Exhibit No. 10.1
THIRD AMENDMENT TO THE 3 YEAR CREDIT AGREEMENT
FIFTH AMENDMENT TO THE 364 DAY CREDIT AGREEMENT
THIRD AMENDMENT, dated as of September 29, 1997, 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 FIFTH AMENDMENT, dated
as of September 29, 1997, 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 :
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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 Commitments aggregating $2,700,000,000 on such date (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
Commitments aggregating $750,000,000 on such date (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. Amendment to the 3 Year Credit Agreement.
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1. 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 (iii) of the proviso contained
therein and inserting a comma in lieu thereof and (y) inserting at the end of
such definition, immediately following clause (iv) thereof, the following
text:
"and (v) Adjusted Operating Income shall be adjusted by adding thereto
the amount of all payments made by Holdings and its Subsidiaries during
any Test Period pursuant to (x) the Settlement Agreement, dated as of
August 25, 1997, among Lawton M. Chiles, Jr., Governor of the State of
Florida, Robert A. Butterworth, Attorney General of the State of Florida,
R.J. Reynolds Tobacco Company and certain other parties and (y) the
Memorandum of Understanding, dated as of July 2, 1997, among Michael C.
Moore, Attorney General of the State of Mississippi, R.J. Reynolds
Tobacco Company and certain other parties, 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
$125,000,000 and (II) the amount of such payments are deducted in any
determination of Adjusted Operating Income".
II Amendment to the 364 Day Credit Agreement.
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1. 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 (iii) of the proviso contained
therein and inserting a comma in lieu thereof and (y) inserting at the end of
such definition, immediately following clause (iv) thereof, the following
text:
"and (v) Adjusted Operating Income shall be adjusted by adding thereto
the amount of all payments made by Holdings and its Subsidiaries during
any Test Period pursuant to (x) the Settlement Agreement, dated as of
August 25, 1997, among Lawton M. Chiles, Jr., Governor of the State of
Florida, Robert A. Butterworth, Attorney General of the State of Florida,
R.J. Reynolds Tobacco Company and certain other parties and (y) the
Memorandum of Understanding, dated as of July 2, 1997, among Michael C.
Moore, Attorney General of the State of Mississippi, R.J. Reynolds
Tobacco Company and certain other parties, 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
$125,000,000 and (II) the amount of such payments are deducted in any
determination of Adjusted Operating Income".
III. 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
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 Amendment Effective Date, after giving
effect to this Amendment.
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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 (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: Seema Shah, Esq. (Facsimile No.: (212)
354-8113). 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.
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