Exhibit 10.1
FIRST AMENDMENT TO THE 3 YEAR CREDIT AGREEMENT
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FIRST AMENDMENT TO THE 364 DAY CREDIT AGREEMENT
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FIRST AMENDMENT (this "Amendment"), dated as of September 12, 1995,
among RJR NABISCO HOLDINGS CORP., a Delaware corporation ("Holdings"), RJR
NABISCO, INC., a Delaware corporation (the "Borrower"), and the lending
institutions party to the 3 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 3 Year Credit Agreement.
W I T N E S S E T H:
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WHEREAS, Holdings, the Borrower and various lending institutions
(the "3 Year Banks") are parties to a Credit Agreement, dated as of April 28,
1995 (the "3 Year Credit Agreement"); and
WHEREAS, Holdings, the Borrower and various lending institutions
(the "364 Day Banks"; and together with the 3 Year Banks, the "Banks") are
parties to a Credit Agreement, dated as of April 28, 1995 (the "364 Day Credit
Agreement" and, together with the 3 Year Credit Agreement, the "Credit
Agreements");
WHEREAS, Holdings, the Borrower and the 3 Year Banks wish to enter
into the agreements and waivers with respect to the 3 Year Credit Agreement as
herein provided;
WHEREAS, Holdings, the Borrower and the 364 Day Banks wish to enter
into the agreements and waivers with respect to the 364 Day Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to the 3 Year Credit Agreement
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1. Section 8.07 of the 3 Year Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Amount
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Initial Borrowing Date $7,500,000,000
to and including
December 31, 1995
January 1, 1996 $7,600,000,000
to and including
December 31, 1996
January 1, 1997 $7,700,000,000
to and including
December 31, 1997
Thereafter $8,000,000,000".
2. Section 8.08 of the 3 Year Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Ratio
------- -----
Initial Borrowing Date 1.60:1
to and including
December 31, 1995
January 1, 1996 1.50:1
to and including
December 31, 1996
January 1, 1997 1.70:1
to and including
December 31, 1997
Thereafter 1.80:1".
3. Section 8.09 of the 3 Year Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Ratio
------ -----
Initial Borrowing Date 2.60:1
to and including
December 31, 1995
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January 1, 1996 2.55:1
to and including
December 31, 1996
January 1, 1997 2.25:1
to and including
December 31, 1997
Thereafter 2.00:1".
4. Section 8.10 of the 3 Year Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Ratio
------- -----
Initial Borrowing Date 3.50:1
to and including
December 31, 1995
January 1, 1996 3.50:1
to and including
December 31, 1996
January 1, 1997 3.75:1
to and including
December 31, 1997
Thereafter 4.00:1".
5. The definition of "Adjusted Operating Income" appearing in
Section 10 of the 3 Year Credit Agreement shall be amended by (a) deleting
the word "and" appearing at the end of clause (ii) of the proviso contained
therein and inserting a comma in lieu thereof and (b) inserting at the end of
such definition, immediately following clause (iii) thereof, the following:
"and (iv) for all purposes, for any period which includes the
fourth quarter of Holdings' 1995 fiscal year, there shall be
excluded in determining Adjusted Operating Income any pre-tax
restructuring expense and related costs and expenses recorded or
accrued in the fourth quarter of Holdings' 1995 fiscal year which
serve to reduce operating income of Holdings and/or its
Subsidiaries in such fiscal
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quarter, provided that the aggregate amount attributable pursuant
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to this clause (iv) shall not exceed $250,000,000.".
II. Amendments to the 364 Day Credit Agreement
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1. Section 8.07 of the 364 Day Credit Agreement is hereby amended
by deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Amount
------- ------
Initial Borrowing Date $7,500,000,000
to and including
December 31, 1995
January 1, 1996 $7,600,000,000
to and including
December 31, 1996
January 1, 1997 $7,700,000,000
to and including
December 31, 1997
Thereafter $8,000,000,000".
2. Section 8.08 of the 364 Day Credit Agreement is hereby amended
by deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Ratio
------- -----
Initial Borrowing Date 1.60:1
to and including
December 31, 1995
January 1, 1996 1.50:1
to and including
December 31, 1996
January 1, 1997 1.70:1
to and including
December 31, 1997
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Thereafter 1.80:1".
3. Section 8.09 of the 364 Day Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Ratio
------- -----
Initial Borrowing Date 2.60:1
to and including
December 31, 1995
January 1, 1996 2.55:1
to and including
December 31, 1996
January 1, 1997
to and including
December 31, 1997 2.25:1
Thereafter 2.00:1".
4. Section 8.10 of the 364 Day Credit Agreement is hereby amended
by deleting the table appearing therein in its entirety and by inserting the
following new table in lieu thereof:
"Period Ratio
------- -----
Initial Borrowing Date 3.50:1
to and including
December 31, 1995
January 1, 1996 3.50:1
to and including
December 31, 1996
January 1, 1997 3.75:1
to and including
December 31, 1997
Thereafter 4.00:1".
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5. 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 (ii) of the proviso contained
therein and inserting a comma in lieu thereof and (b) inserting at the end of
such definition, immediately following clause (iii) thereof, the following:
"and (iv) for all purposes, for any period which includes
the fourth quarter of Holdings' 1995 fiscal year, there
shall be excluded in determining Adjusted Operating
Income any pre-tax restructuring expense and related
costs and expenses recorded or accrued in the fourth
quarter of Holdings' 1995 fiscal year which serve to
reduce operating income of Holdings and/or its
Subsidiaries in such fiscal quarter, provided that the
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aggregate amount attributable pursuant to this clause
(iv) shall not exceed $250,000,000.".
III. Miscellaneous Provisions
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1. In order to induce the Banks to enter into this
Amendment, (a) the Borrower agrees to pay a fee to each 3 Year Bank which has
signed a copy of this Amendment and delivered by facsimile transmission an
executed signature page thereof to Chemical Bank Agency Services Corporation
("CBASC"), Attention: Xxxxx Xxxxxx (140 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Facsimile No.: (000) 000-0000) at or prior to 5:00 p.m.
(New York time) on September 27, 1995, equal to 0.05% of such 3 Year Bank's
Commitment (as defined in the 3 Year Credit Agreement), such fee to be
payable on or prior to the fifth Business Day following the later of (A)
September 27, 1995 and (B) the Amendment Date (as defined below), and (b)
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, in
each case on the Amendment Date (as defined below), 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.
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.
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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) 3 Year Banks constituting Required Banks under the 3 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 (x) in the case of the Credit
Parties delivered (including by way of facsimile transmission) the same to
White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx X. Xxxxxx, Esq. (Facsimile No.: (000) 000-0000) or (y) in
the case of the Banks delivered by facsimile transmission the same to CBASC,
Attention: Xxxxx Xxxxxx (140 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Facsimile No.: (000) 000-0000). After transmitting its executed
signature page to CBASC as provided above, each of the Banks shall deliver
executed hard copies of this Amendment to White & Case, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx, Esq.
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