Exhibit 10.1
FIRST AMENDMENT TO THE 5 YEAR CREDIT AGREEMENT
SECOND AMENDMENT TO THE 364 DAY CREDIT AGREEMENT
AMENDMENT (this "Amendment"), dated as of May 19, 1998, among NABISCO
HOLDINGS CORP., a Delaware corporation ("Holdings"), NABISCO, INC., a New
Jersey corporation (the "Borrower"), and the lending institutions party to
the 5 Year Credit Agreement referred to below and the 364 Day Credit
Agreement referred to below. All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings provided such
terms in the 5 Year Credit Agreement.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower and various lending institutions (the "5
Year Banks") are parties to a Credit Agreement, dated as of October 31, 1996
(as amended, modified and supplemented to the date hereof, the "5 Year Credit
Agreement"),
WHEREAS, Holdings, the Borrower and various lending institutions (the
"364 Day Banks", and together with the 5 Year Banks, the "Banks") are parties
to a Credit Agreement, dated as of October 31, 1996 (the "364 Day Credit
Agreement" and, together with the 5 Year Credit Agreement, the "Credit
Agreements").
WHEREAS, Holdings, the Borrower and the 5 Year Banks wish to enter into
the amendments with respect to the 5 Year Credit Agreement as herein provided.
WHEREAS, Holdings, the Borrower and the 364 Day Banks wish to enter into
the amendments with respect to the 364 Day Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
I. Amendments to the 5 Year Credit Agreement.
1. The definition of "Adjusted Operating Income" appearing in Section 10
of the 5 Year Credit Agreement shall be amended by (a) deleting the word
"and" appearing at the end of clause (i) of the proviso contained therein and
inserting a comma in lieu thereof and (b) inserting at the end of such
definition, immediately following clause (ii) thereof, the following new
clause (iii):
"and (iii) for all purposes, for any period ending on or before December
31, 2000, there shall be excluded in determining Adjusted Operating
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Income any portion of the 1998 Charge which reduced the consolidated
operating income of Holdings and its Subsidiaries for such period.
2. The definition of "Consolidated Net Worth" appearing in Section 10 of
the 5 Year Credit Agreement shall be amended by inserting the following after
the third appearance of the word "date" therein:
"plus any 1998 Charge deducted in determining Consolidated Net Worth of
Holdings as of such date".
3. The definition of "Cumulative Consolidated Net Income" appearing in
Section 10 of the 5 Year Credit Agreement shall be amended by inserting at the
end of such definition, immediately following clause (iii) thereof, the
following:
"plus (iv) any 1998 Charge deducted in determining Consolidated Net
Income of Holdings for the period referred to in clause (i) above".
4. Section 10 of the 5 Year Credit Agreement is hereby amended by
inserting the following new definition in appropriate alphabetical order:
"1998 Charge" shall mean (i) certain restructuring expenses and
related costs and expenses and (ii) certain losses incurred in
connection with the sale of any branch or line of business not a part of
the Nabisco Biscuit Division, to the extent that the aggregate amount
of all costs, expenses and losses described in clauses (i) and (ii)
above do not exceed $600,000,000 and are recorded or accrued during
Holdings' 1998 or 1999 fiscal year.
II. Amendments to the 364 Day Credit Agreement.
1. The definition of "Adjusted Operating Income" appearing in Section 10
of the 364 Day Credit Agreement shall be amended by (a) deleting the word
"and" appearing at the end of clause (i) of the proviso contained therein and
inserting a comma in lieu thereof and (b) inserting at the end of such
definition, immediately following clause (ii) thereof, the following new
clause (iii):
"and (iii) for all purposes, for any period ending on or before December
31, 2000, there shall be excluded in determining Adjusted Operating
Income any portion of the 1998 Charge which reduced the consolidated
operating income of Holdings and its Subsidiaries for such period".
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2. The definition of "Consolidated Net Worth" appearing in Section 10 of
the 364 Day Credit Agreement shall be amended by inserting the following
after the third appearance of the word "date" therein:
"plus any 1998 Charge deducted in determining Consolidated Net Worth of
Holdings as of such date".
3. The definition of "Cumulative Consolidated Net Income" appearing in
Section 10 of the 364 Day Credit Agreement shall be amended by inserting
at the end of such definition, immediately following clause (iii)
thereof, the following:
"plus (iv) any 1998 Charge deducted in determining Consolidated Net
Income of Holdings for the period referred to in clause (i) above".
4. Section 10 of the 364 Day Credit Agreement is hereby amended by
inserting the following new definition in appropriate alphabetical order:
"1998 Charge" shall mean (i) certain restructuring expenses and
related costs and expenses and (ii) certain losses incurred in
connection with the sale of any branch or line of business not a part of
the Nabisco Biscuit Division, to the extent that the aggregate amount of
all costs, expenses and losses described in clauses (i) and (ii) above
do not exceed $600,000,000 and are recorded or accrued during Holdings'
1998 or 1999 fiscal year.
III. Miscellaneous Provisions
1. In order to induce the Banks to enter into this Amendment, each
Credit Party hereby (i) makes each of the representations, warranties and
agreements contained in Section 6 of each Credit Agreement and (ii)
represents and warrants that there exists no Default or Event of Default (as
defined in each Credit Agreement), in each case on the Amendment Date (as
defined below), both before and after giving effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of either Credit
Agreement or any other Credit Document (as defined in each Credit Agreement).
3. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with Holdings and the Payments Administrator.
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4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
5. This Amendment shall become effective as of the date first written
above on the date (the "Amendment Date") when (i) each of the Credit Parties,
(ii) 5 Year Banks constituting Required Banks under the 5 Year Credit
Agreement and (iii) 364 Day Banks constituting Required Banks under the 364
Day Credit Agreement, shall have signed a copy hereof (whether the same or
different copies) and shall have delivered (including by way of facsimile
transmission) the same to White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxxxxxx Xxxxxxxx (Facsimile No.:
(000) 000-0000).
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