1
EXHIBIT 99.02
$500,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
January 30, 1998
among
FLOWERS INDUSTRIES, INC.
The Banks Listed Herein
WACHOVIA BANK, N.A.,
as Agent,
THE BANK OF NOVA SCOTIA,
as Documentation Agent
and
NATIONSBANK, N.A.,
as Syndications Agent
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TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT
Page
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ARTICLE I
DEFINITIONS..................................................1
SECTION 1.01. Definitions........................................................................1
SECTION 1.02. Accounting Terms and Determinations...............................................18
SECTION 1.03. References........................................................................18
SECTION 1.04. Use of Defined Terms..............................................................18
SECTION 1.05. Terminology.......................................................................18
ARTICLE II
THE CREDITS..................................................18
SECTION 2.01. Commitments to Lend Syndicated Loans..............................................19
SECTION 2.02. Method of Borrowing Syndicated Loans..............................................19
SECTION 2.03. Money Market Loans................................................................21
SECTION 2.04. Notes.............................................................................25
SECTION 2.05. Maturity of Loans.................................................................26
SECTION 2.06. Interest Rates....................................................................27
SECTION 2.07. Fees..............................................................................30
SECTION 2.08. Optional Termination or Reduction of
Commitments.......................................................................31
SECTION 2.09. Mandatory Reduction and Termination of
Commitments.......................................................................31
SECTION 2.10. Optional Prepayments..............................................................32
SECTION 2.11. Mandatory Prepayments.............................................................33
SECTION 2.12. General Provisions as to Payments.................................................33
SECTION 2.13. Computation of Interest and Fees..................................................35
(i)
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ARTICLE III
CONDITIONS TO BORROWINGS............................................35
SECTION 3.01. Conditions to First Borrowing.....................................................35
SECTION 3.02. Conditions to All Borrowings......................................................37
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.........................................38
SECTION 4.01. Corporate Existence and Power.....................................................38
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention.....................................................................38
SECTION 4.03. Binding Effect....................................................................39
SECTION 4.04. Financial Information.............................................................39
SECTION 4.05. No Litigation.....................................................................39
SECTION 4.06. Compliance with ERISA.............................................................39
SECTION 4.07. Compliance with Laws; Payment of Taxes............................................40
SECTION 4.08. Subsidiaries......................................................................40
SECTION 4.09. Investment Company Act............................................................41
SECTION 4.10. Public Utility Holding Company Act................................................41
SECTION 4.11. Ownership of Property; Liens......................................................41
SECTION 4.12. No Default........................................................................41
SECTION 4.13. Full Disclosure...................................................................41
SECTION 4.14. Environmental Matters.............................................................41
SECTION 4.15. Capital Stock.....................................................................42
SECTION 4.16. Margin Stock......................................................................42
SECTION 4.17. Insurance.........................................................................43
ARTICLE V
COVENANTS...................................................43
SECTION 5.01. Information.......................................................................43
SECTION 5.02. Inspection of Property, Books and Records.........................................45
(ii)
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SECTION 5.03. Maintenance of Existence..........................................................45
SECTION 5.04. Consolidations, Mergers and Sales of Assets.......................................46
SECTION 5.05. Use of Proceeds...................................................................47
SECTION 5.06. Compliance with Laws; Payment of Taxes............................................47
SECTION 5.07. Insurance.........................................................................48
SECTION 5.08. Change in Fiscal Year.............................................................48
SECTION 5.09. Maintenance of Property...........................................................48
SECTION 5.10. Environmental Notices.............................................................48
SECTION 5.11. Environmental Matters.............................................................49
SECTION 5.12. Environmental Release.............................................................49
SECTION 5.13. Transactions with Affiliates......................................................49
SECTION 5.14. Loans or Advances.................................................................49
SECTION 5.15. Investments.......................................................................50
SECTION 5.16. Negative Pledge...................................................................50
SECTION 5.17. Fixed Charges Coverage Ratio......................................................53
SECTION 5.18. Leverage Ratio....................................................................53
SECTION 5.19. Minimum Consolidated Net Worth....................................................53
SECTION 5.20. Subsidiary Borrowings.............................................................53
SECTION 5.21. Adjusted Leverage Ratio...........................................................54
ARTICLE VI
DEFAULTS....................................................54
SECTION 6.01. Events of Default.................................................................54
SECTION 6.02. Notice of Default.................................................................58
ARTICLE VII
THE AGENT...................................................58
SECTION 7.01. Appointment; Powers and Immunities................................................58
SECTION 7.02. Reliance by Agent.................................................................59
(iii)
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SECTION 7.03. Defaults..........................................................................60
SECTION 7.04. Rights of Agent and its Affiliates as a Bank......................................60
SECTION 7.05. Indemnification...................................................................60
SECTION 7.06 Consequential Damages.............................................................61
SECTION 7.07. Payee of Note Treated as Owner....................................................61
SECTION 7.08. Nonreliance on Agent and Other Banks..............................................61
SECTION 7.09. Failure to Act....................................................................62
SECTION 7.10. Resignation or Removal of Agent...................................................62
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION.............................................63
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair............................................................................63
SECTION 8.02. Illegality........................................................................63
SECTION 8.03. Increased Cost and Reduced Return.................................................64
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar
Loans.............................................................................65
SECTION 8.05. Compensation......................................................................66
SECTION 8.06. Replacement of Bank...............................................................67
ARTICLE IX
MISCELLANEOUS.................................................67
SECTION 9.01. Notices...........................................................................67
SECTION 9.02. No Waivers........................................................................68
SECTION 9.03. Expenses; Documentary Taxes.......................................................68
SECTION 9.04. Indemnification...................................................................68
SECTION 9.05. Setoff; Sharing of Setoffs........................................................69
SECTION 9.06. Amendments and Waivers............................................................70
SECTION 9.07. No Margin Stock Collateral........................................................71
SECTION 9.08. Successors and Assigns............................................................71
(iv)
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SECTION 9.09. Confidentiality...................................................................74
SECTION 9.10. Representation by Banks...........................................................74
SECTION 9.11. Obligations Several...............................................................75
SECTION 9.12. Georgia Law.......................................................................75
SECTION 9.13. Severability......................................................................75
SECTION 9.14. Interest..........................................................................75
SECTION 9.15. Interpretation....................................................................76
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.....................................76
SECTION 9.17. Counterparts......................................................................77
SECTION 9.18. Source of Funds -- ERISA..........................................................77
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
Schedule 4.08 Subsidiaries
(v)
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 30,
1998 among FLOWERS INDUSTRIES, INC., the BANKS listed on the signature pages
hereof, WACHOVIA BANK, N.A., as Agent, THE BANK OF NOVA SCOTIA, as Documentation
Agent, and NATIONSBANK, N.A., as Syndications Agent.
This Amended and Restated Credit Agreement is an amendment and
restatement of the $300,000,000 Credit Agreement by and among the Borrower, the
Banks parties thereto, Wachovia Bank, N.A. (formerly Wachovia Bank of Georgia,
N.A.), as Agent, and NationsBank, N.A. (formerly NationsBank, N.A. (South)) and
SunTrust Bank, Atlanta, as Co-Agents (the "Original Agreement"), which is
replaced and superseded hereby.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Adjusted Total Capitalization" means the sum of (i) Adjusted
Consolidated Total Debt and (ii) Consolidated Net Worth, excluding therefrom the
Net Worth of Keebler.
"Adjusted Consolidated Total Debt" means Consolidated Total
Debt, adjusted by excluding therefrom all Indebtedness, and any Convertible
Redeemable Capital Stock or Convertible Subordinated Debt, of Keebler.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.06(c).
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, 20% or more of the common
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stock or equivalent equity interests. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of December 18, 1997 between the Borrower and the Agent
relating to the structure of the Loans, and certain fees from time to time
payable by the Borrower to the Agent, together with all amendments and
supplements thereto.
"Agreement" means this Amended and Restated Credit Agreement,
together with all amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in Section
2.06(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and permitted assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" has the meaning set forth in the
definition of Borrowing.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Section 2.02(f), or Article
VIII, as applicable.
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"Borrower" means Flowers Industries, Inc. a Georgia
corporation, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (i) at the same time by all of the Banks, in the case of a
Syndicated Borrowing, or (ii) separately by one or more Banks, in the case of a
Money Market Borrowing, in each case pursuant to Article II. A Borrowing is a
"Money Market Borrowing" if such Loans are made pursuant to Section 2.03 or a
"Syndicated Borrowing" if such Loans are made pursuant to Section 2.01. A
Borrowing is a "Base Rate Borrowing" if such Loans are made as Base Rate Loans
or a "Euro-Dollar Borrowing" if such Loans are made as Euro-Dollar Loans.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"Capitalized Lease" means any lease which is required to be
capitalized on the balance sheet of the lessee pursuant to GAAP but shall
exclude any lease which at the time of its incurrence was an operating lease for
purposes of GAAP as in effect at such time.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means January 30, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and
(ii)as to any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's Commitment
after giving effect to such Assignment and Acceptance, in each case as
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such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Indebtedness" means at any date the Indebtedness
of the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis as of such date.
"Consolidated Fixed Charges" means at any date the sum of (i)
Consolidated Interest Expense for the 4 Fiscal Quarter period used in the
calculation of Consolidated Net Income for the determination of EBILT, and (ii)
all payment obligations of the Borrower and its Consolidated Subsidiaries for
such period under all operating leases and rental agreements.
"Consolidated Interest Expense" for any period means interest,
whether expensed or capitalized, in respect of Indebtedness of the Borrower or
any of its Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any equity
interests of the Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Net Worth" means the Net Worth of the Borrower
and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial statements
as of such date.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Consolidated Total Debt" means the aggregate of all
Indebtedness (except that, for purposes of determining
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Consolidated Total Debt, letters of credit and similar instruments described in
clause (e) of the definition of Indebtedness shall be included only to the
extent they have maturities greater than 1 year) of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP, excluding,
however, any Convertible Redeemable Capital Stock or Convertible Subordinated
Debt if the current market value of an equity security into which such
Convertible Redeemable Capital Stock or Convertible Subordinated Debt is
convertible is greater than the conversion price for such security.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Convertible Redeemable Capital Stock" means any Capital Stock
that by its terms (or by the terms of any agreement by which or equity security
into which it is convertible or for which it is exchangeable or any other
agreement) or upon the happening of any event matures or is or will become
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, or is
exchangeable for or convertible into an equity security of the Borrower.
"Convertible Subordinated Debt" means any Indebtedness of the
Borrower (i) which is and remains subordinated in right of payment to the
obligations of the Borrower on the Notes and (ii) which by its terms is
exchangeable for or convertible into an equity security of the Borrower.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
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"EBILT" means at any date the sum of (i) Consolidated Net
Income for any 4 of the last 6 Fiscal Quarters ending prior to the date of
measurement, such 4 Fiscal Quarters to be selected by the Borrower, plus (ii)
the sum of Consolidated Fixed Charges and taxes on income (including deferred
taxes) for the same 4 Fiscal Quarters.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Restricted Subsidiary required by
any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Restricted Subsidiary or the Properties, including but not limited to any
such requirement
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under CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Borrowing" has the meaning set forth in the
definition of Borrowing.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered Rate, and to
be made as a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.06(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Wachovia on such day on
such transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
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"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a
Money Market Borrowing, or either of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans or Money Market
Loans, or either of them, as the context shall require.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guaranty" means, with respect to any Person, any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividends or other obligation of any other Person
in any manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefore;
(b) to advance or supply funds (i) for the purchase or payment
of such Indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such Indebtedness or obligations;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligations against loss in respect thereof.
In any computation of the Indebtedness or other labilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance",
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"pollutant", or "contaminant" as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including, crude oil or any fraction thereof, (d) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation and (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each such
Act, statute or regulation may be amended from time to time.
"Indebtedness" with respect to any Person means, at any time,
without duplication,
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities created
or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capitalized Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of
a type described in any clauses (a) through (f) hereof.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
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(a) any Interest Period (subject to paragraph (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to paragraph (c) below, end on the last
Euro-Dollar Business Day of the appropriate subsequent calendar month;
and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending 30 days thereafter (or, if sooner, on the
Termination Date); provided that:
(a) any Interest Period (subject to paragraph (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and
(b) no Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date may be
selected.
(3) with respect to each Money Market Borrowing, the period commencing on
the date of such Borrowing and ending on the Stated Maturity Date specified in
the applicable Money Market Quote; provided that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person,
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loan or advance to such Person, making of a time deposit with such Person,
Guaranty or assumption of any obligation of such Person or otherwise.
"Keebler" means Keebler Foods Company, a Delaware corporation
with its principal place of business in Elmhurst, Illinois.
"Keebler Acquisition" means, collectively, the acquisition by
the Borrower (i) from Artal Luxembourg S.A., pursuant to a Stock Purchase
Agreement dated as of January 28, 1998, of an aggregate of 9,581,169 shares of
common capital stock in Keebler, and (ii) from Bermore Limited, pursuant to a
Stock Purchase and Stockholder's Agreement dated as of January 28, 1998, of an
aggregate of 1,616,691 shares of common capital stock in Keebler, as a result of
which, after giving effect to the Keebler Acquisition, the Borrower will own
approximately 51% of the common capital stock of Keebler, on a fully diluted
basis.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Leverage Ratio" means the ratio of Consolidated Total
Debt to Total Capitalization.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Indebtedness or a
Guaranty, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease or other title retention agreement relating to such
asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Loan, or Money Market Loan, and "Loans" means Base Rate Loans, Euro-Dollar
Loans, Syndicated Loans, Money Market Loans, or any or all of them, as the
context shall require.
"Loan Documents" means this Agreement, the Notes, any
other document evidencing, relating to or securing the Loans, and
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any other document or instrument delivered from time to time in connection with
this Agreement, the Notes or the Loans, as such documents and instruments may be
amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Margin Stock" means "margin stock" as defined in Regulations
G, T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business or properties of the Borrower
and its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies
of the Agent or the Banks under the Loan Documents, or the ability of the
Borrower to perform its obligations under the Loan Documents to which it is a
party, as applicable, or (c) the legality, validity or enforceability of any
Loan Document.
"Material Subsidiary" means, as of each date of determination,
any Restricted Subsidiary that would at such time constitute a "significant
subsidiary" (as such term is defined in Regulation S-X of the Securities and
Exchange Commission as in effect on the Closing Date) of the Borrower.
"Money Market Borrowing" has the meaning set forth in the
definition of Borrowing.
"Money Market Borrowing Date" has the meaning specified in
Section 2.03.
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-2, evidencing the obligation of
the Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Quote" has the meaning specified in Section
2.03.
"Money Market Quote Request" has the meaning specified in
Section 2.03(b).
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"Money Market Rate" has the meaning specified in Section
2.03(c)(ii)(C).
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Net Proceeds of Capital Stock" means any proceeds received by
the Borrower or a Consolidated Subsidiary in respect of the issuance of Capital
Stock, after deducting therefrom all reasonable and customary costs and expenses
incurred by the Borrower or such Consolidated Subsidiary directly in connection
with the issuance of such Capital Stock.
"Net Worth" of any Person means the Total Assets of such
Person less all liabilities of such Person which would be shown as liabilities
on a balance sheet of such Person as of such time prepared in accordance with
GAAP.
"Next Public Offering" means the first public issuance of its
Capital Stock by the Borrower occurring after the Closing Date.
"Notes" means each of the Syndicated Loan Notes or Money
Market Loan Notes, or any or all of them, as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Original Agreement" has the meaning set forth in the preamble
hereto.
"Original Notes" means the "Notes" executed and delivered
pursuant to the Original Agreement.
"Participant" has the meaning set forth in Section 9.08(b).
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"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.06(a).
"Permitted Keebler Investments" means: (i) the Keebler
Acquisition; and (ii) provided that the Keebler Acquisition has been
consummated, additional shares of common capital stock in Keebler acquired from
time to time (a) from third parties in the open market, (b) from Bermore,
Limited and Artal Luxembourg S.A. in private transactions, (c) from management
of Keebler in private transactions and/or (d) from Keebler as part of an
offering of stock by Keebler (whether public or private), but in the case of
this clause (d), only to the extent necessary for the Borrower to maintain
ownership of at least 51% of the common capital stock of Keebler, on a fully
diluted basis.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means 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 is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) 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 5 plan years made contributions.
"Preferred Stock" means any class of capital stock of a
corporation that is preferred over any other class of capital stock of such
corporation as to the payment of dividends or the payment of any amount upon
liquidation or dissolution of such corporation.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
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"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Restricted Subsidiary,
wherever located.
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Fixed Rate Borrowing, if and to the extent that the
proceeds thereof are used entirely for the purpose of paying such maturing Loan
or Loan being converted, excluding any difference between the amount of such
maturing Loan or Loan being converted and any greater amount being borrowed on
such day and actually either being made available to the Borrower pursuant to
Section 2.02(c) or remitted to the Agent as provided in Section 2.12, in each
case as contemplated in Section 2.02(d).
"Regulation G" means Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the sum of the (i) Syndicated Loans and (ii) Money Market
Loans.
"Responsible Officer" means the chief financial officer,
principal accounting officer, treasurer or comptroller of the Borrower, and any
other officer of the Borrower with responsibility for the administration of the
relevant portion of this Agreement.
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"Restricted Subsidiary" of a Person means any Subsidiary of
the referent Person that is not an Unrestricted Subsidiary.
"Stated Maturity Date" means, with respect to any Money Market
Loan, the Stated Maturity Date therefor specified by the Bank in the applicable
Money Market Quote.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower; provided, for
purposes of the definition of Unrestricted Subsidiary, the definitions of
financial terms, and Sections 5.18 and 5.21, Keebler shall be deemed to be a
Subsidiary only so long as the Borrower owns at least a majority of the
securities or other ownership interests in Keebler having such ordinary voting
power.
"Swaps" means, with respect to any Person, payment obligations
with respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended Fiscal Quarter of such Person,
based on the assumption that such Swap had terminated at the end of such Fiscal
Quarter, and in making such determination, if any agreement relating to such
Swap provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount so determined.
"Syndicated Borrowing" has the meaning set forth in the
definition of Borrowing.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans
made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the obligation of
the Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Taxes" has the meaning set forth in Section 2.12(c).
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"Termination Date" means whichever is applicable of (i)
January 29, 2003, (ii) such later date to which it is extended by the Banks
pursuant to Section 2.05(b), in their sole and absolute discretion, (iii) the
date the Commitments are terminated pursuant to Section 6.01 following the
occurrence of an Event of Default, or (iv) the date the Borrower terminates the
Commitments entirely pursuant to Section 2.08.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Total Assets" means, with respect to any Person at any time,
the total assets of such Person as set forth or reflected on the most recent
consolidated balance sheet of such Person, prepared in accordance with GAAP.
"Total Capitalization" means the sum of (i) Consolidated Total
Debt and (ii) Consolidated Net Worth.
"Transferee" has the meaning set forth in Section 9.08(d).
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) 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.
"Unrestricted Subsidiary" means, following the Keebler
Acquisition and thereafter so long as Keebler is a Subsidiary, Keebler, or any
of its Subsidiaries, and "Unrestricted Subsidiaries" means, collectively,
Keebler and its Subsidiaries.
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding principal
amount of its Syndicated Loans (but not its Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
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SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 5.01 hereof, shall mean the financial statements referred to in
Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
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SECTION 2.01. Commitments to Lend Syndicated Loans. Each Bank
severally agrees, on the terms and conditions set forth herein, to make
Syndicated Loans to the Borrower from time to time before the Termination Date;
provided that,
(i) immediately after each such Syndicated Loan is made, the
aggregate outstanding principal amount of Syndicated Loans by such Bank
shall not exceed the amount of its Commitment, and
(ii) the aggregate outstanding principal amount of all
Syndicated Loans and Money Market Loans shall not exceed the aggregate
amount of the Commitments.
Each Syndicated Borrowing under this Section shall be in an aggregate principal
amount of (i) for Euro-Dollar Loans, $10,000,000 or any larger integral multiple
of $5,000,000, and (ii) for Base Rate Loans, $5,000,000 or any larger integral
multiple of $1,000,000 (except in each case that any such Syndicated Borrowing
may be in the aggregate amount of the Unused Commitments), and shall be made
from the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrower may borrow under this Section, repay
or, to the extent permitted by Section 2.10, prepay Syndicated Loans and
reborrow under this Section at any time before the Termination Date.
SECTION 2.02. Method of Borrowing Syndicated Loans. (a) The
Borrower shall give the Agent notice (a "Notice of Borrowing"), which shall be
substantially in the form of Exhibit E, prior to 11:00 A.M. (Atlanta, Georgia
time) on the same Domestic Business Day as each Base Rate Borrowing and at least
3 Euro-Dollar Business Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar Loans,
and
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
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(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Syndicated Borrowing and such Notice of Borrowing, once received
by the Agent, shall not thereafter be revocable by the Borrower.
(c) Not later than (i) as to Base Rate Loans, 2:00 P.M.
(Atlanta, Georgia time), and (ii) as to Euro-Dollar Loans, 11:00 A.M., (Atlanta,
Georgia time) on the date of each Syndicated Borrowing, each Bank shall (except
as provided in paragraph (d) of this Section) make available its ratable share
of such Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address determined pursuant to Section
9.01. Unless the Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower on such date by depositing the same, in
immediately available funds, not later than 4:00 p.m. (Atlanta, Georgia time),
in an account of the Borrower maintained with Wachovia. Unless the Agent
receives notice from a Bank, at the Agent's address referred to in or specified
pursuant to Section 9.01, no later than 4:00 P.M. (local time at such address)
on the Domestic Business Day before the date of a Syndicated Borrowing stating
that such Bank will not make a Syndicated Loan in connection with such
Syndicated Borrowing, the Agent shall be entitled to assume that such Bank will
make a Syndicated Loan in connection with such Syndicated Borrowing and, in
reliance on such assumption, the Agent may (but shall not be obligated to) make
available such Bank's ratable share of such Syndicated Borrowing to the Borrower
for the account of such Bank. If the Agent makes such Bank's ratable share
available to the Borrower and such Bank does not in fact make its ratable share
of such Syndicated Borrowing available on such date, the Agent shall be entitled
to recover such Bank's ratable share from such Bank or the Borrower (and for
such purpose shall be entitled to charge such amount to any account of the
Borrower maintained with the Agent), together with interest thereon for each day
during the period from the date of such Syndicated Borrowing until such sum
shall be paid in full at a rate per annum equal to the rate at which the Agent
determines that it obtained (or could have obtained) overnight Federal funds to
cover such amount for each such day during such period, provided that (i) any
such payment by the Borrower of such Bank's ratable share and interest thereon
shall be without prejudice to any rights that the Borrower may have against such
Bank and (ii) until such Bank has paid its ratable share of such Syndicated
Borrowing, together with interest pursuant to the foregoing, it will have no
interest in or rights with respect to such Syndicated Borrowing for any purpose
hereunder. If the Agent does not exercise its option to
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advance funds for the account of such Bank, it shall forthwith notify the
Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a day
on which the Borrower is to repay all or any part of an outstanding Syndicated
Loan from such Bank, such Bank shall apply the proceeds of its new Syndicated
Loan to make such repayment as a Refunding Loan and only an amount equal to the
difference (if any) between the amount being borrowed and the amount of such
Refunding Loan shall be made available by such Bank to the Agent as provided in
paragraph (c) of this Section, or remitted by the Borrower to the Agent as
provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Fixed Rate Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived, and in such case all Refunding Loans shall be made as Base
Rate Loans (but shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify
whether the Syndicated Loans comprising such Syndicated Borrowing are to be Base
Rate Loans or Euro-Dollar Loans, such Syndicated Loans shall be made as Base
Rate Loans. If the Borrower is otherwise entitled under this Agreement to repay
any Syndicated Loans maturing at the end of an Interest Period applicable
thereto with the proceeds of a new Borrowing, and the Borrower fails to repay
such Syndicated Loans using its own moneys and fails to give a Notice of
Borrowing in connection with such new Syndicated Borrowing, a new Syndicated
Borrowing shall be deemed to be made on the date such Syndicated Loans mature in
an amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
(g) Notwithstanding anything to the contrary contained herein,
there shall not be more than 10 Fixed Rate Borrowings outstanding at any given
time.
SECTION 2.03. Money Market Loans. (a) In addition to making
Syndicated Borrowings, the Borrower may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Borrowings available to
the Borrower. The Banks may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.03, provided that:
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(i) the number of Money Market Borrowings which may be
outstanding at any given time is subject to the provisions of Section
2.02(g);
(ii) the aggregate principal amount of all Money Market
Loans, together with the aggregate principal amount of all Syndicated
Loans, at any one time outstanding shall not exceed the aggregate
amount of the Commitments of all of the Banks at such time; and
(iii) the Money Market Loans of any Bank will be deemed to be
usage of the Commitments for the purpose of calculating availability
pursuant to Section 2.01(ii) and 2.03(a)(ii), but will not reduce such
Bank's obligation to lend its pro rata share of the remaining Unused
Commitment.
(b) When the Borrower wishes to request offers to make
MoneyMarket Loans, it shall give the Agent (which shall promptly notify the
Banks) notice substantially in the form of Exhibit I hereto (a "Money Market
Quote Request") so as to be received no later than 11:00 A.M. (Atlanta, Georgia
time) at least 1 Domestic Business Day prior to the date of the Money Market
Borrowing proposed therein (or such other time and date as the Borrower and the
Agent, with the consent of the Required Banks, may agree), specifying:
(i) the proposed date of such Money Market Borrowing, which
shall be a Euro-Dollar Business Day (the "Money Market Borrowing
Date");
(ii) the maturity date (or dates) (each a "Stated Maturity
Date") for repayment of each Money Market Loan to be made as part of
such Money Market Borrowing (which Stated Maturity Date shall be that
date occurring not less than 7 days but not more than 180 days from the
date of such Money Market Borrowing); provided that the Stated Maturity
Date for any Money Market Loan may not extend beyond the Termination
Date (as in effect on the date of such Money Market Quote Request); and
(iv) the aggregate amount of principal to be requested by
the Borrower as a result of such Money Market Borrowing, which shall
be at least $10,000,000 (and in larger integral multiples of
$5,000,000) but shall not cause the limits specified in Section
2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request; provided
that the request for each separate Stated Maturity Date shall be deemed to be a
separate Money Market Quote
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Request for a separate Money Market Borrowing. Except as otherwise provided in
the immediately preceding sentence, after the first Money Market Quote Request
has been given hereunder, no Money Market Quote Request shall be given until at
least 5 Domestic Business Days after all prior Money Market Quote Requests have
been fully processed ("fully processed" as used in this sentence shall mean the
later to occur of (i) the failure of all Banks timely to offer a Money Market
Quote, (ii) the failure of the Borrower timely to accept any Money Market Quote,
or (iii) the timely acceptance of any Money Market Quotes) by the Agent, the
Banks and the Borrower pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation to,
submit a response containing an offer to make a Money Market Loan
substantially in the form of Exhibit J hereto (a "Money Market Quote")
in response to any Money Market Quote Request; provided that, if the
Borrower's request under Section 2.03(b) specified more than 1 Stated
Maturity Date, such Bank may, but shall have no obligation to, make a
single submission containing a separate offer for each such Stated
Maturity Date and each such separate offer shall be deemed to be a
separate Money Market Quote. Each Money Market Quote must be submitted
to the Agent not later than 10:00 A.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date; provided that any Money Market Quote
submitted by Wachovia may be submitted, and may only be submitted, if
Wachovia notifies the Borrower of the terms of the offer contained
therein not later than 9:45 A.M. (Atlanta, Georgia time) on the Money
Market Borrowing Date (or 15 minutes prior to the time that the other
Banks are required to have submitted their respective Money Market
Quotes). Subject to Section 6.01, any Money Market Quote so made shall
be irrevocable except with the written consent of the Agent given on
the instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date and the
Stated Maturity Date therefor;
(B) the principal amounts of the Money Market Loan
which the quoting Bank is willing to make for the
applicable Money Market Quote, which principal amounts (x)
may be greater than or less than the Commitment of the
quoting Bank, (y) shall be at least $5,000,000 or a larger
integral multiple of $500,000, and (z) may not exceed the
principal amount of the Money Market Borrowing for which
offers were requested;
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(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/100th of 1%) offered for
each such Money Market Loan (such amounts being
hereinafter referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market
Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request (other than setting forth the
principal amounts of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period) and, in particular,
no Money Market Quote may be conditioned upon acceptance by the
Borrower of all (or some specified minimum) of the principal amount of
the Money Market Loan for which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after the Money
Market Quote is submitted (but in any event not later than 10:30 A.M. (Atlanta,
Georgia time)) on the Money Market Borrowing Date, notify the Borrower of the
terms (i) of any Money Market Quote submitted by a Bank that is in accordance
with Section 2.03(c) and (ii) of any Money Market Quote that amends, modifies or
is otherwise inconsistent with a previous Money Market Quote submitted by such
Bank with respect to the same Money Market Quote Request. Any such subsequent
Money Market Quote shall be disregarded by the Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Agent's notice to the Borrower shall specify (A)
the principal amounts of the Money Market Borrowing for which offers have been
received and (B) the respective principal amounts and Money Market Rates so
offered by each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date, the Borrower shall notify the Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to Section
2.03(d) and the Agent shall promptly notify each Bank which submitted an offer.
In the case of acceptance, such notice shall specify the aggregate principal
amount of offers (for each Stated Maturity Date) that are accepted. The Borrower
may accept any Money Market Quote in whole or in part; provided that:
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(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least $10,000,000 (and
in larger integral multiples of $5,000,000) but shall not cause the
limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order
of Money Market Rates; and
(iv) the Borrower may not accept any offer where the Agent
has advised the Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible in proportion to the
aggregate principal amount of such offers. Determinations by the Borrower of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
(f) Any Bank whose offer to make any Money Market Loan has
been accepted shall, not later than 12:00 P.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date, make the amount of such Money Market Loan allocated
to it available to the Agent at its address referred to in Section 9.01 in
immediately available funds. The amount so received by the Agent shall, subject
to the terms and conditions of this Agreement, be made available to the Borrower
on such date by depositing the same, in immediately available funds, not later
than 4:00 P.M. (Atlanta, Georgia time), in an account of the Borrower maintained
with Wachovia.
(g) After any Money Market Loan has been funded, the Agent
shall notify the Banks of the aggregate principal amount of the Money Market
Quotes received and the highest and lowest rates included in such Money Market
Quotes.
SECTION 2.04. Notes. (a) The Syndicated Loans of each
Bank shall be evidenced by a single Syndicated Loan Note payable
to the order of such Bank for the account of its Lending Office
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in an amount equal to the original principal amount of such Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrower
shall be evidenced by a single Money Market Loan Note payable to the order of
such Bank for the account of its Lending Office in an amount equal to the
original principal amount of the aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section
3.01, the Agent shall deliver such Notes to such Bank. Each Bank shall record,
and prior to any transfer of its Notes shall endorse on the schedules forming a
part thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto, and such
schedules of each such Bank's Notes shall constitute rebuttable presumptive
evidence of the respective principal amounts owing and unpaid on such Bank's
Notes; provided that the failure of any Bank to make, or any error in making,
any such recordation or endorsement shall not affect the obligation of the
Borrower hereunder or under the Notes or the ability of any Bank to assign its
Notes. Each Bank is hereby irrevocably authorized by the Borrower so to endorse
its Notes and to attach to and make a part of any Note a continuation of any
such schedule as and when required.
SECTION 2.05. Maturity of Loans. (a) Each Loan
included in any Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest
Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal
amount of the Loans, if any, together with all accrued but unpaid interest
thereon, if any, shall be due and payable on January 29, 2003, unless the
Termination Date is otherwise extended by the Required Banks, as provided below,
in their sole and absolute discretion. Upon the written request of the Borrower,
which request shall be delivered to the Agent at least 30 days prior to each
Extension Date (as such term is hereinafter defined), the Banks shall have the
option (without any obligation whatsoever so to do) of extending the Termination
Date for additional one-year periods on each of January 29, 2001 and January 29,
2002 (each, an "Extension Date"). In the event that a Bank chooses not to extend
the Termination Date for such an additional one-year period, notice shall be
given by such Bank to the Borrower and the Agent at least 15 days prior to the
relevant Extension Date; provided, that (i) if any Bank fails to send notice of
any such extension, such Bank shall be deemed to have declined to extend, and
(ii) the Termination Date shall not be
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extended with respect to any of the Banks unless the Required Banks are willing
to extend the Termination Date and (x) on the Extension Date, the remaining
Banks shall purchase ratable assignments (without any obligation so to do) from
such terminating Bank (in the form of an Assignment and Acceptance) in
accordance with their respective percentage of the remaining aggregate
Commitments; provided, that, such Banks shall be provided such opportunity
(which opportunity shall allow such Banks at least 5 Domestic Business Days in
which to make a decision) prior to the Borrower finding another bank pursuant to
the immediately succeeding clause (y); and, provided, further, that, should any
of the remaining Banks elect not to purchase such an assignment, then, such
other remaining Banks shall be entitled, on the Extension Date, to purchase an
assignment from any terminating Bank which includes the ratable interest that
was otherwise available to such non-purchasing remaining Bank or Banks, as the
case may be, (y) the Borrower shall find another bank, acceptable to the Agent,
willing to accept, on the Extension Date, an assignment from such terminating
Bank (in the form of an Assignment and Acceptance) or (z) on the Extension Date,
the Borrower shall reduce the aggregate Commitments in an amount equal to the
Commitment of any such terminating Bank. Notwithstanding the foregoing, if the
Termination Date is not extended for an additional one year period on or before
January 29, 2001, then the Borrower may not request that the Termination Date be
extended for an additional one year period on January 29, 2002.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and including the
first Performance Pricing Determination Date, (x) for any Base Rate Loan, 0%,
and (y) for any Euro-Dollar Loan, 0.475%; and
(ii) from and after the first Performance Pricing Determination Date, (x) for
any Base Rate Loan, 0.0%, and (y) for any Euro- Dollar Loan, the percentage
determined on each Performance Pricing Determination Date by reference to the
table set forth below as to such type of Loan and the Leverage Ratio for the
quarterly or annual period ending immediately prior to such Performance Pricing
Determination Date.
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Leverage Ratio Applicable Margin
-------------- -----------------
< 35% 0.175%
-
> 35% but
< 55% 0.25%
-
> 55% but
< 65% 0.38%
-
> 65% 0.475%
In determining interest for purposes of this Section 2.06 and fees for
purposes of Section 2.07, the Borrower and the Banks shall refer to the
Borrower's most recent consolidated quarterly and annual (as the case may be)
financial statements delivered pursuant to Section 5.01(a) or (b), as the case
may be. If such financial statements require a change in interest pursuant to
this Section 2.06 or fees pursuant to Section 2.07, the Borrower shall deliver
to the Agent, along with such financial statements, a notice to that effect,
which notice shall set forth in reasonable detail the calculations supporting
the required change. The "Performance Pricing Determination Date" is the date
which is the last date on which such financial statements are permitted to be
delivered pursuant to Section 5.01(a) or (b), as applicable. Any such required
change in interest and fees shall become effective on such Performance Pricing
Determination Date, and shall be in effect until the next Performance Pricing
Determination Date, provided that: (i) for Euro-Dollar Loans, changes in
interest shall only be effective for Interest Periods commencing on or after the
Performance Pricing Determination Date; and (ii) no fees or interest shall be
decreased pursuant to this Section 2.06 or Section 2.07 if a Default is in
existence on the Performance Pricing Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank
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Offered Rate for such Interest Period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than 3 months, at intervals of 3 months after the first day thereof. Any overdue
principal of and, to the extent permitted by law, overdue interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan, the
rate per annum determined on the basis of the offered rate for deposits in
Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period, which
rates appear on the Telerate Page 3750 effective as of 11:00 A.M., London time,
2 Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the "London
Interbank Offered Rate" for such Interest Period will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100th of 1%) of rates quoted
by not less than 2 major banks in New York City, selected by the Agent, at
approximately 10:00 A.M., New York City time, 2 Euro-Dollar Business Days prior
to the first day of such Interest Period, for deposits in Dollars offered by
leading European banks for a period comparable to such Interest Period in an
amount comparable to the principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
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(d) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Money
Market Loan is made until it becomes due, at a rate per annum equal to the
applicable Money Market Rate set forth in the relevant Money Market Quote. Such
interest shall be payable on the Stated Maturity Date thereof, and, if the
Stated Maturity Date occurs more than 90 days after the date of the relevant
Money Market Loan, at intervals of 90 days after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Money Market Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
(e) The Agent shall, subject to the provisions of Section 2.03
with respect to Money Market Loans, determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telecopier of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) shall bear interest
at the Default Rate and shall be payable on demand.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent,
for the ratable account of each Bank, a facility fee, calculated in the manner
provided in the last paragraph of Section 2.06(a)(ii), on the aggregate amount
of such Bank's Commitment (without taking into account the amount of the
outstanding Loans made by such Bank), at a rate per annum equal to: (i) for the
period commencing on the Closing Date to and including the first Performance
Pricing Determination Date, 0.225%; and (ii) from and after the first
Performance Pricing Determination Date, the percentage determined on each
Performance Pricing Determination Date by reference to the table set forth below
and the Leverage Ratio for the quarterly or annual period ending immediately
prior to such Performance Pricing Determination Date:
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Leverage Ratio Facility Fee
-------------- ------------
< 35% 0.075%
-
> 35% but
< 55% 0.125%
-
> 55% but
< 65% 0.17%
-
> 65% 0.225%
Such facility fees shall accrue from and including the Closing Date to (but
excluding the Termination Date) and shall be payable in arrears on each March
31, June 30, September 30 and December 31 and on the Termination Date,
commencing on March 31, 1998.
(b) The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Agent, terminate at any time, or proportionately reduce all or any part of
the Unused Commitments, after deducting therefrom the aggregate amount of any
outstanding Money Market Loans, from time to time by an aggregate amount of at
least $10,000,000 or any larger integral multiple of $5,000,000. If the
Commitments are terminated in their entirety, all accrued fees (as provided
under Section 2.07) shall be due and payable on the effective date of such
termination.
SECTION 2.09. Mandatory Reduction and Termination of
Commitments. (a) If, upon a transfer of assets or the discontinuance or
elimination of a Subsidiary or division (in a single transaction or in a series
of related transactions), the aggregate assets so transferred or utilized in a
Subsidiary or division to be so discontinued, when combined with all other
assets transferred, and all other assets utilized in all other Subsidiaries or
divisions discontinued since the Closing Date, constitute more than 30% of
Consolidated Total Assets (excluding from such calculation assets of the types
described in clause (ii) of the last sentence of Section 5.04) measured as of
(x) until the Keebler Acquisition, September 20, 1997, and (y) thereafter, the
date of the Keebler Acquisition (the amount of such excess being the "Excess
Proceeds"), then the Borrower shall promptly (and in any event within 5 Domestic
Business Days after such sale) notify in writing the Agent and the Banks
thereof, which notice shall include the amount of the Excess Proceeds and
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the amount of such Excess Proceeds which the Borrower intends to invest in
operating assets of the Borrower within 90 days after such sale (the "Intended
Reinvestment Amount"), and the aggregate amount of the Commitments shall be
permanently reduced (i) on the date which is 5 Domestic Business Days after such
sale, by an amount equal to the difference between the Excess Proceeds and the
Intended Reinvestment Amount, and (ii) on the date which is 90 days after such
sale, by the amount of any Excess Proceeds which was included in the Intended
Reinvestment Amount but which have not been invested in operating assets of the
Borrower within such 90 day period (and the Borrower shall notify the Agent and
the Banks of such amount on such date), and in each case the Borrower shall make
any prepayments required by Section 2.11 as a result thereof.
(b) Upon failure to satisfy the condition set forth in Section
3.01(i) regarding the Keebler Acquisition within the time permitted thereby, the
Commitments shall be reduced, prorata, to $300,000,000 (but such reduction shall
not affect the amount or computation of the fees payable to the Agent pursuant
to the Agent's Letter Agreement).
(c) The Commitments shall terminate on the Termination Date
and any Loans then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrower may, upon
at least 1 Domestic Business Days' notice to the Agent, prepay any Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $5,000,000, or any larger integral multiple of $1,000,000,
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Base Rate Loans of the several Banks included in
such Base Rate Borrowing.
(b) Subject to any payments required pursuant to the terms of
Section 8.05(a) for such Fixed Rate Loan, upon 3 Domestic Business Day's prior
written notice, the Borrower may prepay in minimum amounts of $10,000,000 with
additional increments of $5,000,000 (or any lesser amount equal to the
outstanding balance of such Loan) all or any portion of the principal amount of
any Fixed Rate Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section 2.10, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice, once
received by the Agent, shall not thereafter be revocable by the Borrower.
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SECTION 2.11. Mandatory Prepayments. On each date on which the
Commitments are reduced pursuant to Section 2.08 or Section 2.09, the Borrower
shall repay or prepay such principal amount of the outstanding Loans, if any
(together with interest accrued thereon and any amount due under Section
8.05(a)), as may be necessary so that after such payment the aggregate unpaid
principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied
ratably to the Loans of the Banks outstanding on the date of payment or
prepayment in the following order of priority:(i) first, to Base Rate Loans;
(ii) secondly, to Euro-Dollar Loans; and (iii) lastly, to Money Market Loans.
SECTION 2.12. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans and
of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time) on the date
when due, in Federal or other funds immediately available in Atlanta, Georgia,
to the Agent at its address referred to in Section 9.01. The Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans, Money Market Loans or of fees hereunder shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other
amounts to be made by the Borrower pursuant to this Agreement with respect to
any Loan or fee relating thereto shall be paid without setoff, deduction or
counterclaim of any kind, including, without limitation, any deduction for, and
free from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of the Agent and
each Bank, taxes imposed on or measured by its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which the Agent or such
Bank is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
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subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that the
Borrower is required by applicable law to make any such withholding or deduction
of Taxes with respect to any Loan or fee or other amount, the Borrower shall pay
such deduction or withholding to the applicable taxing authority, shall promptly
furnish to any Bank in respect of which such deduction or withholding is made
all receipts and other documents evidencing such payment and shall pay to such
Bank additional amounts as may be necessary in order that the amount received by
such Bank after the required withholding or other payment shall equal the amount
such Bank would have received had no such withholding or other payment been
made. If no withholding or deduction of Taxes are payable in respect to any Loan
or fee relating thereto, the Borrower shall furnish any Bank, at such Bank's
request, either (at the option of the Borrower) a certificate from each
applicable taxing authority or an opinion of counsel acceptable to such Bank, in
either case stating that such payments are exempt from or not subject to
withholding or deduction of Taxes. If the Borrower fails to provide such
original or certified copy of a receipt evidencing payment of Taxes or
certificate(s) or opinion of counsel of exemption, the Borrower hereby agrees to
compensate such Bank for, and indemnify them with respect to, the tax
consequences of the Borrower's failure to provide evidence of tax payments or
tax exemption.
Each Bank which is not organized under the laws of the United
States or any state thereof agrees, as soon as practicable after receipt by it
of a request by the Borrower to do so, to file all appropriate forms and take
other appropriate action to obtain a certificate or other appropriate document
from the appropriate governmental authority in the jurisdiction imposing the
relevant Taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Notes without deduction and
free from withholding of any Taxes imposed by such jurisdiction; provided that
if it is unable, for any reason, to establish such exemption, or to file such
forms and, in any event, during such period of time as such request for
exemption is pending, the Borrower shall nonetheless remain obligated under the
terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by
the Borrower pursuant to this Section 2.12(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
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Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.12(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees. Interest on
Base Rate Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed (including the first day but excluding the
last day). Interest on Euro-Dollar Loans and Money Market Loans shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed, calculated as to each Interest Period from and including the first
day thereof to but excluding the last day thereof. Commitment fees and any other
fees payable hereunder shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation of
each Bank to make a Loan on the occasion of the first Borrowing is subject to
the satisfaction of the conditions set forth in Section 3.02 and receipt by the
Agent of the following (as to the documents described in paragraphs (a),(c),
(d)and (e) below, in sufficient number of counterparts for delivery of a
counterpart to each Bank and retention of one counterpart by the Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart, with the original
to be sent to the Agent by overnight courier);
(b) a duly executed Syndicated Loan Note and a duly executed
Money Market Loan Note for the account of each Bank complying with the
provisions of Section 2.04;
(c) an opinion letter of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant General
Counsel of the Borrower, dated as of the Closing
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Date, substantially in the form of Exhibit B and covering such
additional matters relating to the transactions contemplated hereby as
the Agent or any Bank may reasonably request;
(d) an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel
for the Agent, dated as of the Closing Date, substantially in the form
of Exhibit C and covering such additional matters relating to the
transactions contemplated hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in
the form of Exhibit G), dated as of the Closing Date, signed by a
principal financial officer of the Borrower, to the effect that (i) no
Default has occurred and is continuing on the date of the first
Borrowing and (ii) the representations and warranties of the Borrower
contained in Article IV are true on and as of the date of the first
Borrowing hereunder;
(f) a certificate of the Borrower substantially in the form of
Exhibit H (the "Officer's Certificate"), signed by the Secretary or an
Assistant Secretary of the Borrower, certifying as to the names, true
signatures and incumbency of the officer or officers of the Borrower
authorized to execute and deliver the Loan Documents, and certified
copies of the following items: (i) the Borrower's Certificate of
Incorporation, (ii) the Borrower's Bylaws, (iii) a certificate of the
Secretary of State of the State of Georgia as to the good standing of
the Borrower as a Georgia corporation, and (iv) the action taken by the
Board of Directors of the Borrower authorizing the Borrower's
execution, delivery and performance of this Agreement, the Notes and
the other Loan Documents to which the Borrower is a party;
(g) a Notice of Borrowing or notification pursuant to Section
2.03(e) of acceptance of one or more Money Market Quotes, as
applicable;
(h) Termination of the Original Agreement and all
"Commitments" thereunder, and repayment in full of all outstanding
principal and accrued and unpaid interest and fees and other amounts
thereunder (and in connection therewith, promptly after the Closing
Date, each Bank which is a party to the Original Agreement will deliver
to the Borrower for cancellation its Original Notes);
(i) Consummation of the Keebler Acquisition and the
restructuring of the ownership of Keebler under terms and
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conditions satisfactory to the Agent; provided, however, that if all
other conditions have been satisfied, the Closing Date may occur
notwithstanding the non-satisfaction of this condition, and in such
event (x) this condition may be satisfied at any time within 7 Business
Days after the Closing Date, and (y) failure to satisfy such condition
within such time shall result in a prorata reduction of the Commitments
pursuant to Section 2.09(b); and
(j) Delivery to the Agent and the Banks of, and their
satisfaction with, a pro-forma balance sheet, giving effect to the
Keebler Acquisition.
In addition, if the Borrower desires funding of a Fixed Rate Loan on the Closing
Date, the Agent shall have received, the requisite number of days prior to the
Closing Date, a funding indemnification letter satisfactory to it, pursuant to
which (i) the Agent and the Borrower shall have agreed upon the interest rate,
amount of Borrowing and Interest Period for such Fixed Rate Loan, and (ii) the
Borrower shall indemnify the Banks from any loss or expense arising from the
failure to close on the anticipated Closing Date identified in such letter or
the failure to borrow such Fixed Rate Loan on such date.
SECTION 3.02. Conditions to All Borrowings. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
satisfaction of the following conditions except as expressly provided in the
last sentence of this Section 3.02:
(a) receipt by the Agent of a Notice of Borrowing or
notification pursuant to Section 2.03(e) of acceptance of one or more
Money Market Quotes, as applicable;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and
as of the date of such Borrowing, except to the extent such
representations and warranties relate to a prior date; and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01 shall have
been satisfied.
The acceptance by the Borrower of each Syndicated Borrowing and each Money
Market Borrowing hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of such
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Borrowing as to the truth and accuracy of the facts specified in paragraphs (b),
(c) and (d) of this Section; provided that: (i) if such Borrowing is a
Syndicated Borrowing which consists solely of a Refunding Loan, (x) such
Borrowing shall not be deemed to be such a representation and warranty as to the
truth and accuracy of the fact specified in paragraph (c) of this Section, and
(y) if the facts specified in paragraph (b) are not true and accurate, such
Refunding Loan shall be made as a Base Rate Loan; and (ii) any representation
and warranty contained in Article IV which by its terms is made as to matters as
of a specified date shall when remade pursuant to this Section in connection
with such Borrowing be deemed to be made as to matters as of such specified date
and not any later date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Georgia. The Borrower is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, except for any failure to comply with the foregoing
which does not have and reasonably could not be expected to cause a Material
Adverse Effect, and has all corporate powers and all government authorizations,
licenses, consents and approvals required to engage in its business and
operations as now conducted, except for any failure to comply with the foregoing
which does not have and reasonably could not be expected to cause a Material
Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any material
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Restricted Subsidiaries, and (v) do not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Restricted Subsidiaries.
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SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of June 28,
1997 and the related consolidated statements of income, shareholders' equity and
cash flows for the Fiscal Year then ended, reported on by Price Waterhouse LLP,
copies of which have been delivered to each of the Banks, and the unaudited
consolidated financial statements of the Borrower for the interim period ended
September 20, 1997 copies of which have been delivered to each of the Banks,
fairly present, in conformity with GAAP, the consolidated financial position of
the Borrower and its Consolidated Subsidiaries as of such dates and their
consolidated results of operations and cash flows for such periods stated.
(b) Since June 28, 1997, there has been no event, act,
condition or occurrence which has or reasonably could be expected to cause a
Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Restricted Subsidiaries before any court or
arbitrator or any governmental body, agency or official which has or reasonably
could be expected to have a Material Adverse Effect or which in any manner draws
into question the validity of this Agreement, the Notes or any of the other Loan
Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group has
incurred any withdrawal liability with respect to any Multiemployer Plan under
Title IV of ERISA, and no such liability is expected to be incurred.
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SECTION 4.07. Compliance with Laws; Payment of Taxes. The
Borrower and, to the best of the Borrower's knowledge, its Material
Subsidiaries, are in compliance with all applicable laws, regulations and
similar requirements of governmental authorities, except where such compliance
is being contested in good faith through appropriate proceedings or which does
not have and reasonably could not be expected to cause a Material Adverse
Effect. There have been filed on behalf of the Borrower and its Material
Subsidiaries all Federal, state and local income, material excise, material
property and other material tax returns which are required to be filed by them
and all taxes due pursuant to such returns or pursuant to any assessment
received by or on behalf of the Borrower or any Material Subsidiary have been
paid, except where such payments are being contested in good faith through
appropriate proceedings or the failure to pay does not have and reasonably could
not be expected to cause a Material Adverse Effect. The charges, accruals and
reserves on the books of the Borrower and its Material Subsidiaries in respect
of taxes or other governmental charges are, in the opinion of the Borrower,
adequate. As of the Closing Date, United States income tax returns of the
Borrower and its Material Subsidiaries have been examined and closed through the
1995 Fiscal Year.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except for any failure to comply with the
foregoing which does not have and reasonably could not be expected to cause a
Material Adverse Effect. As of the Closing Date, the Borrower has no
Subsidiaries except for those Subsidiaries listed on Schedule 4.08, which
assumes the consummation of the Keebler Acquisition and which accurately sets
forth each such Subsidiary's complete name and jurisdiction of incorporation.
None of such Subsidiaries, other than those listed as such on Schedule 4.08, is
a Material Subsidiary as of the Closing Date. Within 15 days after any
Subsidiary becomes a Material Subsidiary, or the creation or acquisition of any
Subsidiary which becomes a Material Subsidiary, the Borrower will send to the
Agent and each of the Banks either a supplement to or replacement of Schedule
4.08 (showing such Subsidiary and indicating that it is a Material Subsidiary),
or a copy of Form 8-K sent to the Securities and Exchange Commission, showing
such Subsidiary as a Material Subsidiary.
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SECTION 4.09. Investment Company Act. Neither the
Borrower nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the
Borrower and its Material Subsidiaries has title to, or leasehold or other
interests in, its properties sufficient for the conduct of its business, and
none of such property is subject to any Lien except as permitted in Section
5.16.
SECTION 4.12. No Default. Neither the Borrower nor any of its
Material Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which has or reasonably could be expected to cause a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. The Borrower's annual report on
Form 10-K for the fiscal year ended at June 28, 1997, a copy of which has been
furnished by the Borrower to the Agent and the Banks, did not, as of the date
such Form 10-K was filed with the Securities and Exchange Commission, contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. From the date of filing of the Borrower's
quarterly report on Form 10- Q for the fiscal quarter ended on September 20,
1997 through the date hereof, the Borrower has not filed a current report on
Form 8-K with the Securities and Exchange Commission and, as of the date hereof,
no event or condition exists which would require such filing by the Borrower
pursuant to the Securities Exchange Act of 1934, as amended, except for any such
event or condition which has heretofore been disclosed in writing to the Agent
and the Banks by delivery to the Agent and the Banks of a Form 8-K.
SECTION 4.14. Environmental Matters. (a) Neither the
Borrower nor any Restricted Subsidiary is subject to any
Environmental Liability which has or reasonably could be expected
to cause a Material Adverse Effect and, to the best of the
Borrower's knowledge, neither the Borrower nor any Restricted
Subsidiary has been designated as a potentially responsible party
under CERCLA or under any state statute similar to CERCLA. To
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the best of the Borrower's knowledge, none of the Properties has been identified
on any current or proposed (i) National Priorities List under 40 C.F.R. ss. 300,
(ii) CERCLIS list or (iii) any list arising from a state statute similar to
CERCLA.
(b) To the best of the Borrower's knowledge, no Hazardous
Materials have been or are being used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of, managed or otherwise handled
at, or shipped or transported to or from the Properties or are otherwise present
at, on, in or under the Properties, or, to the best of the knowledge of the
Borrower, at or from any adjacent site or facility, except for Hazardous
Materials, such as cleaning solvents, pesticides and other materials used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed, or otherwise handled in material compliance with all
applicable Environmental Requirements.
(c) To the best of the Borrower's knowledge, the Borrower, and
each of its Restricted Subsidiaries and Affiliates, has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Borrower's, and each of its Restricted
Subsidiary's and Affiliate's, respective businesses, except where failure to
comply does not have and reasonably could not be expected to cause a Material
Adverse Effect.
SECTION 4.15. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws in all material respects, including but not limited to, the "Blue Sky" laws
of all applicable states and the federal securities laws, except to the extent
any failure with respect thereto would not have and reasonably could not be
expected to cause a Material Adverse Effect. The issued shares of Capital Stock
of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
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Stock, or be used for any purpose, in each case in violation of the provisions
of Regulation G, T, U or X.
SECTION 4.17. Insurance. The Borrower and each of its Material
Subsidiaries has (either in the name of the Borrower or in such Material
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance in at least such amounts (including deductibles,
co-insurance and self-insurance with respect to which adequate reserves are
maintained) and against at least such risks (including on all its property, and
public liability and worker's compensation) as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business and similarly situated.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or under any Note remains
unpaid (unless the Required Banks consent in writing):
SECTION 5.01. Information. The Borrower will deliver
to each of the Banks:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, together with, so long as
there is an Unrestricted Subsidiary, a consolidating balance sheet and
statements of income, shareholders' equity and cash flows for such
periods which exclude the Unrestricted Subsidiaries, in each case
setting forth in each case in comparative form the figures for the
previous fiscal year, certified, in the case of such consolidated
financial statements, by Price Waterhouse LLP or other independent
public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not
acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of
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such Fiscal Quarter and the related statement of income and statement
of cash flows for such Fiscal Quarter and for the portion of the Fiscal
Year ended at the end of such Fiscal Quarter, together with, so long as
there is an Unrestricted Subsidiary, a consolidating balance sheet and
statements of income, shareholders' equity and cash flows for such
periods which exclude the Unrestricted Subsidiaries, in each case
setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by
the chief financial officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.13 through 5.19, inclusive, and 5.21, on the
date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in paragraph (a) above, a statement of
the firm of independent public accountants which reported on such
statements to the effect that nothing has come to their attention to
cause them to believe that any Default existed on the date of such
financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of a senior
financial officer or accounting officer or the chief financial officer
or the chief accounting officer or the Treasurer of the Borrower
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
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(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual or
quarterly reports which the Borrower shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA, a copy of such notice; or (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice; and
(i) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries
(other than non-public information as to the Unrestricted Subsidiaries)
as the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The
Borrower will (i) keep, and cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and cause each Restricted Subsidiary to permit,
representatives of any Bank (x) at such Bank's expense and upon reasonable
notice and at a time reasonably convenient to the Borrower (but in any event
within 10 days of such notice) prior to the occurrence and continuance of a
Default and (y) at the Borrower's expense and without prior notice after the
occurrence and continuance of a Default, to visit and inspect any of their
respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants. The Borrower agrees to cooperate and assist in such visits and
inspections, in each case at such reasonable times and as often as may
reasonably be desired.
SECTION 5.03. Maintenance of Existence. The Borrower
will at all times preserve and keep in full force and effect its
corporate existence. Subject to Section 5.04, the Borrower will
at all times preserve and keep in full force and effect the
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corporate existence of each of its Restricted Subsidiaries (unless merged into
the Borrower or a Restricted Subsidiary) and all rights and franchises of the
Borrower and its Restricted Subsidiaries unless, in the good faith judgment of
the Borrower, the termination of or failure to preserve and keep in full force
and effect such corporate existence, right or franchise would not, individually
or in the aggregate, have and could not reasonably be expected to cause a
Material Adverse Effect. The Borrower will, and will cause each Restricted
Subsidiary (subject to Section 5.04), at all times to carry on its business in
the food or beverage business or any related line of business.
SECTION 5.04. Consolidations, Mergers and Sales of Assets. The
Borrower will not, nor will it permit any Material Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment, provided that (a) the Borrower may merge with another
Person if (i) such Person was organized under the laws of the United States of
America or one of its states, (ii) the Borrower is the corporation surviving
such merger and (iii) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, (b) Subsidiaries of the Borrower may
merge with one another, provided that in the case of a merger of a Restricted
Subsidiary with an Unrestricted Subsidiary, the Restricted Subsidiary is the
corporation surviving such merger, (c) other Persons may merge into or with
Subsidiaries to effect an acquisition permitted by Section 5.15 and (d) the
foregoing limitation on the sale, lease or other transfer of assets and on the
discontinuation or elimination of a Subsidiary or division shall not prohibit
(x) transfers of assets (including stock of a Restricted Subsidiary) to or among
Restricted Subsidiaries, (y) during any Fiscal Year, a transfer of assets other
than Margin Stock or the discontinuance or elimination of a Subsidiary or
division (in a single transaction or in a series of related transactions) unless
the aggregate assets to be so transferred or utilized in a Restricted Subsidiary
or division to be so discontinued, when combined with all other assets
transferred, and all other assets utilized in all other Restricted Subsidiaries
or divisions discontinued, in any Fiscal Year, constituted more than 15% of
Consolidated Total Assets measured as of the end of the immediately preceding
Fiscal Year and (z) transfers of Margin Stock. Nothing in this Section 5.04
shall be interpreted to (i) limit or abridge the provisions of Section 2.09(a)
or (ii) restrict the Borrower's ability to dispose of (1) vehicles, (2) delivery
routes, (3) assets obtained through acquisitions of businesses or assets on or
after the date hereof, provided that proceeds of any such disposition shall be
reinvested in the Borrower by reducing Indebtedness or by investing in operating
assets, and (4) obsolete, under-performing
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or non-core assets, disposition of which, in management's judgment, would
enhance the Borrower's operations and profitability, and dispositions described
in this sentence shall not be subject to, or included in the computations under,
clause (d) above.
SECTION 5.05. Use of Proceeds. The proceeds of the Loans shall
be used for general corporate purposes, including the Keebler Acquisition and
other acquisitions permitted by Section 5.15, and the repayment of Indebtedness;
provided, that no portion of the proceeds of the Loans will be used by the
Borrower or any Subsidiary (i) in connection with, whether directly or
indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation,
unless such tender offer or other acquisition is to be made on a negotiated
basis with the approval of the Board of Directors of the Person to be acquired,
and the provisions of Section 5.16 would not be violated, (ii) in violation of
Section 4.16, or (iii) for any purpose in violation of any applicable law or
regulation.
SECTION 5.06. Compliance with Laws; Payment of Taxes. (a) The
Borrower will, and will cause each of its Material Subsidiaries and each member
of the Controlled Group to, comply with applicable laws (including but not
limited to ERISA), regulations and similar requirements of governmental
authorities (including but not limited to PBGC), except where the necessity of
such compliance is being contested in good faith through appropriate proceedings
diligently pursued or if failure to comply does not have and reasonably could
not be expected to cause a Material Adverse Effect. The Borrower will, and will
cause each of its Material Subsidiaries to, pay promptly when due all taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Borrower or any Restricted Subsidiary, except liabilities being contested in
good faith and against which, if requested by the Agent, the Borrower will set
up reserves in accordance with GAAP and liabilities the nonpayment of which
would not have and reasonably could not be expected to cause a Material Adverse
Effect.
(b) The Borrower shall not permit the aggregate complete or
partial withdrawal liability under Title IV of ERISA with respect to
Multiemployer Plans incurred by the Borrower and members of the Controlled Group
to exceed $5,000,000 at any time. For purposes of this Section 5.06(b), the
amount of withdrawal liability of the Borrower and members of the Controlled
Group at any date shall be the aggregate present value of the amount claimed to
have been incurred less any portion thereof which the Borrower and members of
the Controlled Group have paid or as to
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which the Borrower reasonably believes, after appropriate consideration of
possible adjustments arising under Sections 4219 and 4221 of ERISA, it and
members of the Controlled Group will have no liability, provided that the
Borrower shall obtain prompt written advice from independent actuarial
consultants supporting such determination. The Borrower agrees (i) once in each
year, beginning with the 1998 Fiscal Year, to request a current statement of the
withdrawal liability of the Borrower and members of the Controlled Group from
each Multiemployer Plan, if any, and (ii) to transmit a copy of such statement
to the Agent and the Banks within 15 days after the Borrower receives the same.
SECTION 5.07. Insurance. The Borrower will maintain, and will
cause each of its Material Subsidiaries to maintain (either in the name of the
Borrower or in such Material Subsidiary's own name), with financially sound and
reputable insurance companies, insurance on all its property in at least such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) and against at least such risks
(including on all its property, and public liability and worker's compensation)
as are usually insured against in the same general area by companies of
established repute engaged in the same or similar business and similarly
situated.
SECTION 5.08. Change in Fiscal Year. The Borrower and its
Subsidiaries are changing their Fiscal Year to a Fiscal Year ending on the
Saturday closest to December 31, and initially will have a Fiscal Year
consisting of the period from June 29, 1997 to January 3, 1998. Except for such
change, the Borrower will not change its Fiscal Year without the consent of the
Required Banks, which shall not be unreasonably withheld (taking into
consideration for such purpose the effect, if any, such change would have on the
financial covenants contained in this Agreement).
SECTION 5.09. Maintenance of Property. The Borrower shall, and
shall cause each Restricted Subsidiary to, maintain all of its properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted, except where any failure would not have and could not reasonably be
expected to cause a Material Adverse Effect.
SECTION 5.10. Environmental Notices. The Borrower shall
furnish to the Banks and the Agent prompt written notice of all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases of which the Borrower shall have received actual notice or have actual
knowledge at, on, in, under or in any way affecting the
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Properties, and all facts, events, or conditions that could lead to any of the
foregoing, if the amount of liability or of remediation cost to the Borrower has
or reasonably could be expected to cause a Material Adverse Effect.
SECTION 5.11. Environmental Matters. The Borrower and its
Material Subsidiaries will not, and will not knowingly permit any Third Party
to, use, produce, manufacture, process, treat, recycle, generate, store, dispose
of, manage at, or otherwise handle, or ship or transport to or from the
Properties any Hazardous Materials in violation of applicable Environmental
Requirements, except to the extent that failure to comply would not have and
reasonably could not be expected to cause a Material Adverse Effect.
SECTION 5.12. Environmental Release. The Borrower agrees that
upon its becoming aware of the occurrence of an Environmental Release, except
for any Environmental Release which occurred in substantial compliance with all
Environmental Requirements, at or on any of the Properties it will act promptly
to determine the extent of, and to take such remedial action to eliminate, any
such Environmental Release, whether or not ordered or otherwise directed to do
so by any Environmental Authority, except to the extent that failure to take
remedial action would not have and reasonably could not be expected to cause a
Material Adverse Effect.
SECTION 5.13. Transactions with Affiliates. Neither the
Borrower nor any of its Material Subsidiaries shall enter into, or be a party
to, any transaction with any Affiliate of the Borrower or such Material
Subsidiary (which Affiliate is not the Borrower or a Restricted Subsidiary,
other than a Person in which the Borrower or such Material Subsidiary owns less
than a majority interest and which, if it were a Restricted Subsidiary, would
not be a Material Subsidiary), except as permitted by law and in the ordinary
course of business and pursuant to reasonable terms which either (x) are no less
favorable to Borrower or such Material Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate or
(y) have been approved by a majority of the Board of Directors of the Borrower
or such Material Subsidiary; provided, that the foregoing shall not affect the
ability of the Borrower or any Material Subsidiary to determine, in its sole
discretion, the amount or form of executive or director compensation from time
to time.
SECTION 5.14. Loans or Advances. Neither the Borrower
nor any of its Material Subsidiaries shall make loans or advances
to any Person except as permitted by Section 5.16 and except: (i)
loans or advances to employees not exceeding $10,000,000 in the
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aggregate principal amount outstanding at any time, in each case made in the
ordinary course of business and consistent with practices existing on the
Closing Date; (ii) deposits required by government agencies or public utilities;
(iii) loans or advances to and among Borrower and its Wholly Owned Subsidiaries;
and (iv) other loans or advances, to Persons other than the Unrestricted
Subsidiaries (loans and advances to Unrestricted Subsidiaries not being
permitted), in an aggregate amount outstanding which, together with Investments
permitted by clause (vi) of Section 5.15, do not exceed 15% of Consolidated
Total Assets as of the last day of the immediately preceding Fiscal Quarter;
provided that after giving effect to the making of any loans, advances or
deposits permitted by this Section, no Default shall be in existence or be
created thereby.
SECTION 5.15. Investments. Neither the Borrower nor any of its
Restricted Subsidiaries shall make Investments in any Person except as permitted
by Section 5.14 and except Investments in (i) direct obligations of the United
States Government maturing within one year, (ii) certificates of deposit issued
by a commercial bank whose credit is satisfactory to the Agent, (iii) commercial
paper rated A1 or the equivalent thereof by Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc. or P1 or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. and in either case maturing within 6 months after the
date of acquisition; (iv) tender bonds the payment of the principal of and
interest on which is fully supported by a letter of credit issued by a United
States bank whose long-term certificates of deposit are rated at least AA or the
equivalent thereof by Standard & Poor's Corporation and Aa or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc.; (v) Investments by the Borrower or
any Restricted Subsidiary in the stock (or other ownership interests) or assets
of any Person in the food or beverage business or any related line of business
and/or (vi) other Investments in an aggregate amount outstanding which, together
with loans and advances permitted by clause (iv) of Section 5.14, do not exceed
15% of Consolidated Total Assets as of the last day of the immediately preceding
Fiscal Quarter, and which, as to Investments in Keebler, constitute Permitted
Keebler Investments; provided, however, immediately after giving effect to the
making of any Investment, no Default shall have occurred and be continuing.
SECTION 5.16. Negative Pledge. Neither the Borrower
nor any Restricted Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by
it, except:
(a) Liens existing on the date of this Agreement
securing Indebtedness outstanding on the date of this
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Agreement in an aggregate principal amount not exceeding
$24,000,000;
(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Restricted
Subsidiary and not created in contemplation of such event;
(c) any Lien on any specific fixed asset (real or personal)
securing Indebtedness incurred or assumed for the purpose of financing
all or any part of the cost of acquiring or constructing such asset,
provided that such Lien attaches to such asset concurrently with or
within 18 months after the acquisition or completion of construction
thereof;
(d) any Lien on any specific fixed asset of any corporation
existing at the time such corporation is merged or consolidated with or
into the Borrower or a Restricted Subsidiary and not created in
contemplation of such event;
(e) any Lien existing on any specific fixed asset prior to the
acquisition thereof by the Borrower or a Restricted Subsidiary and not
created in contemplation of such acquisition;
(f) Liens on assets of a Restricted Subsidiary securing
Indebtedness owing by any Restricted Subsidiary to the Borrower or by
any Restricted Subsidiary to another Restricted Subsidiary;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted
by any of the foregoing paragraphs of this Section, provided that (i)
such Indebtedness is not secured by any additional assets, and (ii) the
amount of such Indebtedness secured by any such Lien is not increased;
(h) Liens incidental to the conduct of its business or the
ownership of its assets which (i) do not secure Indebtedness and (ii)
do not in the aggregate materially detract from the value of its assets
or materially impair the use thereof in the operation of its business;
(i) Liens imposed by any governmental authority for taxes,
assessments or charges not yet delinquent or which are being contested
in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Borrower or any of
its Subsidiaries, as the case may be, in accordance with GAAP;
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(j) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business (whether or not statutory) which are not overdue for a period
of more than 30 days or which are being contested in good faith and by
appropriate proceedings, for which a reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made;
(k) Liens, pledges or deposits to secure non- delinquent
obligations under worker's compensation, unemployment insurance and
other social security legislation;
(l) Liens on capital stock of or other ownership interests in
any Person not a Restricted Subsidiary of the Borrower securing
Indebtedness of such Person;
(m) Liens resulting from progress payments or partial payments
under United States government contracts or subcontracts;
(n) Liens arising from legal proceedings, so long as such
proceedings are being contested in good faith by appropriate
proceedings diligently conducted and so long as execution is stayed on
all judgments resulting from any such proceedings;
(o) any Lien on Margin Stock;
(p) grants of security and rights of setoff in deposit or
credit accounts, including demand, savings, passbook, share draft or
like accounts, certificates of deposit, money market accounts, items
held for collection or deposit, commercial paper, negotiable
instruments and similar accounts and instruments held at banks or
financial institutions to secure the payment or reimbursement under
overdraft, acceptance and similar facilities and rights of setoff,
banker's liens and other similar rights arising solely by operation of
law; and
(q) Liens not otherwise permitted by the foregoing paragraphs
of this Section securing Indebtedness (other than indebtedness
represented by the Notes) in an aggregate principal amount at any time
outstanding which, together with the aggregate amount of Indebtedness
of Restricted Subsidiaries permitted by Section 5.20(iv), does not
exceed 20% of Consolidated Net Worth as of the last day of the
immediately preceding Fiscal Quarter.
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SECTION 5.17. Fixed Charges Coverage Ratio. At the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending December 13, 1997, the
ratio of EBILT to Consolidated Fixed Charges shall at all times be greater than
2.0 to 1.0.
SECTION 5.18. Leverage Ratio. The Leverage Ratio shall
at all times be less than:
(A) provided that the condition set forth in Section 3.01(i) regarding
the Keebler Acquisition is satisfied within the time permitted thereby, and for
so long as Keebler is a Subsidiary, (i) from the Closing Date through whichever
is the earlier of (x) January 2, 1999 or (y) the date of the Next Public
Offering, 0.75 to 1.00; and (ii) thereafter, 0.65 to 1.0; and
(B) in all other circumstances, 0.65 to 1.0.
SECTION 5.19. Minimum Consolidated Net Worth.
Consolidated Net Worth will at no time be less than:
(A) prior to the date of the Next Public Offering, the greater of (i)
85% of Consolidated Net Worth as of the end of the Fiscal Quarter ending
September 20, 1997, plus the sum of (x) 50% of the cumulative Net Proceeds of
Capital Stock received during any period after the Closing Date, plus (y) 50% of
any equity resulting from a conversion of Indebtedness during any period after
the Closing Date, less (z) any amount of equity repurchased during any period
after the Closing Date, calculated quarterly at the end of each Fiscal Quarter;
and (ii) $200,000,000; and
(B) from and after the date of the Next Public Offering, the greater of
(i) 85% of Consolidated Net Worth as of the end of the Fiscal Quarter most
recently ended, adjusted to give effect on a proforma basis to the Next Public
Offering, plus the sum of (x) 50% of the cumulative Net Proceeds of Capital
Stock received during any period after the Next Public Offering, plus (y) 50% of
any equity resulting from a conversion of Indebtedness during any period after
the Next Public Offering, less (z) any amount of equity repurchased during any
period after the Next Public Offering, calculated quarterly at the end of each
Fiscal Quarter; and (ii) $450,000,000.
SECTION 5.20. Subsidiary Borrowings. The Borrower shall not
permit any Restricted Subsidiary to become liable for any Indebtedness, whether
secured or unsecured, except: (i) such of the foregoing as is owed to the
Borrower or another Wholly-Owned Subsidiary; (ii) Indebtedness or obligations
secured by Liens permitted by Section 5.16; (iii) Indebtedness or obligations of
a Subsidiary outstanding at the time such Subsidiary becomes a
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Subsidiary, provided that (a) such Indebtedness shall not have been incurred in
contemplation of such Subsidiary becoming a Subsidiary, and (b) immediately
after such Subsidiary becomes a Subsidiary, no Default or Event of Default shall
exist, and provided, further, that such Indebtedness may not be extended,
renewed, or refunded except as otherwise permitted by this Agreement; and (iv)
other Indebtedness which, when combined with the total of the Indebtedness
secured by all Liens permitted by Section 5.16(q), without duplication, does not
exceed 20% of Consolidated Net Worth as of the last day of the immediately
preceding Fiscal Quarter.
SECTION 5.21. Adjusted Leverage Ratio. The ratio of
Adjusted Consolidated Total Debt to Adjusted Total Capitalization shall at all
times be less than:
(A) provided that the condition set forth in Section 3.01(i) regarding
the Keebler Acquisition is satisfied within the time permitted thereby, and for
so long as Keebler is a Subsidiary, (i) from the Closing Date through whichever
is the earlier of (x) January 2, 1999 or (y) the date of the Next Public
Offering, 0.75 to 1.00; and (ii) thereafter, 0.65 to 1.0; and
(B) in all other circumstances, 0.65 to 1.0.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be
continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within 5
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within 5 Domestic
Business Days after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in: (i) Sections 5.01(e), 5.02(ii), 5.03 through 5.05,
inclusive, Sections 5.17 through 5.19, inclusive, and Section 5.21; or
(ii) Sections 5.14, 5.15 or 5.20, and with respect to this clause (ii)
such failure shall not have been cured within 10 days after the earlier
to occur of (1) written notice thereof has been given to the Borrower
by the Agent at the request of any Bank or (2) any
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Responsible Officer of the Borrower otherwise becomes aware
of any such failure; or
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement
(other than those covered by paragraph (a) or (b) above) and such
failure shall not have been cured within 30 days after the earlier to
occur of (i) written notice thereof has been given to the Borrower by
the Agent at the request of any Bank or (ii) any Responsible Officer of
the Borrower otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement
made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant
to this Agreement shall prove to have been incorrect or misleading in
any material respect when made (or deemed made); or
(e) the Borrower or any Material Subsidiary shall fail to make
any payment in respect of Indebtedness in an aggregate amount
outstanding in excess of $10,000,000 (other than the Notes) when due or
within any applicable grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Indebtedness or, as a result of any
event of default, there is a requirement for the mandatory purchase or
sale of property subject to any "synthetic lease" (meaning a lease
transaction under which the obligations of the Borrower are treated as
debt for tax purposes but not under GAAP) and/or the payment of any
final rent payment or guaranteed residual amount with respect thereto
(any such obligation to purchase or sell property or pay a final rent
payment or guaranteed residual amount under a synthetic lease as a
result of an event of default thereunder being a "synthetic lease
obligation") in an aggregate amount outstanding in excess of
$10,000,000 of the Borrower or any Material Subsidiary (including,
without limitation, any required mandatory prepayment or "put" of such
Indebtedness or, as a result of an event of default, a synthetic lease
obligation, to the Borrower or any Material Subsidiary) or enables (or,
with the giving of notice or lapse of time or both, would enable) the
holders of such Indebtedness or commitment therefor or lessor under any
such synthetic lease or any Person acting on such holders' or lessor's
behalf to accelerate the maturity thereof or terminate any such
commitment or to require, as a result of an event of default, the
purchase or sale of such property
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or the payment of any other synthetic lease obligation (including,
without limitation, any required mandatory prepayment or "put" of such
Indebtedness or synthetic lease obligation to the Borrower or any
Material Subsidiary); or
(g) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Borrower or any Material
Subsidiary under the federal bankruptcy laws as now or hereafter in
effect; or
(i) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans shall be filed under
Title IV of ERISA by the Borrower, any member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or
a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Plan or Plans must be terminated, in
each case
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if the amount of Unfunded Vested Liabilities is in excess of
$10,000,000; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $20,000,000 shall be rendered
against the Borrower or any Material Subsidiary and such judgment or
order shall continue unbonded, undischarged, unsatisfied and unstayed
for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower or
any Material Subsidiary under Section 6323 of the Code, if the amount
involved is in excess of $20,000,000, or a lien of the PBGC shall be
filed against the Borrower or any Material Subsidiary under Section
4068 of ERISA and in either case such lien shall remain undischarged
for a period of 25 days after the date of filing, if the amount
involved is in excess of $10,000,000; or
(l) in any 12 month period or less, (i) 50% or more of the
members of the full Board of Directors of the Borrower shall have
resigned or been removed or replaced, or (ii) any Person or "Group" (as
defined in Section 2(d)(3) of the Securities Exchange Act of 1934, as
amended) (other than an employee benefit or stock ownership plan of the
Borrower) shall have acquired, during such period, directly or
indirectly, more than 30% of the capital stock (whether common or
preferred or a combination thereof) of the Borrower, provided that the
Borrower's purchase of treasury shares of shares of its capital stock
outstanding on the date of the Original Agreement which results in one
or more of the Borrower's shareholders of record as of the date of the
Original Agreement owning 30% or more of the Borrower's Capital Stock
shall not constitute an acquisition for purposes of this Section 6.01
(l); or
(m) the occurrence of any event, act, occurrence, or condition
which either has or which reasonably could be expected to cause a
Material Adverse Effect.
then, and in every such event, (i) the Agent shall, if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, (ii) any Bank may terminate its obligation to fund a Money
Market Loan in connection with any relevant Money Market Quote, and (iii) the
Agent shall, if requested by the Required Banks, by notice to the Borrower
declare the Notes (together with accrued interest thereon), and all other
amounts payable hereunder and under the other Loan Documents, to be, and the
Notes (together with accrued
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interest thereon), and all other amounts payable hereunder and under the other
Loan Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; provided that if any Event of Default specified in paragraph (g) or
(h) above occurs with respect to the Borrower, without any notice to the
Borrower or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued interest thereon) and
all other amounts payable hereunder and under the other Loan Documents shall
automatically and without notice become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default. Notwithstanding the foregoing, the Agent shall have available to it
all other remedies at law or equity, and shall exercise any one or all of them
at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Borrower of any Default under Section 6.01(b) or (c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities. (a) Each
Bank hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
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hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
(b) Each Bank hereby designates The Bank of Nova Scotia as
Documentation Agent and NationsBank, N.A. as Syndications Agent. The
Documentation Agent and the Syndications Agent, in such capacity, shall have no
duties or obligations whatsoever under this Agreement or any other Loan Document
or any other document or any matter related hereto and thereto, but shall
nevertheless be entitled to all the indemnities and other protection afforded to
the Agent under this Article VII.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telecopier, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Loan Document,
the Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and thereunder in accordance with instructions signed by the
Required Banks, and such instructions of the Required Banks in any action taken
or failure to act pursuant thereto shall be binding on all of the Banks.
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SECTION 7.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each nonpayment of principal of or
interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a Bank.
With respect to the Loans made by the Agent and any Affiliate of the Agent,
Wachovia in its capacity as a Bank hereunder and any Affiliate of the Agent or
such Affiliate in its capacity as a Bank hereunder shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though
Wachovia were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include Wachovia in its individual
capacity and any Affiliate of the Agent in its individual capacity. The Agent
and any Affiliate of the Agent may (without having to account therefor to any
Bank) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Borrower (and any of the Borrower's
Affiliates) as if Wachovia were not acting as the Agent, and the Agent and any
Affiliate of the Agent may accept fees and other consideration from the Borrower
(in addition to any agency fees and arrangement fees heretofore agreed to
between the Borrower and the Agent) for services in connection with this
Agreement or any other Loan Document or otherwise without having to account for
the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
out-of-pocket costs, expenses (including, without limitation, reasonable counsel
fees and disbursements actually incurred) or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way
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relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless an Event of
Default has occurred and is continuing, the normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or wilful misconduct of the Agent. If any
indemnity furnished to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
SECTION 7.06 Consequential Damages. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and the provisions of Section 9.08(c) have
been satisfied. Any requests, authority or consent of any Person who at the time
of making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of that Note or of any Note or Notes issued in exchange therefor or
replacement thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other
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Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the Agent by reason of
taking, continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent, subject to the approval of the Borrower,
which shall not be unreasonably withheld or delayed; provided, that no approval
of the Borrower shall be required if a Default is in existence. If no successor
Agent shall have been so appointed by the Required Banks and shall have accepted
such appointment within 30 days after the retiring Agent's notice of resignation
or the Required Banks' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent, subject to the approval
of the Borrower, which shall not be unreasonably withheld or delayed; provided,
that no approval of the Borrower shall be required if a Default is in existence.
Any successor Agent shall be a bank which has a combined capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon 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. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate, as determined by the Agent will not adequately
and fairly reflect the cost to such Banks of funding Euro-Dollar Loans
for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
the type of Fixed Rate Loans specified in such notice shall be suspended. Unless
the Borrower notifies the Agent at least 2 Domestic Business Days before the
date of any Borrowing of such type of Fixed Rate Loans for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or impossible for any Bank (or its
Lending Office) to make, maintain or fund its Euro-Dollar Loans and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank notifies the Borrower
and the Agent that the circumstances giving rise to such suspension no longer
exist, the obligation of such Bank to make Euro-Dollar Loans shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that
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it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall, on the later of (i) the date such notice is received by the Borrower and
(ii) the date such Change of Law becomes effective, prepay in full the then
outstanding principal amount of each Euro-Dollar Loan of such Bank, together
with accrued interest thereon and any amount due such Bank pursuant to Section
8.05(a). Concurrently with prepaying each such Euro-Dollar Loan, the Borrower
shall borrow a Base Rate Loan in an equal principal amount from such Bank (on
which interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its
Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on
the London interbank market any other condition affecting its Fixed
Rate Loans or Money Market Loans, its Notes or its obligation to make
Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction;
provided, however, that the Borrower shall not be responsible to such Bank for
any increased cost or reduced return under this Section 8.03(a) which accrued at
any time before that date which is 90 calendar days prior to the date upon which
the Borrower is notified of same.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or
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any change in the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction;
provided, however, that the Borrower shall not be responsible to such Bank for
any increased cost or reduced return under this Section 8.03(b) which accrued at
any time before that date which is 90 calendar days prior to the date upon which
the Borrower is notified of same.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error, provided such certificate shall set forth the basis of such
claim and shall be accompanied by a statement of an officer of such Bank
certifying that such claim for compensation is being made pursuant to a policy
adopted by such Bank to seek such compensation generally from customers with
similar types of loans. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain any Euro-Dollar
Loans has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that
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the circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans, and
interest and principal on such Loans shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
SECTION 8.05. Compensation. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense (but not loss of margin or profit) incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, 2.11,
6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other than the last day
of an Interest Period for such Loan; or
(b) any failure by the Borrower to borrow a Fixed Rate Loan on
the date for the Fixed Rate Borrowing of which such Fixed Rate Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02 or notification of acceptance of Money Market Quotes pursuant to Section
2.03(e); such compensation to include, without limitation, an amount equal to
the excess, if any, of (x) the amount of interest which would have accrued on
the amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Fixed Rate Loan (or, in the case of
a failure to prepay or borrow, the Interest Period for such Fixed Rate Loan
which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Fixed Rate Loan provided for herein
over (y) the amount of interest (as reasonably determined by such Bank) such
Bank would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market (if such Fixed Rate Loan is a Euro-Dollar Loan); provided, that
(i) the Borrower shall be responsible to such Bank only for its actual costs
incurred in connection with same (i.e. not for any lost profits which were
expected over the course of such Interest Period), (ii) such Bank shall take
reasonable efforts to mitigate its damages in connection with same, and (iii) if
such Fixed Rate Loan is a
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Euro-Dollar Loan, the Borrower shall not be responsible to such Bank for such
losses in excess of those amounts as such Bank would have incurred had it funded
or maintained the Euro-Dollar Loan in the London interbank market (regardless of
whether it actually did so).
SECTION 8.06. Replacement of Bank. In the event that any Bank
(a "Subject Bank") gives any notice under Section 8.02 resulting in the
suspension of its obligation to make or maintain Euro-Dollar Loans, or requests
compensation pursuant to Section 8.05, or requests compensation with respect to
withholding Taxes pursuant to Section 2.12, or becomes insolvent or fails to
make any Syndicated Loan in response to a request for borrowing by the Borrower
where the Required Banks have made the Syndicated Loans to be made by them in
response to such request, then, so long as such condition exists, the Borrower
may designate another bank or financial institution (a "Replacement Bank")
acceptable to the Agent (which acceptance will not be unreasonably withheld) and
which is not an Affiliate of the Borrower, to assume the Subject Bank's
Commitment hereunder and to purchase the Loans of the Subject Bank and the
Subject Bank's rights under this Agreement and the Notes held by the Subject
Bank, all without recourse to or representation or warranty by, or expense to
the Subject Bank for a purchase price equal to the outstanding principal amount
of the Loans payable to the Subject Bank plus any accrued but unpaid interest on
such Loans and accrued but unpaid fees owing to the Subject Bank plus any
amounts payable to the Subject Bank under Sections 2.12 and 8.05, and upon such
assumption, purchase and substitution, and subject to the execution and delivery
to the Agent by the Subject Bank and the Replacement Bank of an Assignment and
Acceptance, the Replacement Bank shall succeed to the rights and obligations of
the Subject Bank hereunder. In the event that the Borrower exercises its rights
under the preceding sentence, the Subject Bank agrees to sell its Loans and
rights under this Agreement and its Notes pursuant to the foregoing, and upon
such sale, it shall no longer be a party hereto or have any rights or
obligations hereunder; provided that the obligations of the Borrower to the
Subject Bank under Article VIII and Section 9.03 with respect to events
occurring or obligations arising before or as a result of such replacement shall
survive such exercise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to
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such party at its address or telecopier number set forth on the signature pages
hereof or such other address or telecopier number as such party may hereafter
specify for the purpose by notice to each other party. Each such notice, request
or other communication shall be effective (i) if given by telecopier, when such
telecopy is transmitted to the telecopier number specified in this Section and
the confirmation is received, (ii) if given by mail, 3 Business Days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article II or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrower shall
pay (i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all reasonable out-of-pocket expenses incurred by the Agent and the Banks,
including reasonable fees and disbursements of counsel, in connection with such
Default and collection and other enforcement proceedings resulting therefrom,
including reasonable out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents. The Borrower shall indemnify the Agent and each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any Authority by reason of the execution and delivery of this Agreement or
the other Loan Documents.
SECTION 9.04. Indemnification. The Borrower shall indemnify
the Agent, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Bank hereunder or breach by the Borrower of this
Agreement or any
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other Loan Document or from any investigation, litigation (including, without
limitation, any actions taken by the Agent or any of the Banks to enforce this
Agreement or any of the other Loan Documents) or other proceeding (including,
without limitation, any threatened investigation or proceeding) relating to the
foregoing, and the Borrower shall reimburse the Agent and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any reasonable expenses (including, without limitation,
legal fees) incurred in connection with any such investigation or proceeding;
but excluding any such losses, liabilities, claims, damages or expenses incurred
by reason of the gross negligence or wilful misconduct of the Person to be
indemnified.
SECTION 9.05. Setoff; Sharing of Setoffs. (a) The Borrower
hereby grants to the Agent and each Bank and, to the fullest extent permitted by
law, each Affiliate of each Bank, the right to setoff, against the obligations
of the Borrower under this Agreement, upon all deposits or deposit accounts, of
any kind, or any interest in any deposits or deposit accounts thereof, now or
hereafter pledged, mortgaged, transferred or assigned to the Agent or any such
Bank or Affiliate of such Bank or otherwise in the possession or control of the
Agent or any such Bank or Affiliate of such Bank for any purpose for the account
or benefit of the Borrower and including any balance of any deposit account or
of any credit of the Borrower with the Agent or any such Bank or Affiliate of
such Bank, whether now existing or hereafter established, after the occurrence
and during the continuance of an Event of Default, hereby authorizing the Agent
and each Bank and each Affiliate of each Bank at any time or times with or
without prior notice to apply such balances or any part thereof to such of the
indebtedness and obligations owing by the Borrower hereunder to the Banks or
their Affiliates and/or the Agent then past due and in such amounts as they may
elect, and whether or not the collateral, if any, or the responsibility of other
Persons primarily, secondarily or otherwise liable may be deemed adequate. For
the purposes of this paragraph, all remittances and property shall be deemed to
be in the possession of the Agent or any such Bank or its Affiliate as soon as
the same may be put in transit to it by mail or carrier or by other bailee.
(b) Each Bank agrees that if it or any of its Affiliates
shall, by exercising any right of setoff or counterclaim or resort to collateral
security or otherwise, receive payment of a proportion of the aggregate amount
of principal and interest owing with respect to the Note held by it which is
greater than the proportion received by any other Bank or its Affiliate in
respect of the aggregate amount of all principal and interest owing with respect
to the Note held by
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such other Bank, the Bank receiving (directly or through its Affiliate) such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks owing to such other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks owing to such other Banks
shall be shared by the Banks pro rata; provided that (i) nothing in this Section
shall impair the right of any Bank or its Affiliates to exercise any right of
setoff or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank or its Affiliate shall be rescinded and
such other Bank or Affiliate shall repay to the purchasing Bank the purchase
price of such participation to the extent of such recovery together with an
amount equal to such other Bank's ratable share (according to the proportion of
(x) the amount of such other Bank's required repayment to (y) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that, no such amendment or waiver
shall, unless signed by all Banks, (i) change the Commitment of any Bank or
subject any Bank to any additional obligation, (ii) change the principal of or
rate of interest on any Loan or any fees (other than fees payable to the Agent)
hereunder, (iii) change the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder, (iv) change the amount of principal,
interest or fees due on any date fixed for the payment thereof, (v) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the percentage of Banks, which shall be required for the Banks or any
of them to take any action under this Section or any other provision of this
Agreement, (vi) change the manner of application of any payments made under this
Agreement or the
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Notes, (vii) release or substitute all or any substantial part of the collateral
(if any) held as security for the Loans, or (viii) release any Guaranty given to
support payment of the Loans.
(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement from or with any Bank, except on terms fully disclosed to the
Agent (which terms the Agent shall be authorized to disclose to the Banks).
Executed or true and correct copies of any waiver or consent effected pursuant
to the provisions of this Agreement shall be delivered by the Borrower to the
Agent (for delivery to each Bank) forthwith following the date on which the same
shall have been executed and delivered by the requisite percentage of Banks. The
Borrower will not, directly or indirectly, pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. 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; provided that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each
a "Participant") participating interests in any Loan owing to such Bank, any
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder
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except that such Bank may agree that it will not (except as provided below),
without the consent of the Participant, agree to (i) the change of any date
fixed for the payment of principal of or interest on the related Loan or Loans,
(ii) the change of the amount of any principal, interest or fees due on any date
fixed for the payment thereof with respect to the related Loan or Loans, (iii)
the change of the principal of the related Loan or Loans, (iv) any change in the
rate at which either interest is payable thereon or (if the Participant is
entitled to any part thereof) fee is payable hereunder from the rate at which
the Participant is entitled to receive interest or fee (as the case may be) in
respect of such participation, or (v) the release of any Guaranty given to
support payment of the Loans. Each Bank selling to any Person other than an
Affiliate of such Bank a participating interest in any Loan, Note, Commitment or
other interest under this Agreement, other than a Money Market Loan or Money
Market Note or participating interest therein, shall, within 10 Domestic
Business Days of such sale, provide the Borrower and the Agent with written
notification stating that such sale has occurred and identifying the Participant
and the interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect to
its participation in Loans outstanding from time to time, subject to the
provisions of Section 9.08(e).
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all or a proportionate part of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance, executed by such Assignee, such
transferor Bank and the Agent (and, in the case of an Assignee that is not then
a Bank, subject to clause (iii) below, by the Borrower); provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Bank's Commitment, (ii) if a Bank is assigning only a portion of its Commitment,
then, the amount of the Commitment being assigned (determined as of the
effective date of the assignment) shall be in an amount not less than
$15,000,000, (iii) except during the continuance of a Default, no interest may
be sold by a Bank pursuant to this paragraph (c) to any Assignee that is not
then a Bank (or an Affiliate of a Bank) without the consent of the Borrower and
the Agent, which consent shall not be unreasonably withheld (provided that it
shall not constitute the unreasonable withholding of consent if the Borrower
shall decline to consent because (1) the Borrower makes a reasonable
determination that it is materially more likely that the proposed Assignee will
be entitled to compensation under Section 2.12 or 8.05, or to a greater amount
of compensation thereunder than the transferor
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Bank, or (2) the proposed Assignee has a combined capital and surplus of less
than $500,000,000), and (iv) a Bank may not have more than 2 Assignees that are
not then Banks at any one time. Upon (A) execution of the Assignment and
Acceptance by such transferor Bank, such Assignee, the Agent and (if applicable)
the Borrower, (B) delivery of an executed copy of the Assignment and Acceptance
to the Borrower and the Agent, (C) payment by such Assignee to such transferor
Bank of an amount equal to the purchase price agreed between such transferor
Bank and such Assignee, and (D) payment of a processing and recordation fee of
$2,500 to the Agent, such Assignee shall for all purposes be a Bank party to
this Agreement and shall have all the rights and obligations of a Bank under
this Agreement to the same extent as if it were an original party hereto with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to an Assignee pursuant to
this paragraph (c), the transferor Bank, the Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 2.12 or 8.03 than the transferor Bank would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Borrower's prior written consent or by reason of the provisions
of Section 8.02 or 8.03 requiring such Bank to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect
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of such assigned Loans and/or obligations made by the Borrower to the assigning
and/or pledging Bank in accordance with the terms of this Agreement shall
satisfy the Borrower's obligations hereunder in respect of such assigned Loans
and/or obligations to the extent of such payment. No such assignment shall
release the assigning and/or pledging Bank from its obligations hereunder.
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it which is clearly indicated (orally or in
writing) to be confidential information, confidential from anyone other than
persons employed or retained by such Bank who are or are expected to become
engaged in evaluating, approving, structuring or administering the Loans;
provided that nothing herein shall prevent any Bank from disclosing such
information (i) to any other Bank, (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Bank, (iv) which has been publicly
disclosed (unless a person responsible for administering this Agreement on
behalf of such Bank has actual knowledge that such disclosure is made by a
Person in violation of a confidentiality agreement with or confidentiality
obligation to the Borrower or any Subsidiary), (v) to the extent reasonably
required in connection with any litigation to which the Agent, any Bank or their
respective Affiliates may be a party, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to such Bank's legal
counsel and independent auditors and (viii) to any actual or proposed
Participant, Assignee or other Transferee of all or part of its rights hereunder
which has agreed in writing to be bound by the provisions of this Section 9.09;
provided that should disclosure of any such confidential information be required
by virtue of clause (ii) of the immediately preceding sentence, any relevant
Bank shall promptly notify the Borrower of same so as to allow the Borrower to
seek a protective order or to take any other appropriate action, unless such
Bank is prohibited by law or any such order from giving such notice; provided,
further, that, no Bank shall be required to delay compliance with any directive
to disclose any such information so as to allow the Borrower to effect any such
action.
SECTION 9.10. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided
that, subject to Section 9.08, the disposition of the Note or Notes held by that
Bank shall at all times be within its exclusive control.
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SECTION 9.11. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each
Note shall be construed in accordance with and governed by the
law of the State of Georgia.
SECTION 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or collected
pursuant to this Agreement, the Notes or the other Loan Documents and deemed to
be interest under applicable law (collectively, "Interest") exceed the highest
rate of interest allowed by applicable law (the "Maximum Rate"), and in the
event any such payment is inadvertently received by any Bank, then the excess
sum (the "Excess") shall be credited as a payment of principal, unless the
Borrower shall notify such Bank in writing that it elects to have the Excess
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Banks not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
applicable law. The right to accelerate maturity of any of the Loans does not
include the right to accelerate any interest that has not otherwise accrued on
the date of such acceleration, and the Agent and the Banks do not intend to
collect any unearned interest in the event of any such acceleration. All monies
paid to the Agent or the Banks hereunder or under any of the Notes or the other
Loan Documents, whether at maturity or by prepayment, shall be subject to rebate
of unearned interest as and to the extent required by applicable law. By the
execution of this Agreement, the Borrower covenants, to the fullest extent
permitted by law, that (i) the credit or return of any Excess shall constitute
the acceptance by the
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Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable , against the Agent or any Bank, based in whole
or in part upon contracting for charging or receiving any Interest in excess of
the Maximum Rate, other than the crediting of the Excess as set forth herein.
For the purpose of determining whether or not any Excess has been contracted
for, charged or received by the Agent or any Bank, all interest at any time
contracted for, charged or received from the Borrower in connection with this
Agreement, the Notes or any of the other Loan Documents shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Commitments. The Borrower, the Agent
and each Bank shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment as an expense, fee or premium rather than
as Interest and (ii) exclude voluntary prepayments and the effects thereof. The
provisions of this Section shall be deemed to be incorporated into each Note and
each of the other Loan Documents (whether or not any provision of this Section
is referred to therein). All such Loan Documents and communications relating to
any Interest owed by the Borrower and all figures set forth therein shall, for
the sole purpose of computing the extent of obligations hereunder and under the
Notes and the other Loan Documents be automatically recomputed by the Borrower,
and by any court considering the same, to give effect to the adjustments or
credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.
The Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Loan Documents, or
any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (d) agrees that service of
process may be made upon it in the manner prescribed in Section
76
83
9.01 for the giving of notice to the Borrower. Nothing herein contained,
however, shall prevent the Agent from bringing any action or exercising any
rights against any security and against the Borrower personally, and against any
assets of the Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks
hereby severally (and not jointly) represents to the Borrower that no part of
the funds to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section, the
terms "employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
[Signatures are contained on the following pages.]
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84
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
FLOWERS INDUSTRIES, INC. (SEAL)
By: /s/ ▇. ▇. ▇▇▇▇, III
---------------------------------------
Title: Senior Vice President and
Chief Financial Officer
Flowers Industries, Inc.
▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ South,
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇, III
Telecopier number: 912-225-3808
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENTS WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
$110,000,000
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
Lending Office
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$100,000,000 THE BANK OF NOVA SCOTIA, as
Documentation Agent and as
a Bank (SEAL)
By: /s/ ▇. ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
Lending Office
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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NATIONSBANK, N.A., as Syndications
Agent and as a Bank (SEAL)
$100,000,000 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
Lending Office
NationsBank, N.A.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, ▇▇.
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$75,000,000 FIRST UNION NATIONAL BANK (SEAL)
By: /s/ /▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
Lending Office
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$45,000,000 THE FIRST NATIONAL BANK
OF CHICAGO (SEAL)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Authorized Agent
Lending Office
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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$45,000,000 SUNTRUST BANK, ATLANTA (SEAL)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Title: Vice President
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Assistant Vice President
Lending Office
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
$25,000,000 COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH (SEAL)
By: /s/
---------------------------------------
Title:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
Lending Office
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
---------------------
TOTAL COMMITMENTS:
$500,000,000
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EXHIBIT A-1
AMENDED AND RESTATED SYNDICATED LOAN NOTE
Atlanta, Georgia
January 30, 1998
For value received, FLOWERS INDUSTRIES, INC., a Georgia
corporation (the "Borrower"), promises to pay to the order of
__________________________________________________, a ____________________ (the
"Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($ ), or such lesser
amount as shall equal the unpaid principal amount of each Syndicated Loan made
by the Bank to the Borrower pursuant to the Credit Agreement referred to below,
on the dates and in the amounts provided in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of this Amended and
Restated Syndicated Loan Note on the dates and at the rate or rates provided for
in the Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such
other address as may be specified from time to time pursuant to the Credit
Agreement.
All Syndicated Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Amended and Restated Syndicated Loan Note is one of the
Syndicated Loan Notes referred to in the Amended and Restated Credit Agreement
dated as of January 30, 1998 among the Borrower, the Banks listed on the
signature pages thereof, Wachovia Bank, N.A., as Agent, The Bank of Nova Scotia,
as Documentation Agent, and NationsBank, N.A., as Syndications Agent (as the
same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof, as well as the obligation of the Borrower to pay
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88
all costs of collection, including reasonable attorneys fees, in the event this
Amended and Restated Syndicated Loan Note is collected by law or through an
attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Amended and
Restated Syndicated Loan Note to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
FLOWERS INDUSTRIES, INC. (SEAL)
By:
---------------------------------------
Title:
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Amended and Restated Syndicated Loan Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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EXHIBIT A-2
AMENDED AND RESTATED MONEY MARKET LOAN NOTE
As of January 30, 1998
For value received, FLOWERS INDUSTRIES, INC., a Georgia
corporation (the "Borrower"), promises to pay to the order of __________, a
_______________ (the "Bank"), for the account of its Lending Office, the
principal sum of FIVE HUNDRED MILLION AND NO/100 DOLLARS ($500,000,000), or such
lesser amount as shall equal the unpaid principal amount of each Money Market
Loan made by the Bank to the Borrower pursuant to the Credit Agreement referred
to below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this Amended
and Restated Money Market Loan Note on the dates and at the rate or rates
provided for in the Credit Agreement referred to below. Interest on any overdue
principal of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate, as provided for
in the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be specified from time
to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Amended and Restated Money Market Loan Note is one of the
Money Market Loan Notes referred to in the Amended and Restated Credit Agreement
dated as of January 30, 1998 among the Borrower, the Banks listed on the
signature pages thereof, Wachovia Bank, N.A., as Agent, The Bank of Nova Scotia,
as Documentation Agent, and NationsBank, N.A., as Syndications Agent (as the
same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof, as well as the obligation of the Borrower to pay all costs of
collection, including reasonable attorneys fees, in the event this Amended and
Restated Money Market Loan Note is collected by law or through an attorney at
law.
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The Borrower hereby waives presentment, demand, protest, notice
of demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
.
IN WITNESS WHEREOF, the Borrower has caused this Amended and
Restated Money Market Loan Note to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
FLOWERS INDUSTRIES, INC. (SEAL)
By:
---------------------------------------
Title:
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Amended and Restated Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in
Section 3.01 of the Credit
Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndications Group
Dear Sirs:
I am Assistant General Counsel of Flowers Industries, Inc., a
Georgia corporation (the "Borrower") in connection with the Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of January 30, 1998, among
the Borrower, the banks listed on the signature pages thereof, Wachovia Bank,
N.A., as Agent, The Bank of Nova Scotia, as Documentation Agent, and
NationsBank, N.A., as Syndications Agent. Terms defined in the Credit Agreement
are used herein as therein defined.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion. I have assumed for purposes of my opinions set forth
below that the execution and delivery of the Credit Agreement by each Bank and
by the Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Georgia and has all corporate
powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement and the Notes (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or
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official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument which to our knowledge is binding upon the Borrower and (v)
except as provided in the Credit Agreement, do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms, and the Notes constitute valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity.
4. There is no action, suit or proceeding pending, or
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, or which in any manner questions the validity or
enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. Neither the Borrower nor any of its Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
The opinion contained in Paragraph 2(iv) hereof is qualified
to the effect that no opinion is given thereunder as to Regulations G, T, U or X
of the Board of Governors of the Federal Reserve System.
I am qualified to practice in the State of Georgia and do not
purport to be experts on any laws other than the laws of the United States and
the State of Georgia and this opinion is rendered
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95
only with respect to such laws. I have made no independent investigation of the
laws of any other jurisdiction.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee, Participant
or other Transferee under the Credit Agreement, and ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
without our prior written consent.
Very truly yours,
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96
EXHIBIT C
OPINION OF
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in
Section 3.01 of the Credit
Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndications Group
Dear Sirs:
We have participated in the preparation of the Amended and
Restated Credit Agreement (the "Credit Agreement") dated as of January 30, 1998,
among Flowers Industries, Inc., a Georgia corporation (the "Borrower"), the
banks listed on the signature pages thereof (the "Banks"), Wachovia Bank, N.A.,
as Agent (the "Agent"), The Bank of Nova Scotia, as Documentation Agent, and
NationsBank, N.A., as Syndications Agent, and have acted as special counsel for
the Agent for the purpose of rendering this opinion pursuant to Section 3.01(d)
of the Credit Agreement. Terms defined in the Credit Agreement are used herein
as therein defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and each of the
Notes by or on behalf of the Borrower, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and each
Note constitutes valid and binding obligations of the Borrower, in each case
enforceable in
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97
accordance with its terms except as: (i) the enforceability thereof may be
affected by bankruptcy, insolvency, reorganization, fraudulent conveyance,
voidable preference, moratorium or similar laws applicable to creditors' rights
or the collection of debtors' obligations generally; (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability; and (iii) the enforceability of certain of
the remedial, waiver and other provisions of the Credit Agreement and the Notes
may be further limited by the laws of the State of Georgia; provided that such
additional laws do not, in our opinion, substantially interfere with the
practical realization of the benefits expressed in the Credit Agreement and the
Notes, except for the economic consequences of any procedural delay which may
result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect
(if any) of any law of any jurisdiction except the State of Georgia. We express
no opinion as to the effect of the compliance or noncompliance of the Agent or
any of the Banks with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
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98
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated ___________ __,____
Reference is made to the Amended and Restated Credit Agreement
dated as of January 30, 1998 (together with all amendments and modifications
thereto, the "Credit Agreement") among Flowers Industries, Inc., a Georgia
corporation (the "Borrower"), the Banks (as defined in the Credit Agreement),
Wachovia Bank, N.A., as Agent (the "Agent"), The Bank of Nova Scotia, as
Documentation Agent, and NationsBank, N.A., as Syndications Agent. Terms defined
in the Credit Agreement are used herein with the same meaning.
_______________________________________ (the "Assignor") and
___________________________________________________ (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and assumes
from the Assignor, a ___% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ___% interest (which on the Effective
Date hereof is $________) in the Assignor's Commitment and a ______ interest
(which on the Effective Date hereof is $ ________) in the Syndicated Loans [and
Money Market Loans] owing to the Assignor and a ___% interest in the Note[s]
held by the Assignor (which on the Effective Date hereof is $________).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated Loans
[and Money Market Loans] owing to it (without giving effect to assignments
thereof which have not yet become effective) is $ ________; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iii) attaches the
Note[s] referred to in paragraph 1 above and requests that the Agent exchange
such Note[s] for [a new Syndicated Loan Note dated
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99
_____________, ______ in the principal amount of $__________ payable to the
order of the Assignee and a new Money Market Loan Note dated ___________, ____
in the principal amount of $______________ payable to the order of the Assignee]
[new Notes as follows: a (i) Syndicated Loan Note dated __________, _____ in the
principal amount of $___________ payable to the order of the Assignor (ii)
Syndicated Loan Note dated __________, ____ in the principal amount of
$_________ payable to the order of the Assignee, and (iii) and a new Money
Market Loan Note dated ___________, ____ in the principal amount of
$______________ payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; (vi) specifies as
its Lending Office (and address for notices) the office set forth beneath its
name on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are within
its corporate powers and have been duly authorized by all necessary corporate
action, (viii) makes the representation and warranty contained in Section 9.18
of the Credit Agreement[, and (ix) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Notes or such other documents as are necessary to indicate that all such
payments are subject to such taxes at a rate reduced by an applicable tax
treaty].
4. The Effective Date for this Assignment and Acceptance shall
be _____________, ____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT],
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from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent rights and obligations have been transferred
to it by this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this Assignment and
Acceptance, relinquish its rights (other than under Sections 8.03, 9.03 and 9.04
of the Credit Agreement) and be released from its obligations under the Credit
Agreement.
6. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after
the Effective Date, the Agent shall make all payments in respect of the interest
assigned hereby to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to such acceptance by the
Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
----------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
----------------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Agent
By:
----------------------------------------
Title:
FLOWERS INDUSTRIES, INC.
IF REQUIRED BY THE CREDIT AGREEMENT
By:
----------------------------------------
Title:
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EXHIBIT E
NOTICE OF BORROWING
__________________, ____
Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: Amended and Restated Credit Agreement (as amended and modified
from time to time, the "Credit Agreement") dated as of January
30, 1998, by and among Flowers Industries, Inc., the Banks
from time to time parties thereto, Wachovia Bank, as Agent,
The Bank of Nova Scotia, as Documentation Agent, and
NationsBank, N.A., as Syndications Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] in the aggregate principal amount of $___________ to be made on
____________, ____, and for interest to accrue thereon at the rate established
by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration
of the Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months] [30 days].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this _____day of ______, _________.
FLOWERS INDUSTRIES, INC.
By:
----------------------------------------
Title:
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102
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement
dated as of January 30, 1998 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among Flowers Industries, Inc., the Banks
from time to time parties thereto, Wachovia Bank, N.A., as Agent, The Bank of
Nova Scotia, as Documentation Agent, and NationsBank, N.A., as Syndications
Agent. Capitalized terms used herein shall have the meanings ascribed thereto in
the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
___________________, the duly authorized ___________________________ of Flowers
Industries, Inc., hereby (A) certifies to the Agent and the Banks that the
information contained in the Compliance Check List attached hereto is true,
accurate and complete as of __________, ____, (B) certifies to the Agent and the
Banks that no Default is in existence on and as of the date hereof and (C)
restates and reaffirms that the representations and warranties contained in
Article IV of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
FLOWERS INDUSTRIES, INC.
By:
----------------------------------------
Title:
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
1. Loans and Advances (Section 5.14)
Neither the Borrower nor any of its Material Subsidiaries shall make
loans or advances to any Person except as permitted by Section 5.16 and
except: (i) loans or advances to employees not exceeding $10,000,000 in
the aggregate principal amount outstanding at any time, in each case
made in the ordinary course of business and consistent with practices
existing on the Closing Date; (ii) deposits required by government
agencies or public utilities; (iii) loans or advances to and among
Borrower and its Wholly Owned Subsidiaries; and (iv) other loans or
advances, to Persons other than the Unrestricted Subsidiaries (loans and
advances to Unrestricted Subsidiaries not being permitted), in an
aggregate amount outstanding which, together with Investments permitted
by clause (vi) of Section 5.15, do not exceed 15% of Consolidated Total
Assets as of the last day of the immediately preceding Fiscal Quarter;
provided that after giving effect to the making of any loans, advances
or deposits permitted by this Section, no Default shall be in existence
or be created thereby.
(a) loans and advances to employees $__________
(b) lesser of (a) and $10,000,000 $__________
(c) other loans and advances not
permitted by clauses (i) through (iii),
inclusive(1) $__________
(d) sum of (c) and line (a) of paragraph 2
below $__________
(e) Consolidated Total Assets $__________
(f) 15% of (e) $__________
Limitation (d) may not exceed (f)
2. Investments (Section 5.15)
Neither the Borrower nor any of its Restricted Subsidiaries
shall make Investments in any Person except as permitted by
------------------
(1) Loans and advances to the Unrestricted Subsidiaries are not permitted and
may not be included in this category.
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Section 5.14 and except Investments in (i) direct obligations of the
United States Government maturing within one year, (ii) certificates of
deposit issued by a commercial bank whose credit is satisfactory to the
Agent, (iii) commercial paper rated A1 or the equivalent thereof by
Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. or P1
or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in
either case maturing within 6 months after the date of acquisition; (iv)
tender bonds the payment of the principal of and interest on which is
fully supported by a letter of credit issued by a United States bank
whose long-term certificates of deposit are rated at least AA or the
equivalent thereof by Standard & Poor's Corporation and Aa or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.; (v) Investments
by the Borrower or any Restricted Subsidiary in the stock (or other
ownership interests) or assets of any Person in the food or beverage
business or any related line of business and/or (vi) other Investments
in an aggregate amount outstanding which, together with loans and
advances permitted by clause (iv) of Section 5.14, do not exceed 15% of
Consolidated Total Assets as of the last day of the immediately
preceding Fiscal Quarter, and which, as to Investments in Keebler,
constitute Permitted Keebler Investments; provided, however, immediately
after giving effect to the making of any Investment, no Default shall
have occurred and be continuing.
(a) Investments not permitted by clauses
(i) through (v), inclusive $__________
(b) sum of (a) and line (c) of paragraph 1
above $__________
(c) Consolidated Total Assets $__________
(d) 15% of (c) $__________
Limitation (b) may not exceed (d)
3. Negative Pledge (Section 5.16)
(a) Amount of Indebtedness secured by Liens
permitted by Sections 5.1(a)
through 5.16(g), inclusive, and
(l) and (n) Schedule - 1 $__________
(b) Amount of Debt secured by Liens not
permitted by Section (q) Schedule - 1 $__________
(c) Aggregate amount of Indebtedness of
Restricted Subsidiaries permitted
by Section 5.20(iv) $__________
(d) Sum of (b) and (c) $__________
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105
(e) Consolidated Net Worth $__________
(f) 20% of (e) $__________
Limitation (d) may not exceed (f)
3. Fixed Charge Coverage Ratio (Section 5.17)
At the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending December 13, 1997, the ratio of EBILT to Consolidated Fixed
Charges shall at all times be greater than 2.0 to 1.0.
(a) Consolidated Net Income - Schedule 2 $__________
(b) Consolidated Interest
Expense - Schedule 2 $__________
(c) payments on operating leases
and rental agreements $__________
(d) taxes - Schedule 2 $__________
(e) sum of (a) plus (b) plus (c)
plus (d) $__________
(f) sum of (b) plus (c) $__________
Ratio of (e) to (f)
Requirement >2.0 to 1.0
4. Leverage Ratio (Section 5.18)
The Leverage Ratio shall at all times be less than:
(A) provided that the condition set forth in Section 3.01(i)
regarding the Keebler Acquisition is satisfied within the time permitted
thereby, and for so long as Keebler is a Subsidiary, (i) from the
Closing Date through whichever is the earlier of (x) January 2, 1999 or
(y) the date of the Next Public Offering, 0.75 to 1.00; and (ii)
thereafter, 0.65 to 1.0; and
(B) in all other circumstances, 0.65 to 1.0.
(a) Consolidated Total Debt Schedule - 4 $__________
(b) Consolidated Net Worth $__________
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
(c) Sum of (a) plus (b) $__________
Ratio of (a) to (c) ___________
Requirement [< 0.75 to 1.00]
[< 0.65 to 1.00]
5. Minimum Consolidated Net Worth (Section 5.19)
Consolidated Net Worth will at no time be less than:
(A) prior to the date of the Next Public Offering, the greater
of (i) 85% of Consolidated Net Worth as of the end of the Fiscal Quarter
ending September 20, 1997, plus the sum of (x) 50% of the cumulative Net
Proceeds of Capital Stock received during any period after the Closing
Date, plus (y) 50% of any equity resulting from a conversion of
Indebtedness during any period after the Closing Date, less (z) any
amount of equity repurchased during any period after the Closing Date,
calculated quarterly at the end of each Fiscal Quarter; and (ii)
$200,000,000; and
(B) from and after the date of the Next Public Offering, the
greater of (i) 85% of Consolidated Net Worth as of the end of the Fiscal
Quarter most recently ended, adjusted to give effect on a proforma basis
to the Next Public Offering, plus the sum of (x) 50% of the cumulative
Net Proceeds of Capital Stock received during any period after the Next
Public Offering, plus (y) 50% of any equity resulting from a conversion
of Indebtedness during any period after the Next Public Offering, less
(z) any amount of equity repurchased during any period after the Next
Public Offering, calculated quarterly at the end of each Fiscal Quarter;
and (ii) $450,000,000.
(a) cumulative Net Capital Proceeds since
[Closing Date][Next Public Offering] $__________
(b) 50% of (a) $__________
(c) equity resulting from Indebtedness
conversion since [Closing Date][Next
Public Offering] $__________
(d) amount of equity repurchased
since [Closing Date][Next Public
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
Offering] $__________
(e) (c) less (d) $__________
(f) 50% of (e) $__________
(g) Consolidated Net Worth as of [Fiscal Quarter
ended September 20, 1997][on the date of the
Fiscal Quarter most recently ended, adjusted
to give proforma effect to the Next Public
Offering] $__________
(h) 85% of (g) $__________
(i) sum of (b), plus (f), plus (h) $__________
(j) Consolidated Net Worth $__________
Limitation (j) may not exceed lesser of (i) and [$200,000,000]
[$450,000,000]
6. Adjusted Leverage Ratio (Section 5.21)
The ratio of Adjusted Consolidated Total Debt to Adjusted Total
Capitalization shall at all times be less than:
(A) provided that the condition set forth in Section 3.01(i)
regarding the Keebler Acquisition is satisfied within the time permitted
thereby, and for so long as Keebler is a Subsidiary, (i) from the
Closing Date through whichever is the earlier of (x) January 2, 1999 or
(y) the date of the Next Public Offering, 0.75 to 1.00; and (ii)
thereafter, 0.65 to 1.0; and
(B) in all other circumstances, 0.65 to 1.0.
(a) Adjusted Consolidated Total Debt
Schedule - 4 $__________
(b) Adjusted Consolidated Net Worth $__________
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
(c) Sum of (a) plus (b) $__________
Ratio of (a) to (c) __________
Requirement [< 0.75 to 1.00]
[< 0.65 to 1.00]
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
Schedule - 1
(a) Liens Securing Debt In The Principal
Amount of $50,000 or More which are
Not Permitted by Sections 5.1(a)
through 5.16(g), inclusive, and
(l), (n) and (p)
Relevant Provision
of Section 5.16
Description of Lien Amount of Debt Secured Permitting Same
------------------- ---------------------- ---------------
1. ________________ $_____________________ _______________
2. ________________ $_____________________ _______________
3. ________________ $_____________________ _______________
4. ________________ $_____________________ _______________
5. ________________ $_____________________ _______________
6. ________________ $_____________________ _______________
7. ________________ $_____________________ _______________
8. ________________ $_____________________ _______________
9. ________________ $_____________________ _______________
(b) Aggregate Amount of Other Liens Securing
Debt which are Not Permitted by Sections
5.1(a) through 5.16(g), inclusive
and (l), (n) and (p) $_____________
(c) Aggregate Amount of All Debt Secured
by Liens $_____________
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
Schedule - 2
Fixed Charge Coverage
Consolidated Net Income for:
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
Total $____________
Consolidated Interest Expense for:
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
Total $____________
Operating Leases and Rentals for:
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
Taxes for:
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
_____ quarter _____ $____________
Total $____________
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
Schedule - 4
Part I. Consolidated Total Debt
INTEREST
RATE MATURITY TOTAL
-------- -------- -----
(a) Unsecured Borrowed Money
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Unsecured Borrowed Money $__________
(b) Deferred Purchase Price
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Deferred Purchase Price $__________
(c) Capitalized Leases)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Capitalized Leases $__________
(d) Secured Borrowed Money
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Secured Borrowed Money $__________
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
(e) Letters of Credit and Similar Instruments(2)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Letters of Credit and Similar Instruments $__________
(f) Swaps
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Swaps $__________
(g) Guaranties
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Guaranties $__________
(h) Convertible Redeemable Capital Stock(3)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Convertible Redeemable Capital Stock $__________
(i) Convertible Subordinated Debt(2)
------------------
(2) Include only if have maturities of greater than 1 year
(3) Include only if current market value of an equity security into which
it is convertible is greater than the conversion price for such
security.
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Convertible Subordinated Debt $__________
CONSOLIDATED TOTAL DEBT-sum of (a) plus (b)
plus (c) plus (d) plus (e) plus (f) plus (g)
less (h) less (i) $__________
Part II. Adjusted Consolidated Total Debt
INTEREST
RATE MATURITY TOTAL
-------- -------- -----
(a) Unsecured Borrowed Money(4)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Unsecured Borrowed Money $__________
(b) Deferred Purchase Price
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Deferred Purchase Price $__________
(c) Capitalized Leases)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
--------------
(4) Items (a) through (i) in this Part II shall include only Indebtedness
of Keebler
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
Total Capitalized Leases $__________
(d) Secured Borrowed Money
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Secured Borrowed Money $__________
(e) Letters of Credit and Similar Instruments(5)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Letters of Credit and Similar Instruments $__________
(f) Swaps
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Swaps $__________
(g) Guaranties
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Guaranties $__________
(h) Convertible Redeemable Capital Stock(6)
---------------
(5) Include only if have maturities of greater than 1 year
(6) Include only if current market value of an equity security into which
it is convertible is greater than the conversion price for such
security.
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COMPLIANCE CHECK LIST
Flowers Industries, Inc.
__________________________
_______________, ____
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Convertible Redeemable Capital Stock $__________
(i) Convertible Subordinated Debt(2)
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
____________________________________________________ $__________
Total Convertible Subordinated Debt $__________
ADJUSTED CONSOLIDATED TOTAL DEBT-sum of: (I)
Consolidated Total Debt from Part I; less (II) from
Part II, sum of (a), plus (b), plus (c), plus (d),
plus (e), plus (f), plus (g), less (h), less (i) $__________
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EXHIBIT G
FLOWERS INDUSTRIES, INC.
CLOSING CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of January 30, 1998, among Flowers Industries,
Inc., the Banks listed therein, Wachovia Bank , N.A., as Agent, The Bank of Nova
Scotia, as Documentation Agent, and NationsBank, N.A., as Syndications Agent.
Capitalized terms used herein have the meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
__________________, the duly authorized ____________________ of Flowers
Industries, Inc. hereby certifies to the Agent and the Banks that (i) no Default
has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof.
Certified as of this January 30, 1998.
By:
--------------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
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EXHIBIT H
FLOWERS INDUSTRIES, INC.
SECRETARY'S CERTIFICATE
The undersigned, ___________________________________, ___________________,
Secretary of Flowers Industries, Inc., a Georgia corporation (the "Borrower"),
hereby certifies that he has been duly elected, qualified and is acting in such
capacity and that, as such, [s]he is familiar with the facts herein certified
and is duly authorized to certify the same, and hereby further certifies, in
connection with the Amended and Restated Credit Agreement dated as of January
30, 1998 among the Borrower, Wachovia Bank, N.A. as Agent and as a Bank, The
Bank of Nova Scotia, as Documentation Agent, and NationsBank, N.A., as
Syndications Agent, and certain other Banks listed on the signature pages
thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of Georgia, the
Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on
______________ __, 1998 approving, and authorizing the execution and delivery
of, the Credit Agreement, the Notes and the other Loan Documents (as such terms
are defined in the Credit Agreement) to which the Borrower is a party. Such
resolutions have not been repealed or amended and are in full force and effect,
and no other resolutions or consents have been adopted by the Board of Directors
of the Borrower in connection therewith.
4. _________________________, who is ____________________ of the
Borrower signed the Credit Agreement, the Notes and the other Loan Documents to
which the Borrower is a party, was duly elected, qualified and acting as such at
the time he signed the Credit Agreement, the Notes and other Loan Documents to
which the Borrower is a party, and his signature appearing on the Credit
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party is his genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as of
January 30, 1998.
---------------------------------------
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EXHIBIT I
MONEY MARKET QUOTE REQUEST
Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
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Attention: Syndications Group
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with
Section 2.03 of the Amended and Restated Credit Agreement (as amended or
modified from time to time, the "Credit Agreement") dated as of January 30,
1998, among Flowers Industries, Inc., the Banks from time to time parties
thereto, Wachovia Bank, N.A., as Agent, The Bank of Nova Scotia, as
Documentation Agent, and NationsBank, N.A., as Syndications Agent. Terms defined
in the Credit Agreement are used herein as defined therein.
The Borrower hereby requests that the Agent obtain quotes for a Money
Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
______________, _____ (the "Money Market Borrowing
Date").(1)*
2. The aggregate amount of the Money Market Borrowing shall be
$____________.(2)
3. The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be _____ days.(3)
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Very truly yours,
FLOWERS INDUSTRIES, INC.
By:
--------------------------------
Title:
--------------------------------
(1) The date must be a Euro-Dollar Business Day.
(2) The amount of the Money Market Borrowing is subject to Section 2.03(a)
and (b).
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii). The
Borrower may request that up to 2 different Stated Maturity Dates be
applicable to any Money Market Borrowing, provided that (i) each such
Stated Maturity Date shall be deemed to be a separate Money Market Quote
Request and (ii) the Borrower shall specify the amounts of such Money
Market Borrowing to be subject to each such different Stated Maturity
Date.
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EXHIBIT J
MONEY MARKET QUOTE
Wachovia Bank, N.A.,
as Agent
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Attention: Syndications Group
Re: Money Market Quote to Flowers Industries, Inc.
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Amended and Restated Credit Agreement (as amended or modified
from time to time, the "Credit Agreement") dated as of January 30, 1998, among
Flowers Industries, Inc. (the "Borrower"), the Banks from time to time parties
thereto, Wachovia Bank, N.A., as Agent, The Bank of Nova Scotia, as
Documentation Agent, and NationsBank, N.A., as Syndications Agent. Terms defined
in the Credit Agreement are used herein as defined therein.
In response to the Borrower's Money Market Quote Request dated
____________, ____, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Money Market Borrowing:(1)*
4. We hereby offer to make Money Market Loan(s) in the following
maximum principal amounts for the following Interest Periods and at the
following rates:
Maximum Stated
Principal Maturity
Amount(2) Date (3) Rate Per Annum(4)
--------- -------- -----------------
------------------------
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* All numbered footnotes appear on the last page of this Exhibit I
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We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for which
any offer(s) [is] [are] accepted, in whole or in part (subject to the last
sentence of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:
------------------------
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Authorized
Officer
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(1) As specified in the related Money Market Quote Request.
(2) The principal amount bid for each Stated Maturity Date may not exceed
the principal amount requested. Money Market Quotes must be made for at
least $10,000,000 or a larger integral multiple of $5,000,000.
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii).
(4) Subject to Section 2.03(c)(ii)(C).
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SCHEDULE 4.08
[UPDATED SCHEDULE 4.08, INCLUDING KEEBLER, TO BE PROVIDED BY
BORROWER--ALL MATERIAL SUBSIDIARIES TO BE SHOWN AS SUCH]
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