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EXHIBIT 10.19
FORM OF
SECOND AMENDMENT AND CONSENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT AND CONSENT, dated as of November 17, 1997 (this
"Amendatory Agreement") to the Existing Credit Agreement (as defined below) is
among KEEBLER CORPORATION (formerly known as Keebler Holding Corp.), a Delaware
corporation (the "Borrower"), the Lenders (as defined below) signatories hereto
and THE BANK OF NOVA SCOTIA, as administrative agent (the "Administrative
Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions from time to time
parties thereto (the "Lenders"), The First National Bank of Chicago, Bank of
Montreal, SunTrust Bank, Atlanta and Nationsbank, N.A. (South) (collectively
referred to as the "Co-Agents") and the Administrative Agent are parties to the
Second Amended and Restated Credit Agreement, dated as of April 8, 1997 (as
further amended, supplemented, amended and restated or otherwise modified to
the date hereof, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend certain terms
contained in the Existing Credit Agreement to, among other things, (i) allow
the Borrower to pay a cash dividend to Holdings in excess of the amount
otherwise permitted by Section 7.2.6 of the Existing Credit Agreement, (ii)
permit Holdings to merge with and into the Borrower (with the Borrower
continuing as the surviving corporation of such merger), (iii) permit the
Borrower to repay in cash the outstanding principal amount of the Seller Note
(including as such principal amount has increased since the Effective Date in
accordance with the terms of the Seller Note) and (without duplication) all
accrued and unpaid interest thereon and (iv) release the stock of the Borrower
currently held in pledge by the Administrative Agent under the Holdings Pledge
Agreement; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects and grant certain consents as provided below (the Existing Credit
Agreement, as so amended or otherwise modified by this Amendatory Agreement,
being referred to as the "Credit Agreement");
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NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural
form thereof):
"Administrative Agent" is defined in the preamble.
"Amendatory Agreement" is defined in the preamble.
"Amendment No. 2" is defined in Subpart 3.1.
"Borrower" is defined in the preamble.
"Co-Agents" is defined in the first recital.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Lenders" is defined in the first recital.
"Second Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided in
the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT;
CONSENT TO CERTAIN EVENTS
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, the Existing Credit Agreement is hereby amended, and the
Lenders hereby consent to the Borrower consummating certain events, in each
case in accordance with this Part; except as so
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amended or otherwise modified by the consents granted below, the Existing
Credit Agreement and the Loan Documents shall continue in full force and effect
in accordance with their terms.
SUBPART 2.1. Amendments to Article I. Article I of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.1.1 and 2.1.2.
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"Amendment No. 2" means the Second Amendment and Consent, dated as
of November 17, 1997, to this Agreement among the Borrower, the Lenders
parties thereto and the Administrative Agent.
"Assumption Agreement (1997)" means the assumption agreement, dated
as of November 17, 1997, among Holdings and the Borrower and acknowledged
by the Administrative Agent, delivered pursuant to the terms of Amendment
No. 2.
"Holdings Merger" means the merger of Holdings with and into the
Borrower, with the Borrower continuing as the surviving corporation
incorporated under the laws of the State of Delaware.
"Holdings Transaction" means, collectively,
(i) the payment of a cash dividend by the Borrower to Holdings
in an amount not in excess of $27,192,000;
(ii) the consummation of the Holdings Merger and the execution
and delivery of the Assumption Agreement (1997) by the parties
thereto (including the assumption of the obligation by the Borrower
to become the maker of the Seller Note); and
(iii) the repayment by the Borrower in cash of the entire
outstanding principal amount of the Seller Note (including as such
principal amount has increased since the Effective Date in
accordance with its terms), and the payment (without duplication)
of all accrued and unpaid interest on the Seller Note.
"Second Amendment Effective Date" is defined in Subpart 3.1 of
Amendment No. 2.
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SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is further
amended as follows:
(a) The definition of "Change in Control" is hereby amended in its
entirety to read as follows:
"Change in Control" means
(a) at any time prior to any Initial Public Offering,
(i) the failure of the Permitted ARTAL Investor Group to own
free and clear of all Liens at least 35% of the outstanding voting
shares of Capital Stock of the Borrower on a fully diluted basis,
less up to 3.75% of such voting Capital Stock issued or issuable
pursuant to the Sunshine Warrants; or
(ii) the failure of Flowers to own, directly or indirectly
through wholly-owned Subsidiaries, free and clear of all Liens, at
least 35% of the outstanding voting shares of Capital Stock of the
Borrower on a fully diluted basis, less up to 3.75% of such voting
Capital Stock issued or issuable pursuant to the Sunshine Warrants;
or
(b) at any time after an Initial Public Offering,
(i) the failure of the Permitted ARTAL Investor Group to own,
directly or indirectly through any wholly-owned Subsidiaries, free
and clear of all Liens, at least 20% of the outstanding voting
shares of Capital Stock of the Borrower on a fully diluted basis;
(ii) the failure of Flowers to own, directly or indirectly
through any wholly-owned Subsidiaries, free and clear of all Liens,
at least 20% of the outstanding voting shares of Capital Stock of
the Borrower on a fully diluted basis;
(iii) the failure of the Permitted ARTAL Investor Group and
Flowers in the aggregate to own, directly or indirectly through any
wholly-owned Subsidiaries, free and clear of all Liens, at least 51%
of the outstanding voting shares of Capital Stock of the Borrower on
a fully diluted basis;
(iv) any "person" or "group" (as such terms are used in Rule
13d-5 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Sections 13(d) and 14(d) of the Exchange Act) of
persons (other than the Permitted ARTAL Investor Group or Flowers or,
in either case, any of their wholly-owned Subsidiaries) becomes,
directly or indirectly, in a single transaction
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or in a related series of transactions by way of merger,
consolidation, or other business combination or otherwise, the
"beneficial owner" (as such term is used in Rule 13d-3 of the
Exchange Act) of more than 20% of the total voting power in the
aggregate of all classes of Capital Stock of the Borrower then
outstanding entitled to vote generally in elections of directors of
the Borrower; or
(v) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose
election to such Board or whose nomination for election by the
stockholders of the Borrower was approved by ARTAL or Flowers or a
vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Borrower then in office.
(b) The definition of "Sunshine Warrants" is hereby amended in
its entirety to read as follows:
"Sunshine Warrants" means (prior to the Second Amendment
Effective Date) warrants to acquire up to 7.5% of the Capital Stock
of Holdings issued in connection with the Sunshine Acquisition and
(on and subsequent to the Second Amendment Effective Date) warrants
to acquire up to 7.5% of the Capital Stock of the Borrower issued in
connection with the Holdings Transaction.
SUBPART 2.2. Additional Amendments to Existing Credit Agreement. The
Existing Credit Agreement is hereby further amended mutatis mutandis to the
extent necessary to permit the Holdings Transaction. In furtherance of the
foregoing, the following Sections of the Existing Credit Agreement are hereby
amended as of the Second Amendment Effective Date as follows:
(a) Section 7.2.2 is hereby amended by deleting the word "and" at
the end of clause (i), adding the word "and" at the end of clause (j) and
inserting a new clause (k), to read in its entirety as follows:
"(k) from (and including) the Second Amendment Effective Date
(immediately following the consummation of the Holdings Merger) to
(and including) fifteen Business Days following the Second
Amendment Effective Date, unsecured Subordinated Debt of the
Borrower in a principal amount not to exceed $32,500,000, evidenced
by the Seller Note;
(b) Section 7.2.6 (including clauses (a), (b), (e) and (f) thereof)
is hereby amended (but only to the extent not prohibited in whole or in
part by the terms of any Subordinated Debt) as necessary to permit the
payment of a cash dividend by the Borrower to Holdings in an amount of up
to $27,192,000 and the prepayment of the
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outstanding principal amount of the Seller Note, and accrued interest
thereon, in each case in connection with the consummation of the Holdings
Transaction, and (subject to the other terms of clause (g)(i) of Section
7.2.6 of the Existing Credit Agreement) it is acknowledged and agreed by
the Lenders and the Borrower that the amount of the Seller Note repaid in
connection with the Holdings Transaction shall reduce the amount of
Subordinated Notes that the Borrower is otherwise permitted to redeem,
purchase or defease under clause (g)(i) of Section 7.2.6 of the Existing
Credit Agreement;
(c) Section 7.2.8 is hereby amended to the extent necessary to
permit the Holdings Merger; and
(d) Section 7.2.11 is hereby amended to the extent necessary to
permit the Holdings Transaction.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Second Amendment Effective Date. This Amendatory
Agreement (and the amendments and modifications contained herein) shall become
effective, and shall thereafter be referred to as "Amendment No. 2", on the
date (the "Second Amendment Effective Date") when all of the conditions set
forth in this Subpart 3.1 have been satisfied.
SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendatory Agreement, duly executed
and delivered on behalf of the Borrower and the Required Lenders.
SUBPART 3.1.2. Delivery of Affirmation and Consent. The Administrative
Agent shall have received the Affirmation and Consent duly executed and
delivered by the parties thereto in substantially the form of Annex I hereto.
SUBPART 3.1.3. Officer's Certificate. The Administrative Agent shall
have received a certificate, executed and delivered by an Authorized Officer of
the Borrower, as to (among other things) the certification required pursuant to
clause (e) of Section 7.2.6 of the Existing Credit Agreement and the
non-contravention of the Indenture and the Subordinated Notes upon the
consummation of the Holdings Transaction.
SUBPART 3.1.4. Legal Opinion. The Administrative Agent shall have
received an opinion, in form and substance reasonably satisfactory to it, from
Winston & ▇▇▇▇▇▇, special New York counsel to the Borrower.
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SUBPART 3.1.5. Assumption Agreement. The Administrative Agent shall
have received the Assumption Agreement (1997), executed and delivered by an
Authorized Officer of Holdings and the Borrower.
SUBPART 3.1.6. Legal Details, etc. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendatory Agreement shall be satisfactory to
the Administrative Agent and its counsel.
PART IV
RELEASE OF COLLATERAL
Each of the Lenders hereby acknowledges and agrees that on and as of the
Second Amendment Effective Date and the consummation of the Holdings Merger,
all Collateral (under and as defined in the Holdings Pledge Agreement) in which
a security interest has been granted by Holdings pursuant to the Holdings
Pledge Agreement shall be released from the Lien of such Loan Document. Each
of the Lenders hereby authorizes the Administrative Agent to take all actions
and execute all documentation necessary to effect the foregoing.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendatory Agreement
to any Part or Subpart are, unless otherwise specified or otherwise required by
the context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 5.2. Loan Document Pursuant to Existing Credit Agreement. This
Amendatory Agreement is a Loan Document executed pursuant to the Existing
Credit Agreement and shall be construed, administered and applied in accordance
with all of the terms and provisions of the Existing Credit Agreement.
SUBPART 5.3. Compliance with Warranties, No Default, etc. The Borrower
represents and warrants on the Second Amendment Effective Date for its
Subsidiaries and itself, both before and after giving effect to this Amendatory
Agreement and the consummation of the Holdings Transaction, as follows:
(a) the representations and warranties set forth in Article VI of
the Credit Agreement and in each other Loan Document are, in each case,
true and correct in all
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material respects (unless stated to relate solely to an earlier date, in
which case such representations and warranties were true and correct in
all material respects as of such earlier date);
(b) no material adverse development has occurred in any litigation,
action, proceeding, labor controversy, arbitration or governmental
investigation disclosed pursuant to Section 6.7 of the Credit Agreement;
(c) the sum of (x) the aggregate outstanding principal amount of
all Revolving Loans and Swing Line Loans and (y) all Letter of Credit
Outstandings does not exceed the Revolving Loan Commitment Amount; and
(d) no Default has occurred and is continuing.
SUBPART 5.4. Successors and Assigns. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SUBPART 5.5. Counterparts. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 5.6. Governing Law. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
KEEBLER CORPORATION
By
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Title:
THE BANK OF NOVA SCOTIA, as Administrative
Agent, the Issuer and a Lender
By
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO, as a
Co-Agent and a Lender
By
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Title:
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, as a Co-Agent and a
Lender
By
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Title:
12
SUNTRUST BANK, ATLANTA, as a Co-Agent and a
Lender
By
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Title:
By
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Title:
13
NATIONSBANK, N.A. (SOUTH), as a Co-Agent
and a Lender
By
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Title:
14
ABN AMRO BANK N.V., NEW YORK BRANCH
By
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Title:
By
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Title:
15
THE NORTHERN TRUST COMPANY
By
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Title:
16
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., NEW YORK
BRANCH
By
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Title:
By
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Title:
17
SOCIETE GENERALE
By
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Title:
18
WACHOVIA BANK OF GEORGIA, N.A.
By
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Title:
19
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
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Title:
By
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Title:
20
BANQUE NATIONALE DE PARIS
By
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Title:
21
COMERICA BANK
By
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Title:
22
THE FUJI BANK, LIMITED
By
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Title:
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By
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Title:
By
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Title:
24
HIBERNIA NATIONAL BANK
By
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Title:
25
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
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Title:
26
FIRSTRUST BANK
By
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Title: