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Exhibit 10.4
SECOND AMENDMENT TO THE CREDIT AGREEMENT
SECOND AMENDMENT, dated as of November 3, 1999, among X.X.
XXXXXXXX TOBACCO HOLDINGS, INC. (f/k/a/ RJR NABISCO, INC.), a Delaware
corporation (the "Borrower") and lending institutions party to the Credit
Agreement referred to below (the "Amendment"). All capitalized terms used herein
and not otherwise defined herein shall have the respective meanings provided
such terms in the Credit Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, the Borrower and various lending institutions (the
"Lenders") are parties to a Credit Agreement, dated as of May 7, 1999 (as
amended, modified or supplemented through but not including the date hereof, the
"Credit Agreement"); and
WHEREAS, the Borrower and the Lenders wish to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendment to the Credit Agreement.
1. Section 8.02(a)(ii) of the Credit Agreement is hereby
amended by inserting the text "any of IHC," immediately before the text "FSH"
appearing in said Section.
2. Section 8.02(c) of the Credit Agreement is hereby amended
by inserting the following text "if a Guaranty Event has occurred and is
continuing," at the beginning of the first clause (y) of said Section.
3. Section 8.04(i) of the Credit Agreement is hereby amended
by inserting the text "(w) owing to X.X. Xxxxxxxx Tobacco Co., a Delaware
corporation, on the Closing Date, together with any accrued or capitalized
interest in respect thereof," immediately before clause (x) of said Section.
4. Section 8.05(iv) of the Credit Agreement is hereby deleted
in its entirety and the following new Section 8.05(iv) is inserted in lieu
thereof:
"(iv) Parent may declare and pay, or otherwise pay or make, any
other Dividend provided that, at the time it is, in the case of a
Non-Declared Dividend, paid or made and, in the case of any other
Dividend, declared or otherwise authorized, the aggregate amount of
such Dividend, when added to all Non-Declared Dividends theretofore
paid or made
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and any other Dividends theretofore declared or otherwise authorized
(or paid) pursuant to this clause (iv) after the Closing Date shall not
exceed an amount equal to the sum of (x) $500,000,000 plus (y) 50% of
Cumulative Adjusted Cash Net Income plus (z) the aggregate cash
proceeds (net of underwriting discounts and commissions) received by
Parent after the Closing Date from issuances of its equity securities
(provided that the aggregate amount of such aggregate net cash proceeds
received in any twelve-month period shall be deemed not to exceed
$250,000,000 for purposes of this clause (iv)(z)), in each case
determined at, in the case of a Non-Declared Dividend, the date paid or
made and, in the case of any other Dividend, the date declared or
otherwise authorized, provided that such Dividend (other than a
Dividend that is a Non-Declared Dividend) is paid within 75 days of the
making of such declaration or other authorization, and to the extent
not Parent, the Borrower may declare and pay, or otherwise effect,
Dividends to Holdings to fund the permitted Dividends that are paid by
Holdings while Parent pursuant to this clause (iv), provided that (a)
any Dividend declared by Holdings while Parent that is paid by Holdings
after the consummation of the Spin-Off and is not funded by Dividends
from the Borrower will not be included in the computation of Dividends
declared or otherwise authorized by Parent for the purposes of this
clause (iv), (b) Holdings, while Parent, may declare a Dividend for
payment on or prior to July 1, 1999 in an amount not in excess of the
last regularly scheduled Dividend paid by Holdings prior to the Closing
Date and such Dividend (except to the extent not funded by a cash pass
through dividend paid by NHC in an amount at least comparable to the
dividend paid by NHC in respect of such last scheduled quarterly
Dividend so paid by Holdings) will not be included in the computation
of Dividends declared by Parent for purposes of this clause (iv) and
(c) Dividends may only be paid or made by Parent under this clause (iv)
if at the time of, in the case of a Non-Declared Dividend, the date
paid or made and, in the case of any other Dividend, the date declared
or otherwise authorized the excess of (i) the sum of the Total
Unutilized Commitment and Permanent Surplus Cash, in each case at such
time over (ii) the sum of (A) the amount of, in the case of a
Non-Declared Dividend, the aggregate amount of such Non-Declared
Dividend plus any other Dividends theretofore declared or otherwise
authorized but then unpaid and, in the case of any other Dividend, the
amount thereof so declared or otherwise authorized and (B) the
outstanding principal or face amount of Supported CP at such time shall
equal at least $225,000,000;".
5. The preamble to Section 8.05 of the Credit Agreement is
hereby amended by deleting the text "return any capital to its shareholders or
authorize or make" and inserting the text "make, declare or otherwise authorize
any return of capital to its shareholders or make, declare or otherwise
authorize" in lieu thereof.
6. Section 10 of the Credit Agreement is hereby amended by
inserting the following definition in said Section in appropriate alphabetical
order:
"Non-Declared Dividend" shall mean and include, as to any
Person, (i) the redemption, retirement, purchase or other acquisition, directly
or indirectly, for a consideration, of any shares of any class of its capital
stock or of any other equity interests of such Person now or hereafter
outstanding (or any warrants for or options or stock or similar appreciation
rights in
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respect of any such shares or equity interests but not including any convertible
debt) or the setting aside of any funds for any of the foregoing purposes and
(ii) the making or payment of any other Dividend by such Person which does not
require or involve a declaration or authorization by such Person.
II. Miscellaneous Provisions.
1. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby (i) makes each of the representations, warranties
and agreements contained in Section 6 of the Credit Agreement and (ii)
represents and warrants that there exists no Default or Event of Default, in
each case on the date hereof and on the Second Amendment Effective 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 the
Credit Agreement or any other Credit Document (as defined in the 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 the Borrower and the Administrative Agent.
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 "Second Amendment Effective Date") when (i) the
Borrower and (ii) Lenders constituting Required Lenders under the 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, L.L.P., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxxxxx (Facsimile No.: (000) 000-0000). After transmitting
its executed signature page to White & Case, L.L.P. as provided above, each of
the Lenders shall deliver executed hard copies of this Amendment to White &
Case, L.L.P., Attention: Xxxxxx Xxxxxxxxx at the address provided above.
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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.
X.X. XXXXXXXX TOBACCO HOLDINGS, INC.
By
Title:
SENIOR MANAGING AGENTS
THE CHASE MANHATTAN BANK, Individually
and as Administrative Agent
By:
Name:
Title:
BANKERS TRUST COMPANY, Individually
and as Syndication Agent
By:
Name:
Title:
CITIBANK, N.A., Individually and
as Syndication Agent
By:
Name:
Title:
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CREDIT LYONNAIS, NEW YORK BRANCH,
Individually and as Syndication
Agent
By:
Name:
Title:
THE FUJI BANK, LIMITED, Individually
and as Syndication Agent
By:
Name:
Title:
BARCLAYS BANK PLC (NEW YORK),
Individually and as Syndication
Agent
By:
Name:
Title:
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ABN AMRO BANK (NEW YORK)
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
HSBC BANK USA
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
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THE BANK OF NEW YORK
By:
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
CITY NATIONAL BANK OF NEW JERSEY
By:
Name:
Title:
NORDDEUTSCHE LANDESBANK
(NEW YORK)
By:
Name:
Title:
UBS AG, STAMFORD BRANCH
By:
Name:
Title:
By:
Name:
Title:
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WACHOVIA BANK, N.A.
By:
Name:
Title:
BANKBOSTON, N.A.
By:
Name:
Title:
ERSTE BANK
By:
Name:
Title:
EUROPEAN-AMERICAN BANK
By:
Name:
Title:
FIRST HAWAIIAN BANK
By:
Name:
Title:
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PIMCO TOTAL RETURN FUND
By:
Name:
Title:
ROYALTON COMPANY
By:
Name:
Title:
STOCK PLUS, L.P., FUND A
By:
Name:
Title:
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