Exhibit 10.2
THIRD AMENDMENT
THIRD AMENDMENT (this "Amendment"), dated as of October 28,
1999, among NABISCO HOLDINGS CORP. ("Holdings"), NABISCO, INC. (the "Borrower"),
the lenders party to the Credit Agreement referred to below and Bankers Trust
Company, The Chase Manhattan Bank, Citibank, N.A. and The Fuji Bank Limited, as
Senior Managing Agents. All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided for such terms in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower, the Lenders and the Senior
Managing Agents are parties to a Credit Agreement, dated as of October 31, 1996
(as amended prior to the date hereof, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 6.09 of the Credit Agreement is hereby amended by
changing the two references to "December 31, 1995" therein to read "December 31,
1998".
2. Section 6.10 of the Credit Agreement is hereby amended by
changing the phrase "RJRN is indemnifying Holdings" therein to read: "RJT is
indemnifying NGHC, Holdings and its Subsidiaries".
3. The Credit Agreement is hereby amended by adding a new
Section 6.16 to read:
"6.16 YEAR 2000 COMPLIANCE. Holdings has reviewed the areas
within its consolidated business and operations that could be adversely affected
by, and has developed and is carrying out a plan to address on a timely basis,
the "Year 2000 Problem" (that is, the risk that computer applications used by
Holdings and its Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates on or prior to and any date
after December 31, 1999). Based on such review and plan, Holdings reasonably
believes that the "Year 2000 Problem" will not have a material adverse effect on
the operations, business, properties, assets or financial condition of Holdings
and its Subsidiaries, taken as a whole."
4. Sections 7.01(c) and 7.09 of the Credit Agreement are
hereby amended by changing the references to "Sections 8.03(e), 8.04(i), 8.05,
8.07, 8.08 and 8.09" therein to read: "Sections 8.03(e), 8.05 and 8.06".
5. Section 7.10 of the Credit Agreement is hereby deleted in
its entirety.
6. Section 8.02 of the Credit Agreement is hereby amended in
its entirety to read:
"8.02 CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. Holdings
will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve
its affairs, or enter into any transaction of merger or consolidation, or sell
or otherwise dispose of property or assets constituting all or substantially all
of the property or assets of Holdings and its Subsidiaries as a whole, except
that any Subsidiary of Holdings may be merged or consolidated with or into, or
be liquidated into, any Person (including Holdings, but only if the Borrower has
first merged into or consolidated with Holdings) PROVIDED that in the event of a
merger, consolidation or liquidation of the Borrower with or into any such
Person, the surviving corporation, if not the Borrower, shall execute and
deliver agreements assuming the obligations of the Borrower under this Agreement
and the Notes, which assumption agreements and all related actions and
documentation shall be in form and substance satisfactory to the Senior Managing
Agents; PROVIDED FURTHER that if any of the foregoing transactions involves a
Material Subsidiary, after giving effect to such transaction, no Event of
Default would result therefrom. Notwithstanding anything to the contrary
contained in this Section 8.02, no Restricted Sale shall be permitted".
7. Sections 8.04, 8.05 and 8.09 of the Credit Agreement are
hereby deleted and Sections 8.06, 8.07 and 8.08 of the Credit Agreement are
hereby renumbered as Sections 8.04, 8.05 and 8.06, respectively.
8. Section 8.06 of the Credit Agreement (renumbered as 8.04
pursuant to Section 7 above) is hereby amended by changing the reference therein
to "RJRN Agreements" to read "NGHC Agreements".
9. Section 8.07 of the Credit Agreement (renumbered as 8.05
pursuant to Section 7 above) is hereby amended by (i) changing the reference to
"25%" therein to read "33%" and (ii) changing the reference to "January 1, 1996"
therein to read "January 1, 1999".
10. Section 10 of the Credit Agreement is hereby amended as
follows:
(i) the reference to "Section 8.08" in the definition of
Adjusted Operating Income is changed to "Section 8.06";
(ii) the definition of Applicable Utilization Fee Percentage
shall be changed in its entirety to read:
"Applicable Utilization Fee Percentage" shall mean, at any
time during a period set forth below, the percentage set forth opposite such
period below:
Applicable
Period Utilization Fee Percentage
------ --------------------------
NIG Period .500%
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Minimum Investment .375%
Grade Period
Increased Investment Grade Period .250%
Maximum Investment Grade Period .125%
(iii) the reference to "RJRN" in the definition of Change of
Control is changed to "NGHC";
(iv) the definitions of Consolidated Cash Interest Expense,
Cumulative Consolidated Net Income, Dividends, Exchange Agreement, Foreign
Subsidiary, Permitted Currency Agreement, Restricted Payments, RJRN, RJRN
Agreements, RJRN Entity, RJRN Holdings and Specified Permitted Existing Debt are
deleted;
(v) the definition of Corporate Agreement is changed in its
entirety to read:
"Corporate Agreement" shall mean the Corporate Agreement dated
as of June 14, 1999 among NGHC, Holdings and RJT.
(vi) in the definition of Indebtedness (i) the reference to
"the RJRN Agreements" is changed to "the NGHC Agreements" and (ii) the reference
to "or outstanding under Section 8.04(i)" is deleted;
(vii) the reference to "or any substantial portion" in the
definition of Restricted Sales is deleted;
(viii) the definition of Services Agreement is changed in its
entirety to read:
"Services Agreement" shall mean the Intercompany Services
Agreement dated as of June 14, 1999 among NGHC, Holdings and RJT.
(ix) the definition of Tax Sharing Agreement is changed in its
entirety to read:
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement
dated as of June 14, 1999 among NGHC, Holdings, RJT and X.X. Xxxxxxxx Tobacco
Company.
(x) the reference to "Section 8.08 or 8.09" in the definition
of Test Period is changed to read "Section 8.06";
(xi) the phrase "dated as of the date hereof" in the
definition of 364 DF Credit Agreement is changed to read "dated as of October
28, 1999";
(xii) the reference to "50%" in the definition of Utilization
Period is changed to read "33%"; and
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(xiii) the following definitions are added in appropriate
alphabetical order:
"NGHC" shall mean Nabisco Group Holdings Corp., a Delaware
corporation.
"NGHC Agreements" shall mean the Corporate Agreement, the
Services Agreement and the Tax Sharing Agreement.
"RJT" shall mean X.X. Xxxxxxxx Tobacco Holdings, Inc., a
Delaware corporation.
11. The references to "Sections 8.03(e), 8.04(i), 8.05, 8.07,
8.08, and 8.09" in each of Sections 12.07(a) and 12.12 of the Credit Agreement
are hereby changed to read "Sections 8.03(e), 8.05 and 8.06".
12. The references to page 38 and to December 31, 1995 in
Annex IV to the Credit Agreement are hereby changed to read "page 7" and
"December 31, 1998", respectively.
13. This Amendment is limited as specified and shall not
constitute a modification, amendment or waiver of any other provision of the
Credit Agreement or any other Credit Document.
14. 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 the Borrower and the Payments
Administrator.
15. 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.
16. This Amendment shall become effective on the date when
Holdings, the Borrower and the Required Banks shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered
(including by way of facsimile transmission) the same to the Payments
Administrator at its Notice Office provided that any payment of Utilization Fees
due on or after such date with respect to any day prior thereto shall be
computed on the basis of the Utilization Fee applicable prior to such
effectiveness.
17. From and after the effectiveness of this Amendment, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to such Credit Agreement as
amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
NABISCO HOLDINGS CORP.
By_________________________________
Title:
NABISCO, INC.
By__________________________________
Title:
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