AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RJR NABISCO, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 56-0950247
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 258-5600
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive office)
JO-ANN FORD, ESQ.
RJR NABISCO, INC.
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 258-5600
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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COPIES TO:
SAMUEL F. PRYOR III, ESQ.
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
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APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
From time to time after the effective date of this Registration Statement,
as determined by the Registrant.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt Securities ................. $1,000,000,000(1) 100% $1,000,000,000 $344,827.59
</TABLE>
(1) Or the equivalent in foreign denominated currency or units based on or
relating to currencies. If debt securities are issued at original issue
discount, such higher principal amount as may be sold for an initial public
offering price of $1,000,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT ALSO RELATES TO $44,945,000 OF DEBT
SECURITIES REGISTERED AND REMAINING UNISSUED UNDER REGISTRATION STATEMENT NO.
33-55716 PREVIOUSLY FILED BY REGISTRANT, IN RESPECT OF WHICH $14,045.31 HAS BEEN
PAID TO THE COMMISSION AS FILING FEE.
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<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 30, 1995
RJR RJR NABISCO, INC.
NABISCO DEBT SECURITIES
----------------
RJR Nabisco, Inc. (the "Company") may offer from time to time its debt
securities in one or more series (the "Debt Securities") with an aggregate
initial public offering price of up to $1,044,945,000 (or the equivalent in
foreign denominated currency or units based on or relating to currencies,
including European Currency Units). The Company will offer Debt Securities to
the public on terms determined by market conditions. Debt Securities may be
issuable in registered form without coupons or in bearer form with or without
coupons attached. Securities may be sold for U.S. dollars, foreign denominated
currency or currency units; principal of and any interest on Debt Securities
likewise may be payable in U.S. dollars, foreign denominated currency or
currency units--in each case, as the Company specifically designates. See
"Description of Debt Securities."
The Debt Securities will be general obligations of the Company and will rank
pari passu with all other senior indebtedness of the Company. Because the
Company is a holding company, however, the Debt Securities will effectively be
subordinated to the claims of creditors of the Company's subsidiaries. See
"Description of Debt Securities--Ranking."
The accompanying Prospectus Supplement sets forth the specific designation,
aggregate principal amount, purchase price, maturity, interest rate (or manner
of calculation thereof), time of payment of interest (if any), listing (if any)
on a securities exchange and any other specific terms of the Debt Securities and
the name of and compensation to each dealer, underwriter or agent (if any)
involved in the sale of the Debt Securities. The managing underwriters with
respect to each series sold to or through underwriters will be named in the
accompanying Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be offered directly to purchasers or through
underwriters or through agents designated from time to time, as set forth in the
accompanying Prospectus Supplement. Net proceeds to the Company will be the
purchase price in the case of a dealer, the public offering price less discount
in the case of an underwriter, the purchase price less commission in the case of
an agent--in each case, less other expenses attributable to issuance and
distribution. See "Plan of Distribution" for possible indemnification
arrangements for dealers, underwriters and agents.
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The date of this Prospectus is July , 1995.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and also are available for inspection and copying at the regional
offices of the Commission located at Seven World Trade Center, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained from the public
reference section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. Such reports, proxy statements and other information
also can be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which exchange certain of the Company's
securities are listed.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus omits certain of the information contained in
the Registration Statement in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Debt
Securities. Statements contained herein concerning the provisions of any
document are not necessarily complete and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission by the Company
(File No. 1-6388) pursuant to the Exchange Act are incorporated by reference and
shall be deemed a part hereof:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 1994,
as amended by Form 10-K/A,
(b) Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1995,
(c) Current Reports on Form 8-K filed by the Company on May 18, 1995, May
24, 1995, and May 25, 1995, and
(d) All documents filed by the Company pursuant to sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Debt Securities.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
Copies of the documents incorporated herein by reference (excluding exhibits
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon request without charge by persons, including
beneficial owners, to whom this Prospectus is delivered. Requests should be made
to RJR Nabisco, Inc., Attention: Investor Relations Department, 1301 Avenue of
the Americas, New York, New York 10019, telephone number (212) 258-5600.
IN CONNECTION WITH THE OFFERING OF CERTAIN SECURITIES, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OPEN MARKET OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE>
THE COMPANY
The operating subsidiaries of the Company comprise one of the largest
tobacco and packaged food companies in the world. In the United States, the
tobacco business is conducted by R. J. Reynolds Tobacco Company ("RJRT"), the
second largest manufacturer of cigarettes, and the packaged food business is
conducted by Nabisco Holdings Corp. ("Nabisco Holdings") through its wholly
owned subsidiary, Nabisco, Inc. ("Nabisco"), the largest manufacturer and
marketer of cookies and crackers. The Company owns approximately 80.5% of the
economic interest and approximately 97.6% of the voting power of Nabisco
Holdings. Tobacco operations outside the United States are conducted by R. J.
Reynolds Tobacco International, Inc. ("Tobacco International") and packaged food
operations outside the United States are conducted by Nabisco International,
Inc. ("Nabisco International") and Nabisco Ltd., subsidiaries of Nabisco. RJRT's
and Tobacco International's tobacco products are sold around the world under a
variety of brand names. Food products are sold in the United States, Canada,
Latin America and certain other international markets.
RJRT's largest selling cigarette brands in the United States include
WINSTON, DORAL, CAMEL, SALEM, VANTAGE and MONARCH. RJRT's other cigarette
brands, including NOW, MORE, BEST VALUE, STERLING, MAGNA and CENTURY, are
marketed to meet a variety of smoker preferences. All RJRT brands are marketed
in a variety of styles. Tobacco International operates in over 160 markets
around the world and is the second largest of two international cigarette
producers that have significant positions in the American Blend segment of the
international tobacco market.
Nabisco's domestic operations represent one of the largest packaged food
businesses in the world. Through its domestic divisions, Nabisco manufactures
and markets cookies, crackers, snack foods, hard and bite-size candy, gum, nuts,
hot cereals, margarine, pet foods, dry-mix dessert products and other grocery
products under established and well-known trademarks, including OREO, CHIPS
AHOY!, NEWTONS, SNACKWELL'S, RITZ, PREMIUM, LIFE SAVERS, PLANTERS, A.1., GREY
POUPON, MILK-BONE, CREAM OF WHEAT, FLEISCHMANN'S AND BLUE BONNET. Nabisco
International is also a leading producer of biscuits, baking powder, powdered
desserts industrial yeasts and processed milk products in many of the 17 Latin
American countries in which it has operations. Nabisco Ltd. conducts Nabisco's
Canadian operations through a biscuit division and a grocery division. Excluding
private label brands, the biscuit division produced nine of the top ten cookies
and nine of the top ten crackers in Canada in 1994.
The principal executive offices of the Company are located at 1301 Avenue of
the Americas, New York, New York 10019; its telephone number is (212) 258-5600.
3
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the three months ended March 31,
1995 and for each of the periods in the five-year period ended December 31, 1994
are as follows:
<TABLE><CAPTION>
THREE MONTHS
ENDED
MARCH 31, FOR THE YEARS ENDED DECEMBER 31,
--------------------------------------------
1995 1994 1993 1992 1991 1990
------------ ---- ---- ------------ ---- ----
(DOLLARS IN MILLIONS)
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges....... 2.5 2.2 1.1 2.0 1.3 --
Deficiency in the coverage of fixed
charges by earnings before fixed
charges................................ -- -- -- -- -- -- $143
</TABLE>
For purposes of these computations, earnings before fixed charges consist of
income (loss) before extraordinary item plus income taxes and fixed charges.
Income (loss) before extraordinary item includes amortization of trademarks and
goodwill and depreciation expense. Fixed charges consist of interest on
indebtedness, amortization of debt issuance costs, capitalized interest and that
portion of operating rental expense representative of the interest factor.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be used for
general corporate purposes, which may include refinancings of indebtedness,
working capital, capital expenditures, acquisitions and repurchases and
redemptions of securities. Pending such uses, proceeds may be used to repay
indebtedness under the Company's revolving credit facility or for short-term
liquid investments.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Amended and Restated Indenture
dated as of , 1995 (the "Indenture") between the Company and
Citibank, N.A., as trustee (the "Trustee"). The Indenture is included as an
exhibit to the Registration Statement of which this Prospectus is a part. The
following summaries of certain provisions of the Indenture and the Debt
Securities do not purport to be complete and such summaries are subject to the
detailed provisions of the Indenture to which reference is hereby made for a
full description of such provisions, including the definition of certain terms
used herein, and for other information regarding the Debt Securities. Numerical
references in parentheses below are to sections in the Indenture. Wherever
particular sections or defined terms of the Indenture are referred to, such
sections or defined terms are incorporated herein by reference as part of the
statement made, and the statement is qualified in its entirety by such
reference. Any Debt Securities offered by this Prospectus and the accompanying
Prospectus Supplement are referred to herein as the "Offered Debt Securities."
GENERAL
The Indenture does not limit the amount of additional indebtedness that the
Company may incur; however, the Indenture does limit the amount of additional
Funded Debt (as hereinafter defined) that may be incurred by Restricted
Subsidiaries (as hereinafter defined) of the Company to 10% of Consolidated Net
Worth (as hereinafter defined). The Debt Securities will rank pari passu with
all other unsubordinated indebtedness of the Company.
The Indenture provides that Debt Securities may be issued from time to time
in one or more series and may be denominated and payable in foreign currencies
or units based on or relating to foreign
4
<PAGE>
currencies, including European Currency Units ("ECUs"). Special United States
federal income tax considerations applicable to any Debt Securities so
denominated are described in the relevant Prospectus Supplement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Offered Debt Securities): (i) the specific
designation, aggregate principal amount, purchase price and denomination; (ii)
the currency or units based on or relating to currencies in which such Offered
Debt Securities are demoninated and/or in which principal of, premium, if any,
and/or any interest on such Offered Debt Securities will or may be payable;
(iii) any date of maturity; (iv) interest rate or rates (or the method by which
such rate will be determined), if any; (v) the dates on which any such interest
will be payable; (vi) the place or places where the principal of, premium, if
any, and any interest on the Offered Debt Securities will be payable; (vii) any
redemption, repayment or sinking fund provisions; (viii) whether the Offered
Debt Securities will be issuable in registered form or bearer form ("Bearer Debt
Securities") or both and, if Bearer Debt Securities are issuable, any
restrictions applicable to the exchange of one form for another and to the
offer, sale and delivery of Bearer Debt Securities; (ix) any applicable United
States federal income tax consequences, including whether and under what
circumstances the Company will pay additional amounts on Offered Debt Securities
held by a person who is not a U.S. person (as defined in the Prospectus
Supplement) in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem such
Offered Debt Securities rather than pay such additional amounts; and (x) any
other specific terms of the Offered Debt Securities, including any additional
events of default or covenants provided for with respect to such Offered Debt
Securities, and any terms which may be required by or be advisable under
applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt Securities
may be presented for transfer in the manner, at the places and subject to the
restrictions set forth in the Debt Securities and the Prospectus Supplement.
Subject to the limitations provided in the Indenture, such services will be
provided without charge, other than any tax or other governmental charge payable
in connection therewith. Debt Securities in bearer form and the coupons, if any,
appertaining thereto will be transferable by delivery.
Debt Securities will bear interest at a fixed rate (a "Fixed Rate Security")
or a floating rate (a "Floating Rate Security"). Debt Securities bearing no
interest or interest at a rate that at the time of issuance is below the
prevailing market rate will be sold at a discount below their stated principal
amount. Special United States federal income tax considerations applicable to
any such discounted Debt Securities or to certain Debt Securities issued at par
which are treated as having been issued at a discount for United States federal
income tax purposes are described in the relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such
dates, depending upon the value on such dates of the applicable currency,
commodity, equity index or other factors. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
5
<PAGE>
RANKING
The Debt Securities, when issued, will rank pari passu in right of payment
with the senior indebtedness of the Company and senior in right of payment to
any future subordinated debt of the Company. However, claims of holders of the
Debt Securities will be effectively subordinated to the claims of holders of the
debt of the Company's subsidiaries, including Nabisco, with respect to the
assets of such subsidiaries. The amount of debt which is pari passu with the
Debt Securities and the amount of debt to which holders of the Debt Securities
are effectively subordinated as of the end of the most recently completed fiscal
quarter is included in the accompanying Prospectus Supplement or incorporated
herein by reference.
The Debt Securities may, under certain circumstances, be equally and ratably
secured with other senior indebtedness of the Company. See "--Certain Covenants
of the Company--Restrictions on Liens."
GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global Debt Securities (a "Registered Global Security")
that will be deposited with a depositary (a "Depositary") or with a nominee for
a Depositary identified in the Prospectus Supplement relating to such series and
registered in the name of the Depositary or a nominee thereof. In such case, one
or more Registered Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding registered Debt Securities of the series to be represented by
such Registered Global Security or Registered Global Securities. Unless and
until it is exchanged in whole or in part for Debt Securities in definitive
registered form, a Registered Global Security may not be transferred except as a
whole by the Depositary for such Registered Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor. The Depositary
currently accepts only Debt Securities that are denominated in U.S. dollars.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global Security
will be described in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the Depositary
for such Registered Global Security will credit, on its book-entry registration
and transfer system, the participants' accounts with the respective principal
amounts of the Debt Securities represented by such Registered Global Security
beneficially owned by such participants. The accounts to be credited will be
designated by any dealers, underwriters or agents participating in the
distribution of such Debt Securities. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of such ownership
interests will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
and on the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to own, transfer or
pledge beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global
6
<PAGE>
Security for all purposes under the Indenture. Except as set forth below, owners
of beneficial interests in a Registered Global Security will not be entitled to
have the Debt Securities represented by such Registered Global Security
registered in their names, and will not receive or be entitled to receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in a Registered Global Security must rely on
the procedures of the Depositary for such Registered Global Security and, if
such person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the Indenture. The Company understands that under existing industry practices,
if the Company requests any action of holders or if any owner of a beneficial
interest in a Registered Global Security desires to give or take any action
which a holder is entitled to give or take under the Indenture, the Depositary
for such Registered Global Security would authorize the participants holding the
relevant beneficial interests to give or take such action, and such participants
would authorize beneficial owners owning through such participants to give or
take such action or would otherwise act upon the instruction of beneficial
owners holding through them.
Payments of principal of, premium, if any, and any interest on Debt
Securities represented by a Registered Global Security registered in the name of
a Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
None of the Company, the Trustee or any other agent of the Company or agent of
the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in such Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium, if any, or any interest in respect of such Registered Global Security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Registered Global
Security as shown on the records of such Depositary. The Company also expects
that payments by participants to owners of beneficial interests in such
Registered Global Security held through such participants will be governed by
standing customer instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Registered Global
Security notifies the Company that it is at any time unwilling or unable to
continue as Depositary or ceases to be a clearing agency registered under the
Exchange Act, and a successor Depositary registered as a clearing agency under
the Exchange Act is not appointed by the Company within 90 days, the Company
will issue such Debt Securities in definitive form in exchange for such
Registered Global Security. In addition, the Company may at any time and in its
sole discretion determine not to have any of the Debt Securities of a series
represented by one or more Registered Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Registered Global Security or Registered Global Securities representing such
Debt Securities. Any Debt Securities issued in definitive form in exchange for a
Registered Global Security will be registered in such name or names as the
Depositary shall instruct the Trustee. It is expected that such instructions
will be based upon directions received by the Depositary from participants with
respect to ownership of beneficial interests in such Registered Global Security.
The Debt Securities of a series may also be issued in the form of one or more
bearer global Securities (a "Bearer Global Security") that will be deposited
with a common depositary for Euro-clear and CEDEL, or with a nominee for such
depositary identified in the Prospectus Supplement relating to such series. The
specific terms and procedures, including the specific terms of the depositary
arrangement, with respect to any portion of a series of Debt Securities to be
represented by a Bearer Global Security will be described in the Prospectus
Supplement relating to such series.
7
<PAGE>
CERTAIN COVENANTS OF THE COMPANY
The following restrictions apply to each series of Debt Securities unless
the terms of such series of Debt Securities provided otherwise.
Restrictions on Liens. The Indenture provides that the Company will not, and
will not permit any Restricted Subsidiary to, mortgage or pledge as security for
any indebtedness any shares of stock, indebtedness or other obligations of a
Subsidiary (as hereinafter defined) or any Principal Property (as hereinafter
defined) of the Company or a Restricted Subsidiary, whether such shares of
stock, indebtedness or other obligations of a Subsidiary or Principal Property
is owned at the date of the Indenture or thereafter acquired, unless the Company
secures or causes such Restricted Subsidiary to secure the outstanding Debt
Securities equally and ratably with all indebtedness secured by such mortgage or
pledge, so long as such indebtedness shall be so secured. This covenant does not
apply in the case of: (a) the creation of any mortgage, pledge or other lien or
any shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property acquired after the date of the Indenture (including
acquisitions by way of merger or consolidation) by the Company or a Restricted
Subsidiary contemporaneously with such acquisition, or within 120 days
thereafter, to secure or provide for the payment or financing of any part of the
purchase price thereof, or the assumption of any mortgage, pledge or other lien
upon any shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property acquired after the date of Indenture existing at the time
of such acquisition, or the acquisition of any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property subject to any
mortgage, pledge or other lien without the assumption thereof, provided that
every such mortgage, pledge or lien referred to in this clause (a) shall
attached only to the shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed improvements thereon;
(b) any mortgage, pledge or other lien on any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property existing at the date
of the Indenture; (c) any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property in
favor of the Company or any Restricted Subsidiary; (d) any mortgage, pledge or
other lien on Principal Property being constructed or improved securing loans to
finance such construction or improvements; (e) any mortgage, pledge or other
lien on shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property incurred in connection with the issuance of tax exempt
governmental obligations; and (f) any renewal of or substitution for any
mortgage, pledge or other lien permitted by any of the preceding clauses (a)
through (e), provided, in the case of a mortgage, pledge or other lien permitted
under clause (a), (b) or (d), the debt secured is not increased nor the lien
extended to any additional assets. (Section 3.6(a)) Notwithstanding the
foregoing, the Company or any Restricted Subsidiary may create or assume liens
in addition to those permitted by clauses (a) through (f), and renew, extend or
replace such liens, provided that at the time of such creation, assumption,
renewal, extension or replacement, and after giving effect thereto, Exempted
Debt (as hereinafter defined) does not exceed 10% of Consolidated Net Worth.
(Section 3.6(b))
Restrictions on Sale and Lease-Back Transactions. The Indenture provides
that the Company will not, and will not permit any Restricted Subsidiary to,
sell or transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such property, except a
lease for a period of three years or less at the end of which is intended that
the use of such property by the lessee will be discontinued; provided that,
notwithstanding the foregoing, the Company or any Restricted Subsidiary may sell
any such Principal Property and lease it back for a longer period (a) if the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 3.6(a) of the Indenture described above under "Certain
Covenants of the Company--Restrictions on Liens," to create a mortgage on the
property to be leased securing Funded Debt in an amount equal to the
Attributable Debt (as hereinafter defined) with respect to such sale and
lease-back transaction without equally and ratably securing the outstanding Debt
Securities or (b)(i) if the Company promptly informs the Trustee of such
transaction, (ii) the net proceeds of such transaction are at least equal to the
fair value (as
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determined by board resolution of the Company) of such property and (iii) the
Company causes an amount equal to the net proceeds of the sale to be applied to
the retirement, within 120 days after receipt of such proceeds, of Funded Debt
incurred or assumed by the Company or a Restricted Subsidiary (including the
Debt Securities); provided further that, in lieu of applying all of or any part
of such net proceeds to such retirement, the Company may, within 75 days after
such sale, deliver or cause to be delivered to the applicable trustee for
cancellation either debentures or notes evidencing Funded Debt of the Company
(which may include the outstanding Debt Securities) or of a Restricted
Subsidiary previously authenticated and delivered by the applicable trustee, and
not theretofore tendered for sinking fund purposes or called for a sinking fund
or otherwise applied as a credit against an obligation to redeem or retire such
notes or debentures. If the Company so delivers debentures or notes to the
applicable trustee with an Officers' Certificate, the amount of cash which the
Company will be required to apply to the retirement of Funded Debt will be
reduced by an amount equal to the aggregate of the then applicable optional
redemption prices (not including any optional sinking fund redemption prices) of
such debentures or notes, or if there are no such redemption prices, the
principal amount of such debentures or notes, provided, that in the case of
debentures or notes which provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued. (Section
3.7(a)) Notwithstanding the foregoing, the Company or any Restricted Subsidiary
may enter into sale and lease-back transactions in addition to those permitted
in this paragraph and without any obligation to retire any outstanding Debt
Securities or other Funded Debt, provided that at the time of entering into such
sale and lease-back transactions and after giving effect thereto, Exempted Debt
does not exceed 10% of Consolidated Net Worth. (Section 3.7(b))
Restrictions on Funded Debt of Restricted Subsidiaries. The Indenture
provides that the Company will not permit any Restricted Subsidiary (a) to
create, assume or permit to exist any Funded Debt other than (i) Funded Debt
secured by a mortgage, pledge or lien which is permitted to such Restricted
Subsidiary under the provisions described above under the "Certain Covenants of
the Company-- Restrictions on Liens," (ii) Funded Debt owed to the Company or
any Restricted Subsidiary, (iii) Funded Debt of a corporation existing at the
time it becomes a Restricted Subsidiary, (iv) Funded Debt existing on the date
of the Indenture, (v) Funded Debt created in connection with the issuance of tax
exempt governmental obligations or (vi) renewals, extensions or replacements of
the foregoing, or (b) to guarantee, directly or indirectly through any
arrangement which is substantially the equivalent of a guarantee, any Funded
Debt except for (i) guarantees existing on the date of the Indenture, (ii)
guarantees which, on the date of the Indenture, a Restricted Subsidiary is
obligated to give (iii) guarantees of Funded Debt secured by a mortgage, pledge
or lien which is permitted to such Restricted Subsidiary under the provisions
described above under "Certain Covenants of the Company--Restrictions on Liens"
or (iv) renewals, extensions or replacements of the foregoing. (Section 3.8(a))
Notwithstanding the foregoing, any Restricted Subsidiary may create, assume or
guarantee Funded Debt in addition to that permitted in this paragraph, and
renew, extend or replace such Funded Debt, provided that at the time of such
creation, assumption, guarantee, renewal, extension or replacement, and after
giving effect thereto, Exempted Debt does not exceed 10% of Consolidated Net
Worth. (Section 3.8(b))
Neither the restrictions set forth in the covenants of the Indenture, nor
the limitations on mergers and sales of assets described below under
"--Restrictions on Mergers and Sales of Assets," would necessarily provide
protection in the event of or prevent a highly leveraged transaction involving
the Company.
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CERTAIN DEFINITIONS
The term "Attributable Debt" as defined in the Indenture means, when used in
connection with a sale and lease-back transaction, at any date as of which the
amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining at the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
The term "Consolidated Net Worth" means, at any date of determination, the
consolidated stockholder's equity of the Company, as set forth on the then most
recently available consolidated balance sheet of the Company and its
consolidated Subsidiaries; provided that if at such date Nabisco Holdings,
including its successors and assigns, is a consolidated Subsidiary of the
Company, such calculation shall be increased by (i) the amount of the minority
interest in Nabisco Holdings, including its successors and assigns, as set forth
on the then most recently available consolidated balance sheet of the Company
and its consolidated Subsidiaries, and reduced by (ii) the consolidated
stockholders' equity of Nabisco Holdings, including its successors and assigns,
as set forth on the then most recently available consolidated balance sheet of
Nabisco Holdings and its consolidated subsidiaries; provided further that if at
such date Nabisco Holdings, including its successors and assigns, is not a
consolidated Subsidiary of the Company, such calculation shall be reduced by the
amount of the Company's investment in Nabisco Holdings, including its successors
and assigns, if any, as set forth on the then most recently available
consolidated balance sheet of the Company and its consolidated Subsidiaries.
The term "Exempted Debt" as defined in the Indenture means the sum, without
duplication, of the following items outstanding as of the date Exempted Debt is
being determined: (i) indebtedness of the Company and the Restricted
Subsidiaries incurred after the date of the Indenture and secured by liens
created, assumed or otherwise incurred or permitted to exist pursuant to Section
3.6(b) of the Indenture; (ii) Attributable Debt of the Company and the
Restricted Subsidiaries in respect of all sale and lease-back transactions with
regard to any Principal Property entered into pursuant to Section 3.7(b) of the
Indenture; and (iii) Funded Debt of Restricted Subsidiaries created, assumed,
guaranteed or otherwise incurred or permitted to exist pursuant to Section
3.8(b) of the Indenture.
The term "Funded Debt" as defined in the Indenture means all indebtedness
for money borrowed, including purchase money indebtedness, having a maturity of
more than one year from the date of its creation or having a maturity of less
than one year but by its terms being renewable or extendible, at the option of
the obligor in respect thereof, beyond one year from its creation.
The terms "Principal Property" as defined in the Indenture means land, land
improvements, buildings and associated factory and laboratory equipment owned or
leased pursuant to a capital lease and used by the Company or a Restricted
Subsidiary primarily for processing, producing, packaging or storing its
products, raw materials, inventories, or other materials and supplies and
located within the United States of America and having an acquisition cost plus
capitalized improvements in excess of 2% of Consolidated Net Worth, as of the
date of such determination, but not including any such property financed through
the issuance of tax exempt governmental obligations, or any such property that
has been determined by Board Resolution of the Company not to be of material
importance to the respective businesses conducted by the Company or such
Restricted Subsidiary.
The term "Restricted Subsidiary" as a defined in the Indenture means any
Subsidiary organized and existing under the laws of the United States of America
and the principal business of which is carried on within the United States of
America which owns or is a lessee pursuant to a capital lease of any Principal
Property and in which the investment of the Company and all its Subsidiaries
exceeds 5% of Consolidated Net Worth as of the date of such determination other
than (i) each Subsidiary the major part of whose business consists of finance,
banking, credit, leasing, insurance, financial services or other similar
operations, or any combination thereof; (ii) each Subsidiary formed or acquired
after the date of the Indenture for the purpose of acquiring the business or
assets of another person and which
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does not acquire all or any substantial part of the business or assets of the
Company or any Restricted Subsidiary; and (iii) Nabisco Holdings, each
subsidiary of Nabisco Holdings and each of their successors and assigns.
However, the Board of Directors of the Company may declare any such Subsidiary
to be a Restricted Subsidiary. The principal Restricted Subsidiary as of the
date hereof is RJRT.
The term "Subsidiary" as defined in the Indenture means any corporation of
which at least a majority of all outstanding stock having by the terms thereof
ordinary voting power in the election of directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation has or might have voting power by reason of the happening of
any contingency) is at the time, directly or indirectly, owned by the Company,
or by one or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries.
RESTRICTIONS ON MERGERS AND SALES OF ASSETS
Nothing contained in the Indenture or in the Debt Securities will prevent
any consolidation or merger of the Company into, any other corporation or
corporations (whether or not affiliated with the Company), or successive
consolidations or mergers to which the Company or its successor will be a party,
or will prevent any sale, lease or conveyance of the property of the Company, as
an entirety or substantially as an entirety; provided that upon any such
consolidation, merger, sale, lease or conveyance to which the Company is a party
and in which the Company is not the surviving corporation, the due and punctual
performance and observance of all of the covenants and conditions of the
Indenture to be performed or observed by the Company and the due and punctual
payment of the principal of and interest on all of the Debt Securities,
according to their tenor, shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the corporation formed by such consolidation, or into which the Company shall
have been merged, or which shall have acquired such property. (Section 9.1)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Debt Securities is defined
under the Indenture as being: (a) default in payment of any principal of the
Debt Securities of such series when the same shall become due and payable,
either at maturity, upon any redemption, by declaration or otherwise; (b)
default for 30 days in payment of any interest on any Debt Securities of such
series; (c) default in the payment of any sinking fund installment on the Debt
Securities of such series when the same shall become due and payable; (d)
default for 90 days after written notice in the observance or performance of any
other covenant or agreement in respect of the Debt Securities of such series;
(e) certain events of bankruptcy, insolvency or reorganization; and (f) any
other Event of Default provided in a supplemental indenture or board resolution
relating to such securities. (Section 5.1)
The Indenture provides that (a) if an Event of Default due to the default in
payment of principal of, premium, if any, or any interest on, any series of Debt
Securities or due to the default in the performance or breach of any other
covenant or warranty of the Company applicable to the Debt Securities of such
series but not applicable to all outstanding Debt Securities shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of each affected series (voting as a
single class) then outstanding may then declare the principal of all Debt
Securities of all such affected series and interest accrued thereon to be due
and payable immediately; and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Indenture
applicable to all outstanding Debt Securities or due to certain events of
bankruptcy, insolvency and reorganization of the Company shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
principal amount of all Debt Securities then outstanding (treated as one class)
may declare the principal of all Debt Securities and interest accrued thereon to
be due and payable immediately, but upon certain conditions such declarations
may be annulled and past defaults may be waived (except a continuing default in
payment
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<PAGE>
of principal of, premium, if any, or any interest on such Debt Securities) by
the holders of a majority in principal amount of the Debt Securities of all
affected series then outstanding. (Section 5.1)
The Indenture contains a provision entitling the Trustee, subject to the
duty of the trustee during a default to act with the required standard of care,
to be indemnified by the holders of Debt Securities before proceeding to
exercise any right or power under the Indenture at the request of such holders.
(Section 5.6) Subject to such provisions in the Indenture for the
indemnification of the Trustee and certain other limitations, the holders of a
majority in principal amount of the outstanding Debt Securities (treated as one
class) may direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee. (Section 5.9)
The Indenture provides that no holder of Debt Securities may institute any
action against the Company under the Indenture (except actions for payment of
overdue principal or interest) unless such holder previously shall have given to
the Trustee written notice of default and continuance thereof and unless the
holders of not less than 25% in principal amount of the Debt Securities of each
affected series (treated as one class) then outstanding shall have requested the
Trustee to institute such action and shall have offered the Trustee reasonable
indemnity, the Trustee shall not have instituted such action within 60 days of
such request and the Trustee shall not have received direction inconsistent with
such written request by the holders of a majority in principal amount of the
Debt Securities of each affected series (treated as one class). (Section 5.6 and
Section 5.7)
The Indenture contains a covenant that the Company will file annually, not
more than four months after the end of its fiscal year, with the Trustee a
certificate that no default existed or a certificate specifying any default that
existed, each as of the end of the fiscal year so ended. (Section 3.5)
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides with respect to each series of Debt Securities that,
except to the extent the terms of such series of Debt Securities provide
otherwise, the Company may elect (a) to be released from any and all obligations
(except for the obligations to register the transfer or exchange of the Debt
Securities of such series and the Company's right of optional redemption, to
replace mutilated, destroyed, lost or stolen Debt Securities of such series,
rights of holders of Debt Securities to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), to maintain an office or agency in respect of the Debt Securities
of such series and to hold moneys for payment in trust) with respect to Debt
Securities of any series for which the exact amount of principal and interest
due can be determined at the time of the deposit with the Trustee as described
below and all the Debt Securities of such series are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption ("one-year defeasance"), (b) to defease and be discharged from any
and all obligations with respect to the Debt Securities of such series on the
91st day after the deposit with the Trustee as described below (except for the
obligations set forth as exceptions in the preceding clause (a)) ("legal
defeasance") or (c) to be released from its obligations with respect to the Debt
Securities of such series (except for the obligations set forth as exceptions in
the preceding clause (a) and the obligations to compensate and indemnify the
Trustee, to appoint a successor Trustee, to repay certain moneys held by the
Paying Agent and to return certain unclaimed moneys held by the Trustee and to
comply with the Trust Indenture Act) ("covenant defeasance"), upon the deposit
with the Trustee, in trust for such purpose, of cash or, in the case of Debt
Securities payable in U.S. dollars, U.S. Government Obligations (as defined in
the Indenture) which through the payment of principal and interest in accordance
with their terms will insure the availability of monies sufficient, or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent accountants, to pay the principal of, premium, if any, and any
interest on the Debt Securities of such series, and any mandatory sinking fund
thereon, on the due date thereof. Such a trust may (except with respect to
one-year defeasance or to the extent the terms of the Debt Securities of such
series otherwise provide) only be established, if among other things, the
Company has delivered to the Trustee an opinion of counsel (as
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<PAGE>
specified in the Indenture) to the effect that the Holders of the Debt
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such legal defeasance or covenant defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same time as would have been the case if such legal defeasance
or covenant defeasance had not occurred. Such opinion, in the case of legal
defeasance under clause (b) above, must (except to the extent the terms of the
Debt Securities of the relevant series otherwise provide) refer to and be based
upon a ruling of the Internal Revenue Service or a change in applicable Federal
income tax law occurring after the date of the Indenture. The Prospectus
Supplement may further describe the provisions, if any, permitting such legal
defeasance or covenant defeasance with respect to the Offered Debt Securities of
the series to which such Prospectus Supplement relates. (Section 10.1)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants for the
protection of the holders of one or more series of Debt Securities or to add
Events of Default, (d) cure any ambiguity or correct any inconsistency in the
Indenture or to make other changes not materially adverse to the interest of
Holders of the Debt Securities, (e) establish the forms or terms of Debt
Securities of any series, (f) provide for uncertificated Debt Securities, (g)
evidence the acceptance of appointment by a successor trustee or (h) to comply
with the Trust Indenture Act. (Section 8.1)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of all series then outstanding and affected
(voting as one class), to add any provisions to, or change in any manner or
eliminate any of the provisions of, the Indenture or modify in any manner the
rights of the holders of the Debt Securities of each series so affected;
provided that the Company and the Trustee may not, without the consent of the
holder of each outstanding Debt Security affected thereby, (a) extend the final
maturity of the principal of any Debt Security, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on the redemption thereof or change the currency in
which the principal thereof (including any amount in respect of original issue
discount), premium, if any, or any interest thereon is payable or reduce the
amount of any original issue discount security payable upon acceleration or
provable in bankruptcy or alter certain provisions of the Indenture relating to
the Debt Securities issued thereunder not denominated in U.S. dollars or impair
the right to institute suit for the enforcement of any payment on any Debt
Security when due or any right of repayment at the option of the holder of "Debt
Security" or (b) reduce the aforesaid percentage in principal amount of Debt
Securities of any series, the consent of the holders of which is required for
any such modification. (Section 8.2)
CONCERNING THE TRUSTEE
The Company and its subsidiaries maintain ordinary banking relationships
with Citibank, N.A. and its affiliates and a number of other banks. Citibank,
N.A. and its affiliates along with a number of other banks have extended credit
facilities to the Company and its subsidiaries.
PLAN OF DISTRIBUTION
The Company may offer the Debt Securities directly to purchasers or to or
through underwriters, dealers or agents. Any such underwriter(s), dealer(s) or
agent(s) involved in the offer and the sale of the Debt Securities in respect of
which this Prospectus is delivered will be named in the Prospectus Supplement.
The Prospectus Supplement with respect to such Debt Securities will also set
forth the terms of the offering of such Debt Securities, including the purchase
price of such Debt Securities and the proceeds to the Company from such sale,
any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
such Debt Securities may be listed.
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The distribution of the Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Prospectus Supplement will
describe the method of distribution of the Debt Securities.
If underwriters are used in an offering of Debt Securities, the name of each
managing underwriter, if any, and any other underwriters and the terms of the
transaction, including any underwriting discounts and other items constituting
compensation of the underwriters and dealers, if any, will be set forth in the
Prospectus Supplement relating to such offering and the Debt Securities will be
acquired by the underwriters for their own accounts and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. It is anticipated
that any underwriting agreement pertaining to any Debt Securities will (1)
entitle the underwriters to indemnification by the Company against certain civil
liabilities under the Securities Act, or to contribution with respect to
payments which the underwriters may be required to make in respect thereof, (2)
provide that the obligations of the underwriters will be subject to certain
conditions precedent and (3) provide that the underwriters will be obligated to
purchase all Debt Securities offered in a particular offering if any such Debt
Securities are purchased.
If a dealer is used in an offering of Debt Securities, the Company will sell
such Debt Securities to the dealer, as principal. The dealer may then resell
such Debt Securities to the public at varying prices to be determined by such
dealer at the time of resale. The name of the dealer and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
If an agent is used in an offering of Debt Securities, the agent will be
named, and the terms of the agency will be set forth, in the Prospectus
Supplement relating thereto. Unless otherwise indicated in such Prospectus
Supplement, an agent will act on a best efforts basis for the period of its
appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Debt Securities
described therein and, under agreements which may be entered into with the
Company, may be entitled to indemnification by the Company against certain civil
liabilities under the Securities Act. Underwriters, dealers and agents may be
customers of, engage in transactions with, or perform services for, the Company
in the ordinary course of business.
Offers to purchase Debt Securities may be solicited, and sales thereof may
be made, by the Company directly to institutional investors or others, who may
be deemed to be underwriters within the meaning of the Securities Act with
respect to any resales thereof. The terms of any such offer will be set forth in
the Prospectus Supplement relating thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other agents of the Company to solicit offers by certain
institutional investors to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery at a future date. Institutional
investors with which such contracts may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such purchasers must be
approved by the Company. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (1) the purchase of
the Debt Securities shall not at the time of delivery be prohibited under the
laws of any jurisdiction to which such purchaser is subject and (2) if the Debt
Securities are also being sold to underwriters, the Company shall have sold to
such underwriters the Debt Securities not subject to delayed delivery.
Underwriters and other agents will not have any responsibility in respect of the
validity or performance of such contracts.
The anticipated date of delivery of Debt Securities will be set forth in the
Prospectus Supplement relating to each offering.
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LEGAL MATTERS
The validity of the Debt Securities will be passed upon for the Company by
Jo-Ann Ford, Senior Vice President Law and Secretary of the Company. Ms. Ford
holds options to purchase in the aggregate less than 0.1% of the common stock of
RJR Nabisco Holdings Corp., which owns all of the capital stock of the Company.
EXPERTS
The consolidated financial statements and financial statement schedules
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated by reference herein, and have been
so incorporated by reference in reliance upon such report given upon the
authority of that firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Registration fee................................................ $344,828
Blue Sky fees and expenses...................................... 15,000*
Printing and engraving expenses................................. 60,000*
Legal fees and expenses......................................... 75,000*
Trustee fees and expenses....................................... 50,000*
Rating Agency fees.............................................. 150,000*
Accounting fees and expenses.................................... 25,000*
Miscellaneous................................................... 25,000*
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Total................................................... $744,828*
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* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
In accordance with the Delaware Law, the Certificate of Incorporation of the
Company contains a provision to limit the personal liability of the directors of
the Company for violations of their fiduciary duty. This provision eliminates
each director's liability to the Company or its stockholder for monetary damages
except (i) for any breach of the director's duty of loyalty to the Company or
its stockholder, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware Law providing for liability of directors for unlawful payment of
dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which a director derived an improper personal benefit. The
effect of this provision is to eliminate the personal liability of directors for
monetary damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
Article IV of the Amended and Restated By-Laws of the Company provides for
indemnification of the officers and directors to the full extent permitted by
applicable law.
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ITEM 16. EXHIBITS.
<TABLE><CAPTION>
EXHIBIT
NO. DESCRIPTION
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<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Amended and Restated Indenture between the Company and Citibank, N.A.
(including forms of Debt Securities).
4.2 Form of Debt Securities (included in Exhibit 4.1 above).
5.1 Opinion of Jo-Ann Ford, Senior Vice President Law and Secretary of the Company,
regarding the legality of the securities being registered.
12.1 Computation of Ratio of Earnings to Fixed Charges/Deficiency in the Coverage of Fixed
Charges by Earnings Before Fixed Charges for each of the periods within the five-year
period ended December 31, 1994 (incorporated by reference to Exhibit 12 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994,
File No. 1-6388).
12.2 Computation of Ratio of Earnings to Fixed Charges for the three months ended March
31, 1995 (incorporated by reference to Exhibit 12 to Form 10-Q for the quarterly
period ended March 31, 1995, File No. 1-6388).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jo-Ann Ford (included in her opinion filed as Exhibit 5.1).
25.1 Powers of Attorney of Charles M. Harper, Robert S. Roath, Richard G. Russell, John T.
Chain, Jr., Julius L. Chambers, John L. Clendenin, H. John Greeniaus, John G. Medlin
and Rozanne L. Ridgway.
26.1 Statement of Eligibility on Form T-1 of Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registration pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-2
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
Holdings pursuant to the foregoing provisions, or otherwise, Holdings has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by a registrant of expenses incurred or
paid by a director, officer or controlling person of such registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Holdings will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned hereby undertakes that:
1. For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, RJR Nabisco,
Inc. has duly caused this Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 30th day of June, 1995.
RJR NABISCO, INC.
By: /s/ JO-ANN FORD
.................................
(Jo-Ann Ford)
Senior Vice President Law
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE><CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- --------------------------------- --------------
<C> <S> <C>
* Chairman, and Chief Executive June 30, 1995
........................................ Officer (Principal Executive
(Charles M. Harper) Officer)
* Senior Vice President and Chief June 30, 1995
........................................ Financial Officer (Principal
(Robert S. Roath) Financial Officer)
* Senior Vice President and June 30, 1995
........................................ Corporate Controller (Principal
(Richard G. Russell) Accounting Officer)
* Director June 30, 1995
........................................
(John T. Chain, Jr.)
* Director June 30, 1995
........................................
(Julius L. Chambers)
* Director June 30, 1995
........................................
(John L. Clendenin)
* Director June 30, 1995
........................................
(H. John Greeniaus)
Director June 30, 1995
........................................
(James W. Johnston)
* Director June 30, 1995
........................................
(John G. Medlin, Jr.)
* Director June 30, 1995
........................................
(Rozanne L. Ridgway)
</TABLE>
*By: /s/ JO-ANN FORD
.....................................
(Jo-Ann Ford)
Attorney-in-Fact
II-4
<PAGE>
EXHIBIT INDEX
<TABLE><CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Form of Amended and Restated Indenture between the Company and Citibank, N.A.
(including forms of Debt Securities).
4.2 Form of Debt Securities (included in Exhibit 4.1 above).
5.1 Opinion of Jo-Ann Ford, Senior Vice President Law and Secretary of the Company,
regarding the legality of the securities being registered.
12.1 Computation of Ratio of Earnings to Fixed Charges/Deficiency in the Coverage of Fixed
Charges by Earnings Before Fixed Charges for each of the periods within the five-year
period ended December 31, 1994 (incorporated by reference to Exhibit 12 to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994,
File No. 1-6388).
12.2 Computation of Ratio of Earnings to Fixed Charges for the three months ended March
31, 1995 (incorporated by reference to Exhibit 12 to Form 10-Q for the quarterly
period ended March 31, 1995, File No. 1-6388).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Jo-Ann Ford (included in her opinion filed as Exhibit 5.1).
25.1 Powers of Attorney of Charles M. Harper, Robert S. Roath, Richard G. Russell, John T.
Chain, Jr., Julius L. Chambers, John L. Clendenin, H. John Greeniaus, John G. Medlin
and Rozanne L. Ridgway.
26.1 Statement of Eligibility on Form T-1 of Trustee.
</TABLE>
Exhibit 1.1
RJR NABISCO, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
June 30, 1995
From time to time, RJR NABISCO, INC., a Delaware
corporation (the "Company"), may enter into one or more
underwriting agreements that provide for the sale of
designated securities to the several underwriters named
therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement
(an "Underwriting Agreement"). The Underwriting Agreement,
including the provisions incorporated therein by reference,
is herein referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein
defined.
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement, including a prospectus, relating to the Debt
Securities and has filed with, or transmitted for filing to,
or shall promptly hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities
pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration
Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement.
The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the
Basic Prospectus together with the Prospectus Supplement.
The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The
terms "supplement" and "amendment" or "amend" as used herein
shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the
<PAGE>
Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
The term Contract Securities means the Offered
Securities to be purchased pursuant to the delayed delivery
contracts substantially in the form of Schedule I hereto,
with such changes therein as the Company may approve (the
"Delayed Delivery Contracts"). The term "Underwriters'
Securities" means the Offered Securities other than Contract
Securities.
1. Representations and Warranties. The Company
------------------------------
represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become
effective under the Securities Act; no stop order suspending
the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending
before or, to the Company's knowledge, threatened by the
Commission.
(b) (i) Each document, if any, filed or to be
filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A)
to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or
(B) to that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee.
2
<PAGE>
(c) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the financial condition or the
results of operations of the Company and its subsidiaries,
taken as a whole.
(d) Each of R.J. Reynolds Tobacco Company, R.J.
Reynolds Tobacco International, Inc. and Nabisco, Inc.
(collectively, the "Principal Operating Subsidiaries") has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the financial condition or
the results of operations of the Company and its
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting the rights and
remedies of creditors generally and of general principles of
equity, whether applied by a court of law or equity and
except further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Offered
Securities denominated other than in the United States
dollars (or a judgment payable in a foreign currency or
foreign currency unit in respect of such claim) be converted
into United States dollars at a rate of exchange prevailing
at a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the
3
<PAGE>
making of payments in a foreign currency or foreign currency
unit or payments outside the United States.
(g) The Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar
laws affecting the rights and remedies of creditors
generally and of general principles of equity, whether
applied by a court of law or equity.
(h) The Offered Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture, and
delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors
in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be
entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, in each case
enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and
other similar laws affecting the rights and remedies of
creditors generally and of general principles of equity,
whether applied by a court of law or equity and except
further as enforcement thereof may be limited by (i)
requirements that a claim with respect to any Notes
denominated other than in the United States dollars (or a
judgment payable in a foreign currency or foreign currency
unit in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing at a date
determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments
in a foreign currency or foreign currency unit or payments
outside the United States.
(i) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement, the Indenture, the Offered Securities or the
Delayed Delivery Contracts will not contravene any provision
of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries or any
judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any
subsidiary, except for such contraventions that would not,
individually or in the aggregate, have a material adverse
4
<PAGE>
effect on the financial condition or results of operations
of the Company and its subsidiaries taken as a whole, and no
consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Company of its
obligations under this Agreement, the Indenture, the Offered
Securities or the Delayed Delivery Contracts, except as have
been obtained under the Securities Act, the Exchange Act and
the Trust Indenture Act and except as such as may be
required by the securities or Blue Sky laws of the various
states or other jurisdictions in connection with the offer
and sale of the Offered Securities.
(j) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the financial condition or results of
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus.
(k) There are no legal or governmental
proceedings pending or, to the best of the Company's
knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required
to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(l) The Company has complied with all provisions
of Section 517.075 Florida Statutes (Chapter 92-198, Laws of
Florida).
2. Delayed Delivery Contracts. If the Prospectus
--------------------------
provides for sales of Offered Securities pursuant to Delayed
Delivery Contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set
forth in the Prospectus pursuant to Delayed Delivery
Contracts. Delayed Delivery Contracts may be entered into
only with institutional investors approved by the Company of
the types set forth in the Prospectus. On the Closing Date,
the Company will pay to the Manager as compensation for the
accounts of the Underwriters the commission set forth in the
Underwriting Agreement in respect of the Contract
Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance
of any Delayed Delivery Contracts.
5
<PAGE>
If the Company executes and delivers Delayed
Delivery Contracts with institutional investors, the
aggregate amount of Offered Securities to be purchased by
the several Underwriters shall be reduced by the aggregate
amount of Contract Securities; such reduction shall be
applied to the commitment of each Underwriter pro rata in
proportion to the amount of Offered Securities set forth
opposite such Underwriter's name in the Underwriting
Agreement, except to the extent that the Manager determines
that such reduction shall be applied in other proportions
and so advises the Company; provided, however, that the
-------- -------
total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above,
less the aggregate amount of Contract Securities.
3. Public Offering. The Company is advised by
---------------
the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters'
Securities as soon after this Agreement has been entered
into as in the Manager's judgment is advisable. The terms
of the public offering of the Underwriters' Securities are
set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise
---------------------
provided in this Section 4, payment for the Underwriters'
Securities shall be made by certified or official bank check
or checks payable to the order of the Company in New York
Clearing House funds (or such other funds as are specified
in the Underwriting Agreement) at the time and place set
forth in the Underwriting Agreement, upon delivery to the
Manager for the respective accounts of the several
Underwriters of the Underwriters' Securities, registered in
such names and in such denominations as the Manager shall
request in writing not less than two full business days
prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Underwriters'
Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters'
Securities that are Debt Securities in bearer form shall be
effected by delivery of a single temporary global Debt
Security without coupons (the "Global Debt Security")
evidencing the Offered Securities that are Debt Securities
in bearer form to a common depositary for Morgan Guaranty
Trust Company of New York, Brussels office, as operator of
the Euro-clear System ("Euro-clear"), and for Centrale de
Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to
the respective accounts at Euro-clear or CEDEL of each
Underwriter or to such other accounts as such Underwriter
may direct. Any Global Debt Security shall be delivered to
the Manager not later than the Closing Date, against payment
6
<PAGE>
of funds to the Company in the net amount due to the Company
for such Global Debt Security by the method and in the form
set forth in the Underwriting Agreement. The Company shall
cause definitive Debt Securities in bearer form to be
prepared and delivered in exchange for such Global Debt
Security in such manner and at such time as may be provided
in or pursuant to the Indenture; provided, however, that the
-------- -------
Global Debt Security shall be exchangeable for definitive
Debt Securities in bearer form only on or after the date
specified for such purpose in the Prospectus.
5. Conditions to Closing. The several
---------------------
obligations of the Underwriters hereunder are subject to the
following conditions:
(a) Subsequent to the execution and delivery
of the Underwriting Agreement and prior to the
Closing Date,
(i) there shall not have occurred any
downgrading in the rating accorded debt
securities of the Company by any "nationally
recognized statistical rating organization,"
as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the
Securities Act and no such organization shall
have publicly announced that it has under
surveillance or review, with possible
negative implications, its rating of any of
the debt securities of the Company; and
(ii) there shall not have occurred any
change, or any development involving a
prospective change, in the financial
condition or results of operations of the
Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus,
that, in the judgment of the Manager, is
material and adverse and that makes it, in
the judgment of the Manager, impracticable to
market the Offered Securities on the terms
and in the manner contemplated in the
Prospectus.
(b) The Manager shall have received on the
Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company,
to the effect set forth in clause (a)(i) above and
to the effect that the representations and
warranties of the Company contained in this
Agreement are true and correct in all material
7
<PAGE>
respects as of the Closing Date and that the
Company has complied with all of the agreements
and satisfied all of the conditions on its part to
be performed or satisfied on or before the Closing
Date.
The officer signing and delivering such
certificate may rely upon the best of his knowledge as
to proceedings threatened.
(c) The Manager shall have received on the
Closing Date an opinion of counsel for the
Company, dated the Closing Date, to the effect set
forth in Exhibit A.
(d) The Manager shall have received on the
Closing Date an opinion of counsel for the
Underwriters, dated the Closing Date, to the
effect set forth in Exhibit B.
(e) The Manager shall have received on the
Closing Date a letter, dated the Closing Date, in
form and substance satisfactory to the Manager,
from the Company's independent public accountants,
containing statements and information of the type
ordinarily included in accountants' "comfort
letters" to underwriters with respect to the
financial statements and certain financial
information contained in or incorporated by
reference into the Prospectus.
6. Covenants of the Company. In further
------------------------
consideration of the agreements of the Underwriters
contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge,
a signed copy of the Registration Statement
(including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto)
and, during the period mentioned in paragraph (c)
below, as many copies of the Prospectus, any
documents incorporated by reference therein and
any supplements and amendments thereto or to the
Registration Statement as the Manager may
reasonably request.
(b) Prior to the termination of the offering
of the Offered Securities pursuant to this
Agreement, before amending or supplementing the
Registration Statement or the Prospectus with
8
<PAGE>
respect to the Offered Securities, to furnish to
the Manager a copy of each such proposed amendment
or supplement and not to file any such proposed
amendment or supplement to which the Manager
reasonably objects; provided, however, that the
-------- -------
foregoing requirement shall not apply to any of
the Company's periodic filings with the Commission
required to be filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, copies of
which filings the Company will cause to be
delivered to the Manager promptly after being
transmitted for filing with the Commission.
(c) If, during such period after the first
date of the public offering of the Offered
Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to
be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or
condition exist as a result of which it is
necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light
of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if,
in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus
to comply with law, forthwith to prepare, file
with the Commission and furnish, at its own
expense, to the Underwriters, and to the dealers
(whose names and addresses the Manager will
furnish to the Company) to which Offered
Securities may have been sold by the Manager on
behalf of the Underwriters and to any other dealer
upon request, either amendments or supplements to
the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not,
in the light of the circumstances when the
Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered
Securities for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to pay all
expenses (including fees and disbursements of
counsel) in connection with such qualification and
in connection with any review of the offering of
the Offered Securities by the National Association
of Securities Dealers, Inc., provided that the
--------
Company shall not be obligated to so qualify the
9
<PAGE>
Offered Securities if such qualification requires
it to file any general consent to service of
process or to register or qualify as a foreign
corporation in any jurisdiction in which it is not
so registered or qualified.
(e) To make generally available to the
Company's security holders and to the Manager as
soon as practicable an earning statement covering
a twelve month period beginning on the first day
of the first full fiscal quarter after the date of
this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of
the Commission thereunder.
7. Covenants of the Underwriters.
-----------------------------
Each of the several Underwriters represents and
agrees with the Company that:
(a) except to the extent permitted under
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D) (the
"D Rules"), (i) it has not offered or sold, and
during the restricted period will not offer or
sell, Debt Securities in bearer form (including
any Debt Security in global form that is
exchangeable for Debt Securities in bearer form)
to a person who is within the United States or its
possessions or to a United States person and
(ii) it has not delivered and will not deliver
within the United States or its possessions
definitive Debt Securities in bearer form that are
sold during the restricted period;
(b) it has, and throughout the restricted
period will have, in effect procedures reasonably
designed to ensure that its employees or agents
who are directly engaged in selling Debt
Securities in bearer form are aware that such Debt
Securities may not be offered or sold during the
restricted period to a person who is within the
United States or its possessions or to a United
States person, except as permitted by the D Rules;
(c) if it is a United States person, it is
acquiring the Debt Securities in bearer form for
purposes of resale in connection with their
original issuance and if it retains Debt
Securities in bearer form for its own account, it
will only do so in accordance with the
10
<PAGE>
requirements of U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt
Securities in bearer form for the purpose of
offering or selling such Debt Securities during
the restricted period, it will either (i) obtain
from such affiliate for the benefit of the Company
the representations and agreements contained in
clauses (a), (b) and (c) or (ii) repeat and
confirm the representations and agreements
contained in clauses (a), (b) and (c) on such
affiliate's behalf and obtain from such affiliate
the authority to so obligate it;
(e) it will obtain for the benefit of the
Company the representations and agreements
contained in clauses (a), (b), (c) and (d) from
any person other than its affiliate with whom it
enters into a written contract, as defined in U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the
offer or sale during the restricted period of Debt
Securities in bearer form; and
(f) it will comply with or observe any other
restrictions or limitations set forth in the
Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which,
the Debt Securities may be offered, sold, resold
or delivered.
All other terms used in the preceding paragraph have the
meaning given to them by the U.S. Internal Revenue Code (the
"Code") and regulations thereunder, including the D Rules.
The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7).
8. Indemnification and Contribution. The Company
--------------------------------
agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within
the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
11
<PAGE>
losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein;
provided that the foregoing indemnity agreement with respect
--------
to any preliminary prospectus shall not inure to the benefit
of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered
Securities, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf
of such Underwriter, to such person, if required by law so
to have been delivered, at or prior to the written
confirmation of the sale of the Offered Securities to such
person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in
writing through the Manager expressly for use in the
Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding
12
<PAGE>
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties
indemnified pursuant to the second preceding paragraph, and
by the Company, in the case of parties indemnified pursuant
to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with
such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in the first
or second paragraph in this Section 8 is unavailable to an
indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the
Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering
of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts
and commissions received by the Underwriters, in each case
as set forth in the table on the cover of the Prospectus
13
<PAGE>
Supplement, bear to the aggregate public offering price of
the Offered Securities. The relative fault of the Company
on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this
Section 8 are several in proportion to the respective
principal amounts of Offered Securities they have purchased
hereunder, and not joint.
The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to
this Section 8 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price
at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided
for in this Section 8 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution provisions
contained in this Section 8 and the representations and
warranties of the Company contained herein shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its
14
<PAGE>
directors or officers or any person controlling the Company
and (iii) acceptance of and payment for any of the Offered
Securities.
9. Termination. This Agreement shall be subject
-----------
to termination, by notice given by the Manager to the
Company, if (a) after the execution and delivery of the
Underwriting Agreement and prior to the Closing Date (i)
trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited,
(ii) trading in debt securities of the Company on the New
York Stock Exchange shall have been suspended or materially
limited, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis,
which event is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iv),
such event, singly or together with any other such event,
makes it, in the reasonable judgment of the Manager,
impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus.
10. Defaulting Underwriters. If, on the Closing
-----------------------
Date, any one or more of the Underwriters shall fail or
refuse to purchase Underwriters' Securities that it has or
they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the
aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of
Underwriters' Securities set forth opposite their respective
names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as
the Manager may specify, to purchase the Underwriters'
Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date;
provided that in no event shall the amount of Underwriters'
--------
Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written
consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of
15
<PAGE>
Underwriters' Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for
the purchase of such Underwriters' Securities are not made
within 36 hours after such default, this Agreement shall
terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to
postpone the Closing Date but in no event for longer then
seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if
for any reason (other than termination due to the preceding
paragraph or Section 9 hereof) the Company shall be unable
to perform its obligations under this Agreement, the Company
will reimburse the Underwriters or such Underwriters as have
so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or
the offering of the Offered Securities, provided that the
--------
Company shall have no further liability to any Underwriter
except as provided in Section 8 hereof and with respect to
the payment of expenses referred to in paragraph (d) of
Section 6 hereof.
11. Miscellaneous. The Underwriting Agreement
-------------
may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed
in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law and
except as may otherwise be required by mandatory provisions
of law.
12. Headings. The headings of the sections of
--------
this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this
Agreement.
16
<PAGE>
Exhibit A
Opinion of
Counsel for the Company
The opinion of counsel for the Company, to be
delivered pursuant to Section 5(c) of the Underwriting
Agreement shall be to the effect that:
(i) the Company has been duly incorporated,
is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and
authority to own its property and to conduct its
business as described in the Prospectus and is
duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of
property requires such qualification, except to
the extent that the failure to be so qualified or
be in good standing would not have a material
adverse effect on the financial condition or
results of operations of the Company and its
subsidiaries, taken as a whole;
(ii) each Principal Operating Subsidiary has
been duly incorporated, is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has the
corporate power and authority to own its property
and to conduct its business as described in the
Prospectus and is duly qualified to transact
business and is in good standing in each
jurisdiction in which the conduct of its business
or its ownership or leasing of property requires
such qualification, except to the extent that the
failure to be so qualified or be in good standing
would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
1
<PAGE>
(iii) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(iv) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company
and is a valid and binding agreement of the
Company, enforceable against the Company in
accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws
affecting the rights and remedies of creditors
generally and of general principles of equity,
whether applied by a court of law or equity;
(v) the Delayed Delivery Contracts have been
duly authorized, executed and delivered by the
Company and are valid and binding agreements of
the Company, enforceable against the Company in
accordance with their respective terms, subject to
the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of
creditors generally and of general principles of
equity, whether applied by a court of law or
equity;
(vi) the Offered Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters
in accordance with the terms of the Underwriting
Agreement, in the case of Underwriters'
Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities,
will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the
Company, in each case enforceable against the
Company in accordance with their respective terms,
subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of
creditors generally and of general principles of
equity, whether applied by a court of law or
equity;
(vii) the execution and delivery by the
Company of, and the performance by the Company of
its obligations under, the Underwriting Agreement,
the Indenture, the Offered Securities and the
2
<PAGE>
Delayed Delivery Contracts will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the
best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any
of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole,
or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Company or any subsidiary, except for such
contraventions that would not, individually or in
the aggregate, have a material adverse effect on
the financial condition or results of operations
of the Company and its subsidiaries taken as a
whole, and no consent, approval, authorization or
order of or qualification with any governmental
body or agency is required for the performance by
the Company of its obligations under the
Underwriting Agreement, the Indenture, the Offered
Securities or the Delayed Delivery Contract,
except such as may be required by the securities
or Blue Sky laws of the various states or other
jurisdictions in connection with the offer and
sale of the Offered Securities;
(viii) the statements in the Prospectus under
the captions "Description of Debt Securities," and
"Plan of Distribution" insofar as such statements
constitute summaries of the legal matters or
documents referred to therein are accurate in all
material respects;
(ix) after due inquiry, such counsel does not
know of any legal or governmental proceeding
pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of
the properties of the Company or any of its
subsidiaries is subject that is required to be
described in the Registration Statement or the
Prospectus and is not so described or of any
statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement
that are not described or filed as required;
(x) such counsel (1) is of the opinion that
each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and
3
<PAGE>
schedules included therein as to which such
counsel need not express any opinion) complied
when so filed as to form in all material respects
with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has
no reason to believe that (except for financial
statements and schedules as to which such counsel
need not express any belief and except for that
part of the Registration Statement that
constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the
TIA) each part of the Registration Statement, when
such part became effective contained, and as of
the date such opinion is delivered, contains any
untrue statement of a material fact or, when such
part became effective, omitted or, as of the date
such opinion is delivered, omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, (3) is of the opinion that the
Registration Statement and Prospectus (except for
financial statements and schedules included
therein as to which such counsel need not express
any opinion and except for that part of the
Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the TIA) comply as to
form in all material respects with the Securities
Act and the applicable rules and regulations of
the Commission thereunder and (4) has no reason to
believe that (except for financial statements and
schedules as to which such counsel need not
express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue
statement of a material fact or omits to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely
as to certain matters of fact on certificates of
officers of the Company and of public officials and may
state that such counsel expresses no opinion as to the
laws of any jurisdiction other than the State of New
York, the federal law of the United States and the
Delaware General Corporation Law.
The opinion of counsel for the Company (other than
an opinion of an officer of the Company) shall be
rendered to you at the request of the Company and shall
so state therein.
4
<PAGE>
With respect to paragraph (xi) above, counsel for
the Company may state that such counsel's opinion and belief
are based upon such counsel's participation in the
preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion
of the contents thereof, but are without independent check
or verification, except as specified.
5
<PAGE>
Exhibit B
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be
delivered pursuant to Section 5(d) of the Underwriting
Agreement shall be to the effect that:
(i) the Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
(ii) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company
and is a valid and binding agreement of the
Company, enforceable against the Company in
accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws
affecting the rights and remedies of creditors
generally and of general principles of equity,
whether applied by a court of law or equity;
(iii) the Delayed Delivery Contracts have
been duly authorized, executed and delivered by
the Company and are valid and binding agreements
of the Company, enforceable against the Company in
accordance with their respective terms, subject to
the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of
creditors generally and of general principles of
equity, whether applied by a court of law or
equity;
(iv) the Offered Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters
in accordance with the terms of the Underwriting
Agreement, in the case of the Underwriters'
1
<PAGE>
Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities,
will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the
Company, in each case enforceable against the
Company in accordance with their respective terms,
subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of
creditors generally and of general principles of
equity, whether applied by a court of law or
equity;
(v) the statements in the Prospectus under
the captions "Description of Debt Securities," and
"Plan of Distribution," insofar as such statements
constitute summaries of the legal matters or
documents referred to therein, are accurate in all
material respects; and
(vi) such counsel (1) has no reason to
believe that (except for financial statements and
schedules as to which such counsel need not
express any belief and except for that part of the
Registration Statement that constitutes the Form
T-1 heretofore referred to) each part of the
Registration Statement, when such part became
effective contained, and as of the date such
opinion is delivered, contains any untrue
statement of a material fact or, when such part
became effective, omitted or, as of the date such
opinion is delivered, omits to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, (2) is
of the opinion that the Registration Statement and
Prospectus (except for financial statements and
schedules included therein as to which such
counsel need not express any opinion) comply as to
form in all material respects with the Securities
Act and the applicable rules and regulations of
the Commission thereunder and (3) has no reason to
believe that (except for financial statements and
schedules as to which such counsel need not
express any belief) the Prospectus as of the date
such opinion is delivered contains any untrue
statement of a material fact or omits to state a
material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading.
2
<PAGE>
With respect to clause (vii) above, such counsel
may state that their opinion and belief are based upon their
participation in the preparation of the Registration
Statement and the Prospectus and any amendments or
supplements thereto (other than the documents incorporated
by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference) but
are without independent check or verification, except as
specified.
3
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from RJR
NABISCO, INC. a Delaware corporation (the "Company"), and
the Company agrees to sell to the undersigned the Company's
securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated
__________________, 19__ and Prospectus Supplement dated
________________, 19__, receipt of copies of which are
hereby acknowledged, at a purchase price stated in Schedule
A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling
Securities prior to making payment therefor.
The undersigned will purchase from the Company
Securities in the principal amount and numbers on the
delivery dates set forth in Schedule A. Each such date on
which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned
has agreed to purchase on each Delivery Date shall be made
to the Company or its order by certified or official bank
check in New York Clearing House funds at the office of
______________________________, New York, N.Y., at 10:00
A.M. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the
Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery
of and make payment for the Securities on the Delivery Date
shall be subject to the conditions that (1) the purchase of
Securities to be made by the undersigned shall not at the
1
<PAGE>
time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the
Company shall have sold, and delivery shall have taken place
to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the
Securities as is to be sold to them. Promptly after
completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned as its
address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for
Securities by any purchaser under any other Delayed Delivery
Contract shall not relieve the undersigned of its
obligations under this agreement.
This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective
successors, but will not be assignable by either party
hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it
is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to
the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above
written, between the Company and the undersigned when such
counterpart is so mailed or delivered.
2
<PAGE>
This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New
York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
___________________________
(Title)
___________________________
___________________________
(Address)
Accepted:
RJR NABISCO, INC.
By ________________________
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the
representative of the Purchaser with whom details of
delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
----- --------------------- ----------
________________ _______________ _________________
3
<PAGE>
SCHEDULE A
----------
Securities:
----------
Principal Amounts or Numbers to be Purchased:
--------------------------------------------
Purchase Price:
--------------
Delivery Dates:
--------------
1
<PAGE>
UNDERWRITING AGREEMENT
_________, 199_
RJR NABISCO, INC.
1301 Avenue of the Americas
New York, New York 10019
Dear Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named
below (such underwriter or underwriters being herein called
the "Underwriters"), and we understand that RJR NABISCO,
INC., a Delaware corporation (the "Company"), proposes to
issue and sell [Currency and Principal Amount] aggregate
initial offering price of [Full title of Debt Securities]
(the "Debt Securities"). The Debt Securities will be issued
pursuant to the provisions of the Amended and Restated
Indenture dated as of ______, 1995 (the "Indenture") between
the Company and Citibank, N.A., as Trustee (the "Trustee").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees
to sell and the Underwriters agree to purchase, severally
and not jointly, the respective principal amounts of Debt
Securities set forth below opposite their names at a
purchase price of ______% of the principal amount of Debt
Securities [, plus accrued interest, if any, from Date of
Offered Securities] to the date of payment and delivery.1
Principal Amount of
Name Debt Securities
---- ----------------
[Insert syndicate list]
Total . . . . . .
============
--------------------
1To be added only if the transaction does not close
flat.
<PAGE>
[The principal amount of Debt Securities to be
purchased by the several Underwriters shall be reduced by
the aggregate principal amount of Debt Securities sold
pursuant to delayed delivery contracts.]2
The Underwriters will pay for the Offered
Securities [(less any Offered Securities sold pursuant to
delayed delivery contracts)] upon delivery thereof at
[office] at _______ a.m. (New York time) on __________,
199_, or at such other time, not later than 5:00 p.m. (New
York time) on __________, 199_, as shall be designated by
the manager. The time and date of such payment and delivery
are hereinafter referred to as the Closing Date.3
The Offered Securities shall have the terms set
forth in the Prospectus dated ___________, 199_, and the
Prospectus Supplement dated _________, 199_, including the
following:
--------------------
2To be added only if delayed delivery contracts are
contemplated.
3This paragraph would have to be modified to any
Offered Securities that are in bearer form.
2
<PAGE>
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: __________ and
_______ commencing
_____________ ____
[(Interest accrues from
_______________, 199_)4
Form and Denomination:
[Other Terms:]
[The commission to be paid to the Underwriters in
respect of the Offered Securities purchased pursuant to
delayed delivery contracts arranged by the Underwriters
shall be ___% of the principal amount of the Debt Securities
so purchased.]5
All provisions contained in the document entitled
RJR NABISCO, INC. Underwriting Agreement Standard Provisions
(Debt Securities dated June 30, 1995, a copy of which is
attached hereto, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been
set forth in full herein, except that if any term defined in
such document is otherwise defined herein, the definition
set forth herein shall control.
--------------------
4To be added only if the transaction does not close
flat.
5To be added only if delayed delivery contacts are
contemplated.
3
<PAGE>
Please confirm your agreement by having an
authorized officer sign a copy of this Agreement in the
space set forth below.
Very truly yours,
LEAD MANAGER
[Name of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named
herein
By: LEAD MANAGER
By: _________________________
Name:
Title:
Accepted:
NABISCO, INC.
By: _______________________
Name:
Title:
4
Exhibit 4.1
========================================================
RJR NABISCO, INC.,
Issuer
AND
CITIBANK, N.A.,
Trustee
Amended and Restated Indenture
Dated as of
______, 1995
__________
========================================================
<PAGE>
TABLE OF CONTENTS
__________
Page
----
PARTIES.............................................. 1
RECITALS
Authorization of Indenture...................... 1
Compliance with Legal Requirements.............. 1
Purpose of and Consideration for Indenture...... 1
ARTICLE ONE
DEFINITIONS.
SECTION 1.1. Certain Terms Defined................. 1
Attributable Debt..................... 2
Authenticating Agent.................. 2
Authorized Newspaper.................. 2
Board of Directors.................... 2
Board Resolution...................... 2
Business Day.......................... 3
Commission............................ 3
Composite Rate........................ 3
Consolidated Net Worth................ 4
Corporate Trust Office................ 4
Coupon................................ 4
covenant defeasance................... 4
Depositary............................ 4
Dollar................................ 4
ECU................................... 4
Event of Default...................... 4
Exempted Debt......................... 4
Foreign Currency...................... 5
Funded Debt........................... 5
Holder, Holder of Securities,
Securityholder...................... 5
Indenture............................. 5
Interest.............................. 5
Issuer................................ 5
<PAGE>
Issuer Order.......................... 5
Nabisco Holdings...................... 6
Judgment Currency..................... 5
Officers' Certificate................. 6
Opinion of Counsel.................... 6
Original issue date................... 6
Original Issue Discount Security...... 6
Outstanding........................... 6
Periodic Offering..................... 7
Person................................ 7
Principal............................. 7
Principal Property.................... 7
Registered Global Security............ 8
Registered Security................... 8
Responsible Officer................... 8
Restricted Subsidiary................. 8
Security or Securities................ 8
Securities Act........................ 9
Subsidiary............................ 9
Trust Indenture Act of 1939........... 9
Trustee............................... 9
U.S. Government Obligations........... 9
Unregistered Security................. 9
Vice President........................ 9
Yield to Maturity..................... 9
ARTICLE TWO
SECURITIES.
SECTION 2.1. Forms Generally....................... 10
SECTION 2.2. Form of Trustee's Certificate
of Authentication................... 10
SECTION 2.3. Amount Unlimited; Issuable in Series.. 11
SECTION 2.4. Authentication and Delivery of
Securities.......................... 14
SECTION 2.5. Execution of Securities............... 17
SECTION 2.6. Certificate of Authentication......... 18
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest.... 18
SECTION 2.8. Registration, Transfer and Exchange... 19
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............... 23
SECTION 2.10. Cancellation of Securities;
Destruction Thereof................. 25
SECTION 2.11. Temporary Securities.................. 25
SECTION 2.12. CUSIP Numbers......................... 26
2
<PAGE>
ARTICLE THREE
COVENANTS OF THE ISSUER.
SECTION 3.1. Payment of Principal and Interest..... 26
SECTION 3.2. Offices for Payments, etc............. 27
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee................... 29
SECTION 3.4. Paying Agents......................... 29
SECTION 3.5. Certificate to Trustee................ 30
SECTION 3.6. Negative Pledge....................... 30
SECTION 3.7. Certain Sale and Lease-back
Transactions........................ 32
SECTION 3.8. Funded Debt of Restricted
Subsidiaries........................ 33
SECTION 3.9. Luxembourg Publications................ 34
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE.
SECTION 4.1. Issuer to Furnish Trustee Information
as to Names and Addresses of
Securityholders..................... 34
SECTION 4.2. Reports by the Issuer................. 34
SECTION 4.3. Reports by the Trustee................ 35
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 5.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default...... 35
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.............. 38
SECTION 5.3. Application of Proceeds............... 41
SECTION 5.4. Suits for Enforcement................. 42
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings...................... 42
SECTION 5.6. Limitations on Suits by
Securityholders..................... 43
SECTION 5.7. Unconditional Right of
3
<PAGE>
Securityholders to Institute
Certain Suits....................... 43
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default............................. 44
SECTION 5.9. Control by Securityholders............ 44
SECTION 5.10. Waiver of Past Defaults............... 45
SECTION 5.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances....................... 45
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs......... 46
ARTICLE SIX
CONCERNING THE TRUSTEE.
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default............................. 46
SECTION 6.2. Certain Rights of the Trustee......... 48
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof..... 50
SECTION 6.4. Trustee and Agents May Hold
Securities; Collections, etc........ 50
SECTION 6.5. Moneys Held by Trustee................ 50
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim...... 50
SECTION 6.7. Right of Trustee to Rely on
Officers' Certificate, etc.......... 51
SECTION 6.8. Indentures Not Creating Conflicting
Interests for the Trustee........... 51
SECTION 6.9. Persons Eligible for Appointment
as Trustee.......................... 52
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee................ 52
SECTION 6.11. Acceptance of Appointment by
Successor Trustee................... 54
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee... 55
SECTION 6.13. Appointment of Authenticating Agent... 56
4
<PAGE>
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS.
SECTION 7.1. Evidence of Action Taken by
Securityholders..................... 57
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities; Record
Date................................ 57
SECTION 7.3. Holders to Be Treated as Owners....... 59
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding......................... 59
SECTION 7.5. Right of Revocation of Action Taken... 60
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES.
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders.......... 61
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders.................. 63
SECTION 8.3. Effect of Supplemental Indenture...... 64
SECTION 8.4. Documents to Be Given to Trustee...... 65
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures............. 65
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 9.1. Covenant Not to Merge, Consolidate,
Sell or Convey Property Except
Under Certain Conditions............ 65
SECTION 9.2. Successor Corporation Substituted..... 66
SECTION 9.3. Opinion of Counsel to Trustee......... 66
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 10.1. Satisfaction and Discharge of
Indenture........................... 67
5
<PAGE>
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities. 71
SECTION 10.3. Repayment of Moneys Held by Paying
Agent............................... 72
SECTION 10.4. Return of Moneys Held By Trustee
and Paying Agent Unclaimed
for Two Years....................... 72
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS.
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability................ 72
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Security-
holders............................. 73
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture.................. 73
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Securityholders......... 73
SECTION 11.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein...................... 74
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays........................ 75
SECTION 11.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939......................... 75
SECTION 11.8. New York Law to Govern................ 76
SECTION 11.9. Counterparts.......................... 76
SECTION 11.10. Effect of Headings.................... 76
SECTION 11.11. Securities in a Foreign Currency
or in ECU........................... 76
SECTION 11.12. Judgment Currency..................... 77
SECTION 11.13. Severability of Provisions............ 78
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS.
SECTION 12.1. Applicability of Article.............. 78
SECTION 12.2. Notice of Redemption; Partial
Redemptions......................... 78
SECTION 12.3. Payment of Securities Called for
6
<PAGE>
Redemption.......................... 80
SECTION 12.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.......................... 81
SECTION 12.5. Mandatory and Optional Sinking Funds.. 82
TESTIMONIUM.......................................... 86
SIGNATURES........................................... 86
ACKNOWLEDGMENTS...................................... 87
7
<PAGE>
THIS AMENDED AND RESTATED INDENTURE, dated as of
________ __, 1995 between RJR NABISCO, INC., a Delaware
corporation (the "Issuer"), and CITIBANK, N.A., a national
association (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee have
previously entered into an Indenture dated August 1, 1992
(the "Original Indenture); and
WHEREAS, on June 5, 1995 the Issuer and the
Trustee executed a Supplemental Indenture to the Original
Indenture; and
WHEREAS, the Issuer desires to amend and restate
the Original Indenture; and
WHEREAS, the Issuer has duly authorized the issue
from time to time of its debentures, notes or other
evidences of indebtedness to be issued in one or more series
(the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the
terms of this Indenture and to provide, among other things,
for the authentication, delivery and administration thereof,
the Issuer has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, the Issuer has duly authorized the exe-
cution and delivery of this Indenture to provide, among
other things, for the authentication, delivery and admin-
istration of the Securities; and
WHEREAS, all things necessary to make this Inden-
ture a valid indenture and agreement according to its terms
have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the holders thereof, the Issuer and the
Trustee mutually covenant and agree for the equal and pro-
portionate benefit of the respective holders from time to
time of the Securities or of series thereof and of the
Coupons, if any, appertaining thereto as follows:
ARTICLE ONE
DEFINITIONS
-----------
<PAGE>
SECTION 1.1 Certain Terms Defined. The following
---------------------
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All
other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in
the Securities Act of 1933 are referred to in the Trust
Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise
clearly requires), shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally
---------
accepted accounting principles" means such accounting prin-
------------------------------
ciples as are generally accepted at the time of any compu-
tation. The words "herein", "hereof" and "hereunder" and
------ ------ ---------
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular.
"Attributable Debt" means, when used in connection
-----------------
with a sale and lease-back transaction referred to in Sec-
tion 3.7, on any date as of which the amount thereof is to
be determined, the product of (a) the net proceeds from such
sale and lease-back transaction multiplied by (b) a frac-
tion, the numerator of which is the number of full years of
the term of the lease relating to the property involved in
such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date
of the making of such computation and the denominator of
which is the number of full years of the term of such lease
measured from the first day of such term.
"Authenticating Agent" shall have the meaning set
--------------------
forth in Section 6.13.
"Authorized Newspaper" means a newspaper (which,
--------------------
in the case of The City of New York, will, if practicable,
be The Wall Street Journal (Eastern Edition), in the case of
the United Kingdom, will, if practicable, be the Financial
Times (London Edition) and, in the case of Luxembourg, will,
if practicable, be the Luxemburger Wort) published in an
official language of the country of publication customarily
published at least once a day for at least five days in each
2
<PAGE>
calendar week and of general circulation in The City of New
York, the United Kingdom or in Luxembourg, as applicable.
If it shall be impractical in the opinion of the Trustee to
make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the
Trustee shall constitute a sufficient publication of such
notice.
"Board of Directors" means either the Board of
------------------
Directors of the Issuer or any committee of such Board duly
authorized to act hereunder.
"Board Resolution" means a copy of one or more
----------------
resolutions certified by the Secretary or any Assistant
Secretary of the Issuer to have been duly adopted or consen-
ted to by the Board of Directors and as being in full force
and effect as of the date of certification, which copy is
delivered to the Trustee.
"Business Day" means any day, other than a
------------
Saturday or Sunday, that is neither a legal holiday nor a
day on which banking institutions are authorized or required
by law or regulation to close in The City of New York and
(i) with respect to any Note the interest of which is based
on LIBOR, in the City of London, (ii) with respect to Notes
denominated in a specified currency other than U.S. dollars,
Australian dollars or European Currency Units, in the
principal financial center of the country of the specified
currency, (iii) with respect to Notes denominated in
Australian dollars, in Sydney and (iv) with respect to Notes
denominated in European Currency Units, in Luxembourg and
that is not a non-European Currency Units clearing day, as
determined by the European Currency Units Banking
Association in Paris.
"Commission" means the Securities and Exchange
----------
Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, as amended or if at any
time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then
the body performing such duties on such date.
"Composite Rate" means, at any time, the rate of
--------------
interest, per annum, compounded semiannually, equal to the
sum of the rates of interest borne by each of the Securities
of a series Outstanding hereunder (as specified on the face
of each of the Securities, provided, that, in the case of
--------
the Securities with variable rates of interest, the interest
rate to be used in calculating the Composite Rate shall be
3
<PAGE>
the interest rate applicable to such Securities at the
beginning of the year in which the Composite Rate is being
determined and, provided, further, that, in the case of
--------
Securities of a series which do not bear interest, the
interest rate to be used in calculating the Composite Rate
shall be a rate equal to the yield to maturity on such
Securities, calculated at the time of issuance of such
Securities) multiplied, in the case of each of the
Securities of a series, by the percentage of the aggregate
principal amount of all of the Securities then Outstanding
represented by such Security. For the purposes of this
calculation, the aggregate principal amounts of Outstanding
Securities of a series that are denominated in a foreign
currency, shall be calculated in the manner set forth in
Section 11.11.
"Consolidated Net Worth" means, at any date of
----------------------
determination, the consolidated stockholder's equity of the
Issuer, as set forth on the then most recently available
consolidated balance sheet of the Issuer and its
consolidated Subsidiaries; provided that if at such date
Nabisco Holdings, including its successors and assigns, is a
consolidated Subsidiary of the Issuer, such calculation
shall be increased by (i) the amount of the minority
interest in Nabisco Holdings, including its successors and
assigns, as set forth on the then most recently available
consolidated balance sheet of the Issuer and its
consolidated Subsidiaries, and reduced by (ii) the
consolidated stockholders' equity of Nabisco Holdings,
including its successors and assigns, as set forth on the
then most recently available consolidated balance sheet of
Nabisco Holdings and its consolidated subsidiaries; provided
further that if at such date Nabisco Holdings, including its
successors and assigns, is not a consolidated Subsidiary of
the Issuer, such calculation shall be reduced by the amount
of the Issuer's investment in Nabisco Holdings, including
its successors and assigns, if any, as set forth on the then
most recently available consolidated balance sheet of the
Issuer and its consolidated Subsidiaries.
"Corporate Trust Office" means the office of the
----------------------
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered,
which office is, as of the date hereof, located at 120 Wall
Street, 13th Floor, New York, New York 10043, Attention:
Corporate Trust Administration.
"Coupon" means any interest coupon appertaining to
------
a Security.
4
<PAGE>
"covenant defeasance" shall have the meaning set
-------------------
forth in Section 10.1(C).
"Depositary" means, with respect to the Securities
----------
of any series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depo-
sitary by the Company pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than
one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with
respect to the Registered Global Securities of that series.
"Dollar" means the coin or currency of the United
------
States of America as at the time of payment is legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined
---
and revised from time to time by the Council of European
Communities.
"Event of Default" means any event or condition
----------------
specified as such in Section 5.1, continued for the period
of time, if any, therein designated.
"Exempted Debt" means the sum, without dupli-
-------------
cation, of the following items outstanding as of the date
Exempted Debt is being determined: (i) indebtedness of the
Issuer and its Restricted Subsidiaries incurred after the
date of this Indenture and secured by liens created or
assumed or permitted to exist pursuant to Section 3.6(b),
(ii) Attributable Debt of the Issuer and its Restricted
Subsidiaries in respect of all sale and lease-back transac-
tions with regard to any Principal Property entered into
pursuant to Section 3.7(b) and (iii) Funded Debt of
Restricted Subsidiaries created, assumed or guaranteed or
permitted to exist pursuant to Section 3.8(b).
"Foreign Currency" means either (i) a currency
----------------
issued by the government of a country other than the United
States or (ii) ECU's or another composite currency the value
of which is determined by reference to the values of the
currencies of any group of countries.
"Funded Debt" means all indebtedness for money
-----------
borrowed, including purchase money indebtedness, having a
maturity of more than one year from the date of its creation
or having a maturity of less than one year but by its terms
5
<PAGE>
being renewable or extendible, at the option of the obligor
in respect thereof, beyond one year from its creation.
"Holder", "Holder of Securities", "Securityholder"
------ -------------------- --------------
or other similar terms mean (a) in the case of any Regis-
tered Security, the person in whose name such Security is
registered in the security register kept by or on behalf of
the Issuer for that purpose in accordance with the terms
hereof, and (b) in the case of any Unregistered Security,
the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally
---------
executed and delivered or, if amended or supplemented as
herein provided, as so amended or supplemented or both, and
shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to
--------
non-interest bearing Securities, interest payable after
maturity.
"Issuer" means (except as otherwise provided in
------
Article Five) RJR Nabisco, Inc., a Delaware corporation,
and, its successors and assigns through the operation of or
pursuant to the provisions of Article Nine.
"Issuer Order" means a written statement, request
------------
or order of the Issuer signed in its name by the Chief
Executive Officer, the President, any Vice President, the
Treasurer or the Controller of the Issuer and delivered to
the Trustee.
"Judgment Currency" shall have the meaning set
-----------------
forth in Section 11.12.
"Nabisco Holdings" means Nabisco Holdings Corp., a
----------------
Delaware corporation.
"Officers' Certificate" means a certificate signed
---------------------
by the Chairman of the Board of Directors or Vice Chairman
of the Board of Directors or the President or the Chief
Executive Officer or any Vice President and by the Treasurer
or Controller or the Secretary or any Assistant Treasurer or
Assistant Controller or Assistant Secretary of the Issuer
and delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act of 1939
and include (except as otherwise provided in this Indenture)
the statements provided for in Section 11.5.
6
<PAGE>
"Opinion of Counsel" means an opinion in writing
------------------
signed by legal counsel who may be an employee of or counsel
to the Issuer. Each such opinion shall comply with Section
314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 11.5, if and to the
extent required hereby.
"original issue date" of any Security (or portion
-------------------
thereof) means the earlier of (a) the date of authentication
of such Security or (b) the date of any Security (or portion
thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or
substitution.
"Original Issue Discount Security" means any
--------------------------------
Security that provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof pursuant to Section
5.1.
"Outstanding", when used with reference to Securi-
-----------
ties, shall, subject to the provisions of Section 7.4, mean,
as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the
payment or redemption of which moneys or U.S. Govern-
ment Obligations (as provided in Section 10.1) in the
necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than
the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying
agent), provided that if such Securities, or portions
--------
thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to
the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other
Securities shall have been authenticated and delivered,
or which shall have been paid, pursuant to the terms of
Section 2.9 (except with respect to any such Security
as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in
whose hands such Security is a legal, valid and binding
obligation of the Issuer).
7
<PAGE>
In determining whether the Holders of the requi-
site principal amount of Outstanding Securities of any or
all series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the princi-
pal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and paya-
ble as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section
5.1.
"Periodic Offering" means an offering of Securi-
-----------------
ties of a series from time to time, the specific terms of
which Securities, including, without limitation, the rate or
rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Company or
its agents upon the issuance of such Securities.
"Person" means any individual, corporation, part-
------
nership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any
agency or political subdivision thereof.
"principal" whenever used with reference to the
---------
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any".
"Principal Property" means land, land improve-
------------------
ments, buildings and associated factory and laboratory
equipment owned or leased pursuant to a capital lease and
used by the Issuer or a Restricted Subsidiary primarily for
processing, producing, packaging or storing its products,
raw materials, inventories or other materials and supplies
and located within the United States of America and having
an acquisition cost plus capitalized improvements in excess
of 2% of Consolidated Net Worth as of the date of such
determination, but shall not include any such property
financed through the issuance of tax exempt governmental
obligations, or any such property that has been determined
by Board Resolution of the Issuer not to be of material
importance to the respective businesses conducted by the
Issuer or such Restricted Subsidiary, effective as of the
date such resolution is adopted.
"Registered Global Security", means a Security
--------------------------
evidencing all or a part of a series of Registered
Securities, issued to the Depositary for such series in
accordance with Section 2.4, and bearing the legend
prescribed in Section 2.4.
8
<PAGE>
"Registered Security" means any Security
-------------------
registered on the Security register of the Issuer.
"Responsible Officer" means, when used with
-------------------
respect to the Trustee, any Senior Trust Officer, any Vice
President, any Trust Officer, any Assistant Trust Officer,
or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed
by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary
---------------------
organized and existing under the laws of the United States
of America and the principal business of which is carried on
within the United States of America which owns or is a
lessee pursuant to a capital lease of any Principal Property
and in which the investment of the Issuer and all its
Subsidiaries exceeds 5% of Consolidated Net Worth as of the
date of such determination other than:
(i) each Subsidiary the major part of whose
business consists of finance, banking, credit,
leasing, insurance, financial services or other
similar operations, or any combination thereof;
(ii) each Subsidiary formed or acquired
after the date hereof for the purpose of acquiring
the business or assets of another Person and which
does not acquire all or any substantial part of
the business or assets of the Issuer or any
Restricted Subsidiary; and
(iii) Nabisco Holdings, each subsidiary of Nabisco
Holdings and each of their successors and assigns;
provided, however, that the Board of Directors of the Issuer
-------- -------
may by Board Resolution declare any such Subsidiary to be a
Restricted Subsidiary, effective as of the date such
resolution is adopted.
"Security" or "Securities" has the meaning stated
-------- ----------
in the first recital of this Indenture, and to the extent a
Security is issued as an Unregistered Security, the term
Security or Securities shall also include the Coupon (if
any) appertaining to such Security if the context so
requires, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
9
<PAGE>
"Securities Act" means the Securities Act of 1933,
--------------
as amended.
"Subsidiary" means any corporation of which at
----------
least a majority of all outstanding stock having by the
terms thereof ordinary voting power in the election of
directors of such corporation (irrespective of whether or
not at the time stock of any class or classes of such
corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time,
directly or indirectly, owned by the Issuer, or by one or
more Subsidiaries of the Issuer or by the Issuer and one or
more Subsidiaries.
"Trust Indenture Act of 1939" means the Trust
---------------------------
Indenture Act of 1939, as amended, as in force at the date
as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee"
-------
in the first paragraph hereof and, pursuant to the
provisions of Article Five, shall also include any successor
trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is
more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the trustee with
respect to the Securities of such series.
"U.S. Government Obligations" shall have the
---------------------------
meaning set forth in Section 10.1(A).
"Unregistered Security" means any Security other
---------------------
than a Registered Security.
"Vice President" when used with respect to the
--------------
Issuer or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before
or after the title of "Vice President".
"Yield to Maturity" means as the context may
-----------------
require the yield to maturity (i) on a series of Securities
or (ii) if the Securities of a series are issuable from time
to time, on a Security of such series, calculated at the
time of issuance of such series in the case of clause (i) or
at the time of issuance of such Security of such series in
the case of clause (ii), or, if applicable, at the most
recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant
interest method or such other accepted financial practice as
is specified in the terms of such Security.
10
<PAGE>
ARTICLE TWO
SECURITIES
----------
SECTION 2.1 Forms Generally. The Securities of
---------------
each series and the Coupons, if any, to be attached thereto
shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to
one or more Board Resolutions (as set forth, in a Board
Resolution or, to the extent established pursuant to, rather
than set forth, in a Board Resolution, an Officer's Certi-
ficate detailing such establishment) or in one or more
indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture
and may have imprinted or otherwise reproduced thereon such
legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons.
Unless otherwise specified as contemplated by
Section 2.3, Unregistered Securities shall have coupons
attached. The definitive Securities and Coupons, if any,
shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as
evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of
--------------------------------
Authentication. The Trustee's certificate of authentication
--------------
on all Securities shall be in substantially the following
form:
This is one of the Securities of the series
designated herein and referred to in the within-mentioned
Indenture.
Dated: CITIBANK, N.A.,
as Trustee
By______________________
Authorized Signatory
11
<PAGE>
If at any time there shall be an Authenticating
Agent appointed with respect to any series of Securities,
then the Trustee's Certificate of Authentication to be borne
by the Securities of each such series shall be substantially
as follows:
"This is one of the Securities referred to in the
within-mentioned Indenture."
CITIBANK, N.A.,
as Trustee
_________________________,
as Authenticating Agent
By_______________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series
and each such series shall rank equally and pari passu with
all other senior and unsubordinated debt of the Issuer.
There shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in
one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series,
(1) the designation of the Securities of the
series, which shall distinguish the Securities of the
series from the Securities of all other series;
(2) any limit upon the aggregate principal amount
of the Securities of the series that may be authenti-
cated and delivered under this Indenture and any
limitation on the ability of the Issuer to increase
such aggregate principal amount after the initial
issuance of the Securities of that Series (except for
Securities authenticated and delivered upon registra-
tion of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 2.8,
2.9, 2.11, 8.5 or 12.3);
12
<PAGE>
(3) if other than Dollars, the coin or currency
in which the Securities of that series are denominated
(including, but not limited to, any Foreign Currency);
(4) the date or dates on which the principal of
the Securities of the series is payable (which date or
dates may be fixed or extendible);
(5) the rate or rates (which may be fixed on
variable) per annum at which the Securities of the
series shall bear interest, if any, the date or dates
from which such interest shall accrue, on which such
interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken
for the determination of Holders to whom interest is
payable and/or the method by which such rate or rates
or date or dates shall be determined;
(6) the place or places where the principal of
and any interest on Securities of the series shall be
payable (if other than as provided in Section 3.2), any
Registered Securities of the series may be surrendered
for exchange, notices, demands to or upon the Company
in respect of the Securities of the series and this
Indenture may be served and where notice to Holders
pursuant to Section 11.4 may be published;
(7) the right, if any, of the Issuer to redeem
Securities of such series, in whole or in part, at its
option and the period or periods within which, the
price or prices at which and any terms and conditions
upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to
redeem, purchase or repay Securities of the series
pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period
or periods within which and any of the terms and
conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in case of Registered Securi-
ties, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of
the series shall be issuable;
13
<PAGE>
(10) if other than the principal amount thereof,
the portion of the principal amount of Securities of
the series which shall be payable upon declaration of
acceleration of the maturity thereof;
(11) if other than the coin or currency in which
the Securities of that series are denominated, the coin
or currency in which payment of the principal of or
interest on the Securities of such series shall be
payable;
(12) if the principal of or interest on the
Securities of such series are to be payable, at the
election of the Issuer or a Holder thereof, in a coin
or currency other than that in which the Securities are
denominated, the period or periods within which, and
the terms and conditions upon which, such election may
be made;
(13) if the amount of payments of principal of and
interest on the Securities of the series may be deter-
mined with reference to an index based on a coin or
currency other then that in which the Securities of the
series are denominated, the manner in which such
amounts shall be determined;
(14) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global
Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery
of Unregistered Securities or the payment of interest
thereon and, if other than as provided in Section 2.8,
the terms upon which Unregistered Securities of any
series may be exchanged for Registered Securities of
such series and vice versa;
(15) whether and under what circumstances the
Issuer will pay additional amounts on the Securities of
the series held by a person who is not a U.S. person in
respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer
will have the option to redeem such Securities rather
than pay such additional amounts;
(16) if the Securities of such series are to be
issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions,
14
<PAGE>
the form and terms of such certificates, documents or
conditions;
(17) any trustees, depositaries, authenticating or
paying agents, transfer agents or registrars or any
other agents with respect to the Securities of such
series;
(18) the terms of any warrants attached to the
Securities of the series;
(19) provisions, if any, for the defeasance of
Securities of a particular series (including provisions
permitting defeasance of less than all Securities of a
particular series), which provisions may be in addition
to, in substitution for, in subtraction from, or in
modification of (or any combination of the foregoing)
the provisions of Article Ten;
(20) whether the Securities of the series are
issuable in whole or in part as one or more global
Securities and, in such case, the identity of the
Depositary for such global Security or Securities;
(21) any other events of default or covenants
with respect to the Securities of such series; and
(22) any other terms of the series (which terms
shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and Coupons, if
any, appertaining thereto, shall be substantially identical,
except in the case of Registered Securities as to
denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any such indenture
supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution, such
Officer's Certificate or in any such indenture supplemental
hereto. If any of the terms of the series are established
by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by a
Secretary or Assistant Secretary of the Issuer and delivered
to the trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
SECTION 2.4 Authentication and Delivery of
------------------------------
Securities. At any time and from time to time after the
----------
15
<PAGE>
execution and delivery of this Indenture, the Issuer may
deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Issuer to the
Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee
shall thereupon authenticate and deliver such Securities to
or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients
as may be specified from time to time by an Issuer Order.
The maturity date, original issue date, interest rate and
any other terms of the Securities of such series and
Coupons, if any, appertaining thereto shall be determined by
or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent,
which instructions shall be promptly confirmed in writing in
the form of an Issuer Order or in the form of instructions
delivered by a person who is authorized under an Issuer
Order previously delivered to the Trustee by facsimile or
electronic transmission. In authenticating such Securities
and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall
be entitled to receive (in the case of subparagraphs 2, 3
and 4 below only at or before the time of the first request
of the Issuer to the Trustee to authenticate Securities of
such series) and (subject to Section 6.1) shall be fully
protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) an Issuer Order requesting such authen-
tication and setting forth delivery instructions
if the Securities and Coupons, if any, are not to
be delivered to the Issuer, provided that, with
respect to Securities of a series subject to a
Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to
the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series
for original issue from time to time, in an
aggregate principal amount not exceeding the
aggregate principal amount established for such
series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be
specified from time to time by an Issuer Order,
(c) the maturity date or dates, original issue
date or dates, interest rate or rates and any
other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such
16
<PAGE>
procedures and (d) if provided for in such proce-
dures, such Issuer Order may authorize authen-
tication and delivery pursuant to oral or elec-
tronic instructions from the Issuer or its duly
authorized agent or agents, which oral instruc-
tions shall be promptly confirmed in writing;
(2) any Board Resolution, Officers' Certi-
ficate and/or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of
a series and Coupons, if any, were established;
(3) an Officers' Certificate setting forth
the form or forms and terms of the Securities and
Coupons, if any, stating that the form or forms
and terms of the Securities of such series and
Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either an
Opinion of Counsel, or a letter addressed to the
Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that the
Securities have been duly authorized and, if
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the
benefits of the Indenture and would be valid and
binding obligations of the Issuer, enforceable
against the Issuer in accordance with their
respective terms, subject to the effect of
bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws
affecting the rights and remedies of creditors
generally and of general principles of equity
whether applied by a court of law or equity.
Such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the State of New York and
the federal law of the United States, upon opinions of other
counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee,
in which case the opinion shall state that such counsel
believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he
17
<PAGE>
deems proper, upon certificates of officers of the Issuer
and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section
if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken by the Issuer or if
the Trustee in good faith by its board of directors or board
of trustees, executive committee, or a trust committee of
directors or trustees or Responsible Officers shall
determine that such action would expose the Trustee to
personal liability to existing Holders or would affect the
Trustee's own rights, duties or immunities under the
Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section
2.3 that the Securities of a series are to be issued in the
form of one or more Registered Global Securities, then the
Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and
not yet cancelled, (ii) shall be registered in the name of
the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to
such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it
is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be
transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3
must, at the time of its designation and at all times while
it serves as Depositary, be a clearing agency registered
under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The
-----------------------
Securities and, if applicable, each Coupon appertaining
thereto shall be signed on behalf of the Issuer by both (a)
the Chairman of its Board of Directors or any Vice Chairman
of its Board of Directors or its President or any Vice
President and (b) by its Treasurer or any Assistant
Treasurer or its Secretary or any Assistant Secretary, under
18
<PAGE>
its corporate seal (except in the case of Coupons and in the
case of any Registered Global Security) which may, but need
not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such
officers. The seal of the Issuer may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Securities. Typographical
and other minor errors or defects in any such reproduction
of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been
duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have
signed any of the Securities or Coupons, if any, shall cease
to be such officer before the Security or Coupon so signed
(or the Security to which the Coupon so signed appertains)
shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon never-
theless may be authenticated and delivered or disposed of as
though the person who signed such Security or Coupon had not
ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons
as, at the actual date of the execution of such Security or
Coupon, shall be the proper officers of the Issuer, although
at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only
-----------------------------
such Securities as shall bear thereon a certificate of auth-
entication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any
purpose. No Coupon shall be entitled to the benefits of
this Indenture or shall be valid and obligatory for any
purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been
duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security or Coupon
executed by the Issuer shall be conclusive evidence that the
Security or Coupon so authenticated has been duly
authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities;
------------------------------------
Payments of Interest. The Securities of each series shall
--------------------
be issuable as Registered Securities or Unregistered
Securities in denominations established as contemplated by
Section 2.3. or, with respect to Registered Securities of
any series, if any so established, in denominations of
$1,000 and any integral multiple thereof. If the
19
<PAGE>
denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each
series shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan
as the officers of the Issuer executing the same may
determine, as evidenced by the execution thereof.
Each Registered Security shall be dated the date
of its authentication. Each Unregistered Security shall be
dated as provided in the resolution or resolutions of the
Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any,
from the date, and such interest and shall be payable on the
dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security
of any series is registered at the close of business on any
record date applicable to a particular series with respect
to any interest payment date for such series shall be
entitled to receive the interest, if any, payable on such
interest payment date notwithstanding any transfer or
exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except
if and to the extent the Issuer shall default in the payment
of the interest due on such interest payment date for such
series, in which case such defaulted interest shall be paid
to the persons in whose names Outstanding Registered
Securities for such series are registered at the close of
business on a subsequent record date (which shall be not
less than five Business Days prior to the date of payment of
such defaulted interest) established by notice given by mail
by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent
record date. The term "record date" as used with respect to
any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the
Registered Securities of such series established as
contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day
of a calendar month, the fifteenth day of the next preceding
calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a
Business Day.
SECTION 2.8 Registration, Transfer and Exchange.
-----------------------------------
The Issuer will keep or cause to be kept at each office or
agency to be maintained for the purpose as provided in
Section 3.2, for each series of Securities, a register or
20
<PAGE>
registers in which, subject to such reasonable regulations
as it may prescribe, it will provide for the registration of
Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such
register shall be in written form in the English language or
in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer
of any Registered Security of any series at any such office
or agency to be maintained for the purpose as provided in
Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered
Securities of the same series, maturity date, interest rate
and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary
global Unregistered Securities) and Coupons (except for
Coupons attached to any temporary global Unregistered
Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered
Securities to be exchanged at the agency of the Issuer that
shall be maintained for such purpose in accordance with
Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof,
Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at
the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. At the option
of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date
are issued in more than one authorized denomination, except
21
<PAGE>
as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations
and an equal aggregate principal amount, upon surrender of
such Unregistered Securities to be exchanged at the agency
of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 or as specified pursuant to
Section 2.3, with, in the case of Unregistered Securities
that have Coupons attached, all unmatured Coupons and all
matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant
to Section 2.3, Registered Securities of any series may not
be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange
is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in
this Indenture shall be promptly cancelled and returned to
the Issuer.
All Registered Securities presented for
registration of transfer, exchange, redemption or payment
shall (if so required by the Issuer or the Trustee) be duly
endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by, the holder or his attorney
duly authorized in writing.
The Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of
transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or
register a transfer of (a) any Securities of any series for
a period of 15 days next preceding the first mailing of
notice of redemption of Securities of such series to be
redeemed, or (b) any Securities of such series selected,
called or being called for redemption, in whole or in part,
except, in the case of any Security of such series where
public notice has been given that such Security is to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this
Section 2.8, unless and until it is exchanged in whole or in
part for Securities in definitive registered form, a
Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as
22
<PAGE>
a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered
Securities of a series represented by one or more Registered
Global Securities notifies the Issuer that it is unwilling
or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such
Registered Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary
eligible under Section 2.4 with respect to such Registered
Securities. If a successor Depositary eligible under
Section 2.4 for such Registered Securities is not appointed
by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.3 that such Registered
Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Issuer will
execute, and the Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered
Global Security or Securities.
The Issuer may at any time and in its sole
discretion determine that the Registered Securities of any
series issued in the form of one or more Registered Global
Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer
will execute, and the Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered
Global Security or Securities.
Any time the Securities are not represented by
Registered Global Securities pursuant to the preceding two
paragraphs, the Issuer agrees to supply the Trustee with a
reasonable supply of certificated Securities without the
legend required by Section 2.4 hereof and the Trustee agrees
23
<PAGE>
to hold such Securities in safekeeping until authenticated
pursuant to the terms of this Indenture.
If specified by the Issuer pursuant to Section 2.3
with respect to Securities represented by a Registered
Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon,
the Issuer shall execute, and the Trustee shall authenticate
and deliver, without service charge,
(i) to the Person specified by such
Depositary a new Registered Security or Securities
of the same series, of any authorized
denominations as requested by such Person, in an
aggregate principal amount equal to and in
exchange for such Person's beneficial interest in
the Registered Global Security; and
(ii) to such Depositary a new Registered
Global Security in a denomination equal to the
difference, if any, between the principal amount
of the surrendered Registered Global Security and
the aggregate principal amount of Registered
Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security
for Securities in definitive registered form without
coupons, in authorized denominations, such Registered Global
Security shall be cancelled by the Trustee or an agent of
the Issuer or the Trustee. Securities in definitive
registered form without Coupons issued in exchange for a
Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The
Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are
so registered.
All Securities issued upon any transfer or
exchange of Securities shall be valid obligations of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such transfer or exchange.
24
<PAGE>
Notwithstanding anything herein or in the terms of
any series of Securities to the contrary, none of the
Issuer, the Trustee or any agent of the Issuer or the
Trustee (any of which, other than the Issuer, shall be
entitled to rely on an Officer's Certificate and an Opinion
of Counsel) shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal
income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
-----------------------------------
and Stolen Securities. In case any temporary or definitive
---------------------
Security or any Coupon appertaining to any Security shall
become mutilated, defaced or be destroyed, lost or stolen,
the Issuer in its discretion may execute, and upon the
written request of any officer of the Issuer, the Trustee
shall authenticate and deliver, a new Security of the same
series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen
with Coupons (if any) corresponding to the Coupons
appertaining to the Securities so mutilated, defaced,
destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced,
destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every
case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as may
be required by them to indemnify and defend and to save each
of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the
ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons
(if any) to the Trustee or such agent.
Upon the issuance of any substitute Security or
Coupon, the Issuer may require the payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or
its agent) connected therewith. In case any Security or
Coupon which has matured or is about to mature or has been
25
<PAGE>
called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may
instead of issuing a substitute Security or Coupon, pay or
authorize the payment of the same or the relevant Coupon
(without surrender thereof except in the case of a mutilated
or defaced Security or Coupon), if the applicant for such
payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Issuer and the
Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series
issued pursuant to the provisions of this Section by virtue
of the fact that any such Security or Coupon is destroyed,
lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time
enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons
of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the
express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any
and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities;
---------------------------
Destruction Thereof. All Securities and Coupons surrendered
-------------------
for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer or
any agent of the Issuer or the Trustee or any agent of the
Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities or Coupons shall be
issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall
destroy cancelled Securities held by it and deliver a
certificate of destruction to the Issuer. If the Issuer
shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or
26
<PAGE>
satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the
Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the
--------------------
preparation of definitive Securities for any series, the
Issuer may execute and upon Issuer Order the Trustee shall
authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as
Unregistered Securities with or without coupons attached
thereto, of any authorized denomination, and substantially
in the form of the definitive Securities of such series but
with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee
as evidenced by the execution and authentication thereof.
Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities
of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2 and, in
the case of Unregistered Securities, at an agency maintained
by the Issuer for such purpose as specified pursuant to
Section 2.3, and the Trustee shall authenticate and deliver
in exchange for such temporary Securities of such series an
equal aggregate principal amount of definitive Securities of
the same series having authorized denominations and, in the
case of Unregistered Securities, having attached thereto any
appropriate Coupons. Until so exchanged, the temporary
Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to
any restrictions or limitations on the issue and delivery of
temporary Unregistered Securities of any series that may be
established pursuant to Section 2.3 (including any provision
that Unregistered Securities of such series initially be
issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency located outside
the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series
27
<PAGE>
will be issued in exchange for such temporary global
Unregistered Security).
SECTION 2.12 CUSIP Numbers. The Issuer in
-------------
issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no
--------
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
-----------------------
SECTION 3.1 Payment of Principal and Interest.
---------------------------------
The Issuer covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or
cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional
amounts payable pursuant to the terms of such Securities) at
the place or places, at the respective times and in the
manner provided in such Securities and in the Coupons, if
any, appertaining thereto and in this Indenture. The
interest on Securities with Coupons attached (together with
any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally
mature. The interest on any temporary Unregistered
Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be paid, as
to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and
surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities
for notation thereon of the payment of such interest. The
interest on Registered Securities (together with any
additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written
instructions of the Holders thereof and at the option of the
Issuer may be paid by wire transfer or mailing checks for
such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the
registry books of the Issuer.
28
<PAGE>
Notwithstanding any provisions of this Indenture
and the Securities of any series to the contrary, if the
Issuer and a Holder of Registered Securities so agree,
payments of interest on, and any portion of the principal of
any Securities (other than interest payable at maturity or
on any redemption or repayment date or the final payment of
principal on a Security), shall be made by the Paying Agent
upon receipt from the Issuer of immediately available funds
by 11:00 A.M., New York City time (or such other time as may
be agreed to between the Company and the Trustee), directly
to the Holder of such Security (whether by Federal funds,
wire transfer or otherwise) if the Holder has delivered
written instructions to the Trustee 15 days prior to such
payment date requesting that such payment will be so made
and designating the bank account to which such payments
shall be so made and in the case of payments of principal
surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount
as the unredeemed principal amount of the Securities
surrendered. The Trustee shall be entitled to rely on the
last instruction delivered by the Holder pursuant to this
Section 3.1 unless a new instruction is delivered 15 days
prior to a payment date. The Issuer will indemnify and hold
the Trustee harmless against any loss, liability or expense
(including attorneys' fees) resulting from any act or
omission to act on the part of the Issuer or any such Holder
in connection with any such agreement or which the Paying
Agent may incur as a result of making any payment in
accordance with any such agreement.
SECTION 3.2 Offices for Payments, etc. The
--------------------------
Issuer will maintain in the Borough of Manhattan, The City
of New York, an agency where the Registered Securities of
each series may be presented for payment, an agency where
the Securities of each series may be presented for exchange
as is provided in this Indenture and, if applicable,
pursuant to Section 2.3 an agency where the Registered
Securities of each series may be presented for registration
of transfer as in this Indenture provided. Unless otherwise
provided pursuant to Section 2.3, the Issuer initially
appoints the Corporate Trust Office of the Trustee, in New
York, New York, as such office or agency for the purposes of
this Section.
The Issuer will maintain one or more agencies in a
city or cities located outside the United States (including
any city in which such an agency is required to be
maintained under the rules of any stock exchange on which
the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons,
29
<PAGE>
if any, appertaining thereto may be presented for payment.
No payment on any Unregistered Security or Coupon will be
made upon presentation of such Unregistered Security or
Coupon at an agency of the Issuer within the United States
nor will any payment be made by transfer to an account in,
or by mail to an address in, the United States unless
pursuant to applicable United States laws and regulations
then in effect such payment can be made without adverse tax
consequences to the Issuer. Notwithstanding the foregoing,
if full payment in Dollars at each agency maintained by the
Issuer outside the United States for payment on such
Unregistered Securities or Coupons appertaining thereto is
illegal or effectively precluded by exchange controls or
other similar restrictions, payments in Dollars of
Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be
made at an agency of the Issuer maintained in the Borough of
Manhattan, The City of New York.
The Issuer will maintain in the Borough of
Manhattan, The City of New York, an agency where notices and
demands to or upon the Issuer in respect of the Securities
of any series, the Coupons appertaining thereto or this
Indenture may be served.
The Issuer will give to the Trustee written notice
of the location of each such agency and of any change of
location thereof. In case the Issuer shall fail to maintain
any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to
give such notice of the location or of any change in the
location of any of the above agencies, presentations and
demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or
more additional agencies where the Securities of a series
and Coupons appertaining thereto may be presented for
payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and
pursuant to Section 2.3 where the Registered Securities of
that series may be presented for registration of transfer as
in this Indenture provided, and the Issuer may from time to
time rescind any such designation, as the Issuer may deem
desirable or expedient; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain the agencies provided
for in the immediately preceding paragraphs. The Issuer
will give to the Trustee prompt written notice of any such
designation or rescission thereof.
30
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SECTION 3.3 Appointment to Fill a Vacancy in
--------------------------------
Office of Trustee. The Issuer, whenever necessary to avoid
-----------------
or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 6.10, a successor Trustee, so
that there shall at all times be a Trustee with respect to
each series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer
-------------
shall appoint a paying agent other than the Trustee with
respect to the Securities of any series, it will cause such
paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section that such paying
agent,
(a) will hold all sums received by it as such
agent for the payment of the principal of or interest
on the Securities of such series (whether such sums
have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for
the benefit of the holders of the Securities of such
series, or Coupons appertaining thereto, or of the
Trustee, until such sums shall be paid to such holders
or otherwise disposed of as herein provided;
(b) will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the
Securities of such series) to make any payment of the
principal of or interest on the Securities of such
series when the same shall be due and payable, and
(c) at any time during the continuance of any
such failure, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held
in trust by such paying agent.
The Issuer will, on or prior to each due date of
the principal of or interest on the Securities of such
series, deposit with the paying agent a sum sufficient to
pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of its action or of any failure to take
such action.
If the Issuer shall act as its own paying agent
with respect to the Securities of any series, it will, on or
before each due date of the principal of or interest on the
Securities of such series, set aside, segregate and hold in
trust for the benefit of the holders of the Securities of
such series or the Coupons appertaining thereto a sum
sufficient to pay such principal or interest so becoming
31
<PAGE>
due. The Issuer will promptly notify the Trustee of its
action or of any failure to take such action.
The Issuer hereby initially appoints the Trustee
as registrar and paying agent. Anything in this Section to
the contrary notwithstanding, the Issuer may at any time,
for the purpose of obtaining a satisfaction and discharge
with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid,
or by Issuer Order direct any paying agent to pay to the
Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this Section is subject to the provisions of
Section 10.3 and 10.4.
SECTION 3.5 Certificate to Trustee. The Issuer
----------------------
will furnish to the Trustee annually, on or before a date
not more than four months after the end of its fiscal year
(which, on the date hereof, is a calendar year), a brief
certificate (which need not comply with Section 11.5) from
its principal executive, financial or accounting officer as
to his or her knowledge of the compliance of the Issuer with
all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of
grace or requirement of notice provided under the
Indenture).
SECTION 3.6 Negative Pledge. (a) The Issuer
---------------
will not, and will not permit any Restricted Subsidiary to,
mortgage or pledge as security for any indebtedness any
shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property of the Issuer or a
Restricted Subsidiary, whether such shares of stock,
indebtedness or other obligations of a Subsidiary or
Principal Property is owned at the date of this Indenture or
hereafter acquired, unless the Issuer secures or causes such
Restricted Subsidiary to secure the outstanding Securities
equally and ratably with all indebtedness secured by such
mortgage or pledge, so long as such indebtedness shall be so
secured; provided, however, that this covenant shall not
--------
apply in the case of: (i) the creation of any mortgage,
pledge or other lien on any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property
hereafter acquired (including acquisitions by way of merger
or consolidation) by the Issuer or a Restricted Subsidiary
contemporaneously with such acquisition, or within 120 days
32
<PAGE>
thereafter, to secure or provide for the payment or
financing of any part of the purchase price thereof, or the
assumption of any mortgage, pledge or other lien upon any
shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property hereafter acquired
existing at the time of such acquisition, or the acquisition
of any shares of stock, indebtedness or other obligations of
a Subsidiary or any Principal Property subject to any
mortgage, pledge or other lien without the assumption
thereof, provided that every such mortgage, pledge or lien
--------
referred to in this clause (i) shall attach only to the
shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed
improvements thereon; (ii) any mortgage, pledge or other
lien on any shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property
existing at the date of this Indenture; (iii) any mortgage,
pledge or other lien on any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property
in favor of the Issuer or any Restricted Subsidiary; (iv)
any mortgage, pledge or other lien on Principal Property
being constructed or improved securing loans to finance such
construction or improvements; (v) any mortgage, pledge or
other lien on shares of stock, indebtedness or other
obligations of a Subsidiary or any Principal Property
incurred in connection with the issuance of tax-exempt
governmental obligations; (vi) any renewal of or
substitution for any mortgage, pledge or other lien
permitted by any of the preceding clauses (i) through (v),
provided, in the case of a mortgage, pledge or other lien
--------
permitted under clause (i), (ii) or (iv), the debt secured
is not increased nor the lien extended to any additional
assets.
(b) Notwithstanding the provisions of paragraph
(a) of this Section, the Issuer or any Restricted Subsidiary
may create or assume liens in addition to those permitted by
paragraph (a) of this Section, and renew, extend or replace
such liens, provided that at the time of such creation,
--------
assumption, renewal, extension or replacement, and after
giving effect thereto, Exempted Debt does not exceed 10% of
Consolidated Net Worth.
SECTION 3.7 Certain Sale and Lease-back
---------------------------
Transactions. (a) The Issuer will not, and will not permit
------------
any Restricted Subsidiary to, sell or transfer, directly or
indirectly, except to the Issuer or a Restricted Subsidiary,
any Principal Property as an entirety, or any substantial
portion thereof, with the intention of taking back a lease
of such property, except a lease for a period of three years
or less at the end of which it is intended that the use of
33
<PAGE>
such property by the lessee will be discontinued; provided
--------
that, notwithstanding the foregoing, the Issuer or any
Restricted Subsidiary may sell any such Principal Property
and lease it back for a longer period (i) if the Issuer or
such Restricted Subsidiary would be entitled, pursuant to
the provisions of Section 3.6(a), to create a mortgage on
the property to be leased securing Funded Debt in an amount
equal to the Attributable Debt with respect to such sale and
lease-back transaction without equally and ratably securing
the outstanding Securities or (ii) if (A) the Issuer
promptly informs the Trustee of such transaction, (B) the
net proceeds of such transaction are at least equal to the
fair value (as determined by Board Resolution of the Issuer)
of such property and (C) the Issuer causes an amount equal
to the net proceeds of the sale to be applied to the
retirement, within 120 days after receipt of such proceeds,
of Funded Debt incurred or assumed by the Issuer or a
Restricted Subsidiary (including the Securities); provided
--------
further that, in lieu of applying all of or any part of such
net proceeds to such retirement, the Issuer may, within 75
days after such sale, deliver or cause to be delivered to
the applicable trustee for cancellation either debentures or
notes evidencing Funded Debt of the Issuer (which may
include the Outstanding Securities) or of a Restricted
Subsidiary previously authenticated and delivered by the
applicable trustee, and not theretofore tendered for sinking
fund purposes or called for a sinking fund or otherwise
applied as a credit against an obligation to redeem or
retire such notes or debentures, and an Officers'
Certificate (which Certificate shall be delivered to the
Trustee and each paying agent and which need not contain the
statements prescribed by the second paragraph of Section
11.5) stating that the Issuer elects to deliver or cause to
be delivered such debentures or notes in lieu of retiring
Funded Debt as hereinabove provided. If the Issuer shall so
deliver debentures or notes to the applicable trustee and
the Issuer shall duly deliver such Officers' Certificate,
the amount of cash which the Issuer shall be required to
apply to the retirement of Funded Debt under this Section
3.7(a) shall be reduced by an amount equal to the aggregate
of the then applicable optional redemption prices (not
including any optional sinking fund redemption prices) of
such debentures or notes, or, if there are no such
redemption prices, the principal amount of such debentures
or notes; provided, that in the case of debentures or notes
--------
which provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the
maturity thereof, such amount of cash shall be reduced by
the amount of principal of such debentures or notes that
would be due and payable as of the date of such application
upon a declaration of acceleration of the maturity thereof
34
<PAGE>
pursuant to the terms of the indenture pursuant to which
such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph
(a) of this Section 3.7, the Issuer or any Restricted
Subsidiary may enter into sale and lease-back transactions
in addition to those permitted by paragraph (a) of this
Section 3.7 and without any obligation to retire any
outstanding Securities or other Funded Debt, provided that
--------
at the time of entering into such sale and lease-back
transactions and after giving effect thereto, Exempted Debt
does not exceed 10% of Consolidated Net Worth.
SECTION 3.8 Funded Debt of Restricted Subsidiaries.
--------------------------------------
(a) The Issuer will not permit any Restricted Subsidiary
(A) to create, assume or permit to exist any
Funded Debt other than (i) Funded Debt secured by
a mortgage, pledge or lien which is permitted to
such Restricted Subsidiary under the provisions of
Section 3.6, (ii) Funded Debt owed to the Issuer
or any Restricted Subsidiary, (iii) Funded Debt of
a corporation existing at the time it becomes a
Restricted Subsidiary, (iv) Funded Debt existing
on the date of this Indenture, (v) Funded Debt
created in connection with the issuance of tax-
exempt government obligations; or (vi) renewals,
extensions or replacements of the foregoing.
(B) to guarantee, directly or indirectly
through any arrangement which is substantially the
equivalent of a guarantee, any Funded Debt except
for (i) guarantees existing on the date of this
Indenture, (ii) guarantees which, on the date of
this Indenture, a Restricted Subsidiary is
obligated to give, (iii) guarantees of Funded Debt
secured by a mortgage, pledge or lien which is
permitted to such Restricted Subsidiary under the
provisions of Section 3.6 and (iv) renewals,
extensions or replacements of the foregoing.
(b) Notwithstanding the provisions of paragraph
(a) of this Section 3.8, any Restricted Subsidiary may
create, assume or guarantee Funded Debt in addition to that
permitted by paragraph (a) of this Section 3.8, and renew,
extend or replace such Funded Debt, provided that at the
--------
time of such creation, assumption, guarantee, renewal,
extension or replacement, and after giving effect thereto,
Exempted Debt does not exceed 10% of Consolidated Net Worth.
35
<PAGE>
SECTION 3.9 Luxembourg Publications. In the
-----------------------
event of the publication of any notice pursuant to Section
5.11, 6.10(a), 6.11, 8.2, 12.2 or 12.5, the party making
such publication in the Borough of Manhattan, The City of
New York and London shall also, to the extent that notice is
required to be given to Holders of Securities of any series
listed on The Luxembourg exchange by applicable Luxembourg
law or stock exchange regulation, make a similar publication
in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
----------------------
SECTION 4.1 Issuer to Furnish Trustee Information
-------------------------------------
as to Names and Addresses of Securityholders. If and so
--------------------------------------------
long as the Trustee shall not be the Security registrar for
the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the
Holders of the Registered Securities of such series pursuant
to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date
for the payment of interest on such Registered Securities,
as hereinabove specified, as of such record date and on
dates to be determined pursuant to Section 2.3 for
non-interest bearing Registered Securities in each year as
of a date not more than 15 days prior to the time such
information is furnished, and (b) at such other times as the
Trustee may request in writing, within 30 days after receipt
by the Issuer of any such request as of a date not more than
15 days prior to the time such information is furnished.
SECTION 4.2 Reports by the Issuer. The Issuer
---------------------
covenants to file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission,
copies of the annual reports and of the information,
documents, and other reports which the Issuer may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 or
pursuant to Section 314 of the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Trustee. Any
----------------------
Trustee's report required under Section 313(a) of the Trust
Indenture Act of 1939 shall be transmitted on or before July
15 in each year following the date hereof, so long as any
Securities are outstanding hereunder, and shall be dated as
36
<PAGE>
of a date convenient to the Trustee no more than 60 nor less
than 45 days prior thereto.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
-------------------
SECTION 5.1 Event of Default Defined;
-------------------------
Acceleration of Maturity; Waiver of Default. "Event of
-------------------------------------------
Default" with respect to Securities of any series wherever
used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason
for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of
interest upon any of the Securities of such series as
and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of
the principal on any of the Securities of such series
as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration
or otherwise; or
(c) default in the payment of any sinking fund
installment as and when the same shall become due and
payable by the terms of the Securities of such series;
or
(d) default in the performance, or breach, of any
covenant or agreement of the Issuer in respect of the
Securities of such series (other than a covenant or
agreement in respect of the Securities of such series a
default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of
90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of
all series affected thereby, a written notice
specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice
of Default" hereunder; or
37
<PAGE>
(e) a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of
the Issuer in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for
any substantial part of its property or ordering the
winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(f) the Issuer or any Restricted Subsidiary shall
commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such
law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar
official) of the Issuer or for any substantial part of
its property, or make any general assignment for the
benefit of creditors; or
(g) any other Event of Default provided in the
supplemental indenture or Board Resolution under which
such series of Securities is issued or in the form of
Security for such series.
If an Event of Default described in clauses (a), (b), (c),
(d) or (g) above (if the Event of Default under clause (d)
or (g) is with respect to less than all series of Securities
then Outstanding) occurs and is continuing, then, and in
each and every such case, except for any series of
Securities the principal of which shall have already become
due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the
Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to
the Issuer (and to the Trustee if given by Securityholders),
may declare the entire principal (or, if the Securities of
any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of
all such affected series, and the interest accrued thereon,
if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and
payable. If an Event of Default described in clause (d) or
(g) (if the Event of Default under clause (d) or (g), as the
case may be, is with respect to all series of Securities
then Outstanding), (e) or (f) occurs and is continuing, then
38
<PAGE>
and in each and every such case, unless the principal of all
the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding and interest
accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to
the condition that if, at any time after the principal (or,
if the Securities are Original Issue Discount Securities,
such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all
the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or
shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of
each such series (or of all the Securities, as the case may
be) and the principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with
interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the
Securities of each such series (or at the respective rates
of interest or Yields to Maturity of all the Securities, as
the case may be) to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as
a result of negligence or bad faith, and if any and all
Events of Default under the Indenture, other than the
non-payment of the principal of Securities which shall have
become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then and in every
such case the Holders of a majority in aggregate principal
amount of all the Securities of each such series, or of all
the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to the
39
<PAGE>
Trustee, may waive all defaults with respect to each such
series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
For all purposes under this Indenture, if a
portion of the principal of any Original Issue Discount
Securities shall have been accelerated and declared due and
payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such
Original Issue Discount Securities shall be deemed, for all
purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and
all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by
-----------------------------
Trustee; Trustee May Prove Debt. The Issuer covenants that
-------------------------------
(a) in case default shall be made in the payment of any
installment of interest on any of the Securities of any
series when such interest shall have become due and payable,
and such default shall have continued for a period of 30
days or (b) in case default shall be made in the payment of
all or any part of the principal of any of the Securities of
any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or
upon any redemption or by declaration or otherwise, then
upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due
and payable on all Securities of such series and such
Coupons for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments
of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and
in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and
counsel, and any reasonable expenses and liabilities
incurred, and all advances made, by the Trustee and each
40
<PAGE>
predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the
Issuer may pay the principal of and interest on the
Securities of any series to the Holders, whether or not the
principal of and interest on the Securities of such series
be overdue.
In case the Issuer shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment
or final decree, and may enforce any such judgment or final
decree against the Issuer or other obligor upon the
Securities and collect in the manner provided by law out of
the property of the Issuer or other obligor upon the
Securities, wherever situated, the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings
relative to the Issuer or any other obligor upon the
Securities under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed
for or taken possession of the Issuer or its property or
such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor
upon the Securities, or to the creditors or property of the
Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the
whole amount of principal and interest (or, if the
Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may
be specified in the terms of such series) owing and
unpaid in respect of the Securities, and to file such
other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their
41
<PAGE>
respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred,
and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Issuer or other
obligor upon the Securities or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the
Securities of any series in any election of a trustee
or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in
comparable proceedings, and
(c) to collect and receive any moneys or other
property payable or deliverable on any such claims, and
to distribute all amounts received with respect to the
claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby
authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or vote for
or accept or adopt on behalf of any Securityholder any plan
of reorganization, arrangement, adjustment or composition
affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding except, as aforesaid, to vote for the election of
a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under
this Indenture, or under any of the Securities of any series
or Coupons appertaining to such Securities, may be enforced
by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such
Securities or the production thereof at any trial or other
proceedings relative thereto, and any such action or
42
<PAGE>
proceedings instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders
of such Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and
also any proceedings involving the interpretation of any
provision of this Indenture to which the Trustee shall be a
party) the Trustee shall be held to represent all the
Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities
parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys
-----------------------
collected by the Trustee pursuant to this Article in respect
of any series shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or
interest, upon presentation of the several Securities and
Coupons appertaining to such Securities in respect of which
monies have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such
series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid,
or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses
applicable to such series in respect of which monies
have been collected, including reasonable compensation
to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee and their respec-
tive agents and attorneys except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities
of such series in respect of which moneys have been
collected shall not have become and be then due and
payable, to the payment of interest on the Securities
of such series in default in the order of the maturity
of the installments of such interest, with interest (to
the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to
43
<PAGE>
Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments
to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of
such series in respect of which moneys have been col-
lected shall have become and shall be then due and
payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for
principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has
been collected by the Trustee) upon overdue instal-
lments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities
of such series; and in case such moneys shall be insuf-
ficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to
Maturity, without preference or priority of principal
over interest or Yield to Maturity, or of interest or
Yield to Maturity over principal, or of any installment
of interest over any other installment of interest, or
of any Security of such series over any other Security
of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any,
to the Issuer or any other person lawfully entitled
thereto.
SECTION 5.4 Suits for Enforcement. In case an
---------------------
Event of Default has occurred, has not been waived and is
continuing, the Trustee may in its discretion proceed to
protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment
------------------------------------
of Proceedings. In case the Trustee shall have proceeded to
--------------
enforce any right under this Indenture and such proceedings
shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then
44
<PAGE>
and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
SECTION 5.6 Limitations on Suits by
-----------------------
Securityholders. No Holder of any Security of any series or
---------------
of any Coupon appertaining thereto shall have any right by
virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to
this Indenture, or for the appointment of a trustee, recei-
ver, liquidator, custodian or other similar official or for
any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default
and of the continuance thereof, as hereinbefore provided,
and unless also the Holders of not less than 25% in aggre-
gate principal amount of the Securities of each affected
series then Outstanding (treated as a single class) shall
have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction
inconsistent with such written request shall have been given
to the Trustee pursuant to Section 5.9; it being understood
and intended, and being expressly covenanted by the taker
and Holder of every Security or Coupon with every other
taker and Holder and the Trustee, that no one or more
Holders of Securities of any series or Coupons appertaining
to such Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities or Coupons appertaining to
such Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of
all Holders of Securities of the applicable series and
Coupons appertaining to such Securities. For the protection
and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of
----------------------
Securityholders to Institute Certain Suits. Notwithstanding
------------------------------------------
any other provision in this Indenture and any provision of
45
<PAGE>
any Security or Coupon, the right of any Holder of any
Security or Coupon to receive payment of the principal of
and interest on such Security or Coupon on or after the
respective due dates expressed in such Security or Coupon,
or to institute suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay
-------------------------------------
or Omission Not Waiver of Default. Except as provided in
---------------------------------
Section 5.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
No delay or omission of the Trustee or of any
Holder of Securities or Coupons to exercise any right or
power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power
or shall be construed to be a waiver of any such Event of
Default or an acquiescence therein; and, subject to Section
5.6, every power and remedy given by this Indenture or by
law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders
of Securities or Coupons.
SECTION 5.9 Control by Securityholders. The
--------------------------
Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each such series
voting as a separate class) at the time Outstanding shall
have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by
this Indenture; provided that such direction shall not be
--------
otherwise than in accordance with law and the provisions of
this Indenture and provided further that (subject to the
-------- -------
provisions of Section 6.1) the Trustee shall have the right
to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the
46
<PAGE>
action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall
so determine that the actions or forebearances specified in
or pursuant to such direction would be unduly prejudicial to
the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it
being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions
or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right
of the Trustee in its discretion to take any action deemed
proper by the Trustee and which is not inconsistent with
such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to
-----------------------
the acceleration of the maturity of the Securities as
provided in Section 5.1, the Holders of a majority in
aggregate principal amount of the Securities of all series
at the time Outstanding with respect to which an event of
default shall have occurred and be continuing (voting as a
single class) may on behalf of the Holders of all such
Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a
default in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such
Securities of each series affected shall be restored to
their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to
exist and be deemed to have been cured and not to have
occurred, and any Event of Default arising therefrom shall
be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default,
----------------------------------
But May Withhold in Certain Circumstances. The Trustee
-----------------------------------------
shall, within ninety days after the occurrence of a default
with respect to the Securities of any series, give notice of
all defaults with respect to that series known to the
Trustee (i) if any Unregistered Securities of that series
are then Outstanding, to the Holders thereof, by publication
at least once in an Authorized Newspaper in the Borough of
Manhattan, the City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section
47
<PAGE>
3.9, at least once in an Authorized Newspaper in Luxembourg)
and (ii) to all Holders of Securities of such series in the
manner and to the extent provided in Section 313(c) of the
Trust Indenture Act of 1939, unless in each case such de-
faults shall have been cured before the mailing or publica-
tion of such notice (the term "default" or "defaults" for
the purposes of this Section being hereby defined to mean
any event or condition which is, or with notice or lapse of
time or both would become, an Event of Default); provided
--------
that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such
series, or in the payment of any sinking fund installment on
such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in
the interests of the Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of
-----------------------------------
Undertaking to Pay Costs. All parties to this Indenture
------------------------
agree, and each Holder of any Security or Coupon by his
acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions
of this Section shall not apply to:
(A) any suit instituted by the Trustee,
(B) any suit instituted by any Securityholder or
group of Securityholders of any series holding in the
aggregate more than 10% in aggregate principal amount of the
Securities of such series, or, in the case of any suit
relating to or arising under clauses (d) or (g) of Section
5.1 (if the suit relates to Securities of more than one but
less than all series), 10% in aggregate principal amount of
Securities Outstanding affected thereby, or in the case of
any suit relating to or arising under clauses (d) or (g) (if
the suit under (d) or (g) relates to all the Securities then
Outstanding), (c), (e) or (f) of Section 5.1, 10% in
aggregate principal amount of all Securities Outstanding, or
48
<PAGE>
(C) any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
----------------------
SECTION 6.1 Duties and Responsibilities of the
----------------------------------
Trustee; During Default; Prior to Default. With respect to
-----------------------------------------
the Holders of any series of Securities issued hereunder,
the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series and
after the curing or waiving of all Events of Default which
may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically
set forth in this Indenture. In case an Event of Default
with respect to the Securities of a series has occurred
(which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of
the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful
misconduct, except that
(a) prior to the occurrence of an Event of
Default with respect to the Securities of any series
and after the curing or waiving of all such Events of
Default with respect to such series which may have
occurred:
(i) the duties and obligations of the
Trustee with respect to the Securities of any
series shall be determined solely by the
express provisions of this Indenture, and the
Trustee shall not be liable except for the
performance of such duties and obligations as
are specifically set forth in this Indenture,
and no implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
49
<PAGE>
(ii) in the absence of bad faith on the
part of the Trustee, the Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the
opinions expressed therein, upon any
statements, certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but in
the case of any such statements, certificates
or opinions which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the
Holders pursuant to Section 5.9 relating to the time,
method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the perfor-
mance of any of its duties or in the exercise of any of its
rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured
to it.
The provisions of this Section 6.1 are in further-
ance of and subject to Sections 315 and 316 of the Trust
Indenture Act of 1939.
SECTION 6.2 Certain Rights of the Trustee. In
-----------------------------
furtherance of and subject to the Trust Indenture Act of
1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any resolu-
tion, Officers' Certificate, Opinion of Counsel (or
50
<PAGE>
both) or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of
the Issuer mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant
secretary of the Issuer;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full
and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by
this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(f) the Trustee shall not be liable for any
action taken or omitted by it in good faith and
believed by it to be authorized or within the discre-
tion, rights or powers conferred upon it by this
Indenture;
(g) prior to the occurrence of an Event of
Default hereunder and after the curing or waiving of
all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters
stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent,
51
<PAGE>
order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of
the Securities of all series affected then Outstanding;
provided that, if the payment within a reasonable time
--------
to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding;
the reasonable expenses of every such investigation
shall be paid by the Issuer or, if paid by the Trustee
or any predecessor trustee, shall be repaid by the
Issuer upon demand; and
(h) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys not
regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due
care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
-------------------------------------
Disposition of Securities or Application of Proceeds
----------------------------------------------------
Thereof. The recitals contained herein and in the
-------
Securities, except the Trustee's certificates of authenti-
cation, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securi-
ties or Coupons. The Trustee shall not be accountable for
the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold
---------------------------
Securities; Collections, etc. The Trustee or any agent of
----------------------------
the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities with
the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the
Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to
----------------------
the provisions of Section 10.4 hereof, all moneys received
by the Trustee shall, until used or applied as herein
52
<PAGE>
provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of
law. Neither the Trustee nor any agent of the Issuer or the
Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of
-----------------------------------
Trustee and Its Prior Claim. The Issuer covenants and
---------------------------
agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the
provisions of this Indenture and the Securities or the
issuance of the Securities or of series thereof (including
the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other
persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its
negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the
issuance of the Securities or of series thereof or the
trusts hereunder and the performance of its duties
hereunder, including the costs and expenses of defending
itself against or investigating any claim of liability in
the premises, except to the extent such loss liability or
expense is due to the negligence or bad faith of the Trustee
or such predecessor Trustee. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee
and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such
additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities or Coupons,
and the Securities are hereby subordinated to such senior
claim. If the Trustee renders services and incurs expenses
following an Event of Default under Section 5.1(e) or
Section 5.1(f) hereof, the parties hereto and the holders by
their acceptance of the Securities hereby agree that such
53
<PAGE>
expenses are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
-------------------------------------
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever
-----------------
in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically pre-
scribed) may, in the absence of negligence or bad faith on
the part of the Trustee, be deemed to be conclusively proved
and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 6.8 Indentures Not Creating Potential
---------------------------------
Conflicting Interests for the Trustee. The following
-------------------------------------
indentures are hereby specifically described for the
purposes of Section 310(b)(l) of the Trust Indenture Act of
1939: Indenture dated as of April 15, 1991, as amended, and
Amended and Restated Indenture dated as of May 18, 1992.
SECTION 6.9 Persons Eligible for Appointment as
-----------------------------------
Trustee. The Trustee for each series of Securities
-------
hereunder shall at all times be a corporation having a
combined capital and surplus of at least $50,000,000, and
which is eligible in accordance with the provisions of
Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annu-
ally, pursuant to law or to the requirements of a Federal,
State or District of Columbia supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
SECTION 6.10 Resignation and Removal; Appointment
------------------------------------
of Successor Trustee. (a) The Trustee, or any trustee or
--------------------
trustees hereafter appointed, may at any time resign with
respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer and (i) if any
Unregistered Securities of a series affected are then
Outstanding, by giving notice of such resignation to the
Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, the City
of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.9, at least once in an
54
<PAGE>
Authorized Newspaper in Luxembourg), (ii) if any Unregis-
tered Securities of a Series affected are then Outstanding,
by mailing notice of such resignation to the Holders thereof
who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of
1939 at such addresses as were so furnished to the Trustee
and (iii) by mailing notice of such resignation to the
Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on
the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of
the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee
shall have been so appointed with respect to any series and
have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of
himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following
shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act
of 1939 with respect to any series of Securities after
written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 hereunder
and Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor
by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or
shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer
55
<PAGE>
shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee
with respect to the applicable series of Securities and
appoint a successor trustee for such series by written
instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section
315(e) of the Trust Indenture Act of 1939, any Security-
holder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee
with respect to such series. Such court may thereupon,
after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate
principal amount of the Securities of each series then
Outstanding may at any time remove the Trustee with respect
to Securities of such series and appoint a successor trustee
with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee
with respect to any series and any appointment of a suc-
cessor trustee with respect to such series pursuant to any
of the provisions of this Section 6.9 shall become effective
upon acceptance of appointment by the successor trustee as
provided in Section 6.10.
SECTION 6.11 Acceptance of Appointment by
----------------------------
Successor Trustee. Any successor trustee appointed as
-----------------
provided in Section 6.9 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with
respect to all or any applicable series shall become
effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but,
56
<PAGE>
nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time
held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect
to the Securities of one or more (but not all) series, the
Issuer, the predecessor Trustee and each successor trustee
with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights,
powers, trusts and duties of the predecessor Trustee with
respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such
successor trustee shall be qualified under Section 310(b) of
the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.9.
Upon acceptance of appointment by any successor
trustee as provided in this Section 6.11, the Issuer shall
give notice thereof (a) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders
thereof, by publication of such notice at least once in an
Authorized Newspaper in the Borough of Manhattan, the City
of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.9, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the
57
<PAGE>
Holders thereof who have filed their names and addresses
with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939, by mailing such notice to such
Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the
Holders of Registered Securities of each series affected, by
mailing such notice to such Holders at their addresses as
they shall appear on the registry books. If the acceptance
of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by
Section 6.10. If the Issuer fails to give such notice
within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or
------------------------------------
Succession to Business of Trustee. Any corporation into
---------------------------------
which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such
--------
corporation shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provi-
sions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of
the Securities or Coupons (if any) of any series shall have
been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of
any predecessor Trustee and deliver such Securities or
Coupons so authenticated; and, in case at that time any of
the Securities or Coupons (if any) of any series shall not
have been authenticated, any successor to the Trustee may
authenticate such Securities or Coupons either in the name
of any predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificate shall have
the full force which it is anywhere in the Securities or
Coupons of such series or in this Indenture provided that
the certificate of the Trustee shall have; provided, that
--------
the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities or Coupons
(if any) of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
58
<PAGE>
SECTION 6.13 Appointment of Authenticating Agent.
-----------------------------------
As long as any Securities of a series remain Outstanding,
the Trustee may, by an instrument in writing, appoint with
the approval of the Issuer and authenticating agent (the
"Authenticating Agent") which shall be authorized to act on
behalf of the Trustee to authenticate Securities, including
Securities issued upon exchange, registration of transfer,
partial redemption or pursuant to Section 2.9. Securities
of each such series authenticated by such Authenticating
Agent shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in
this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to the Trustee's
Certificate of Authentication, such reference shall be
deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent for such series and a
Certificate of Authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and
doing business under the laws of the United States of
America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital
and surplus of at least $10,000,000 (determined as provided
in Section 6.9 with respect to the Trustee) and subject to
supervision or examination by Federal or State authority.
Any corporation into which any Authenticating
Agent may be merged or converted, or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any Authenticating
Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall
continue to be the Authenticating Agent with respect to all
series of Securities for which it served as Authenticating
Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by
giving written notice of resignation to the Trustee and to
the Issuer.
Upon receiving such a notice of resignation or
upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with
respect to one or more series of Securities, the Trustee
shall upon receipt of an Issuer Order appoint a successor
Authenticating Agent. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities
59
<PAGE>
of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. The Issuer agrees
to pay to the Authenticating Agent for such series from time
to time reasonable compensation. The Authenticating Agent
for the Securities of any series shall have no
responsibility or liability for any action taken by it as
such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6, 6.9 and 7.3 shall be
applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
------------------------------
SECTION 7.1 Evidence of Action Taken by
---------------------------
Securityholders. Any request, demand, authorization,
---------------
direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any
or all series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by
such specified percentage of Securityholders in person or by
agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of
a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.1
and 6.2) conclusive in favor of the Trustee and the Issuer,
if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and
-------------------------------------
of Holding of Securities; Record Date. Subject to Sections
-------------------------------------
6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the
following manner:
(a) The fact and date of the execution by any
Holder of any instrument may be proved by the
certificate of any notary public or other officer of
any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the person executing
such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of
any legal entity other than an individual, such
certificate or affidavit shall also constitute
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sufficient proof of the authority of the person
executing the same. The fact of the holding by any
Holder of an Unregistered Security of any series, and
the identifying number of such Security and the date of
his holding the same, may be proved by the production
of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to
be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security of
such series bearing a specified identifying number was
deposited with or exhibited to such trust company,
bank, banker or recognized securities dealer by the
person named in such certificate. Any such certificate
may be issued in respect of one or more Unregistered
Securities of one or more series specified therein.
The holding by the person named in any such certificate
of any Unregistered Securities of any series specified
therein shall be presumed to continue for a period of
one year from the date of such certificate unless at
the time of any determination of such holding (1)
another certificate bearing a later date issued in
respect of the same Securities shall be produced, or
(2) the Security of such series specified in such
certificate shall be produced by some other person, or
(3) the Security of such series specified in such
certificate shall have ceased to be Outstanding.
Subject to Sections 6.1 and 6.2, the fact and date of
the execution of any such instrument and the amount and
numbers of Securities of any series held by the person
so executing such instrument and the amount and numbers
of any Security or Securities for such series may also
be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for
such series or in any other manner which the Trustee
for such series may deem sufficient.
(b) In the case of Registered Securities, the
ownership of such Securities shall be proved by the
Security register or by a certificate of the Security
registrar.
The Issuer may set a record date for purposes of
determining the identity of holders of Securities of any
series entitled to vote or consent to any action referred to
in Section 7.1, which record date may be set at any time or
from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or reconsideration)
not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter,
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notwithstanding any other provisions hereof with respect to
Registered Securities of any series, only Holders of
Registered Securities of such series of record on such
record date shall be entitled to so vote or give such
consent or revoke such vote or consent.
SECTION 7.3 Holders to be Treated as Owners. The
-------------------------------
Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the person in whose name any
Security shall be registered upon the Security register for
such series as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any
agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may treat the Holder of
any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall
be overdue) for the purpose of receiving payment thereof or
on account thereof and for all other purposes and neither
the Issuer, the Trustee, nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his
order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Registered Security,
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
-------------------------------------
Outstanding. In determining whether the Holders of the
-----------
requisite aggregate principal amount of Outstanding
Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture,
Securities which are owned by the Issuer or any other
obligor on the Securities with respect to which such
determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor
on the Securities with respect to which such determination
is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction,
consent or waiver only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as
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Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Issuer or
any other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other
obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer
shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any,
known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject
to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5. Right of Revocation of Action Taken.
-----------------------------------
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.1, of the taking of any
action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as
the case may be, specified in this Indenture in connection
with such action, any Holder of a Security the serial number
of which is shown by the evidence to be included among the
serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any
notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding
upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 8.1 Supplemental Indentures Without
-------------------------------
Consent of Securityholders. The Issuer, when authorized by
--------------------------
a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the
Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more
of the following purposes:
(a) to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Securities of
one or more series any property or assets;
(b) to evidence the succession of another
corporation to the Issuer, or successive successions,
and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer such
further covenants, restrictions, conditions or
provisions as its Board of Directors and the Trustee
shall consider to be for the protection or benefit of
the Holders of all or any Series of Securities or
Coupons, (and if such covenants, restrictions,
conditions or provisions are for the protection or
benefit of less than all series of Securities, stating
that they are expressly being included solely for the
benefit or protection of such series), and to make the
occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth;
provided, that in respect of any such additional
--------
covenant, restriction, condition or provision such
supplemental indenture may provide for a particular
period of grace after default (which period may be
shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an
Event of Default or may limit the right of the Holders
of a majority in aggregate principal amount of the
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Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other
provisions in regard to matters or questions arising
under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary
or desirable and which shall not adversely affect the
interests of the Holders of the Securities or Coupons
in any material respect;
(e) to establish the form or forms or terms of
Securities of any series or of the Coupons appertaining
to such Securities as permitted by Sections 2.1 and
2.3;
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with
respect to the Securities of one or more series and to
add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder
by more than one trustee, pursuant to the requirements
of Section 6.11;
(g) to provide for uncertificated Securities and
to make all appropriate changes for such purpose; and
(h) to comply with the requirements of the Trust
Indenture Act of 1939.
The Trustee is hereby authorized to join with the
Issuer in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter
into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section may be executed without the
consent of the Holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of
Section 8.2.
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SECTION 8.2 Supplemental Indentures With Consent
------------------------------------
of Securityholders. With the consent (evidenced as provided
------------------
in Article Seven) of the Holders of not less than a majority
in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental
indenture (voting as one class), the Issuer, when authorized
by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Holders of the Securities of
each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture
--------
shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce
any amount payable on redemption thereof or make the
principal thereof (including any amount in respect of
original issue discount), or interest thereon payable in any
coin or currency other than that provided in the Securities
and Coupons or in accordance with the terms thereof, or
reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1
or the amount thereof provable in bankruptcy pursuant to
Section 5.2, or alter the provisions of Sections 11.11 or
11.12 or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment at the option of
the Securityholder in each case without the consent of the
Holder of each Security so affected, or (b) reduce the
aforesaid percentage in principal amount of Securities of
any series, the consent of the Holders of which is required
for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of
one or more particular series of Securities, or which
modifies the rights of Holders of Securities with respect to
such covenant or provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities
of any other series or of the Coupons appertaining to such
Securities.
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Upon the request of the Issuer, accompanied by a
copy of a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide
that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order) certified by
the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence
of the consent of Securityholders as aforesaid and other
documents, if any, required by Sections 7.1 and 8.4, the
Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may
in its discretion, but shall not be obligated to, enter into
such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Trustee shall give notice
thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a
notice thereof by first class mail to such Holders at their
addresses as they shall appear on the Security register,
(ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of
1939, by mailing a notice thereof by first class mail to
such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least one in
an Authorized Newspaper in the Borough of Manhattan, The
City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.9, at
least once in an Authorized Newspaper in Luxembourg), and in
each case such notice shall set forth in general terms the
substance of such supplemental indenture. Any failure of
the Issuer to give such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture.
--------------------------------
Upon the execution of any supplemental indenture pursuant to
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the provisions hereof, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee,
the Issuer and the Holders of Securities of each series
affected thereby shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4 Documents to Be Given to Trustee.
--------------------------------
The Trustee, subject to the provisions of Sections 6.1 and
6.2, may receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article Eight complies
with the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of
------------------------------------
Supplemental Indentures. Securities of any series
-----------------------
authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee
for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such
meeting. If the Issuer or the Trustee shall so determine,
new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to
any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for
the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
SECTION 9.1 Covenant Not to Merge, Consolidate,
-----------------------------------
Sell or Convey Property Except Under Certain Conditions.
-------------------------------------------------------
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the
Issuer into any other corporation or corporations (whether
or not affiliated with the Issuer), or successive
consolidations or mergers to which the Issuer or its
respective successor or successors shall be a party or
parties, or shall prevent any sale, lease or conveyance of
the property of the Issuer as an entirety or substantially
as an entirety; provided, that upon any such consolidation,
--------
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merger, sale, lease or conveyance to which the Issuer is a
party and in which the Issuer is not the surviving
corporation, the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to
be performed or observed by the Issuer and the due and
punctual payment of the principal of and interest on all of
the Securities, according to their tenor, shall be expressly
assumed by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee, by the
corporation formed by such consolidation, or into which the
Issuer shall have been merged, or which shall have acquired
such property.
SECTION 9.2 Successor Corporation Substituted.
---------------------------------
In case of any such consolidation, merger, sale or
conveyance, and following such an assumption by the
successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same
effect as if it had been named herein. Such successor
corporation may cause to be signed, and may issue either in
its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Issuer and subject to
all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the
Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale,
lease or conveyance such changes in phraseology and form
(but not in substance) may be made in the Securities or
Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other
than a conveyance by way of lease) the Issuer or any
successor corporation which shall theretofore have become
such in the manner described in this Article shall be
discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and
dissolved.
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SECTION 9.3 Opinion of Counsel to Trustee. The
-----------------------------
Trustee, subject to the provisions of Sections 6.1 and 6.2,
may receive an Opinion of Counsel, prepared in accordance
with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any
such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
----------------
SECTION 10.1 Satisfaction and Discharge of
-----------------------------
Indenture. (A) If at any time (a) the Issuer shall have
---------
paid or caused to be paid the principal of and interest on
all the Securities of any series Outstanding hereunder and
all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation
all Securities of any series theretofore authenticated and
all unmatured Coupons appertaining thereto (other than any
Securities of such series and Coupons appertaining thereto
which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.9)
or (c) in the case of any series of Securities where the
exact amount (including the currency of payment) of
principal of and interest due on which can be determined at
the time of making the deposit referred to in clause (ii)
below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation shall have become
due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the
Issuer shall have irrevocably deposited or caused to be
deposited with the Trustee as trust funds the entire amount
in cash (other than moneys repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4)
or, in the case of any series of Securities the payments on
which may only be made in Dollars, direct obligations of, or
obligations guaranteed by, the United States of America,
backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest at such
times and in such amounts as will insure the availability of
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cash, or a combination thereof, sufficient in the opinion of
a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay (X) the principal and
interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or
interest is due and payable and (Y) any mandatory sinking
fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture
and the Securities of such series; and if, in any such case,
the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall
cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto and the Issuer's
right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of the
Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or
any of them, and (vi) the obligations of the Issuer under
Section 3.2) and the Trustee, on demand of the Issuer
accompanied by an Officer's Certificate and an Opinion of
Counsel which comply with Section 11.5 and at the cost and
expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this
Indenture; provided, that the rights of Holders of the
--------
Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons held
by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed.
The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such
series. Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Issuer to the Trustee
under Section 6.6 and the obligations of the Trustee under
Section 10.1 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise
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provided in a Board Resolution, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section
2.3. In addition to discharge of the Indenture pursuant to
the next preceding paragraph, in the case of any series of
Securities the exact amounts (including the currency of
payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in
clause (a) below, the Issuer shall be deemed to have paid
and discharged the entire indebtedness on all the Securities
of such a series and the Coupons appertaining thereto on the
91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture
with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as
to (i) rights of registration of transfer and exchange of
Securities of such series and of Coupons appertaining
thereto and the Issuer's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to
receive payments of principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of
such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2) and
the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging
the same, if
(a) with reference to this provision the
Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and
Coupons appertaining thereto (i) cash in an
amount, or (ii) in the case of any series of
Securities the payments on which may only be made
in Dollars, U.S. Government Obligations, maturing
as to principal and interest at such times and in
such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of
independent public accountants expressed in a
written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on
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all Securities of such series and Coupons
appertaining thereto on each date that such
principal or interest is due and payable and (B)
any mandatory sinking fund payments on the dates
on which such payments are due and payable in
accordance with the terms of the Indenture and the
Securities of such series;
(b) such deposit will not result in a breach
or violation of, or constitute a default under,
any agreement or instrument to which the Issuer is
a party or by which it is bound;
(c) the Issuer has delivered to the Trustee
an Opinion of Counsel based on the fact that (x)
the Issuer has received from, or there has been
published by, the Internal Revenue Service a
ruling or (y) since the date hereof, there has
been a change in the applicable Federal income tax
law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the
Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount
and in the same manner and at the same times, as
would have been the case if such deposit,
defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee
an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions
precedent provided for relating to the defeasance
contemplated by this provision have been complied
with.
(C) The Issuer shall be released from its
obligations with respect to the Securities of any series,
and any Coupons appertaining thereto, Outstanding (except
for: (i) the obligations set forth as exceptions above in
paragraph (A); (ii) the obligations to (w) compensate and
indemnify the Trustee, (x) to appoint a successor Trustee,
(y) to repay certain moneys held by the Paying Agent and (z)
to return certain unclaimed moneys held by the Trustee; and
(iii) such obligations of the Issuer as are required by the
Trust Indenture Act) on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance
means that, with respect to the Outstanding Securities of
any series, the Issuer is required only to comply with the
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above obligations and shall have no liability in respect of
any term, condition or limitation set forth in any other
Section, whether directly or indirectly by reason of any
reference to such Section by any other remaining provision
or in any other document and such compliance only to the
above obligations shall not constitute an Event of Default
under Section 5.1. The following shall be the conditions to
application of this subsection C of this Section 10.1:
(a) The Issuer has irrevocably deposited or
caused to be deposited with the Trustee as trust
funds in trust for the purpose of making the
following payments, specifically pledged as
security for, and dedicated solely to, the benefit
of the holders of the Securities of such series
and coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of
Securities the payments on which may only be made
in Dollars, U.S. Government Obligations maturing
as to principal and interest at such times and in
such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of
independent public accountants expressed in a
written certification thereof delivered to the
Trustee, to pay (X) the principal and interest on
all Securities of such series and Coupons
appertaining thereto and (Y) any mandatory sinking
fund payments on the day on which such payments
are due and payable in accordance with the terms
of the Indenture and the Securities of such
series.
(b) Such covenant defeasance shall not cause
the Trustee to have a conflicting interest as
defined in Section 6.8 and for purposes of the
Trust Indenture Act of 1939 with respect to any
securities of the Issuer.
(c) Such covenant defeasance shall not
result in a breach or violation of, or constitute
a default under, this Indenture or any other
agreement or instrument to which the Issuer is a
party or by which it is bound.
(d) The Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect that
the Holders of the Securities of such series and
Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance
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and will be subject to Federal income tax on the
same amounts, in the same manner and at the same
times as would have been the case if such covenant
defeasance had not occurred.
(e) The Issuer shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions
precedent provided for relating to the covenant
defeasance contemplated by this provision have
been complied with.
SECTION 10.2 Application by Trustee of Funds
-------------------------------
Deposited for Payment of Securities. Subject to Section
-----------------------------------
10.4, all moneys deposited with the Trustee pursuant to
Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to
the Holders of the particular Securities of such series and
of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be
segregated from other funds except to the extent required by
law.
SECTION 10.3 Repayment of Moneys Held by Paying
----------------------------------
Agent. In connection with the satisfaction and discharge of
-----
this Indenture with respect to Securities of any series, all
moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities
shall, upon demand of the Issuer, be repaid to it or paid to
the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Moneys Held by Trustee and
------------------------------------
Paying Agent Unclaimed for Two Years. Any moneys or
------------------------------------
Government Securities deposited with or paid to the Trustee
or any paying agent for the payment of the principal of or
interest on any Security of any series or Coupons
appertaining thereto and not applied but remaining unclaimed
for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required
by mandatory provisions of applicable escheat or abandoned
or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder
of the Security of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only
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to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon
cease.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
------------------------
SECTION 11.1 Incorporators, Stockholders,
----------------------------
Officers and Directors of Issuer Exempt from Individual
-------------------------------------------------------
Liability. No recourse under or upon any obligation,
---------
covenant or agreement contained in this Indenture, or in any
Security or Coupons, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, as
such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any
successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the
acceptance of the Securities and the Coupons appertaining
thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole
------------------------------------
Benefit of Parties and Securityholders. Nothing in this
--------------------------------------
Indenture or in the Securities and the Coupons appertained
thereto, expressed or implied, shall give or be construed to
give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the
Securities and the Coupons appertaining thereto, any legal
or equitable right, remedy or claim under this Indenture or
under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of
the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer
--------------------------------
Bound by Indenture. All the covenants, stipulations,
------------------
promises and agreements in this Indenture contained by or in
behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer,
------------------------------
Trustee and Securityholders. Any notice or demand which by
---------------------------
any provision of this Indenture is required or permitted to
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be given or served by the Trustee or by the Holders of
Securities to or on the Issuer may be given or served (i) in
the case of the Trustee, by telecopier, confirmed by
overnight courier, and (ii) in the case of the Holders of
Securities, by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to RJR Nabisco, Inc. at 1301
Avenue of the Americas, New York, New York, 10019, (telefax
212-969-9230), Attention: General Counsel. Any notice,
direction, request or demand by the Issuer or any
Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if
given or made (i) in the case of the Issuer, by telecopier
and confirmed by overnight courier and (ii) in the case of
any Securityholder, at the Corporate Trust Office which is
on the date hereof 120 Wall Street, New York, New York
10043, Attention: Corporate Trust Administration (telefax
212-480-1614).
Where this Indenture provides for notice to
Holders of Registered Securities, such notice shall be
sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first class postage
prepaid, to each such Holder entitled thereto, at his last
address as it appears in the Security register. In any case
where notice to such Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner
of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificates and Opinions
-----------------------------------
of Counsel; Statements to Be Contained Therein. Upon any
----------------------------------------------
application or demand by the Issuer to the Trustee to take
any action under any of the provisions of this Indenture,
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the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based, (c) a statement that, in the opinion of
such person, he has made such examination or investigation
as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an
officer of the Issuer may be based, insofar as it relates to
legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect
to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters,
information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or
representations by an officer of officers of the Issuer,
unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous.
Any certificate, statement or opinion of an
officer of the Issuer or of counsel may be based, insofar as
it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer
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or counsel, as the case may be, knows that the certificate
or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm
of public accountants filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays
----------------------------------
and Holidays. If the date of maturity of interest on or
------------
principal of the Securities of any series or any Coupons
appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not
be made on such date, but may be made on the next succeeding
Business Day (unless otherwise provided in the terms of the
Security) with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of
----------------------------
Indenture with Trust Indenture Act of 1939. If and to the
------------------------------------------
extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 (an
"incorporated provision"), such incorporated provision shall
control.
SECTION 11.8 New York Law to Govern. This
----------------------
Indenture and each Security shall be deemed to be a contract
under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of
such State, regardless of the laws that might otherwise
govern under applicable New York principles of conflicts of
law and except as may otherwise be required by mandatory
provisions of law.
SECTION 11.9 Counterparts. This Indenture may be
------------
executed in any number of counterparts, each of which shall
be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article
------------------
and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
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SECTION 11.11 Securities in a Foreign Currency or
-----------------------------------
in ECU. Unless otherwise specified in an Officers'
------
Certificate delivered pursuant to Section 2.3 of this
Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all series or all series
affected by a particular action at the time Outstanding and,
at such time, there are Outstanding Securities of any series
which are denominated in a coin or currency other than
Dollars (including ECUs), then the principal amount of
Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this
Section 11.11, Market Exchange Rate shall mean the noon
Dollar buying rate in New York City for cable transfers of
that currency as published by the Federal Reserve Bank of
New York; provided, however, in the case of ECUs, Market
-------- -------
Exchange Rate shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the
European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate
is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate
of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of
ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency
in question, which for purposes of the ECU shall be
Brussels, Belgium, or such other quotations or, in the case
of ECU, rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply
in determining the equivalent principal amount in respect of
Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law
for all purposes and irrevocably binding upon the Issuer and
all Holders.
SECTION 11.12 Judgment Currency. The Issuer
-----------------
agrees, to the fullest extent that it may effectively do so
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under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on
the Securities of any series (the "Required Currency") into
a currency in which a judgment will be rendered (the
"Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such
day is not a New York Banking Day, then, to the extent
permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the
New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any
tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum
due under this Indenture. For purposes of the foregoing,
"New York Banking Day" means any day except a Saturday,
Sunday or a legal holiday in The City of New York or a day
on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
SECTION 11.13 Severability of Provisions. Any
--------------------------
prohibition, invalidity or unenforceability of any provision
of this Indenture in any jurisdiction shall not invalidate
or render unenforceable the remaining provisions hereof in
such jurisdiction and shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.14 Company Released from Indenture
-------------------------------
Requirements Under Certain Circumstances. Whenever in this
----------------------------------------
Indenture the Issuer shall be required to do or not to do
anything so long as any of the Securities of any series
shall be Outstanding, the Issuer shall, notwithstanding any
such provision, not be required to comply with such
provisions if it shall be entitled to have this Indenture
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satisfied and discharged pursuant to the provisions hereof,
even though in either case the Holders of any of the
Securities of that series shall have failed to present and
surrender them for payment pursuant to the terms of this
Indenture.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
------------------------------------------
SECTION 12.1 Applicability of Article. The
------------------------
provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial
-----------------------------
Redemptions. Notice of redemption to the Holders of
-----------
Registered Securities of any series to be redeemed as a
whole or in part at the option of the Issuer shall be given
by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption to such Holders of
Registered Securities of such series at their last addresses
as they shall appear upon the registry books. Notice of
redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act of 1939, shall be given by
mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 prior
to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such
purpose). Notice of redemption to all other Holders of
Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York
and in an Authorized Newspaper in London (and, if required
by Section 3.9, in an Authorized Newspaper in Luxembourg),
in each case, once in each of three successive calendar
weeks, the first publication to be not less than 30 nor more
than 60 days prior to the date fixed for redemption. Any
notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or
not the Holder receives the notice. Failure to give notice
by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or
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in part shall not affect the validity of the proceedings for
the redemption of any other Security of such series.
The notice of redemption to each such Holder shall
specify the principal amount of each Security of such series
held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining
thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest
accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date
interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is
to be redeemed in part only the notice of redemption shall
state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any
series to be redeemed at the option of the Issuer shall be
given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more
paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called
for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If
less than all the outstanding Securities of a series are to
be redeemed, the Issuer will deliver to the Trustee at least
15 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of
this Section 12.2 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of Securities to be redeemed.
In case of a redemption at the election of the Issuer prior
to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this
Section, an Officer's Certificate stating that such
redemption is not prohibited by such restriction.
83
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If less than all the Securities of a series are to
be redeemed, the Trustee shall select, in such manner as it
shall deem appropriate and fair, Securities of such Series
to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any
multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the Securities of such series selected
for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions
relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
If all of the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee
at least 10 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first
paragraph of this Section 12.2 an Officers' Certificate
stating that all such Securities are to be redeemed. In
case of a redemption at the election of the Issuer prior to
the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this
Section, an Officer's Certificate stating that such
redemption is not prohibited by such restriction.
SECTION 12.3 Payment of Securities Called for
--------------------------------
Redemption. If notice of redemption has been given as above
----------
provided, the Securities or portions of Securities specified
in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the
Issuer shall default in the payment of such Securities at
the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue, and the
unmatured Coupons, if any, appertaining thereto shall be
void and, except as provided in Sections 6.5 and 10.4, such
Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right
in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto
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maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date
fixed for redemption; provided that payment of interest
--------
becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.3 and 2.7
hereof.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal
shall, until paid or duly provided for, bear interest from
the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant Coupons maturing after the date fixed for
redemption, the surrender of such missing Coupon or Coupons
may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they
may require to save each of them harmless.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Security or
Securities of such series (with Coupons attached, if any),
of authorized denominations, in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from
------------------------------------
Eligibility for Selection for Redemption. Securities shall
----------------------------------------
be excluded from eligibility for selection for redemption if
they are identified by registration and certificate number
in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such written statement
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
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SECTION 12.5 Mandatory and Optional Sinking
------------------------------
Funds. The minimum amount of any sinking fund payment
-----
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of the Securities of any series is herein
referred to as an "optional sinking fund payment". The date
on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of
Securities in cash, the Issuer may at its option (a) deliver
to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or
receive credit for Securities of such series (not previously
so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the
Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not
previously so credited) redeemed by the Issuer through any
optional redemption provision contained in the terms of such
series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
On or before the sixtieth day next preceding each
sinking fund payment date for any series, the Issuer will
deliver to the Trustee an Officer's Certificate (which need
not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series and the
basis for such credit, (b) stating that none of the
Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred
(which have not been waived or cured) and are continuing and
(d) stating whether or not the Issuer intends to exercise
its right to make an optional sinking fund payment with
respect to such series and, if so, specifying the amount of
such optional sinking fund payment which the Issuer intends
to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the
Issuer to be entitled to credit therefor as aforesaid which
have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the
86
<PAGE>
Trustee with such Officer's Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such
Officer's Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the
Issuer, on or before any such sixtieth day, to deliver such
Officer's Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in
respect thereof and (ii) that the Issuer will make no
optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory
or optional or both) to be made in cash on the next
succeeding sinking fund payment date plus any unused balance
of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign
Currency or ECU) or a lesser sum if the Issuer shall so
request with respect to the Securities of any particular
series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together
with accrued interest to the date fixed for redemption. If
such amount shall be $50,000 (or the equivalent thereof in
any Foreign Currency or ECU) or less and the Issuer makes no
such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign
Currency or ECU) is available. The Trustee shall select, in
the manner provided in Section 12.2, for redemption on such
sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer)
inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this
Section if they are identified by registration and
certificate number in an Officer's Certificate delivered to
the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such Officer's
Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control
with the Issuer. The Trustee, in the name and at the
87
<PAGE>
expense of the Issuer (or the Issuer, if it shall so request
the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially
the manner provided in Section 12.2 (and with the effect
provided in Section 12.3) for the redemption of Securities
of such series in part at the option of the Issuer. The
amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series
shall be added to the next cash sinking fund payment for
such series and, together with such payment, shall be
applied in accordance with the provisions of this Section.
Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such
series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series
at maturity.
On or before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date
fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be
redeemed any Securities of a series with sinking fund moneys
or mail any notice of redemption of Securities for such
series by operation of the sinking fund during the
continuance of a default in payment of interest on such
Securities or of any Event of Default except that, where the
mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such
default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all
such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured
on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be
applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such
Securities.
88
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of the date first written above.
RJR NABISCO, INC., ISSUER
By:
-----------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
------------------------
Name:
Title:
CITIBANK, N.A., as Trustee
By:
---------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-----------------------
Name:
Title:
89
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of _______, 1995 before me personally
came ________________ to me personally known, who, being by me duly
sworn, did depose and say that he resides at ___________
that he is a _____________ of RJR NABISCO, INC., one of the
corporations described in and which executed the above instrument;
and that he signed his name thereto by authority of the Board of
Directors of said corporation.
[NOTARIAL SEAL]
-----------------------
Notary Public
90
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of ______, 1995 before me personally
came __________ to me personally known, who, being by me
duly sworn, did depose and say that he resides at _________
that he is a _____________ of Citibank, N.A., one of
the corporations described in and which executed the above
instrument; that she knows the corporate seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that she
signed her name thereto by like authority.
[NOTARIAL SEAL]
------------------------
Notary Public
91
<PAGE>
FORM OF NOTE [DEBENTURE]
CUSIP: ___________
No. ___ $___________
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
RJR NABISCO, INC.
_____% [Note][Debenture] due ____
RJR NABISCO, INC., a Delaware corporation (the "Issuer", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, at the office or agency of the Issuer in New
York, New York, the principal sum of $______________ Dollars on
_________, in the coin or currency of the United States, and to pay
interest, [monthly][quarterly][semi-annually] on ______________ (each an
"Interest Payment Date") each year, commencing ___________, on said
principal sum at said office or agency, in like coin or currency, at the
rate per annum specified in the title of this [Note][Debenture], from
the Interest Payment Date next preceding the date of this
[Note][Debenture] to which interest has been paid or duly provided for,
unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this [Note][Debenture], or
unless no interest has been paid or duly provided for on these
[Notes][Debentures], in which case from ___________, until payment of
said principal sum has been made or duly provided for; provided, that
--------
payment of interest may be made at the option of the Issuer by check
mailed to the address of the person entitled thereto as such address
shall appear on the Security register or by wire transfer.
<PAGE>
Notwithstanding the foregoing, if the date hereof is after
______________ and before the following Interest Payment Date, this
[Note][Debenture] shall bear interest from such Interest Payment Date;
provided, that if the Issuer shall default in the payment of interest
--------
due on such Interest Payment Date, then this [Note][Debenture] shall
bear interest from the next preceding Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been
paid or duly provided for on these [Notes][Debentures], from
____________. The interest so payable on any Interest Payment Date
will, subject to certain exceptions provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this
[Note][Debenture] is registered at the close of business on the
____________ next preceding such Interest Payment Date, whether or not
such day is a business day.
Reference is made to the further provisions of this
[Note][Debenture] set forth on the reverse hereof. Such further
provisions shall for all purposes have the same effect as though fully
set forth at this place.
This [Note][Debenture] shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall
have been signed by the Trustee under the Indenture referred to on the
reverse hereof.
IN WITNESS WHEREOF, RJR NABISCO, INC. has caused this
instrument to be signed manually or by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
Dated:
RJR NABISCO, INC.
By_________________________
Name:
Title:
2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: CITIBANK, N.A.,
as Trustee
By______________________
Authorized Officer
3
<PAGE>
REVERSE OF [NOTE][DEBENTURE]
RJR NABISCO, INC.
_____% [Note][Debenture] due ____
This [Note][Debenture] is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the
issuer (hereinafter called the "Securities") of the series hereinafter
specified, all issued or to be issued under and pursuant to an amended
and restated indenture dated as of ________, 1995 (herein called the
"Indenture"), duly executed and delivered by the Issuer to Citibank,
N.A., as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Issuer and the Holders of
the Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at
different rates, may be subject to different redemption provisions (if
any), may be subject to different sinking, purchase or analogous funds
(if any) and may otherwise vary as in the Indenture provided. This
[Note][Debenture] is one of a series designated as the _______%
[Notes][Debentures] due ____ of the Issuer, limited in aggregate
principal amount to $___________.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Issuer shall pay interest on overdue
principal and, to the extent lawful, on overdue installments of interest
at the rate per annum borne by this [Note][Debenture]. If a payment
--- -----
date is not a business day at a place of payment, payment may be made at
that place on the next succeeding day that is a business day, and no
interest shall accrue for the intervening period.
In case an Event of Default with respect to the _____%
[Notes][Debentures] due ____, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and
upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority
in aggregate principal amount of the Securities at the time Outstanding
(as defined in the Indenture) of all series to be affected (voting as
one class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
--------
supplemental indenture shall (i) extend the final maturity of any
4
<PAGE>
Security, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of any interest thereon, or reduce any amount
payable on redemption thereof or make the principal thereof (including
any amount in respect of original issue discount), or interest thereon
payable in any coin or currency other than that provided in the
Securities and Coupons or in accordance with the terms thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 of the Indenture or the amount
thereof provable in bankruptcy pursuant to Section 5.2 of the Indenture,
or alter the provisions of Sections 11.11 or 11.12 of the Indenture, or
impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder in each case without the
consent of the Holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the
Holder of each Security affected. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding
the Securities of any series, the Holders of a majority in aggregate
principal amount Outstanding of the Securities of such series (or, in
the case of certain defaults or Events of Default, all or certain series
of the Securities) may, on behalf of the Holders of all the Securities
of such series (or all or certain series of the Securities, as the case
may be), in certain events waive all defaults with respect to such
series (or with respect to all or certain series of the Securities, as
the case may be) and rescind and annul a declaration accelerating the
maturity of such Securities and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon. The preceding
sentence shall not apply to a default in the payment of the principal of
or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the Holder of this [Note][Debenture] (unless
revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this
[Note][Debenture] and any [Notes][Debentures] which may be issued in
exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this [Note][Debenture] or such other
[Notes][Debentures].
No reference herein to the Indenture and no provision of this
[Note][Debenture] or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay
the principal of and any premium and interest on this [Note][Debenture]
in the manner, at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
The [Notes][Debentures] are issuable initially only in
registered form without coupons in denominations of $_____ and any
multiple of $_____ at the office or agency of the Issuer in the Borough
of Manhattan, The City of New York, and in the manner and subject to the
5
<PAGE>
limitations provided in the Indenture, but without the payment of any
service charge, [Notes][Debentures] may be exchanged for a like
aggregate principal amount of [Notes][Debentures] of other authorized
denominations.
This [Note][Debenture] will not be redeemable prior to
maturity.
Upon due presentment for registration of transfer of this
[Note][Debenture] at the office or agency of the Issuer in the Borough
of Manhattan, The City of New York, a new [Note][Debenture] or
[Notes][Debentures] of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the
absolute owner of this [Note][Debenture] (whether or not this
[Note][Debenture] shall be overdue and notwithstanding any notation of
ownership or other writing hereon made by anyone other than the Issuer
or the Trustee or any authorized agent of the Issuer or the Trustee),
for the purpose of receiving payment of, or on account of, the principal
hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental
thereto or in any [Note][Debenture], or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present, or future, of
the Issuer or of any successor corporation, either directly or through
the Issuer or any successor corporation, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance hereof and as part
of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
6
Exhibit 5.1
June 30, 1995
RJR Nabisco, Inc.
1301 Avenue of the Americas
New York, NY 10019
Ladies and Gentlemen:
I have acted as counsel for RJR Nabisco, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement
on Form S-3 (the "Registration Statement") for the registration of the sale
from time to time of debt securities to be issued by the Company (the "Debt
Securities"). This opinion is being given pursuant to the requirements for
the Registration Statement.
I have examined the corporate proceedings of the Company in
connection with the Registration Statement and the transactions contemplated
thereby, as well as the Registration Statement and the exhibits thereto,
including the form of amended and restated Indenture to be entered into by the
Company and Citibank, N.A., as trustee (the "Indenture"), in respect of the
Debt Securities. I have also examined originals or copies, certified or
otherwise identified to my satisfaction of such other documents, evidence of
corporate action and other instruments and have made such other investigations
of law and fact, as I have deemed necessary or appropriate for the purpose of
this opinion. As to questions of fact relevant to this opinion, I have relied
upon certificates or written statements from officers and other appropriate
representatives of the Company and its subsidiaries or public officials. In
all such examinations I have assumed the genuineness of all signatures, the
authority to sign, and the authenticity of all documents submitted to me as
originals. I have also assumed the conformity with the originals of all
documents submitted to me as copies.
<PAGE>
RJR Nabisco, Inc.
June 30, 1995
Page 2
Based upon and subject to the foregoing, and to the qualifications
hereinafter specified, I am of the opinion that when the Debt Securities have
been duly authorized and executed by the Company and duly authenticated, as
provided in the Indenture, and when delivered against payment therefor in the
manner described in the Registration Statement, including the prospectus and
any prospectus or pricing supplement relating to any such sale, the Debt
Securities will be duly authorized and will be legally valid and binding
obligations of the Company in accordance with, and subject to, their terms and
the terms of the Indenture.
The opinions set forth above are subject to the effect of any
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally and of
general principles of equity whether applied by a court of law or equity.
The opinions set forth herein relate solely to the laws of the
State of New York, the General Corporation Law of the State of Delaware and
the federal laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of my name under the heading "Legal
Matters" in the prospectus forming a part of the Registration Statement.
Very truly yours,
Jo-Ann Ford
Senior Vice President
Law and Secretary
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of RJR Nabisco, Inc. on Form S-3 (the "Registration Statement") of our report
dated January 30, 1995 (February 21, 1995 as to Notes 11 and 17) appearing in
RJR Nabisco, Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
We also consent to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
New York, New York
June 30, 1995
EXHIBIT 25.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a
director or officer, or both, of RJR NABISCO, INC., a Delaware corporation
(the "Company"), do hereby make, constitute and appoint Jo-Ann Ford, H.
Colin McBride and David F. Sternlieb, and each of them, attorneys-in-fact
and agents of the undersigned with full power and authority of substitution
and resubstitution, in any and all capacities, to execute for and on behalf
of the undersigned the Registration Statement on Form S-3 relating to the
shelf debt securities of the Company, and any and all pre-effective and
post-effective amendments or supplements to the foregoing Registration
Statement and any other documents and instruments incidental thereto, and
to deliver and file the same, with all exhibits thereto, and all documents
and instruments in connection therewith, with the Securities and Exchange
Commission, and with each exchange on which any class of securities of the
Company is registered, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act
and thing that said attorneys-in-fact and agents, and each of them, deem
advisable or necessary to enable the Company to effectuate the intents and
purposes hereof, and to undersigned hereby fully ratify and confirm all
that said attorneys-in-fact and agents, or any of them, or their or his or
her substitute or substitutes, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, each of the undersigned has subscribed his or her
name, this ___ day of ____________, 19__.
/s/ Charles M. Harper Chairman of the Board, Chief Executive
- ------------------------------
Charles M. Harper Officer and President, Director
/s/ R.S. Roath Senior Vice President and Chief
- ------------------------------
Robert S. Roath Financial Officer
/s/ Richard G. Russell Senior Vice President and Controller
- ------------------------------
Richard G. Russell
<PAGE>
/s/ John R. Chain, Jr. Director
- ------------------------------
John R. Chain, Jr.
/s/ Julius L. Chambers Director
- ------------------------------
Julius L. Chambers
/s/ John L. Clendenin Director
- ------------------------------
John L. Clendenin
/s/ H. John Greeniaus Director
- ------------------------------
H. John Greeniaus
/s/ Ray J. Groves Director
- ------------------------------
Ray J. Groves
Director
- ------------------------------
James W. Johnston
/s/ John G. Medlin, Jr. Director
- ------------------------------
John G. Medlin, Jr.
/s/ Rozanne L. Ridgeway Director
- ------------------------------
Rozanne L. Ridgway
Exhibit 26.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. Employer
Identification No.)
399 Park Avenue, New York, New York 10043
(Address of principal executive offices) (Zip Code)
_______________________
RJR NABISCO, INC.
(Exact name of obligor as specified in its charter)
Delaware 56-0950247
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) dentification No.)
1301 Avenue of the Americas
New York, New York 10019
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. List of exhibits.
Exhibit 1 - Copy of Articles of Association of the Trustee,
as now in effect. (Exhibit 1 to T-1 to Registration
Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee
to commence business. (Exhibit 2 to T-1 to Registration
Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee.
(Exhibit 4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section
321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-
1 to Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of
Citibank, N.A. (as of March 31, 1995 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
2
<PAGE>
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the Trustee, Citibank, N.A., a national banking association organized
and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York
and State of New York, on the 29th day of June, 1995.
CITIBANK, N.A.
By /s/ Robert T. Kirchner
----------------------
Robert T. Kirchner
Vice President
3
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on March 31,
1995, published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter Number 1461
Comptroller of the Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash and balances due from de-
pository institutions: Noninterest-bearing
balances and currency and coin . . . . . . . . . . . . . $ 7,174,000
Interest-bearing balances . . . . . . . . . . . . . . . 8,467,000
Securities: Held-to-maturity securities . . . . . . . . 3,981,000
Available-for-sale securities . . . . . . . . . . . . . 12,042,000
Federal funds sold and
securities purchased under agreements to
resell in domestic offices of the
bank and of its Edge and Agree-
ment subsidiaries, and in IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . 5,570,000
Securities purchased under
agreements to resell . . . . . . . . . . . . . . . . . . 489,000
Loans and lease financing receiv-
ables: Loans and leases, net of un-
earned income . . . . . . . . $ 132,901,000
LESS: Allowance for loan
and lease losses . . . . . . . 4,071,000
-------------
Loans and leases, net of un-
earned income, allowance,
and reserve . . . . . . . . . . . . . . . . . . . . . . 128,830,000
Trading assets . . . . . . . . . . . . . . . . . . . . . 46,711,000
Premises and fixed assets (includ-
ing capitalized leases) . . . . . . . . . . . . . . . . 3,393,000
Other real estate owned . . . . . . . . . . . . . . . . 1,272,000
Investments in unconsolidated
subsidiaries and associated com-
panies . . . . . . . . . . . . . . . . . . . . . . . . . 1,076,000
Customers' liability to this bank on
acceptances outstanding . . . . . . . . . . . . . . . . 1,557,000
Intangible assets . . . . . . . . . . . . . . . . . . . 14,000
Other assets . . . . . . . . . . . . . . . . . . . . . . 7,861,000
-------------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . $ 228,437,000
=============
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . $ 32,712,000
Noninterest-
bearing . . . . . . . . . . . $ 11,340,000
Interest-
bearing . . . . . . . . . . . 21,372,000
------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . 117,885,000
Noninterest-
bearing . . . . . . . . . . . 7,763,000
Interest-
bearing . . . . . . . . . . . 110,122,000
-----------
Federal funds purchased and se-
curities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . 2,442,000
Securities sold under agree-
ments to repurchase . . . . . . . . . . . . . . . . . . 806,000
Trading liabilities . . . . . . . . . . . . . . . . . . 33,310,000
Other borrowed money:
With original maturity of one
<PAGE>
year or less . . . . . . . . . . . . . . . . . . . . . . 7,746,000
With original maturity of more
than one year . . . . . . . . . . . . . . . . . . . . . 3,995,000
Mortgage indebtedness and obli-
gations under capitalized leases . . . . . . . . . . . . 90,000
Bank's liability on acceptances ex-
ecuted and outstanding . . . . . . . . . . . . . . . . . 1,567,000
Notes and debentures subordi-
nated to deposits . . . . . . . . . . . . . . . . . . . 5,700,000
Other liabilities . . . . . . . . . . . . . . . . . . . 7,616,000
-------------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . $213,869,000
============
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . $ 751,000
Surplus . . . . . . . . . . . . . . . . . . . . . . . . 6,649,000
Undivided profits and capital re-
serves . . . . . . . . . . . . . . . . . . . . . . . . . 7,566,000
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . 135,000
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . . . . . 533,000)
-------------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . $ 14,568,000
-------------
TOTAL LIABILITIES LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . $ 228,437,000
=============
I, Roger W. Trupin, Controller of the above-named bank do hereby declare
that this Report of Condition is true and correct to the best of my
knowledge and belief.
ROGER W. TRUPIN
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of
our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
PAUL J. COLLINS |
CHRISTOPHER J. STEFFEN | DIRECTORS
WILLIAM |
R. RHODES |
