Exhibit 10.7
SECOND AMENDMENT TO NABISCO CREDIT AGREEMENT
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SECOND AMENDMENT (this "Amendment"), dated as of November 3, 1995,
among NABISCO HOLDINGS CORP., a Delaware corporation ("Holdings"), NABISCO,
INC., a New Jersey corporation (the "Borrower") and the various lending
institutions (the "Banks") party to the 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 Credit Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Holdings, the Borrower and the Banks are parties to a Credit
Agreement, dated as of April 28, 1995 (as amended, modified or supplemented to
the date hereof, the "Credit Agreement"); and
WHEREAS, Holdings, the Borrower and the Banks wish to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to the Credit Agreement.
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1. Section 1.14 of the Credit Agreement is hereby amended by deleting
the word "and" at the end of clause (i) appearing therein and inserting a comma
in lieu thereof and inserting the following immediately after the end of clause
(ii) appearing therein:
"and (iii) in the event that such Replaced Bank is a party to the 364
DF Credit Agreement, the Borrower shall also take the actions
specified in Section 1.14 of the 364 DF Credit Agreement and replace
such Bank as a Bank thereunder."
2. Section 6 of the Credit Agreement is hereby amended by inserting
the phrase ", subject to the exceptions set forth in Section 5.02," immediately
following the phrase "Section 6" appearing in the preamble of said Section.
3. Section 8.04(a) of the Credit Agreement is hereby amended by
inserting the phrase ", to the extent that the aggregate outstanding principal
amount of Indebtedness permitted pursuant to this clause (a)(i) shall not exceed
$500,000,000" immediately after the phrase "Replacement Receivables Facility"
appearing therein.
4. Section 8.07 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting in lieu thereof the following new
Section 8.07:
"8.07 Consolidated Net Worth. Holdings will not permit
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Consolidated Net Worth at any time to be less than an amount equal to
the sum of (x) $3,750,000,000 plus (y) the sum of 25% of Consolidated
Net Income, if positive, for each prior fiscal year of Holdings, if
any, ending after January 1, 1996.".
5. Section 8.08 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting in lieu thereof the following new
Section 8.08:
"8.08 Fixed Charge Coverage Ratio. Holdings will not permit the
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ratio of (i) Adjusted Operating Income to (ii) Consolidated Fixed Charges
for any Test Period to be less than 1.15 to 1.00.".
6. Section 8.09 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting in lieu thereof the following new
Section 8.09:
"8.09 Leverage Ratio. Holdings will not permit the ratio of (i)
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Adjusted Consolidated Debt to (ii) Adjusted Operating Income for any Test
Period to be more than 3.70 to 1.00.".
7. Section 8.10 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting in lieu thereof the following new
Section 8.10:
"8.10 Cash Interest Coverage Ratio. Holdings will not permit the
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ratio of (i) Adjusted Operating Income to (ii) Consolidated Cash Interest
Expense for any Test Period to be less than 3.00 to 1.00.".
8. Section 9.04(a) of the Credit Agreement is hereby amended by
inserting the following clause immediately after the phrase "(determined without
regard to whether any notice or lapse of time is required" contained therein:
", provided that the existence of any Event of Default under this
Section 9.04(a)(ii) with respect to Indebtedness outstanding under the 364
DF Credit Agreement shall be determined after giving effect to any notice
or lapse of time provided to the Borrower in the 364 DF Credit Agreement".
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9. Section 10 of the Credit Agreement shall be amended by (a)
deleting the definitions "Applicable Facility Fee Percentage", "Commercial Paper
Outstandings" and "Cumulative Consolidated Net Income" contained therein in
their entirety and (b) inserting the following definitions in appropriate
alphabetical order:
"Applicable Facility Fee Percentage" shall mean, at any time during a
period set forth the percentage set forth below opposite such period below:
Applicable Facility
Period Fee Percentage
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NIG Period .225%
Minimum Investment .175%
Grade Period
Increased
Investment Grade .150%
Period
Maximum Investment .125%
Grade Period
"Commercial Paper Outstandings" shall mean, at any time during a CP
Period, an amount equal to (I) the sum of (x) the face amount of all
commercial paper previously issued by Holdings and/or any of its
Subsidiaries at a discount and outstanding at such time plus (y) the
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principal amount of all commercial paper previously issued by Holdings
and/or any of its Subsidiaries on an interest bearing basis and outstanding
at such time, in each case that will be refinanced, if necessary, pursuant
to a CP Refinancing Borrowing less (II) the Commercial Paper Outstandings
at such time as defined in the 364 DF Credit Agreement, provided that the
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Commercial Paper Outstandings that may be refinanced pursuant to CP
Refinancing Borrowings shall not exceed at any time an amount equal to (i)
$1,500,000,000 less (ii) the then aggregate principal amount of all Loans
made pursuant to CP Refinancing Borrowings.
"Consolidated Net Income" shall mean, for any period, for any Person
the consolidated net income of such Person and its Subsidiaries, determined
in accordance with GAAP, for such period.
"Cumulative Consolidated Net Income" shall mean, at any time for any
determination thereof, the sum of (i) Consolidated Net Income of Holdings
for the period (taken as one accounting period) commencing January 1, 1995
and ending on the last day of the last fiscal quarter of Holdings then
ended plus (ii) all losses
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from debt retirement deducted in determining the Consolidated Net Income of
Holdings for the period referred to in clause (i) above.
"364 DF Credit Agreement" shall mean the Credit Agreement, dated as of
November 3, 1995, among Holdings, the Borrower and the lending institutions
party thereto relating to initial commitments aggregating $1,500,000,000,
as the same may be modified, supplemented or amended from time to time.
10. Section 10 of the Credit Agreement shall be further amended by
deleting the phrase "one rating level" appearing in the definition "Maximum
Investment Grade Rating" and inserting in lieu thereof the phrase "at least one
or more levels".
11. Section 10 of the Credit Agreement shall be further amended by
deleting the following phrase appearing in the definition "Replacement
Receivables Facility" in its entirety:
"(i) the aggregate amount of available credit to Hanover under such
facility does not exceed the aggregate amount available to Hanover under
the Hanover Facility or the Replacement Receivables Facility, as the case
may be, being replaced or refinanced and (ii)".
12. Section 12.04(b)(A) of the Credit Agreement is hereby amended by
(a) inserting the phrase "(I) in the event of an assignment relating to this
Agreement only," immediately prior to the amount "$10,000,000" contained in the
first sentence thereof, (b) inserting the following phrase immediately after the
word "zero" appearing at the end of the first sentence thereof:
"and (II) in the event of an assignment relating this Agreement and the 364
DF Credit Agreement, $5,000,000, provided, that the aggregate amount of
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such assignment under this Agreement and the 364 DF Credit Agreement is at
least $10,000,000, except to the extent that after giving effect to any
such assignment the assigning Bank shall have reduced its Commitment
hereunder to zero";
and (c) inserting the following phrase immediately prior to the phrase "by (I)"
appearing in the third sentence thereof:
"(provided, that in the event of simultaneous assignments relating to this
Agreement and the 364 DF Credit Agreement, the fees for such assignment
shall total $2,500)".
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13. Section 12.07(a) of the Credit Agreement is hereby amended by
inserting "(i)" immediately after the phrase "provided further that" and
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inserting the following at the end of said Section:
"and (ii) in the event that the Indebtedness and related receivables under
the Hanover Facility or under any Replacement Receivables Facility are no
longer given off-balance sheet treatment, any such Indebtedness, the
interest expense or discount thereon and related receivables under the
Hanover Facility or any Replacement Receivables Facility shall continue to
receive off-balance sheet treatment for purposes of determining compliance
with Section 8."
II. Miscellaneous Provisions
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1. In order to induce the Banks to enter into this Amendment, each
Credit Party hereby (i) makes each of the representations, warranties and agree-
ments 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
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 the Credit
Agreement or any other Credit Document.
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.
5. This Amendment shall become effective on the date (the "Amendment
Date") when (i) the Borrower shall have given notice to the Payments
Administrator pursuant to Section 3.02 of the Credit Agreement of a reduction in
the Total Unutilized Commitment such that, after giving effect thereto, the
Total Commitment shall equal an amount not greater than $2,000,000,000 and (ii)
each of the Credit Parties and each of the Banks 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: Xxxx X. Xxxxxx, Esq.
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(Facsimile No.: (000) 000-0000). After transmitting its executed signature page
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.
6. From and after the Amendment Date, all references to the Credit
Agreement in the Credit Agreement and the other Credit Documents shall be deemed
to be references to such Credit Agreement as modified 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 /s/ Xxxxx Xxxxxx
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Title: Vice President & Treasurer
NABISCO, INC.
By /s/ Xxxxx Xxxxxx
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Title: Vice President & Treasurer
SENIOR MANAGING AGENTS
BANKERS TRUST COMPANY
By /s/ Xxxx Xxx Xxxxx
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Title: Managing Director
THE CHASE MANHATTAN BANK, N.A.
By /s/ Xxxxxxxx X. Xxxx
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Title: Managing Director
CHEMICAL BANK
By /s/ Xxxxxx Xxxxxx
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Title: Vice President
CITIBANK, N.A.
By /s/ Xxxxxx X. Xxxxxxxx
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Title: Attorney in Fact
THE FUJI BANK, LIMITED
By /s/ Xxxxxxxxx Xxxxxx
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Title: Vice President &
Manager
MANAGING AGENTS
ABN AMRO BANK N.V. NEW YORK BRANCH
By /s/ Xxxxxxx Xxxxx
---------------------------------
Title: Vice President
By /s/ Xxxxx X. Xxxxxx
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Title: Assistant Vice
President
BANK OF AMERICA NT & SA
By /s/ Xxxxx Xxxx
---------------------------------
Title: Vice President
THE BANK OF NEW YORK
By /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx X. Xxxxxx
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Title: Authorized Signatory
BANQUE PARIBAS
By /s/ Xxxx X. Xxxxxxxx
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Title: Group Vice President
By /s/ Xxxx X. XxXxxxxxx III
---------------------------------
Title: Assistant Vice President
CIBC, INC.
By /s/ Xxxx Xxxxxxxxx
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Title: Authorized Signatory
CREDIT LYONNAIS - CAYMAN ISLAND
BRANCH
By /s/ Xxxx Xxxxxxxxxx
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Title: Authorized Signature
CREDIT LYONNAIS - NEW YORK BRANCH
By /s/ Xxxx Xxxxxxxxxx
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Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxx
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Title: Assistant Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCHES
By /s/ Xxxxxx X. Xxxx, Xx.
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Title: Vice President
By /s/ Xxxxx Xxx
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Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED - NEW YORK BRANCH
By /s/ Xxxxx Xxx
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Title: Senior Vice President &
Senior Manager
MIDLAND BANK PLC
By /s/ Xxxx X. Xxxxx
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Title: Authorized Signatory
THE MITSUBISHI BANK, LIMITED-NEW
YORK BRANCH
By /s/ Xxxxx Xxxxxxx
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Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ Xxxx X. Silver
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Title: Associate
THE SAKURA BANK, LTD.
By /s/ Xxxxxxxx Xxxxxx
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Title: Senior Vice President &
Manager
THE SANWA BANK LIMITED
By /s/ Xxxxxxx Xxxxx
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Title: Vice President & Area
Manager
SOCIETE GENERALE
By /s/ Xxxxxx Xxxxxxxx
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Title: Vice President
THE SUMITOMO BANK, LIMITED NEW YORK
BRANCH
By /s/ Xxxxxxxxx Xxxxxxxx
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Title: Joint General Manager
THE TOKAI BANK, LIMITED
By /s/ Xxxxxx X. Xxxxxxxx
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Title: Senior Vice President
LEAD MANAGERS
BANCA COMMERCIALE ITALIANA NEW YORK
BRANCH
By /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Title: Vice President
By /s/ Xxxxx X. Xxxxx
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Title: Assistant Vice President
THE BANK OF TOKYO TRUST COMPANY
By /s/ Xxxxxxx X. Xxxxx
---------------------------------
Title: Vice President
THE LTCB TRUST COMPANY
By /s/ Xxxx X. XxXxxxx
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Title: Senior Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxxxxx Xxxxx xx Xxxx
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Title: Senior Vice President
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED - NEW YORK
BRANCH
By /s/ Xxxxxx Xxxxxxx
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Title: Vice President & Manager
NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice President
ROYAL BANK OF CANADA
By /s/ Xxxxx X. Xxxxxxxx
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Title: Senior Manager
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Xxxxxx X. Xxxx
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Title: Senior Vice President
MANAGERS
BAYERISCHE VEREINSBANK AG
NEW YORK BRANCH
By /s/ Xxxxxxxx Xxxxxxxxxx
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Title: Vice President
By /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
CREDIT SUISSE
By /s/ Xxxxxx X. Xxxx
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Title: Associate
By /s/ Xxxxxxx X. Xxxx
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Title: Member of Senior Management
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxx X. Xxxxxxxx
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Title: Vice President
By /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
YASUDA TRUST & BANKING
COMPANY, LIMITED
By /s/ Xxxx X. Xxxxxxxxxxxxxx
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Title: Senior Vice President
CO-MANAGERS
ASAHI BANK
By /s/ Xxxxxxxx Xxxxxx
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Title: Senior Deputy General
Manager
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND"
By /s/ Xxxxxxxx X. Xxxxxxxxxx
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Title: Vice President
By /s/ Xxx Xxxxx
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Title: Vice President & Manager
TORONTO DOMINION (NEW YORK), INC.
By /s/ Reg Waylen
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Title: Director
UNION BANK OF SWITZERLAND
NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
By /s/ Xxxxx X. Xxxxxxxx
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Title: Assistant Vice President
OTHER BANKS
ARAB BANK PLC - GRAND CAYMAN
BRANCH
By /s/ Xxxxx Xxxxxxxxx
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Title: Senior Vice President
BANCA CASSA DI RISPARMIO DI
TORINO S.P.A.
By /s/ J. Xxxxx Xxxxxx, Xx.
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Title: Vice President
By /s/ Xxxxxx X. XxXxxxxx
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Title: Vice President & Head
of Corporate Banking
BANCO DI ROMA S.P.A.
By /s/ Xxxxx X. Xxxxxx
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Title: First Vice President
By /s/ Xxxx Xxxxxxxx
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Title: Assistant Vice President
BANCO CENTRAL HISPANOAMERICANO,
S.A.
By /s/ Xxxxxxxxx Xxxxx
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Title: Executive Vice President
& General Manager
BAYERISCHE LANDESBANK
GIROZENTRALE
By /s/ Xxxx xxx Xxxxxxxxxxx
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Title: Executive Vice President
& Manager
By /s/ Xxxxx Xxxxxxxx
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Title: Senior Vice President
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxxxx
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Title: Vice President
By /s/ Xxxxxxx Xxxxx
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Title: Vice President
THE HOKKAIDO TAKUSHOKU BANK, LTD.
By /s/ Xxxxxxxx Xxxxxxxx
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Title: Vice President
KREDIETBANK N.V.
By /s/ Xxxxx Xxxxxxxxxxx
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Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
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Title: Vice President
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By /s/ Xxxxxxx X. Xxxxxx
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Title: Senior Vice President
By /s/ Xxxxxxxxx Xxxxxxxxxx
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Title: Vice President
THE NORINCHUKIN BANK
By /s/ Kenichi Yoshikubo
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Title: Joint General Manager
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxxx
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Title: Commercial Banking Officer
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Xxxxx Xxxxxx
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Title: Vice President
SWISS BANK CORPORATION
NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Associate Director Credit
Risk Management
By /s/ H. Xxxxx Xxxxxxxx
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Title: Associate Director
THE TOYO TRUST & BANKING CO.,
LTD. - NEW YORK BRANCH
By /s/ Hiroyuki Fukuro
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Title: Vice President
VIA BANQUE
By /s/ Xxxx-Xxxxx Xxxxx
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Title: DGA
By /s/ Xxxxxxxx Xxxxxxxx
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Title: S.S. Directeur
THE CHUO TRUST & BANKING CO.,
LTD. - NEW YORK AGENCY
By /s/ Xxxxx Xxxxxx
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Title: Deputy General Manager
CREDITO ITALIANO, S.P.A.
By /s/ Xxxxxx X. Xxxxxx
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Title: First Vice President
By /s/ Xxxxxx X. Xxxxx
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Title: Assistant Vice President
GULF INTERNATIONAL BANK B.S.C.
By /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Vice President
By /s/ Abdel-Fattah Tahoun
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Title: Senior Vice President
THE NIPPON CREDIT BANK, LTD.,
By /s/ Xxxxxxx Xxxx
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Title: Vice President & Manager
STANDARD CHARTERED BANK
By /s/ Xxxxx X. Xxxxxx
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Title: Assistant Vice President
UNITED STATES NATIONAL BANK OF
OREGON
By /s/ Xxxxxxx X. Xxxx
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Title: Vice President
SUMITOMO BANK OF CALIFORNIA
By /s/ Xxxxx Xxx
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Division Manager
