Exhibit 10.2
SIXTH AMENDMENT TO THE 3 YEAR CREDIT AGREEMENT
NINTH AMENDMENT TO THE 364 DAY CREDIT AGREEMENT
SIXTH AMENDMENT, dated as of June 8, 1998, 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 NINTH AMENDMENT, dated as of June 8,
1998, among Holdings, the Borrower and the lending institutions party to the 364
Day Credit Agreement referred to below (collectively, the "Amendment"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the respective Credit Agreements (as
defined below).
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower and various lending institutions (the "3
Year Banks") are parties to a Credit Agreement, dated as of April 28, 1995, with
respect to initial Commitments aggregating $2,750,000,000 on such date (as in
effect on the date hereof, the "3 Year Credit Agreement");
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, with respect to initial
Commitments aggregating $750,000,000 on such date (as in effect on the date
hereof, 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 with respect to the 3 Year Credit Agreement as herein provided; and
WHEREAS, Holdings, the Borrower and the 364 Day Banks wish to enter into
the agreements with respect to the 364 Day Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to the 3 Year Credit Agreement.
1. Section 8.07 of the 3 Year Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
8.07 in lieu thereof:
"8.07 Consolidated Net Worth. Holdings will not permit Consolidated Net
Worth as of the end of any Test Period to be less than $6,700,000,000."
2. The definition of "Adjusted Operating Income" appearing in
Section 10 of the 3 Year Credit Agreement is hereby amended by (x) deleting the
word "and" appearing at the
end of clause (vii) of the proviso contained therein and inserting a comma in
lieu thereof and (y) inserting the following new clause (ix) at the end of said
definition:
"and (ix) Adjusted Operating Income shall be adjusted by adding thereto
the amount of all expenses accrued by Holdings and its Subsidiaries
during any Test Period pursuant to (i) the settlement agreements, dated
on or about May 8, 1998, among R.J. Reynolds Tobacco Company, certain
other tobacco companies, the State of Minnesota, BCBSM, Inc., d/b/a
Blue Cross and Blue Shield of Minnesota and the plaintiffs' attorneys
in The State of Minnesota and Blue Shield of Minnesota vs. Philip
Morris Incorporated, et al. and (ii) the Florida, Mississippi and Texas
settlement agreements referred to in clauses (v)(x), (v)(y) and (viii),
respectively, of this definition, to the extent (and only to the
extent) (I) the aggregate amount of all payments made by Holdings and
its Subsidiaries pursuant to the aforementioned agreements (and for
which an adjustment to Adjusted Operating Income is made) does not
exceed $449,000,000 and (II) the amount of such payments are deducted
in any determination of Adjusted Operating Income."
3. The definition of "Senior Managing Agent" appearing in Section 10
of the 3 Year Credit Agreement is hereby amended by inserting the text ", Credit
Lyonnais" immediately after the word "Citibank" appearing in said definition.
4. The definition of "Swingline Lender" appearing in Section 10 of the
3 Year Credit Agreement is hereby amended by inserting the text ", Credit
Lyonnais" immediately after the word "Citibank" appearing in said definition.
5. Section 10 of the 3 Year Credit Agreement is hereby amended by
inserting the following definition in the appropriate alphabetical order:
"Credit Lyonnais" shall mean Credit Lyonnais and any successor
corporation by merger, consolidation or otherwise.
6. The Banks hereby irrevocably designate and appoint Credit Lyonnais
as a "Senior Managing Agent" of the Banks to act as specified in the 3 Year
Credit Agreement and in the other Credit Documents and hereby irrevocably
authorize Credit Lyonnais, as the Senior Managing Agent for such Banks, to take
such actions on its behalf under the provisions of the 3 Year Credit Agreement
and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Senior Managing Agents by the terms of
the 3 Year Credit Agreement and the other Credit Documents, together with such
other powers as are reasonably incidental thereto. The Banks, BTCo, Chase,
Citibank, Fuji, Holdings and the Borrower hereby acknowledge that upon the
assumption of Credit Lyonnais' proportionate share of the Swingline Commitment
from the existing Swingline Lenders, Credit Lyonnais shall have all of the
rights, powers and duties of a Senior Managing Agent under the 3 Year Credit
Agreement and shall be a "Senior Managing Agent" for all purposes of the 3 Year
Credit Agreement.
II. Amendments to the 364 Day Credit Agreement.
2
1. Section 8.07 of the 364 Day Credit Agreement is hereby amended by
deleting said Section in its entirety and by inserting the following new Section
8.07 in lieu thereof:
"8.07 Consolidated Net Worth. Holdings will not permit Consolidated Net
Worth as of the end of any Test Period to be less than $6,700,000,000."
2. The definition of "Adjusted Operating Income" appearing in
Section 10 of the 364 Day Credit Agreement is hereby amended by (x) deleting the
word "and" appearing at the end of clause (vii) of the proviso contained therein
and inserting a comma in lieu thereof and (y) inserting the following new clause
(ix) at the end of said definition:
"and (ix) Adjusted Operating Income shall be adjusted by adding thereto the
amount of all expenses accrued by Holdings and its Subsidiaries during any
Test Period pursuant to (i) the settlement agreements, dated on or about
May 8, 1998, among R.J. Reynolds Tobacco Company, certain other tobacco
companies, the State of Minnesota, BCBSM, Inc., d/b/a Blue Cross and Blue
Shield of Minnesota and the plaintiffs' attorneys in The State of Minnesota
and Blue Shield of Minnesota vs. Philip Morris Incorporated, et al. and
(ii) the Florida, Mississippi and Texas settlement agreements referred to
in clauses (v)(x), (v)(y) and (viii), respectively, of this definition, to
the extent (and only to the extent) (I) the aggregate amount of all
payments made by Holdings and its Subsidiaries pursuant to the
aforementioned agreements (and for which an adjustment to Adjusted
Operating Income is made) does not exceed $449,000,000 and (II) the amount
of such payments are deducted in any determination of Adjusted Operating
Income."
3. The definition of "Senior Managing Agent" appearing in Section 10
of the 364 Day Credit Agreement is hereby amended by inserting the text ",
Credit Lyonnais" immediately after the word "Citibank" appearing in said
definition.
4. The definition of "Swingline Lender" appearing in Section 10 of the
364 Day Credit Agreement is hereby amended by inserting the text ", Credit
Lyonnais" immediately after the word "Citibank" appearing in said definition.
5. Section 10 of the 364 Day Credit Agreement is hereby amended by
inserting the following definition in the appropriate alphabetical order:
"Credit Lyonnais" shall mean Credit Lyonnais and any successor corporation
by merger, consolidation or otherwise.
6. The Banks hereby irrevocably designate and appoint Credit Lyonnais
as a "Senior Managing Agent" of the Banks to act as specified in the 364 Day
Credit Agreement and in the other Credit Documents and hereby irrevocably
authorize Credit Lyonnais, as the Senior Managing Agent for such Banks, to take
such actions on its behalf under the provisions of the 364 Day Credit Agreement
and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Senior Managing Agents by the terms of
the 364 Day Credit Agreement and the other Credit Documents, together with such
other powers
3
as are reasonably incidental thereto. The Banks, BTCo, Chase, Citibank, Fuji,
Holdings and the Borrower hereby acknowledge that on and after the Amendment
Effective Date Credit Lyonnais shall have all of the rights, powers and duties
of a Senior Managing Agent under the 364 Day Credit Agreement and shall be a
"Senior Managing Agent" for all purposes of the 364 Day Credit Agreement.
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, in each case on
the date hereof and on the Amendment Effective Date, 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.
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 Effective Date") when (A)(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 delivered (including by way of facsimile
transmission) the same to White & Case, 1155 Avenue of the Americas, New York,
New York 10036, Attention: Jacquiline Lawrence, Esq. (Facsimile No.: (212)
354-8113) and (B) each of the 3 Year Banks and the 364 Day Banks which shall
have signed and delivered a copy of this Amendment prior to June 19, 1998 in
accordance with clause (A) above shall have received an amendment fee equal to
1/10 of 1% on the sum of (x) the Commitment (as defined in the 3 Year Credit
Agreement) of such Bank as in effect on such date plus (y) the Commitment (as
defined in the 364 Day Credit Agreement) of such Bank as in effect on such date.
After transmitting its executed signature page to White & Case as provided
above, each of the Banks shall deliver executed hard copies of this Amendment to
White & Case, Attention: Jacqueline Lawrence at the address provided above.
* * *
4
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.
RJR NABISCO HOLDINGS CORP.
By
----------------------------
Title:
RJR NABISCO, INC.
By
----------------------------
Title:
ABN AMRO BANK N.V.,
NEW YORK BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
ARAB BANK PLC--GRAND CAYMAN BRANCH
By
----------------------------
Title:
BANCA COMMERCIALE ITALIANA
NEW YORK BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
BANCA DI ROMA--NEW YORK BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
BANCO CENTRAL HISPANOAMERICANO, S.A.
--NEW YORK BRANCH
By
----------------------------
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
-------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
-------------------------
Name:
Title:
BANKERS TRUST COMPANY
By
----------------------------
Title:
THE BANK OF AMERICA NT & SA
By
----------------------------
Title:
THE BANK OF NOVA SCOTIA
By
----------------------------
Title:
THE BANK OF NEW YORK
By
----------------------------
Title:
PARIBAS
By
----------------------------
Title:
By
----------------------------
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE--CAYMAN ISLANDS BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
BAYERISCHE VEREINSBANK AG
NEW YORK BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
THE CHASE MANHATTAN BANK
By
----------------------------
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By
----------------------------
Title:
CITIBANK, N.A.
By
----------------------------
Title:
CREDIT LYONNAIS--NEW YORK
BRANCH
By
----------------------------
Title:
CREDIT SUISSE FIRST BOSTON
(Formerly known as Credit Suisse)
By
----------------------------
Title:
By
----------------------------
Title:
CREDITO ITALIANO
By
----------------------------
Title:
By
----------------------------
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
THE DAI-ICHI KANGYO BANK,
LIMITED, NEW YORK BRANCH
By
----------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
----------------------------
Title:
THE FUJI BANK, LIMITED
By
----------------------------
Title:
GULF INTERNATIONAL BANK B.S.C.
By
----------------------------
Title:
By
----------------------------
Title:
MIDLAND BANK PLC- NEW YORK BRANCH
By
----------------------------
Title:
KBC Bank N.V.
By:
-------------------------
Name:
Title:
KREDIETBANK N.V.
By
----------------------------
Title:
By
----------------------------
Title:
LTCB TRUST COMPANY
By
----------------------------
Title:
By
----------------------------
Title:
THE MITSUBISHI TRUST & BANKING
CORPORATION, NEW YORK BRANCH
By
----------------------------
Title:
THE MITSUI TRUST AND BANKING
COMPANY, LIMITED--NEW YORK BRANCH
By
----------------------------
Title:
NATIONSBANK, N.A.
By
----------------------------
Title:
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By
----------------------------
Title:
By
----------------------------
Title:
THE SAKURA BANK, LTD.
By
----------------------------
Title:
THE SANWA BANK LIMITED- NEW YORK BRANCH
By
----------------------------
Title:
STANDARD CHARTERED BANK
By
----------------------------
Title:
STANDARD CHARTERED BANK
By
----------------------------
Title:
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By
----------------------------
Title:
SUMITOMO BANK OF CALIFORNIA
By
----------------------------
Title:
THE TOKAI BANK, LIMITED
By
----------------------------
Title:
THE TOYO TRUST & BANKING CO.,
LTD. - NEW YORK BRANCH
By
----------------------------
Title:
UNION BANK OF SWITZERLAND
By
----------------------------
Title:
By
----------------------------
Title:
VIA BANQUE
By
----------------------------
Title:
By
----------------------------
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By
----------------------------
Title:
WESTDEUTSCHE LANDESBANK
By
----------------------------
Title:
By
----------------------------
Title:
YASUDA TRUST & BANKING COMPANY, LTD.
By
----------------------------
Title:
THE ASAHI BANK, LTD.--NEW YORK BRANCH
By
----------------------------
Title:
BANCA CASSA di RISPARMIO di TORINO--
NEW YORK BRANCH
By
----------------------------
Title:
BANK OF AMERICA ILLINOIS
By
----------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY--NEW YORK BRANCH
By
----------------------------
Title:
THE CHUO TRUST & BANKING CO., LTD--
NEW YORK BRANCH BRANCH
By
----------------------------
Title:
FIRST UNION CAPITAL MARKETS GROUP
By
----------------------------
Title:
THE HOKKAIDO TAKUSHOKU BANK, LTD.
By
----------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.
By
----------------------------
Title:
ING BANK
By
----------------------------
Title:
ISTITUTO BANCARIO SAN PAOLO di TORINO--
NEW YORK BRANCH
By
----------------------------
Title:
LEHMAN COMMERCIAL PAPER INC.
By
----------------------------
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
--NEW YORK BRANCH
By
----------------------------
Title:
MORGAN GUARANTY TRUST COMPANY
By
----------------------------
Title:
THE NORINCHUKIN BANK--NEW YORK BRANCH
By
----------------------------
Title:
THE NORTHERN TRUST COMPANY
By
----------------------------
Title:
ROBOBANK NEDERLAND--NEW YORK BRANCH
By
----------------------------
Title:
THE ROYAL BANK OF CANADA--NEW YORK BRANCH
By
----------------------------
Title:
ROYAL BANK OF SCOTLAND--NEW YORK BRANCH
By
----------------------------
Title:
SBC WARBURG
By
----------------------------
Title:
SOCIETE GENERALE--NEW YORK BRANCH
By
----------------------------
Title:
THE TORONTO-DOMINION BANK
By
----------------------------
Title:
U.S. BANK OF OREGON
By
----------------------------
Title:
THE ROYAL BANK OF SCOTLAND--
NEW YORK BRANCH
----------------------------
Title:
FIRST BANK, N.A.
By
----------------------------
Title:
HSBC CORPORATE BANKING
By
----------------------------
Title:
FIRST CHICAGO CAPITAL MARKETS
By
----------------------------
Title:
BZW
By
----------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
----------------------------
Title:
By
----------------------------
Title: