FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of October 3, 1997 (this "AMENDATORY
AGREEMENT"), to the Existing Credit Agreement (as defined below), is made among
KEEBLER CORPORATION (formerly known as Keebler Holding Corp.), a Delaware
corporation (the "BORROWER"), the various financial institutions signatories
hereto (the "LENDERS"), the Co-Agents (as defined below) and THE BANK OF NOVA
SCOTIA, as administrative agent (the "ADMINISTRATIVE AGENT") for the Lenders.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, the Co-Agents and the
Administrative Agent are parties to an Second Amended and Restated Credit
Agreement, dated as of April 8, 1997 (as further amended, supplemented, amended
and restated or otherwise modified to the date hereof, the "EXISTING CREDIT
AGREEMENT");
WHEREAS, the Borrower has requested that the Lenders amend certain
pricing provisions contained in the Existing Credit Agreement and release
certain of the Collateral, subject in part to the Borrower achieving investment
grade status; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects as provided below (the Existing Credit Agreement, as so amended by this
Amendatory Agreement, being referred to as the "CREDIT AGREEMENT");
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. CERTAIN DEFINITIONS. The following terms (whether or not
underscored) when used in this Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"AMENDATORY AGREEMENT" is defined in the PREAMBLE.
"AMENDMENT NO. 1" is defined in SUBPART 3.1.
"BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in the THIRD RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"LENDERS" is defined in the PREAMBLE.
"FIRST AMENDMENT EFFECTIVE DATE" is defined in SUBPART 3.1.
"IMPLIED DEBT RATING" means the implied rating of the Borrower's senior
Indebtedness from either S&P or Moody's.
SUBPART 1.2. OTHER DEFINITIONS. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with SUBPART 2.1; except as so amended, the Existing Credit Agreement shall
continue in full force and effect in accordance with its terms.
SUBPART 2.1. AMENDMENTS TO ARTICLE I. Article I of the Existing Credit
Agreement is hereby amended in accordance with SUBPARTS 2.1.1 and 2.1.2.
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"AMENDMENT NO. 1" means the First Amendment to Second Amended
and Restated Credit Agreement, dated as of October 3, 1997, among the
Borrower, the Lenders, the Co-Agents and the Administrative Agent.
"FIRST AMENDMENT EFFECTIVE DATE" is defined in
Subpart 3.1 of Amendment No. 1.
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SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is further
amended as follows:
(a) The pricing chart contained in the definition of
"Applicable Commitment Fee Margin" is hereby amended in its entirety to
read as follows:
Applicable
DEBT TO EBITDA RATIO COMMITMENT FEE MARGIN
-------------------- ---------------------
Greater than or equal to 3.5:1 0.375%
Greater than or equal to 3.00:1
and less than 3.50:1 0.300%
Greater than or equal to 2.50:1
and less than 3.00:1 0.250%
Greater than or equal to 2.00:1
and less than 2.50:1 0.200%
Greater than or equal to 1.50:1
and less than 2.00:1 0.150%
Less than 1.50:1 0.125%
(b) The pricing chart contained in, the definition of
"Applicable Margin" is hereby amended in its entirety to read as
follows:
Applicable Applicable
Margin For Base Margin For LIBO
DEBT TO EBITDA RATIO RATE LOANS RATE LOANS
-------------------- --------------- ---------------
Greater than or equal to 3.50:1 0.375% 1.375%
Greater than or equal to 3.00:1
and less than 3.50:1 0.125% 1.125%
Greater than or equal to 2.50:1
and less than 3.00:1 0.000% 0.875%
Greater than or equal to 2.00:1
and less than 2.50:1 0.000% 0.625%
Greater than or equal to 1.50:1
and less than 2.00:1 0.000% 0.500%
Less than 1.50:1 0.000% 0.400%
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PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. FIRST AMENDMENT EFFECTIVE DATE. This Amendatory Agreement
(and the amendments and modifications contained herein) shall become effective,
and shall thereafter be referred to as "AMENDMENT NO. 1", on the date (the
"FIRST AMENDMENT EFFECTIVE DATE") when all of the conditions set forth in this
SUBPART 3.1 have been satisfied.
SUBPART 3.1.1. EXECUTION OF COUNTERPARTS. The Administrative Agent
shall have received counterparts of this Amendatory Agreement, duly executed and
delivered on behalf of the Borrower and each of the Lenders.
SUBPART 3.1.2. DELIVERY OF AFFIRMATION AND CONSENT. The Administrative
Agent shall have received the Affirmation and Consent duly executed and
delivered by the parties thereto in substantially the form of ANNEX I hereto.
SUBPART 3.1.3. LEGAL DETAILS, ETC. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials, as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendatory Agreement shall be satisfactory to
the Administrative Agent and its counsel.
PART IV
RELEASE OF COLLATERAL
Each of the Lenders hereby acknowledges and agrees that (a) on and as
of the First Amendment Effective Date, all Collateral granted by the Borrower
and each of the Borrower's Subsidiaries pursuant to a Loan Document (other than
a Pledge Agreement) shall be released from the Lien of such Loan Document and
(b) as soon as practicable after the Administrative Agent receives evidence
reasonably satisfactory to it from the Borrower that an Implied Debt Rating of
BBB- from S&P or Baa3 from Xxxxx'x is currently in effect, all Collateral
pledged by Holdings, the Borrower and each of the Borrower's Subsidiaries
pursuant to a Pledge Agreement shall be released from the Lien of such Pledge
Agreement. Each of the Lenders hereby authorizes the Administrative Agent to
take all actions and execute all documentation necessary to effect the
foregoing. Notwithstanding the foregoing, the Borrower
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acknowledges and agrees that the provisions of Section 7.2.3 of the Credit
Agreement shall remain in full force and effect.
PART V
MISCELLANEOUS
SUBPART 5.1. CROSS-REFERENCES. References in this Amendatory Agreement
to any Part or Subpart are, unless otherwise specified or otherwise required by
the context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 5.2. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT. This
Amendatory Agreement is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement.
SUBPART 5.3. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. The Borrower
represents and warrants on the First Amendment Effective Date for its
Subsidiaries and itself, both before and after giving effect to this Amendatory
Agreement, as follows:
(a) the representations and warranties set forth in Article VI
of the Credit Agreement and in each other Loan Document are, in each
case, true and correct in all material respects (unless stated to
relate solely to an earlier date, in which case such representations
and warranties were true and correct in all material respects as of
such earlier date);
(b) no material adverse development has occurred in any
litigation, action, proceeding, labor controversy, arbitration or
governmental investigation disclosed pursuant to Section 6.7 of the
Credit Agreement;
(c) the sum of (x) the aggregate outstanding principal amount
of all Revolving Loans and Swing Line Loans and (y) all Letter of
Credit Outstandings does not exceed the Revolving Loan Commitment
Amount; and
(d) no Default has occurred and is continuing.
SUBPART 5.4. SUCCESSORS AND ASSIGNS. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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SUBPART 5.5. COUNTERPARTS. This Amendatory Agreement may be executed by
the parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 5.6. GOVERNING LAW. THIS AMENDATORY AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendatory
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
KEEBLER CORPORATION
By: /s/ E. XXXXXX XXXXXXX
------------------------------
Name: E. Xxxxxx XxXxxxx
Title: Sr. Vice President and
Chief Financial Officer
THE BANK OF NOVA SCOTIA, as
Administrative Agent, the Issuer
and a Lender
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Lender
By: /s/ XXXXX XXXXXXX
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
BANK OF MONTREAL, as a Co-Agent and
a Lender
By: /s/ XXXXX X. XXXXX
------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
SUNTRUST BANK, ATLANTA, as a Co-Agent
and a Lender
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
NATIONSBANK, N.A. successor by merger to
NATIONSBANK, N.A. (SOUTH), as a
Co-Agent and a Lender
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ XXXXXX XXX
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Name: Xxxxxx Xxx
Title: Vice President
By: /s/ XXXXXX XXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
THE NORTHERN TRUST COMPANY
By: /s/ J. XXXX XXXXX
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Name: J. Xxxx Xxxxx
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,"RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SOCIETE GENERALE
By: /s/ XXXX X. XXXXX
------------------------------
Name: Xxxx X. Xxxxx
Title: Director
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ J. XXXXXXX XXXXX
------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Senior Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/ XXXXXX X. VAN TULDER
------------------------------
Name: Xxxxxx X. van Tulder
Title: Vice President and Manager
Multinational Group
By: /s/ XXXX XXXX
------------------------------
Name: Xxxx Xxxx
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS
By: /s/ XXXXXX XXXXXX DU XXXXXX
------------------------------
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President and
General Manager
COMERICA BANK
By: /s/ XXXXXXX X. BLOCK
------------------------------
Name: Xxxxxxx X. Block
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
GENERALE BANK, NEW YORK BRANCH
By: /s/ A. XXXXX XXXXXXXX
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Name: A. Xxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
HIBERNIA NATIONAL BANK
By: /s/ XXXXXXXXXXX X. XXXXX
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Assistant Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ XXXXXX X. XXXXXX, XX.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
FIRSTRUST BANK
By: /s/ XXXXXX X'XXXXXX
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Name: Xxxxxx X'Xxxxxx
Title: Chief Banking Officer
ANNEX I
AFFIRMATION AND CONSENT
-----------------------
October 3, 0000
Xxx Xxxx xx Xxxx Xxxxxx,
as Administrative Agent
under the Credit Agreement
referred to below
-and-
Each of the Lenders party
to the Credit Agreement
referred to below.
KEEBLER CORPORATION
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Ladies and Gentlemen:
This Affirmation and Consent is being delivered to the Administrative
Agent and the Lenders pursuant to Subpart 3.1.2 of the First Amendment, dated as
of the date hereof ("AMENDMENT NO. 1"), to the Second Amended and Restated
Credit Agreement, dated as of April 8, 1997 (as further amended or otherwise
modified prior to the date hereof, the "EXISTING CREDIT AGREEMENT"), among
Keebler Corporation (formerly known as Keebler Holding Corp.), a Delaware
corporation (the "BORROWER"), The Bank of Nova Scotia, as Administrative Agent,
the various financial institutions as are, or may from time to time become,
parties thereto (the "LENDERS") and the Co-Agents named therein. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in, or by reference in, Amendment No. 1.
By its signature below, each of the undersigned Obligors hereby
acknowledges the amendments to the Existing Credit Agreement pursuant to the
terms and provisions set forth in Amendment No. 1. Each of the undersigned
Obligors hereby reaffirms, as of the First Amendment Effective Date, (i) the
covenants and agreements contained in each Loan Document to which it is a party,
including, in each case, as such covenants and agreements may be modified by
Amendment No. 1 and the transactions contemplated thereby, (ii) its grant of
security interest pursuant to the Subsidiary Pledge Agreement (in the case of
each Subsidiary) and the Holdings Pledge Agreement (in the case of Holdings),
and (iii) its guarantee of payment of the Obligations pursuant to the Subsidiary
Guaranty and the Holdings Guaranty (as applicable).
Each of the undersigned Obligors hereby certifies that, as of the date
hereof (both before and after giving effect to the occurrence of the First
Amendment Effective Date), the representations and warranties made by it in the
Loan Documents to which it is a party are true and correct in all material
respects with the same effect as if made on the date hereof (unless stated to
relate solely to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date).
Each of the undersigned Obligors further confirms that each Loan
Document to which it is a party is and shall continue to be in full force and
effect and the same are hereby ratified and confirmed in all respects, except
that upon the occurrence of the First Amendment Effective Date, all references
in such Loan Documents to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", or words of similar import shall mean the Credit
Agreement and the Loan Documents, as the case may be, in each case after giving
effect to the amendments and other modifications provided for in Amendment No.
1.
Each of the undersigned Obligors hereby acknowledges and agrees that
the acceptance by the Administrative Agent and each Lender of this document
shall not be construed in any manner to establish any course of dealing on the
Administrative Agent's or Lender's part, including the providing of any notice
or the requesting of any acknowledgement not otherwise expressly provided for in
any Loan Document with respect to any future amendment, waiver, supplement or
other modification to any Loan Document or any arrangement contemplated by any
Loan Document.
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IN WITNESS WHEREOF, each of the undersigned Obligors have executed and
delivered this Affirmation and Consent as of the date first above written.
INFLO HOLDINGS CORPORATION
By: /s/ E. XXXXXX XXXXXXX
------------------------------
Name: E. Xxxxxx XxXxxxx
Title: Sr. Vice President and Chief
Financial Officer
BAKE-LINE PRODUCTS INC.
HOLLOW TREE COMPANY
ILLINOIS BAKING CORPORATION
XXXXXXXX'X READY-CRUST COMPANY
KEEBLER COOKIE AND CRACKER COMPANY
KEEBLER COMPANY/PUERTO RICO, INC.
XXXXXXX X.X. INC.
KEEBLER COMPANY
KEEBLER-GEORGIA, INC.
STEAMBOAT CORPORATION
By: /s/ E. XXXXXX XXXXXXX
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Name: E. Xxxxxx XxXxxxx
Title: Sr. Vice President and Chief
Financial Officer
KEEBLER LEASING CORP.
By: /s/ E. XXXXXX XXXXXXX
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Name: E. Xxxxxx XxXxxxx
Title: Sr. Vice President and Chief
Financial Officer
