Exhibit 4.1(d)
FOURTH AMENDMENT TO THE 1991 CREDIT AGREEMENT
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THIRD AMENDMENT TO THE 1993 CREDIT AGREEMENT
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AMENDMENT (this "Amendment"), dated as of November 2, 1994, among RJR
NABISCO HOLDINGS CORP., a Delaware corporation ("Holdings"), RJR NABISCO, INC.,
a Delaware corporation (the "Borrower"), and the lending institutions party to
the 1991 Credit Agreement and the 1993 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 1991 Credit Agreement referred to
below.
WITNESSETH:
WHEREAS, Holdings, the Borrower and various lending institutions (the
"1991 Banks") are parties to a Credit Agreement, dated as of December 1, 1991,
as amended, modified and supplemented to the date hereof (as so amended,
modified and supplemented, the "1991 Credit Agreement"); and
WHEREAS, Holdings, the Borrower and various lending institutions (the
"1993 Banks"; and together with the 1991 Banks, the "Banks") are parties to a
Credit Agreement, dated as of April 5, 1993, as amended, modified and
supplemented to the date hereof (as so amended, modified and supplemented, the
"1993 Credit Agreement" and together with the 1991 Credit Agreement, the "Credit
Agreements");
WHEREAS, Holdings, the Borrower and the 1991 Banks wish to amend the
1991 Credit Agreement as herein provided; and
WHEREAS, Holdings, the Borrower and the 1993 Banks wish to amend the
1993 Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
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I. Amendments to the 1991 Credit Agreement.
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1. Section 1.01(A) of the 1991 Credit Agreement is hereby amended by
adding at the end thereof a new sentence to read:
"Notwithstanding any other provision of this Agreement, no Loans will
be made hereunder and no Letter of Credit will be issued hereunder if
after giving effect thereto the sum of (I) the aggregate outstanding
principal amount of all Loans then outstanding, (II) the aggregate
Letter of Credit Outstandings at such time and (III) the Nabisco
Facility Outstandings at such time would exceed (A)$6,000,000,000, in
the event that the Facility Maturity Date is extended pursuant to the
1994 Extension Request or (B) otherwise, $6,500,000,000."
2. Section 3.01 of the 1991 Credit Agreement is hereby amended by
redesignating clause (g) therein as clause "(h)" and inserting a new clause (g)
to read:
"(g) In the event that (x) the extension of the Facility Maturity Date
specified in the 1994 Extension Request has become effective as
provided in Section 1.14 of this Agreement and (y) on June 30, 1995
the Total Commitment is greater than $5,000,000,000, the Borrower
agrees to pay to the Payments Administrator on such date an additional
extension fee for the account of each Extending Bank equal to 1/8 of
1% of the Commitment of such Extending Bank on June 30, 1995 (after
giving effect to any reduction of the Total Commitment effected on
such date)."
3. Section 3.03(c) of the 1991 Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"Notwithstanding the foregoing, in no event shall the Nabisco IPO or
the 1994 Dividend result in any reduction in the Total Commitment
pursuant to this Section 3.03(c)."
4. Section 8.02(e) of the 1991 Credit Agreement is hereby amended by
deleting the words ",Group, the Borrower or RJR".
5. Section 8.04 of the 1991 Credit Agreement is hereby amended by: (i)
deleting the word "and" appearing at the end of clause (f) thereof, and (ii)
deleting clause (g) thereof in its entirety and inserting in lieu thereof the
following:
"(g) (i) Indebtedness owing by members of the Nabisco Group to each
other and (ii) Indebtedness of any member of the Nabisco Group (x)
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consisting of Contingent Obligations in respect of, or (y)
constituting reimbursement obligations under letters of credit issued
in support of, obligations of any other member of the Nabisco Group
to the extent such other obligations are permitted by this Agreement;
(h) Indebtedness created pursuant to the Nabisco Facility;
(i) Indebtedness of Nabisco and NHC evidenced by the 1994 Dividend
Notes and the Old Nabisco Intercompany Notes; and
(j) Indebtedness not otherwise permitted by the foregoing clauses (a)
through (i), provided that the aggregate outstanding principal amount
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of Indebtedness on a consolidated basis incurred pursuant to this
clause (j) shall not exceed at any time an amount equal to 7-1/2% of
Consolidated Net Worth at such time."
6. Section 8.06 of the 1991 Credit Agreement is hereby amended to read
in its entirety as follows:
"8.06 Limitation on Dividends. Holdings will not declare or pay any
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dividends (other than dividends payable solely in its capital stock) or
return any capital to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital
stock now or hereafter outstanding (or any warrants for or options or
stock appreciation rights in respect of any of such shares but not
including any convertible debt), or set aside any funds for any of the
foregoing purposes, or permit any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital
stock of Holdings now or hereafter outstanding (or any options or warrants
or stock appreciation rights issued by Holdings with respect to its
capital stock but not including any convertible debt) (all of the
foregoing "Dividends"), provided that so long as no Event of Default
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then exists in the case of clauses (ii) and (iii), (i) Holdings may issue
shares of Holdings Common Stock upon the exercise of any warrants or
options or upon the conversion or redemption of any convertible or
redeemable preferred or preference stock, and in connection with any such
exercise, conversion or redemption Holdings may pay cash in lieu of
issuing fractional shares of Holdings Common Stock, {ii) Holdings may
repurchase Holdings Common Stock (and/or options or warrants in respect
thereof) pursuant to, and in accordance with the terms of, management
and/or employee stock plans, (iii) Holdings may declare and pay, or
otherwise effect, any other Dividend provided that the aggregate amount of
such Dividend, when added to all Dividends theretofore made pursuant to
this clause (iii) after the
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Fourth Amendment Effective Date, shall not exceed an amount equal to the
sum of (x) $1,000,000,000 plus (y) 50% of Cumulative Consolidated Net
Income plus (z) the aggregate cash proceeds (net of underwriting discounts
and commissions) received by Holdings after the Fourth Amendment Effective
Date from issuances of its equity securities (provided that the aggregate
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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 (iii)(z)), in each case determined at the time of the declaration
thereof, provided that such Dividend is paid within 45 days of the making
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of such declaration, (iv) Holdings may issue and exchange shares of any
class or series of its common stock now or hereafter outstanding for shares
of any other class or series of its common stock now or hereafter
outstanding, and (v) Holdings may, in connection with any reclassification
of its common stock and any exchange permitted by clause (iv) above, pay
cash in lieu of issuing fractional shares of any class or series of its
common stock."
7. Section 9.04 of the 1991 Credit Agreement is hereby amended by
inserting after the reference to "1993 Credit Agreement" the two places it
appears therein the phrase "or the Nabisco Facility, as the case may be".
8. Section 10 of the 1991 Credit Agreement is hereby amended by
adding thereto the following new definitions in appropriate alphabetical order:
"Extending Bank" shall mean each Bank which has (i) executed and
delivered the Fourth Amendment and (ii) responded positively to the
1994 Extension Request (in each case within the time periods specified
in the 1994 Extension Request).
"Fourth Amendment" shall mean the Fourth Amendment, dated as
of November 2, 1994, to this Agreement.
"Fourth Amendment Effective Date" shall mean the date of
effectiveness of the Fourth Amendment.
"Nabisco" shall mean Nabisco, Inc., a New Jersey corporation.
"Nabisco Facility" shall mean the credit facility for Nabisco,
to be evidenced by the Nabisco Facility Documents in effect from time
to time, to finance the repayment of certain intercompany obligations
and for the general corporate purposes and working capital
requirements of Nabisco and its Subsidiaries, provided that the
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aggregate outstanding principal amount of the Nabisco Facility shall
not at any time exceed $1,500,000,000.
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"Nabisco Facility Documents" shall mean all agreements evidencing
and governing the Nabisco Facility (it being understood and agreed
that such agreements shall not, without the consent of the Required
Banks, prohibit NHC or any of its Subsidiaries from paying dividends
to, the Borrower, provided that a dividend limitation on Nabisco shall
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be permitted so long as (x) Nabisco is permitted to pay dividends in
an amount of at least $300,000,000 plus 50% of NHC's cumulative
consolidated net income commencing January 1, 1995), (y) Nabisco is
permitted to pay scheduled payments when due on the 1994 Nabisco
Dividend Notes and the Old Nabisco Intercompany Notes and (z) there
are customary exceptions related thereto relating to employee and/or
management stock plans that are satisfactory to the Senior Managing
Agents.
"Nabisco Facility Outstandings" shall mean, at any time, an
amount equal to the sum of (x) the aggregate outstanding principal
amount of Loans under, and as defined in, the Nabisco Facility
Documents and (y) the Letter of Credit Outstandings under, and as
defined in, the Nabisco Facility Documents.
"Nabisco Group" shall mean NHC and its Wholly-Owned Subsidiaries.
"Nabisco IPO" shall mean the initial public offering of the
common stock of NHC, provided that after giving effect to the Nabisco
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IPO, the Borrower shall own no less than 80% on a fully diluted basis
of the economic and voting interest in NHC's common stock and all of
NHC's capital stock other than common stock, if any.
"NHC" shall mean Nabisco Holdings Corp. (formerly known as
Nabisco Brands, Inc.), a Delaware corporation.
"1994 Dividend" shall mean the issuance and distribution of the
1994 Dividend Notes.
"1994 Dividend Notes" shall mean (i) two notes dated October 18,
1994 issued by NHC to the Borrower, one in the amount of
$205,765,018.60 issued in exchange for an old note of NHC to the
Borrower, and one in the amount of $1,300,000,000 issued by NHC to the
Borrower as a dividend, and (ii) three notes in the aggregate amount
not to exceed $4,200,000,000 to be issued by Nabisco to NHC and
distributed by NHC to the Borrower through the declaration of two
dividends (collectively, the "1994 Nabisco Dividend Notes"), provided
that (x) the Borrower and
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NHC do not transfer any of the foregoing notes to any Person
(subject to the requirements of the Borrower Pledge Agreement)
and (y) the foregoing notes, and all amendments and supplements
thereto, are otherwise in form and substance satisfactory to the
Senior Managing Agents.
"1994 Extension Request" shall mean the Extension Request
dated October 31, 1994 and delivered by the Borrower pursuant to
Section 1.14 of this Agreement.
"Old Nabisco Intercompany Notes" shall mean the four notes
issued by Nabisco to NHC in 1992 and 1993 with an aggregate
outstanding principal balance of $1,361,825,777.80, as the same
may be amended or supplemented from time to time with the consent
of the Senior Managing Agents.
9. Section 10 of the 1991 Credit Agreement is hereby further
amended by:
(i) replacing the phrase "commencing January 1, 1992" in the
definition of "Cumulative Consolidated Net Income" with the phrase
"commencing January 1, 1995";
(ii) adding immediately after the phrase "(other than RJR" in the
definition of "Permitted Currency Agreement" the phrase "or, with
respect to Currency Agreements entered into by any of its respective
Subsidiaries, NHC and/or Nabisco"; and
(iii) adding immediately after the phrase "provided that
Restricted Sales shall not include" in the definition of "Restricted
Sales" the phrase "(u) the issuance of common stock of NHC pursuant to
the Nabisco IPO; (v) the issuance of common stock of NHC pursuant to
any incentive plans or arrangements for directors, officers, key
employees and other persons having a unique relationship to NHC and
its Subsidiaries, provided that after giving effect to any such
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issuance pursuant to this clause (v) the Borrower shall own no less
than 80% on a fully diluted basis of the economic and voting interest
in NHC's common stock and all of NHC's capital stock other than common
stock; (w) the sale or disposition of any interest in the Nabisco
Biscuit Division to any entity in the Nabisco Group;".
II. Amendments to the 1993 Credit Agreement.
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1. Section 2.03(c) of the 1993 Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
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"Notwithstanding the foregoing, in no event shall the Nabisco IPO or
the 1994 Dividend result in any reduction in the Total Commitment
pursuant to this Section 2.03(c)
2. Section 8.04 of the 1993 Credit Agreement is hereby amended by: (i)
deleting the word "and" appearing at the end of clause (f) thereof; and (ii)
deleting clause (g) thereof in its entirety and inserting in lieu thereof the
following:
"(g) (i) Indebtedness owing by members of the Nabisco Group to each
other and (ii) Indebtedness of any member of the Nabisco Group (x)
consisting of Contingent Obligations in respect of, or (y)
constituting reimbursement obligations under letters of credit issued
in support of, obligations of any other member of the Nabisco Group to
the extent such other obligations are permitted by this Agreement;
(h) Indebtedness created pursuant to the Nabisco Facility;
(i) Indebtedness of Nabisco and NHC evidenced by the 1994 Dividend
Notes and the Old Nabisco Intercompany Notes; and
(j) Indebtedness not otherwise permitted by the foregoing clauses (a)
through (i) and the following clause (h), provided that the aggregate
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outstanding principal amount of Indebtedness on a consolidated basis
incurred pursuant to this clause (j) shall not exceed at any time an
amount equal to 7-1/2% of Consolidated Net Worth at such time."
3. Section 8.06 of the 1993 Credit Agreement is hereby amended to read
in its entirety as follows:
8.06 Limitation on Dividends. Holdings will not declare or pay any
-----------------------
dividends (other than dividends payable solely in its capital stock) or return
any capital to its stockholders or authorize or make any other distribution,
payment or delivery of property or cash to its stockholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any class of its capital stock now or hereafter
outstanding (or any warrants for or options or stock appreciation rights in
respect of any of such shares but not including any convertible debt), or set
aside any funds for any of the foregoing purposes, or permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of Holdings now or hereafter outstanding (or any
options or warrants or stock appreciation rights issued by Holdings with respect
to its capital stock but not including any convertible debt (all of the
foregoing "Dividends "), provided that so long as no Event of Default then
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exists in the case of clauses (ii) and (iii), (i) Holdings may issue shares of
Holdings
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Common Stock upon the exercise of any warrants or options or upon the conversion
or redemption of any convertible or redeemable preferred or preference stock,
and in connection with any such exercise, conversion or redemption Holdings may
pay cash in lieu of issuing fractional shares of Holdings Common Stock, (ii)
Holdings may repurchase Holdings Common Stock (and/or options or warrants in
respect thereof) pursuant to, and in accordance with the terms of, management
and/or employee stock plans, (iii) Holdings may declare and pay, or otherwise
effect, any other Dividend provided that the aggregate amount of such Dividend,
when added to all Dividends theretofore made pursuant to this clause (iii) after
the Third Amendment Effective Date, shall not exceed an amount equal to the sum
of (x) $1,000,000,000 plus (y) 50% of Cumulative Consolidated Net Income plus
(z) the aggregate cash proceeds (net of underwriting discounts and commissions)
received by Holdings after the Third Amendment Effective Date from issuances of
its equity securities (provided that the aggregate amount of such aggregate net
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cash proceeds received in any twelve-month period shall be deemed not to exceed
$250,000,000 for purposes of this clause (iii)(z)), in each case determined at
the time of the declaration thereof, provided that such Dividend is paid within
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45 days of the making of such declaration, (iv) Holdings may issue and exchange
shares of any class or series of its common stock now or hereafter outstanding
for shares of any other class or series of its common stock now or hereafter
outstanding, and (v) Holdings may, in connection with any reclassification of
its common stock and any exchange permitted by clause (iv) above, pay cash in
lieu of issuing fractional shares of any class or series of its common stock."
4. Section 9.04 of the 1993 Credit Agreement is hereby amended by
inserting after the reference to "1991 Credit Agreement" the two places it
appears therein the phrase "or the Nabisco Facility, as the case may be".
5. Section 10 of the 1993 Credit Agreement is hereby amended by adding
thereto the following new definitions in appropriate alphabetical order:
"Nabisco" shall mean Nabisco, Inc., a New Jersey corporation.
"Nabisco Facility" shall mean the credit facility for Nabisco, to
be evidenced by the Nabisco Facility Documents in effect from time to
time, to finance the repayment of certain intercompany obligations and
for the general corporate purposes and working capital requirements of
Nabisco and its Subsidiaries, provided that the aggregate outstanding
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principal amount of the Nabisco Facility shall not at any time exceed
$1,500,000,000.
"Nabisco Facility Documents" shall mean all agreements evidencing
and governing the Nabisco Facility (it being understood and agreed
that such agreements shall not, without the consent of the Required
Banks, prohibit NHC or any of its Subsidiaries from paying dividends
to, the
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Borrower, provided that a dividend limitation on Nabisco shall be
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permitted so long as (x) Nabisco is permitted to pay dividends in an
amount of at least $300,000,000 plus 50% of NHC's cumulative
consolidated net income commencing January 1, 1995, (y) Nabisco is
permitted to pay scheduled payments when due on the 1994 Nabisco
Dividend Notes and the Old Nabisco Intercompany Notes and (z) there
are customary exceptions related thereto relating to employee and/or
management stock plans that are satisfactory to the Agent and the Co-
Agent.
"Nabisco Facility Outstandings" shall mean, at any time, an
amount equal to the sum of (x) the aggregate outstanding principal
amount of Loans under, and as defined in, the Nabisco Facility
Documents and (y) the Letter of Credit Outstandings under, and as
defined in, the Nabisco Facility Documents.
"Nabisco Group" shall mean NHC and its Wholly-Owned Subsidiaries.
"Nabisco IPO" shall mean the initial public offering of the
common stock of NHC, provided that after giving effect to the Nabisco
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IPO, the Borrower shall own no less than 80% on a fully diluted basis
of the economic and voting interest in NBI's common stock and all of
NHC's capital stock other than common stock.
"NHC" shall mean Nabisco Holdings Corp. (formerly known as
Nabisco Brands, Inc.), a Delaware corporation.
"1994 Dividend" shall mean the issuance and distribution of the
1994 Dividend Notes.
"1994 Dividend Notes" shall mean (i) two notes dated October 18,
1994 issued by NHC to the Borrower, one in the amount of
$205,765,018.60 issued in exchange for an old note of NHC to the
Borrower, and one in the amount of $1,300,000,000 issued by NHC to the
Borrower as a dividend and (ii) three notes in the aggregate amount
not to exceed $4,200,000,000 to be issued by Nabisco to NHC and
distributed by NHC to the Borrower through the declaration of
dividends (collectively, the "1994 Nabisco Dividend Notes"), provided
that (x) the Borrower and NHC do not transfer any of the foregoing
notes to any Person (subject to the requirements of the Borrower
Pledge Agreement) and (y) the foregoing notes, and all amendments and
supplements thereto, are otherwise in form and substance satisfactory
to the Agent and the Co-Agent.
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"Old Nabisco Intercompany Notes" shall mean the four notes issued
by Nabisco to NHC in 1992 and 1993 with an aggregate outstanding
principal balance of $1,361,825,777.80, as the same may be amended or
supplemented from time to time with the consent of the Agent and the
Co-Agent.
"Third Amendment" shall mean the Third Amendment, dated as of
November 2, 1994, to this Agreement.
"Third Amendment Effective Date" shall mean the date of the
effectiveness of the Third Amendment.
6. Section 10 of the 1993 Credit Agreement is hereby further amended
by:
(i) replacing the phrase "commencing January 1, 1992" in the
definition of "Cumulative Consolidated Net Income" with the phrase
"commencing January 1, 1995";
(ii) adding immediately after the phrase "(other than the Borrower" in
the definition of "Permitted Currency Agreement" the phrase "or, with
respect to Currency Agreements entered into by any of its respective
Subsidiaries, NHC and/or Nabisco"; and
(iii) adding immediately after the phrase "provided that Restricted
Sales shall not include" in the definition of "Restricted Sales" the phrase
"(u) the issuance of common stock of NHC pursuant to the Nabisco IPO; (v)
the issuance of common stock of NHC pursuant to any incentive plans or
arrangements for directors, officers, key employees and other persons
having a unique relationship to NHC and its Subsidiaries, provided that
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after giving effect to any such issuances pursuant to this clause (v) the
Borrower shall own no less than 80% on a fully diluted basis of the
economic and voting interest in NHC's common stock and all of NHC's capital
stock other than common stock; (w) the sale or disposition of any interest
in the Nabisco Biscuit Division to any entity in the Nabisco Group (other
than NHC);".
III. Miscellaneous Provisions
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1. Section 6 of the Borrower Pledge Agreement is hereby amended by
adding the following sentence to the end thereof: "The issuance of the 1994
Dividend Notes shall not be deemed an extraordinary distribution hereunder."
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2. In order to induce the Banks to enter into this Amendment, each
Credit Party hereby makes each of the representations, warranties and agreements
contained in Section 6 of each Credit Agreement on the Amendment Date, after
giving effect to this Amendment.
3. 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).
4. 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.
5. 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.
6. This Amendment shall become effective on the date (the "Amendment
Date") when (i) each of the Credit Parties, (ii) 1991 Banks constituting
Required Banks under the 1991 Credit Agreement and (iii) 1993 Banks constituting
Required Banks under the 1993 Credit Agreement, shall have signed a copy hereof
(whether the same or different copies) and shall have (x) in the case of the
Credit Parties delivered (including by way of facsimile transmission) the same
to White & Case, 1155 Avenue of the America, New York, New York 10036,
Attention: Eric Leicht (Facsimile No.: (212) 354-8113) or (y) in the case of the
Banks delivered by facsimile transmission the same to CBASC, Attention: Janet
Belden (140 East 45th Street, 29th Floor, New York, New York 10017, Facsimile
No.: (212) 622-0854). After transmitting its executed signature page to CBASC as
provided above, each of the Banks shall deliver executed hard copies of this
Amendment to White & Case, 1155 Avenue of the Americas, New York, New York
10036, Attention: Eric Leicht.
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