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EXHIBIT 10.20
FORM OF THIRD AMENDMENT AND WAIVER TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT AND WAIVER, dated as of January 5, 1998 (this
"Amendatory Agreement") to the Existing Credit Agreement (as defined below) is
among KEEBLER CORPORATION (formerly known as Keebler Holding Corp.), a Delaware
corporation (the "Borrower"), the Lenders (as defined below) signatories hereto
and THE BANK OF NOVA SCOTIA, as administrative agent (the "Administrative
Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, certain financial institutions from time to time
parties thereto (the "Lenders"), The First National Bank of Chicago, Bank of
Montreal, SunTrust Bank, Atlanta and Nationsbank, N.A. (South) (collectively
referred to as the "Co-Agents") and the Administrative Agent are parties to the
Second Amended and Restated Credit Agreement, dated as of April 8, 1997, as
amended by Amendment No. 1 thereto, dated as of October 3, 1997, and Amendment
No. 2 thereto, dated as of November 17, 1997 (as further amended, supplemented,
amended and restated or otherwise modified to the date hereof, the "Existing
Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders amend certain
terms contained in the Existing Credit Agreement to, among other things, modify
the definition of Change of Control and allow for the redemption of the
Subordinated Notes; and
WHEREAS, the Lenders have agreed, subject to the terms and conditions
hereinafter set forth, to amend the Existing Credit Agreement in certain
respects and grant certain consents as provided below (the Existing Credit
Agreement, as so amended or otherwise modified by this Amendatory Agreement,
being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
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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. 3" is defined in Subpart 4.1.
"Borrower" is defined in the preamble.
"Co-Agents" is defined in the first recital.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Lenders" is defined in the first recital.
"Third Amendment Effective Date" is defined in Subpart 4.1.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided
in the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended, and the
Lenders hereby consent to the Borrower consummating certain events, in each
case in accordance with this Part; except as so amended or otherwise modified
by the consents granted below, the Existing Credit Agreement and the Loan
Documents shall continue in full force and effect in accordance with their
terms.
SUBPART 2.1. Amendments to Article I. Article I of the Existing
Credit Agreement is hereby amended in accordance with Subparts 2.1.1 and 2.1.2.
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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. 3" means the Third Amendment and Consent, dated
as of January 5, 1998, to this Agreement among the Borrower, the Lenders
parties thereto and the Administrative Agent.
"Change of Control Put" means the right of the Subordinated
Noteholders to cause the Borrower to purchase Subordinated Notes pursuant to
Section 3.15 of the Indenture in connection with the disposition of Capital
Stock of the Borrower by the Permitted ARTAL Investor Group.
"Third Amendment Effective Date" is defined in Subpart 4.1 of
Amendment No. 3.
SUBPART 2.1.2. Section 1.1 of the Existing Credit Agreement is further
amended as follows:
(a) The definition of "Change in Control" is hereby amended
in its entirety to read as follows:
"Change in Control" means
(A) any "person" or "group" (as such terms are used in Rule
13d-5 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and Sections 13(d) and 14(d) of the Exchange Act) of persons (other than
the Permitted ARTAL Investor Group or Flowers or, in either case, any of their
wholly-owned Subsidiaries) becomes, directly or indirectly, in a single
transaction or in a related series of transactions by way of merger,
consolidation, or other business combination or otherwise, the "beneficial
owner" (as such term is used in Rule 13d-3 of the Exchange Act) of more than
20% of the total voting power in the aggregate of all classes of Capital Stock
of the Borrower then outstanding entitled to vote generally in elections of
directors of the Borrower; or
(b) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the Board of Directors of the
Borrower (together with any new directors whose election to such Board or whose
nomination for election by the stockholders of the Borrower was approved by
ARTAL or Flowers or a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Borrower then in office.
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PART III
LIMITED WAIVER
By their signatures hereto, each of the Lenders hereby waives
(a) the use of proceeds restrictions contained in clause (a)
of Section 7.1.9 of the Existing Credit Agreement with respect to Revolving
Loans in order to allow the Borrower to apply Revolving Loans to pay for the
purchase of any Subordinated Notes tendered as a result of the Change of
Control Put;
(b) the prohibition on payments in connection with
Subordinated Debt contained in clause (b) of Section 7.2.6 of the Existing
Credit Agreement to the extent necessary to permit the Borrower to purchase
and/or redeem any Subordinated Notes tendered in connection with the Change of
Control Put, and the Lenders agree that the amount so expended shall not cause
a reduction in the amount of Subordinated Notes permitted to be redeemed,
purchased or defeased pursuant to clause (g) of Section 7.2.6 of the Existing
Credit Agreement; and
(c) any Default under Section 8.1.12 of the Existing Credit
Agreement resulting from the requirement that the Borrower make an offer to
purchase or redeem Subordinated Notes in connection with the Change of Control
Put.
In addition, each of the Lenders hereby authorizes the Administrative Agent to
take all actions and to execute all documents necessary to implement the
foregoing.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Third 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. 3", on the
date (the "Third Amendment Effective Date") when all of the conditions set
forth in this Subpart 4.1 have been satisfied.
SUBPART 4.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendatory Agreement, duly executed
and delivered on behalf of the Borrower and the Required Lenders.
SUBPART 4.1.2. 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
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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 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 Third 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
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Title:
THE BANK OF NOVA SCOTIA, as
Administrative Agent, the Issuer and a Lender
By
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Lender
By
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Title:
9
BANK OF MONTREAL, as a Co-Agent and a
Lender
By
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Title:
10
SUNTRUST BANK, ATLANTA, as a Co-Agent
and a Lender
By
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Title:
By
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Title:
11
NATIONSBANK, N.A. (SOUTH), as a Co-Agent
and a Lender
By
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Title:
12
ABN AMRO BANK N.V., NEW YORK BRANCH
By
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Title:
By
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Title:
13
THE NORTHERN TRUST COMPANY
By
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Title:
14
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., NEW YORK
BRANCH
By
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Title:
By
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Title:
15
SOCIETE GENERALE
By
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Title:
16
WACHOVIA BANK OF GEORGIA, N.A.
By
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Title:
17
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By
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Title:
By
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Title:
18
BANQUE NATIONALE DE PARIS
By
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Title:
19
COMERICA BANK
By
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Title:
20
THE FUJI BANK, LIMITED
By
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Title:
00
XXXXXXXX XXXX, XXX XXXX BRANCH
By
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Title:
By
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Title:
22
HIBERNIA NATIONAL BANK
By
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Title:
23
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By
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Title:
24
FIRSTRUST BANK
By
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Title:
