Exhibit 4.1(e)
FIFTH AMENDMENT TO THE 1991 CREDIT AGREEMENT
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FOURTH AMENDMENT TO THE 1993 CREDIT AGREEMENT
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AMENDMENT (this "Amendment"), dated as of December 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:
I. Amendment to the Credit Agreements
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1. Section 10 of each Credit Agreement is hereby amended by deleting
the definition "1994 Dividend Notes" appearing therein in its entirety and
inserting the following new definition in lieu thereof:
"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
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that (x) the Borrower and NHC do not transfer any of the foregoing
notes to any Person other than, in the case of the Borrower, to a
Wholly-Owned Subsidiary of the Borrower, provided that in the event
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that the 1994 Dividend Note is held by such Wholly-Owned Subsidiary it
(a) shall remain a Wholly-Owned Subsidiary of the Borrower and (b)
shall not (I) contract, create, incur, assume or suffer to exist any
Indebtedness or (II) create, incur, assume or suffer to exist any Lien
upon or with respect to any of its property or assets of any kind, and
(y) the foregoing notes, and all amendments and supplements thereto,
are otherwise in form and substance satisfactory to the Senior
Managing Agents.
II. Miscellaneous Provisions
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1. 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.
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 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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