Exhibit 10.3
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
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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