Exhibit 10.15
EXECUTION COPY
U.S.$2,500,000,000
364-DAY REVOLVING CREDIT AGREEMENT
Dated as of July 13, 2004
Among
KRAFT FOODS INC.
and
THE INITIAL LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK
and
CITIBANK, N.A.
AS ADMINISTRATIVE AGENTS
and
CREDIT SUISSE FIRST BOSTON
and
DEUTSCHE BANK SECURITIES INC.
AS SYNDICATION AGENTS
and
ABN AMRO BANK N.V.
and
BNP PARIBAS
and
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
and
HSBC BANK USA
AS ARRANGERS AND DOCUMENTATION AGENTS
* * * * * * * * * *
X.X. XXXXXX SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.,
CREDIT SUISSE FIRST BOSTON and DEUTSCHE BANK SECURITIES INC.
AS JOINT LEAD ARRANGERS AND BOOKRUNNERS
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS............................................................1
Section 1.01. Certain Defined Terms.......................................................................1
Section 1.02. Computation of Time Periods................................................................10
Section 1.03. Accounting Terms...........................................................................10
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES..........................................................10
Section 2.01. The Pro Rata Advances......................................................................10
Section 2.02. Making the Pro Rata Advances...............................................................11
Section 2.03. Repayment of Pro Rata Advances.............................................................12
Section 2.04. Interest on Pro Rata Advances..............................................................13
Section 2.05. Additional Interest on LIBO Rate Advances..................................................13
Section 2.06. Conversion of Pro Rata Advances............................................................13
Section 2.07. The Competitive Bid Advances...............................................................14
Section 2.08. LIBO Rate Determination....................................................................19
Section 2.09. Fees.......................................................................................20
Section 2.10. Optional Termination, Reduction or Increase of the Commitments and Term-Out Option.........20
Section 2.11. Optional Prepayments of Pro Rata Advances..................................................22
Section 2.12. Increased Costs............................................................................23
Section 2.13. Illegality.................................................................................24
Section 2.14. Payments and Computations..................................................................24
Section 2.15. Taxes......................................................................................25
Section 2.16. Sharing of Payments, Etc...................................................................28
Section 2.17. Evidence of Debt...........................................................................28
Section 2.18. Use of Proceeds............................................................................29
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING....................................................29
Section 3.01. Conditions Precedent to Effectiveness......................................................29
Section 3.02. Initial Advance to Each Designated Subsidiary..............................................31
Section 3.03. Conditions Precedent to Each Pro Rata Borrowing............................................31
Section 3.04. Conditions Precedent to Each Competitive Bid Borrowing.....................................32
i
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................................................33
Section 4.01. Representations and Warranties of Kraft....................................................33
ARTICLE V COVENANTS OF KRAFT.........................................................................34
Section 5.01. Affirmative Covenants......................................................................34
Section 5.02. Negative Covenants.........................................................................35
ARTICLE VI EVENTS OF DEFAULT..........................................................................37
Section 6.01. Events of Default..........................................................................37
Section 6.02. Lenders' Rights upon Event of Default......................................................38
ARTICLE VII THE ADMINISTRATIVE AGENTS..................................................................39
Section 7.01. Authorization and Action...................................................................39
Section 7.02. Administrative Agents' Reliance, Etc.......................................................39
Section 7.03. JPMorgan Chase, Citibank and Affiliates....................................................40
Section 7.04. Lender Credit Decision.....................................................................40
Section 7.05. Indemnification............................................................................41
Section 7.06. Successor Administrative Agents............................................................41
Section 7.07. Syndication Agents and Arrangers and Documentation Agents..................................42
ARTICLE VIII GUARANTY...................................................................................42
Section 8.01. Guaranty...................................................................................42
Section 8.02. Guaranty Absolute..........................................................................42
Section 8.03. Waivers....................................................................................43
Section 8.04. Continuing Guaranty........................................................................43
ARTICLE IX MISCELLANEOUS..............................................................................44
Section 9.01. Amendments, Etc............................................................................44
Section 9.02. Notices, Etc...............................................................................44
Section 9.03. No Waiver; Remedies........................................................................46
Section 9.04. Costs and Expenses.........................................................................46
Section 9.05. Right of Set-Off...........................................................................47
ii
TABLE OF CONTENTS
(continued)
PAGE
Section 9.06. Binding Effect.............................................................................47
Section 9.07. Assignments and Participations.............................................................48
Section 9.08. Designated Subsidiaries....................................................................51
Section 9.09. Governing Law..............................................................................51
Section 9.10. Execution in Counterparts..................................................................51
Section 9.11. Jurisdiction, Etc..........................................................................51
Section 9.12. Confidentiality............................................................................52
Section 9.13. Integration................................................................................53
SCHEDULE
Schedule I - List of Applicable Lending Offices
EXHIBITS
Exhibit A-1 - Form of Pro Rata Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Pro Rata Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E-1 - Form of Opinion of Counsel for Kraft
Exhibit E-2 - Form of Opinion of Counsel for Kraft
Exhibit F - Form of Opinion of Counsel for Designated Subsidiary
Exhibit G - Form of Opinion of Counsel for JPMorgan Chase, as Adminstrative Agent
Exhibit H - Form of New Lender Supplement
iii
364-DAY REVOLVING
CREDIT AGREEMENT
DATED AS OF JULY 13, 2004
KRAFT FOODS INC., a Virginia corporation ("KRAFT"), the banks, financial
institutions and other institutional lenders (the "INITIAL LENDERS") listed on
the signature pages hereof, and JPMORGAN CHASE BANK ("JPMORGAN CHASE") and
CITIBANK, N.A. ("CITIBANK"), as administrative agents (each, in such capacity,
an "ADMINISTRATIVE AGENT"), CREDIT SUISSE FIRST BOSTON and DEUTSCHE BANK
SECURITIES INC., as syndication agents (each, in such capacity, a "SYNDICATION
AGENT") and ABN AMRO BANK N.V., BNP PARIBAS, DRESDNER BANK AG,
NEW YORK AND
GRAND CAYMAN BRANCHES and HSBC BANK USA, as arrangers and documentation agents
(each, in such capacity, an "ARRANGER AND DOCUMENTATION AGENT") for the Lenders
(as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means a Pro Rata Advance or a Competitive Bid Advance.
"AGENTS" means each Administrative Agent, each Syndication Agent
and each Arranger and Documentation Agent.
"APPLICABLE FACILITY FEE RATE" means, for any period, a
percentage per annum equal to 0.0800%.
"APPLICABLE INTEREST RATE MARGIN" means for any Interest Period
a percentage per annum equal to 0.2200%; PROVIDED that for any day
during any Interest Period that the aggregate amount of Advances
outstanding under this Agreement and the 5-Year Facility exceeds
one-third of the aggregate amount of Commitments under this Agreement
and commitments under the 5-Year Facility, the Applicable Interest Rate
Margin shall be increased by 0.1000% per annum; and PROVIDED FURTHER
that for any Pro Rata Advances that have been extended pursuant to
Section 2.10(c), the Applicable Interest Rate Margin shall be increased
by 0.1250% per annum.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Pro Rata Advance
and, in the case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to JPMorgan Chase, as Administrative Agent, as
its Applicable Lending Office with respect to such Competitive Bid
Advance.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by
JPMorgan Chase, as Administrative Agent, in substantially the form of
Exhibit C hereto.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(i) the rate of interest announced publicly by JPMorgan
Chase in
New York,
New York, from time to time, as JPMorgan Chase's
prime rate; and
(ii) 1/2 of one percent per annum above the Federal
Funds Effective Rate.
"BASE RATE ADVANCE" means a Pro Rata Advance that bears interest
as provided in Section 2.04(a)(i).
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BORROWERS" means, collectively, Kraft and each Designated
Subsidiary that shall become a party to this Agreement pursuant to
Section 9.08.
"BORROWING" means a Pro Rata Borrowing or a Competitive Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in
New York City and, if the
applicable Business Day relates to any LIBO Rate Advances or Floating
Rate Bid Advances, on which dealings are carried on in the London
interbank market and banks are open for business in London.
"COMMITMENT" means as to any Lender (i) the Dollar amount set
forth opposite such Lender's name on the signature pages hereof or (ii)
if such Lender has entered into an Assignment and Acceptance, or entered
into a New Lender Supplement, the Dollar amount set forth for such
Lender in the Register maintained by JPMorgan Chase, as Administrative
Agent, pursuant to Section 9.07(d), in each case, as such amount may be
reduced or increased pursuant to Section 2.10.
"COMPETITIVE BID ADVANCE" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.07 and refers to a
Fixed Rate Bid Advance or a Floating Rate Bid Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.07.
"COMPETITIVE BID NOTE" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the
indebtedness of such Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender to such Borrower.
"COMPETITIVE BID REDUCTION" has the meaning specified in
Section 2.01.
"CONSOLIDATED TANGIBLE ASSETS" means the total assets appearing
on a consolidated balance sheet of Kraft and its Subsidiaries, less
goodwill and other intangible assets and the minority interests of other
Persons in such Subsidiaries, all as determined in accordance with
accounting principles generally accepted in the United States, EXCEPT
that if there has been a material change in an accounting principle as
compared to that applied in the preparation of the financial statements
of Kraft and its Subsidiaries as of and for the quarter ended March 31,
2004, then such new accounting principle shall not be used in the
determination of Consolidated Tangible Assets. A material change in an
accounting principle is one that, in the year of its adoption, changes
Consolidated Tangible Assets at any quarter in such year by more than
10%.
"CONVERT," "CONVERSION" and "CONVERTED" each refers to a
conversion of Pro Rata Advances of one Type into Pro Rata Advances of
the other Type pursuant to Section 2.06, 2.08 or 2.13.
"DEBT" means (i) indebtedness for borrowed money or for the
deferred purchase price of property or services, whether or not
evidenced by bonds, debentures, notes or similar instruments, (ii)
obligations as lessee under leases that, in accordance with accounting
principles generally accepted in the United States, are recorded as
capital leases, and (iii) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of any other Person of
the kinds referred to in clause (i) or (ii) above.
"DEFAULT" means any event specified in Section 6.01 that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DESIGNATED SUBSIDIARY" means any wholly-owned Subsidiary of
Kraft designated for borrowing privileges under this Agreement pursuant
to Section 9.08.
"DESIGNATION AGREEMENT" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit D hereto signed by such
Designated Subsidiary and Kraft.
"DOLLARS" and the "$" sign each means lawful currency of the
United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I
hereto or in the Assignment and Acceptance or New Lender Supplement
pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to Kraft and
JPMorgan Chase, as Administrative Agent.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized under
the laws of the United States, or any State thereof, and having total
assets in excess of $5,000,000,000; (ii) a commercial bank organized
under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (or any successor)
("OECD"), or a political subdivision of any such country, and having
total assets in excess of $5,000,000,000, provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD or the
Cayman Islands; (iii) the central bank of any country which is a member
of the OECD; (iv) a commercial finance company or finance Subsidiary of
a corporation organized under the laws of the United States, or any
State thereof, and having total assets in excess of $3,000,000,000; (v)
an insurance company organized under the laws of the United States, or
any State thereof, and having total assets in excess of $5,000,000,000;
(vi) any Lender; (vii) an affiliate of any Lender; and (viii) any other
bank, commercial finance company, insurance company or other Person
approved in writing by Kraft, which approval shall be notified to
JPMorgan Chase, as Administrative Agent and, for the purposes of Section
2.10(b), approved in writing by JPMorgan Chase, as Administrative Agent.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV
of ERISA is a member of any Borrower's controlled group, or under common
control with any Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means (a) (i) the occurrence with respect to a
Plan of a reportable event, within the meaning of Section 4043 of ERISA,
unless the 30-day notice requirement with respect thereto has been
waived by the Pension Benefit Guaranty Corporation (or any successor)
("PBGC"), or (ii) the requirements of subsection (1) of Section 4043(b)
of ERISA (without regard to subsection (2) of such section) are met with
respect to a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a
plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of any Borrower or Kraft or any of
their ERISA Affiliates in the circumstances described in Section 4062(e)
of ERISA; (e) the withdrawal by any Borrower or Kraft or any of their
ERISA Affiliates from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (f) the conditions set forth in Section 302(f)(1)(A) and (B) of
ERISA to the creation of a lien upon property or rights to property of
any Borrower or Kraft or any of their ERISA Affiliates for failure to
make a required payment to a Plan are satisfied; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term
in Regulation D of the Board, as in effect from time to time.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance or New Lender Supplement pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to Kraft and JPMorgan Chase, as Administrative Agent.
"EUROCURRENCY RATE RESERVE PERCENTAGE" means, for any Interest
Period, for all LIBO Rate Advances or Floating Rate Bid Advances
comprising part of the same Borrowing, the reserve percentage applicable
two Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board for determining the
maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in
New York City with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on LIBO Rate
Advances or Floating Rate Bid Advances is determined) having a term
equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING LOAN AGREEMENT" means Kraft's existing
U.S.$2,500,000,000 364-Day Revolving
Credit Agreement dated as of July
14, 2003.
"FEDERAL BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended from time to time.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate per annum equal, for each day during such
period, to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) on Telerate Page
120 (or any successor page), or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such
day on such transactions received by JPMorgan Chase, as Administrative
Agent, from three Federal funds brokers of recognized standing selected
by it.
"5-YEAR FACILITY" means the U.S.$2,000,000,000 5-Year Revolving
Credit Agreement dated as of July 24, 2001 among Kraft and the agents
and lenders parties thereto.
"FIXED RATE BID ADVANCE" means a Competitive Bid Advance bearing
interest based on a fixed rate per annum as specified in the relevant
Notice of Competitive Bid Borrowing.
"FLOATING RATE BID ADVANCE" means a Competitive Bid Advance
bearing interest at a rate of interest quoted as a margin over the LIBO
Rate as specified in the relevant Notice of Competitive Bid Borrowing.
"HOME JURISDICTION WITHHOLDING TAXES" means (a) in the case of
Kraft, withholding for United States income taxes, United States back-up
withholding taxes and United States withholding taxes and (b) in the
case of a Designated Subsidiary, withholding taxes imposed by the
jurisdiction under the laws of which such Designated Subsidiary is
organized or any political subdivision thereof.
"INTEREST PERIOD" means, for each LIBO Rate Advance comprising
part of the same Pro Rata Borrowing and each Floating Rate Bid Advance
comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such LIBO Rate Advance or Floating Rate Bid
Advance or the date of Conversion of any Base Rate Advance into such
LIBO Rate Advance and ending on the last day of the period selected by
the Borrower requesting such Borrowing pursuant to the provisions below.
The duration of each such Interest Period shall be one, two, three or
six months, or, if available to all Lenders, nine months, as such
Borrower may select upon notice received by JPMorgan Chase, as
Administrative Agent, not later than 11:00 A.M. (
New York City time) on
the third Business Day prior to the first day of such Interest Period;
PROVIDED, HOWEVER, that:
(a) such Borrower may not select any Interest Period that
ends after the Termination Date, subject to Section 2.10(c);
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, PROVIDED that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the immediately
preceding Business Day; and
(c) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and the
rulings issued thereunder.
"JPMORGAN CHASE'S ADMINISTRATIVE AGENT ACCOUNT" means (a) the
account of JPMorgan Chase, as Administrative Agent, maintained by
JPMorgan Chase, as Administrative Agent, at its office at 0000 Xxxxxx,
Xxxxxxx, Xxxxx 00000, Account No. 323243088, Attention: Xxxx Xxxxxx, or
(b) such other account of JPMorgan Chase, as Administrative Agent, as is
designated in writing from time to time by JPMorgan Chase, as
Administrative Agent, to Kraft and the Lenders for such purpose.
"LENDERS" means the Initial Lenders and any New Lender and their
respective successors and permitted assignees.
"LIBO RATE" means an interest rate per annum equal to either:
(a) the offered rate per annum at which deposits in Dollars
appear on Telerate Page 3750 (or any successor page) as of 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period, or
(b) if the LIBO Rate does not appear on Telerate Page 3750 (or
any successor page), then the LIBO Rate will be determined by taking the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rates per annum at
which deposits in Dollars are offered by the principal office of each of
the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period for an amount substantially equal
to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing outstanding during such Interest Period and for
a period equal to such Interest Period, as determined by JPMorgan Chase,
as Administrative Agent, SUBJECT, HOWEVER, to the provisions of
Section 2.08.
"LIBO RATE ADVANCE" means a Pro Rata Advance that bears interest
as provided in Section 2.04(a)(ii).
"LIEN" has the meaning specified in Section 5.02(a).
"MAJOR SUBSIDIARY" means any Subsidiary (a) more than 50% of the
voting securities of which is owned directly or indirectly by Kraft, (b)
which is organized and existing under, or has its principal place of
business in, the United States or any political subdivision thereof,
Canada or any political subdivision thereof, any country which is a
member of the European Union on the date hereof (other than Greece,
Portugal or Spain) or any political subdivision thereof, or Switzerland,
Norway or Australia or any of their respective political subdivisions,
and (c) which has at any time total assets (after intercompany
eliminations) exceeding $1,000,000,000.
"MARGIN STOCK" means margin stock, as such term is defined in
Regulation U.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant to
one or more collective bargaining agreements.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Borrower or any ERISA Affiliate and at least one Person
other than such Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which such Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"NEW LENDER" has the meaning specified in Section 2.10(b).
"NEW LENDER SUPPLEMENT" has the meaning specified in
Section 2.10(b).
"NOTE" means a Pro Rata Note or a Competitive Bid Note. ----
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified
in Section 2.07(b).
"NOTICE OF PRO RATA BORROWING" has the meaning specified in
Section 2.02(a).
"OBLIGATIONS" has the meaning specified in Section 8.01.
"OTHER TAXES" has the meaning specified in Section 2.15(b).
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PRO RATA ADVANCE" means an advance by a Lender to any Borrower
as part of a Pro Rata Borrowing and refers to a Base Rate Advance or a
LIBO Rate Advance (each of which shall be a "TYPE" of Pro Rata Advance).
"PRO RATA BORROWING" means a borrowing consisting of
simultaneous Pro Rata Advances of the same Type made by each of the
Lenders pursuant to Section 2.01.
"PRO RATA NOTE" means a promissory note of any Borrower payable
to the order of any Lender, delivered pursuant to a request made under
Section 2.17 in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of such Borrower to such Lender resulting
from the Pro Rata Advances made by such Lender to such Borrower.
"REFERENCE BANKS" means JPMorgan Chase, Citibank, Credit Suisse
First Boston and Deutsche Bank AG
New York Branch.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION A" means Regulation A of the Board, as in effect
from time to time.
"REGULATION U" means Regulation U of the Board, as in effect
from time to time.
"REQUIRED LENDERS" means at any time Lenders owed at least 50.1%
of the then aggregate unpaid principal amount of the Pro Rata Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 50.1% of the Commitments.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
any Borrower or any ERISA Affiliate and no Person other than such
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which such Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"SUBSIDIARY" of any Person means any corporation of which (or in
which) more than 50% of the outstanding capital stock having voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock
of any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
"TERMINATION DATE" means the earlier of (a) the date that is the
Business Day preceding the first anniversary of the Effective Date and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.10 or 6.02.
"TERM NOTICE" has the meaning specified in Section 2.10(c).
Section 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding."
Section 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with accounting
principles generally accepted in the United States of America, except that if
there has been a material change in an accounting principle affecting the
definition of an accounting term as compared to that applied in the preparation
of the financial statements of Kraft as of and for the quarter ended March 31,
2004, then such new accounting principle shall not be used in the determination
of the amount associated with that accounting term. A material change in an
accounting principle is one that, in the year of its adoption, changes the
amount associated with the relevant accounting term for any quarter in such year
by more than 10%.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. THE PRO RATA ADVANCES. (a) OBLIGATION TO MAKE PRO
RATA ADVANCES. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Pro Rata Advances to any Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount not to exceed at any time outstanding
such Lender's Commitment; PROVIDED, HOWEVER, that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time to the extent
of the aggregate amount of the Competitive Bid Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be allocated
among the Lenders ratably according to their respective Commitments (such deemed
use of the aggregate amount of the Commitments being a "COMPETITIVE BID
REDUCTION").
(b) AMOUNT OF PRO RATA BORROWINGS. Except for Pro Rata Borrowings
pursuant to Sections 2.10(b)(iii)(B) and (C), each Pro Rata Borrowing shall be
in an aggregate amount of no less than $50,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(c) TYPE OF PRO RATA ADVANCES. Each Pro Rata Borrowing shall consist
of Pro Rata Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Commitment and subject to this Section 2.01, any Borrower may borrow
under this Section 2.01, prepay pursuant to Section 2.11 or repay pursuant to
Section 2.03 and reborrow under this Section 2.01.
Section 2.02. MAKING THE PRO RATA ADVANCES. (a) NOTICE OF PRO
RATA BORROWING. Each Pro Rata Borrowing shall be made on notice, given not later
than (x) 11:00 A.M. (
New York City time) on the third Business Day prior to the
date of the proposed Pro Rata Borrowing in the case of a Pro Rata Borrowing
consisting of LIBO Rate Advances, or (y) 9:00 A.M. (
New York City time) on the
date of the proposed Pro Rata Borrowing in the case of a Pro Rata Borrowing
consisting of Base Rate Advances, by the Borrower to JPMorgan Chase, as
Administrative Agent, which shall give to each Lender prompt notice thereof by
telecopier. Each such notice of a Pro Rata Borrowing (a "NOTICE OF PRO RATA
BORROWING") shall be by telephone, confirmed immediately in writing, by
registered mail or telecopier in substantially the form of Exhibit B-1 hereto,
specifying therein the requested:
(i) date of such Pro Rata Borrowing,
(ii) Type of Advances comprising such Pro Rata
Borrowing,
(iii) aggregate amount of such Pro Rata Borrowing, and
(iv) in the case of a Pro Rata Borrowing consisting
of LIBO Rate Advances, the initial Interest Period for each such Pro
Rata Advance. Notwithstanding anything herein to the contrary, no
Borrower may select LIBO Rate Advances for any Pro Rata Borrowing if the
obligation of the Lenders to make LIBO Rate Advances shall then be
suspended pursuant to Section 2.08(c) or 2.13.
(b) FUNDING PRO RATA ADVANCES. Each Lender shall, before 11:00 A.M.
(New York City time) on the date of such Pro Rata Borrowing, make available for
the account of its Applicable Lending Office to JPMorgan Chase, as
Administrative Agent, at JPMorgan Chase's Administrative Agent Account, in same
day funds, such Lender's ratable portion of such Pro Rata Borrowing. After
receipt of such funds by JPMorgan Chase, as Administrative Agent, and upon
fulfillment of the applicable conditions set forth in Article III, JPMorgan
Chase, as Administrative Agent, will make such funds available to the relevant
Borrower at the address of JPMorgan Chase, as Administrative Agent, referred to
in Section 9.02.
(c) IRREVOCABLE NOTICE. Each Notice of Pro Rata Borrowing of any
Borrower shall be irrevocable and binding on such Borrower. In the case of any
Pro Rata Borrowing that the related Notice of Pro Rata Borrowing specifies is to
be comprised of LIBO Rate Advances, the Borrower requesting such Pro Rata
Borrowing shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Pro Rata Borrowing for such Pro Rata Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Pro Rata Advance to be made by such Lender as part of
such Pro Rata Borrowing when such Pro Rata Advance, as a result of such failure,
is not made on such date.
(d) LENDER'S RATABLE PORTION. Unless JPMorgan Chase, as
Administrative Agent, shall have received notice from a Lender prior to 11:00
A.M. (New York City time) on the day of any Pro Rata Borrowing that such Lender
will not make available to JPMorgan Chase, as Administrative Agent, such
Lender's ratable portion of such Pro Rata Borrowing, JPMorgan Chase, as
Administrative Agent, may assume that such Lender has made such portion
available to JPMorgan Chase, as Administrative Agent, on the date of such Pro
Rata Borrowing in accordance with Section 2.02(b) and JPMorgan Chase, as
Administrative Agent, may, in reliance upon such assumption, make available to
the Borrower proposing such Pro Rata Borrowing on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to JPMorgan Chase, as Administrative Agent, such
Lender and such Borrower severally agree to repay to JPMorgan Chase, as
Administrative Agent, forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to JPMorgan Chase, as
Administrative Agent, at:
(i) in the case of such Borrower, the higher of (A)
the interest rate applicable at the time to Pro Rata Advances comprising
such Pro Rata Borrowing and (B) the cost of funds incurred by JPMorgan
Chase, as Administrative Agent, in respect of such amount, and
(ii) in the case of such Lender, the Federal Funds
Effective Rate.
If such Lender shall repay to JPMorgan Chase, as Administrative Agent, such
corresponding amount, such amount so repaid shall constitute such Lender's Pro
Rata Advance as part of such Pro Rata Borrowing for purposes of this Agreement.
(e) INDEPENDENT LENDER OBLIGATIONS. The failure of any Lender to
make the Pro Rata Advance to be made by it as part of any Pro Rata Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make
its Pro Rata Advance on the date of such Pro Rata Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Pro Rata Advance
to be made by such other Lender on the date of any Pro Rata Borrowing.
Section 2.03. REPAYMENT OF PRO RATA ADVANCES. Subject to Section
2.10(c), each Borrower shall repay to JPMorgan Chase, as Administrative Agent,
for the ratable account of the Lenders on the Termination Date the unpaid
principal amount of the Pro Rata Advances then outstanding.
Section 2.04. INTEREST ON PRO RATA ADVANCES. (a) SCHEDULED
INTEREST. Each Borrower shall pay interest on the unpaid principal amount of
each Pro Rata Advance owing by such Borrower to each Lender from the date of
such Pro Rata Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such
Pro Rata Advance is a Base Rate Advance, a rate per annum equal at all
times to the Base Rate in effect from time to time, payable in arrears
monthly on the 20th day of each month and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) LIBO RATE ADVANCES. During such periods as such
Pro Rata Advance is a LIBO Rate Advance, a rate per annum equal at all
times during each Interest Period for such Pro Rata Advance to the sum
of (x) the LIBO Rate for such Interest Period for such Pro Rata Advance
PLUS (y) the Applicable Interest Rate Margin in effect from time to
time, payable in arrears on the last day of such Interest Period and, if
such Interest Period has a duration of more than three months, on each
day that occurs during such Interest Period every three months from the
first day of such Interest Period, and on the date such LIBO Rate
Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default, each Borrower shall pay interest on the unpaid principal
amount of each Pro Rata Advance owing to each Lender, payable in arrears on the
dates referred to in Section 2.04(a)(i) or Section 2.04(a)(ii), at a rate per
annum equal at all times to 1% per annum above the rate per annum required to be
paid on such Pro Rata Advance.
Section 2.05. ADDITIONAL INTEREST ON LIBO RATE ADVANCES. Each
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each LIBO Rate Advance of such Lender
to such Borrower, from the date of such Advance until such principal amount is
paid in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the LIBO Rate for the Interest Period for such
Advance from (ii) the rate obtained by dividing such LIBO Rate by a percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by such Lender and
notified to Kraft through JPMorgan Chase, as Administrative Agent.
Section 2.06. CONVERSION OF PRO RATA ADVANCES. (a) CONVERSION
UPON ABSENCE OF INTEREST PERIOD. If any Borrower shall fail to select the
duration of any Interest Period for any LIBO Rate Advances in accordance with
the provisions contained in the definition of the term "Interest Period,"
JPMorgan Chase, as Administrative Agent, will forthwith so notify such Borrower
and the Lenders, and such Advances will automatically, on the last day of the
then existing Interest Period therefor, Convert into Base Rate Advances.
(b) CONVERSION UPON EVENT OF DEFAULT. Upon the occurrence and during
the continuance of any Event of Default under Section 6.01(a), JPMorgan Chase,
as Administrative Agent, or the Required Lenders may elect that (i) each LIBO
Rate Advance be, on the last day of the then existing Interest Period therefor,
Converted into Base Rate Advances and (ii) the obligation of the Lenders to
make, or to Convert Advances into, LIBO Rate Advances be suspended.
(c) VOLUNTARY CONVERSION. Subject to the provisions of
Sections 2.08(c) and 2.13, any Borrower may convert all such Borrower's Pro Rata
Advances of one Type constituting the same Pro Rata Borrowing into Advances of
the other Type on any Business Day, upon notice given to JPMorgan Chase, as
Administrative Agent, not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Conversion; PROVIDED,
HOWEVER, that the Conversion of a LIBO Rate Advance into a Base Rate Advance may
be made on, and only on, the last day of an Interest Period for such LIBO Rate
Advance. Each such notice of a Conversion shall, within the restrictions
specified above, specify
(i) the date of such Conversion;
(ii) the Pro Rata Advances to be Converted; and
(iii) if such Conversion is into LIBO Rate Advances,
the duration of the Interest Period for each such Pro Rata Advance.
Section 2.07. THE COMPETITIVE BID ADVANCES. (a) COMPETITIVE BID
ADVANCES' IMPACT ON COMMITMENTS. Each Lender severally agrees that any Borrower
may make Competitive Bid Borrowings under this Section 2.07 from time to time on
any Business Day during the period from the Effective Date until the Termination
Date in the manner set forth below; PROVIDED that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders. As
provided in Section 2.01, the aggregate amount of the Commitments of the Lenders
shall be deemed used from time to time to the extent of the aggregate amount of
the Competitive Bid Advances then outstanding, and such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments; PROVIDED, HOWEVER, that any Lender's
Competitive Bid Advances shall not otherwise reduce that Lender's obligation to
lend its pro rata share of the remaining available Commitments.
(b) NOTICE OF COMPETITIVE BID BORROWING. Any Borrower may request a
Competitive Bid Borrowing under this Section 2.07 by delivering to JPMorgan
Chase, as Administrative Agent, by telecopier, a notice of a Competitive Bid
Borrowing (a "NOTICE OF COMPETITIVE BID BORROWING"), in substantially the form
of Exhibit B-2 hereto, specifying therein the following:
(i) date of such proposed Competitive Bid Borrowing;
(ii) aggregate amount of such proposed Competitive
Bid Borrowing;
(iii) interest rate basis and day count convention to
be offered by the Lenders;
(iv) in the case of a Competitive Bid Borrowing
consisting of Floating Rate Bid Advances, Interest Period, or in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Bid
Advances, maturity date for repayment of each Fixed Rate Bid Advance to
be made as part of such Competitive Bid Borrowing (which maturity date
may not be earlier than the date occurring seven days after the date of
such Competitive Bid Borrowing or later than the earlier of (A) 360 days
after the date of such Competitive Bid Borrowing and (B) the Termination
Date);
(v) interest payment date or dates relating thereto;
(vi) location of such Borrower's account to which
funds are to be advanced; and
(vii) other terms (if any) to be applicable to such
Competitive Bid Borrowing.
A Borrower requesting a Competitive Bid Borrowing shall deliver a Notice of
Competitive Bid Borrowing to JPMorgan Chase, as Administrative Agent, not later
than 10:00 A.M. (New York City time) (x) at least two Business Days prior to the
date of the proposed Competitive Bid Borrowing, if such Borrower shall specify
in the Notice of Competitive Bid Borrowing that the Competitive Bid Borrowing
shall be Fixed Rate Bid Advances, or (y) at least four Business Days prior to
the date of the proposed Competitive Bid Borrowing, if such Borrower shall
specify in the Notice of Competitive Bid Borrowing that the Competitive Bid
Borrowing shall be Floating Rate Bid Advances. Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on such Borrower. JPMorgan Chase, as
Administrative Agent, shall in turn promptly notify each Lender of each request
for a Competitive Bid Borrowing received by it from such Borrower by sending
such Lender a copy of the related Notice of Competitive Bid Borrowing.
(c) DISCRETION AS TO COMPETITIVE BID ADVANCES. Each Lender may, in
its sole discretion, elect to irrevocably offer to make one or more Competitive
Bid Advances to the applicable Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in its sole
discretion, by notifying JPMorgan Chase, as Administrative Agent (which shall
give prompt notice thereof to such Borrower), before 9:30 A.M. (New York City
time) (A) on the Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Bid Advances, and (B) on the third Business Day prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Floating Rate Bid Advances; PROVIDED that, if JPMorgan Chase in
its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify such Borrower of such
offer at least 30 minutes before the time and on the date on which notice of
such election is to be given by any other Lender to JPMorgan Chase, as
Administrative Agent. In such notice, the Lender shall specify the following:
(i) the minimum amount and maximum amount of each
Competitive Bid Advance which such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing (which amounts may,
subject to the proviso to the first sentence of Section 2.07(a), exceed
such Lender's Commitment);
(ii) the rate or rates of interest therefor; and
(iii) such Lender's Applicable Lending Office with
respect to such Competitive Bid Advance.
If any Lender shall elect not to make such an offer, such Lender shall so notify
JPMorgan Chase, as Administrative Agent, before 9:30 A.M. (New York City time)
on the date on which notice of such election is to be given to JPMorgan Chase,
as Administrative Agent, by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; PROVIDED FURTHER that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make any
Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.
(d) BORROWER SELECTION OF LENDER BIDS. The Borrower proposing the
Competitive Bid Borrowing shall, in turn, (A) before 12:00 noon (New York City
time) on the Business Day prior to the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Bid Advances and (B) before 12:00 noon (New York City time) on the third
Business Day prior to the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of Floating Rate Bid
Advances, either:
(i) cancel such Competitive Bid Borrowing by giving
JPMorgan Chase, as Administrative Agent, notice to that effect, or
(ii) accept, in its sole discretion, one or more of
the offers made by any Lender or Lenders pursuant to Section 2.07(c), by
giving notice to JPMorgan Chase, as Administrative Agent, of the amount
of each Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum
amount, notified to such Borrower by JPMorgan Chase, as Administrative
Agent on behalf of such Lender, for such Competitive Bid Advance
pursuant to Section 2.07(c) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made by
Lenders pursuant to Section 2.07(c) by giving JPMorgan Chase, as
Administrative Agent, notice to that effect. Such Borrower shall accept
the offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the
lowest to the highest rates of interest offered by such Lenders. If two
or more Lenders have offered the same interest rate, the amount to be
borrowed at such interest rate will be allocated among such Lenders in
proportion to the maximum amount that each such Lender offered at such
interest rate.
If the Borrower proposing the Competitive Bid Borrowing notifies JPMorgan Chase,
as Administrative Agent, that such Competitive Bid Borrowing is canceled
pursuant to Section 2.07(d)(i), or if such Borrower fails to give timely notice
in accordance with Section 2.07(d), JPMorgan Chase, as Administrative Agent,
shall give prompt notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(e) COMPETITIVE BID BORROWING. If the Borrower proposing the
Competitive Bid Borrowing accepts one or more of the offers made by any Lender
or Lenders pursuant to Section 2.07(d)(ii), JPMorgan Chase, as Administrative
Agent, shall in turn promptly notify:
(i) each Lender that has made an offer as described
in Section 2.07(c), whether or not any offer or offers made by such
Lender pursuant to Section 2.07(c) have been accepted by such Borrower;
(ii) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the date and
amount of each Competitive Bid Advance to be made by such Lender as part
of such Competitive Bid Borrowing; and
(iii) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that
JPMorgan Chase, as Administrative Agent, has received forms of documents
appearing to fulfill the applicable conditions set forth in Article III.
When each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing has received notice pursuant to Section 2.07(e)(iii),
such Lender shall, before 11:00 A.M. (New York City time), on the date of such
Competitive Bid Borrowing specified in the notice received from JPMorgan Chase,
as Administrative Agent, pursuant to Section 2.07(e)(i), make available for the
account of its Applicable Lending Office to JPMorgan Chase, as Administrative
Agent, at its address referred to in Section 9.02, in same day funds, such
Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by JPMorgan
Chase, as Administrative Agent, of such funds, JPMorgan Chase, as Administrative
Agent, will make such funds available to such Borrower at the location specified
by such Borrower in its Notice of Competitive Bid Borrowing. Promptly after each
Competitive Bid Borrowing, JPMorgan Chase, as Administrative Agent, will notify
each Lender of the amount of the Competitive Bid Borrowing, the consequent
Competitive Bid Reduction and the dates upon which such Competitive Bid
Reduction commenced and will terminate.
(f) IRREVOCABLE NOTICE. If the Borrower proposing the Competitive
Bid Borrowing notifies JPMorgan Chase, as Administrative Agent, that it accepts
one or more of the offers made by any Lender or Lenders pursuant to Section
2.07(c), such notice of acceptance shall be irrevocable and binding on such
Borrower. Such Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in the related Notice of Competitive Bid Borrowing for
such Competitive Bid Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure, is not made on such
date.
(g) AMOUNT OF COMPETITIVE BID BORROWINGS; COMPETITIVE BID NOTES.
Each Competitive Bid Borrowing shall be in an aggregate amount of $50,000,000 or
an integral multiple of $1,000,000 in excess thereof and, following the making
of each Competitive Bid Borrowing, the aggregate amount of Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders. Within the limits and on the conditions set forth in this Section 2.07,
any Borrower may from time to time borrow under this Section 2.07, prepay
pursuant to Section 2.11 or repay pursuant to Section 2.07(h), and reborrow
under this Section 2.07; PROVIDED that a Competitive Bid Borrowing shall not be
made within two Business Days of the date of any other Competitive Bid
Borrowing. The indebtedness of any Borrower resulting from each Competitive Bid
Advance made to such Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
(h) REPAYMENT OF COMPETITIVE BID ADVANCES. On the maturity date of
each Competitive Bid Advance provided in the Competitive Bid Note evidencing
such Competitive Bid Advance, the Borrower shall repay to JPMorgan Chase, as
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance the then unpaid principal amount of such Competitive Bid Advance. No
Borrower shall have any right to prepay any principal amount of any Competitive
Bid Advance unless, and then only on the terms set forth in the Competitive Bid
Note evidencing such Competitive Bid Advance.
(i) INTEREST ON COMPETITIVE BID ADVANCES. Each Borrower that has
borrowed through a Competitive Bid Borrowing shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of such
Competitive Bid Advance to the date the principal amount of such Competitive Bid
Advance is repaid in full, at the rate of interest for such Competitive Bid
Advance and on the interest payment date or dates set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during
the continuance of an Event of Default, such Borrower shall pay interest on the
amount of unpaid principal of each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms
of the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
Section 2.08. LIBO RATE DETERMINATION. (a) METHODS TO DETERMINE
LIBO RATE. JPMorgan Chase, as Administrative Agent, shall determine the LIBO
Rate by using the methods described in the definition of the term "LIBO Rate,"
and shall give prompt notice to the Borrower and Lenders of each such LIBO Rate.
(b) ROLE OF REFERENCE BANKS. In the event that the LIBO Rate cannot
be determined by the method described in clause (a) of the definition of "LIBO
Rate," each Reference Bank agrees to furnish to JPMorgan Chase, as
Administrative Agent, timely information for the purpose of determining the LIBO
Rate in accordance with the method described in clause (b) of the definition
thereof. If any one or more of the Reference Banks shall not furnish such timely
information to JPMorgan Chase, as Administrative Agent, for the purpose of
determining a LIBO Rate, JPMorgan Chase, as Administrative Agent, shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. If fewer than two Reference Banks furnish timely
information to JPMorgan Chase, as Administrative Agent, for determining the LIBO
Rate for any LIBO Rate Advances or Floating Rate Bid Advances, as the case may
be, then:
(i) JPMorgan Chase, as Administrative Agent, shall
forthwith notify Kraft and the Lenders that the interest rate cannot be
determined for such LIBO Rate Advance or Floating Rate Bid Advances, as
the case may be;
(ii) with respect to each LIBO Rate Advance, such
Advance will, on the last day of the then existing Interest Period
therefor, be prepaid by the Borrower or be automatically Converted into
a Base Rate Advance; and
(iii) the obligation of the Lenders to make LIBO Rate
Advances or Floating Rate Bid Advances or to Convert Base Rate Advances
into LIBO Rate Advances shall be suspended until JPMorgan Chase, as
Administrative Agent, shall notify Kraft and the Lenders that the
circumstances causing such suspension no longer exist.
JPMorgan Chase, as Administrative Agent, shall give prompt notice to Kraft and
the Lenders of the applicable interest rate determined by JPMorgan Chase, as
Administrative Agent, for purposes of Section 2.04(a)(i) or (ii), and the rate,
if any, furnished by each Reference Bank for the purpose of determining the
interest rate under Section 2.04(a)(ii) or the applicable LIBO Rate.
(c) INADEQUATE LIBO RATE. If, with respect to any LIBO Rate
Advances, the Required Lenders notify JPMorgan Chase, as Administrative Agent,
that (i) they are unable to obtain matching deposits in the London interbank
market at or about 11:00 A.M. (London time)
on the second Business Day before the making of a Borrowing in sufficient
amounts to fund their respective LIBO Rate Advances as a part of such Borrowing
during the Interest Period therefor or (ii) the LIBO Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective LIBO Rate Advances
for such Interest Period, JPMorgan Chase, as Administrative Agent, shall
forthwith so notify Kraft and the Lenders, whereupon (A) the Borrower of such
LIBO Rate Advances will, on the last day of the then existing Interest Period
therefor, either (x) prepay such Advances or (y) Convert such Advances into Base
Rate Advances and (B) the obligation of the Lenders to make, or to Convert Base
Rate Advances into, LIBO Rate Advances shall be suspended until JPMorgan Chase,
as Administrative Agent, shall notify Kraft and the Lenders that the
circumstances causing such suspension no longer exist. In the case of clause
(ii) above, each Lender shall certify its cost of funds for each Interest Period
to JPMorgan Chase, as Administrative Agent, and Kraft as soon as practicable
(but in any event not later than 10 Business Days after the last day of such
Interest Period).
Section 2.09. FEES. (a) FACILITY FEE. Kraft agrees to pay to
JPMorgan Chase, as Administrative Agent, for the account of each Lender a
facility fee on the aggregate amount of such Lender's Commitment (whether or not
used and without giving effect to any Competitive Bid Reduction) from the date
hereof in the case of each Initial Lender and from the effective date specified
in the Assignment and Acceptance or New Lender Supplement pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at
the Applicable Facility Fee Rate, in each case payable on the last day of each
March, June, September and December until the Termination Date and on the
Termination Date.
(b) AGENT'S FEES. Kraft shall pay to JPMorgan Chase, as
Administrative Agent, for its own account such fees as may from time to time be
agreed between Kraft and such Agent.
Section 2.10. OPTIONAL TERMINATION, REDUCTION OR INCREASE OF THE
COMMITMENTS AND TERM-OUT OPTION.
(a) OPTIONAL TERMINATION OR REDUCTION OF THE COMMITMENTS. Kraft
shall have the right, upon at least three Business Days' notice to JPMorgan
Chase, as Administrative Agent, to terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Lenders; PROVIDED that
each partial reduction shall be in the aggregate amount of no less than
$50,000,000; and PROVIDED FURTHER that the aggregate amount of the Commitments
of the Lenders shall not be reduced to an amount that is less than the aggregate
principal amount of the Competitive Bid Advances then outstanding
(b) OPTIONAL INCREASE OF THE COMMITMENTS.
(i) Notwithstanding anything herein to the contrary,
so long as no Default or Event of Default has occurred and is
continuing, Kraft and any one or more Lenders or additional banks,
financial institutions or other entities that are Eligible
Assignees (each, a "NEW LENDER") may, at any time after the Effective
Date and prior to the Termination Date, agree that such Lenders shall
increase the amount of their Commitments or such New Lenders shall
provide additional Commitments. In connection therewith, Kraft shall
deliver to JPMorgan Chase, as Administrative Agent, for entry in the
Register, a notice specifying (A) the amount of such increase, (B) the
names of any participating Lenders and New Lenders and their respective
allocations of such increase, and (C) the applicable date such increase
shall become effective (the "INCREASED FACILITY CLOSING DATE").
Notwithstanding the foregoing, (x) the aggregate Commitments may not be
increased by more than $500,000,000, (y) each increase effected pursuant
to this Section 2.10(b) shall be in an amount of at least $100,000,000
and (z) no more than two Increased Facility Closing Dates may be
selected by Kraft during the term of this Agreement. No Lender shall
have any obligation to participate in any increase described in this
Section 2.10(b) unless it agrees to do so in its sole discretion.
(ii) Any New Lender which, with the consent of Kraft,
agrees to become a "Lender" under this Agreement in connection with any
transaction described in clause (i) above shall enter into a supplement
to this Agreement (each, a "NEW LENDER SUPPLEMENT"), substantially in
the form of Exhibit H, whereupon such New Lender shall become a Lender
and shall be bound by and entitled to the benefits of this Agreement as
of the date of execution of such New Lender Supplement.
(iii) (A) Except as set forth in subsections (B) and
(C) of this clause (iii), if any bank, financial institution or other
entity becomes a New Lender or any Lender's Commitment is increased
pursuant to this Section 2.10(b), Pro Rata Advances made on or after the
applicable Increased Facility Closing Date shall be made in accordance
with the pro rata provisions of Section 2.01 based on the respective
Commitments in effect on and after such Increased Facility Closing Date
(except to the extent that any such Pro Rata Borrowing would result in
any Lender making an aggregate principal amount of Pro Rata Advances in
excess of its Commitment, in which case such excess amount will be
allocated to and made by, any New Lenders and Lenders with increased
Commitments pursuant to clause (i) above, pro rata in accordance with
their respective Commitments).
(B) In the event that on any Increased Facility
Closing Date there are Base Rate Advances outstanding, the
relevant Borrower shall make prepayments of and borrowings of
additional Base Rate Advances so that, after giving effect
thereto, the resulting Base Rate Advances outstanding are
allocated among the Lenders as nearly as may be in accordance
with the pro rata provisions of Section 2.01 based on such
Lenders' respective Commitments in effect on and after such
Increased Facility Closing Date, and such allocations shall be
effected on such Increased Facility Closing Date by JPMorgan
Chase, as Administrative Agent, through appropriate entries in
the Register.
(C) In the event that on any Increased Facility
Closing Date there are LIBO Rate Advances outstanding, such LIBO
Rate Advances shall remain outstanding with the respective
Lenders thereof until the expiration of their respective
Interest Periods (unless the relevant Borrower elects to prepay
any thereof in accordance with the applicable provisions of this
Agreement) and the continuations, if any, of any LIBO Rate
Advances outstanding on such Increased Facility Closing Date
shall be effected by repayment of such LIBO Rate Advances on the
last day of the Interest Period applicable thereto and the
borrowing of new LIBO Rate Advances to be allocated among the
Lenders in accordance with the pro rata provisions of Section
2.01 based on such Lenders' respective Commitments in effect on
and after such Increased Facility Closing Date.
(iv) For purposes of Section 9.01, no consent of any
Lender other than a Lender that has agreed to participate in the
increase described in this Section 2.10(b) shall be required in
connection with the transactions under this Section 2.10(b).
(c) TERM-OUT OPTION. The Company may, by written notice to JPMorgan
Chase, as Administrative Agent, which shall promptly notify the Lenders, not
later than 15 Business Days prior to the Termination Date (the "TERM NOTICE"),
extend the maturity date for all Pro Rata Advances outstanding at the close of
business New York time on the Termination Date to the date, specified in the
Term Notice, no later than the first anniversary of the Termination Date;
PROVIDED that, on the date of the Term Notice and on the Termination Date, (i)
no event has occurred and is continuing that constitutes a Default or Event of
Default and (ii) the representations contained in Section 4.01 (except the
representations set forth in the last sentence of subsection (e) and in
subsection (f) thereof (other than clause (i) thereof)) are correct; and
PROVIDED, FURTHER, that the option provided for in this Section 2.10(c) may be
exercised only once. If a Term Notice is given, each Borrower shall repay to
JPMorgan Chase, as Administrative Agent, for the ratable account of the Lenders
on the maturity date set forth in such Term Notice, the unpaid principal amount
of the Pro Rata Advances then outstanding. Upon the effectiveness of the
extension provided for in this Section 2.10(c), all terms of this Agreement
shall remain in full force and effect, EXCEPT that the right of any Borrower to
borrow under Section 2.01 shall terminate. The Borrower agrees that it will,
upon the request of any Lender through JPMorgan Chase, as Administrative Agent,
issue a new Pro Rata Note in favor of such Lender reflecting the extended
maturity date, in exchange for the Pro Rata Note held by such Lender, which
shall be promptly returned to the Borrower and marked "cancelled".
Section 2.11. OPTIONAL PREPAYMENTS OF PRO RATA ADVANCES. Each
Borrower may, in the case of any LIBO Rate Advance, upon at least three Business
Days' notice to JPMorgan Chase, as Administrative Agent, or, in the case of any
Base Rate Advance, upon notice given to JPMorgan Chase, as Administrative Agent,
not later than 9:00 A.M. (New York City time) on the date of the proposed
prepayment, in each case stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given such Borrower shall,
prepay the
outstanding principal amount of the Pro Rata Advances comprising part of the
same Pro Rata Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
PROVIDED, HOWEVER, that (x) each partial prepayment other than partial
prepayments pursuant to Section 2.10(b)(iii)(B) shall be in an aggregate
principal amount of no less than $50,000,000 and (y) in the event of any such
prepayment of a LIBO Rate Advance, such Borrower shall be obligated to reimburse
the Lenders in respect thereof pursuant to Section 9.04(b).
Section 2.12. INCREASED COSTS. (a) COSTS FROM CHANGE IN LAW OR
AUTHORITIES. If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements to the
extent such change is included in the Eurocurrency Rate Reserve Percentage) in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining LIBO
Rate Advances or Floating Rate Bid Advances (excluding for purposes of this
Section 2.12 any such increased costs resulting from (i) Taxes or Other Taxes
(as to which Section 2.15 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower of the affected Advances shall from time to time,
upon demand by such Lender (with a copy of such demand to JPMorgan Chase, as
Administrative Agent), pay to JPMorgan Chase, as Administrative Agent, for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost; PROVIDED, HOWEVER, that before making any such demand,
each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to Kraft, such
Borrower and JPMorgan Chase, as Administrative Agent, by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) REDUCTION IN LENDER'S RATE OF RETURN. In the event that, after
the date hereof, the implementation of or any change in any law or regulation,
or any guideline or directive (whether or not having the force of law) or the
interpretation or administration thereof by any central bank or other authority
charged with the administration thereof, imposes, modifies or deems applicable
any capital adequacy or similar requirement (including, without limitation, a
request or requirement which affects the manner in which any Lender allocates
capital resources to its commitments, including its obligations hereunder) and
as a result thereof, in the sole opinion of such Lender, the rate of return on
such Lender's capital as a consequence of its obligations hereunder is reduced
to a level below that which such Lender could have achieved but for such
circumstances, but reduced to the extent that Borrowings are outstanding from
time to time, then in each such case, upon demand from time to time Kraft shall
pay to such Lender such additional amount or amounts as shall compensate such
Lender for such reduction in rate of return;
PROVIDED that, in the case of each Lender, such additional amount or amounts
shall not exceed 0.15 of 1% per annum of such Lender's Commitment. A certificate
of such Lender as to any such additional amount or amounts shall be conclusive
and binding for all purposes, absent manifest error. Except as provided below,
in determining any such amount or amounts each Lender may use any reasonable
averaging and attribution methods. Notwithstanding the foregoing, each Lender
shall take all reasonable actions to avoid the imposition of, or reduce the
amounts of, such increased costs, provided that such actions, in the reasonable
judgment of such Lender, will not be otherwise disadvantageous to such Lender,
and, to the extent possible, each Lender will calculate such increased costs
based upon the capital requirements for its Commitment hereunder and not upon
the average or general capital requirements imposed upon such Lender.
Section 2.13. ILLEGALITY. Notwithstanding any other provision of
this Agreement, if any Lender shall notify JPMorgan Chase, as Administrative
Agent, that the introduction of or any change in, or in the interpretation of,
any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its
Eurocurrency Lending Office to perform its obligations hereunder to make LIBO
Rate Advances or Floating Rate Bid Advances or to fund or maintain LIBO Rate
Advances or Floating Rate Bid Advances, (a) each LIBO Rate Advance or Floating
Rate Bid Advances, as the case may be, will automatically, upon such demand, be
Converted into a Base Rate Advance or an Advance that bears interest at the rate
set forth in Section 2.04(a)(i), as the case may be, and (b) the obligation of
the Lenders to make LIBO Rate Advances or Floating Rate Bid Advances or to
Convert Base Rate Advances into LIBO Rate Advances shall be suspended, in each
case, until JPMorgan Chase, as Administrative Agent, shall notify Kraft and the
Lenders that the circumstances causing such suspension no longer exist;
PROVIDED, HOWEVER, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Eurocurrency Lending Office if the making
of such a designation would allow such Lender or its Eurocurrency Lending Office
to continue to perform its obligations to make LIBO Rate Advances or Floating
Rate Bid Advances or to continue to fund or maintain LIBO Rate Advances or
Floating Rate Bid Advances, as the case may be, and would not, in the judgment
of such Lender, be otherwise disadvantageous to such Lender.
Section 2.14. PAYMENTS AND COMPUTATIONS. (a) TIME AND
DISTRIBUTION OF PAYMENTS. Kraft and each Borrower shall make each payment
hereunder, not later than 11:00 A.M. (New York City time) on the day when due to
JPMorgan Chase, as Administrative Agent, at JPMorgan Chase's Administrative
Agent Account in same day funds. JPMorgan Chase, as Administrative Agent, will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.07, 2.12, 2.15 or 9.04(b)) to the Lenders for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. From and after the effective date of an
Assignment and Acceptance pursuant to Section 9.07, JPMorgan Chase, as
Administrative Agent, shall make all payments hereunder in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) COMPUTATION OF INTEREST AND FEES. All computations of interest
based on JPMorgan Chase's prime rate shall be made by JPMorgan Chase, as
Administrative Agent, on the basis of a year of 365 or 366 days, as the case may
be. All computations of interest based on the LIBO Rate or the Federal Funds
Effective Rate and of facility fees shall be made by JPMorgan Chase, as
Administrative Agent, and all computations of interest pursuant to Section 2.05
shall be made by a Lender, on the basis of a year of 360 days, and all
computations of interest in respect of Competitive Bid Advances shall be made by
JPMorgan Chase, as Administrative Agent, as specified in the applicable Notice
of Competitive Bid Notice, in each case for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by JPMorgan Chase, as
Administrative Agent (or, in the case of Section 2.05 by a Lender), of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) PAYMENT DUE DATES. Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; PROVIDED, HOWEVER, that if such extension would cause payment
of interest on or principal of LIBO Rate Advances or Floating Rate Bid Advances
to be made in the next following calendar month, such payment shall be made on
the immediately preceding Business Day.
(d) PRESUMPTION OF BORROWER PAYMENT. Unless JPMorgan Chase, as
Administrative Agent, receives notice from any Borrower prior to the date on
which any payment is due to the Lenders hereunder that such Borrower will not
make such payment in full, JPMorgan Chase, as Administrative Agent, may assume
that such Borrower has made such payment in full to JPMorgan Chase, as
Administrative Agent, on such date and JPMorgan Chase, as Administrative Agent,
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower has not made such payment in full to JPMorgan Chase, as
Administrative Agent, each Lender shall repay to JPMorgan Chase, as
Administrative Agent, forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to
JPMorgan Chase, as Administrative Agent, at the Federal Funds Effective Rate.
Section 2.15. TAXES. (a) Any and all payments by each Borrower
and Kraft hereunder shall be made, in accordance with Section 2.14, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, EXCLUDING, (i) in the
case of each Lender and JPMorgan Chase, as Administrative Agent, taxes imposed
on its net income, and franchise taxes imposed on it, by the jurisdiction under
the laws of which such Lender or JPMorgan Chase, as Administrative Agent (as the
case may be), is organized or any political subdivision thereof, (ii) in the
case of each Lender, taxes imposed on its net income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's Applicable Lending Office or
any political subdivision thereof, (iii) in the case of each Lender and JPMorgan
Chase, as Administrative Agent, taxes imposed on its net income, franchise taxes
imposed on it, and any tax imposed by means of withholding to the extent such
tax is imposed solely as a result of a present or former connection (other than
the execution, delivery and performance of this Agreement or a Note) between the
Lender or JPMorgan Chase, as Administrative Agent, as the case may be, and the
taxing jurisdiction, and (iv) in the case of each Lender and JPMorgan Chase, as
Administrative Agent, taxes imposed by the United States by means of withholding
tax if and to the extent that such taxes shall be in effect and shall be
applicable on the date hereof to payments to be made to such Lender's Applicable
Lending Office or to JPMorgan Chase, as Administrative Agent (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder being hereinafter referred to as
"TAXES"). If any Borrower or Kraft shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or JPMorgan Chase,
as Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) such Lender or
JPMorgan Chase, as Administrative Agent (as the case may be), receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Borrower or Kraft shall make such deductions and (iii) such Borrower or
Kraft shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(b) In addition, each Borrower or Kraft shall pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement (hereinafter referred to as "OTHER TAXES").
(c) Each Borrower and Kraft shall indemnify each Lender and JPMorgan
Chase, as Administrative Agent, for and hold it harmless against the full amount
of Taxes or Other Taxes (including, without limitation, Taxes and Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.15) paid by
such Lender or JPMorgan Chase, as Administrative Agent (as the case may be), and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or JPMorgan Chase, as Administrative Agent (as the case may
be), makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower and Kraft shall furnish to JPMorgan Chase, as Administrative Agent, at
its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment. If
any Borrower or Kraft determines that no Taxes are payable in respect thereof,
such Borrower or Kraft shall, at the request of JPMorgan Chase, as
Administrative Agent, furnish or cause the payor to furnish, JPMorgan Chase, as
Administrative Agent, and each Lender an opinion of counsel reasonably
acceptable to JPMorgan Chase, as Administrative Agent, stating that such payment
is exempt from Taxes.
(e) Each Lender, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date of
the Assignment and Acceptance or New Lender Supplement pursuant to which it
becomes a Lender in the case of each other Lender, shall provide each of
JPMorgan Chase, as Administrative Agent, Kraft and such Borrower with any form
or certificate that is required by any taxing authority (including, if
applicable, two original Internal Revenue Service Forms W-9, W-8BEN or W-8ECI,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service), certifying that such Lender is exempt from or entitled to a
reduced rate of Home Jurisdiction Withholding Taxes on payments pursuant to this
Agreement. Thereafter, each such Lender shall provide additional forms or
certificates (i) to the extent a form or certificate previously provided has
become inaccurate or invalid or otherwise ceased to be effective or (ii) as
requested in writing by any Borrower, Kraft or JPMorgan Chase, as Administrative
Agent. Unless the Borrowers, Kraft and JPMorgan Chase, as Administrative Agent,
have received forms or other documents satisfactory to them indicating that
payments hereunder are not subject to Home Jurisdiction Withholding Taxes or are
subject to Home Jurisdiction Witholding Taxes at a rate reduced by an applicable
tax treaty, such Borrower, Kraft or JPMorgan Chase, as Administrative Agent,
shall withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender.
(f) Any Lender claiming any additional amounts payable pursuant to
this Section 2.15 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to select or change the
jurisdiction of its Applicable Lending Office if the making of such a selection
or change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the reasonable judgment of
such Lender, be otherwise economically disadvantageous to such Lender.
(g) No additional amounts will be payable pursuant to this
Section 2.15 with respect to (i) any Home Jurisdiction Withholding Taxes that
would not have been payable had the Lender provided the relevant forms or other
documents pursuant to Section 2.15(e); or (ii) in the case of an Assignment and
Acceptance by a Lender to an Eligible Assignee, any Home Jurisdiction
Withholding Taxes that exceed the amount of such Home Jurisdiction Withholding
Taxes that are imposed prior to such Assignment and Acceptance, unless such
Assignment and Acceptance resulted from the demand of Kraft.
(h) If any Lender or JPMorgan Chase, as Administrative Agent, as the
case may be, obtains a refund of any Tax for which payment has been made
pursuant to this Section 2.15,
which refund in the good faith judgment of such Lender or JPMorgan Chase, as
Administrative Agent, as the case may be, (and without any obligation to
disclose its tax records) is allocable to such payment made under this Section
2.15, the amount of such refund (together with any interest received thereon and
reduced by reasonable costs incurred in obtaining such refund) promptly shall be
paid to the Borrower to the extent payment has been made in full by the Borrower
pursuant to this Section 2.15.
Section 2.16. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Pro Rata Advances owing to it
(other than pursuant to Section 2.12, 2.15 or 9.04(b)) in excess of its ratable
share of payments on account of the Pro Rata Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Pro Rata Advances made by them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
Section 2.17. EVIDENCE OF DEBT. (a) LENDER RECORDS; PRO RATA
NOTES. Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Pro Rata Advance owing to such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder in respect of Pro Rata Advances. Each Borrower
shall, upon notice by any Lender to such Borrower (with a copy of such notice to
JPMorgan Chase, as Administrative Agent) to the effect that a Pro Rata Note is
required or appropriate in order for such Lender to evidence (whether for
purposes of pledge, enforcement or otherwise) the Pro Rata Advances owing to, or
to be made by, such Lender, such Borrower shall promptly execute and deliver to
such Lender a Pro Rata Note payable to the order of such Lender in a principal
amount up to the Commitment of such Lender.
(b) RECORD OF BORROWINGS, PAYABLES AND PAYMENTS. The Register
maintained by JPMorgan Chase, as Administrative Agent, pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded as follows:
(i) the date and amount of each Borrowing made
hereunder, the Type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto;
(ii) the terms of each Assignment and Acceptance
delivered to and accepted by it and information provided to it by Kraft
pursuant to Section 2.10(b);
(iii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender
hereunder; and
(iv) the amount of any sum received by JPMorgan
Chase, as Administrative Agent, from the Borrowers hereunder and each
Lender's share thereof.
(c) EVIDENCE OF PAYMENT OBLIGATIONS. Entries made in good faith by
JPMorgan Chase, as Administrative Agent, in the Register pursuant to Section
2.17(b), and by each Lender in its account or accounts pursuant to Section
2.17(a), shall be PRIMA FACIE evidence of the amount of principal and interest
due and payable or to become due and payable from each Borrower to, in the case
of the Register, each Lender and, in the case of such account or accounts, such
Lender, under this Agreement, absent manifest error; PROVIDED, HOWEVER, that the
failure of JPMorgan Chase, as Administrative Agent, or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of any
Borrower under this Agreement.
Section 2.18. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and each Borrower agrees that it shall use such proceeds)
for general corporate purposes of Kraft and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS. This
Agreement shall become effective on and as of the first date (the "EFFECTIVE
DATE") on which the following conditions precedent have been satisfied:
(a) Kraft shall have notified each Lender and JPMorgan Chase, as
Administrative Agent, in writing as to the proposed Effective Date.
(b) On the Effective Date, the following statements shall be true
and JPMorgan Chase, as Administrative Agent, shall have received for the account
of each Lender a certificate signed by a duly authorized officer of Kraft, dated
the Effective Date, stating that:
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing that
constitutes a Default or Event of Default.
(c) JPMorgan Chase, as Administrative Agent, shall have received on
or before the Effective Date copies of the letter from Kraft dated on or
before such day, terminating in whole the commitments of the banks party
to the Existing Loan Agreement.
(d) Prior to or simultaneously with the Effective Date, Kraft shall
have satisfied all of its obligations under the Existing Loan Agreement
including, without limitation, the payment of all loans, accrued interest and
fees under the Existing Loan Agreement.
(e) JPMorgan Chase, as Administrative Agent, shall have received on
or before the Effective Date the following, each dated such day, in form and
substance satisfactory to JPMorgan Chase, as Administrative Agent:
(i) Certified copies of the resolutions of the Board
of Directors of Kraft approving this Agreement, and of all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to this Agreement.
(ii) A certificate of the Secretary or an Assistant
Secretary of Kraft certifying the names and true signatures of the
officers of Kraft authorized to sign this Agreement and the other
documents to be delivered hereunder.
(iii) Favorable opinions of counsel (which may be
in-house counsel) for Kraft, substantially in the form of Exhibits E-1
and E-2 hereto.
(iv) A favorable opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for JPMorgan Chase, as Administrative Agent,
substantially in the form of Exhibit G hereto.
(f) This Agreement shall have been executed by Kraft, JPMorgan Chase
and Citibank, as Administrative Agents, Credit Suisse First Boston and Deutsche
Bank Securities Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP
Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA,
as Arrangers and Documentation Agents, and JPMorgan Chase, as Administrative
Agent, shall have been notified by each Initial Lender that such Initial Lender
has executed this Agreement.
JPMorgan Chase, as Administrative Agent, shall notify Kraft and the Initial
Lenders of the date which is the Effective Date upon satisfaction of all of the
conditions precedent set forth in this Section 3.01. For purposes of determining
compliance with the conditions specified in this Section 3.01, each Lender shall
be deemed to have consented to, approved or accepted or to be satisfied with
each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer of JPMorgan
Chase, as Administrative Agent, responsible for the transactions contemplated by
this Agreement shall
have received notice from such Lender prior to the date that Kraft, by notice to
the Lenders, designates as the proposed Effective Date, specifying its objection
thereto.
Section 3.02. INITIAL ADVANCE TO EACH DESIGNATED SUBSIDIARY. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a Borrower
hereunder pursuant to Section 9.08 is subject to the receipt by JPMorgan Chase,
as Administrative Agent, on or before the date of such initial Advance of each
of the following, in form and substance satisfactory to JPMorgan Chase, as
Administrative Agent, and dated such date, and in sufficient copies for each
Lender:
(a) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the original
thereof is not in English) approving this Agreement, and of all documents
evidencing other necessary corporate action and governmental approvals, if any,
with respect to this Agreement.
(b) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such Designated
Subsidiary authorized to sign this Agreement and the other documents to be
delivered hereunder.
(c) A certificate signed by a duly authorized officer of the
Designated Subsidiary, dated as of the date of such initial Advance, certifying
that such Designated Subsidiary shall have obtained all governmental and third
party authorizations, consents, approvals (including exchange control approvals)
and licenses required under applicable laws and regulations necessary for such
Designated Subsidiary to execute and deliver this Agreement and to perform its
obligations thereunder.
(d) The Designation Agreement of such Designated Subsidiary,
substantially in the form of Exhibit D hereto.
(e) A favorable opinion of counsel (which may be in-house counsel)
to such Designated Subsidiary, dated the date of such initial Advance, covering,
to the extent customary and appropriate for the relevant jurisdiction, the
opinions outlined on Exhibit F hereto.
(f) Such other approvals, opinions or documents as any Lender,
through JPMorgan Chase, as Administrative Agent, may reasonably request.
Section 3.03. CONDITIONS PRECEDENT TO EACH PRO RATA BORROWING.
The obligation of each Lender to make a Pro Rata Advance on the occasion of each
Pro Rata Borrowing is subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Pro Rata Borrowing the
following statements shall be true, and the acceptance by the Borrower of the
proceeds of such Pro Rata Borrowing shall be a representation by such Borrower
or Kraft, as the case may be, that:
(a) the representations and warranties contained in Section 4.01
(except the representations set forth in the last sentence of subsection (e) and
in subsection (f) thereof (other than clause (i) thereof)) are correct on and as
of the date of such Pro Rata Borrowing, before and after giving effect to such
Pro Rata Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and, if such Pro Rata Borrowing shall have been
requested by a Designated Subsidiary, the representations and warranties of such
Designated Subsidiary contained in its Designation Agreement are correct on and
as of the date of such Pro Rata Borrowing, before and after giving effect to
such Pro Rata Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date;
(b) after giving effect to the application of the proceeds of all
Borrowings on such date (together with any other resources of the Borrower
applied together therewith) no event has occurred and is continuing, or would
result from such Pro Rata Borrowing, that constitutes a Default or Event of
Default; and
(c) if such Pro Rata Borrowing is in an aggregate principal amount
equal to or greater than $500,000,000 and is being made in connection with any
purchase of shares of such Borrower's or Kraft's capital stock or the capital
stock of any other Person, or any purchase of all or substantially all of the
assets of any Person (whether in one transaction or a series of transactions) or
any transaction of the type referred to in Section 5.02(b), the statement in (b)
above shall also be true on a pro forma basis as if such transaction or purchase
shall have been completed.
Section 3.04. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID
BORROWING. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing is subject to the
conditions precedent that (i) JPMorgan Chase, as Administrative Agent, shall
have received the written confirmatory Notice of Competitive Bid Borrowing with
respect thereto, (ii) on or before the date of such Competitive Bid Borrowing,
but prior to such Competitive Bid Borrowing, JPMorgan Chase, as Administrative
Agent, shall have received a Competitive Bid Note payable to the order of such
Lender for each of the one or more Competitive Bid Advances to be made by such
Lender as part of such Competitive Bid Borrowing, in a principal amount equal to
the principal amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.07, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true, and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall be a
representation by such Borrower or Kraft, as the case may be, that:
(a) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such Competitive Bid Borrowing, before and
after giving effect to such Competitive Bid Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and, if such
Competitive Bid Borrowing shall have been requested by a Designated Subsidiary,
the representations and warranties of such Designated Subsidiary
contained in its Designation Agreement are correct on and as of the date of such
Competitive Bid Borrowing, before and after giving effect to such Competitive
Bid Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, and
(b) after giving effect to the application of the proceeds of all
Borrowings on such date (together with any other resources of the Borrower
applied together therewith), no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing that constitutes a Default or Event
of Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF KRAFT. Kraft
represents and warrants as follows:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of Virginia.
(b) The execution, delivery and performance of this Agreement and
the Notes to be delivered by it are within its corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) its
charter or by-laws or (ii) in any material respect, any law, rule, regulation or
order of any court or governmental agency or any contractual restriction binding
on or affecting it.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by it of this Agreement or the Notes
to be delivered by it.
(d) This Agreement is, and each of the Notes to be delivered by it
when delivered hereunder will be, a legal, valid and binding obligation of Kraft
enforceable against Kraft in accordance with its terms, subject to the effect of
any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(e) As reported in Kraft's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2004, the unaudited condensed consolidated balance
sheets of Kraft and its Subsidiaries as of March 31, 2004 and the unaudited
condensed consolidated statements of earnings of Kraft and its Subsidiaries for
the quarter then ended fairly present, in all material respects and subject to
year-end audit adjustments, the consolidated financial position of Kraft and its
Subsidiaries as at such date and the consolidated results of the operations of
Kraft and its Subsidiaries for the quarter ended on such date, all in accordance
with accounting principles generally accepted in the United States. Except as
disclosed in Kraft's Quarterly Report on Form 10-Q for the quarter ended March
31, 2004, and in any Current Report on Form 8-K filed subsequent to March 31,
2004 but prior to July 13, 2004, since March 31, 2004 there has been no material
adverse change in such position or operations.
(f) There is no pending or threatened action or proceeding affecting
it or any of its Subsidiaries before any court, governmental agency or
arbitrator (a "PROCEEDING") (i) that purports to affect the legality, validity
or enforceability of this Agreement or (ii) except for Proceedings disclosed in
Kraft's Quarterly Report on Form 10-Q for the quarter ended March 31, 2004, its
Annual Report on Form 10-K for the year ended December 31, 2003, any Current
Report on Form 8-K filed subsequent to March 31, 2004 but prior to July 13, 2004
and, with respect to Proceedings commenced after the date of the most recent
such document but prior to July 13, 2004, a certificate delivered to the
Lenders, that may materially adversely affect the financial position or results
of operations of Kraft and its Subsidiaries taken as a whole.
(g) It owns directly or indirectly 100% of the capital stock of each
other Borrower.
(h) None of the proceeds of any Advance will be used, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock or for
the purpose of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any Margin Stock or for any other purpose that
would constitute the Advances as a "purpose credit" within the meaning of
Regulation U and, in each case, would constitute a violation of Regulation U.
ARTICLE V
COVENANTS OF KRAFT
Section 5.01. AFFIRMATIVE COVENANTS. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, Kraft
will:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each Major
Subsidiary to comply, in all material respects, with all applicable laws, rules,
regulations and orders (such compliance to include, without limitation,
complying with ERISA and paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property except
to the extent contested in good faith), noncompliance with which would
materially adversely affect the financial condition or operations of Kraft and
its Subsidiaries taken as a whole.
(b) MAINTENANCE OF NET WORTH. Maintain total shareholders' equity on
the consolidated balance sheet of Kraft and its Subsidiaries of not less than
$18,200,000,000.
(c) REPORTING REQUIREMENTS. Furnish to the Lenders:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each fiscal
year of Kraft, an unaudited interim condensed consolidated balance sheet
of Kraft and its Subsidiaries as of the end of such quarter and
unaudited interim condensed consolidated statements of earnings of Kraft
and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified
by the chief financial officer of Kraft;
(ii) as soon as available and in any event within 100
days after the end of each fiscal year of Kraft, a copy of the
consolidated financial statements for such year for Kraft and its
Subsidiaries, audited by PricewaterhouseCoopers LLP (or other
independent auditors which, as of the date of this Agreement, are one of
the "big four" accounting firms);
(iii) all reports which Kraft sends to any of its
shareholders, and copies of all reports on Form 8-K (or any successor
forms adopted by the Securities and Exchange Commission) which Kraft
files with the Securities and Exchange Commission;
(iv) as soon as possible and in any event within five
days after the occurrence of each Event of Default and each event which,
with the giving of notice or lapse of time, or both, would constitute an
Event of Default, continuing on the date of such statement, a statement
of the chief financial officer or treasurer of Kraft setting forth
details of such Event of Default or event and the action which Kraft has
taken and proposes to take with respect thereto; and
(v) such other information respecting the condition
or operations, financial or otherwise, of Kraft or any Major Subsidiary
as any Lender through JPMorgan Chase, as Administrative Agent, may from
time to time reasonably request.
In lieu of furnishing the Lenders the items referred to in clauses (i), (ii) and
(iii) above, Kraft may make such items available on the internet at
xxx.xxxxx.xxx (which website includes an option to subscribe to a free service
alerting subscribers by e-mail of new Securities and Exchange Commission
filings) or any successor or replacement website thereof, or by similar
electronic means.
Section 5.02. NEGATIVE COVENANTS. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, Kraft will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any Major
Subsidiary to create or suffer to exist, any lien, security interest or other
charge or encumbrance (other than operating leases and licensed intellectual
property), or any other type of preferential arrangement ("LIENS"), upon or with
respect to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any Major Subsidiary to assign, any right to receive income,
in each case to secure or provide for the payment of any Debt of any Person,
other than:
(i) Liens upon or in property acquired or held by it or
any Major Subsidiary in the ordinary course of business to secure the
purchase price of such property or to secure indebtedness incurred
solely for the purpose of financing the acquisition of such property;
(ii) Liens existing on property at the time of its
acquisition (other than any such lien or security interest created in
contemplation of such acquisition);
(iii) Liens existing on the date hereof securing Debt;
(iv) Liens on property financed through the issuance
of industrial revenue bonds in favor of the holders of such bonds or any
agent or trustee therefor;
(v) Liens existing on property of any Person
acquired by Kraft or any Major Subsidiary;
(vi) Liens securing Debt in an aggregate amount not
in excess of 15% of Consolidated Tangible Assets;
(vii) Liens upon or with respect to "margin stock" as
that term is defined in Regulation U;
(viii) Liens in favor of Kraft or any Major Subsidiary;
(ix) precautionary Liens provided by Kraft or any
Major Subsidiary in connection with the sale, assignment, transfer or
other disposition of assets by Kraft or such Major Subsidiary which
transaction is determined by the Board of Directors of Kraft or such
Major Subsidiary to constitute a "sale" under accounting principles
generally accepted in the United States; or
(x) any extension, renewal or replacement of the
foregoing, PROVIDED that (A) such Lien does not extend to any additional
assets (other than a substitution of like assets), and (B) the amount of
Debt secured by any such Lien is not increased.
(b) MERGERS, ETC. Consolidate with or merge into, or convey or
transfer its properties and assets substantially as an entirety to, any Person,
or permit any Subsidiary directly or indirectly owned by it to do so, unless,
immediately after giving effect thereto, no Default or Event of Default would
exist and, in the case of any merger or consolidation to which it is a party,
the surviving corporation is Kraft or was a Subsidiary of Kraft immediately
prior to such merger or consolidation, which is organized and existing under the
laws of the United States of America or any State thereof, or the District of
Columbia. The surviving corporation of any merger or consolidation involving
Kraft or any other Borrower shall assume all of Kraft's or such Borrower's
obligations under this Agreement (including without limitation with respect to
Kraft's obligations, the covenants set forth in Article V) by the execution and
delivery of an instrument in form and substance satisfactory to the Required
Lenders.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. EVENTS OF DEFAULT. Each of the following events
(each an "Event of Default") shall constitute an Event of Default:
(a) Any Borrower or Kraft shall fail to pay any principal of any
Advance when the same becomes due and payable; or any Borrower shall fail to pay
interest on any Advance, or Kraft shall fail to pay any fees payable under
Section 2.09, within ten days after the same becomes due and payable; or
(b) Any representation or warranty made or deemed to have been made
by any Borrower or Kraft herein or by any Borrower or Kraft (or any of their
respective officers) in connection with this Agreement shall prove to have been
incorrect in any material respect when made or deemed to have been made; or
(c) Any Borrower or Kraft shall fail to perform or observe (i) any
term, covenant or agreement contained in Section 5.01(b) or 5.02(b), (ii) any
term, covenant or agreement contained in Section 5.02(a) if such failure shall
remain unremedied for 15 days after written notice thereof shall have been given
to Kraft by JPMorgan Chase, as Administrative Agent, or any Lender or (iii) any
other term, covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days after
written notice thereof shall have been given to Kraft by JPMorgan Chase, as
Administrative Agent, or any Lender; or
(d) Any Borrower or Kraft or any Major Subsidiary shall fail to pay
any principal of or premium or interest on any Debt which is outstanding in a
principal amount of at least $100,000,000 in the aggregate (but excluding Debt
arising under this Agreement) of such Borrower or Kraft or such Major Subsidiary
(as the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt unless adequate provision
for any such payment has been made in form and substance satisfactory to the
Required Lenders; or any Debt of any Borrower or Kraft or any Major Subsidiary
which is outstanding in a principal amount of at least $100,000,000 in the
aggregate (but excluding Debt arising under this Agreement) shall be declared to
be due and payable, or required to be prepaid (other than by a scheduled
required prepayment), redeemed, purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof
unless adequate provision for the payment of such Debt has been made in form and
substance satisfactory to the Required Lenders; or
(e) Any Borrower or Kraft or any Major Subsidiary shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against any
Borrower or Kraft or any Major Subsidiary seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of its
property, and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 60 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against it or
the appointment of a receiver, trustee, custodian or other similar official for
it or for any of its property constituting a substantial part of the property of
Kraft and its Subsidiaries taken as a whole) shall occur; or any Borrower or
Kraft or any Major Subsidiary shall take any corporate action to authorize any
of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against any Borrower or Kraft or any Major
Subsidiary and there shall be any period of 60 consecutive days during which a
stay of enforcement of such unsatisfied judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) Any Borrower, Kraft or any ERISA Affiliate shall incur, or shall
be reasonably likely to incur, liability in excess of $500,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of any Borrower, Kraft or
any ERISA Affiliate from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; PROVIDED, HOWEVER, that no Default or Event
of Default under this Section 6.01(g) shall be deemed to have occurred if the
Borrower, Kraft or any ERISA Affiliate shall have made arrangements satisfactory
to the PBGC or the Required Lenders to discharge or otherwise satisfy such
liability (including the posting of a bond or other security); or
(h) So long as any Subsidiary of Kraft is a Designated Subsidiary,
the guaranty provided by Kraft under Article VIII hereof shall for any reason
cease to be valid and binding on Kraft or Kraft shall so state in writing.
Section 6.02. LENDERS' RIGHTS UPON EVENT OF DEFAULT. If an
Event of Default occurs or is continuing, then JPMorgan Chase, as Administrative
Agent, shall at the request, or may with the consent, of the Required Lenders,
by notice to Kraft and the Borrowers:
(a) declare the obligation of each Lender to make further Advances
to be terminated, whereupon the same shall forthwith terminate, and
(b) declare all the Advances then outstanding, all interest thereon
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Advances then outstanding, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrowers;
PROVIDED, HOWEVER, that in the event of an actual or deemed entry of an order
for relief with respect to any Borrower under the Federal Bankruptcy Code, (i)
the obligation of each Lender to make Advances shall automatically be terminated
and (ii) the Advances then outstanding, all such interest and all such amounts
shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrowers.
ARTICLE VII
THE ADMINISTRATIVE AGENTS
Section 7.01. AUTHORIZATION AND ACTION. Each Lender hereby
appoints and authorizes the Administrative Agents to take such action as agent
on its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Administrative Agents by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Notes), the Administrative Agents
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; PROVIDED, HOWEVER, that no Administrative Agent shall be required to take
any action that exposes such Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. Each of the Administrative
Agents agrees to give to each Lender prompt notice of each notice given to it by
Kraft or any Borrower as required by the terms of this Agreement or at the
request of Kraft or such Borrower, and any notice provided pursuant to Section
5.01(c)(iv).
Section 7.02. ADMINISTRATIVE AGENTS' RELIANCE, ETC. Neither the
Administrative Agents nor any of their directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agents:
(a) may treat the Lender that made any Advance as the holder of the
Debt resulting therefrom until JPMorgan Chase, as Administrative Agent, receives
and accepts an Assignment and Acceptance entered into by such Lender, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for Kraft or
any Borrower), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
(c) make no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of Kraft or any Borrower or to inspect the property
(including the books and records) of Kraft or such Borrower;
(e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(f) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
Section 7.03. JPMORGAN CHASE, CITIBANK AND AFFILIATES. With
respect to its Commitment and the Advances made by it, each of JPMorgan Chase
and Citibank shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not an Administrative
Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include JPMorgan Chase and Citibank in their individual capacities.
JPMorgan Chase and Citibank and their affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, Kraft, any
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of Kraft, any Borrower or any such Subsidiary, all as if JPMorgan
Chase and Citibank were not Administrative Agents and without any duty to
account therefor to the Lenders.
Section 7.04. LENDER CREDIT DECISION. Each Lender acknowledges
that it has, independently and without reliance upon either Administrative
Agent, either Syndication Agent, any Arranger and Documentation Agent, or any
other Lender and based on the financial statements referred to in Section 4.01
and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon any Administrative Agent, Syndication Agent, Arranger and
Documentation Agent, or any other Lender 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 this Agreement.
Section 7.05. INDEMNIFICATION. The Lenders agree to indemnify
each Administrative Agent (to the extent not reimbursed by Kraft or the
Borrowers), ratably according to the respective principal amounts of the Pro
Rata Advances then owing to each of them (or if no Pro Rata Advances are at the
time outstanding, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against such Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by such Administrative Agent
under this Agreement (collectively, the "INDEMNIFIED COSTS"), PROVIDED that no
Lender shall be liable for any portion of the Indemnified Costs resulting from
such Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse such Administrative
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by such Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that such Administrative Agent is not reimbursed
for such expenses by Kraft or the Borrowers. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
any Administrative Agent, any Lender or a third party.
Section 7.06. SUCCESSOR ADMINISTRATIVE AGENTS. An Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
Kraft and may be removed at any time with or without cause by the Required
Lenders. Upon the resignation or removal of JPMorgan Chase, as Administrative
Agent, Citibank, as Administrative Agent, shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of JPMorgan
Chase, as Administrative Agent, and JPMorgan Chase, as Administrative Agent
shall be discharged from its duties and obligations under this Agreement. Upon
any other such resignation or removal which results in there being no
Administrative Agent hereunder, the Required Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
Section 7.07. SYNDICATION AGENTS AND ARRANGERS AND DOCUMENTATION
AGENTS. Credit Suisse First Boston and Deutsche Bank Securities Inc. have been
designated as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner
Bank AG, New York and Grand Cayman Branches and HSBC Bank USA, have been
designated as Arrangers and Documentation Agents, under this Agreement, but the
use of such titles does not impose on any of them any duties or obligations
greater than those of any other Lender.
ARTICLE VIII
GUARANTY
Section 8.01. GUARANTY. Kraft hereby unconditionally and
irrevocably guarantees (the undertaking of Kraft contained in this Article VIII
being the "GUARANTY") the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all obligations of each Borrower now or
hereafter existing under this Agreement, whether for principal, interest, fees,
expenses or otherwise (such obligations being the "OBLIGATIONS"), and any and
all expenses (including counsel fees and expenses) incurred by JPMorgan Chase,
as Administrative Agent, or the Lenders in enforcing any rights under the
Guaranty.
Section 8.02. GUARANTY ABSOLUTE. Kraft guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of JPMorgan Chase,
as Administrative Agent, or the Lenders with respect thereto. The liability of
Kraft under this Guaranty shall be absolute and unconditional irrespective of:
(a) any lack of validity, enforceability or genuineness of any
provision of this Agreement or any other agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to departure from this Agreement;
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, a Borrower or Kraft.
This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Obligations is
rescinded or must otherwise be returned by JPMorgan Chase, as Administrative
Agent, or any Lender upon the insolvency, bankruptcy or reorganization of a
Borrower or otherwise, all as though such payment had not been made.
Section 8.03. WAIVERS. (a) Kraft hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that JPMorgan Chase, as
Administrative Agent, or any Lender protect, secure, perfect or insure any
security interest or lien or any property subject thereto or exhaust any right
or take any action against a Borrower or any other Person or any collateral.
(b) Kraft hereby irrevocably waives any claims or other rights that
it may now or hereafter acquire against any Borrower that arise from the
existence, payment, performance or enforcement of Kraft's obligations under this
Guaranty or this Agreement, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of JPMorgan Chase, as Administrative
Agent, or any Lender against such Borrower or any collateral, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from
such Borrower, directly or indirectly, in cash or other property or by set-off
or in any other manner, payment or security on account of such claim, remedy or
right. If any amount shall be paid to Kraft in violation of the preceding
sentence at any time prior to the later of the cash payment in full of the
Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of JPMorgan
Chase, as Administrative Agent, and the Lenders and shall forthwith be paid to
JPMorgan Chase, as Administrative Agent, to be credited and applied to the
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of this Agreement and this Guaranty,
or to be held as collateral for any Obligations or other amounts payable under
this Guaranty thereafter arising. Kraft acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Agreement and this Guaranty and that the waiver set forth in this Section
8.03(b) is knowingly made in contemplation of such benefits.
Section 8.04. CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall (a) remain in full force and effect until payment in full
(after the Termination Date) of the Obligations and all other amounts payable
under this Guaranty, (b) be binding upon Kraft, its successors and assigns, and
(c) inure to the benefit of and be enforceable by the Lenders, JPMorgan Chase,
as Administrative Agent, and their respective successors, transferees and
assigns.
ARTICLE IX
MISCELLANEOUS
Section 9.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by any Borrower or
Kraft therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; PROVIDED, HOWEVER, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Sections 3.01 and 3.02, (b) increase
the Commitments of the Lenders other than pursuant to Section 2.10(b), or
subject the Lenders to any additional obligations, (c) reduce the principal of,
or interest on, the Pro Rata Advances or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Pro Rata Advances other than pursuant to Section 2.10(c), or
any fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Pro Rata
Advances, or the number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder, (f) release Kraft from any of its
obligations under Article VIII or (g) amend this Section 9.01; PROVIDED FURTHER
that no waiver of the conditions specified in Section 3.04 in connection with
any Competitive Bid Borrowing shall be effective unless consented to by all
Lenders making Competitive Bid Advances as part of such Competitive Bid
Borrowing; and PROVIDED FURTHER that no amendment, waiver or consent shall,
unless in writing and signed by JPMorgan Chase, as Administrative Agent, in
addition to the Lenders required above to take such action, affect the rights or
duties of JPMorgan Chase, as Administrative Agent, under this Agreement or any
Pro Rata Advance.
Section 9.02. NOTICES, ETC. (a) ADDRESSES. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied, or delivered, as follows:
if to any Borrower:
c/o
Kraft Foods Inc.
Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Executive Vice President and Chief Financial Officer
Fax number: (000) 000-0000;
with a copy to:
Altria Corporate Services, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasury Department - Debt Administration
Fax number: (000) 000-0000;
if to Kraft, as guarantor:
Kraft Foods Inc.
Xxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Fax number: (000) 000-0000;
if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance or New Lender Supplement pursuant to which it
became a Lender;
if to JPMorgan Chase, as Administrative Agent:
c/o JPMorgan Chase Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Fax number: (000) 000-0000;
with a copy to:
JPMorgan Chase Bank
Loan and Agency
0000 Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Fax number: (000) 000-0000
and Xxxxxxx Xxxxxxx
Fax number: (000) 000-0000; or
as to any Borrower, Kraft or JPMorgan Chase, as Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to Kraft and JPMorgan Chase, as
Administrative Agent.
(b) EFFECTIVENESS OF NOTICES. All such notices and communications
shall, when mailed or telecopied, be effective when deposited in the mail or
telecopied, respectively, except
that notices and communications to JPMorgan Chase, as Administrative Agent,
pursuant to Article II, III or VII shall not be effective until received by
JPMorgan Chase, as Administrative Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
Section 9.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender or JPMorgan Chase, as Administrative Agent, to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 9.04. COSTS AND EXPENSES. (a) ADMINISTRATIVE AGENT;
ENFORCEMENT. Kraft agrees to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery, administration (excluding
any cost or expenses for administration related to the overhead of JPMorgan
Chase, as Administrative Agent), modification and amendment of this Agreement
and the documents to be delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for JPMorgan Chase, as
Administrative Agent, with respect thereto and with respect to advising JPMorgan
Chase, as Administrative Agent, as to its rights and responsibilities under this
Agreement, and all costs and expenses of the Lenders and JPMorgan Chase, as
Administrative Agent, if any (including, without limitation, reasonable counsel
fees and expenses of the Lenders and JPMorgan Chase, as Administrative Agent),
in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder.
(b) PREPAYMENT OF LIBO RATE ADVANCES OR FLOATING RATE BID ADVANCES.
If any payment of principal of LIBO Rate Advance or Floating Rate Bid Advance is
made other than on the last day of the Interest Period for such Advance or at
its maturity, as a result of a payment pursuant to Section 2.11, acceleration of
the maturity of the Advances pursuant to Section 6.02, an assignment made as a
result of a demand by Kraft pursuant to Section 9.07(a) or for any other reason,
Kraft shall, upon demand by any Lender (with a copy of such demand to JPMorgan
Chase, as Administrative Agent), pay to JPMorgan Chase, as Administrative Agent,
for the account of such Lender any amounts required to compensate such Lender
for any additional losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance. Without prejudice to the survival of any other agreement
of any Borrower or Kraft hereunder, the agreements and obligations of each
Borrower and Kraft contained in Section 2.02(c), 2.05, 2.12, 2.15 and this
Section 9.04(b) shall survive the payment in full of principal and interest
hereunder.
(c) INDEMNIFICATION. Each Borrower and Kraft jointly and severally
agree to indemnify and hold harmless the Administrative Agents and each Lender
and each of their respective affiliates, control persons, directors, officers,
employees, attorneys and agents (each, an "INDEMNIFIED PARTY") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and disbursements of counsel) which may be
incurred by or asserted against any Indemnified Party, in each case in
connection with or arising out of, or in connection with the preparation for or
defense of, any investigation, litigation, or proceeding (i) related to any
transaction or proposed transaction (whether or not consummated) in which any
proceeds of any Borrowing are applied or proposed to be applied, directly or
indirectly, by any Borrower, whether or not such Indemnified Party is a party to
such transaction or (ii) related to any Borrower's or Kraft's entering into this
Agreement, or to any actions or omissions of any Borrower or Kraft, any of their
respective Subsidiaries or affiliates (other than Altria Group, Inc. and its
non-Kraft Subsidiaries or affiliates) or any of its or their respective
officers, directors, employees or agents in connection therewith, in each case
whether or not an Indemnified Party is a party thereto and whether or not such
investigation, litigation or proceeding is brought by Kraft or any Borrower or
any other Person; PROVIDED, HOWEVER, that neither any Borrower nor Kraft shall
be required to indemnify any such Indemnified Party from or against any portion
of such claims, damages, losses, liabilities or expenses that is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnified
Party.
Section 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.02 to authorize
JPMorgan Chase, as Administrative Agent, to declare the Advances due and payable
pursuant to the provisions of Section 6.02, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of Kraft or any Borrower
against any and all of the obligations of any Borrower or Kraft now or hereafter
existing under this Agreement, whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. Each
Lender shall promptly notify the appropriate Borrower or Kraft, as the case may
be, after any such set-off and application, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender and its affiliates under this Section 9.05 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its affiliates may have.
Section 9.06. BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of Kraft, JPMorgan Chase, as Administrative Agent,
Citibank, as Administrative Agent and each Lender and their respective
successors and assigns, except that neither any Borrower nor Kraft shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
Section 9.07. ASSIGNMENTS AND PARTICIPATIONS. (a) ASSIGNMENT OF
LENDER OBLIGATIONS. Each Lender may and, if demanded by Kraft upon at least five
Business Days' notice to such Lender and JPMorgan Chase, as Administrative
Agent, will assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Pro Rata Advances owing to it), SUBJECT to the
following:
(i) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations under this
Agreement (other than, except in the case of an assignment made as a
result of a demand by Kraft pursuant to this Section 9.07(a), any
Competitive Bid Advances owing to such Lender or any Competitive Bid
Notes held by it);
(ii) the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 (subject to
reduction at the sole discretion of Kraft) and shall be an integral
multiple of $1,000,000;
(iii) each such assignment shall be to an Eligible
Assignee;
(iv) each such assignment made as a result of a
demand by Kraft pursuant to this Section 9.07(a) shall be arranged by
Kraft after consultation with JPMorgan Chase, as Administrative Agent,
and shall be either an assignment of all of the rights and obligations
of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another
such assignment or other such assignments which together cover all of
the rights and obligations of the assigning Lender under this Agreement;
(v) no Lender shall be obligated to make any such
assignment as a result of a demand by Kraft pursuant to this Section
9.07(a) unless and until such Lender shall have received one or more
payments from either the Borrowers to which it has outstanding Advances
or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to
such Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to such
Lender under this Agreement; and
(vi) the parties to each such assignment shall
execute and deliver to JPMorgan Chase, as Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, PROVIDED that,
if such assignment is made as a result of a demand by Kraft under this
Section 9.07(a), Kraft shall pay or cause to be paid such $3,500 fee.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than those provided under Section 9.04) and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) ASSIGNMENT AND ACCEPTANCE. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or Kraft or the performance
or observance by any Borrower or Kraft of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon JPMorgan Chase, as
Administrative Agent, such assigning Lender or any other Lender 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
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee represents that (A) the source of any funds it is using to acquire
the assigning Lender's interest or to make any Advance is not and will not be
plan assets as defined under the regulations of the Department of Labor of any
Plan subject to Title I of ERISA or Section 4975 of the Code or (B) the
assignment or Advance is not and will not be a non-exempt prohibited transaction
as defined in Section 406 of ERISA; (vii) such assignee appoints and authorizes
JPMorgan Chase, as Administrative Agent, to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to JPMorgan Chase, as Administrative Agent, by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (viii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
(c) AGENT'S ACCEPTANCE. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an assignee representing that it
is an Eligible Assignee, together with
any Pro Rata Note or Notes subject to such assignment, JPMorgan Chase, as
Administrative Agent, shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to Kraft.
(d) REGISTER. JPMorgan Chase, as Administrative Agent, shall
maintain at its address referred to in Section 9.02 a copy of each Assignment
and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the
"REGISTER"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and Kraft, the Borrowers, JPMorgan Chase, as
Administrative Agent, and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by Kraft, any Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) SALE OF PARTICIPATION. Each Lender may sell participations to
one or more banks or other entities in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and any Note or Notes held
by it), SUBJECT to the following:
(i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to Kraft hereunder) shall
remain unchanged,
(ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations,
(iii) Kraft, the other Borrowers, JPMorgan Chase, as
Administrative Agent, and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and
(iv) no participant under any such participation
shall have any right to approve any amendment or waiver of any provision
of this Agreement, or any consent to any departure by any Borrower or
Kraft therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Advances or
any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or
other amounts payable hereunder, in each case to the extent subject to
such participation.
(f) DISCLOSURE OF INFORMATION. Any Lender may, in connection with
any assignment or participation or proposed assignment or participation pursuant
to this Section 9.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to Kraft
or any Borrower furnished to such Lender by or on behalf of Kraft or any
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to Kraft received by it
from such Lender.
(g) REGULATION A SECURITY INTEREST. Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and any Note or Notes
held by it) in favor of any Federal Reserve Bank in accordance with Regulation
A.
Section 9.08. DESIGNATED SUBSIDIARIES. (a) DESIGNATION. Kraft
may at any time, and from time to time, by delivery to JPMorgan Chase, as
Administrative Agent, of a Designation Agreement duly executed by Kraft and the
respective Subsidiary and substantially in the form of Exhibit D hereto,
designate such Subsidiary as a "Designated Subsidiary" for purposes of this
Agreement and such Subsidiary shall thereupon become a "Designated Subsidiary"
for purposes of this Agreement and, as such, shall have all of the rights and
obligations of a Borrower hereunder. JPMorgan Chase, as Administrative Agent,
shall promptly notify each Lender of each such designation by Kraft and the
identity of the respective Subsidiary.
(b) TERMINATION. Upon the payment and performance in full of all of
the indebtedness, liabilities and obligations under this Agreement of any
Designated Subsidiary then, so long as at the time no Notice of Pro Rata
Borrowing or Notice of Competitive Bid Borrowing in respect of such Designated
Subsidiary is outstanding, such Subsidiary's status as a "Designated Subsidiary"
shall terminate upon notice to such effect from JPMorgan Chase, as
Administrative Agent, to the Lenders (which notice JPMorgan Chase, as
Administrative Agent, shall give promptly, and only upon its receipt of a
request therefor from Kraft). Thereafter, the Lenders shall be under no further
obligation to make any Advance hereunder to such former Designated Subsidiary
until such time as it has been redesignated a Designated Subsidiary by Kraft
pursuant to Section 9.08(a).
Section 9.09. GOVERNING LAW. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
Section 9.10. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.11. JURISDICTION, ETC. (a) SUBMISSION TO JURISDICTION;
SERVICE OF PROCESS. Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York state court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such New York state court or, to the extent permitted by law,
in such Federal court. Kraft and each Borrower hereby agree that service of
process in any such action or proceeding brought in any such New York state
court or in such Federal court may be made upon the process agent appointed
pursuant to Section 9.11(b) (the "PROCESS AGENT") and each Designated Subsidiary
hereby irrevocably appoints the Process Agent its authorized agent to accept
such service of process, and agrees that the failure of the Process Agent to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon. Each Borrower hereby further irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any
parties hereto by registered or certified mail, postage prepaid, to such
Borrower at its address specified pursuant to Section 9.02. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to serve legal process in any other
manner permitted by law or to bring any action or proceeding relating to this
Agreement or the Notes in the courts of any jurisdiction.
(b) APPOINTMENT OF PROCESS AGENT. Kraft agrees to appoint a Process
Agent from the Effective Date through the Termination Date or, if applicable,
the date set forth in the Term Notice (i) to receive on behalf of Kraft, each
Borrower and each Designated Subsidiary and their respective property service of
copies of the summons and complaint and any other process which may be served in
any action or proceeding in any New York State or Federal court sitting in New
York City arising out of or relating to this Agreement and (ii) to forward
forthwith to Kraft, each Borrower and each Designated Subsidiary at their
respective addresses copies of any summons, complaint and other process which
such Process Agent receives in connection with its appointment. Kraft will give
JPMorgan Chase, as Administrative Agent, prompt notice of such Process Agent's
address.
(c) WAIVERS. Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the Notes in any New York state or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
Section 9.12. CONFIDENTIALITY. None of the Agents nor any Lender
shall disclose any confidential information relating to Kraft or any Borrower to
any other Person without the consent of Kraft, other than (a) to such Agent's or
such Lender's affiliates and their officers,
directors, employees, agents and advisors and, as contemplated by Section
9.07(f), to actual or prospective assignees and participants, and then, in each
such case, only on a confidential basis; PROVIDED, HOWEVER, that such actual or
prospective assignee or participant shall have been made aware of this Section
9.12 and shall have agreed to be bound by its provisions as if it were a party
to this Agreement, (b) as required by any law, rule or regulation or judicial
process, and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
Section 9.13. INTEGRATION. This Agreement and the Notes
represent the agreement of Kraft, the other Borrowers, the Administrative Agents
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agents, Kraft, the other Borrowers or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the Notes other than
the matters referred to in Sections 2.09(b) and 9.04(a) and except for
Confidentiality Agreements entered into between Kraft and each Lender in
connection with this Agreement.
[signature pages omitted]
EXHIBIT A-1 - FORM OF
PRO RATA NOTE
Dated: _______________, 200_
U.S.$_________________
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a __________
corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of __________
(the "LENDER") for the account of its Applicable Lending Office on the
Termination Date1 (each as defined in the
Credit Agreement referred to below)
the principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if
less, the aggregate principal amount of the Pro Rata Advances outstanding on the
Termination Date(1) made by the Lender to the Borrower pursuant to the 364-Day
Revolving
Credit Agreement, dated as of July 13, 2004 among
Kraft Foods Inc.,
the Lender and certain other lenders parties thereto, JPMorgan Chase Bank, as
Administrative Agent, Citibank, N.A., as Administrative Agent, Credit Suisse
First Boston and Deutsche Bank Securities Inc., as Syndication Agents, and ABN
AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA, as Arrangers and Documentation Agents for the Lender
and such other lenders (as amended or modified from time to time, the "
CREDIT
AGREEMENT;" the terms defined therein being used herein as therein defined).
The Borrower promises to pay interest on the unpaid principal amount of
each Pro Rata Advance from the date of such Pro Rata Advance until such
principal amount is paid in full, at such interest rate, and payable at such
times, as are specified in the
Credit Agreement.
Both principal and interest in respect of each Pro Rata Advance are payable
in Dollars to JPMorgan Chase Bank, as Administrative Agent, for the account of
the Lender at the office of JPMorgan Chase Bank located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 in same day funds. Each Pro Rata Advance owing to the
Lender by the Borrower pursuant to the
Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Pro Rata Notes referred to in, and is
entitled to the benefits of, the
Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Pro Rata Advances by the Lender to
the Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the Dollar amount first above mentioned, the indebtedness of the
Borrower resulting from each such Pro Rata Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
----------
(1) Revise if Term-Out Option exercised.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By
-------------------------
Name:
Title:
2
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Principal Unpaid
Type of Amount of Interest Paid Principal Notation
Date Advance Advance Rate or Prepaid Balance Made By
-----------------------------------------------------------------------------------------------------
3
EXHIBIT A-2 - FORM OF
COMPETITIVE BID NOTE
Dated: _______________, 200_
U.S.$_______________
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "BORROWER"), HEREBY PROMISES TO PAY
to the order of _________________________ (the "LENDER") for the account of its
Applicable Lending Office (as defined in the 364-Day Revolving Credit Agreement,
dated as of July 13, 2004 among
Kraft Foods Inc., the Lender and certain other
lenders parties thereto, JPMorgan Chase Bank, as Administrative Agent, Citibank,
N.A., as Administrative Agent, Credit Suisse First Boston and Deutsche Bank
Securities Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas,
Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank USA, as
Arrangers and Documentation Agents for the Lender and such other lenders (as
amended or modified from time to time, the "CREDIT AGREEMENT;" the terms defined
therein being used herein as therein defined)), on _______________, 200_, the
principal amount of U.S.$[_______________].
The Borrower promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate Basis: ____________________.
Day Count Convention:_________________.
Interest Payment Date(s):________________.
Both principal and interest are payable in Dollars to JPMorgan Chase Bank,
as Administrative Agent, for the account of the Lender at the office of JPMorgan
Chase Bank, located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day
funds.
This Promissory Note is one of the Competitive Bid Notes referred to in,
and is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising, any rights hereunder
on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
[NAME OF BORROWER]
By
-----------------------
Name:
Title:
3
EXHIBIT B-1 - FORM OF NOTICE OF
PRO RATA BORROWING
[Date]
JPMorgan Chase Bank, as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
Attention: _______________
Ladies and Gentlemen:
[NAME OF BORROWER], refers to the 364-Day Revolving Credit Agreement, dated
as of July 13, 2004 (as amended or modified from time to time, the "CREDIT
AGREEMENT," the terms defined therein being used herein as therein defined),
among
Kraft Foods Inc., the Lenders parties thereto and JPMorgan Chase Bank, as
Administrative Agent, Citibank, N.A., as Administrative Agent, Credit Suisse
First Boston and Deutsche Bank Securities Inc., as Syndication Agents, and ABN
AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA, as Arrangers and Documentation Agents for such
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement that the undersigned hereby requests a Pro Rata Borrowing
under the Credit Agreement, and in that connection sets forth below the
information relating to such Pro Rata Borrowing (the "PROPOSED PRO RATA
BORROWING") as required by Section 2.02(a) of the Credit Agreement:
(i) The date of the Proposed Pro Rata Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Pro Rata
Borrowing is [Base Rate Advances] [LIBO Rate Advances].
(iii) The aggregate amount of the Proposed Pro Rata Borrowing is
U.S.$[_______________].
[(iv) The initial Interest Period for each LIBO Rate Advance made as
part of the Proposed Pro Rata Borrowing is ______ month(s).]
The undersigned, as applicable, hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Pro Rata Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement (except the representations set forth in the last
sentence of subsection (e) thereof and in subsection (f) thereof (other
than clause (i) thereof)) are correct, before and after giving effect to
the Proposed Pro Rata Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
[if the Borrower is a Designated Subsidiary: the representations and
warranties of such Designated Subsidiary contained in its Designation
Agreement are correct, before and after giving effect to the Proposed Pro
Rata Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date;]
(B) after giving effect to the application of the proceeds of all
Borrowings on the date of such Pro Rata Borrowing (together with any other
resources of the Borrower applied together therewith), no event has
occurred and is continuing, or would result from such Pro Rata Borrowing,
that constitutes a Default or Event of Default;
(C) if such Proposed Pro Rata Borrowing is in an aggregate principal
amount equal to or greater than $500,000,000 and is being made in
connection with any purchase of shares of the Borrower's capital stock or
the capital stock of any other Person, or any purchase of all or
substantially all of the assets of any Person (whether in one transaction
or a series of transactions) or any transaction of the type referred to in
Section 5.02(b) of the Credit Agreement, the statement in clause (B) above
will be true on a PRO FORMA basis as if such transaction or purchase shall
have been completed; and
(D) the aggregate principal amount of the Proposed Pro Rata Borrowing
and all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate unused Commitments of the Lenders.
Very truly yours,
KRAFT FOODS INC.
By
-------------------------
Name:
Title:
[NAME OF BORROWER]
By
-------------------------
Name:
Title:
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
[Date]
JPMorgan Chase Bank, as Administrative Agent
for the Lenders parties to the Credit Agreement
referred to below
Attention: _______________
Ladies and Gentlemen:
[NAME OF BORROWER], refers to the 364-Day Revolving Credit Agreement, dated
as of July 13, 2004 (as amended or modified from time to time, the "CREDIT
AGREEMENT," the terms defined therein being used herein as therein defined),
among
Kraft Foods Inc., the Lenders parties thereto and JPMorgan Chase Bank, as
Administrative Agent, Citibank, N.A., as Administrative Agent, Credit Suisse
First Boston and Deutsche Bank Securities Inc., as Syndication Agents, and ABN
AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA, as Arrangers and Documentation Agents for such
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.07 of
the Credit Agreement that the undersigned hereby requests a Competitive Bid
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such Competitive Bid Borrowing (the "PROPOSED COMPETITIVE BID
BORROWING") is requested to be made:
(A) Date of Competitive Bid Borrowing;
(B) Amount of Competitive Bid Borrowing;
(C) Interest rate basis;
(D) Day count convention;
(E) [Interest Period] [Maturity date];
(F) Interest payment date(s);
(G) Borrower's account location;
(H) [other terms (if any)].
The undersigned, as applicable, hereby certifies that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
[if the Borrower is a Designated Subsidiary: the representations and
warranties of such Designated Subsidiary contained in its Designation
Agreement are correct, before and after giving effect to the Proposed
Competitive Bid Borrowing and to the application of the proceeds therefrom,
as though made on and as of such date;]
(b) after giving effect to the application of the proceeds of all
Borrowings on the date of such Competitive Bid Borrowing (together with any
other resources of the Borrower applied together therewith), no event has
occurred and is continuing, or would result from such Proposed Competitive
Bid Borrowing, that constitutes a Default or Event of Default; and
(c) the aggregate principal amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing
is to be made available to it in accordance with Section 2.07(e) of the Credit
Agreement.
Very truly yours,
KRAFT FOODS INC.
By
-------------------------
Name:
Title:
[NAME OF BORROWER]
By
-------------------------
Name:
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Revolving Credit Agreement, dated as of
July 13, 2004 (as amended or modified from time to time, the "CREDIT AGREEMENT,"
the terms defined therein being used herein as therein defined), among Kraft
Foods Inc., a Virginia corporation, the Lenders parties thereto and JPMorgan
Chase Bank, as Administrative Agent, Citibank, N.A., as Administrative Agent,
Credit Suisse First Boston and Deutsche Bank Securities Inc., as Syndication
Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and
Grand Cayman Branches and HSBC Bank USA, as Arrangers and Documentation Agents
for such Lenders.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Pro Rata Advances owing to the Assignee will be as set forth on Schedule 1
hereto. Each of the Assignor and the Assignee represents and warrants that it is
authorized to execute and deliver this Assignment and Acceptance.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) 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; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or Kraft or the performance or observance by
any Borrower or Kraft of any of its obligations under the Credit Agreement or
any other instrument or document furnished pursuant thereto.
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 4.01 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 JPMorgan Chase, as Administrative Agent, any other Agent,
the Assignor or any other Lender 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 an Eligible Assignee; (iv) represents that (A) the source of any funds it
is using to acquire the Assignor's interest or to make any Advance is not and
will not be plan assets as defined under the regulations of the Department of
Labor of any Plan subject to Title I of ERISA or Section 4975 of the Code or (B)
the assignment or Advance is not and will be not be a non-exempt prohibited
transaction as
defined in Section 406 of ERISA; (v) appoints and authorizes
JPMorgan Chase, as Administrative Agent, to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to JPMorgan Chase, as Administrative Agent, by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vi) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender.
4. This Assignment and Acceptance will be delivered to JPMorgan
Chase, as Administrative Agent, for acceptance and recording by JPMorgan Chase,
as Administrative Agent following its execution. The effective date for this
Assignment and Acceptance (the "EFFECTIVE DATE") shall be the date of acceptance
hereof by JPMorgan Chase, as Administrative Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by JPMorgan Chase, as
Administrative Agent, as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
6. Upon such acceptance and recording by JPMorgan Chase, as
Administrative Agent, from and after the Effective Date, JPMorgan Chase, as
Administrative Agent, shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: U.S.$__________
Aggregate outstanding principal amount of Pro Rata Advances assigned:
U.S.$__________
Effective Date(1): _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By
-------------------------------------
Title:
Dated
__________________, 200_
[NAME OF ASSIGNEE], as Assignee
By
-------------------------------------
Title:
Dated
__________________, 200_
Domestic Lending Office:
[Address]
Accepted this __________ day of _______________, 200_
JPMORGAN CHASE BANK, as Administrative Agent
By
Title:
[Approved this __________ day of _______________, 200_]
[NAME OF BORROWER](2)
By
------------------------
Title:
----------
(1) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to JPMorgan Chase, as
Administrative Agent.
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee."
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
[Date]
JPMorgan Chase Bank, as Administrative Agent
for the Lenders parties to the Credit Agreement
referred to below
Ladies and Gentlemen:
Reference is made to the 364-Day Revolving Credit Agreement, dated as of
July 13, 2004 (as amended or modified from time to time, the "CREDIT AGREEMENT,"
the terms defined therein being used herein as therein defined), among Kraft
Foods Inc., [certain other borrowers parties thereto], the Lenders parties
thereto and JPMorgan Chase Bank, as Administrative Agent, Citibank, N.A., as
Administrative Agent, Credit Suisse First Boston and Deutsche Bank Securities
Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank
AG, New York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and
Documentation Agents for such Lenders.
Please be advised that Kraft hereby designates its undersigned wholly-owned
Subsidiary, ____________ ("DESIGNATED SUBSIDIARY"), as a "Designated Subsidiary"
under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's agreement to
extend credit to it under and on the terms and conditions set forth in the
Credit Agreement, does hereby assume each of the obligations imposed upon a
"Designated Subsidiary" and a "Borrower" under the Credit Agreement and agrees
to be bound by the terms and conditions of the Credit Agreement. In furtherance
of the foregoing, the Designated Subsidiary hereby represents and warrants to
each Lender as follows:
(a) The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of _________________.
(b) The execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement and the
Notes to be delivered by it are within the Designated Subsidiary's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene (i) the Designated Subsidiary's charter or
by-laws or (ii) in any material respect, any law, rule, regulation or order
of any court or governmental agency or contractual restriction binding on
or affecting it.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Designated
Subsidiary of this Designation Agreement, the Credit Agreement or the Notes
to be delivered by it.
(d) This Designation Agreement is, and the Notes to be delivered by
the Designated Subsidiary when delivered will be, legal, valid and binding
obligations of the Designated Subsidiary enforceable against the Designated
Subsidiary in accordance with their respective terms, subject to the effect
of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether such enforceability is sought in a proceeding
in equity or at law) and an implied covenant of good faith and fair
dealing.
(e) There is no pending or threatened action or proceeding affecting
the Designated Subsidiary or any of its Subsidiaries before any court,
governmental agency or arbitrator that purports to affect the legality,
validity or enforceability of this Designation Agreement, the Credit
Agreement or any Note of the Designated Subsidiary.
Very truly yours,
KRAFT FOODS INC.
By
-------------------------
Name:
Title:
[DESIGNATED SUBSIDIARY]
By
-------------------------
Name:
Title:
2
EXHIBIT E-1 - FORM OF
OPINION OF COUNSEL
FOR KRAFT
[Letterhead of Hunton & Xxxxxxxx LLP]
[Effective Date]
To each of the Lenders party
to the Credit Agreement referred to below
KRAFT FOODS INC.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iii) of the
364-Day Revolving Credit Agreement, dated as of July 13, 2004 (the "CREDIT
AGREEMENT"), among Kraft Foods Inc., the Lenders parties thereto and JPMorgan
Chase Bank, as Administrative Agent, Citibank, N.A., as Administrative Agent,
Credit Suisse First Boston and Deutsche Bank Securities Inc., as Syndication
Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and
Grand Cayman Branches and HSBC Bank USA, as Arrangers and Documentation Agents
for such Lenders. Terms defined in the Credit Agreement are used herein as
therein defined.
We have acted as counsel for Kraft in connection with the preparation,
execution and delivery of the Credit Agreement.
In that connection, we have examined the following documents:
(1) The Credit Agreement.
(2) The documents furnished by Kraft pursuant to Article III of the
Credit Agreement.
(3) The Articles of Incorporation of Kraft and all amendments thereto
(the "CHARTER").
(4) The by-laws of Kraft and all amendments thereto (the "BY-LAWS").
We have also examined the originals, or copies certified to our
satisfaction, of such corporate records of Kraft, certificates of public
officials and of officers of Kraft, and agreements, instruments and other
documents, as we have deemed relevant and necessary as a basis for the opinions
expressed below. As to questions of fact material to such opinions, we have,
when relevant facts were not independently established by us, relied upon
certificates of Kraft or its officers or of public officials. We have assumed
the due execution and delivery, pursuant to due authorization, of the Credit
Agreement by the Initial Lenders and JPMorgan Chase, as Administrative Agent,
Citibank, N.A., as Administrative Agent, Credit Suisse First Boston and Deutsche
Bank Securities Inc., as Syndication Agents, and ABN AMRO Bank N.V.,
BNP Paribas, Dresdner Bank AG, New York and Grand Cayman Branches and HSBC Bank
USA, as Arrangers and Documentation Agents.
Our opinions expressed below are limited to the law of the State of New
York, the Commonwealth of Virginia and the Federal law of the United States.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. Kraft is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia.
2. The execution, delivery and performance by Kraft of the Credit
Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within Kraft's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Charter or the By-laws or (ii) any law, rule or regulation applicable to
Kraft (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System) or (iii) to our knowledge, any
contractual restriction binding on or affecting Kraft. The Credit Agreement
and any Notes delivered on the date hereof have been duly executed and
delivered on behalf of Kraft.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
Kraft of the Credit Agreement and the Notes.
4. The Credit Agreement is the legal, valid and binding obligation
of Kraft enforceable against Kraft in accordance with its terms. The Notes
issued on the date hereof, if any, are the legal, valid and binding
obligations of Kraft, enforceable against Kraft in accordance with their
respective terms.
The opinion set forth in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
We express no opinion with respect to:
(A) The effect of any provision of the Credit Agreement which is
intended to permit modification thereof only by means of an agreement in writing
by the parties thereto;
(B) The effect of any provision of the Credit Agreement insofar as
it provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
2
(C) The effect of any provision of the Credit Agreement imposing
penalties or forfeitures;
(D) The enforceability of any provision of the Credit Agreement to
the extent that such provision constitutes a waiver of illegality as a defense
to performance of contract obligations; or
(E) The effect of any provision of the Credit Agreement relating
to indemnification or exculpation in connection with violations of any
securities laws or relating to indemnification, contribution or exculpation in
connection with willful, reckless or criminal acts or gross negligence of the
indemnified or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Agreement which relate
to forum selection (including, without limitation, any waiver of any objection
to venue or any objection that a court is an inconvenient forum), we note that
under NYCPLR Section 510, a New York State court may have discretion to transfer
the place of trial, and under 28 U.S.C. Section 1404(a), a United States
District Court has discretion to transfer an action from one Federal court to
another.
This opinion is being furnished to you pursuant to Section 3.01(e)(iii) of
the Credit Agreement, is solely for the benefit of you and your counsel, and is
not intended for, and may not be relied upon by, any other person or entity
without our prior written consent. We undertake no duty to inform you of events
occurring subsequent to the date hereof.
Very truly yours,
3
EXHIBIT E-2 - FORM OF
OPINION OF COUNSEL
FOR KRAFT
[Effective Date]
To each of the Lenders party
to the Credit Agreement referred to below
KRAFT FOODS INC.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(iii) of the
364-Day Revolving Credit Agreement, dated as of July 13, 2004 (the "CREDIT
AGREEMENT"), among Kraft Foods Inc. ("KRAFT"), the Lenders parties thereto and
JPMorgan Chase Bank, as Administrative Agent, Citibank, N.A., as Administrative
Agent, Credit Suisse First Boston and Deutsche Bank Securities Inc., as
Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New
York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and Documentation
Agents for such Lenders. Terms defined in the Credit Agreement are used herein
as therein defined.
I have acted as counsel for Kraft in connection with the preparation,
execution and delivery of the Credit Agreement.
In that connection, I have examined originals, or copies certified to my
satisfaction, of such corporate records of Kraft, certificates of public
officials and of officers of Kraft, and agreements, instruments and other
documents, as I have deemed relevant and necessary as a basis for the opinions
expressed below. As to questions of fact material to such opinions, I have, when
relevant facts were not independently established by me, relied upon
certificates of Kraft or its officers or of public officials.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the opinion that, to the best of my knowledge, (i) there is
no pending or threatened action or proceeding against Kraft or any of its
Subsidiaries before any court, governmental agency or arbitrator (a
"PROCEEDING") that purports to affect the legality, validity, binding effect or
enforceability of the Credit Agreement or the Notes, if any, or the consummation
of the transactions contemplated thereby, and (ii) except for Proceedings
disclosed in the Annual Report on Form 10-K of Kraft for the fiscal year ended
December 31, 2003, its Quarterly Report on Form 10-Q for the quarter ended March
31, 2004, any Current Reports on Form 8-K filed subsequent to March 31, 2004 but
prior to July 13, 2004, or, with respect to Proceedings commenced after the date
of the most recent such document but prior to July 13, 2004, a certificate
delivered to the Lenders and attached hereto, there are no Proceedings that are
likely to have a materially adverse effect upon the financial position or
results of operations of Kraft and its Subsidiaries taken as a whole.
Very truly yours,
EXHIBIT F - FORM OF
OPINION OF COUNSEL
FOR DESIGNATED SUBSIDIARY
[Effective Date]
To each of the Lenders parties
to the Credit Agreement referred to below
KRAFT FOODS INC.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.02(e) of the 364-Day
Revolving Credit Agreement, dated as of July 13, 2004 (the "CREDIT AGREEMENT"),
among Kraft Foods Inc. ("KRAFT"), the Lenders parties thereto and JPMorgan Chase
Bank, as Administrative Agent, Citibank, N.A., as Administrative Agent, Credit
Suisse First Boston and Deutsche Bank Securities Inc., as Syndication Agents and
ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA, as Arrangers and Documentation Agents for such
Lenders. Terms defined in the Credit Agreement are used herein as therein
defined.
We have acted as counsel for __________ (the "DESIGNATED SUBSIDIARY") in
connection with the preparation, execution and delivery of the Designation
Agreement.
In that connection, we have examined the following documents:
(1) The Designation Agreement.
(2) The Credit Agreement.
(3) The documents furnished by the Designated Subsidiary pursuant to
Article III of the Credit Agreement.
(4) The [Articles] [Certificate] of Incorporation of the Designated
Subsidiary and all amendments thereto (the "Charter").
(5) The by-laws of the Designated Subsidiary and all amendments
thereto (the "BY-LAWS").
We have also examined the originals, or copies certified to our
satisfaction, of such corporate records of the Designated Subsidiary,
certificates of public officials and of officers of the Designated Subsidiary,
and agreements, instruments and other documents, as we have deemed relevant and
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, we have, when relevant facts were not independently
established by us, relied upon certificates of the Designated Subsidiary or its
officers or of public officials. We have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the Initial Lenders
and JPMorgan Chase, as Administrative Agent, Citibank, N.A.,
as Administrative Agent, Credit Suisse First Boston and Deutsche Bank Securities
Inc., as Syndication Agents, and ABN AMRO Bank N.V., BNP Paribas, Dresdner Bank
AG, New York and Grand Cayman Branches and HSBC Bank USA, as Arrangers and
Documentation Agents.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Designated Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of_____________.
2. The execution, delivery and performance by the Designated
Subsidiary of the Designation Agreement, the Credit Agreement and the Notes
to be delivered by it, and the consummation of the transactions
contemplated thereby, are within the Designated Subsidiary's corporate
powers, have been duly authorized by all necessary corporate action, and do
not contravene (i) the Charter or the By-laws or (ii) any law, rule or
regulation applicable to the Designated Subsidiary (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) to our knowledge, any contractual restriction binding on
or affecting the Designated Subsidiary. The Designation Agreement, the
Credit Agreement and the Notes delivered by the Designated Subsidiary on
the date hereof have been duly executed and delivered on behalf of the
Designated Subsidiary.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Designated Subsidiary of the Designation Agreement, the Credit
Agreement and the Notes delivered by the Designated Subsidiary.
4. The Designation Agreement and the Credit Agreement are the legal,
valid and binding obligations of the Designated Subsidiary enforceable
against the Designated Subsidiary in accordance with their respective
terms. The Notes issued on the date hereof, if any, by the Designated
Subsidiary are the legal, valid and binding obligations of the Designated
Subsidiary, enforceable against the Designated Subsidiary in accordance
with their respective terms.
5. There is, to the best of my knowledge, no pending or threatened
action or proceeding against the Designated Subsidiary or any of its
Subsidiaries before any court, governmental agency or arbitrator that
purport to affect the legality, validity, binding effect or enforceability
of the Designation Agreement, the Credit Agreement or any of the Notes
delivered by the Designated Subsidiary or the consummation of the
transactions contemplated thereby.
2
The opinion set forth in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Very truly yours,
3
EXHIBIT G
FORM OF OPINION OF COUNSEL
FOR JPMORGAN CHASE,
AS ADMINISTRATIVE AGENT
[Letterhead of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP]
[Effective Date]
JPMorgan Chase Bank and Citibank, N.A.,
as Adminstrative Agents
The Lenders listed on Schedule I hereto which are parties to the Credit
Agreement on the date hereof
Re: 364-Day Revolving Credit Agreement dated as
of July 13, 2004 (the "Credit Agreement")
among Kraft Foods Inc. (the "Company"), and
Credit Suisse First Boston and Deutsche Bank
Securities Inc., as Syndication Agents, and
ABN AMRO Bank N.V., BNP Paribas,
Dresdner Bank AG, New York and Grand
Cayman Branches and HSBC Bank USA as
Arrangers and Documentation Agents
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank, as Administrative Agent,
in connection with the preparation, execution and delivery of the Credit
Agreement.
This opinion is delivered to you pursuant to Section 3.01(e)(iv) of the
Credit Agreement. Terms used herein which are defined in the Credit Agreement
shall have the respective meanings set forth in the Credit Agreement, unless
otherwise defined herein.
In connection with this opinion, we have examined a copy of the Credit
Agreement signed by the Company and by the Administrative Agents and the
Lenders.
We also have examined the originals, or duplicates or certified or
conformed copies, of such records, agreements, instruments and other documents
and have made such other investigations as we have deemed relevant and necessary
in connection with the opinions expressed herein. As to questions of fact
material to this opinion, we have relied upon certificates of public officials
and of officers and representatives of the Company. In addition,
we have examined, and have relied as to matters of fact upon, the
representations made in the Credit Agreement.
In rendering the opinion set forth below, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as duplicates or certified or conformed copies,
and the authenticity of the originals of such latter documents.
In rendering the opinion set forth below we have assumed that (1) the
Credit Agreement is a valid and legally binding obligation of each of the
Lenders parties thereto, (2) the Company is duly organized and validly existing
and in good standing under the laws of the jurisdiction in which it is organized
and of each other jurisdiction in which the conduct of its business or ownership
of its property makes such qualification necessary, has the corporate power and
authority to execute, deliver and perform its obligations under the Credit
Agreement and has duly authorized, executed and delivered the Credit Agreement
in accordance with its Articles of Incorporation and By-laws or other similar
organizational documents, and (3)(a) execution, delivery and performance by the
Company of the Credit Agreement do not contravene its Articles of Incorporation
or By-laws or other similar organizational documents, (b) execution, delivery
and performance by the Company of the Credit Agreement do not violate, or
require any consent not obtained under, the laws of the jurisdiction in which it
is organized or any other applicable laws or regulations or any order, writ,
injunction or decree of any court or other governmental authority binding on the
Company, and (c) execution, delivery and performance by the Company of the
Credit Agreement do not constitute a breach or violation of, or require any
consent not obtained under, any agreement or instrument which is binding upon
the Company.
Based upon and subject to the foregoing, and subject to the qualifications
and limitations set forth herein, we are of the opinion that the Credit
Agreement constitutes the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms.
Our opinion set forth above is subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing.
We express no opinion with respect to:
(A) the effect of any provision of the Credit Agreement which is
intended to permit modification thereof only by means of an agreement in writing
by the parties thereto;
(B) the effect of any provision of the Credit Agreement insofar as
it provides that any Person purchasing a participation from a Lender or other
Person may exercise set-off or similar rights with respect to such participation
or that any Lender or other Person may exercise set-off or similar rights other
than in accordance with applicable law;
(C) the effect of any provision of the Credit Agreement imposing
penalties or forfeitures;
2
(D) the enforceability of any provision of the Credit Agreement to
the extent that such provision constitutes a waiver of illegality as a defense
to performance of contract obligations; or
(E) the effect of any provision of the Credit Agreement relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution.
In connection with the provisions of the Credit Agreement which relate
to forum selection (including, without limitation, any waiver of any objection
to venue or any objection that a court is an inconvenient forum), we note that
under NYCPLR Section 510, a New York State court may have discretion to transfer
the place of trial, and under 28 U.S.C. Section 1404(a), a United States
District Court has discretion to transfer an action from one Federal court to
another.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Federal law of the United States.
This opinion letter is rendered to you in connection with the
above-described transaction. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without our prior written consent. This opinion letter may
be furnished to, but may not be relied upon by, a regulatory authority entitled
to receive it.
Very truly yours,
3
EXHIBIT H - FORM OF
NEW LENDER SUPPLEMENT
NEW LENDER SUPPLEMENT, dated _____ __, 200__ to the 364-Day Revolving
Credit Agreement, dated as of July 13, 2004 (as amended or modified from time to
time, the "CREDIT AGREEMENT," the terms defined therein being used herein as
therein defined unless otherwise defined herein), among Kraft Foods Inc.
("KRAFT"), the Lenders parties thereto and JPMorgan Chase Bank, as
Administrative Agent, Citibank, N.A., as Administrative Agent, Credit Suisse
First Boston and Deutsche Bank Securities Inc., as Syndication Agents, and ABN
AMRO Bank N.V., BNP Paribas, Dresdner Bank AG, New York and Grand Cayman
Branches and HSBC Bank USA as Arrangers and Documentation Agents for such
Lenders.
W I T N E S S E T H :
WHEREAS, the undersigned desires to become a party to the Credit
Agreement pursuant to Section 2.10(b) thereof;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to provide Kraft with a Commitment in the
amount of U.S.$_________ , and to become a Lender to be bound by and
entitled to the benefits of the Credit Agreement as of the Effective Date
(as defined below).
2. The undersigned (i) represents and warrants that it is legally
authorized to enter into this New Lender Supplement; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this New Lender Supplement;
(iii) agrees that it has made and will, independently and without reliance
upon JPMorgan Chase, as Administrative Agent, any other Agent or any other
Lender 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; (iv) confirms that
it is an Eligible Assignee; (v) represents that (A) the source of any funds
it is using to make any Advance is not and will not be plan assets as
defined under the regulations of the Department of Labor of any plan
subject to Title I of ERISA or Section 4975 of the Code or (B) its
Commitment or any Advance is not and will not be a non-exempt prohibited
transaction as defined in Section 406 of ERISA; (vi) appoints and
authorizes JPMorgan Chase, as Administrative Agent, to take such action as
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to JPMorgan Chase, as Administrative
Agent, by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; and (vii) agrees that it will perform in
accordance with its terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender.
3. The undersigned's Domestic Lending Office for the purposes of the
Credit Agreement is as follows:
[Name of New Lender]
[Address of Lending Office]
[Name of Contact]
[Telephone number]
[Fax number]
4. This New Lender Supplement will be delivered to JPMorgan Chase,
as Administrative Agent, by Kraft for recording by JPMorgan Chase, as
Administrative Agent, following its execution. The effective date for this
New Lender Supplement (the "EFFECTIVE DATE"), shall be the date of
acceptance hereof by Kraft.
5. Upon such recording by JPMorgan Chase, as Administrative Agent,
as of the Effective Date, the undersigned shall be a party to the Credit
Agreement and, to the extent provided in this New Lender Supplement, have
the rights and obligations of a Lender thereunder.
6. This New Lender Supplement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This New Lender Supplement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart to this New Lender Supplement by telecopier
shall be effective as delivery of a manually executed counterpart of this
New Lender Supplement.
IN WITNESS WHEREOF, the undersigned has caused this New Lender
Supplement to be executed and delivered by a duly authorized officer on the date
first above written.
[INSERT NAME OF NEW LENDER]
By:
----------------------------------
Name:
Title:
Accepted and agreed this _____ day of
______________, 200_.
KRAFT FOODS INC.
By:
----------------------------------
Name:
Title:
2
