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EXHIBIT 4.1
AGENCY AGREEMENT
DATED 28 NOVEMBER, 2005
KELLOGG EUROPE COMPANY LIMITED
(EURO) 550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
ALLEN & OVERY
ALLEN & OVERY LLP
LONDON
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CONTENTS
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CLAUSE
PAGE
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1.
Interpretation..............................................................................................
2.
Definitions.................................................................................................
3.
Appointment of
Agents.......................................................................................
4.
Authentication and Delivery of
Notes........................................................................
5.
Payment to the Fiscal
Agent.................................................................................
6. Notification of
Non-payment by the Issuer or the
Guarantor..................................................
7.
Duties of the Paying
Agents.................................................................................
8.
Reimbursement of the Paying
Agents..........................................................................
9.
Determination and Notification of Rates of Interest, Coupon Amounts
and Interest Payment Dates..............
10. Notice of
any Withholding or
Deduction......................................................................
11. Duties of
the Fiscal Agent in connection with Optional Redemption and
Redemption for Taxation Reasons.......
12. Receipt
and Publication of
Notices..........................................................................
13.
Cancellation of Notes and
Coupons...........................................................................
14. Issue of
Replacement Notes and
Coupons......................................................................
15. Records
and
Certificates....................................................................................
16. Copies of
this Agreement and the Deed Poll Available for
Inspection.........................................
17.
Commissions and
Expenses....................................................................................
18.
Indemnity...................................................................................................
19. Repayment
by Fiscal
Agent...................................................................................
20. Conditions
of
Appointment...................................................................................
21.
Communication with
Agents...................................................................................
22.
Termination of
Appointment..................................................................................
23. Meetings
of
Noteholders.....................................................................................
24.
Notices.....................................................................................................
25. Taxes and
Stamp
Duties......................................................................................
26.
Counterparts................................................................................................
27.
Descriptive
Headings........................................................................................
28. Governing
law and Submission to
Jurisdiction................................................................
29.
Amendments..................................................................................................
30. Third
Party
Rights..........................................................................................
SCHEDULE
1. Part
1 - Form of the Temporary Global
Note..................................................................
2. Part
1 - Form of Definitive Note and
Coupon.................................................................
Part 2 - Conditions of the
Notes............................................................................
3. Form
of
Guarantee...........................................................................................
4.
Provisions for meetings of
Noteholders......................................................................
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THIS AGREEMENT is dated 28 November, 2005
and made
BETWEEN:
(1) KELLOGG EUROPE COMPANY
LIMITED (the ISSUER);
(2) KELLOGG COMPANY (the
GUARANTOR);
(3) HSBC BANK PLC (the FISCAL
AGENT and AGENT BANK); and
(4) HSBC INSTITUTIONAL TRUST
SERVICES (IRELAND) LIMITED (as PAYING AGENT)
WHEREAS:
(A) The Issuer has agreed to
issue (euro)550,000,000 Guaranteed Floating Rate
Notes due
2007 (the NOTES, which expression shall include, unless the
context
otherwise requires, any further Notes issued pursuant to
Condition
14 and
forming a single series with the Notes).
(B) The Notes will be issued in
bearer form in the denomination of
(euro)50,000 each with interest coupons (COUPONS) attached.
(C) The Notes will initially be
represented by a temporary Global Note (the
TEMPORARY
GLOBAL NOTE) in or substantially in the form set out in Part 1
of
Schedule 1 which will be exchanged in accordance with its terms for
a
permanent
Global Note (the PERMANENT GLOBAL NOTE and, together with the
Temporary
Global Note, the GLOBAL NOTES) in or substantially in the form
set out in
Part 2 of Schedule 1.
(D) The definitive Notes and
Coupons will be in or substantially in the
respective
forms set out in Part 1 of Schedule 2. The Conditions of the
Notes (the
CONDITIONS) will be in or substantially in the form set out in
Part 2 of
Schedule 2.
(E) Payments in respect of the
Notes will be unconditionally and irrevocably
guaranteed
by the Guarantor as provided in a deed poll (the GUARANTEE)
entered
into by the Guarantor substantially in the form set out in
Schedule
3.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Words and expressions
defined in the Conditions and not otherwise defined
in this
Agreement shall have the same meanings when used in this
Agreement.
1.2 References in this Agreement
to principal and/or interest shall include
any
additional amounts payable pursuant to Condition 8.
2. DEFINITIONS
2.1 As used in this Agreement
and in the Conditions:
AUTHORISED
SIGNATORY means any person who (i) is a Director or officer of
the Issuer
or the Guarantor (as the case may be) or (ii) has been notified
by the
Issuer or the Guarantor (as the case may be) in writing to the
Fiscal
Agent as being duly authorised to sign documents and to
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do other
acts and things on behalf of the Issuer or the Guarantor (as
the
case may
be) for the purposes of this Agreement;
FISCAL
AGENT, PAYING AGENTS and AGENT BANK mean and include each
Fiscal
Agent,
Paying Agent and Agent Bank from time to time appointed to
exercise
the powers
and undertake the duties conferred and imposed upon it by this
Agreement
and notified to the Noteholders under clause 22;
OUTSTANDING means in relation to the Notes all the Notes issued
other
than:
(a)
those Notes
which have been redeemed and cancelled pursuant to
Condition 7 or otherwise pursuant to the Conditions;
(b)
those Notes in
respect of which the date for redemption under the
Conditions has occurred and the redemption moneys wherefore
(including all interest payable thereon) have been duly paid to
the
Fiscal Agent in the manner provided in clause 5 (and, where
appropriate, notice to that effect has been given to the
Noteholders
under Condition 12) and remain available for payment against
presentation of the relevant Notes and/or Coupons;
(c)
those Notes
which have been purchased and cancelled under Condition
7;
(d)
those Notes
which have become void under Condition 9;
(e)
those mutilated
or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 11;
(f)
(for the purpose
only of ascertaining the principal amount of the
Notes outstanding and without prejudice to the status for any
other
purpose of the relevant Notes) those Notes which are alleged to
have
been lost, stolen or destroyed and in respect of which
replacements
have been issued pursuant to Condition 11; and
(g)
the Temporary
Global Note to the extent that it has been duly
exchanged for the Permanent Global Note and the Permanent
Global
Note to the extent that it has been exchanged for the relative
Notes
in definitive form in each case pursuant to their respective
provisions,
provided
that for each of the following purposes, namely:
(i)
the right to
attend and vote at any meeting of the Noteholders or
any of them; and
(ii)
the determination of
how many and which Notes are for the time being
outstanding for the purposes of paragraphs 4, 7 and 9 of Schedule
4,
those
Notes (if any) which are for the time being held by any person
(including
but not limited to, the Issuer, the Guarantor or any of the
Guarantor's other Subsidiaries) for the benefit of the Issuer,
the
Guarantor
or any of the Guarantor's other Subsidiaries shall (unless and
until
ceasing to be so held) be deemed not to remain outstanding;
SPECIFIED
OFFICE means the offices specified in clause 24 or any other
specified
offices as may from time to time be duly notified pursuant to
clause 24;
and
TAXES
means any present or future taxes, duties, assessments or
governmental charges of whatever nature.
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2.2 (a) In this Agreement, unless
the contrary intention appears, a
reference to:
(i) an AMENDMENT
includes a supplement, restatement or novation
and AMENDED is to be construed accordingly;
(ii) a PERSON includes
any individual, company, unincorporated
association, government, state agency, international
organisation or other entity;
(iii) a provision of a law is a reference to that provision as
extended, amended or re-enacted;
(iv) a clause or
schedule is a reference to a clause of, or a
schedule to, this Agreement;
(v) a person
includes its successors and assigns;
(vi) a document is a
reference to that document as amended from
time to time; and
(vii) a time of day is a reference to London time;
(b)
The headings in
this Agreement do not affect its interpretation;
(c)
All references
in this Agreement to costs or charges or expenses
shall include any value added tax or similar tax charged or
chargeable in respect thereof; and
(d)
All references
in this Agreement to Notes shall, unless the context
otherwise requires, include any Global Note representing the
Notes.
3. APPOINTMENT OF
AGENTS
3.1 The Issuer and the Guarantor
appoint, on the terms and subject to the
conditions
of this Agreement:
(a)
the Fiscal Agent
as fiscal and principal paying agent in respect of
the Notes;
(b)
HSBC
Institutional Trust Services (Ireland) Limited as paying agent
(together with the Fiscal Agent, the PAYING AGENTS) for the
payment
of principal of, and interest on, the Notes; and
(c)
the Agent Bank
as agent bank for the purpose of determining the
interest payable in respect of the Notes,
in each
case acting at its specified office.
3.2 The Fiscal Agent, the other
Paying Agents and the Agent Bank are together
referred
to as the AGENTS.
4. AUTHENTICATION AND
DELIVERY OF NOTES
4.1 The Issuer undertakes that
the Permanent Global Note (duly executed on
behalf of
the Issuer ) will be available to be exchanged for interests in
the
Temporary Global Note in accordance with the terms of the
Temporary
Global
Note.
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4.2 If a Global Note is to be
exchanged in accordance with its terms for
definitive
Notes, the Issuer undertakes that it will deliver to, or to the
order of,
the Fiscal Agent, as soon as reasonable practicable and in any
event not
later than 15 days before the relevant exchange is due to take
place,
definitive Notes (with Coupons attached) in an aggregate
principal
amount of
(euro)550,000,000 or such lesser amount as is the principal
amount of
Notes represented by the Global Note to be issued in exchange
for the
Global Note. Each definitive Note and Coupon so delivered shall
be
duly
executed on behalf of the Issuer.
4.3 The Issuer authorises and
instructs the Fiscal Agent to authenticate the
Global
Notes and any definitive Notes delivered pursuant to subclause
4.2.
4.4 The Issuer authorises and
instructs the Fiscal Agent to cause interests in
the
Temporary Global Note to be exchanged for interests in the
Permanent
Global
Note and interests in a Global Note to be exchanged for
definitive
Notes in
accordance with their respective terms. Following the exchange
of
the last
interest in a Global Note, the Fiscal Agent shall cause the
Global
Note to be cancelled and delivered to the Issuer or as it may
direct.
4.5 The Fiscal Agent shall cause
all Notes delivered to and held by it under
this
Agreement to be maintained in safe custody and shall ensure
that
interests
in the Temporary Global Note are only exchanged for interests
in
the
Permanent Global Note in accordance with the terms of the
Temporary
Global
Note and this Agreement and that the definitive Notes are
issued
only in
accordance with the terms of the Global Notes and this
Agreement.
4.6 So long as any of the Notes
is outstanding the Fiscal Agent shall, within
seven days
of any request by the Issuer or the Guarantor, certify to the
Issuer or,
as the case may be, the Guarantor the number of definitive
Notes held
by it under this Agreement.
5. PAYMENT TO THE FISCAL
AGENT
5.1 The Issuer or, failing the
Issuer, the Guarantor shall, not later than
10.00 a.m.
(London time) on each date on which any payment of principal
and/or
interest in respect of any of the Notes becomes due under the
Condition,
transfer to an account specified by the Fiscal Agent such
amount of
euros as shall be sufficient for the purposes of the payment of
principal
and/or interest in immediately available funds.
5.2 The Issuer or, as the case
may be, the Guarantor shall ensure that, not
later than
the second day on which banks are open for business in London
immediately preceding the date on which any payment is to be made
to the
Fiscal
Agent pursuant to subclause 5.1, the Fiscal Agent shall receive
a
copy of an
irrevocable payment instruction to the bank through which the
payment is
to be made.
6. NOTIFICATION OF
NON-PAYMENT BY THE ISSUER OR THE GUARANTOR
The Fiscal
Agent shall notify by SWIFT or facsimile each of the other
Paying
Agents forthwith:
(a)
if it has not by
the relevant date specified in subclause 5.1
received unconditionally the full amount in euros required for
the
payment; and
(b)
if it receives
unconditionally the full amount of any sum due in
respect of the Notes or Coupons after such date.
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The Fiscal
Agent shall, at the expense and request of the Issuer or the
Guarantor,
forthwith upon receipt of any amount as described in
subparagraph (b), cause notice of that receipt to be published
under
Condition
12.
7. DUTIES OF THE PAYING
AGENTS
7.1 Subject to the payments to
the Fiscal Agent provided for by clause 5 being
duly made,
the Paying Agents shall act as paying agents of the Issuer
and/or the
Guarantor in respect of the Notes and pay or cause to be paid
on behalf
of the Issuer and/or the Guarantor, on and after each date on
which any
payment becomes due and payable, the amounts of principal
and/or
interest
then payable on surrender or, in the case of a Global Note,
endorsement, of Notes or Coupons under the Conditions and this
Agreement.
If any
payment provided for by clause 5 is made late but otherwise
under
the terms
of this Agreement the Paying Agents shall nevertheless act as
paying
agents following receipt by them of payment.
7.2 If default is made by the
Issuer and the Guarantor in respect of any
payment, unless and until the full
amount of the payment has been made
under the
terms of this Agreement (except as to the time of making the
same) or
other arrangements satisfactory to the Fiscal Agent have been
made,
neither the Fiscal Agent nor any of the other Paying Agents shall
be
bound to
act as paying agents.
7.3 Without prejudice to
subclauses 7.1 and 7.2, if the Fiscal Agent pays any
amounts to
the holders of Notes or Coupons or to any other Paying Agent at
a time
when it has not received payment in full in respect of the Notes
in
accordance
with subclause 5.1 (the excess of the amounts so paid over the
amounts so
received being the SHORTFALL), the Issuer (failing which the
Guarantor)
will, in addition to paying amounts due under subclause 5.1,
pay to the
Fiscal Agent on demand interest (at a rate which represents the
Fiscal
Agent's cost of funding the Shortfall) on the Shortfall (or the
unreimbursed portion thereof) until the receipt in full by the
Fiscal
Agent of
the Shortfall.
7.4 Whilst any Notes are
represented by a Global Note, all payments due in
respect of
the Notes shall be made to, or to the order of, the holder of
the Global
Note, subject to and in accordance with the provisions of the
Global
Note. On the occasion of each payment, the Paying Agent to
which
the Global
Note was presented for the purpose of making the payment shall
cause the
appropriate Schedule to the relevant Global Note to be
annotated
so as to
evidence the amounts and dates of the payments of principal
and/or
interest as applicable.
7.5 If on presentation of a Note
or Coupon the amount payable in respect of
the Note
or Coupon is not paid in full (otherwise than as a result of
withholding or deduction for or on account of any Taxes as
permitted by
the
Conditions) the Paying Agent to whom the Note or Coupon is
presented
shall
procure that the Note or Coupon is enfaced with a memorandum of
the
amount
paid and the date of payment.
8. REIMBURSEMENT OF THE
PAYING AGENTS
The Fiscal
Agent shall charge the account referred to in clause 5 for all
payments
made by it under this Agreement and will credit or transfer to
the
respective accounts of the other Paying Agents the amount of
all
payments
made by them under the Conditions immediately upon notification
from them,
subject in each case to any applicable laws or regulations.
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9. DETERMINATION AND
NOTIFICATION OF RATES OF INTEREST, COUPON AMOUNTS AND
INTEREST
PAYMENT DATES
9.1 The Agent Bank shall
determine the Rate of Interest applicable to each
Interest
Period and the Coupon Amount payable in respect thereof subject
to and in
accordance with the Conditions.
9.2 The Agent Bank shall not be
responsible to the Issuer, the Guarantor or
any third
party for any failure of the Reference Banks to fulfil their
duties or
meet their obligations as Reference Banks or (except in the
event of
negligence, wilful default or bad faith) as a result of the
Agent
Bank
having acted on any certificate given by any Reference Bank
which
subsequently may be found to be incorrect.
9.3 The Agent Bank shall notify
the Issuer, the Guarantor, the Fiscal Agent
and (so
long as the Notes are listed thereon) any stock exchange or
other
relevant
authority by facsimile of each Rate of Interest, Coupon Amount
and relative Interest
Payment Date as soon as practicable after the
determination thereof, and in any event no later than the first day
of
each
Interest Period and the Fiscal Agent shall promptly notify the
other
Paying
Agents thereof.
9.4 The Agent Bank shall cause
each Rate of Interest, Coupon Amount and
Interest
Payment Date to be published in accordance with Condition 12 as
soon as
possible after their determination but in no event later than
the
second
Business Day thereafter (as defined in Condition 5).
9.5 If the Agent Bank does not
at any material time for any reason determine
and/or
publish the Rate of Interest or Coupon Amount in respect of any
Interest
Period as provided in this clause 9 it shall forthwith notify
the
Issuer,
the Guarantor, and the Fiscal Agent of such fact.
10. NOTICE OF ANY WITHHOLDING OR
DEDUCTION
If the
Issuer or the Guarantor is, in respect of any payment in respect
of
the Notes,
compelled to withhold or deduct any amount for or on account of
any Taxes
as contemplated by Condition 8, the Issuer or, as the case may
be, the
Guarantor shall give notice to the Fiscal Agent as soon as it
becomes
aware of the requirement to make the withholding or deduction
and
shall give
to the Fiscal Agent such information as the Fiscal Agent shall
require to
enable it to comply with the requirement.
11. DUTIES OF THE FISCAL AGENT
IN CONNECTION WITH OPTIONAL REDEMPTION AND
REDEMPTION
FOR TAXATION REASONS
If the
Issuer decides to redeem all the Notes for the time being
outstanding under Condition 7, it shall give notice of the decision
to the
Fiscal
Agent, the Agent Bank and the Noteholders in accordance with
the
Conditions.
12. RECEIPT AND PUBLICATION OF
NOTICES
12.1 Forthwith upon the receipt by the
Fiscal Agent of a demand or notice from
any
Noteholder or Couponholder under Condition 10 the Fiscal Agent
shall
forward a
copy of the demand or notice to the Issuer and to the
Guarantor.
12.2 On behalf of and at the request
and expense of the Issuer or the
Guarantor,
the Fiscal Agent shall cause to be published all notices
required
to be given by the Issuer and/or the Guarantor under the
Conditions.
6
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13. CANCELLATION OF NOTES AND
COUPONS
13.1 All Notes which are surrendered in
connection with redemption, (together
with all
unmatured Coupons attached to or delivered with Notes) and all
Coupons
which are paid shall be cancelled by the Paying Agent to which
they are
surrendered. Each of the Paying Agents shall give to the Fiscal
Agent
details of all payments made by it and shall deliver all
cancelled
Notes and
Coupons to the Fiscal Agent (or as the Fiscal Agent may
specify).
Where Notes are purchased by or on behalf of the Issuer, the
Guarantor
or any of the Guarantor's other Subsidiaries, the Issuer or, as
the case
may be, the Guarantor, shall procure that the Notes (together
with all
unmatured Coupons appertaining to the Notes) are promptly
cancelled
and delivered to the Fiscal Agent or its authorised agent.
13.2 The Fiscal Agent or its authorised
agent shall (unless otherwise
instructed
by the Issuer in writing and save as provided in subclause
15.1)
destroy all cancelled Notes and Coupons and furnish the Issuer
and
the
Guarantor with a certificate of destruction containing written
particulars of the serial numbers of the Notes and the number by
maturity
date of
Coupons so destroyed.
14. ISSUE OF REPLACEMENT NOTES
AND COUPONS
14.1 The Issuer shall cause a
sufficient quantity of additional forms of Notes
and
Coupons to be available, upon request, to the Fiscal Agent at
its
specified
office for the purpose of issuing replacement Notes or Coupons
as
provided below.
14.2 The Fiscal Agent shall, subject to
and in accordance with Condition 11 and
the
following provisions of this clause, cause to be authenticated (in
the
case only
of replacement Notes) and delivered any replacement Notes or
Coupons
which the Issuer may determine to issue in place of Notes or
Coupons
which have been lost, stolen, mutilated, defaced or destroyed.
14.3 In the case of a mutilated or
defaced Note, the Fiscal Agent shall ensure
that
(unless otherwise covered by such indemnity as the Issuer may
require)
any replacement Note only has attached to it Coupons
corresponding to those attached to the mutilated or defaced Note
which is
presented
for replacement.
14.4 The Fiscal Agent shall obtain
verification, in the case of an allegedly
lost,
stolen or destroyed Note or Coupon in respect of which the
serial
number is
known, that the Note or Coupon has not previously been redeemed
or paid.
The Fiscal Agent shall not issue a replacement Note or Coupon
unless and
until the applicant has:
(a)
paid such
expenses and costs as may be incurred in connection with
the replacement;
(b)
furnished it
with such evidence and indemnity as the Issuer may
reasonably require; and
(c)
in the case of a
mutilated or defaced Note or Coupon, surrendered it
to the Fiscal Agent.
14.5 The Fiscal Agent shall cancel
mutilated or defaced Notes or Coupons in
respect of
which replacement Notes or Coupons have been issued pursuant to
this
clause. The Fiscal Agent shall furnish the Issuer and the
Guarantor
with a
certificate stating the serial numbers of the Notes or Coupons
received
by it and cancelled pursuant to this clause and shall, unless
otherwise
requested by the Issuer or the Guarantor, destroy all those
Notes and
Coupons and furnish the Issuer and the Guarantor with a
destruction certificate containing the information specified in
subclause
13.2.
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14.6 The Fiscal Agent shall, on issuing
any replacement Note or Coupon,
forthwith
inform the Issuer and the other Paying Agents of the serial
number of
the replacement Note or Coupon issued and (if known) of the
serial
number of the Note or Coupon in place of which the replacement
Note
or Coupon
has been issued. Whenever replacement Coupons are issued under
this
clause, the Fiscal Agent shall also notify the other Paying Agents
of
the
maturity dates of the lost, stolen, mutilated, defaced or
destroyed
Coupons
and of the replacement Coupons issued.
14.7 Whenever a Note or Coupon for
which a replacement Note or Coupon has been
issued and
the serial number of which is known is presented to a Paying
Agent for
payment, the relevant Paying Agent shall immediately send
notice
to the
Issuer and the Fiscal Agent.
15. RECORDS AND CERTIFICATES
15.1 The Fiscal Agent shall keep a full
and complete record of all Notes and
Coupons
(other than serial numbers of Coupons) and of their redemption
and/or
purchase by or on behalf of the Issuer, the Guarantor or any of
the
Guarantor's other Subsidiaries, cancellation or payment (as the
case may
be) and of
all replacement Notes or Coupons issued in substitution for
lost,
stolen, mutilated, defaced or destroyed Notes or Coupons. The
Fiscal
Agent
shall at all reasonable times make the records and Coupons (if
any)
available
to the Issuer and the Guarantor.
15.2 The Fiscal Agent shall give to the
Issuer and the Guarantor, as soon as
possible
and in any event within four months after the date of
redemption,
purchase,
payment or replacement of a Note or Coupon (as the case may
be),
a
certificate stating (a) the aggregate principal amount of Notes
which
have been
redeemed and the aggregate amount in respect of Coupons which
have been
paid, (b) the serial numbers of those Notes in definitive form,
(c) the
total number by maturity date of those Coupons, (d) the
aggregate
principal
amounts of Notes (if any) which have been purchased by or on
behalf of
the Issuer, the Guarantor or any of the Guarantor's other
Subsidiaries and cancelled (subject to delivery of the Notes to the
Fiscal
Agent) and
the serial numbers of such Notes in definitive form and the
total
number by maturity date of the Coupons attached to or
surrendered
with the
purchased Notes.
16. COPIES OF THIS AGREEMENT AND
THE GUARANTEE AVAILABLE FOR INSPECTION
16.1 The Guarantee shall be deposited
with the Fiscal Agent and shall be held
in safe
custody by the Fiscal Agent on behalf of the Noteholders and
Couponholders.
16.2 The Agents shall hold copies of
this Agreement, together with copies of
the
Guarantee, and any other documents expressed to be held by them in
the
Offering
Circular dated 24 November, 2005 issued by the Issuer in
relation
to the
Notes available for inspection by Noteholders and
Couponholders.
For this
purpose, the Issuer and the Guarantor shall furnish the Agents
with
sufficient copies of each of such documents.
17. COMMISSIONS AND EXPENSES
17.1 The Issuer or, failing the Issuer,
the Guarantor shall pay to the Fiscal
Agent such
commissions in respect of the services of the Agents under this
Agreement
as shall be agreed between the Issuer, the Guarantor and the
Fiscal
Agent. Neither the Issuer nor the Guarantor shall be concerned
with
the
apportionment of payment among the Agents.
17.2 The Issuer or, failing the Issuer,
the Guarantor shall also pay to the
Fiscal
Agent an amount equal to any value added tax which may be
payable
in respect
of the commissions together
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with all
reasonable expenses incurred by the Agents in connection with
their
services under this Agreement.
17.3 The Fiscal Agent shall arrange for
payment of the commissions due to the
other
Agents and arrange for the reimbursement of their expenses
promptly
after
receipt of the relevant moneys from the Issuer or the
Guarantor.
17.4 At the request of the Fiscal
Agent, the parties to this Agreement may from
time to
time during the continuance of this Agreement review the
commissions agreed initially pursuant to subclause 17.1 with a view
to
determining whether the parties can mutually agree upon any changes
to the
commissions.
18. INDEMNITY
18.1 The Issuer or, failing the Issuer,
the Guarantor undertakes to indemnify
each of
the Agents against all losses, liabilities, costs, claims,
actions,
damages, expenses or demands which any of them may incur or
which
may be
made against any of them as a result of or in connection with
the
appointment of or the exercise of the powers and duties by any
Agent under
this
Agreement except as may result from its own wilful default,
negligence
or bad faith or that of its directors, officers or employees or
any of
them.
18.2 Each of the Agents severally
undertakes to indemnify the Issuer and the
Guarantor
against all losses, liabilities, costs, claims, actions,
damages,
expenses or demands which any of them may incur or which may be
made
against any of them as a result of its wilful default, negligence
or
bad faith or
that of its directors, officers or employees.
18.3 The indemnities set out above
shall survive any termination of this
Agreement.
19. REPAYMENT BY FISCAL
AGENT
Sums paid
by or by arrangement with the Issuer or the Guarantor to the
Fiscal
Agent pursuant to the terms of this Agreement shall not be
required
to be
repaid to the Issuer or the Guarantor unless and until any Note
or
Coupon
becomes void under the provisions of Condition 9 but in that
event
the Fiscal
Agent shall forthwith repay to the Issuer or, if so directed by
the
Issuer, to the Guarantor sums equivalent to the amounts which
would
otherwise
have been payable in respect of the relevant Note or Coupon.
20. CONDITIONS OF
APPOINTMENT
20.1 Subject as provided in subclause
20.3, the Fiscal Agent shall be entitled
to deal
with money paid to it by the Issuer or the Guarantor for the
purposes
of this Agreement in the same manner as other money paid to a
banker by
its customers and shall not be liable to account to the Issuer
or the
Guarantor for any interest or other amounts in respect of the
money. No
money held by any Paying Agent need be segregated except as
required
by law.
20.2 In acting under this Agreement and
in connection with the Notes and the
Coupons
the Agents shall act solely as agents of the Issuer and the
Guarantor
and will not assume any obligations towards or relationship of
agency or
trust for or with any of the owners or holders of the Notes or
the
Coupons.
20.3 No Paying Agent shall exercise any
right of set-off or lien against the
Issuer,
the Guarantor or any holders of Notes or Coupons in respect of
any
moneys
payable to or by it under the terms of this Agreement.
9
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20.4 Except as otherwise permitted in
the Conditions or as ordered by a court
of
competent jurisdiction or required by law or otherwise instructed
by
the Issuer
or the Guarantor, each of the Agents shall be entitled to treat
the holder
of any Note or Coupon as the absolute owner for all purposes
(whether
or not the Note or Coupon shall be overdue and notwithstanding
any notice
of ownership or other writing on the Note or Coupon or any
notice of
previous loss or theft of the Note or Coupon).
20.5 The Agents shall be obliged to
perform such duties and only such duties as
are set
out in this Agreement and the Notes and no implied duties or
obligations shall be read into this Agreement or the Notes against
the
Agents
other than the duty to act honestly and in good faith and to
exercise
the diligence of a reasonably prudent agent in comparable
circumstances.
20.6 The Fiscal Agent may consult with
legal and other professional advisers
and the
opinion of the advisers shall be full and complete protection
in
respect of
action taken, omitted or suffered under this Agreement in good
faith and
in accordance with the opinion of the advisers.
20.7 Each of the Agents shall be
protected and shall incur no liability for or
in respect
of action taken, omitted or suffered in reliance upon any
instruction, request or order from the Issuer or the Guarantor or
any
document
which it reasonably believes to be genuine and to have been
delivered
by the proper party or parties or upon written instructions
from
the Issuer
or the Guarantor.
20.8 Any of the Agents, their officers,
directors or employees may become the
owner of,
or acquire any interest in, Notes or Coupons with the same
rights
that it or he would have if the Agent concerned were not
appointed
under this
Agreement, and may engage or be interested in any financial or
other
transaction with the Issuer or the Guarantor, and may act on, or
as
depositary, trustee or agent for, any committee or body of holders
of
Notes or
Coupons or other obligations of the Issuer or the Guarantor, as
freely as
if the Agent were not appointed under this Agreement.
20.9 The Fiscal Agent shall not be
under any obligation to take any action
under this
Agreement which it expects will result in any expense or
liability
accruing to it, the payment of which within a reasonable time
is
not, in
its opinion, assured to it.
20.10 The obligations of the Agents
hereunder are several and not joint.
21. COMMUNICATION WITH
AGENTS
A copy of
all communications relating to the subject matter of this
Agreement
between the Issuer or the Guarantor and any of the Agents other
than the
Fiscal Agent shall be sent to the Fiscal Agent.
22. TERMINATION OF
APPOINTMENT
22.1 The Issuer and the Guarantor may
terminate the appointment of any Agent at
any time
and/or appoint additional or other Agents by giving to the
Agent
whose
appointment is concerned and, where appropriate, the Fiscal Agent
at
least 90
days' prior written notice to that effect, provided that, so
long
as any of
the Notes is outstanding:
(a)
the notice shall
not expire less than 45 days before any due date
for the payment of interest; and
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(b)
notice shall be
given under Condition 12 at least 30 days before the
removal or appointment of a Paying Agent.
22.2 Notwithstanding the provisions of
subclause 22.1, if at any time:
(a)
an Agent becomes
incapable of acting, or is adjudged bankrupt or
insolvent, or files a voluntary petition in bankruptcy or makes
an
assignment for the benefit of its creditors or consents to the
appointment of an administrator, liquidator or administrative
or
other receiver of all or any substantial part of its property, or
if
an administrator, liquidator or administrative or other receiver
of
it or of all or a substantial part of its property is appointed,
or
it admits in writing its inability to pay or meet its debts as
they
may mature or suspends payment of its debts, or if an order of
any
court is entered approving any petition filed by or against it
under
the provisions of any applicable bankruptcy or insolvency law or
if
a public officer takes charge or control of the Agent or of its
property or affairs for the purpose of rehabilitation,
administration or liquidation; or
(b)
in the case of
the Agent Bank, it fails to determine the Rate of
Interest, and/or Coupon Amount in respect of any Interest Period
as
provided in the Conditions and this Agreement,
the Issuer
and the Guarantor may forthwith without notice terminate the
appointment of the Agent, in which event (save with respect to
the
termination of the appointment of the Agent Bank) notice shall be
given to
the
Noteholders under Condition 12 as soon as is practicable.
22.3 The termination of the appointment
of an Agent under this Agreement shall
not
entitle the Agent to any amount by way of compensation but shall
be
without
prejudice to any amount then accrued due.
22.4 All or any of the Agents may
resign their respective appointments under
this
Agreement at any time by giving to the Issuer, the Guarantor
and,
where
appropriate, the Fiscal Agent at least 90 days' prior written
notice
to that
effect provided that, so long as any of the Notes is
outstanding,
the notice
shall not expire less than 45 days before any due date for the
payment of
interest. Following receipt of a notice of resignation from a
Paying
Agent, the Issuer or, failing the Issuer, the Guarantor shall
promptly,
and in any event not less than 30 days before the resignation
takes
effect, give notice to the Noteholders under Condition 12. If
the
Fiscal
Agent shall resign or be removed pursuant to subclauses 22.1 or
22.2 above
or in accordance with this subclause 22.4, the Issuer and the
Guarantor shall promptly and
in any event within 30 days appoint a
successor
(being a leading bank acting through its office in London). If
the Issuer
and the Guarantor fail to appoint a successor within such
period,
the Fiscal Agent may select a leading bank acting through its
office in
London to act as Fiscal Agent hereunder and the Issuer and the
Guarantor
shall appoint that bank as the successor Fiscal Agent.
22.5 Notwithstanding the provisions of
subclauses 22.1, 22.2 and 22.4, so long
as any of
the Notes is outstanding, the termination of the appointment of
an Agent
(whether by the Issuer and the Guarantor or by the resignation
of
the Agent)
shall not be effective unless upon the expiry of the relevant
notice
there is:
(a)
a Fiscal
Agent;
(b)
at least one
Paying Agent (which may be the Fiscal Agent) having its
specified office in a European city which so long as the Notes
are
admitted to official listing on the Irish Stock Exchange, shall
be
Dublin or such other place as the Irish Financial Supervisory
and
Regulatory Authority may approve;
11
<PAGE>
(c)
a Paying Agent
in a Member State of the European Union that is not
obliged to withhold or deduct tax pursuant to European Council
Directive 2003/48/EC or any law implementing or complying with,
or
introduced in order to conform to, such Directive; and
(d)
an Agent
Bank.
22.6 Any successor Agent shall execute
and deliver to its predecessor, the
Issuer,
the Guarantor and, where appropriate, the Fiscal Agent an
instrument
accepting the appointment under this Agreement, and the
successor Agent, without any
further act, deed or conveyance, shall become
vested
with all the authority, rights, powers, trusts, immunities,
duties
and
obligations of the predecessor with like effect as if originally
named
as an
Agent.
22.7 If the appointment of a Paying
Agent under this Agreement is terminated
(whether
by the Issuer and the Guarantor or by the resignation of the
Paying
Agent), the Paying Agent shall on the date on which the
termination
takes
effect deliver to its successor Paying Agent (or, if none, the
Fiscal
Agent) all Notes and Coupons surrendered to it but not yet
destroyed
and all records concerning the Notes and Coupons maintained by
it (except
such documents and records as it is obliged by law or
regulation
to retain or not to release) and pay to its successor Paying
Agent (or,
if none, to the Fiscal Agent) the amounts (if any) held by it
in respect
of Notes or Coupons which have become due and payable but which
have not
been presented for payment, but shall have no other duties or
responsibilities under this Agreement.
22.8 If the Fiscal Agent or any of the
other Paying Agents shall change its
specified
office, it shall give to the Issuer, the Guarantor and, where
appropriate, the Fiscal Agent not less than 45 days' prior written
notice
to that
effect giving the address of the new specified office. As soon
as
practicable thereafter and in any event at least 30 days before
the
change,
the Fiscal Agent shall give to the NOTEHOLDERS on behalf of and
at
the
expense of the Issuer or, failing the Issuer, the Guarantor notice
of
the change
and the address of the new specified office under Condition 12.
22.9 A corporation into which any Agent
for the time being may be merged or
converted
or a corporation with which the Agent may be consolidated or a
corporation resulting from a merger, conversion or consolidation to
which
the Agent
shall be a party shall, to the extent permitted by applicable
law, be
the successor Agent under this Agreement without the execution
or
filing of
any paper or any further act on the part of any of the parties
to this
Agreement. Notice of any merger, conversion or consolidation
shall
forthwith
be given to the Issuer, the Guarantor and, where appropriate,
the Fiscal
Agent.
23. MEETINGS OF NOTEHOLDERS
23.1 The provisions of Schedule 4 shall
apply to meetings of the Noteholders
and shall
have effect in the same manner as if set out in this Agreement
provided
that, so long as any of the Notes are represented by a Global
Note, the
expression Noteholders shall include the persons for the time
being
shown in the records of Euroclear Bank S.A./N.V., as operator of
the
Euroclear
System (EUROCLEAR) and/or Clearstream Banking, societe anonyme
(CLEARSTREAM, LUXEMBOURG), as the holders of a particular principal
amount
of such
Notes (each an ACCOUNTHOLDER) (in which regard a certificate or
other
document issued by Euroclear or Clearstream, Luxembourg as to
the
principal
amount of such Notes standing to the account of any person
shall
be
conclusive and binding) for all purposes other than with respect to
the
payment of
principal and interest on such Notes, the right to which shall
be vested
as against the Issuer solely in the bearer of each Global Note
in
accordance with and subject to its terms, and the expressions
HOLDER
and HOLDERS shall be construed
accordingly and the expression NOTES shall
mean units
of (euro)50,000 principal amount of Notes.
12
<PAGE>
23.2 Without prejudice to subclause
23.1, each of the Paying Agents shall, on
the
request of any holder of Notes, issue voting certificates and
block
voting
instructions (as defined in Schedule 4) together, if so required
by
the
Issuer, with reasonable proof satisfactory to the Issuer of their
due
execution
on behalf of the Paying Agent under the provisions of Schedule
4
and shall
forthwith give notice to the Issuer under Schedule 4 of any
revocation
or amendment of a voting certificate or block voting
instruction. Each Paying Agent shall keep a full and complete
record of
all voting
certificates and block voting instructions issued by it and
shall, not
less than 24 hours before the time appointed for holding any
meeting or
adjourned meeting, deposit at such place as the Fiscal Agent
shall
designate or approve, full particulars of all voting
certificates
and block
voting instructions issued by it in respect of any meeting or
adjourned
meeting.
24. NOTICES
Any notice
required to be given under this Agreement to any of the parties
shall be
delivered in person, sent by pre-paid post (first class if
inland,
first class airmail if overseas) or by facsimile addressed to:
The
Issuer:
KELLOGG EUROPE COMPANY LIMITED
Facsimile No:
441 252 8666
Attention:
Secretary
The
Guarantor:
KELLOGG COMPANY
Facsimile No:
1 269 961 3494
Attention:
Treasurer
The Fiscal
Agent and HSBC BANK
PLC
Agent
Bank:
Facsimile No:
+44 (0)20 7260 8932
Attention:
The Manager, Operations, Bond
Paying Agency, Corporate
Trust and Loan Agency
The Paying
Agent: HSBC
INSTITUTIONAL TRUST SERVICES (IRELAND) LIMITED
Facsimile No:
+353 1 631 8397
Attention:
Ronnie Griffin
or such
other address of which notice in writing has been given to the
other
parties to this Agreement under the provisions of this clause.
Any such
notice shall take effect, if delivered in person, at the time
of
delivery,
if sent by post, three days in the case of inland post or seven
days in
the case of overseas post after despatch, and, in the case of
SWIFT or
facsimile, 24 hours after the time of despatch, provided that
in
the case
of a notice given by SWIFT or facsimile transmission such
notice
shall
forthwith be confirmed by post. The failure of the addressee to
receive
such confirmation shall not invalidate the relevant notice
given
by
facsimile.
13
<PAGE>
25. TAXES AND STAMP DUTIES
The Issuer
or, failing the Issuer, the Guarantor agrees to pay any and all
stamp and
other documentary taxes or duties which may be payable in
connection
with the execution, delivery, performance and enforcement of
this
Agreement by any Agent.
26. COUNTERPARTS
This
Agreement may be executed in any number of counterparts, all of
which,
taken together, shall constitute one and the same agreement and
any
party may
enter into this Agreement by executing a counterpart.
27. DESCRIPTIVE HEADINGS
The
descriptive headings in this Agreement are for convenience of
reference
only and shall not define or limit the provisions of this
Agreement.
28. GOVERNING LAW AND SUBMISSION
TO JURISDICTION
28.1 The provisions of this Agreement
are governed by, and shall be construed
in
accordance with, English law.
28.2 Subject to subclause 28.4 below,
each of the Issuer and the Guarantor
irrevocably agrees for the benefit of the Agents that the courts
of
England
are to have exclusive jurisdiction to settle any dispute which
may
arise out
of or in connection with this Agreement and accordingly submit
to the
exclusive jurisdiction of the English courts.
28.3 Each of the Issuer and the
Guarantor waives any objection to the courts of
England on
the grounds that they are an inconvenient or inappropriate
forum.
28.4 The Agents may take any suit,
action or proceeding arising out of or in
connection
with this Agreement (together referred to as PROCEEDINGS)
against
the Issuer or the Guarantor in any other court of competent
jurisdiction and concurrent
Proceedings in any number of jurisdictions.
28.5 Each of the Issuer and the
Guarantor irrevocably and unconditionally
appoints
Kellogg Marketing & Sales Co. (UK) Limited at its
registered
office for
the time being as its agent for service of process in England
in respect
of any Proceedings and undertakes that in the event of it
ceasing so
to act it will appoint such other person with an office in
London as
its agent for that purpose.
28.6 Each of the Issuer and the
Guarantor:
(a)
agrees to
procure that, so long as any of the Notes remain liable to
prescription, there shall be in force an appointment of such a
person with an office in London with authority to accept service
as
aforesaid;
(b)
agrees that
failure by any such person to give notice of such
service of process to the relevant Agent shall not impair the
validity of such service or of any judgment based thereon; and
(c)
agrees that
nothing in this Agreement shall affect the right to
serve process in any other manner permitted by law.
14
<PAGE>
29. AMENDMENTS
This
Agreement may be amended by all of the parties, without the
consent
of any
Noteholder or Couponholder, either for the purpose of curing
any
ambiguity
or of curing, correcting or supplementing any manifest or
proven
error or
any other defective provision contained in this Agreement.
30. THIRD PARTY RIGHTS
No rights
are conferred on any person under the Contracts (Rights of
Third
Parties)
Act 1999 to enforce any term of this Agreement, but this does
not
affect any
right or remedy of any person which exists apart from that Act.
SIGNED by each of the parties (or their
duly authorised representatives) on the
date which appears first on page 1.
15
<PAGE>
SCHEDULE 1
PART 1
FORM OF THE TEMPORARY GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(J) AND 1287(A) OF
THE INTERNAL REVENUE CODE.
KELLOGG EUROPE COMPANY LIMITED
TEMPORARY GLOBAL NOTE
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
KELLOGG COMPANY
This temporary Global Note is issued in
respect of the (euro)550,000,000
Guaranteed Floating Rate Notes due 2007
(the NOTES) of Kellogg Europe Company
Limited (the ISSUER). The Notes are issued
subject to and with the benefit of an
Agency Agreement (the AGENCY AGREEMENT)
dated 28 November, 2005, between, among
others, the Issuer, Kellogg Company (the
GUARANTOR) and HSBC Bank plc as Fiscal
Agent (the FISCAL AGENT) and the Conditions
of the Notes (the CONDITIONS) set
out in Part 2 of Schedule 2 to the Agency
Agreement. Payments in respect of the
Notes are unconditionally and irrevocably
guaranteed by the Guarantor as
provided in a Guarantee dated 28 November,
2005 entered into by the Guarantor by
way of deed poll.
1. PROMISE TO PAY
Subject as
provided in this temporary Global Note, the Issuer, for value
received,
promises to pay the bearer upon presentation and surrender of
this
temporary Global Note the sum of (euro)550,000,000 or such lesser
sum
as is
equal to the principal amount of the Notes represented by this
temporary
Global Note as shown by the latest entry in Part 1 or Part 2 of
the Schedule to
this temporary Global Note or such other amounts as are
expressed
to be payable in respect of the Notes represented by this
temporary
Global Note on early redemption of the Notes on the Interest
Payment
Date (as defined in the Conditions) falling in May 2007 or on
such
earlier
date as the principal or other amounts in respect of this
temporary
Global Note may become due under the Conditions and to pay
interest
on the principal sum for the time being outstanding at the rate
determined
under the Conditions payable quarterly in arrear on each
Interest
Payment Date until payment of the principal sum has been made
or
duly
provided for in full together with any other amounts as may be
payable,
all subject to and under the Conditions.
2. EXCHANGE FOR PERMANENT
GLOBAL NOTE AND PURCHASES
The
permanent Global Note to be issued on exchange for interests in
this
temporary
Global Note will be substantially in the form set out in Part 2
of
Schedule 1 to the Agency Agreement.
16
<PAGE>
Subject as
provided below, the permanent Global Note will only have an
entry made
to represent definitive Notes after the date which is 40 days
after the
closing date for the Notes (the EXCHANGE DATE).
Interests
in this temporary Global Note may be exchanged for interests in
a duly
executed and authenticated permanent Global Note without charge
and
the Fiscal
Agent or such other person as the Fiscal Agent may direct (the
EXCHANGE
AGENT) shall make the appropriate entry on Part 1 of the
Schedule
to the
permanent Global Note, in full or partial exchange for this
temporary
Global Note, in order that the permanent Global Note represents
an
aggregate principal amount of Notes equal to the principal amount
of
this
temporary Global Note submitted for exchange. Notwithstanding
the
foregoing,
no such entry shall be made on the permanent Global Note unless
there
shall have been presented to the Exchange Agent a certificate
in
respect of
the principal amount of Notes submitted for exchange from
Euroclear
Bank S.A./N.V., as operator of the Euroclear System (EUROCLEAR)
or
Clearstream Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG)
substantially in the form of the certificate attached as Exhibit
A.
Notwithstanding the foregoing, where this temporary Global Note has
been
exchanged
in part for the permanent Global Note pursuant to the foregoing
and
definitive Notes have been issued in exchange for the total amount
of
Notes
represented by the permanent Global Note pursuant to its terms,
then
interests
in this temporary Global Note will no longer be exchangeable
for
interests
in the permanent Global Note but will be exchangeable, in full
or partial
exchange, for duly executed and authenticated definitive Notes,
without
charge, in the denomination of (euro)50,000 each with interest
coupons
attached, such definitive Notes to be substantially in the form
set out in
Part 1 of Schedule 2 to the Agency Agreement. Notwithstanding
the
foregoing, definitive Notes shall not be so issued and
delivered
unless
there shall have been presented to the Exchange Agent a
certificate
in respect
of the principal amount of Notes submitted for exchange from
Euroclear
or Clearstream, Luxembourg substantially in the form of the
certificate attached as Exhibit A.
Any person
who would, but for the provisions of this temporary Global Note
and of the
Agency Agreement, otherwise be entitled to receive either (a)
an
interest in the permanent Global Note or (b) definitive Notes shall
not
be
entitled to require the exchange of an appropriate part of this
temporary
Global Note for an interest in the permanent Global Note or
definitive
Notes unless and until he shall have delivered or caused to be
delivered
to Euroclear or Clearstream, Luxembourg certificate in
substantially the form of the certificate attached as Exhibit B
(copies of
which form
of certificate will be available at the offices of Euroclear in
Brussels
and Clearstream, Luxembourg in Luxembourg and the specified
offices of
each Paying Agent named in the Agency Agreement).
Presentation of this temporary Global Note for exchange shall be
made by
the bearer
hereof on any day (other than a Saturday or Sunday) on which
banks are
open for general business in London at the office of the Fiscal
Agent. The
aggregate principal amount of interests in the permanent Global
Note or,
as the case may be, definitive Notes issued upon an exchange of
this
temporary Global Note will, subject to the terms hereof, be equal
to
the
aggregate principal amount of this temporary Global Note submitted
by
the bearer
for exchange (to the extent that such principal amount does not
exceed the
aggregate principal amount of this temporary Global Note.
Upon (a)
any exchange of a part of this temporary Global Note for an
interest
in the permanent Global Note or for a definitive Note, (b)
receipt of
instructions from Euroclear or Clearstream, Luxembourg that,
following
the purchase by or on behalf of the Issuer, the Guarantor or
any
of the
Guarantor's other subsidiaries of a part of this temporary
Global
Note,
17
<PAGE>
part is to
be cancelled or (c) any redemption of a part of this temporary
Global
Note, the portion of the principal amount of this temporary
Global
Note so
exchanged, cancelled or redeemed shall be entered by or on
behalf
of the
Fiscal Agent on Part 1 or, as the case may be, Part 2 of the
Schedule
to this temporary Global Note, whereupon the principal amount
of
this
temporary Global Note shall be reduced for all purposes by the
amount
so
exchanged, cancelled or redeemed and entered. On an exchange in
whole
of this
temporary Global Note, this temporary Global Note shall be
surrendered to the Fiscal Agent.
3. BENEFITS
Until the
entire principal amount of this temporary Global Note has been
extinguished in exchange for the permanent Global Note and/or
definitive
Notes, the
bearer of this temporary Global Note shall in all respects be
entitled
to the same benefits as if he were the bearer of the definitive
Notes
referred to above, except that the bearer of this temporary
Global
Note shall
only be entitled to receive any payment on this temporary
Global
Note on presentation of certificates as provided below.
Accordingly, except as ordered by a court of competent jurisdiction
or as
required
by law or applicable regulation, the Issuer and any Paying
Agent
may deem
and treat the holder of this temporary Global Note as the
absolute
owner of this temporary Global Note for all purposes. All
payments
of any amounts payable and paid to such holder shall, to the
extent of
the sums so paid, discharge the liability for the moneys
payable
on this
temporary Global Note and on the relevant definitive Notes
and/or
Coupons.
4. PAYMENTS
Payments
due in respect of Notes for the time being represented by this
temporary
Global Note shall be made to the bearer only upon presentation
by
Euroclear or, as the case may be, Clearstream, Luxembourg to the
Fiscal
Agent at
its specified office of a certificate, substantially in the
form
of the
certificate attached as Exhibit A, to the effect that Euroclear,
or
as the
case may be, Clearstream, Luxembourg has received a certificate
substantially in the form of the certificate attached as Exhibit B.
The
bearer of
this temporary Global Note will not be entitled to receive any
payment of
interest due on or after the Exchange Date unless, upon due
certification, exchange of this temporary Global Note is
improperly
withheld
or refused upon due certification.
Upon any
payment in respect of the Notes represented by this temporary
Global
Note, the amount so paid shall be entered by or on behalf of
the
Fiscal
Agent on Part 2 of the Schedule to this temporary Global Note.
In
the case
of any payment of principal the principal amount of this
temporary
Global Note shall be reduced for all purposes by the amount so
paid and
the remaining principal amount of this temporary Global Note
shall be
entered by or on behalf of the Fiscal Agent on Part 2 of the
Schedule
to this temporary Global Note.
5. ACCOUNTHOLDERS
For so
long as any of the Notes is represented by this temporary
Global
Note or by
this temporary Global Note and the permanent Global Note and
such
Global Note(s) is/are held on behalf of Euroclear and/or
Clearstream,
Luxembourg, each person (other than Euroclear or Clearstream,
Luxembourg)
who is for
the time being shown in the records of Euroclear and/or
Clearstream, Luxembourg as the holder of a particular principal
amount of
Notes
(each an ACCOUNTHOLDER) (in which regard any certificate or
other
document
issued by Euroclear or Clearstream, Luxembourg as to the
principal
amount of such Notes standing to the account of any person
shall
be
conclusive and binding for all purposes) shall be treated as the
holder
of that
principal amount for all purposes (including but not limited to
for the
purposes of any quorum requirements of, or the right to demand
a
poll or,
meetings of the Noteholders and giving notice to the Issuer
pursuant
to Condition 10 other than with respect to the payment of
18
<PAGE>
principal
and interest on the Notes, the right to which shall be vested,
as against
the Issuer, solely in the bearer of this temporary Global Note
in
accordance with and subject to its terms. Each Accountholder must
look
solely to
Euroclear or Clearstream, Luxembourg, as the case may be, for
its share
of each payment made to the bearer of this temporary Global
Note.
The Issuer
covenants in favour of each Accountholder that it will make all
payments
in respect of the principal amount of Notes for the time being
shown in
the records of Euroclear and/or Clearstream, Luxembourg as
being
held by
the Accountholder and represented by this temporary Global Note
to
the bearer
of this temporary Global Note in accordance with clause 1 above
and
acknowledges that each Accountholder may take proceedings to
enforce
this
covenant and any of the other rights which it has under the
first
paragraph
of this clause directly against the Issuer.
6. NOTICES
For so
long as all of the Notes are represented by this temporary
Global
Note or by
this temporary Global Note and the permanent Global Note and
such
Global Note(s) is/are held on behalf of Euroclear
and/Clearstream,
Luxembourg, notices to Noteholders may be given by delivery of
the
relevant
notice to Euroclear and/or Clearstream, Luxembourg (as the case
may be)
for communication to the relative Accountholders rather than by
publication as required by Condition 12; provided that the notice
will
comply
with the rules and regulations of any stock exchange or other
relevant
authority on which the Notes are for the time being listed. Any
such
notice shall be deemed to have been given to the Noteholders on
the
second day
after the day on which such notice is delivered to Euroclear
and/or
Clearstream, Luxembourg (as the case may be) as aforesaid.
Whilst any
of the Notes held by a Noteholder are represented by a Global
Note,
notices to be given by such Noteholder may be given by such
Noteholder
(where applicable) through Euroclear and/or Clearstream, as the
Fiscal
Agent and Euroclear and/or Clearstream, Luxembourg may approve
for
this
purpose.
7. PRESCRIPTION
Claims
against the Issuer and the Guarantor in respect of principal
and
interest
on the Notes represented by this temporary Global Note will be
prescribed
after 10 years (in the case of principal and five years (in the
case of
interest) from the Relevant Date (as defined in Condition 8).
8. EUROCLEAR AND
CLEARSTREAM, LUXEMBOURG
Notes
represented by this temporary Global Note are transferable in
accordance
with the rules and procedures of Euroclear and Clearstream,
Luxembourg, as appropriate. References in this temporary Global
Note to
Euroclear
and/or Clearstream, Luxembourg shall be deemed to include
references
to any other clearing system through which interest in the
Notes are
held.
9. AUTHENTICATION
This
temporary Global Note shall not become valid or enforceable for
any
purpose
unless and until it has been authenticated by or on behalf of
the
Fiscal
Agent.
19
<PAGE>
10. CONTRACTS (RIGHT OF THIRD
PARTIES) ACT 1999
No rights
are conferred on any person under the Contracts (Rights of
Third
Parties)
Act 1999 to enforce any term of this temporary Global Note, but
this does
not affect any right or remedy of any person which exists or is
available
apart from that Act.
11. GOVERNING LAW
This
temporary Global Note is governed by, and shall be construed in
accordance
with, English law.
IN WITNESS whereof this temporary Global
Note has been executed as a deed on
behalf of the Issuer.
20
<PAGE>
EXECUTED as a Deed by KELLOGG EUROPE
)
COMPANY LIMITED
acting by
)
and
)
EXECUTED as a Deed by KELLOGG COMPANY
)
acting by
)
)
Dated -
CERTIFICATE OF AUTHENTICATION
This is the temporary Global Note
described in the Agency Agreement
By or on behalf of
HSBC BANK PLC as Fiscal Agent
(without recourse, warranty or
liability)
........................................
21
<PAGE>
THE
SCHEDULE
PART 1
EXCHANGES FOR THE PERMANENT GLOBAL NOTE/DEFINITIVE NOTES
AND CANCELLATIONS
The following exchanges of a part of this
temporary Global Note for interests in
the permanent Global Note/definitive Notes
and cancellations of a part of the
aggregate principal amount of this
temporary Global Note have been made:
<TABLE>
<CAPTION>
PART OF THE
AGGREGATE PRINCIPAL
AMOUNT OF THIS
TEMPORARY GLOBAL
REMAINING PRINCIPAL
NOTE EXCHANGED FOR PART
OF THE
AMOUNT OF THIS
INTERESTS IN THE AGGREGATE PRINCIPAL
TEMPORARY GLOBAL
PERMANENT GLOBAL
AMOUNT OF THIS
NOTE FOLLOWING
NOTATION MADE BY OR
DATE OF EXCHANGE OR
NOTE/DEFINITIVE
TEMPORARY GLOBAL
EXCHANGE OR
ON BEHALF OF THE
CANCELLATION
NOTES
NOTE CANCELLED
CANCELLATION
FISCAL AGENT
(EURO)
(EURO)
(EURO)
<S>
<C>
<C>
<C>
<C>
-------------
-------------
-------------
-------------
-------------
-------------
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</TABLE>
22
<PAGE>
PART 2
PAYMENTS
The following payments in respect of the
Notes represented by this temporary
Global Note have been made:
<TABLE>
<CAPTION>
REMAINING PRINCIPAL
AMOUNT OF THIS
TEMPORARY GLOBAL NOTATION MADE BY
OR
AMOUNT OF INTEREST AMOUNT OF PRINCIPAL
NOTE
FOLLOWING
ON BEHALF OF THE
DATE OF PAYMENT
PAID
PAID
PAYMENT
FISCAL AGENT
(EURO)
(EURO)
(EURO)
<S>
<C>
<C>
<C>
<C>
-------------
-------------
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-------------
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</TABLE>
23
<PAGE>
EXHIBIT A
KELLOGG EUROPE COMPANY LIMITED
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
(the SECURITIES)
This is to certify that, based solely on
certifications we have received in
writing, by tested telex or by electronic
transmission from member organisations
appearing in our records as persons being
entitled to a portion of the principal
amount set forth below (our MEMBER
ORGANISATIONS) substantially to the effect
set forth in the Agency Agreement, as of
the date hereof, [ ] principal amount
of the above-captioned Securities (a) is
owned by persons that are not citizens
or residents of the United States, domestic
partnerships, domestic corporations
or any estate or trust the income of which
is subject to United States federal
income taxation regardless of its source
(UNITED STATES PERSONS), (b) is owned
by United States persons that (i) are
foreign branches of United States
financial institutions (as defined in U.S.
Treasury Regulations Section
1.165-12(c)(1)(iv)) (FINANCIAL
INSTITUTIONS) purchasing for their own account or
for resale, or (ii) acquired the Securities
through foreign branches of United
States financial institutions and who hold
the Securities through such United
States financial institutions on the date
hereof (and in either case (i) or
(ii), each such United States financial
institution has agreed, on its own
behalf or through its agent, that we may
advise the Issuer or the Issuer's agent
that it will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as
amended, and the regulations thereunder),
or (c) is owned by United States or foreign
financial institutions for purposes
of resale during the restricted period (as
defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or
foreign financial institutions described in
clause (c) above (whether or not
also described in clause (a) or (b)) have
certified that they have not acquired
the Securities for purposes of resale
directly or indirectly to a United States
person or to a person within the United
States or its possessions.
As used herein, UNITED STATES means the
United States of America (including the
States and the District of Columbia), its
territories, its possessions and other
areas subject to its jurisdiction; and its
POSSESSIONS include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana
Islands.
If the Securities are of the category
contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of
1933, as amended, then this is also to
certify with respect to such principal
amount of Securities set forth above
that, except as set forth below, we have
received in writing, by tested telex or
by electronic transmission, from our Member
Organisations entitled to a portion
of such principal amount, certifications
with respect to such portion,
substantially to the effect set forth in
the Agency Agreement.
We further certify (a) that we are not
making available herewith for exchange
(or, if relevant, exercise of any rights or
collection of any interest) any
portion of the temporary global Security
excepted in such certifications and (b)
that as of the date hereof we have not
received any notification from any of our
Member Organisations to the effect that the
statements made by such Member
Organisations with respect to any portion
of the part submitted herewith for
exchange (or, if relevant, exercise of any
rights or collection of any interest)
are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is
required in connection with certain tax
laws and, if applicable, certain securities
laws of the United States. In
connection therewith, if administrative or
legal proceedings are commenced or
threatened in connection with which this
certification is or would be
24
<PAGE>
relevant, we irrevocably authorise you to
produce this certification to any
interested party in such proceedings.
Dated*
EUROCLEAR BANK S.A./N.V.
AS OPERATOR OF THE EUROCLEAR SYSTEM]
[CLEARSTREAM BANKING, SOCIETE ANONYME]
By
_______________________________
Authorised
Signatory
----------
* To be dated no
earlier than the date to which this certification relates,
namely (a)
the payment date or (b) the date set for the exchange of the
temporary
Global Note for an interest in the permanent Global Note.
25
<PAGE>
EXHIBIT B
KELLOGG EUROPE COMPANY LIMITED
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
(the SECURITIES)
This is to certify that as of the date
hereof, and except as set forth below,
the above-captioned Securities held by you
for our account (a) are owned by
person(s) that are not citizens or
residents of the United States, domestic
partnerships, domestic corporations or any
estate or trust the income of which
is subject to United States federal income
taxation regardless of its source
(UNITED STATES PERSON(s)), (b) are owned by
United States person(s) that (i) are
foreign branches of United States financial
institutions (as defined in U.S.
Treasury Regulations Section
1.165-12(c)(1)(iv)) (FINANCIAL INSTITUTIONS)
purchasing for their own account or for
resale, or (ii) acquired the Securities
through foreign branches of United States
financial institutions and who hold
the Securities through such United States
financial institutions on the date
hereof (and in either case (i) or (ii),
each such United States financial
institution hereby agrees, on its own
behalf or through its agent, that you may
advise the Issuer or the Issuer's agent
that it will comply with the
requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of
1986, as amended, and the regulations
thereunder), or (iii) are owned by United
States or foreign financial institution(s)
for purposes of resale during the
restricted period (as defined in U.S.
Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if
the owner of the Securities is a
United States or foreign financial
institution described in clause (c) above
(whether or not also described in clause
(a) or (b)) this is further to certify
that such financial institution has not
acquired the Securities for the purposes
of resale directly or indirectly to a
United States person or to a person within
the United States or its possessions.
If the Securities are of the category
contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of
1933, as amended (the ACT), then this
is also to certify that, except as set
forth below (a) in the case of debt
securities, the Securities are beneficially
owned by (i) non-U.S. person(s) or
(ii) U.S. person(s) who purchased the
Securities in transactions which did not
require registration under the Act; or (b)
in the case of equity securities, the
Securities are owned by (i) non-U.S.
person(s) (and such person(s) are not
acquiring the Securities for the account or
benefit of U.S. person(s)) or (ii)
U.S. person(s) who purchased the Securities
in a transaction which did not
require registration under the Act. If this
certification is being delivered in
connection with the exercise of warrants
pursuant to Section 230.902(m) of
Regulation S under the Act, then this is
further to certify that, except as set
forth below, the Securities are being
exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the
term U.S. PERSON has the meaning given
to it by Regulation S under the Act.
As used herein, UNITED STATES means the
United States of America (including the
States and the District of Columbia), its
territories, its possessions and other
areas subject to its jurisdiction; and its
POSSESSIONS include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by
tested telex on or prior to the date on
which you intend to submit your
certification relating to the Securities held by
you for our account in accordance with your
documented procedures if any
applicable statement herein is not correct
on such date, and in the absence of
any such notification it may be assumed
that this certification applies as of
such date.
This certification excepts and does not
relate to [ ] of such
interest in the
above Securities in respect of which we are
not able to certify and as to which
we understand exchange and delivery of
26
<PAGE>
definitive Securities (or, if relevant,
exercise of any rights or collection of
any interest) cannot be made until we do so
certify.
We understand that this certification is
required in connection with certain tax
laws and, if applicable, certain securities
laws of the United States. In
connection therewith, if administrative or
legal proceedings are commenced or
threatened in connection with which this
certification is or would be relevant,
we irrevocably authorise you to produce
this certification to any interested
party in such proceedings.
Dated*
By
______________________________________
Qualified Account
Holder
----------
* To be dated no
earlier than the fifteenth day before the date to which
this
certification relates, namely (a) the payment date or (b) the
date
set for
the exchange of the temporary Global Note for an interest in
the
permanent
Global Note.
27
<PAGE>
PART 2
FORM OF PERMANENT GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS
OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(J) AND 1287(A) OF
THE INTERNAL REVENUE CODE.
KELLOGG EUROPE COMPANY LIMITED
PERMANENT GLOBAL NOTE
(EURO)550,000,000
GUARANTEED FLOATING RATE NOTES DUE 2007
UNCONDITIONALLY AND IRREVOCABLY GUARANTEED BY
KELLOGG COMPANY
This permanent Global Note is issued in
respect of the Guaranteed Floating Rate
Notes due 2007 (the NOTES) of KELLOGG
EUROPE COMPANY LIMITED (the ISSUER). The
Notes are initially represented by a
temporary Global Note interests in which
will be exchanged in accordance with the
terms of the temporary Global Note for
interests in this permanent Global Note
and, if applicable, definitive Notes.
The Notes are issued subject to and with
the benefit of an Agency Agreement (the
AGENCY AGREEMENT) dated 28 November, 2005
between, among others, the Issuer,
KELLOGG COMPANY (the GUARANTOR) and HSBC
Bank plc as Fiscal Agent (the FISCAL
AGENT) and the Conditions of the Notes (the
CONDITIONS) set out in Part 2 of
Schedule 2 to the Agency Agreement.
Payments in respect of the Notes are
unconditionally and irrevocably guaranteed
by the Guarantor as provided in a
guarantee dated 28 November, 2005 entered
into by the Guarantor by way of deed
poll.
1. PROMISE TO PAY
Subject as
provided in this permanent Global Note, the Issuer, for value
received,
promises to pay the bearer upon presentation and surrender of
this
permanent Global Note the sum of (euro)550,000,000 (five hundred
and
fifty
million euros) or such lesser sum as is equal to the principal
amount of
the Notes represented by this permanent Global Note as shown by
the latest
entry in Part 1, Part 2 or Part 3 of the Schedule to this
permanent
Global Note or such other amounts as are expressed to be
payable
in respect
of the Notes represented by this permanent Global Note on early
redemption
of the Notes on the Interest Payment Date (as defined in the
Conditions) falling in May 2007 or on such earlier date as the
principal
or other
amounts in respect of this permanent Global Note may become due
under the
Conditions and to pay interest on the principal sum for the
time
being
outstanding at the rate determined under the Conditions,
payable
quarterly
in arrear on each Interest Payment Date until payment of the
principal
sum has been made or duly provided for in full together with
any
other
amounts as may be payable, all subject to and under the
Conditions.
28
<PAGE>
2. EXCHANGE OF INTERESTS
IN THE TEMPORARY GLOBAL NOTE FOR INTERESTS IN THIS
PERMANENT
GLOBAL NOTE
Upon any
exchange of an interest in the temporary Global Note
representing
the Notes
for an interest in this permanent Global Note, the Fiscal Agent
shall make
the appropriate entry in Part 1 of the Schedule to this
permanent
Global Note in order to indicate the principal amount of Notes
represented by this permanent Global Note following such
exchange.
3. EXCHANGE FOR
DEFINITIVE NOTES AND PURCHASES
Upon the
occurrence
