additional assessments for any such year have been paid or the applicable
statute of limitations therefor has expired. To the best of the Company's
knowledge, Keebler has filed consolidated United States federal income tax
returns for all taxable years ended on or before January 1, 2000 and such
returns of Keebler for the taxable year ended December 31,1994 and all taxable
years ended before such date have been examined and approved by the Internal
Revenue Service as filed, and any additional assessments for any such year have
been paid or the applicable statute of
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limitations therefor has expired. There are no assessments pending for the
consolidated United States federal income tax returns of the Company and the
Subsidiaries of a material nature for any taxable year ended after December 31,
1999, or, to the best of the Company's knowledge, of Keebler and its
subsidiaries of a material nature for any year ended after January 1, 2000, nor
to the knowledge of the Company is any such assessment threatened, other than
those provided for by adequate reserves under GAAP.
SECTION 3.09. Approvals. No authorization, consent, license,
exemption, filing or registration with any court or governmental department,
agency or instrumentality, or any other Person, is necessary to the consummation
of the Transactions or the valid execution, delivery or performance by any
Borrower of this Agreement or any other Loan Document except for those obtained
on or before the Effective Date or those the failure of which to obtain would
not individually or in the aggregate reasonably be expected to have a Material
Adverse Effect.
SECTION 3.10. ERISA. The Company and each Subsidiary are in
compliance in all material respects with the Employee Retirement Income Security
Act of 1974 ("ERISA") to the extent applicable to them and have received no
notice to the contrary from the Pension Benefit Guaranty Corporation or any
successor thereto ("PBGC") or any other governmental entity or agency. No
condition exists or event or transaction has occurred under or relating to any
Plan which could reasonably be expected to result in the incurrence by the
Company or any Subsidiary of any material liability, fine or penalty. Except as
disclosed on Schedule 3.10, neither the Company nor any Subsidiary has any
contingent liability for any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title 1 of
ERISA.
SECTION 3.11. Environmental Matters. Except as set forth on
Schedule 3.11, or except with respect to any other matters that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, none of the Company and its Subsidiaries (a) has failed to
comply with any Environmental Laws or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Laws, (b) has
become subject to any liability under any Environmental Laws, (c) has received
notice of any claim with respect to any Environmental Laws or (d) knows of any
basis for any liability under any Environmental Laws.
SECTION 3.12. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, subject only to Liens permitted
by Section 6.02 and except for defects in title that could not individually or
in the aggregate reasonably be expected to result in a Material Adverse Effect.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by them does
not infringe upon the rights of any other Person, except for any such defects in
ownership or license rights or other infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.13. Compliance with Laws. Each of the Company and
its Subsidiaries is in compliance with all laws, regulations and orders of the
Food and Drug Administration and each other Governmental Authority applicable to
it or its property, except
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where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.14. Investment and Holding Company Status. None of
the Company and its Subsidiaries is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.15. Disclosure. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of the Company to the Administrative Agent
or any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Company represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time (it being understood that such projections are subject to
significant uncertainties and contingencies, many of which are beyond the
Company's control, and that no assurance can be given that such projections will
be realized); and provided further that the representations and warranties set
forth in this sentence are limited to the best of the Company's knowledge to the
extent they relate to information or materials obtained by the Company from
Keebler and its subsidiaries prior to the Acquisition Date.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of each of (i) Gary H. Pilnick, Vice
President and Deputy General Counsel of the Company, substantially in
the form of Exhibit D-1, and (ii) Kirkland & Ellis, counsel for the
Borrowers, substantially in the form of Exhibit D-2. Each Borrower
hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing (to the extent such concept is relevant to such
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Person in its jurisdiction of organization) of each Borrower and the
authorization of the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Company, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses required to be reimbursed or paid on
or prior to the Effective Date by the Borrowers hereunder.
(f) The 364-Day Credit Agreement shall have been executed and
delivered.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
April 30, 2001 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
The effectiveness of the obligations to make Loans (other than
Loans made solely for the purpose of repaying commercial paper issued on or
after the Effective Date but prior to the date of such termination, to the
extent the proceeds of such commercial paper shall have been deposited in the
cash collateral account referred to in the last paragraph of this Section 4.01)
hereunder shall terminate, and any outstanding Obligations (other than
Obligations under Hedging Agreements) shall become immediately due and payable
(or, in the case of Obligations incurred after such time shall become due and
payable immediately following their incurrence), at 3:00 p.m. on April 30, 2001,
unless each of the following conditions is satisfied (or waived in accordance
with Section 10.02):
(g) The Acquisition shall have been completed on terms
substantially similar to those set forth in the Acquisition Agreements
as heretofore provided to the Lenders, without modification or waiver
of any material term or condition thereof that would reasonably be
expected to materially and adversely affect the Company and its
Subsidiaries, taken as a whole, or the rights or interests of the
Lenders, and the assets and liabilities of Keebler and its subsidiaries
shall to the best knowledge of the Company be consistent with the pro
forma consolidated balance sheet referred to in Section 3.05(c).
(h) The Company shall have established a commercial paper
program on terms and subject to conditions satisfactory to the Lenders
which permits the issuance of commercial paper supported by this
Agreement, the 364-Day Credit Agreement and, if effective, the Bridge
Facility, in an aggregate principal amount sufficient to consummate the
Acquisition, refinance and replace the Indebtedness and credit
facilities set forth on Schedule 4.01(h) as being repaid or permanently
terminated in connection with the Acquisition, pay related fees and
expenses and provide for the working capital needs and
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other general corporate purposes of the Company and its Subsidiaries.
After giving effect to the Acquisition and the other transactions
contemplated hereby, the Indebtedness and credit facilities set forth
on Schedule 4.01(h) as being repaid or terminated shall have been
repaid in full and permanently terminated, as applicable, and the
Company and its Subsidiaries shall have outstanding no Indebtedness
other than (a) commitments and Indebtedness under this Agreement and
the 364-Day Credit Agreement, Indebtedness under the Company's
commercial paper program, Senior Notes and commitments or loans under
the Bridge Facility, in an aggregate principal amount taken together,
without duplication, not to exceed US$6,300,000,000, and (b) the other
Indebtedness set forth on Schedule 6.01 as remaining outstanding after
giving effect to the Acquisition.
(i) All governmental authorities and material third parties
shall have approved or consented to the Acquisition to the extent such
approvals or consents are required under applicable laws or agreements
or otherwise and the failure to obtain such approvals or consents would
reasonably be expected to result in a Material Adverse Effect; all
applicable appeal periods of Governmental Authorities shall have
expired and there shall be no governmental or judicial action, actual
or threatened, that could reasonably be expected to restrain, prevent
or impose materially burdensome conditions on the Acquisition. There
shall be no litigation or administrative action that could reasonably
be expected to have a Material Adverse Effect. The Administrative Agent
shall have received a favorable written opinion (which is addressed to
the Administrative Agent and the Lenders or permits reliance on it by
the Administrative Agent and the Lenders and is dated as of the
Acquisition Date) from counsel and in a form reasonably satisfactory to
the Administrative Agent to the effect that no authorization, approval
or action by, and no notice to, consent of, order of or filing with,
any governmental authority, and no shareholder approval, is required in
connection with the Acquisition, other than such as have been obtained
or made or those the failure to obtain or make which are not material
to the consummation of the Transactions or to the Company.
The Administrative Agent shall notify the Company and the Lenders of the
Acquisition Date, and such notice shall be conclusive and binding. All proceeds
of any commercial paper issued by the Company on or after the Effective Date but
prior to the Acquisition Date (other than proceeds of commercial paper issued
under the Company's existing commercial paper programs) shall be held in a cash
collateral account of the Company maintained with the Administrative Agent and
shall (A) be made available to the Company to finance the consummation of the
Acquisition and the related Transactions on the date on which all the conditions
set forth in paragraphs (g) through (i) are satisfied, or (B) if all such
conditions are not satisfied on or prior to April 30, 2001 or any earlier date
on which the Commitments shall have terminated, be applied to repay such
commercial paper as it matures and all Obligations that may from time to time be
outstanding on or after April 30, 2001 or any earlier date on which the
Commitments shall have terminated.
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SECTION 4.02. Each Borrowing. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, is subject to the satisfaction (or
waiver in accordance with Section 10.02) of the following conditions:
(a) The representations and warranties (other than those set
forth in Sections 3.06 and 3.07 in the case of Borrowings made after
the Effective Date) of the Borrowers set forth in the Loan Documents
shall be true and correct in all material respects on and as of the
date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Company on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section. On and after the Acquisition Date, the conditions
specified in paragraphs (a) and (b) of this Section shall be construed giving
effect to the Acquisition and the other transactions contemplated to be effected
in connection therewith.
SECTION 4.03. Initial Borrowing by each Borrowing Subsidiary.
The obligation of each Lender to make Loans to any Borrowing Subsidiary (other
than the Borrowing Subsidiaries party hereto on the date hereof) is subject to
the satisfaction (or waiver in accordance with Section 10.02) of the following
conditions:
(a) The Administrative Agent (or its counsel) shall have
received such Borrowing Subsidiary's Borrowing Subsidiary Agreement,
duly executed by all parties thereto.
(b) The Administrative Agent shall have received such
documents and certificates, including such opinions of counsel, as the
Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing (to the extent such
concept is relevant to such Person in its jurisdiction of organization)
of such Borrowing Subsidiary, the authorization of the Transactions
insofar as they relate to such Borrowing Subsidiary and any other legal
matters reasonably relating to such Borrowing Subsidiary, its Borrowing
Subsidiary Agreement or such Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders as to
itself and its subsidiaries and each Borrowing Subsidiary covenants and agrees
with the Lenders as to itself and its subsidiaries that:
SECTION 5.01. Corporate Existence. The Company shall, and
shall cause each Significant Subsidiary to, preserve and maintain its corporate
existence, subject to the provisions of Section 6.04.
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SECTION 5.02. Maintenance. The Company will maintain, preserve
and keep its Property necessary to the proper conduct of its business in
reasonably good repair, working order and condition (ordinary wear and tear and
damage by casualty excepted) and will from time to time make all necessary
repairs, renewals, replacements, additions and betterments thereto so that in
the judgment of the Company at all times such Property shall be reasonably
preserved and maintained, and will cause each Significant Subsidiary so to do
for Property owned or used by it, the failure of which to maintain or preserve
could reasonably be expected to have a Material Adverse Effect; provided,
however, that nothing in this Section 5.02 shall prevent the Company or a
Significant Subsidiary from discontinuing the operation or maintenance of any
such Property if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of the Subsidiary and
in the reasonable opinion of the Company is not disadvantageous in any material
respect to the Lenders.
SECTION 5.03. Taxes. The Company will duly pay and discharge,
and will cause each Subsidiary to pay and discharge, all material taxes, rates,
assessments, fees and governmental charges upon or against the Company or such
Subsidiary or against their respective Property, in each case before the same
becomes delinquent and before penalties accrue thereon, unless and to the extent
that (a) the same is being contested in good faith and by appropriate
proceedings and adequate reserves under GAAP are provided therefor or (b) the
same could not reasonably be expected to give rise to a Lien that would not be
permitted under Section 6.02(d).
SECTION 5.04. Insurance. The Company will insure, and keep
insured, and will cause each Subsidiary to insure, and keep insured, with
reputable insurance companies, all insurable Property owned by it which is of a
character usually insured by companies similarly situated and operating like
Property. To the extent usually insured (subject to self-insured retentions) by
companies similarly situated and conducting similar businesses, the Company will
also insure, and cause each Subsidiary to insure, employers' and public and
product liability risks with reputable insurance companies. It is understood and
agreed that the Company will be deemed to be in compliance with this Section
5.04 with respect to Keebler and its subsidiaries at all times between the
Acquisition Date and the date that is one year thereafter to the extent that
Keebler and its Subsidiaries maintain insurance consistent with their past
practices. The Company will upon request of the Administrative Agent furnish to
the Administrative Agent, for distribution to each Lender, a summary setting
forth the nature and extent of the insurance maintained pursuant to this Section
5.04.
SECTION 5.05. Financial Reports and Other Information. The
Company will, and will cause each Subsidiary to, maintain a standard system of
accounting substantially in accordance with GAAP and will furnish to the Lenders
and their respective duly authorized representatives such information respecting
the business and financial condition of the Company and the Subsidiaries as they
may reasonably request; and without any request will furnish to the
Administrative Agent, which will make available by means of electronic posting
to each Lender:
(a) within 60 days after the end of each of the first three
quarterly fiscal periods of the Company, a copy of the Company's Form
10-Q Report filed with the SEC;
(b) within 120 days after the end of each fiscal year of the
Company, a copy of the Company's Form 10-K Report filed with the SEC,
including a copy of the annual report of
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the Company and the Subsidiaries for such year with accompanying
financial statements, prepared by the Company and certified by
independent public accountants of recognized standing, in accordance
with GAAP;
(c) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports the Company
sends to its shareholders, and copies of all other regular, periodic
and special reports and all registration statements the Company files
with the SEC, or with any national securities exchange; and
(d) (i) promptly after the Company has knowledge thereof,
notice (including a description in reasonable detail) of the occurrence
of any Default or Event of Default, and (ii) within five Business Days
after the Company has knowledge thereof, notice of any change to any
rating of the Index Debt by S&P or Moody's.
In addition, in the event that Subsidiaries not constituting Significant
Subsidiaries shall at any time (as a result of any acquisition or disposition of
any Person or line of business involving any party other than the Company and
the Subsidiaries or any reorganization of the Company or any Subsidiaries)
represent more than 10% of Consolidated Total Assets or Consolidated Net Sales
as of such date or for such period, the Company will promptly designate
additional Significant Subsidiaries by written notice to the Administrative
Agent until such excess has been eliminated.
Each of the financial statements furnished to the Lenders
pursuant to subsections (a) and (b) of this Section 5.05 shall be accompanied by
a compliance certificate in substantially the form of Exhibit E signed by a
Financial Officer of the Company. Each such financial statement shall also be
accompanied by a certificate signed by a Financial Officer of the Company
confirming compliance with the requirements set forth in the definition of
"Significant Subsidiary" and in the last sentence of the immediately preceding
paragraph, attaching a revised form of Schedule 3.02 showing all additions to
and removals from the Significant Subsidiaries since the date of the most
recently delivered form of Schedule 3.02 (or confirming that there have been no
changes from such most recently delivered form of Schedule 3.02). If the Company
is no longer required to file Form 10Q and 10K Reports with the SEC, the Company
will nevertheless furnish to the Lenders at the time herein above set forth all
the financial and other information that would have comprised such filings.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which in all material respects full, true and correct
entries are made of all dealings and transactions in relation to its business
and activities as consistent with good business practices in the judgment of the
Company. The Company will, and will cause each of its Subsidiaries to, permit
any representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of the Food and Drug Administration and each other Governmental Authority
applicable to it or its property, including
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all Environmental Laws, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full the Company covenants and agrees with the Lenders as to itself and
its subsidiaries and each Borrowing Subsidiary covenants and agrees with the
Lenders as to itself and its subsidiaries that:
SECTION 6.01. Indebtedness. The Company will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist at any time:
(a) any Indebtedness of the Company secured by any Lien
encumbering any asset of the Company or any Subsidiary (other than
Indebtedness of the Company set forth on Schedule 6.01);
(b) any Indebtedness of any Subsidiary (other than (i)
Indebtedness under this Agreement or the 364-Day Credit Agreement, (ii)
the Indebtedness of any Subsidiary set forth on Schedule 6.01, (iii)
Indebtedness to the Company or any other Wholly Owned Subsidiary and
(iv) Indebtedness of any Person that becomes a Subsidiary after the
date hereof that existed at the time such Person became a Subsidiary
and was not created in contemplation of or in connection with such
Person becoming a Subsidiary); or
(c) any Capital Lease Obligation;
if such creation, incurrence, assumption or existence would result in the sum,
without duplication, of (i) the aggregate principal amount of Indebtedness
outstanding under clauses (a), (b) and (c) above, (ii) the aggregate principal
amount of outstanding obligations secured by Liens permitted by Section 6.02(d),
(iii) the aggregate amount of the Financed Portions of all outstanding
Securitizations and (iv) the outstanding Attributable Debt in respect of
Sale-Leaseback Transactions permitted by Section 6.03(b) exceeding 10% of
Consolidated Total Assets as of the most recent fiscal quarter end for which
financial statements for the Company and its Subsidiaries are available.
SECTION 6.02. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances and Liens solely for the benefit of
the Company or any Wholly Owned Subsidiary;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that (i) such Lien shall not
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apply to any other property or asset of the Company or any Subsidiary
and (ii) such Lien shall secure only those obligations which it secures
on the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof; and
(d) Liens not expressly permitted by clauses (a) through (c)
above and Securitizations; provided that the sum, without duplication,
at any time of (i) the aggregate principal amount of Indebtedness
outstanding under Sections 6.01(a), (b) and (c), (ii) the aggregate
principal amount of outstanding obligations secured by Liens permitted
by this clause (d), (iii) the aggregate amount of the Financed Portions
of all outstanding Securitizations and (iv) the outstanding
Attributable Debt in respect of Sale-Leaseback Transactions permitted
by Section 6.03(b) shall not exceed 10% of Consolidated Total Assets as
of the most recent fiscal quarter end for which financial statements
for the Company and its Subsidiaries are available.
SECTION 6.03. Sale and Leaseback Transactions. The Company
will not, and will not permit any of its Subsidiaries to, enter into any
Sale-Leaseback Transaction except:
(a) Sale-Leaseback Transactions existing on the date hereof
and set forth on Schedule 6.03; and
(b) other Sale-Leaseback Transactions; provided that the sum,
without duplication, at any time of (i) the aggregate principal amount
of Indebtedness outstanding under Sections 6.01(a), (b) and (c), (ii)
the aggregate principal amount of outstanding obligations secured by
Liens permitted by Section 6.02(d), (iii) the aggregate amount of the
Financed Portions of all outstanding Securitizations and (iv) the
aggregate outstanding Attributable Debt in respect of Sale-Leaseback
Transactions permitted by this clause (b) does not at any time exceed
10% of Consolidated Total Assets as of the most recent fiscal quarter
end for which financial statements for the Company and its Subsidiaries
are available.
SECTION 6.04. Fundamental Changes. (a) The Company will not
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired and whether directly or
through any merger or consolidation of, or any sale, transfer, lease or other
disposition of Equity Interests in, or the assets of, any Subsidiary), or
liquidate or dissolve, except that, if at the time
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thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the Company in a
transaction in which the Company is the surviving corporation, (ii) any Person
may merge into any Subsidiary in a transaction in which the surviving entity is
a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Company or to another Subsidiary and (iv) any
Subsidiary may liquidate or dissolve if the Company determines in good faith
that such liquidation or dissolution is in the best interests of the Company and
is not materially disadvantageous to the Lenders.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries and Keebler
and its subsidiaries on the date of execution of this Agreement and businesses
reasonably related, ancillary, similar or supportive thereto.
SECTION 6.05. Use of Proceeds. The proceeds of the Loans will
be used only to provide liquidity in connection with the Company's commercial
paper program and for other general corporate purposes, provided that the
proceeds of Loans made prior to the Acquisition Date will be used solely for the
purpose of repaying commercial paper issued on or after the Effective Date to
the extent the proceeds of such commercial paper shall have been deposited in
the cash collateral account referred to in the last paragraph of Section 4.01.
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X. Following the application of the
proceeds of each Loan, not more than 25% of the value of the assets of the
Company and its Subsidiaries which are subject to any arrangement hereunder
whereby the Company's or any Subsidiary's right or ability to sell, pledge or
otherwise dispose of assets is in any way restricted will be Margin Stock.
SECTION 6.06. Minimum Net Worth. The Company will not permit
Consolidated Net Worth as of any date to be less than US$700,000,000.
SECTION 6.07. Interest Expense Coverage Ratio. The Company
will not permit the ratio of (a) Consolidated EBITDA to (b) Consolidated
Interest Expense, in each case for any period of four consecutive fiscal
quarters ending on or after the last day of the first fiscal quarter beginning
after the Acquisition Date, to be less than 3.0; provided that for purposes of
determining compliance with this Section 6.07 on the last day of such first
fiscal quarter and on the last day of each of the two next succeeding fiscal
quarters, Consolidated EBITDA and Consolidated Interest Expense shall be
determined for the period commencing with the first day of such first fiscal
quarter and ending at the end of the applicable period, rather than for a
four-fiscal-quarter period.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) (i) default in the payment when due of any principal on
any Loan, whether at the stated maturity thereof or at any other time
provided in this Agreement, or (ii) default for a period of five days
in the payment when due of interest on any Loan, or (iii) default for a
period of 10 days in the payment when due of any other sum required to
be paid pursuant to this Agreement;
(b) default by any Borrower in the observance or performance
of any of the covenants set forth in Sections 5.01 (with respect to the
Company's existence) or 5.05(d) or in Article VI;
(c) default by any Borrower in the observance or performance
of any other provision hereof not mentioned in (a) or (b) above, which
is not remedied within 30 days after notice thereof to the Company by
the Administrative Agent or any Lender;
(d) any representation or warranty made (or deemed made)
herein by any Borrower, or in any statement or certificate furnished by
any Borrower pursuant hereto or in connection with any Loan, proves
untrue in any material respect as of the date of the issuance or making
(or deemed making) thereof;
(e) default in the payment when due, after any applicable
grace period, of any Indebtedness or any amount due under any Hedging
Agreement the US Dollar Equivalent of the aggregate principal amount of
which exceeds US$50,000,000 (the "Aggregate Amount") issued, assumed or
guaranteed by the Company or any Subsidiary (other than Indebtedness
owing by any Subsidiary to the Company or to another Subsidiary); or
default or other event under any indenture, agreement or other
instrument under which any such Indebtedness is outstanding or under
any such Hedging Agreement (other than a default under any provision of
any other indenture, agreement or other instrument to which any Lender
is party that restricts the ability of the Company or any Subsidiary to
sell, pledge or otherwise dispose of Margin Stock), and such default or
event shall result in the acceleration of the maturity or the required
redemption or repurchase of Indebtedness, or the early termination of
and a required payment under such Hedging Agreement, exceeding in the
aggregate such Aggregate Amount;
(f) any "reportable event" (as defined in ERISA) which
constitutes grounds for the termination of any Plan by the PBGC, or for
the appointment by an appropriate court of a trustee to administer or
liquidate any Plan, or could reasonably be expected to result in a
Material Adverse Effect, shall have occurred and be continuing 30 days
after written notice to such effect shall have been given to the
Company by the Administrative Agent; or any Plan shall be terminated by
the PBGC; or a trustee shall be appointed to administer any Plan; or
the PBGC shall institute proceedings to administer or terminate any
Plan; and in the case of any such event the aggregate amount of
unfunded liabilities under any
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affected Plan shall exceed (either singly or in the aggregate in the
case of any such liability arising under more than one Plan)
US$50,000,000; or the Company or any of its Subsidiaries or any member
of the Controlled Group of any of them shall withdraw (completely or
partially) from any "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) and the aggregate amount of the liability of the
Company and its Subsidiaries to such plan under Title IV of ERISA shall
exceed (either singly or in the aggregate in the case of any such
liability arising under more than one such plan) US$50,000,000;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Significant Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Significant
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Company or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Significant
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(i) the Company or any Significant Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of US$50,000,000 (except to the extent
covered by insurance as to which the insurer has acknowledged such
coverage in writing) shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Company
or any Subsidiary to enforce any such judgment;
(k) an "Event of Default" shall have occurred and be
continuing as defined in either the 364-Day Credit Agreement or, if it
remains outstanding, the Bridge Facility; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the
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Company, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Company
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company; and in case of any event with respect to the
Company described in clause (g) or (h) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
If a Default or Event of Default shall have occurred with
respect to any Borrowing Subsidiary (other than any Default or Event of Default
under a provision of this Agreement that applies to such Borrowing Subsidiary by
virtue of its status as a Subsidiary or a Significant Subsidiary and regardless
of whether it is a Borrowing Subsidiary), then immediately upon the repayment in
full of all Loans outstanding to such Borrowing Subsidiary and the delivery to
the Administrative Agent of a Borrowing Subsidiary Termination Agreement in
accordance with Section 2.20 such Default or Event of Default shall cease to be
effective with respect to such Borrowing Subsidiary.
On the CAM Exchange Date, (i) the Commitments shall
automatically and without further act be terminated as provided in this Article
VII and (ii) the Lenders shall automatically and without further act be deemed
to have exchanged interests in the Obligations under the Tranches such that, in
lieu of the interests of each Lender in the Obligations under each Tranche in
which it shall participate as of such date (including the principal, interest
and fee obligations of the Company and each Borrower in respect of each such
Tranche), such Lender shall own an interest equal to such Lender's CAM
Percentage in the Obligations under each of the Tranches (including the
principal, interest and fee obligations of the Company and each Borrower in
respect of each such Tranche). It is understood and agreed that Lenders holding
interests in B/As on the CAM Exchange Date shall discharge the obligations to
fund such B/As at maturity in exchange for the interests acquired by such
Lenders in funded Loans in the CAM Exchange. Each Lender, each person acquiring
a participation from any Lender as contemplated by Section 10.04, the Company
and each Borrower hereby consents and agrees to the CAM Exchange. Each of the
Company, the Borrowers and the Lenders agrees from time to time to execute and
deliver to the Administrative Agent or the Applicable Agent all such promissory
notes and other instruments and documents as the Administrative Agent or such
Applicable Agent shall reasonably request to evidence and confirm the respective
interests and obligations of the Lenders after giving effect to the CAM
Exchange, and each Lender agrees to surrender any promissory notes originally
received by it in connection with its Loans hereunder to the Administrative
Agent against delivery of any promissory notes so executed and delivered;
provided that the failure of the Company or any Borrower to execute or deliver
or of any Lender to accept any such promissory note, instrument or document
shall not affect the validity or effectiveness of the CAM Exchange.
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ARTICLE VIII
The Agents
In order to expedite the transactions contemplated by this
Agreement, Chase is hereby appointed to act as Administrative Agent and CMIL is
hereby appointed to act as London Agent on behalf of the Lenders. Each of the
Lenders hereby irrevocably authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to the Agents by the terms
of the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
Any bank serving as Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not such Agent, and such bank and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Company, any Borrower or any Subsidiary or other Affiliate thereof as
if it were not such Agent hereunder.
The Agents shall not have any duties or obligations except
those expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) no Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that such Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02), and (c) except as expressly set forth in the Loan Documents, no Agent
shall have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Company, any Borrower or any
Subsidiary that is communicated to or obtained by the bank serving as Agent or
any of its Affiliates in any capacity. No Agent shall be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 10.02) or in the absence of its
own bad faith, gross negligence or wilful misconduct. No Agent shall be deemed
to have knowledge of any Default unless and until written notice thereof is
given to such Agent by a Borrower or a Lender, and no such Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for any
Borrower), independent accountants and
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other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.
Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by such
Agent. Such Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs and the provisions of Section
10.03 shall apply to any such sub-agent and to the Related Parties of the Agents
and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, any Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right (in consultation with, and with the consent of (unless an Event
of Default has occurred and is continuing pursuant to clause (g) or (h) of
Article VII), the Company, which shall not be unreasonably withheld) to appoint
a successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may (in
consultation with, and with the consent of, the Company, which shall not
unreasonably withhold such consent and which shall, if the retiring Agent shall
so request, designate and approve a successor Agent) on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After an Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
None of the institutions named as Co-Syndication Agents or
Documentation Agent in the heading of this Agreement shall, in their capacities
as such, have any duties or responsibilities of any kind under this Agreement.
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ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit to the
Borrowing Subsidiaries hereunder, the Company hereby irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, the
Obligations of the Borrowing Subsidiaries. The Company further agrees that the
due and punctual payment of the Obligations of the Borrowing Subsidiaries may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender to assert any claim or demand or to enforce any right or
remedy against any Borrowing Subsidiary under the provisions of this Agreement
any Borrowing Subsidiary Agreement, any other Loan Document or otherwise; (b)
any extension or renewal of any of the Obligations; (c) any rescission, waiver,
amendment or modification of, or release from, any of the terms or provisions of
this Agreement, any Borrowing Subsidiary Agreement or any other Loan Document or
agreement; (d) the failure or delay of any Lender to exercise any right or
remedy against any other guarantor of the Obligations; (e) the failure of any
Lender to assert any claim or demand or to enforce any remedy under any Loan
Document or any other agreement or instrument; (f) any default, failure or
delay, wilful or otherwise, in the performance of the Obligations; or (g) any
other act, omission or delay to do any other act which may or might in any
manner or to any extent vary the risk of the Company or otherwise operate as a
discharge of the Company as a matter of law or equity or which would impair or
eliminate any right of the Company to subrogation.
The Company further agrees that its guarantee hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower or Subsidiary or any other Person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise.
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender upon the bankruptcy or reorganization of any
Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any
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Lender may have at law or in equity against the Company by virtue hereof, upon
the failure of any Borrowing Subsidiary to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Company hereby promises to and will, upon receipt
of written demand by the Administrative Agent, forthwith pay, or cause to be
paid, to the Administrative Agent for distribution to the Lenders in cash an
amount equal the unpaid principal amount of such Obligation. The Company further
agrees that if payment in respect of any Obligation shall be due in a currency
other than US Dollars and/or at a place of payment other than New York and if,
by reason of any legal prohibition, disruption of currency or foreign exchange
markets, war or civil disturbance or other event, payment of such Obligation in
such currency or at such place of payment shall be impossible or, in the
reasonable judgment of any Lender, not consistent with the protection of its
rights or interests, then, at the election of such Lender, the Company shall
make payment of such Obligation in US Dollars (based upon the applicable
Exchange Rate in effect on the date of payment) and/or in New York, and shall
indemnify such Lender against any losses or expenses (including losses or
expenses resulting from fluctuations in exchange rates) that it shall sustain as
a result of such alternative payment.
Upon payment in full by the Company of any Obligation of any
Borrowing Subsidiary, each Lender shall, in a reasonable manner, assign to the
Company the amount of such Obligation owed to such Lender and so paid, such
assignment to be pro tanto to the extent to which the Obligation in question was
discharged by the Company, or make such disposition thereof as the Company shall
direct (all without recourse to any Lender and without any representation or
warranty by any Lender). Upon payment by the Company of any sums as provided
above, all rights of the Company against any Borrowing Subsidiary arising as a
result thereof by way of right of subrogation or otherwise shall in all respects
be subordinated and junior in right of payment to the prior indefeasible payment
in full of all the Obligations owed by such Borrowing Subsidiary to the Lenders
(it being understood that, after the discharge of all the Obligations due and
payable from such Borrowing Subsidiary, such rights may be exercised by the
Company notwithstanding that such Borrowing Subsidiary may remain contingently
liable for indemnity or other Obligations).
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company, to it at One Kellogg Square, P.O. Box
3599, Battle Creek, MI 49016-3599, Attention of each of the Treasurer
and the General Counsel (Telecopy No. (616) 961-3494);
(b) if to any Borrowing Subsidiary, to it in care of the
Company as provided in paragraph (a) above;
(c) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and
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Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New York,
New York 10081, Attention of Sonia Rosario-Cancar (Telecopy No. (212)
552-5650), with a copy to The Chase Manhattan Bank, 270 Park Avenue,
New York 10017, Attention of Tina Ruyter (Telecopy No.(212) 270-1063);
(d) if to the London Agent, to it at Chase Manhattan
International Limited, Trinity Tower, 9 Thomas More Street, London,
England E19YT, Attention of Loans Agency Division (Telecopy No.
011-44-171-777-2360), with a copy to the Administrative Agent as
provided in paragraph (c) above;
(e) if to the Canadian Agent, to it at The Chase Manhattan
Bank of Canada, 1 First Canadian Place, 100 King Street West, Suite
6900, Toronto, Ontario M5X 1A4, Canada, Attention of: Portfolio
Management Associates (Telecopy No. (416) 216-4162); with a copy to the
Administrative Agent as provided in paragraph (c) above;
(f) if to the Australian Agent, to it at the address specified
by it when it is named by the Company pursuant to Section 10.15; with a
copy to the Administrative Agent as provided in paragraph (c) above;
and
(g) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
any Agent or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents and the Lenders hereunder and under any other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Company and the
Required Lenders or by the Company and the Administrative Agent with the consent
of the Required Lenders and, in the case of any other Loan Document, each
applicable Borrower (or the Company on behalf of such Borrower); provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of
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interest thereon, or reduce any fees payable to any Lender hereunder, without
the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender
affected thereby, (v) change Section 2.09(c) or (d)(iii) in a manner that would
alter the pro rata reduction of the Commitments required thereby, without the
written consent of each Lender affected thereby, (vi) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Tranche) required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender, (vii) change any provision of the last paragraph
of Article VII without the written consent of each Lender, (viii) change any
provision of any Loan Document in a manner that by its terms adversely affects
the rights in respect of payments due to Lenders under any Tranche differently
from those of Lenders under any other Tranche without the written consent of
Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each adversely affected Tranche (treating Competitive Loans in
the same way as in determining the Required Lenders for purposes of determining
any majority), or (ix) release the Company from its obligations under Article
IX, without the written consent of each Lender; provided further that (A) no
such agreement shall amend, modify or otherwise affect the rights or duties of
any Agent hereunder without the prior written consent of such Agent and (B) any
waiver, amendment or modification that by its terms is limited in effect to the
rights or duties of Lenders under one or more (but less than all) the Tranches,
such waiver, amendment or modification may be effected by an agreement or
agreements in writing entered into by the Company and the requisite percentage
in interest of Lenders under each affected Tranche. Notwithstanding the
foregoing, any provision of this Agreement may be amended by an agreement in
writing entered into by the Company, the Required Lenders and the Administrative
Agent (and, if its rights or obligations are affected thereby, the London Agent)
if (i) by the terms of such agreement the Commitment of each Lender not
consenting to the amendment provided for therein shall terminate upon the
effectiveness of such amendment and (ii) at the time such amendment becomes
effective, each Lender not consenting thereto receives payment in full of the
principal of and interest accrued on each Loan made by it and all other amounts
owing to it or accrued for its account under this Agreement.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the
Agents and their Affiliates, including the reasonable fees, charges and
disbursements of one outside counsel for the Administrative Agent and the London
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers (requested by or for the benefit of any
Borrower) of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket
expenses incurred by any Agent or any Lender, including the fees, charges and
disbursements of any counsel for any Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
the B/As accepted and purchased hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
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(b) The Borrowers shall indemnify each Agent, and each Lender,
and each Related Party of any of the foregoing Persons involved directly or
indirectly in the Transactions (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (other than Excluded Taxes), including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of any Loan Document or any agreement
or instrument contemplated thereby, the performance by the parties to the Loan
Documents of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or B/A
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Company or any of its Subsidiaries, or any Environmental Liability related in
any way to the Company or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (A) do not result in
actual out-of-pocket loss or expense by such Indemnitee or (B) result from the
bad faith, wilful misconduct or gross negligence of such Indemnitee or the
breach by such Indemnitee of its agreements set forth in the Loan Documents.
(c) To the extent that the Borrowers fail to pay any amount
required to be paid by them to any Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to such Agent such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent in its capacity as such.
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor setting forth the amount and the nature
of the expense or claim, as applicable.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
no Borrower may assign or otherwise transfer any of its rights or obligations
hereunder or under any Borrowing Subsidiary Agreement without the prior written
consent of each Lender (and any attempted assignment or transfer by any Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Agents and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
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(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Company and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than US$5,000,000 unless each of the Company and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not apply
to rights in respect of outstanding Competitive Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of US$3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
any consent of the Company otherwise required under this paragraph shall not be
required if an Event of Default under clause (g) or (h) of Article VII has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of each Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and amounts in respect of B/As owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the Agents and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by any Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be
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effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Agents, and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and
2.17 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Bank") may grant to a special purpose funding vehicle
(an "SPC") of such Granting Bank, identified as such in writing from time to
time by the Granting Bank to the Administrative Agent and the Borrowers, the
option to provide to the Borrowers all or any part of any Loan that such
Granting Bank would otherwise be obligated to make to the Borrowers pursuant to
Section 2.01; provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPC and (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall be deemed to utilize the Commitment of the
Granting Bank to the same extent, and as if, such Loan were made by the Granting
Bank. Each party hereto hereby agrees that no SPC shall be liable for any
payment under
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this Agreement for which a Lender would otherwise be liable, for so long as, and
to the extent, the related Granting Bank makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees that, prior to the date that is
one year and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 10.04, any SPC may (i) with notice to,
but without the prior written consent of, the Borrowers and the Administrative
Agent and without paying any processing fee therefor, assign all or a portion of
its interests in any Loans to its Granting Bank or to any financial institutions
(if consented to by the Borrowers and Administrative Agent) providing liquidity
and/or credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by such SPC to
fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans (but not relating to any Borrower, except with
the Company's consent) to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein, in the other Loan
Documents and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that any Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid and so long
as the Commitments have not expired or terminated. The provisions of Sections
2.15, 2.16, 2.17 and 10.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of any Loan
Document held to be invalid, illegal or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to
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the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions of such
Loan Document; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations at any time owing by such Lender
or Affiliate to or for the credit or the account of any Borrower (other than
payroll accounts and trust accounts) against any of and all the obligations of
the Borrowers now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement. The rights of each Lender under this Section are in
addition to and shall not limit other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
any Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Borrower or
its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
hereto or thereto to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
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ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Agents and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty to any swap or derivative transaction relating to the
Borrowers and their obligations, or any advisor of any such counterparty, (g)
with the consent of any Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Agent, or any Lender on a nonconfidential basis
from a source other than a Borrower. For the purposes of this Section,
"Information" means all information received from the Borrowers relating to the
Borrowers or their business, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by a Borrower; provided that, in the case of information received
from a Borrower after the date hereof, such information is identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as a
prudent Person engaged in the same business or following customary procedures
for such business would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
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accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto
(including any Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.14 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 10.15. Australian Agent. So long as there shall be no
Australian Tranche Commitment, no Australian Agent need be party hereto and this
Agreement will be effective without the signature of such party. Before the
passage of any amendment, amendment and restatement or other modification of
this Agreement to establish an Australian Tranche Commitment, the Company will
appoint an Australian Agent reasonably satisfactory to the Administrative Agent.
90
85
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
KELLOGG COMPANY,
by /s/ Thomas J. Webb
--------------------------------------
Name: Thomas J. Webb
Title: Executive Vice President, Chief
Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by
/s/ Tina Ruyter
--------------------------------------
Name: Tina Ruyter
Title: Vice President
CHASE MANHATTAN INTERNATIONAL
LIMITED, as London Agent,
by
/s/ Stuard C. Walsh
--------------------------------------
Name: Stuard C. Walsh
Title: Vice-President
THE CHASE MANHATTAN BANK OF
CANADA, as Canadian Agent
by
/s/ D. McDonald
--------------------------------------
Name: Drew McDonald
Title: Vice President
by
/s/ Christine Chan
--------------------------------------
Name: Christine Chan
Title: Vice President
THE CHASE MANHATTAN BANK,
TORONTO BRANCH, as Lender
by
/s/ D. McDonald
--------------------------------------
Drew McDonald
Authorized Representative
by
/s/ Christine Chan
--------------------------------------
Christine Chan
Authorized Representative
91
BANK OF AMERICA, N.A.,
by /s/ Casey Cosgrove
--------------------------
Name: Casey Cosgrove
Title: Vice President
92
BARCLAYS BANK PLC
by /s/ L. Peter Yetman
------------------------
Name: L. Peter Yetman
Title: Director
93
CITIBANK, N.A.,
by /s/ Henry J. Matthews
--------------------------
Name: Henry J. Matthews
Title: Vice President
94
ABN AMRO BANK N.V.,
by /s/ W. Stephen Jones
---------------------------
Name: W. Stephen Jones
Title: Senior Vice President
by /s/ Peter J. Hallan
---------------------------
Name: Peter J. Hallan
Title: Assistant Vice President
95
THE BANK OF NOVA SCOTIA,
by /s/ F.C.H. Ashby
--------------------------
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
96
BANK ONE CANADA,
by /s/ William J. Maxbauer
------------------------------
Name: William J. Maxbauer
Title: First Vice President
97
BNP PARIBAS,
by /s/ Jo Ellen Bender
-----------------------------
Name: Jo Ellen Bender
Title: Director
/s/ Christine Howatt
-------------------------------
Christine Howatt
Vice President
98
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH,
by /s/ HISASHI MIYASHIRO
-------------------------------
Name: HISASHI MIYASHIRO
Title: DEPUTY GENERAL MANAGER
99
BANK ONE NA,
by /s/ William J. Maxbauer
------------------------------
Name: William J. Maxbauer
Title: First Vice President
100
CREDIT LYONNAIS, NEW YORK BRANCH,
by /s/ ATTILA KOC
-------------------------------
Name: ATTILA KOC
Title: SENIOR VICE PRESIDENT
101
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLAND BRANCHES,
by /s/ Alexander Karow
--------------------------------------
Name: Alexander Karow
Title: Vice President
by /s/ Thomas A. Foley
--------------------------------------
Name: Thomas A. Foley
Title: Vice President
102
THE FUJI BANK, LIMITED,
by /s/ Peter L. Chinnici
------------------------------------------
Name: Peter L. Chinnici
Title: Senior Vice President & Group Head
103
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
by /s/ Walter T. Duffy III
-----------------------------
Name: Walter T. Duffy III
Title: Associate Director
by /s/ Lisa Walker
-----------------------------
Name: Lisa Walker
Title: Associate Director
104
MELLON BANK, N.A.
by /s/ Louis E. Flori
---------------------------------------
Name: Louis E. Flori
Title: Vice President
105
THE SANWA BANK, LIMITED
by /s/ Kenneth L. Eichwald
----------------------------------
Name: Kenneth L. Eichwald
Title: Senior Vice President
106
THE SUMITOMO BANK, LIMITED
by /s/ John H. Kemper
---------------------------------------
Name: John H. Kemper
Title: Senior Vice President
107
SUNTRUST BANK,
by /s/ Michael Pugsley
------------------------
Name: Michael Pugsley
Title: Vice President
108
THE NORINCHUKIN BANK, NEW YORK BRANCH
by /s/ Yoshiro Niiro
--------------------------------
Name: Yoshiro Niiro
Title: General Manager
109
THE NORTHERN TRUST COMPANY,
by /s/ Roger McDougal
------------------------------
Name: Roger McDougal
Title: Second Vice President
110
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
by /s/ Thomas F. Kelly
------------------------------
Name: Thomas F. Kelly
Title: Vice President
by /s/ Edward Peyser
------------------------------
Name: Edward Peyser
Title: Executive Director
111
THE TOKAI BANK, LIMITED - NEW YORK
BRANCH
by /s/ Shinichi Nakatani
---------------------------------------
Name: Shinichi Nakatani
Title: Assistant General Manager
112
BANCO BILBAO VIZCAYA ARGENTARIA,
by /s/ Santiago Hernandez Monsalve
---------------------------------------
Name: Santiago Hernandez Monsalve
Title: Vice President
Global Corporate Banking
by /s/ John Martino
---------------------------------------
Name: John Martino
Title: Vice President
Corporate Banking
113
STATE STREET BANK AND TRUST
COMPANY
by
/s/ Juan G. Sierra
------------------------
Name: Juan G. Sierra
Title: Assistant Vice President
114
UNICREDITO ITALIANO S.P.A., NEW
YORK BRANCH,
by /s/ Christopher J. Eldin Saiyed A. Abbas
------------------------------------------------------
Name: Christopher J. Eldin Saiyed A. Abbas
Title: First Vice President & Vice President
Deputy Manager