UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
RJR NABISCO HOLDINGS CORP.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
74960K 876
(CUSIP Number)
Marc Weitzen, Esq.
Gordon Altman Butowsky Weitzen Shalov & Wein
114 West 47th Street, New York, New York 10036
(212) 626-0888
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications
February 28, 1996
(Date of Event which Requires Filing of this Statement)
Check the following box if a fee is being paid with the statement. (A
fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five
percent or less of such class.) (See Rule 13d-7).
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 74960K 876 Page of 18 Pages
1 NAME OF REPORTING PERSON
High River Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) //
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
//
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
10,092,300
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
10,092,300
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,092,300
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.7%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 74960K 876 Page of 18 Pages
1 NAME OF REPORTING PERSON
Riverdale Investors Corp., Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) //
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC,AF,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
//
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
533,500
8 SHARED VOTING POWER
10,092,300
9 SOLE DISPOSITIVE POWER
533,500
10 SHARED DISPOSITIVE POWER
10,092,300
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,625,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.9%
14 TYPE OF REPORTING PERSON*
CO
SCHEDULE 13D
CUSIP No. 74960K 876 Page of 18 Pages
1 NAME OF REPORTING PERSON
Barberry Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) //
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC,OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
//
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
140,000
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
140,000
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
140,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
less than one tenth (1/10) of one percent.
14 TYPE OF REPORTING PERSON*
CO
SCHEDULE 13D
CUSIP No. 74960K 876 Page of 18 Pages
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) //
(b) /X/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
//
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
10,765,800
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
10,765,800
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,765,800
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
/X/
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.9%
14 TYPE OF REPORTING PERSON*
1N
SCHEDULE 13D
Item 1. Security and Issuer
This Schedule 13D relates to the common stock, par value $0.01
per share ("Shares"), of RJR Nabisco Holdings Corp., a Delaware
corporation (the "Issuer" or "RJR Nabisco"). The address of the principal
executive offices of the Issuer is 1301 Avenue of the Americas, New York,
New York 10019
Item 2. Identity and Background
The persons filing this statement are High River Limited
Partnership, a Delaware limited partnership ("High River"), Riverdale
Investors Corp. Inc., a Delaware corporation ("Riverdale"), Barberry
Corp., a Delaware corporation ("Barberry) and Carl C. Icahn, a citizen of
the United States of America (collectively, the "Registrants"). The
principal business address and the address of the principal office of the
Registrants is 100 South Bedford Road, Mount Kisco, New York 10549, with
the exception of Carl C. Icahn, whose principal business address is c/o
Icahn Associates Corp., 114 West 47th Street, New York, New York 10036.
Riverdale is the general partner of High River. Riverdale is
wholly owned by Carl C. Icahn. Barberry is wholly owned by Carl C. Icahn.
Registrants and the Brooke Entities (as defined in Item 5),
may be deemed to be a "group" with the meaning of Section 13(d)(3)
promulgated under the Securities Exchange Act of 1934, as amended (the
"Act").
High River is primarily engaged in the business of investing
in securities. Riverdale is primarily engaged in the business of owning
real estate and acting as general partner of High River. Barberry is
primarily engaged in the business of investing in securities. Carl C.
Icahn's present principal occupation or employment is acting as President
and a Director of Starfire Holding Corporation, a Delaware corporation
("Starfire"), and Chairman of the Board and Director of various of
Starfire's subsidiaries, including ACF Industries, Incorporated, a New
Jersey corporation ("ACF"). Starfire, whose principal business address is
100 South Bedford Road, Mount Kisco, New York 10549, is primarily engaged
in the business of holding, either directly or through its subsidiaries,
a majority of the common stock of ACF. ACF is primarily engaged in the
business of leasing, selling and manufacturing railroad freight and tank
cars.
The name, citizenship, present principal occupation or
employment and business address of each director and executive officer of
Riverdale and Barberry is set forth in Schedule A attached hereto.
Carl C. Icahn is the sole stockholder and director of
Riverdale and Barberry. As such, Mr. Icahn is in a position directly and
indirectly to determine the investment and voting decisions made by
Registrants.
Neither High River, Riverdale, Barberry, Mr. Icahn, nor any
executive officer or director of any of the Registrants, has, during the
past five years, (a) been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or (b) been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting, or mandating activities subject to, Federal or State
securities laws or a finding of any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of the 10,765,800 Shares
purchased by the Registrants, as set forth in the following paragraphs,
was $336,043,265.50 (including commissions). The source of funding for the
purchase of these Shares was general working capital of the Registrants
and funds borrowed pursuant to margin accounts. A copy of all forms of
margin agreements pertinent to this filing on Schedule 13D is attached
hereto as Exhibit 2, and incorporated herein by reference.
On September 21, 1995, Barberry Corp. purchased 140,000 shares for
an aggregate purchase price of $3,917,060 (including commissions). Such
shares were purchased with Barberry's working capital and funds borrowed
by Barberry in its margin account with Smith Barney Inc. ("Smith Barney").
Between July 21, 1995 and August 22, 1995, Riverdale purchased
533,500 Shares for an aggregate purchase price of $14,600,935.30
(including commissions). Such Shares were purchased with Riverdale's
working capital and the funds Riverdale borrowed pursuant to a margin
account in the regular course of business with Smith Barney.
Between July 24, 1995 and March 11, 1996, High River purchased
10,092,300 Shares for an aggregate purchase price of $317,525,270.12
(including commissions). Such Shares were purchased with general working
capital of High River and funds borrowed pursuant to margin accounts with
Lehman Brothers ("Lehman"), Smith Barney and Reynders Grey ("Reynders").
Margin accounts with Reynders Grey clear through Wagner Stott Clearing
Corp. ("Wagner Stott"), National Financial Services Corporation ("NFSC")
and Spear Leeds Kellogg ("Spear Leeds").
In addition, 2,951,000 of the Shares acquired by High River
were loaned by High River to Tortoise Corp. on December 21, 1995 and used
by Tortoise to further secure borrowings by Tortoise to Internationale
Nederlanden Capital Corporation ("ING"), which borrowings are secured by
the securities of any number of issuers.
Item 4. Purpose of Transaction
Registrants acquired Shares because of their belief that the
market price of the Shares does not reflect their inherent value,
especially if the Issuer spins off its holdings of Nabisco securities.
Registrants believe that the apparent success of the Brooke Entities (as
defined more fully in Item 5, the "Brooke Entities") in the consent
solicitation enhances the likelihood of the election of the ten nominees
of Brooke (the "Brooke Nominees") to the Board of Directors of the Issuer
which, in turn, enhances the likelihood of the spinoff.
Registrants are parties with Brooke Group Ltd. ("Brooke
Group") and BGLS Inc., ("BGLS") to the High River Agreement (the "High
River Agreement") and are parties with the New Valley Corporation ("New
Valley") and ALKI Corp. ("ALKI") to the New Valley Agreement (the "New
Valley Agreement"). The High River Agreement and the New Valley
Agreement, (the "Agreements") which are described more fully in Item 6 of
this 13D, relate to, among other things, (1) the parties' acquisition of
not less than a specified number of Shares, (2) the parties' agreement not
to sell Shares prior to specified dates, (3) the parties' agreement not to
enter into certain transactions with respect to the Shares or with the
Issuer and (4) Registrants' support of the Brooke Entities' solicitation
of consents from the Issuer's stockholders to stockholder action without
a meeting and the Brooke Entities' solicitation of proxies from the
Issuer's stockholders. The descriptions of the Agreements in this Item 4
and in Item 6 of this Schedule 13D are qualified in their entirety by the
Agreements themselves which are appended hereto as Exhibits 3 and 4.
On or about March 4, 1996, Brooke commenced the solicitation
of proxies from stockholders of the Issuer for the election of the Brooke
Nominees to the Board of Directors of the Issuer at the Company's 1996
Annual Meeting of Stockholders (the "Annual Meeting"). Registrants intend
to vote for the Brooke Nominees at such Annual Meeting.
Registrants and the Brooke Entities consult with each other
from time to time concerning the Issuer, their Shares and purchases of
additional Shares and consider, among other things, actions that may
enhance the likelihood that the Issuer may spinoff Nabisco. Except as set
forth herein and in the Agreements, however, Registrants and the Brooke
Entities have no obligations to, or agreements or understandings with,
each other concerning the issuer or its Shares.
The Brooke Entities have informed the Registrants that they
have been engaged in discussions with various individuals and groups with
a view to (a) providing additional support to their position that the
spinoff of Nabisco is appropriate and prudent at the present time and (b)
countering the Issuer's contention that under the current circumstances,
including but not limited to, the Issuer's expectation that such a spinoff
will foster additional litigation, the spinoff of Nabisco should be
delayed into the indefinite future.
Registrants and the Brooke Entities may be deemed to be a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended. The Brooke Entities are filing a separate 13D with
respect to their ownership of Issuer's Shares.
Except as set forth herein, to the knowledge of each of the
Registrants, none of the Registrants listed on Schedule A hereto has any
present plans or intentions which would result in or relate to any of the
transactions described in paragraphs (a) through (j) of this Item 4.
Item 5. Interest in Securities of the Issuer
(a) As of the close of business on March 11, 1996, Registrants
may be deemed to beneficially own in the aggregate 10,765,800 Shares
representing approximately 3.9% of the Issuer's outstanding Shares (based
upon the 272,982,782 Shares stated to be outstanding as of February 29,
1996, by the Issuer in the Issuer's proxy statement filed with the
Securities and Exchange Commission (the "SEC") on March 6, 1996).
High River has sole voting power and sole dispositive power
with regard to 10,092,300 shares. Riverdale has sole voting power and
sole dispositive power with regard to 533,500 shares. Riverdale also has
shared voting power and shared dispositive power with regard to 10,092,300
shares. Barberry has sole voting power and sole dispositive power with
regard to 140,000 shares. Carl C. Icahn has shared voting power and
shared dispositive power with regard to 10,765,800 shares.
The Brooke Entities, which term comprises Brooke, BGLS, a
wholly owned subsidiary of Brooke, Liggett Group Inc., a wholly owned
subsidiary of BGLS ("Liggett"), New Valley, ALKI, a wholly owned
subsidiary of New Valley and Bennett S. Lebow, the beneficial owner of
56.5% of the common stock of Brooke, have informed the Registrants that as
of the close of business on March 8, 1996, the Brooke Entities
beneficially own an aggregate of 5,162,150 Shares, which constitutes
approximately 1.9% of the Shares outstanding.
Transactions in the Common Stock by any of the Registrants
effected during the past sixty (60) days are described in Schedule B,
attached hereto and are incorporated herein by reference. All such
transactions were effected in the open market on national securities
exchanges.
Item 6. Contracts, Arrangements, Understandings or Relationship with
Respect to Securities of the Issuer
The High River Agreement was entered into on October 17, 1995,
and amended on November 5, 1995. High River agreed in the High River
Agreement to grant a written consent to a spinoff resolution (the "Spinoff
Resolution") and bylaw amendment (the "Bylaw Amendment") with respect to
all Shares held by it, and to grant a proxy with respect to all such
Shares in the event that Brooke or BGLS seeks to replace the incumbent
Board of Directors of RJR Nabisco at the 1996 annual meeting of
stockholders with a slate of directors committed to effect the spinoff.
Brooke and BGLS agreed in the High River Agreement to include, in any
solicitation statement relating to any solicitation of (i) stockholder
demands to call a special meeting, (ii) written consents or (iii) proxies,
in respect of a proposal to elect an opposing slate of directors, a pledge
to the effect that the Brooke Entities (A) will not engage in certain
mergers, material sales of stock or assets or other transactions
(including a sale of Liggett or Shares to RJR Nabisco), providing a
material benefit to the Brooke Entities which is not available to other
stockholders of RJR Nabisco (each, a "Business Combination"), other than
a Business Combination consummated simultaneously with or subsequent to a
spinoff of RJR Nabisco's remaining equity interest in Nabisco or another
transaction providing substantially equivalent value to stockholders
("Permitted Business Combination") (I) prior to the 1996 annual meeting of
RJR Nabisco stockholders, or earlier if the Brooke Group is unsuccessful
in (a) a solicitation of stockholder demands to call a special meeting,
(b) a solicitation of consents or proxies to approve certain proposals or
(c) having its nominees elected to constitute a majority of RJR Nabisco's
directors, or (II) during such time as nominees of the Brooke Group
constitute a majority of the directors of RJR Nabisco; (B) prior to the
consummation of a spinoff of Nabisco, will not exercise management control
over Nabisco or Nabisco, Inc. ("Nabisco Inc.") or become involved in the
ordinary course of its business and will use its best efforts to ensure
that a majority of the present directors of Nabisco and Nabisco, Inc.
remain as directors; (C) will halt any solicitation of stockholders
demands, consents or proxies if the RJR Nabisco Board effects a spinoff of
Nabisco or a substantially equivalent transaction. Similarly, High River
agreed not to engage in or propose any Business Combination prior to the
earliest of (x) the later of the 1997 annual meeting of stockholders of
RJR Nabisco and the first anniversary of the termination of the High River
Agreement (the "Reference Date"), (y) any termination of the High River
Agreement that occurs at or after certain termination events relating to
failures or an inability to effect the transactions contemplated by the
High River Agreement ("Termination Events") or (z) any termination of the
High River Agreement by Brooke or BGLS, or the New Valley Agreement (as
defined below) by New Valley or ALKI, at a time when High River is not in
material breach of its obligations.
The High River Agreement will automatically terminate on
October 17, 1996 or upon the earlier termination of the New Valley
Agreement by High River. In addition, any party to the High River
Agreement may terminate it at any time, although the terminating party
will be required to pay a fee of $50 million to the nonterminating party
if no Termination Event has occurred and the nonterminating party is not
in material breach of its obligations. The High River Agreement also
provides that any party may terminate the High River Agreement and be
entitled to receive a fee of $50 million from the nonterminating party if
the nonterminating party is in material breach of its obligations and no
Termination Event has occurred. The High River Agreement further provides
that BGLS will be required to pay a $50 million fee to High River upon the
consummation of a Business Combination (including a Permitted Business
Combination) between the Brooke Entities and RJR Nabisco if (x) such
Business Combination is consummated prior to the Reference Date, (y) a
legally binding agreement to enter into a Business Combination is entered
into prior to the Reference Date and such Business Combination is
consummated prior to the second anniversary of the date of such agreement
or (z) nominees of Brooke are elected to constitute a majority of the
directors of RJR Nabisco prior to the Reference Date and a Business
Combination is consummated prior to the fifth anniversary of the date of
such election. Finally, the High River Agreement provides that High River
will be entitled to a payment equal to 20% of the net profit with respect
to Common Stock held or sold by New Valley, ALKI or the Brooke Entities,
after deduction of certain expenses, including the costs of this
solicitation and certain proxy solicitations by the Brooke Entities and
the costs of acquiring the Shares (all of which expenses will be borne by
New Valley, ALKI or the Brooke Group). Notwithstanding any such
termination, the obligations of the Brooke Entities and of High River not
to engage in a Business Combination with RJR Nabisco or the other
activities described above will continue for the periods described above.
The foregoing summary of the High River Agreement is qualified
in its entirety by reference to the text of such agreement, which is
attached hereto as Exhibit 3 and is incorporated herein by reference.
Also on October 17, 1995, New Valley and ALKI, a subsidiary of
New Valley, entered into the New Valley Agreement with High River, (as
amended by the letter agreement dated October 17, 1995 and further amended
by the letter agreement dated November 5, 1995). Pursuant to the New
Valley Agreement, New Valley sold 1,611,550 Shares to High River for an
aggregate purchase price of $51,000,755, thereby approximately equalizing
the number of Shares and total investment therein by the parties. In
addition, the parties agreed that each of New Valley and ALKI, on the one
hand, and High River and its affiliates, on the other hand, would invest
up to approximately $150 million in Shares, and may invest up to
approximately $250 million in Shares or more in order to maximize profits.
The obligations of the parties to make any investments is subject to their
ability to obtain and maintain margin loans (using the Shares purchased by
them as collateral) to fund the purchases, and to certain provisions of
the New Valley Agreement which do not require any party to purchase Shares
to the extent the purchase price would exceed certain hurdles ($35.50 per
share in respect of the first $150 million in investments by each party,
and $31.00 per share in respect of the next $100 million in investments).
New Valley and ALKI also agreed in the New Valley Agreement to grant a
stockholder demand, written consent or proxy with respect to all Shares
held by them in the event that Brooke or BGLS seeks to call a special
meeting of stockholders, obtain the approval of any of the proposals or
replace the incumbent Board of Directors of RJR Nabisco at the 1996 annual
meeting of stockholders. The New Valley Agreement automatically
terminates at the same time, and is subject to earlier termination by the
parties under the same circumstances as the High River Agreement. The
parties to the New Valley Agreement are required to pay fees in the same
amounts and generally under the same circumstances as described above
under the High River Agreement, although the fees payable to a party under
the High River Agreement generally will be offset by fees paid to such
party under the New Valley Agreement, and fees payable to a party under
the New Valley Agreement generally will be offset by fees paid to such
party under the High River Agreement.
The foregoing summary of the New Valley Agreement is qualified
in its entirety by reference to the text of the agreement, which is
attached hereto as Exhibit 4 and is incorporated herein by reference.
Tortoise Corp. ("Tortoise") and Internationale Nederlanden
Bank N.V. ("ING") entered into an Amended and Restated Credit Agreement
("Credit Agreement") dated as of May 20, 1993 under which ING, as lender,
agreed according to the terms of the Credit Agreement, to make loans to
Tortoise and Tortoise agreed to perfect the security interests pledged
pursuant to the Security Agreement between Tortoise and ING, and, to act
in accordance with the terms of the Credit Agreement. A copy of the
Credit Agreement, (giving effect to Amendment Numbers 1-11) dated as of
January 12, 1994, is attached hereto as Exhibit 5, and incorporated herein
by reference.
On December 28, 1995, Tortoise and ING entered into an
agreement (the "Letter Agreement") with High River, whereby High River
became a party to the Original Letter Agreement between Tortoise and
Internationale Nederlanden U.S. Capital Corporation dated December 21,
1995. On December 21, 1995 High River lent (the "Loan") 2,951,000 Shares
to Tortoise whereby Tortoise had the right to transfer the Shares to its
own name or to the name of ING, as its designee. In consideration of the
Loan, Tortoise delivered a fee in the amount of $45,000 and further agreed
that if the Loan was still outstanding on December 21, 1996, to deliver to
High River, on such date, as consideration for the continued extension of
the Loan, a fee in the amount of $45,000. In addition, under this
agreement, Tortoise has the right to pledge the securities to ING,
pursuant to the Credit Agreement to secure the payment of all loans and
other amounts then due or due in the future by Tortoise to ING arising in
connection with, or pursuant to, the Credit Agreement. A copy of the
Letter Agreement is attached hereto as Exhibit 6 and incorporated herein
by reference.
Except as described herein, neither any of the Registrants nor
any person referred to in Schedule A attached hereto, has any contracts,
arrangements, understandings or relationships (legal or otherwise) with
any person with respect to any securities of the Issuer, included but not
limited to the transfer or voting of any of the securities, finder's fees,
joint ventures, loan or option arrangements, puts or calls, guarantees or
profits, division of profits or losses, or the giving or withholding of
proxies.
Item 7. Material to be Filed as Exhibits
1. Joint Filing Agreement
2. Forms of Margin Agreements between the Registrants and Smith Barney,
Shearson Lehman, Reynders Grey, Wagner Stott, NFSC and Spear Leeds.
3. Agreement, dated October 17, 1995, between Brooke Group Ltd., BGLS
Inc. and High River Limited Partnership, as amended by the letter
agreement dated November 5, 1995.
4. Agreement, dated October 17, 1995, between New Valley Corporation,
ALKI Corp. and High River Limited Partnership, as amended by the
letter agreement dated October 17, 1995 and as further amended by
the letter agreement dated November 5, 1995.
5. Agreement, dated as of May 20, 1993, between Tortoise Corp. and
Internationale Nederlanden Bank N.V., regarding Amendment and
Restatement of Original Credit Agreement to Tortoise Corp.
6. Agreement, dated December 28, 1995, between Tortoise Corp.,
Internationale Nederlanden (U.S.) Capital Corporation and High River
Limited Partnership regarding Loan to Tortoise Corp. by High River
Limited Partnership.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
Dated: March 11, 1996
RIVERDALE INVESTORS CORP., INC.
By: /s/Robert J. Mitchell
Robert J. Mitchell
Its: Vice President and Treasurer
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP. INC.
Its: General Partner
By: /s/Robert J. Mitchell
Robert J. Mitchell
Its: Vice President and Treasurer
/s/ Carl C. Icahn
Carl C. Icahn
(Signature Page of Schedule 13D with respect to RJR Nabisco Holdings
Corp.)
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANTS
Name, Business Address and Principal Occupation of
Each Executive Officer and Director of Riverdale and Barberry
The following sets forth the name and principal occupation of each
executive officer and director of Riverdale and Barberry. Each such
person is a citizen of the United States of America. Except as otherwise
indicated, the business address of each director and officer is c/o Icahn
Associates Corp., 114 West 47th Street, 19th floor, New York, New York,
10036. To the best of Registrants' knowledge, except as set forth in this
statement on Schedule 13D, none of the directors or executive officers of
the Registrants own any shares of the Issuer.
RIVERDALE INVESTORS CORP., INC.
Name Position
Carl C. Icahn Director
Edward E. Mattner President
Robert J. Mitchell Vice President and Treasurer
Gail Golden Vice President and Secretary
Richard T. Buonato Assistant Secretary
BARBERRY CORP.
Name Position
Carl C. Icahn Director, Chairman of the Board
and President
Richard T. Buonato1 Director
Edward E. Mattner Vice President
Gail Golden Vice President and Secretary
Robert J. Mitchell Treasurer
SCHEDULE B
Schedule of Transactions in the Shares
No. of Shares No. of
Price Per
Name Date Purchased Shares Sold
Per Share
High River 2/21/96 90,000 33.250
Limited 60,000 33.750
Partnership
2/22/96 21,000 34
79,000 34.125
37,500 34.125
120,000 34.500
2/26/96 10,000 34.250
12,500 34.375
30,000 34.125
2/28/96 55,000 33.500
45,000 33.750
5,500 33.625
2/29/96 8,800 33.500
260,600 33.625
50,000 33.750
3/1/96 20,000 33.000
20,000 33.125
20,000 33.250
25,000 33.375
3/4/96 20,000 34
122,000 34.0786
77,400 34.625
3/5/96 78,000 34
297,000 34.875
125,000 35
3/8/96 96,500 33.875
100,000 34
132,800 34.125
100,000 34.250
141,000 34.375
25,000 34.5
3/11/96 100,000 34
50,000 34.250
75,000 34.375
190,200 34.5
53,000 34.625
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13D-1(f) under the Securities Exchange Act of
1934, as amended, the undersigned agree to the joint filing on behalf of
each of them of a statement on Schedule 13D (including amendments thereto)
with respect to the shares of common stock, par value $.01 per share, of
RJR Nabisco Holdings Corp., and further agree that this Joint Filing
Agreement be included as an Exhibit to such joint filings. In evidence
thereof, the undersigned, being duly authorized, have executed this Joint
Filing Agreement this 11th day of March, 1996.
RIVERDALE INVESTORS CORP., INC.
By: /s/Robert J. Mitchell
_____________________
Robert J. Mitchell
Its: Vice President and Treasurer
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP. INC.
Its: General Partner
By: /s/Robert J. Mitchell
______________________
Robert J. Mitchell
Its: Vice President and Treasurer
/s/ Carl C. Icahn
Carl C. Icahn
(Joint Filing Agreement for Schedule 13D - RJR Nabisco Holdings Corp.)
CUSTOMER AGREEMENT
In consideration for you (the "Broker") opening or maintaining one or more
accounts (the "Account") for the undersigned (the "Customer"), the
Customer agrees to the terms and conditions contained in this Agreement.
The heading of each provision of this Agreement is for descriptive
purposes only and shall not be deemed to modify or qualify any of the
rights or obligations set forth in each such provision. For purposes of
this Agreement, "securities and other property" means, but is not limited
to, money, securities, financial instruments and commodities of every kind
and nature and related contracts and options, except that the provisions
of paragraph 21 herein (the arbitration clause) shall not apply to
commodities accounts. This definition includes securities or other
property currently or hereafter held, carried or maintained by you or by
any of your affiliates, in your possession or control, or in the
possession or control of any such affiliate, for any purpose, in and for
any of my accounts now or hereafter opened, including any account in which
I may have an interest.
1. APPLICABLE RULES AND REGULATIONS
All transactions in the Customer's Account shall be subject to the
constitution, rules, regulations, customs and usages of the exchange or
market, and its clearing house, if any, where the transactions are
executed by the Broker or its agents, including its subsidiaries and
affiliates. Also, where applicable, the transactions shall be subject (a)
to the provisions of (1) the Securities Exchange Act of 1934, as amended,
and (2) the Commodities Exchange Act, as amended; and (b) to the rules and
regulations of (1) the Securities and Exchange Commission, (2) the Board
of Governors of the Federal Reserve System and (3) the Commodities Futures
Trading Commission.
2. AGREEMENT CONTAINS ENTIRE UNDERSTANDING/ASSIGNMENT
This Agreement contains the entire understanding between the Customer and
the Broker concerning the subject matter of this Agreement. Customer may
not assign the rights and obligations hereunder without first obtaining
the prior written consent of the Broker
3. SEVERABILITY
If any provision of this Agreement is held to be invalid, void or
unenforceable by reason of any law, rule, administrative order or judicial
decision, that determination shall not effect the validity of the
remaining provisions of this Agreement.
4. WAIVER
Except as specifically permitted in this Agreement, no provision of this
Agreement can be, nor be deemed to be, waived, altered, modified or
amended unless such is agreed to in a writing signed by the Broker.
5. DELIVERY OF SECURITIES
Without abrogating any of the Broker's rights under any other portion of
this Agreement and subject to any indebtedness of the Customer to the
Broker, the Customer is entitled, upon appropriate demand, to receive
physical delivery of fully paid securities in the Customer's Account.
6. LIENS
All securities and other property of the Customer in any account in which
the Customer has an interest shall be subject to a lien for the discharge
of any and all indebtedness or any other obligation of the Customer to the
Broker. All securities and other property of the Customer shall be held
by the Broker as security for the payment of any such obligations or
indebtedness to the Broker in any Account that the Customer may have an
interest, and the Broker subject to applicable law may, at any time and
without prior notice to the Customer, use and/or transfer any or all
securities and other property interchangeably in any Account(s) in which
the Customer has an interest (except regulated commodity Accounts).
7. PLEDGE OF SECURITIES AND OTHER PROPERTY
Within the limitations imposed by applicable laws, rules and regulations,
all securities and other property of the Customer may be pledged and
repledged and hypothecated and rehypothecated by the Broker from time to
time, without notice to the Customer, either separately or in common with
such other securities and other property of other bona fide Customers of
the Broker, for any amount due to the Broker, in the Customer's
Account(s). The Broker may do so without retaining in its possession or
under its control for delivery a like amount of similar securities or
other property.
8. INTEREST
Debit balances of the Account(s) of the Customer shall be charged with
interest in accordance with the Broker's established custom, as disclosed
to the Customer pursuant to the provisions of Rule 10b-16 of the
Securities Exchange Act of 1934.
9. DISCLOSURES REGARDING LIQUIDATIONS AND COVERING POSITIONS
THE CUSTOMER SHOULD CLEARLY UNDERSTAND THAT, NOTWITHSTANDING A GENERAL
POLICY OF GIVING CUSTOMERS NOTICE OF A MARGIN DEFICIENCY, THE BROKER IS
NOT OBLIGATED TO REQUEST ADDITIONAL MARGIN FROM THE CUSTOMER IN THE EVENT
THE CUSTOMER'S ACCOUNT FALLS BELOW MINIMUM MAINTENANCE REQUIREMENTS. MORE
IMPORTANTLY, THERE MAY/WILL BE CIRCUMSTANCES WHERE THE BROKER WILL
LIQUIDATE SECURITIES AND/OR OTHER PROPERTY IN THE ACCOUNT WITHOUT NOTICE
TO THE CUSTOMER TO ENSURE THAT MINIMUM MAINTENANCE REQUIREMENTS ARE
SATISFIED.
10. LIQUIDATIONS AND COVERING POSITIONS
THE BROKER SHALL HAVE THE RIGHT IN ACCORDANCE WITH ITS GENERAL POLICIES
REGARDING MARGIN MAINTENANCE REQUIREMENTS TO REQUIRE ADDITIONAL COLLATERAL
OR THE LIQUIDATION OF ANY SECURITIES AND OTHER PROPERTY WHENEVER IN
BROKER'S DISCRETION IT CONSIDERS IT NECESSARY FOR ITS PROTECTION INCLUDING
IN THE EVENT OF, BUT NOT LIMITED TO: THE FAILURE OF THE CUSTOMER TO
PROMPTLY MEET ANY CALL FOR ADDITIONAL COLLATERAL; THE FILING OF A PETITION
IN BANKRUPTCY BY OR AGAINST THE CUSTOMER; THE APPOINTMENT OF A RECEIVER IS
FILED BY OR AGAINST CUSTOMER; AN ATTACHMENT IS LEVIED AGAINST ANY ACCOUNT
OF THE CUSTOMER OR IN WHICH THE CUSTOMER HAS AN INTEREST OR; THE
CUSTOMER'S DEATH. IN SUCH EVENT, THE BROKER IS AUTHORIZED TO SELL ANY AND
ALL SECURITIES AND OTHER PROPERTY IN ANY ACCOUNT OF THE CUSTOMER WHETHER
CARRIED INDIVIDUALLY OR JOINTLY WITH OTHERS, TO BUY ALL SECURITIES OR
OTHER PROPERTY WHICH MAY BE SHORT IN SUCH ACCOUNT(S), TO CANCEL ANY OPEN
ORDERS AND TO CLOSE ANY OR ALL OUTSTANDING CONTRACTS, ALL WITHOUT DEMAND
FOR MARGIN OR ADDITIONAL MARGIN, OTHER NOTICE OF SALE OR PURCHASE, OR
OTHER NOTICE OR ADVERTISEMENT EACH OF WHICH IS EXPRESSLY WAIVED BY THE
CUSTOMER. ANY SUCH SALES OR PURCHASES MAY BE MADE AT BROKER'S DISCRETION
ON ANY EXCHANGE OR OTHER MARKET WHERE SUCH BUSINESS IS USUALLY TRANSACTED
OR AT PUBLIC AUCTION OR PRIVATE SALE, AND BROKER MAY BE THE PURCHASER FOR
BROKER'S OWN ACCOUNT. IT IS UNDERSTOOD A PRIOR DEMAND, OR CALL, OR PRIOR
NOTICE OF THE TIME AND PLACE OF SUCH SALE OR PURCHASE SHALL NOT BE
CONSIDERED A WAIVER OF BROKER'S RIGHT TO SELL OR BUY WITHOUT DEMAND OR
NOTICE AS HEREIN PROVIDED.
11. MARGIN
The Customer agrees to maintain in all accounts with the Broker such
positions and margins as required by all applicable statutes, rules,
regulations, procedures and custom, or as the Broker deems necessary or
advisable. The Customer agrees to promptly satisfy all margin and
maintenance calls.
12. SATISFACTION OF INDEBTEDNESS
The Customer agrees to satisfy, upon demand, any indebtedness, and to pay
any debit balance remaining when the Customer's Account is closed, either
partially or totally. Customer Account(s) may not be closed without
Broker first receiving all securities and other property for which the
Account is short and all funds to pay in full for all securities and other
property in which the Account(s) are long.
13. TRANSACTIONS AND SETTLEMENTS
All orders for the purchase or sale of securities and other property will
be authorized by the Customer and executed with the understanding that an
actual purchase or sale is intended and that it is the Customer's
intention and obligation in every case to deliver certificates or
commodities to cover any and all sales or to pay for any purchase upon the
Broker's demand. If the Broker makes a short sale of any securities and
other property at the Customer's direction or if the Customer fails to
deliver to the Broker any securities and other property that the Broker
has sold at the Customer's direction, the Broker is authorized to borrow
the securities and other property necessary to enable the Broker to make
delivery and the Customer agrees to be responsible for any cost or loss
the Broker may incur, or the cost of obtaining the securities and other
property if the Broker is unable to borrow it. The Broker is the
Customer's agent to complete all such transactions and is authorized to
make advances and expend monies as are required.
14. SALES BY CUSTOMER
The Customer understands and agrees any order to sell "short" will be
designated as such by the Customer, and that the Broker will make the
order as "short". All other sell orders will be for securities owned
("long"), at that time, by the Customer by placing the order the Customer
affirms that he will deliver the securities on or before the settlement
date.
15. BROKER AS AGENT
The Customer understands that the Broker is acting as the Customer's
agent, unless the Broker notifies the Customer, in writing before the
settlement date for the transaction, that the Broker is acting as a dealer
for its own account or as agent for some other person.
16. CONFIRMATIONS AND STATEMENTS
Confirmations of transactions and statements for the Customer's Account(s)
shall be binding upon the Customer if the Customer does not object, in
writing, within ten days after receipt by the Customer. Notice or other
communications including margin and maintenance calls delivered or mailed
to the address given below shall, until the Broker has received notice in
writing of a different address, be deemed to have been personally
delivered to the Customer whether actually received or not.
17. SUCCESSORS
Customer hereby agrees that this Agreement and all the terms thereof shall
be binding upon Customer's heirs, executors, administrators, personal
representatives and assigns. This Agreement shall enure to the benefit of
the Broker's present organization, and any successor organization,
irrespective of any change or changes at any time in the personnel
thereof, for any cause whatsoever.
18. CHOICE OF LAWS
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF
_______________ AND SHALL BE CONSTRUED, AND THE RIGHTS AND LIABILITIES OF
THE PARTIES DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF
________________.
19. CAPACITY TO CONTRACT, CUSTOMER AFFILIATION
By signing below, the Customer, represents that he/she is of legal age,
and that he/she is not an employee of any exchange, or of any corporation
of which any exchange owns a majority of the capital stock, or of a member
of any exchange, or of a member firm or member corporation registered on
any exchange, or of a bank, trust company, insurance company or of any
corporation, firm or individual engaged in the business of dealing, either
as broker or as principal, in securities, bills of exchange, acceptances
or other forms of commercial paper, and that the Customer will promptly
notify the Broker in writing if the customer is now or becomes so
employed. The Customer also represents that no one except the Customer
has an interest in the account or accounts of the Customer with you.
20. ARBITRATION DISCLOSURES
- - ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
- - THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO JURY TRIAL.
- - THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL
REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF
RULINGS
BY THE ARBITRATORS IS STRICTLY LIMITED.
- - THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES
INDUSTRY.
21. ARBITRATION
THE CUSTOMER AGREES, AND BY CARRYING AN ACCOUNT FOR THE CUSTOMER THE
BROKER AGREES THAT ALL CONTROVERSIES WHICH MAY ARISE BETWEEN US CONCERNING
ANY TRANSACTION OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY
OTHER AGREEMENT BETWEEN US PERTAINING TO SECURITIES AND OTHER PROPERTY,
WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE
DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE
CONDUCTED PURSUANT TO THE FEDERAL ARBITRATION ACT AND THE LAWS OF THE
STATE DESIGNATED IN PARAGRAPH 18, BEFORE THE AMERICAN ARBITRATION
ASSOCIATION, OR BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR AN ARBITRATION
FACILITY PROVIDED BY ANY OTHER EXCHANGE OF WHICH THE BROKER IS A MEMBER,
OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. OR THE MUNICIPAL
SECURITIES RULEMAKING BOARD AND IN ACCORDANCE WITH THE RULES THEN IN
EFFECT OF THE SELECTED ORGANIZATION. THE CUSTOMER MAY ELECT IN THE FIRST
INSTANCE WHETHER ARBITRATION SHALL BE BY THE AMERICAN ARBITRATION
ASSOCIATION, OR BY AN EXCHANGE OR SELF-REGULATORY ORGANIZATION OF WHICH
THE BROKER IS A MEMBER, BUT IF THE CUSTOMER FAILS TO MAKE SUCH ELECTION,
BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO THE BROKER AT THE BROKER'S
MAIN OFFICE, BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A WRITTEN
REQUEST FROM THE BROKER TO MAKE SUCH ELECTION, THEN THE BROKER MAY MAKE
SUCH ELECTION, THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM,
SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY
COURT, STATE OR FEDERAL, HAVING JURISDICTION, NO PERSON SHALL BRING A
PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY
PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN
COURT A PUTATIVE CLASS ACTION; OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO
HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY
THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS CERTIFICATION IS DENIED;
OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE CUSTOMER IS EXCLUDED FROM
THE CLASS BY THE COURT, SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO
ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT
EXCEPT TO THE EXTENT STATED HEREIN.
22. DISCLOSURES TO ISSUERS
Under rule 14b-1(c) of the Securities Exchange Act of 1934, we are
required to disclose to an issuer the name, address, and securities
position of our customers who are beneficial owners of that issuer's
securities unless the customer objects. Therefore, please check one of
the boxes below:
_ Yes, I do object to the disclosure of such information.
_ No, I do not object to the disclosure of such information.
23. LOAN OR PLEDGE SECURITIES
THE CUSTOMER HEREBY AUTHORIZES THE BROKER TO LEND EITHER TO ITSELF OR TO
OTHERS ANY SECURITIES HELD BY THE BROKER IN THE CUSTOMER'S MARGIN ACCOUNT
AND TO CARRY SUCH PROPERTY IN ITS GENERAL LOANS. SUCH PROPERTY MAY BE
PLEDGED, REPLEDGED, HYPOTHECATED OR REHYPOTHECATED EITHER SEPARATELY OR IN
COMMON WITH OTHER SUCH PROPERTY FOR ANY AMOUNTS DUE TO THE BROKER THEREON
OR FOR A GREATER SUM AND THE BROKER SHALL HAVE NO OBLIGATION TO RETAIN A
LIKE AMOUNT OF SIMILAR PROPERTY IN ITS POSSESSION AND CONTROL.
BY SIGNING THIS AGREEMENT THE CUSTOMER ACKNOWLEDGES THAT:
1. THE SECURITIES IN THE CUSTOMER'S MARGIN ACCOUNT MAY BE LOANED TO THE
BROKER OR LOANED OUT TO OTHERS AND:
2. THAT THE CUSTOMER HAS RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE AT PARAGRAPH 21.
<PAGE>
- ------------------------(X)
Customer Signature/Date
- -------------------------
Customer Signature/Date
- ----------------- ----------------
Customer Address Account Number
- - If joint account, all customers must sign.
- - Please indicate Preference in Paragraph 22 and fill in name of state
in Paragraph 18.
- - Retain second copy for your files.
CLIENT AGREEMENT
SMITH BARNEY
Account Number
Branch Account T C FC
- - - - - - - - - - - - - -
Before you sign this Agreement, please read it carefully. Instructions for
the completion of this Agreement are contained in the accompanying booklet
entitled "Important New Account Information". After you have completed and
signed this Agreement, please return it in the enclosed postage-paid envelope.
Note: Signatures are MANDATORY in either Sections A and C OR Sections B and
C.
___________________________________________________________________________
Account Title
___________________________________________________________________________
Account Owner's Account Owner's
Name Name
___________________________________________________________________________
Street Apt. City State Zip Code
Address
___________________________________________________________________________
In consideration of Smith Barney Inc. accepting an account for me (us), I (we)
hereby acknowledge that I (we) have read, understand and agree to the terms
of this Agreement contained in the sections numbered 1 through 11. If this
is a margin account, I (we) further acknowledge that I (we) have read,
understand and agree to the terms of this Agreement contained in the sections
numbered 15 through 17. If this is a joint account, we further acknowledge
that we have read, understand and agree to the terms of this Agreement
contained in the sections numbered 12 through 14. Note: Texas residents with
joint accounts must also execute a Texas Joint Account Supplement agreement
(form 3882).
A. Cash Accounts.
I (We) acknowledged that I (we) have received a copy of this Agreement which
contains a pre-dispute arbitration clause at section 5.
If this is a joint account, all parties must sign.
___________________________________________________________________________
Account Owner's Signature Date Joint Account Owner's Signature Date
___________________________________________________________________________
B. Margin Accounts.
By signing this Agreement, I (we) acknowledge that my (our) securities may be
loaned to you or loaned out to others. I (We) acknowledge that I (we) have
received a copy of this Agreement which contains a pre-dispute arbitration
clause at section 6.
If this is a joint account, all parties must sign.
___________________________________________________________________________
Account Owner's Signature Date Joint Account Owner's Signature Date
___________________________________________________________________________
C. Tax Certification (See Instructions on the last page of this form).
Under penalties of perjury, I certify that the number shown below is my
correct taxpayer identification number or if not, then the number I have
entered below is my correct tax identification number, and that I am not
subject to backup withholding because: (a) I have not been notified by the
Internal Revenue Service (IRS) that I am subject to backup withholding as a
result of failure to report all interest or dividends, or (b) the IRS has
notified me that I am no longer subject to backup withholding (see below), or
(c) I am exempt from backup withholding (see below). Note: You must cross
out (b) above if you are currently subject to backup withholding because of
underreporting interest or dividends on your tax return.
For those exempt from backup withholding, write the word "EXEMPT" here:
___________________________________.
The Social Securitiy Number or The Social Security Number or
Tax Identification Number on Tax Identification Number
Smith Barney's records is: shown to the left is incorrect
The CORRECT number is:
______________________________ ______________________________
- - - - - - - - - - - - - - - - - - -
______________________________ ______________________________
Note for joint accounts: The Social Security Number of this account is the
number of the client whose name appears first in the account title. Do not
enter the number of any other account owner.
___________________________________________________________________________
Account Owner's Signature Date Joint Account Owner's Signature Date
___________________________________________________________________________
D. Name Disclosure.
Please indicate your choice as to the release or withholding of your name,
address and securities positions to issuing corporations.
___ NO, I do not want } my name, address and securities disclosed to any
companies, upon their request, in which I own
___ YES, I do want } securitties that are being held for me at Smith
Barney Inc.
___________________________________________________________________________
E. Money Market Fund Agreement.
Available cash in your account will automatically be invested or "swept" into
the money market fund of your choice. If you do NOT elect to have the
automatic money market fund sweep, please check the "NO" box below, If you
wish to change your choice of money market fund, please contact your Financial
Consultant.
(Note to Wisconsin residents: You must indicate below specifically whether
or not you wish to have a money market sweep for your account)
___ NO, I do not want cash balances in my account to be automatically swept
into a money market fund.
___ YES, I would like the cash balances in my account to be automatically
swept into the fund of my choice.
___________________________________________________________________________
F. Tenancy in Common. DO NOT Complete this Section if You Wish To Establish
A Joint Account With Rights of Survivorship. In the event of the death of
either or any of the undersigned, the interests in the account as of the close
of business on the date of the death of the decedent, or on the following
business day if the date of death is not a business day shall be as follows:
Note: Texas residents with joint accounts must also execute a Texas Joint
Account Supplement agreement (form 3882).
Name of Signature of
Participant____________ or his or her estate ___% Participant___________
CORPORATION ACCOUNT
Authorizing Trading in Securities and Commodities and Permitting Margin
Transactions and Short Sales
Please read carefully, sign and return to
Smith Barney Inc.
Client Documentation Services
388 Greenwich Street
New York, NY 10013-2396
The undersigned Corporation, by its president named herein, pursuant to the
resolutions annexed hereto and certified by the Secretary, hereby authorizes
you to open an account in the name of said Corporation, and represents that
no one other than the Corporation has any interest in such account. We also
enclose herewith your Client Agreement with Consent to Loan of Securities
duly executed on behalf of the Corporation and acknowledge receipt of a copy
of the Client Agreement. This authorization shall continue in force until
revoked by the Corporation by a written notice, addressed to the branch
office servicing this account.
Further, I do hereby certify that the Secretary of this Corporation, whose
name appears in the attached Certification, has been duly elected to and now
holds that office and that the signature appearing opposite his or her name
is his or her true signature.
____________________________________________________________________________
Signature of Secretary
CPI 0014
SMITH BARNEY
A Member of Travelers Group
Account Number
Branch ___ ___ ___ Account ___ ___ ___ ___ ___ T ___ C___ FC ___ ___ ___
____________________________________________________________________________
Name of Corporation
____________________________________________________________________________
Name of President (print name)
____________________________________________________________________________
Signature of President
____________________________________________________________________________
Date
____________________________________________________________________________
Address of Corporation
____________________________________________________________________________
CERTIFICATION
I, being the Secretary of the Corporation named herein, do hereby certify
that the following is a full, true and correct copy of Resolutions adopted by
a vote of the board of Directors of said Corporation at a meeting thereof and
held on the date specified below, a quorum being present, and acting
throughout, that they are in accord with and pursuant to the charter and by-
laws of said Corporation, and that the same have not been rescinded or
modified and are in full force and effect. I further certify that the
persons herein designated as officers of this Corporation have been duly
elected to and now hold the offices in this Corporation set forth at their
respective names.
____________________________________________________________________________
Date of Corporate Meeting Month Day Year
VICE PRESIDENT'S NAME (print name)
____________________________________________________________________________
VICE PRESIDENT'S NAME (print name)
____________________________________________________________________________
TREASURER'S NAME (print name)
____________________________________________________________________________
SECRETARY'S NAME (print name)
IN WITNESS WHEREOF, I have hereunto affixed my hand (and the seal of said
Corporation) this ______day of _____________________________________, 19__
Secretary's Signature
____________________________________________________________________________
NOTE: If the Secretary is empowered to act by the following resolutions, the
President of this Corporation must execute this supplemental certification.
I, being the President of the Corporation named herein, do hereby certify
that the Secretary (whose signature appears above) is empowered to act on
behalf of the Corporation in accordance with the following resolutions.
President's Signature
____________________________________________________________________________
Spear, Leeds & Kellogg
CUSTOMER AGREEMENT
This Agreement sets forth the terms and conditions under which Spear, Leeds
& Kellogg ("SLK") will accept and maintain one or more accounts of the
undersigned ("Customer").
1. All transactions under this Agreement shall be subject to applicable laws,
rules and regulations of all federal and state and regulatory agencies and
the constitution, rules and customs of the exchange or market (and its
clearing house) where transactions are executed.
2. Confirmations of transactions and statements for the Customer's Account(s)
shall be binding upon the Customer if the Customer does not object, in
writing,within ten days after receipt by the Customer. Notice or other
communications including margin and maintenance calls delivered or mailed to
the address given below shall, until SLK has received notice in writing of a
different address, be deemed to have been personally delivered to the
Customer whether actually received or not.
3. If SLK carries Customer's account as clearing broker by arrangement with
another broker through whose courtesy the account has been introduced, this
Agreement shall also apply to and inure to the benefit of such broker.
Unless SLK receives a written notice to the contrary, SLK shall accept from
such other broker, without any inquiry or investigation by it (i) orders for
the purchase or sale in Customer's account of securities and other property
on mar;gin or otherwise, and (ii) any other instructions concerning said
account. Customer understands that SLK shall have no responsibility or
liability for any acts or omissions of such other broker, its officers,
employees or agents.
4. In the event SLK holds on behalf of Customer bonds or preferred stocks in
street or bearer form which are callable in part by the issuer, such
securities shall be subject to an impartial lottery allocation system in
accordance with the rules of the New York Stock Exchange, Inc.
5. Customer agrees to provide SLK with information and documentation to
enable SLK to comply with tax laws applicable to Customer's account and
Customer agrees to reimburse SLK for any loss or penalty assessed against SLK
resulting from Customer's non-compliance with such laws and arising out of
transactions in, or the maintenance of Customer's account at SLK.
6. Customer agrees that Customer's property (including but not limited to
securities, commodity futures contracts, commercial paper, monies, and any
after acquired property) held by SLK or carried in Customer's accounts shall
be subject to a continuing security interest for payment of all of Customer's
obligations and liabilities to SLK. In the event of a breach or default
under this Agreement, SLK shall have all rights and remedies available to a
secured creditor under the Uniform Commercial Code of New York in addition to
the rights and remedies provided herein or otherwise by law. If at any time
SLK considers it necessary for its protection it may require Customer to
deposit cash or collateral with SLK to assure due performance of open
contractual commitments.
7. Any breach of this Agreement or the filing of a petition in bankruptcy or
for the appointment of a receiver by or against Customer or the levy of an
attachment against Customer's account(s) with SLK, or the death, mental
incompetence or dissolution of Customer, shall constitute, at SLK's election,
Customer's default under all agreements with SLK. SLK reserves the right to
sell any property in Customer's account (including Customer's jointly held
accounts, if any), to buy any property which may be short in such accounts
and/or to cancel all outstanding transactions and to offset any indebtedness
in such accounts against any other of Customer's accounts (either
individually or jointly with others) and Customer shall be liable to SLK for
any loss or costs sustained. Such purchases and/or sales may be public or
private and may be made without notice or advertisement and in such manner as
SLK may in its discretion determine. At any such sale or purchase SLK may
purchase or sell the property free of any right of redemption. Customer
agrees that SLK is entitled to the reasonable costs of collection including
attorney's fees, court costs and expenses incurred by SLK in collecting
Customer's unpaid debit balances.
8. No term or provision of this Agreement may be waived or modified unless in
writing and signed by the party against whom such waiver or modification is
sought to be enforced. SLK's failure to insist upon complete compliance with
any term of this Agreement shall in no event be considered a waiver by SLK of
its rights or privileges. This Agreement contains the entire understanding
between Customer and SLK concerning the subject matter of this Agreement.
Customer may not assign any rights and obligations hereunder without first
obtaining the prior written consent of SLK. Notice or other communications
including margin calls delivered or mailed to the address given below, or
such other address as is provided in writing to SLK by Customer, shall be
deemed to have been personally delivered.
9. Customer hereby agrees that this Agreement and all the terms thereof shall
be binding upon its heirs, executors, administrators, personal
representatives and assigns. This Agreement shall be binding upon and inure
to the benefit of SLK, its successors and assigns.
10. This Agreement shall be governed and construed by the laws of the State
of New York and the rights and liabilities of the parties shall be determined
in accordance with such laws.
11. All orders for the purchase or sale of securities and other property will
be authorized by the Customer and executed with the understanding that an
actual purchase or sale is intended and that it is the Customer's intention
and obligation in every case to deliver certificates or commodities to cover
any and all sales or to receive and pay for certificates or commodities upon
SLK's demand. If SLK makes a short sale of any securities and other property
at the Customer's direction or if the Customer fails to deliver to SLK any
securities and other property that SLK has sold at the Customer's direction.
SLK is authorized to borrow the securities and other property necessary to
enable SLK to make delivery and the Customer agrees to be responsible for any
cost or loss SLK may incur, or the cost of obtaining the securities and other
property if SLK is unable to borrow it. SLK is the Customer's agent to
complete all such transactions and is authorized to make advances and expend
monies as are required.
12. Customer agrees that, in giving orders to sell, all "short" sales orders
will be designated as "short" and all "long" sale orders will be designated
as "long" and that the designation of a sell order as "long" is a
representation on the part of Customer that Customer owns the security.
13 If any provisions herein are deemed inconsistent with any present or
future law, rule or regulation of any government or regulatory body having
jurisdiction over the subject matter of this Agreement, such provision only
shall be considered rescinded or modified in accordance with any such law,
rule or regulation.
14. . ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO JURY TRIAL.
. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
. THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF
RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
. THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS
WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
15. THE CUSTOMER AGREES, AND BY CARRYING AN ACCOUNT FOR THE CUSTOMER SLK
AGREES THAT ALL CONTROVERSIES WHICH MAY ARISE BETWEEN US CONCERNING ANY
TRANSACTION OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY OTHER
AGREEMENT BETWEEN US PERTAINING TO SECURITIES AND OTHER PROPERTY, WHETHER
ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED
BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED
PURSUANT TO THE FEDERAL ARBITRATION ACT AND THE LAWS OF THE STATE OF NEW
YORK, BEFORE THE AMERICAN STOCK EXCHANGE, INC., THE NEW YORK STOCK EXCHANGE,
INC. OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. AND IN
ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION. THE
CUSTOMER MAY ELECT IN THE FIRST INSTANCE WHETHER ARBITRATION SHALL BE AT THE
AMERICAN STOCK EXCHANGE, INC., THE NEW YORK STOCK EXCHANGE, INC. OR THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., BUT IF THE CUSTOMER FAILS
TO MAKE SUCH ELECTION, BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO SLK AT
SLK'S MAIN OFFICE, BEFORE THE EXPIRATION OF TEN DAYS AFTER RECEIPT OF A
WRITTEN REQUEST FROM SLK TO MAKE SUCH ELECTION, THEN SLK MAY MAKE SUCH
ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE
FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT,
STATE OR FEDERAL, HAVING JURISDICTION.
16. Under Rule 14b-1(c) of the Securities Exchange Act, we are required to
disclose to an issuer the name, address, and securities position of our
Customers who are beneficial owners of that issuer's securities unless the
Customer objects. Therefore, please check one of the boxes below:
__ Yes, I do not object to the disclosure of such information.
__ No, I do not object to the disclosure of such information.
17. APPLICABLE TO MARGIN ACCOUNTS ONLY:
(a) The Customer agrees to maintain in all accounts with SLK such positions
and margins as required by all applicable statutes, rules, regulations,
procedures and custom, or as SLK deems necessary or advisable. The Customer
agrees to promptly satisfy all margin and maintenance calls, and to pay
promptly on demand any debit balance owing with respect to any margin
accounts. Any nonpayment shall be a breach of this Agreement and SLK may
take such action as it considers necessary for its protection.
(b) The Customer should clearly understand that, notwithstanding a general
policy of giving Customers notice of a margin deficiency, SLK is not
obligated to request additional margin from the Customer in the event the
Customer's account falls below minimum maintenance requirements. More impor-
tantly, there may/will be circumstances where SLK will liquidate securities
and/or other property in the account without notice to the Customer to ensure
that minimum maintenance requirements are satisfied.
(c) Customer hereby authorizes SLK to lend either to itself or to others any
of Customer's securities held by SLK in a margin account and to carry all
such property in its general loans. Such property may be pledged, repledged,
hypothecated or rehypothecated either separately or in common with other such
property for any amounts due to SLK thereon or for a greater sum, and SLK
shall have no obligation to retain a like amount of similar property in its
possession and control.
(d) Customer hereby acknowledges receipt of SLK's Truth-in-Lending
disclosure statement. Customer understands that interest will be charged on
any debit balances in accordance with the methods described in this statement
or in any amendment or revision thereto which may be provided to Customer.
BY SIGNING THIS AGREEMENT THE CUSTOMER ACKNOWLEDGES THAT:
1. THE SECURITIES IN THE CUSTOMER'S MARGIN ACCOUNT MAY BE LOANED TO SLK OR
LOANED OUT TO OTHERS AND;
2. THE CUSTOMER HAS RECEIVED A COPY OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE ON THIS PAGE AT
PARAGRAPH 15.
. . .
Persons signing on behalf of others must indicate title or capacity. If
joint account both parties must sign.
_____________________________________________________________________________
Date
_____________________________________________________________________________
(Typed or Printed Name(s))
_____________________________________________________________________________
(Signature(s) Two (2) Signatures if Joint Account)
_____________________________________________________________________________
(Mailing Address)
_____________________________________________________________________________
Acct. No.:___________________________________________________________________
Margin Account Agreement
To: National Financial Services Corporation ("NFSC" or "you").
1. I agree as follows with respect to all of my accounts, in which
I have an interest alone or with others, which I have opened or will open
in the future, with you for the purchase and sale of securities. I hereby
acknowledge that I have read, understand and agree to the terms set forth
below. Upon acceptance of my application(s), I understand NFSC will
maintain an account for me and, as my broker, buy or sell securities or
other products according to my instructions. All decisions relating to my
investment or trading activity shall be made by me or my duly authorized
representative. Any information I give NFSC on this account agreement
will be subject to verification, and I authorize you to obtain a credit
report about me at any time. Upon written request, NFSC will provide the
name and address of the credit reporting agency used. I authorized NFSC,
and my Broker/Dealer to exchange credit information about me. My
Broker/Dealer also may tape record conversations with me in order to
verify data concerning any transactions I request, and I consent to such
recording. I also understand that my account(s) is carried by National
Financial Services Corporation (NFSC), and that all terms of this
agreement also apply between me and NFSC. I have carefully examined my
financial resources, investment objectives, tolerance for risk along with
the terms of the margin agreement, and have determined that margin
financing is appropriate for me. I understand that investing on margin
involves the extension of credit to me and that my financial exposure
could exceed the value of my securities.
2. I am of legal age in the state in which I reside and represent
that, except as otherwise disclosed to you in writing, I am not an
employee of any Exchange or of a Member Firm of any Exchange or the NASD,
or of a bank, trust company, or insurance company and that I will promptly
notify you if I become so employed.
3. All transactions through NFSC are subject to the constitution,
rules, regulations, customs, and usages of the exchange, market or
clearing house where executed, as well as to any applicable federal or
state laws, rules and regulations.
4. Any and all credit balances, securities, or contracts relating
thereto, and all other property of whatsoever kind belonging to me or in
which I may have an interest held by you or carried for my accounts shall
be subject to a general lien for the discharge of my obligations to you
(including unmatured and contingent obligations) however arising and
without regard to whether or not you have made advances with respect to
such property and without notice to me may be carried in your general
loans and all securities may be pledged, repledged, hypothecated or
rehypothecated, separately or in common with other securities or any other
property, for the sum due to you thereon or for a greater sum and without
retaining in your possession and control for delivery a like amount of
similar securities or other property. At any time and from time to time
you may, in your discretion, without notice to me, apply and/or transfer
any securities, contracts relating thereto, cash or any other property
therein, interchangeably between any of my accounts, whether individual or
joint from any of my accounts to any account guaranteed by me. You are
specifically authorized to transfer to my cash account, on the settlement
day following a purchase made in that account, excess funds available in
any of my other accounts, including but not limited to any free balances
in any margin account, sufficient to make full payment of this cash
purchase. I agree that any debit occurring in any of my accounts may be
transferred by you at your option to my margin account.
5. I will maintain such margins as you may in your discretion
require from time to time and will pay on demand any debit balance owing
with respect to any of my accounts. I will be liable to you for any
deficiencies in such account in the event of the liquidation of such
accounts, in whole or in part, by you or the undersigned. Whenever in
your discretion you deem it desirable for your protection (and without the
necessity of a margin call), including but not limited to extreme market
volatility or trading volumes, an instance where a petition in bankruptcy
or for the appointment of a receiver is filed by or against me, or an
attachment is levied against my account, or in the event of notice of my
death or incapacity, or in compliance with the orders of any Exchange, you
may, without prior demand, tender, and without any notice of the time or
place of sale, all of which are expressly waived, sell any or all
securities, or contracts relating thereto which may be your possession, or
which you may be carrying for me, or by any securities, or contracts
relating thereto of which my account or accounts may be short, in order to
close out in whole or in part any commitment in my behalf or you may place
stop orders with respect to such securities and such sale or purchase may
be made at your discretion on any Exchange or other market where such
business is then transacted, or at public auction or private sale, with or
without advertising and neither any demands, calls, tenders or notices
which you may make or give in any one or more instances nor any prior
course of conduct or dealings between us shall invalidate the aforesaid
waivers on my part. You shall have the right to purchase for your own
account any or all of the aforesaid property at such sale, discharged of
any right of redemption which is hereby waived. I understand that my
financial exposure could exceed the value of securities in my account.
6. In the absence of a specific demand, all transactions in any of
my accounts are to be paid for, securities delivered or required margin
deposited, no later than 2 p.m. Eastern Time on the settlement date. NFSC
reserves the right to cancel or liquidate at my risk any transaction not
timely settled. Margin calls are due on the date indicated regardless of
the settlement date of the transaction. For most stocks and bonds, the
settlement date is the fifth business day following the trade date.
Settlement dates for U.S. government issues vary. Options settle on the
next business day. Interest will be charged on any debit balance which
remains in my account past the settlement date as explained in the
Disclosure of Credit Terms section of this Agreement.
7. I agree to be charged interest on any credit extended to or
maintained for me by you for the purpose of purchasing, carrying or
trading in any security. The annual rate of interest which will be
charged on net debit balances will be calculated by means of a formula
based on the rate for brokers' call money published in financial sections
of newspapers. The annual rate of interest is subject to change without
prior notice in accordance with changes in the brokers' call money rate.
With the exception of a credit balance in the short account, all other
credit balances in all cash and margin accounts are combined and interest
is charged to the margin account on any resulting debit balance. Interest
is computed monthly on the net debit balances during the month. If during
the month, there is a change in interest rates, separate charges will be
shown for each interest period under he different rate. The combining of
balances, as well as the actual interest calculations, are done by
computer, but interest is arrived at by multiplying the net debit balance
by the effective rate of interest divided by 360, times the number of
days. In the event there is a decline in the market value of the
securities in the margin account, you may have to request additional
collateral. Generally, such a request for additional collateral will be
made by you when the equity in the account falls below 30%. However, you
retain the right to require additional margin at any time you deem it
necessary or advisable. Any such call for additional collateral may be
met by delivery of additional marginable securities or cash. Any
securities in any of the accounts of the undersigned are collateral for
any debit balances in the account with you. A lien is created by these
debits to secure the amount of money owed you. This means that, in
accordance with the terms of this agreement, securities in the said
accounts can be sold by you to redeem or to liquidate any debit balances
in these accounts.
8. I agree that, in giving orders to sell, all "short" sale orders
will be designated as "short" and all "long" sale orders will be
designated as "long" and that the designation of a sell order as "long" is
a representation on my part than I own the security and, unless otherwise
waived by you in your discretion that I have delivered such security to
you.
9. Reports of the execution of orders and statements of my account
shall be conclusive if not objected to in writing within five days and ten
days, respectively, after transmittal to me by mail or otherwise.
10. All communications including margin calls may be sent to me at my
address given you, or at such other address as I may hereafter give you in
writing, and all communications so sent, whether in writing or otherwise,
shall be deemed given to me personally, whether actually received or not.
11. I am liable for payment upon demand of any debit balance or other
obligation owed in any of my accounts or any deficiencies following a
whole or partial liquidation, and I agree to satisfy any such demand or
obligation. Interest will accrue on any such deficiency at prevailing
margin rates until paid. I agree to reimburse NFSC for al reasonable
costs and expenses incurred int he collection of any debit balance or
unpaid deficiency in any of my accounts, including, but not limited to,
attorneys' fees.
12. NFSC is not liable for any losses caused directly or indirectly
by government restrictions, exchange or market rulings, suspension of
trading or other conditions beyond its control, including, but not limited
to, extreme market volatility or trading volumes.
13. No waiver of any provision of this Agreement shall be deemed a
waiver of any other provision, nor a continuing waiver of the provision or
provisions so waived.
14. I understand that no provision of this Agreement can be amended
or waived except by an officer of your Company, and that this Agreement
shall continue in force until its termination by me is acknowledged in
writing by an officer of your Company; or until written notice of
termination by you shall have been mailed to me at my address last given
you.
15. This contract shall be governed by the laws of the Commonwealth
of Massachusetts, and shall inure to the benefit of your successors and
assigns, and shall be binding on the undersigned, his heirs, executors,
administrators, successors, and assigns.
16. If any provision hereof is or at any time should become
inconsistent with any present or future law, rule or regulation of any
securities exchange, or of any sovereign government or a regulatory body
thereof and of these bodies have jurisdiction over the subject matter of
this Agreement, said provision shall be deemed to be superseded or
modified to confirm to such law, rule or regulation, but in all other
respect this Agreement shall continue and remain in full force and effect.
17. If the undersigned shall consist of more than one individual,
their obligations under Agreement shall be joint and several.
18. I understand that you may deliver margin calls and other notices
to my agent, ___________________________________ or the sole purpose of
collection of obligations of mine under this agreement. I agree to the
foregoing and further understand that ________________________________ may
act on your behalf with respect to margin calls in your discretion.
19. I represent that I have read and understand the Disclosure of
Credit Terms on Transactions, I further understand that they may be
amended from time to time.
20. YOU ARE HEREBY AUTHORIZED TO LEND SEPARATELY OR TOGETHER WITH THE
PROPERTY OF OTHERS EITHER TO YOURSELVES OR TO OTHERS AND PROPERTY WHICH
YOU MAY BE CARRYING FOR ME ON MARGIN. THIS AUTHORIZATION SHALL APPLY TO
ALL ACCOUNTS CARRIED BY YOU FOR ME AND SHALL REMAIN IN FULL FORCE UNTIL
WRITTEN NOTICE OF REVOCATION IS RECEIVED BY YOU AT YOUR PRINCIPAL OFFICE
IN BOSTON, MASSACHUSETTS.
I REPRESENT THAT I HAVE READ THE TERMS AND CONDITIONS AS CURRENTLY IN
EFFECT AND AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS AS CURRENTLY IN
EFFECT AND AS MAY BE AMENDED FROM TIME TO TIME. THIS ACCOUNT IS GOVERNED
BY A PRE-DISPUTE ARBITRATION CLAUSE WHICH IS ENCLOSED. I ACKNOWLEDGE
RECEIPT OF THE PRE-DISPUTE ARBITRATION CLAUSE.
Date: _______________________________
Customer's Signature/Date: ___________________________________________
Signature of Joint Tenant (if any)/Date: ______________________________
_______________________________________________________________________
Lehman Brothers
Customer Account Services
P.O. Box 3760
New York, NY 10008-3760
________
Client Agreement CPI 3025
Before you sign this agreement, read it thoroughly and return this completed
and signed agreement to Lehman Brothers at the address on the left side of
this page. Subsequently you will receive literature containing important
information about new accounts. Read the information carefully and retain it
for future reference.
Account Number
Branch Account T C IR
___________________________________________________________________________
Account Title/Name
___________________________________________________________________________
Account Title/Name
___________________________________________________________________________
Mailing Address
A. Client Acknowledgement. I (we) hereby acknowledge that I (we) have read,
understand and agree to the terms of this agreement. If this is a joint
account, we further acknowledge that we have read, understand and agree to
the terms of this agreement contained in paragraph 21. Note: Texas
residents must execute a Texas Joint Account Supplement agreement (form
3882). I (We) acknowledge that I (we) have received a copy of the agreement
which contains a pre-dispute arbitration clause at Paragraph 22; I (We) have
read it and agree to its terms.
1. Account Owner's Signature Date 2. Account Owner's Signature Date
___________________________________________________________________________
3. Account Owner's Signature Date 4. Account Owner's Signature Date
___________________________________________________________________________
B. Name Disclosure. Please indicate your choice as to the release or
withholding of your name, address and securities positions to issuing
corporations
NO, I do not want my name, address and securities positions disclosed to
any companies, upon their request, in which I own securities that are being
held for me at Lehman Brothers Inc. ("Lehman") or any firm acting as a
clearing broker for Lehman.
Yes, I do want
C. Money Market Fund Agreement. Lehman will be authorized (but not
required) to invest or "sweep" available cash in your account into one of its
money market funds unless you elect otherwise below. If you want to choose
a particular money market fund or you do not want available cash swept into
a money market fund, please indicate below. If you wish to discuss or change
your choice of money market funds, please contact your Investment
Representative.
(Note to Wisconsin residents: You must indicate below specifically whether
or not you wish to have a money market sweep for your account)
NO, I do not want cash balances in my account to be automatically swept
into a money market fund.
YES, I want the cash balances in my account automatically swept into the
fund of my choice.
D. Joint Account With Rights Of Survivorship. If the account has more than
one owner, this agreement establishes a Joint Account With Rights of
Survivorship. If you and the other account owners wish to establish a
Tenancy in Common instead, each of you must execute a Joint Account Agreement
As Tenants in Common in addition to this Client Agreement. Note: Texas
residents must execute a Texas Joint Account Supplement agreement (form
3882).
E. Margin Account Agreement. Complete this section only if you accept the
margin agreement described in paragraph 16 through 19 of this agreement.
In consideration of your opening and maintain in one or more margin accounts
on my behalf, I (we) hereby acknowledge that I (we) have read, understand and
agree to the terms of a margin account contained in paragraphs 16 through 19
of this agreement. By signing this agreement, I (we) acknowledge that my
(our) securities may be loaned to you or loaned out to others. If this is a
joint account, all parties must sign.
1. Account Owner's Signature Date 2. Account Owner's Signature Date
___________________________________________________________________________
3. Account Owner's Signature Date 4. Account Owner's Signature Date
___________________________________________________________________________
F. Tax Certification. Under penalties of perjury, I certify that the number
show below (and to the left) is my correct taxpayer identification number or
if not, then the number I have entered below (and to the right) is my correct
tax identification number, and that I am not subject to backup withholding
because (a) I have not been notified by the Internal Revenue Service (IRS)
that I am subject to backup withholding as a result of failure to report all
interest or dividends, or (b) the IRS has notified me that I am no longer
subject to backup withholding (see below), or (c) I am exempt from backup
withholding (see below). Note: You must cross out (b) above if you are
currently subject to backup withholding because of underreporting interest or
dividends on your tax return.
For those exempt from backup withholding (see instructions on page 4), write
the word "EXEMPT" here: ______________________
Note for joint accounts: The Social Security Number of this account is the
number of the client whose name appears first in the account title. Do not
enter the number of any other account owner.
The Social Security Number or Tax Identification Number on Lehman Brothers'
records is:
Taxpayer Identification Number
The Social Security Number or Tax Identification Number shown to the left
is incorrect. The CORRECT number is:
Taxpayer Identification Number
SHEARSON, LEHMAN, HUTTON
___________________________
An American Express Company
Please read carefully, sign and return
To Shearson Lehman Hutton Inc.
its President, pursuant to the resolutions, a copy of which,
certified by the Secretary, is annexed hereto, hereby authorizes you to open
an account in the name of said Corporation; and the undersigned also enclosed
herewith your client's Agreement and Consent to Loan of Securities duly
executed on behalf of the Corporation. This authorization shall continue in
force until revoked by the undersigned corporation by a written notice,
addressed to you and delivered at your office at
________________________________________________________________________
Dated___________________________________________________________________
City and State__________________________________________________________
Corporation_____________________________________________________________
By_____________________________________________________________President
* * *
[SEAL]
<PAGE>
CORPORATION ACCOUNT
Authorizing Trading in
Securities and Commodities and
Permitting Margin Transactions
and Short Sales
______________________________________________________
Account Number
Branch Account T C FC
______________________________________________________
- - - - - - - - - - - - - -
______________________________________________________
PRINT YOUR NUMBERS LIKE THIS
______________________________________________________
- - - - - - - - - - -
I, _______________________________ being the
Secretary of ___________________________________________ hereby certify that
the annexed resolutions were duly adopted at a meeting of the Board of
Directors of said Corporation, duly held on the ____ day of _______________,
at which a quorum of said Board of Directors was present and acting throughout
and that no action has been taken to rescind or amend said resolutions and
that the same are now in full force and effect.
I further certify that each of the following has been duly elected and is now
legally holding the office set opposite his name:
______________________________________________________________, President
______________________________________________________________, Vice-President
______________________________________________________________, Treasurer
______________________________________________________________, Secretary
I further certify that the said Corporation is duly organized and existing and
has the power to take the action called for by the resolutions annexed hereto.
IN WITNESS WHEREOF, I Have hereunder affixed my hand and the seal of said
Corporation this day of , 19
_____________________________________________________________, Secretary
ORIGINAL
Please read carefully, sign and return
To Shearson Lehman Brothers Inc.
SHEARSON
LEHMAN
BROTHERS
Client Documentation Services
Church Street Station
P.O. Box 300
New York, NY 10277-0073
Client Agreement
In consideration of Shearson Lehman Brothers Inc. ("Shearson") accepting
my account and agreeing to act as my broker, I agree to the following with
respect to any of my accounts with you for extensions of credit and the
purchase and sale of securities, put & call options, and other property.
This agreement shall not become effective until accepted by you in your
New York office. Acceptance may be evidenced by internal records
maintained by you. Throughout this agreement, "I," "me," "my," "we," and
"us" refer to the client and all others who are legally obligated on this
account. "You" and "your" refer to Shearson, its subsidiaries and parents
and any and all divisions or other entities, their officers, directors,
agents and/or employees.
1. MY REPRESENTATIONS. I represent that I am of the age of majority
according to the laws of my state of residence. I further represent that
I am not an employee of any exchange or of a member firm of any exchange
or of a member of the National Association of Securities Dealers, Inc.
(the "NASD"), or of a bank, trust company, or insurance company unless I
have notified you to that effect. If I become so employed, I agree to
notify you promptly. I also represent that no persons other than those
signing this agreement have an interest in the account.
2. DEFINITION OF "PROPERTY." The word "property" is used herein to mean
securities of all kinds, monies, options, commodities, and contracts for
the future delivery of, or otherwise relating to, commodities or
securities and all other property usually and customarily dealt in by
brokerage firms.
3. ORDERS EXECUTIONS; DELIVERIES AND SETTLEMENTS. I agree that, in giving
orders to sell, all "short" sales orders will be designated as "short" and
all "long" sales orders will be designated as "long." "Short sale" means
any sale of a security not owned by the seller or any sale that is
consummated by delivery of a borrowed security. I also agree that you may
at your discretion immediately cover any short sales in my account. The
designation on a sale order as "long" is a representation on my part that
I own the security, and if the security is not in your possession at the
time of the contract for sale, I agree to deliver the security to you by
settlement date. In case of non-delivery of a security, you are
authorized to purchase the security to cover my position and charge any
loss, commissions and fees to my account. I agree that if you fail to
receive payment for securities purchased you may, without prior demand and
notice, sell securities or other property held by you in any of my
accounts and any loss resulting therefrom will be charged to my account.
By accepting my limit order for transactions in securities in the NASDAQ
or over-the-counter market, you undertake to monitor the interdealer
market and to seek to execute my order only if the inside bid (in the case
of a limit order to sell, the highest price at which a dealer is being
quoted as willing to buy securities) or the inside asked (in the case of
a limit order to buy, the lowest price at which a dealer is being quoted
as willing to sell securities) reaches my limit price. You reserve the
right, while my limit order remains unexecuted, to trade for your own
market-maker account at prices equal to or better than my limit order
price and not to execute my order against incoming orders from other
customers. For example, if the inside market is 10 bid, 101/4 asked and
I place a limit order to sell securities at 101/8, you will seek to execute
my order only if the inside bid reaches my limit price of 101/8 (exclusive
of any markdown or commission equivalent that you may charge in connection
with the transaction) and, while my order remains unexecuted, you may
continue to sell securities for your market-maker account at prices at or
above 101/8.
Unless I have directed that the order be executed on a specified exchange
or market and you have agreed to such execution,you will, at your sole
discretion and without prior notification to me, execute any order to
purchase or sell securities on the over-the-counter market in any location
or on any exchange, including a foreign exchange where such security is
traded, either on a principal or agency basis.
4. OPTION POSITIONS. I agree not to enter into any purchase or sale of
equity, debt, foreign currency or index put & call options or Index
Participations without having read and fully understood the terms,
conditions and risks, as set forth in the Characteristics and Risks of
Standardized Options booklet and/or Index Participations booklet, and
applicable supplements which you agree to furnish me prior to such
transactions. I understand clients' short option positions are assigned
on a random selection method pursuant to an automated system. All short
option positions can be assigned at any time including the day written.
5. NOTICE TO EXERCISE OPTIONS. If I purchase any listed option, I will
notify you of my intention to exercise such option no later than two hours
before the expiration time of the option (one hour in the case of an over-
the-counter option). Failure to give such notice will constitute an
abandonment of the option, in which event it may be exercised for my
account if it would be profitable to do so. Except as required by the
Options Clearing Corporation Rules, you have no obligation to exercise any
option absent specific instructions from me to that effect. If it would
not be profitable for my account due to commission expenses, it may be
permitted to expire or, at your discretion, sold or acquired by you for
some equitable payment to me based on your expenses and risk, without any
liability or responsibility on your part to me.
6. IMPARTIAL LOTTERY ALLOCATION SYSTEM. When you hold on my behalf bonds
or preferred stocks in street or bearer form which are callable in part,
I agree to participate in the impartial lottery allocation system of the
called securities in accordance with the provisions of the New York Stock
Exchange ("NYSE") rules. Further, I understand when the call is
favorable, no allocation will be made to any account in which you, your
officers, or employees, have a financial interest until all other clients'
positions in such securities are satisfied on an impartial lottery basis.
7. RESTRICTIONS ON TRADING. I understand that you may in your sole
discretion prohibit or restrict trading of securities or substitution of
securities in any of my accounts.
8. ORAL AUTHORIZATIONS. I agree that you shall incur no liability in
acting upon oral instructions given to you concerning my accounts,
provided such instructions reasonably appear to be genuine.
9. TRANSFER OF EXCESS FUNDS; EXCHANGE RATE FLUCTUATIONS. You may transfer
excess funds from my commodity accounts to any of my other accounts for
any reason, such as to avoid a margin call, not in conflict with the
Commodity Exchange Act. If any transactions are effected on an exchange
in which a foreign currency is used, any profit or loss as a result of a
fluctuation in the exchange rate will be for my account.
10. TEMPORARY INVESTMENT OF FREE CREDIT BALANCES; BOND PRINCIPAL AND
INTEREST PAYMENTS. I authorize, but do not require, you to automatically
invest on a periodic basis the free credit balances in may accounts,
including interest and dividends paid to me, in mutually selected money
market funds or, in the absence of a selection by me, in preselected money
market funds.
You are not required to remit interest or dividends to me on a daily
basis. With respect to bond principal and interest payments, you may
redeem my money market fund shares, without notice, to the extent
necessary to satisfy any debits arising in any of my accounts. I
acknowledge that interest will not be paid to me on credit balances in any
of my accounts unless specifically agreed to by you in writing. You may
credit my account with principal and interest due on the payment dates and
are entitled to recover any such payments from me if the same are not
actually received by you from the trustee or paying agent.
11. FEES AND CHARGES. I understand that you may charge commissions and
other fees for execution of transactions to purchase and sell securities,
put & call options or other property, and I agree to pay such commissions
and fees at your then prevailing rates. I also understand that such
commission and fee rates may be changed from time to time without notice
to me and I agree to be bound thereby. I may be subject to an
administrative fee on any of my accounts which produce no commission
revenue for any calendar year. You must notify me prior to applying this
fee. I agree to pay a late charge, to the extent permitted by law, if I
purchase securities in my cash account and fail to pay for such securities
by settlement date. Any late charge you may impose will be at the maximum
rate of interest set forth in the Statement of Credit Terms and may be
charged from the settlement date to the date of payment.
12. ACCURACY OF REPORTS; COMMUNICATIONS. Confirmation of orders and
statements of my accounts shall be conclusive if not objected to in
writing within ten days after mailing by you to me. Communications mailed
to me at the address specified in this agreement shall, until you have
received notice in writing from me of a different address, be deemed to
have been personally delivered to me and I agree to waive all claims
resulting from failure to receive such communications.
13. INTRODUCED ACCOUNTS. If my account has been introduced to you and is
carried by you only as a clearing broker, I agree that you are not
responsible for the conduct of the introducing broker and your only
responsibilities to me relate to the execution, clearing and bookkeeping
of transactions in my accounts.
14. SECURITY INTEREST. As security for the payment of all loans presently
outstanding or to be made under this or any other agreement between us,
and for all liabilities I may have to you now or in the future, I grant
you a security interest in any and all property belonging to me or in
which I may have an interest, held by you or carried in any of my accounts
(individual or multiple owner), including commodity accounts. All
property shall be subject to such security interest as collateral for the
discharge of my obligations to you, wherever or however arising and
without regard to whether or not you have made loans with respect to such
property. You are hereby authorized to sell and/or purchase any and all
property in any of my accounts or to liquidate any open commodity futures
or forward contracts in any of my accounts without notice in order to
satisfy such obligations. In enforcing your security interest, you shall
have the discretion to determine which property is to be sold and the
order in which it is to be sold and shall have all the rights and remedies
available to a secured party under the New York Uniform Commercial Code.
15. LIQUIDATION OF COLLATERAL OR ACCOUNT. You may sell any or all
property held in any of my accounts and cancel any open orders for the
purchase or sale of any property without notice in the event of my death
or whenever in your discretion you consider it necessary for your
protection. In such event you also may borrow or buy-in all property
required to make delivery against any sale, including a short sale,
effected for me. Such sale or purchase may be public or private and may
be made without advertising or notice to me and in such manner as you may
in your discretion determine. No demands, calls, tenders or notices which
you may make or give in any one or more instances shall invalidate the
foregoing waiver on my part. At any such sale you may purchase the
property free of any right of redemption and I shall be liable for any
deficiency in my accounts. Without your prior written consent, I will not
cause or allow any of the collateral held in my account, whether now owned
or hereafter acquired, to be or become subject to any liens, security
interests, mortgages or encumbrances of any nature other than your
security interest.
16. LOANS. From time to time you may, at your discretion, make loans to
me for any purpose, including the purpose of purchasing, carrying or
trading in securities ("Margin Loans") or for a purpose other than
purchasing, carrying or trading in securities ("Express Credit Loans").
Pursuant to Regulation T, Margin Loans will be made in a Margin Account
and Express Credit Loans will be made in a nonsecurities credit account
("Express Credit Account"). The minimum and maximum amount of any
particular loan may be established by you in your discretion regardless of
the amount of collateral delivered to you and you may change such minimum
and maximum amounts from time to time.
17. EXPRESS CREDIT. I agree not to use the proceeds of any Express Credit
Loan to purchase, carry or trade in securities. I also agree not to use
Express Credit Loan proceeds directly or indirectly to repay other debt I
incur for the purpose of purchasing, carrying or trading in securities.
18. PAYMENT OF LOANS ON DEMAND. I agree to pay ON DEMAND any balance
owing with respect to any of my accounts, including interest and
commissions and any costs of collection (including attorneys' fees, if
incurred by your). I understand that you may demand full payment of the
balance due in my accounts plus any interest charges accrued thereon,at
your sole option, at any time without cause and whether or not such demand
is made for your protection. That is, loans are not made for any specific
term or duration but rather are due and payable at your discretion upon a
demand for payment made to me. I agree that you may at your sole option
apply payments of interest, dividends, premium and principal received on
any of the collateral, whether pursuant to the terms of such collateral or
upon the sale of the collateral, to the payment of the balance due in my
accounts or pay such amounts to me.
19. MAINTENANCE OF COLLATERAL. I understand that the properties in my
Margin Account and/or Express Credit Account may be carried in your
general loans and may be pledged or hypothecated by you separately or in
common with other properties. The pledge or hypothecation by you may
secure your indebtedness equal to or greater than the amount owed to you
by me. I agree to deposit additional collateral, as you may in your
discretion require from time to time, in the form of cash or securities in
accordance with the rules and regulations of the Federal Reserve Board,
the NYSE, the American Stock Exchange, Inc. ("AMEX""), other national
securities exchanges, associations or regulatory agencies under whose
jurisdiction you are subject and your own minimum house margin maintenance
requirements. In the event I no longer maintain a debit balance or an
indebtedness to you, it is understood that you will fully segregate all
securities in my accounts in your safekeeping or control (directly or
through a clearing house) and/or deliver them to me upon my request.
20. INTEREST CHARGES AND PAYMENTS. I agree to pay interest, to the extent
not prohibited by the laws of the State of New York, upon all amounts
advanced and other balances due in my accounts in accordance with your
usual custom, which may include the compounding of interest. Your custom,
which may change from time to time, is set forth in your disclosure
statement, which by this reference is herein specifically incorporated.
By entering into any transactions with you after I receive your disclosure
statement, I acknowledge that I have read and agree to its terms for all
past and future transactions in my account. I understand that interest on
all debit balances shall be payable ON DEMAND and that in the absence of
any demand interest shall be due on the first business day of each
interest period. My daily net debit balance will include accrued interest
I have not paid from prior interest periods, if any. I understand that to
the extent permitted by applicable law you may charge me interest on the
unpaid interest previously added to my debit balance; that is, you may
charge me compound interest. Payments of interest and principal and all
other payments made by me under this agreement shall be made to your main
office in New York, New York. You may, in your discretion, not deem any
check or other remittance to constitute payment until it has been paid by
the drawee and the funds representing such payment have become available
to you.
21. CREDIT AND BUSINESS CONDUCT INFORMATION AND INVESTIGATION. I
authorize you at your discretion to obtain reports and to provide
information to others concerning my credit standing and my business
conduct. You may ask credit reporting agencies for consumer reports of my
credit history. Upon my request you will inform me whether you have
obtained any such consumer reports and if you have, you will inform me of
the name and address of the consumer reporting agency that furnished the
reports to you.
22. JOINT ACCOUNTS
a. If this is a Joint Account, we agree that each of us shall have the
authority on behalf of the account to buy, sell (including short sales),
and otherwise deal in, through you as brokers, securities, options or
other property on margin or otherwise; to receive for the account,
confirmations, statements and communications of every kind; to receive for
the account and to dispose of money, securities and other property; to
make, terminate, or modify for the account, agreements relating to these
matters or waive any of the provisions of such agreements; and generally
to deal with you as if each of us alone were the account owner, all
without notice to the other account owners. We agree that notice to any
account owner shall be deemed to be notice to all account owners. Each
account owner shall be jointly and severally liable for this account.
b. You may follow the instructions of any of us concerning this account
and make deliveries to any of us, of any or all securities or other
property in this account, and make payments to any of us, of any or all
monies in this account as any of us may order and direct, even if such
deliveries and/or payments shall be made to one of us personally or to
third parties. You shall be under no obligation to inquire into the
purpose of any such demand for delivery of securities, property, or
payment of monies, and you shall not be bound to see to the application or
disposition of the said securities, property and/or monies so delivered or
paid to any of us. Notwithstanding the foregoing, you are authorized, in
your discretion to require joint action by the joint tenants with respect
to any matter concerning the joint account, including the giving or
cancellation of orders and the withdrawal of monies, securities or other
property.
c. In the event of the death of any of us, the survivor(s) shall
immediately give you written notice thereof, and you may, before or after
receiving such notice, take such proceedings, require such documents,
retain such portion of the account and/or restrict transactions in the
account as you may deem advisable to protect you against any tax,
liability, penalty or loss under any present or future laws or otherwise.
The estate of any of us who shall have died shall be liable and each
survivor will be liable, jointly and severally, to you for any debt or
loss in this account resulting from the completion of transactions
initiated prior to your receipt of a written notice of such death or
incurred in the liquidation of the account or the adjustment of the
interests of the respective parties.
d. Any taxes or other expenses becoming a lien against or being payable
out of the account as the result of the death of any of us, or through the
exercise by his or her estate or representatives of any rights in the
account shall be chargeable against the interest of the survivor(s) as
well as against the interest of the estate of the decedent. This
provision shall not release the decedent's estate from any liability
provided for in this agreement.
e. DESIGNATION OF TENANCY (This paragraph "22(e)" is not applicable in the
State of Texas, where form no. 3882 "Texas Joint Account Supplement..."
must be executed and returned with this agreement to you.). You may
presume that it is the express intention of us to create an estate or
account as joint tenants with rights of survivorship and not as tenants-
in-common, unless otherwise provided by striking this paragraph and
executing a separate Tenancy-in-Common form and returning it to you. In
the event of the death of either or any of us, the entire interest in the
joint account shall be vested in the survivor(s) on the same terms and
conditions as theretofore held, without in any manner releasing the
decedent's estate from the liability.
23. ARBITRATION.
- - ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
- - THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO A JURY TRIAL.
<PAGE>
- - PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
- - THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
- - THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
Any controversy: (1) arising out of or relating to any of my accounts
maintained individually or jointly with any other party, in any capacity,
with you; or (2) relating to my transactions or accounts with any of your
predecessor firms by merger, acquisition or other business combination
from the inception of such accounts; or (3) with respect to transactions
of any kind executed by, through or with you, your officers, directors,
agents and/or employees; or (4) with respect to this agreement or any
other agreements entered into with you relating to my accounts, or the
breach thereof, shall be resolved by arbitration conducted only at the
NYSE, NASD, or AMEX or any self-regulatory organization ("SRO") subject to
the jurisdiction of the Securities and Exchange Commission and pursuant to
the arbitration procedures then in effect of any such exchange or SRO as
I may elect. If I do not make such election by registered mail addressed
to you at your main office within 5 days after demand by you that I make
such election, then you will have the right to elect the arbitration
tribunal of your choice. Judgment upon any award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
24. GOVERNING LAW AND APPLICABLE REGULATIONS. This agreement, including
the arbitration provisions contained herein, shall be governed by the laws
of the State of New York without giving effect to the choice of law or
conflict of laws provisions thereof. All transactions for my accounts
shall be subject to the regulations of all applicable federal, state and
self-regulatory agencies including but not limited to the Securities and
Exchange Commission, the various securities and commodity exchanges, the
Municipal Securities Rulemaking Board, the NASD, the Board of Governors of
the Federal Reserve System and the constitution, rules and customs of the
exchange or market (and its clearing house, if any) where executed.
Actual deliveries are intended on all transactions. I agree not to exceed
the exercise limits and/or position limits set by the option exchanges,
for my own account, acting alone or in concert with others.
25. BINDING EFFECT. This agreement and its terms shall be binding upon my
heirs executors, successors, administrators, assigns, committee and/or
conservators ("successors"). In the event of my death, incompetency, or
disability, whether or not any successors of my estate and property shall
have qualified or been appointed, you may continue to operate as though I
were alive and competent and you may liquidate my account as described in
Paragraph 15 above without prior notice to or demand upon my successors.
This agreement shall inure to the benefit of your assigns and successors,
by merger, consolidation or otherwise (and you may transfer my accounts to
any such successors and assigns at your discretion).
26. WAIVER NOT IMPLIED. Your failure to insist at any time upon strict
compliance with this agreement or with any of its terms or any continued
course of such conduct on your part shall not constitute or be considered
a waiver by you of any of your rights.
27. SEVERABILITY. If any provision of this agreement is or becomes
inconsistent with any applicable present or future law, rule or
regulation, that provision will be deemed rescinded or modified in order
to comply with the relevant law, rule or regulation. All other provisions
of this agreement will continue and remain in full force and effect.
28. NO ORAL MODIFICATION; AFFECT ON PRIOR AGREEMENTS. No modification of
this agreement shall be effective unless in writing and executed by you
and me. This agreement is not subject to any oral modification; the
signing of this agreement supersedes any prior Customer's or Client's
Agreement (except those governing transactions in my commodity accounts)
made with you or any of your predecessors or assignors. To the extent
this agreement is inconsistent with any other agreement governing my
account, the provisions of this agreement shall govern.
Tax Certification: Under penalties of perjury, I certify that the number
shown below on this form is my correct taxpayer identification number or
if not, then the number I have entered below per instructions is my
correct taxpayer identification number, and that I am not subject to
backup withholding because: (a) I have not been notified by the Internal
Revenue Service (IRS) that I am subject to backup withholding as a result
of a failure to report all interest or dividends, or (b) the IRS has
notified me that I am no longer subject to backup withholding (see below),
or (c) I am exempt from backup withholding (see below). Note: You must
cross out (b) above if you are currently subject to backup withholding
because of underreporting interest or dividends on your tax return. For
Those Exempt From Backup Withholding (see instructions), write the word
"Exempt" here:__________________.
Unless I strike this paragraph and initial the same, you are hereby
specifically authorized to lend, either separately or with or other
securities, to either yourself as broker or to others, any securities held
by you on margin or as collateral for an Express Credit Loan for my/our
accounts or as collateral therefor. This agreement shall continue until
signed notice of revocation is received by or from me and, in case of such
revocation, it shall continue in effect as to transactions entered into
prior thereto. By signing this agreement I acknowledge that my securities
may be loaned to you or loaned out to others. I understand that if I
decline to accept this provision, you may refuse to extend margin or other
loans in relation to my accounts.
NOTICE: Any person, whether married, unmarried or separated, may apply
for a separate account.
NOTICE: By signing this agreement, I acknowledge receipt of a copy of
this agreement.
CAUTION TO CLIENT:
IT IS IMPORTANT THAT YOU THOROUGHLY READ THIS AGREEMENT BEFORE YOU SIGN
IT.
NOTICE: This agreement contains a pre-dispute arbitration clause, which is
located on this page at paragraph 23.
Account Number: ____________________
Branch Account T C FC
_____ _______ _ _ ________________
Client's
Signature_________________________________X Date: ___________
<PAGE>
AGREEMENT
This AGREEMENT among Brooke Group Ltd., a Delaware
corporation ("BGL"), BGLS Inc., a Delaware corporation and a
direct wholly owned subsidiary of BGL ("BGLS"), and High River
Limited Partnership, a Delaware limited partnership ("High
River"), dated October 17, 1995
W I T N E S S E T H:
WHEREAS, High River, directly or indirectly, and BGL
and BGLS, indirectly through their ownership of stock of New
Valley Corporation, a New York corporation ("New Valley"), are
stockholders of RJR Nabisco Holdings Corp., a Delaware
corporation ("RJRN");
WHEREAS, the parties hereto believe that the value of
RJRN stockholders' investment can be substantially increased
through a spinoff (the "Spinoff") of all or substantially all of
RJRN's remaining investment in Nabisco Holding Corp., a Delaware
corporation ("Nabisco");
WHEREAS, BGL and BGLS desire to obtain the assistance
and advice of High River with respect to measures designed to
effectuate the Spinoff at the earliest possible date;
WHEREAS, High River is willing to give such assistance
and advice to BGL and BGLS in consideration of the agreements by
BGL and BGLS set forth herein;
NOW, THEREFORE, in consideration of the foregoing and
of the mutual promises set forth herein, the parties hereto,
intending to be legally bound, agree as follows:
Section 1. Solicitation of Other Investors and RJRN
Stockholders. (a) Each of the parties hereto intends to use its
best efforts to encourage other investors to acquire shares of
common stock, par value $.01 per share ("Shares"), of RJRN and to
persuade such investors and other major stockholders of RJRN to
cooperate with the parties hereto in order to cause RJRN to
effectuate the Spinoff. The parties hereto anticipate that, as
an inducement to such investors and stockholders, the parties
hereto may enter into binding contractual arrangements with such
investors and stockholders on terms which may but need not be
similar to the terms of this Agreement, and that this Agreement
may be amended or supplemented from time to time to reflect such
arrangements. The parties hereto agree that, in the event any
party hereto proposes to enter into any such contractual
arrangement or so to amend or supplement this Agreement, the
parties hereto shall attempt in good faith to reach mutually
acceptable terms with respect to any such proposed arrangement,
amendment or supplement.
(b) BGL and BGLS intend to seek RJRN stockholder
approval, either at RJRN's 1996 annual meeting of stockholders
(the "1996 Annual Meeting") or at a special meeting of RJRN
stockholders (a "Special Meeting") or through action by written
consent of the RJRN stockholders without a meeting, of any or all
of the following proposals (the "Proposals"): (i) a proposal to
recommend that the Board of Directors of RJRN (the "RJRN Board")
cause RJRN to effectuate the Spinoff (the "Spinoff Proposal"),
(ii) a proposal to remove the entire RJRN Board and to elect as
directors of RJRN a slate of nominees who shall be selected by
BGL (the "BGL Nominees") and who shall pledge to carry out the
Spinoff as promptly as practicable following their election (the
"Election Proposal"), (iii) a proposal for the combination,
incident to the Spinoff, of the tobacco business of Liggett Group
Inc., a Delaware corporation ("Liggett"), with the tobacco
business of RJRN and (iv) a proposal to amend the by-laws of RJRN
in any manner that may be necessary in order to ensure that RJRN
stockholders are permitted to call a Special Meeting and to vote
freely at such Special Meeting or at the 1996 Annual Meeting on
any or all of the Proposals, or in any other way necessary to
facilitate the Proposals (the "By-Law Amendment Proposal"). In
connection with the foregoing, BGL and BGLS may seek written
demands or requests from RJRN stockholders ("Stockholder
Demands") that a Special Meeting be held for the purpose of
voting on any or all of the Proposals. BGL and BGLS may also
seek written consents from RJRN stockholders ("Written Consents")
to adopt any or all of the Proposals.
(c) Prior to the 1996 Annual Meeting, BGL or BGLS
shall solicit Written Consents in favor of the Spinoff Proposal
and the By-Law Amendment Proposal. BGL or BGLS may also, in its
sole discretion, conduct solicitations, in addition to the
solicitation described in the preceding sentence, of Stockholder
Demands or Written Consents in favor of the other Proposals, or
of proxies to be voted in favor of one or more of the Proposals
at the 1996 Annual Meeting or a Special Meeting ("Proxies"). In
respect of any such solicitation of Stockholder Demands, Written
Consents or Proxies:
(i) BGL or BGLS shall prepare and file with the
Securities and Exchange Commission (the "SEC") and mail to
RJRN stockholders, a solicitation statement under Regulation
14A of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), relating to such solicitation (the
"Solicitation Statement");
(ii) the Solicitation Statement relating to any
solicitation of Written Consents or Proxies seeking RJRN
stockholder approval of the Election Proposal, or of
Stockholder Demands for a Special Meeting at which RJRN
stockholder approval of the Election Proposal will be
sought, shall contain a pledge (the "BGL Pledge") by BGL and
BGLS stating, in substance, that (A) BGL, BGLS and their
affiliates (the "BGL Group") will not engage in any Business
Combination (as defined below in Section 3(a)) other than a
Permitted Business Combination (as defined below in Section
3(b)) at any time (I) prior to the earlier of (x) the 1996
Annual Meeting and (y) the occurrence of a Termination Event
(as defined below in Section 3(c)) described in Section
3(c)(iii) (in the case of a solicitation of Stockholder
Demands), Section 3(c)(iv) (in the case of a solicitation of
Written Consents) or Section 3(c)(v) (in the case of a
solicitation of Proxies), or (II) when BGL Nominees
constitute a majority of the RJRN Board, (B) the BGL Group
will not exercise any management control over Nabisco prior
to the consummation of the Spinoff and (C) the BGL Group
will halt its solicitation of Stockholder Demands, Written
Consents or Proxies, as the case may be, if the RJRN Board
takes any action described in Section 3(c)(vi); and
(iii) if BGL and BGLS take the actions described
in clause (ii) with respect to any solicitation described in
clause (i), then (A) promptly upon the request of BGL or
BGLS, High River shall (and shall cause each of its
affiliates to) execute and deliver to BGL or BGLS a valid
Stockholder Demand, Written Consent or Proxy, as the case
may be (and not withdraw such Stockholder Demand, Written
Consent or Proxy), with respect to all of the Shares and all
of the depositary shares representing Series C Conversion
Preferred Stock, par value $.01 per share ("Series C
Depositary Shares"), of RJRN beneficially owned by it and
(B) each of BGL and BGLS shall (and shall cause each of its
affiliates to) vote in favor of such Proposal all Shares and
all Series C Depositary Shares beneficially owned by it.
Section 2. Termination. (a) This Agreement shall
automatically terminate upon the earlier of (i) the first
anniversary of the date hereof and (ii) the termination of the
Agreement dated as of October 17, 1995 among New Valley, ALKI
Corp., a Delaware corporation ("NV Sub"), and High River (the
"New Valley Agreement") by High River, and any party hereto may
terminate this Agreement sooner at any time in its sole
discretion by written notice to the other parties hereto,
provided, however, that if New Valley or NV Sub terminates the
New Valley Agreement, then BGL and BGLS shall be deemed to have
simultaneously terminated this Agreement.
(b) If this Agreement is terminated pursuant to this
Section 2, this Agreement shall forthwith become null and void,
and there shall be no liability or obligation on the part of any
party hereto, except for the obligations of the parties hereto
pursuant to Section 4, Section 5 and Section 8, which shall
remain in full force and effect for the periods set forth
therein.
Section 3. Certain Definitions. For purposes of this
Agreement, the following terms shall have the meanings indicated
below:
(a) "Business Combination," with respect to any party
hereto, means:
(i) Any material sale of capital stock or other
equity interests of RJRN beneficially owned by such party or
any of such party's affiliates to RJRN or any of RJRN's
affiliates, other than a sale effected on a registered
securities exchange or through the NASDAQ system that
satisfies the following conditions: (A) such sale is not
pursuant to any agreement, understanding or arrangement with
RJRN or any of its affiliates, agents or representatives,
(B) either (I) such party and its affiliates do not know
that RJRN or one of its affiliates is the buyer or (II) such
sale is pursuant to a market repurchase program which has
previously been publicly announced by RJRN or one of its
affiliates and (C) such party has given notice to the other
parties at least one day prior to such sale of its intention
to sell such Shares (which notice shall describe the
approximate number of Shares to be sold and the approximate
time period in which such sales will be made, but need not
specify the exact number of Shares to be sold or the exact
timing of such sales);
(ii) Any material sale of capital stock or other
equity interests of such party or any of such party's
affiliates to RJRN or any of RJRN's affiliates, other than
pursuant to a sale effected on a registered securities
exchange or through the NASDAQ system which is not pursuant
to any agreement, understanding or arrangement with RJRN or
any of its affiliates, agents or representatives and such
party and its affiliates do not know that RJRN or one of its
affiliates is the buyer;
(iii) Any merger, consolidation or combination of
such party or any of such party's material affiliates with
RJRN or any of RJRN's affiliates;
(iv) Any material borrowings by such party or any
of such party's affiliates from RJRN or any of RJRN's
affiliates, or by RJRN or any of RJRN's affiliates from such
party or any of such party's affiliates, other than credit
in the ordinary course of business substantially in
accordance with industry practice or past practice;
(v) Any sale or other disposition of any material
assets or properties of such party or any of such party's
affiliates to RJRN or any of RJRN's affiliates, or of any
material assets or properties of RJRN or any of RJRN's
affiliates to such party or any of such party's affiliates,
other than in the ordinary course of business substantially
in accordance with industry practice or past practice; or
(vi) Any receipt by such party or any of such
party's affiliates of any material benefit, including any
material payment in cash or in kind from RJRN, other than
benefits or payments in the ordinary course of business
substantially in accordance with industry practice or past
practice;
except, in each case, for a transaction that is made available to
all other holders of Shares substantially at the same time on
substantially equivalent terms.
(b) "Permitted Business Combination" means any
Business Combination which is either (i) consummated
substantially simultaneously with or subsequently to (A) a
dividend or other distribution to RJRN's stockholders of all or
substantially all of RJRN's remaining equity interest in Nabisco
or (B) another transaction with respect to RJRN's investment in
Nabisco which would provide substantially equivalent value to
RJRN's stockholders or (ii) approved by the holders of a majority
of the outstanding Shares not then beneficially owned by the BGL
Group or by New Valley and its affiliates (the "New Valley
Group").
(c) "Termination Event" means any of the following
events:
(i) Any judgment, ruling, order or decree of any
court or any other governmental agency or authority
prohibiting, enjoining or restraining, or which has the
effect of prohibiting, enjoining or restraining, any party
to this Agreement or the New Valley Agreement from
fulfilling its material obligations under this Agreement or
the New Valley Agreement, or which would otherwise render
unlawful, the fulfillment of any party's material
obligations under this Agreement or the New Valley
Agreement, except any judgment, ruling, order or decree (A)
arising out of a breach of any representation contained in
Section 7 of this Agreement or in Section 8 of the New
Valley Agreement or (B) prohibiting, enjoining or
restraining, or which has the effect of prohibiting,
enjoining or restraining, or otherwise rendering unlawful
any Business Combination other than a Permitted Business
Combination (an "Order") is in effect and such party has not
appealed such Order by appropriate proceedings prior to or
on the tenth day after such Order is entered, or any Order
has been in effect for at least 30 days and has not been
vacated or reversed, or any governmental agency or authority
has indicated to any party, orally or in writing, its
intention to issue or to seek to obtain an Order (an "Order
Threat"); provided, however, that any such event shall be a
Termination Event only if (x) in the case of any party which
is (or a member of whose Group is) the subject of an Order
or Order Threat, such party gives prompt notice thereof to
the other party and thereafter terminates this Agreement or
the New Valley Agreement prior to or on the tenth day after
such event occurs and (y) in the case of a party which is
not (and all of the members of whose Group are not) the
subject of such an Order or Order Threat, such party
thereafter terminates this Agreement or the New Valley
Agreement prior to or on the tenth day following the time
such party receives notice thereof from the subject party;
(ii) The Federal Trade Commission (the "FTC") or
the Antitrust Division of the Department of Justice (the
"Antitrust Division") has instituted any action or
proceeding seeking to prohibit, enjoin or restrain any party
to this Agreement or the New Valley Agreement from
fulfilling its material obligations under this Agreement or
the New Valley Agreement or to require any such party or any
of its affiliates to make any material divestitures as a
condition to the fulfillment of such obligations, or
otherwise to impose any conditions or restrictions which
could have a material adverse effect on any party hereto or
on the transactions contemplated by this Agreement or the
New Valley Agreement, or the FTC or the Antitrust Division
has indicated to any such party, orally or in writing, its
intention to institute any such action or proceeding, in
each case other than any action, proceeding, requirement,
condition or restriction with respect to any Business
Combination except a Permitted Business Combination;
provided, however, that any such event shall be a
Termination Event only if the party which is the subject of
such action, proceeding, requirement, condition or
restriction thereafter terminates this Agreement or the New
Valley Agreement prior to or on the tenth day after such
event occurs;
(iii) BGL or BGLS has commenced a solicitation of
Stockholder Demands and has failed to receive within 120
days after the date of commencement the number of validly
executed and unwithdrawn Stockholder Demands necessary to
require RJRN to hold a Special Meeting, unless (A) the
Special Meeting has otherwise been called or held or (B) on
or prior to such 120th day, BGL and BGLS have taken all
actions necessary to cause one or more of the Proposals to
be brought before the 1996 Annual Meeting;
(iv) BGL or BGLS has commenced a solicitation of
Written Consents with respect to one or more Proposals and
has failed to receive within 120 days after the date of
commencement the number of validly executed and unwithdrawn
Written Consents necessary to approve at least one such
Proposal, unless (A) at least one such Proposal has been
otherwise approved at the 1996 Annual Meeting or a Special
Meeting or (B) on or prior to such 120th day, BGL and BGLS
have taken all actions necessary to cause at least one such
Proposal to be submitted for a stockholder vote at the 1996
Annual Meeting or a Special Meeting;
(v) A Special Meeting or the 1996 Annual Meeting
has been held, and one or more of the Proposals has been
voted upon thereat, the BGL Nominees have not been elected
to constitute a majority of the RJRN directors then in
office and either (A) BGL and BGLS have determined not to
pursue any further judicial review of the results of the
vote at the Special Meeting or the 1996 Annual Meeting, as
the case may be, or (B) no such further judicial review is
available;
(vi) The RJRN Board has irrevocably declared a
dividend or other distribution to RJRN's stockholders of all
or substantially all of RJRN's remaining equity interest in
Nabisco or has made any other legally binding commitment to
engage in a transaction with respect to RJRN's investment in
Nabisco which would provide substantially equivalent
economic benefits to RJRN's stockholders;
(vii) Any event has occurred, or RJRN has taken
any action, which is reasonably likely to have a material
adverse effect on the business, operations or financial
condition of RJRN and its subsidiaries, taken as a whole;
(viii) BGL or BGLS determines, reasonably and in
good faith, that any event has occurred as a result of which
no solicitation of Stockholder Demands, Written Consents or
Proxies with respect to the Proposals would have a
reasonable chance of success; provided, however, that any
such event shall be a Termination Event only if BGL or BGLS
notifies High River of such determination (which notice
shall specify in reasonable detail the nature of the event
which has occurred and the reasons for such determination)
at least five business days prior to terminating this
Agreement or the New Valley Agreement and thereafter BGL or
BGLS terminates this Agreement, and New Valley or NV Sub
terminates the New Valley Agreement, on such fifth business
day; and provided that in any challenge by High River of a
termination under this subpart (viii), High River shall bear
the burden, in order to prevail, of establishing that BGL's
or BGLS's determination as first set forth in this subpart
(viii) was unreasonable or was made in bad faith;
(ix) BGL and BGLS (A) fail to nominate the BGL
Nominees prior to November 20, 1995, or such later date as
may be designated by RJRN as the final date for such
nominations to be made, for election to the RJRN Board at
the 1996 Annual Meeting in accordance with the procedures
set forth in the most recent version of the by-laws of RJRN
filed with the SEC prior to such date, (B) fail to mail to
RJRN stockholders a Solicitation Statement relating to a
solicitation of Written Consents with respect to the Spinoff
Proposal and/or the By-Law Amendment Proposal prior to
December 15, 1995, (C) fail to file the Solicitation
Statement relating to the Annual Meeting preliminarily with
the SEC prior to the earlier of (I) February 15, 1996 and
(II) the date on which a Solicitation Statement described in
clause (B) of this Section 3(c)(ix) is first mailed to RJRN
stockholders, (D) fail to make the BGL Pledge in any
Solicitation Statement relating to any solicitation of
Written Consents or Proxies seeking RJRN stockholder
approval of the Election Proposal, or of Stockholder Demands
for a Special Meeting at which RJRN stockholder approval of
the Election Proposal will be sought, or (E) take any action
in violation of the BGL Pledge after it is made; provided,
however, that any such event shall be a Termination Event
only if High River thereafter terminates this Agreement or
the New Valley Agreement prior to or on the tenth day after
the first date that High River becomes aware that such event
has occurred, but in no event shall the failure to terminate
this Agreement after the occurrence of any such event
prohibit the termination of this Agreement upon the
subsequent occurrence of any other such event; or
(x) Either Group sells any Shares under the
circumstances described in clause (x) of the first proviso
to the first sentence of Section 1(d)(i) of the New Valley
Agreement, or is required to offer any Shares to another
party pursuant to the first sentence of Section 1(d)(ii) of
the New Valley Agreement; provided, however, that any such
event shall be a Termination Event only if a party to the
New Valley Agreement which is not a member of such Group
thereafter terminates the New Valley Agreement prior to or
on the tenth day after the first date that such party
becomes aware that such event has occurred.
Section 4. Certain Fees and Percentage Payments. (a)
BGLS shall pay or cause to be paid to High River the sum of $50
million promptly upon:
(i) any termination of this Agreement by BGL or
BGLS at a time when (A) no Termination Event has occurred
and (B) High River is not in material breach of its
obligations (the "High River Obligations") under Section
1(c)(iii) or Section 8 of this Agreement or Section 1(a),
the fourth sentence of Section 1(c)(v), the ninth sentence
of Section 1(c)(v) or Section 1(d)(i) of the New Valley
Agreement;
(ii) any termination of this Agreement by High
River at a time when (A) no Termination Event has occurred,
(B) BGL or BGLS is in material breach of its obligations
(the "BGL Obligations") under Section 1(c)(iii) of this
Agreement and (C) High River is not in material breach of
the High River Obligations; or
(iii) the consummation of any Business
Combination (including any Permitted Business Combination)
with respect to the BGL Group, if:
(A) such Business Combination is consummated
prior to the later of (I) the date of RJRN's annual
meeting of stockholders for 1997 and (II) the first
anniversary of the date of termination of this
Agreement (the later of such dates being referred to
herein as the "Reference Date");
(B) a legally binding agreement to enter into
such Business Combination or any other Business
Combination is entered into prior to the Reference Date
and such Business Combination is consummated prior to
the second anniversary of the date of such agreement;
or
(C) the BGL Nominees are elected to
constitute a majority of the RJRN Board prior to the
Reference Date and such Business Combination is
consummated prior to the fifth anniversary of the date
of such election;
provided, however, that (x) High River shall not be entitled to
more than one fee under this Section 4(a), (y) High River shall
not be entitled to any fee under this Section 4(a) if BGL shall
have previously or shall concurrently become entitled to the fee
described in Section 4(b) of this Agreement or if New Valley
shall have previously become entitled to the fee described in
Section 5(b) of the New Valley Agreement and (z) the amount of
any fee to which High River may be entitled at any time pursuant
to this Section 4(a) shall be reduced by the amount of any fee
(the "New Valley Fee") which High River shall theretofore have
been paid pursuant to Section 5(a) of the New Valley Agreement
and by any percentage payment (the "New Valley Percentage
Payment") which High River shall theretofore have been paid
pursuant to Section 5(d) of the New Valley Agreement, in either
of which events BGL or BGLS shall promptly upon request by New
Valley reimburse New Valley for all or any part of the New Valley
Fee or the New Valley Percentage Payment paid by or on behalf of
New Valley.
(b) High River shall pay or cause to be paid to BGL
the sum of $50 million promptly upon:
(i) any termination of this Agreement by High
River at a time when (A) no Termination Event has occurred,
(B) BGL and BGLS are not in material breach of any of the
BGL Obligations and (C) New Valley and NV Sub are not in
material breach of any of their obligations (the "New Valley
Obligations") under Section 1(a), the fourth sentence of
Section 1(c)(v), the ninth sentence of Section 1(c)(v),
Section 1(d)(i) or Section 2 of the New Valley Agreement;
(ii) any termination of this Agreement by BGL or
BGLS at a time when (A) no Termination Event has occurred,
(B) High River is in material breach of its obligations
under Section 1(c)(iii) or Section 8 of this Agreement, (C)
BGL and BGLS are not in material breach of the BGL
Obligations and (D) New Valley and NV Sub are not in
material breach of the New Valley Obligations;
provided, however, that (x) BGL shall not be entitled to more
than one fee under this Section 4(b), (y) BGL shall not be
entitled to any fee under this Section 4(b) if High River shall
have previously or shall concurrently become entitled to the fee
described in Section 4(a) of this Agreement or the fee described
in Section 5(a) of the New Valley Agreement and (z) the amount of
any fee to which BGL may be entitled at any time pursuant to this
Section 4(b) shall be reduced by the amount of any fee which New
Valley shall theretofore have been paid pursuant to Section 5(b)
of the New Valley Agreement.
(c) Notwithstanding anything in this Agreement or the
New Valley Agreement to the contrary,
(i) if the New Valley Group (as such term is
defined in the New Valley Agreement) or the BGL Group sells
any Shares or any Other Securities (as such term is defined
in the New Valley Agreement) of any class or series prior to
the Reference Date, then BGLS shall pay or cause to be paid
to High River promptly upon the consummation of such sale a
percentage payment equal to the product of (A) the Net
Profit Override (as such term is defined in the New Valley
Agreement) realized in such sale, multiplied by (B) a
fraction (the "Sale Fraction," which shall be calculated
separately for the Shares and for each class or series of
Other Securities), the numerator of which is the number of
Shares or such Other Securities (as the case may be) held as
of the date hereof, or hereafter acquired prior to such
sale, by the BGL Group and the denominator of which is the
number of Shares or such Other Securities (as the case may
be) held as of the date hereof, or hereafter acquired prior
to such sale, by the BGL Group and the New Valley Group; and
(ii) if the New Valley Group or the BGL Group
holds any Shares or any Other Securities of any class or
series on the Reference Date, then New Valley shall pay or
cause to be paid to High River promptly upon the Reference
Date a percentage payment equal to the product of (A) the
Net Profit Override existing on the Reference Date in
respect of such Shares or such Other Securities, multiplied
by (B) a fraction (the "Holdings Fraction," which shall be
calculated separately for the Shares and for each class or
series of Other Securities), the numerator of which is the
number of Shares or such Other Securities (as the case may
be) held as of the date hereof, or hereafter acquired prior
to the Reference Date, by the BGL Group and the denominator
of which is the number of Shares or such Other Securities
(as the case may be) held as of the date hereof, or
hereafter acquired prior to the Reference Date, by the BGL
Group and the New Valley Group;
provided, however, that (x) the amount of any percentage payment
to which High River is entitled at any time under this Section
4(c) shall be reduced by the product of (1) the amount of any fee
which High River shall have theretofore been paid by or on behalf
of New Valley under Section 5(a) of the New Valley Agreement or
by BGLS under Section 4(a) of this Agreement, multiplied by (2)
the Sale Fraction or the Holdings Fraction, as the case may be,
(y) High River shall not be entitled to any percentage payment
under this Section 4(c) if BGL shall have previously become
entitled to the fee described in Section 4(b) of this Agreement
or if New Valley shall have previously become entitled to the fee
described in Section 5(b) of the New Valley Agreement and (z) in
the event that the New Valley Group or the BGL Group realizes a
Net Loss (as defined in the New Valley Agreement) on any sale of
any Shares or any Other Securities of any class or series, or
that any Net Loss exists on the Reference Date in respect of any
Shares or any Other Securities of any class or series held by the
New Valley Group or the BGL Group on the Reference Date, then in
each such event High River shall repay or cause to be repaid to
BGLS promptly upon receipt of notice from BGLS an amount equal to
the product of (1) the excess, if any, of (X) 20% of such Net
Loss over (Y) the aggregate amount of such percentage payments
theretofore received by High River, multiplied by (2) a fraction,
the numerator of which is the aggregate amount of such percentage
payments theretofore paid by or on behalf of BGLS and the
denominator of which is the aggregate amount of such percentage
payments theretofore paid by or on behalf of New Valley and BGLS.
BGL and BGLS shall use their reasonable best efforts to provide
to High River (x) once each calendar week, commencing from the
date of this Agreement, a report containing a reasonably detailed
calculation of the number of Shares and the amount of Other
Securities then held by the BGL Group and the Weighted-Average
Cost (as defined in the New Valley Agreement) of such Shares and
Other Securities and (y) promptly after the close of business on
each business day on which any Shares are sold by the BGL Group,
a report setting forth the number of Shares or Other Securities
sold since the close of business on the previous business day,
the aggregate price realized in such sales and the aggregate
commissions paid in such sales; provided, however, that BGL and
BGLS shall not incur any liability or suffer any prejudice as a
result of its provision of any such estimate.
(d) The parties hereto hereby acknowledge and agree
that the arrangements in Section 4(c) with respect to percentage
payments constitute a partnership for Federal income tax purposes
and that the parties hereto shall file income tax returns in a
consistent manner.
(e) Each of BGL and High River shall give notice to
the other promptly upon becoming aware that a Termination Event
has occurred or that any event has occurred that would be a
Termination Event but for the giving of notice or the termination
of this Agreement.
Section 5. Costs and Expenses. (a) Except as set
forth in Section 5(b), the BGL Group shall be responsible for all
out-of-pocket costs and expenses of soliciting Stockholder
Demands, Written Consents and Proxies from the stockholders of
RJRN, including without limitation, to the extent related
thereto, (i) all registration and filing fees under the Exchange
Act or the Securities Act of 1933, as amended (the "Securities
Act"), (ii) all printing, messenger, telephone and delivery
expenses, (iii) all fees and disbursements of counsel and (iv)
all fees and disbursements of public relations firms, proxy
solicitation firms, investment bankers and other financial
advisors.
(b) Notwithstanding the provisions of Section 5(a),
each party hereto shall be solely responsible for (i) all costs
and expenses relating to the acquisition of the Shares
beneficially owned or hereafter acquired by such party and its
affiliates, (ii) its internal expenses (including, without
limitation, all salaries and expenses of its officers and
employees performing duties relating to the transactions
contemplated by this Agreement) and (iii) all other expenses
incurred by it, other than expenses described in Section 5(a),
all of which shall be the sole responsibility of the BGL Group.
Section 6. Required Filings; Publicity. (a) Each of
the parties hereto shall (and shall cause each of its affiliates
to) (i) take all actions necessary to comply promptly with all
legal requirements which may be imposed on such party (or its
affiliates) as a result of this Agreement or any of the
transactions contemplated hereby, and (ii) without limiting the
foregoing, make all required filings pursuant to the Securities
Act and the Exchange Act.
(b) To the extent reasonably practicable, the parties
hereto shall consult with each other prior to all public
statements or filings to be issued or made by any of them or
their affiliates with respect to this Agreement and the
transactions contemplated hereby.
Section 7. Representations and Warranties. (a) Each
of the parties hereto hereby represents and warrants to the other
parties hereto as follows:
(i) Such party is a corporation or partnership
duly organized, validly existing and in good standing under
the laws of the state of its incorporation or organization,
and has full corporate or partnership power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
(ii) The execution and delivery by such party of
this Agreement and the performance by such party of its
obligations hereunder have been duly and validly authorized
by all necessary corporate or partnership action. This
Agreement has been duly and validly executed and delivered
by such party and constitutes a legal, valid and binding
obligation of such party enforceable against such party in
accordance with its terms.
(iii) The execution and delivery by such party of
this Agreement do not, and the performance by such party of
its obligations under this Agreement will not, conflict with
or result in a violation or breach of any of the provisions
of the certificate of incorporation, bylaws or other
organizational documents of such party, any law or order
applicable to such party or any of such party's contractual
obligations to other persons, in each case, in any manner
that would prevent or materially impede such party from
fulfilling its obligations hereunder.
(b) BGL and BGLS hereby represent and warrant to High
River that as of the date hereof the BGL Group owns beneficially
and of record 200 Shares, free and clear of all liens and
encumbrances whatsoever, which Shares were purchased by the BGL
Group at an aggregate cost (including all brokerage fees and
commissions incurred in the acquisition of such Shares) of
$5,675, and in respect of which the BGL Group has not received
any dividends, except dividends of $75 received on July 3, 1995
and dividends of $75 received on October 2, 1995.
(c) High River represents and warrants to BGL and BGLS
that High River has as of the date hereof, and will have on each
date prior to the termination of this Agreement, net partners'
equity of at least $22 million.
Section 8. Certain Actions. High River shall not (and
shall cause its affiliates not to) engage in, agree to engage in
or propose (either publicly or to RJRN or any of its affiliates)
to engage in, individually or in combination with any other
person, any Business Combination at any time prior to the
earliest of (a) the Reference Date, (b) any termination of this
Agreement that occurs at or after the time when a Termination
Event has occurred and (c) any termination of this Agreement by
BGL or BGLS, or of the New Valley Agreement by New Valley or NV
Sub, at a time when High River is not in material breach of the
High River Obligations.
Section 9. Miscellaneous. (a) For purposes of this
Agreement, (i) the terms "affiliate" and "associate" have the
meanings assigned to them in Rule 12b-2 promulgated under the
Exchange Act, provided, however, that New Valley and NV Sub shall
not be deemed to be "affiliates" or "associates" of the BGL Group
for any purpose of this Agreement, (ii) Liggett shall be deemed
to be a material affiliate of BGL and BGLS, (iii) the term
"shall" is used herein to refer to actions which are compulsory
and thus to create binding obligations among the parties hereto,
(iv) the terms "will," "expect," "expectation," "intend" and
"intention," and other terms of similar import, are used herein
solely to refer to the aspirations and objectives of the parties
hereto and thus are not used herein to create binding obligations
among the parties hereto and (v) the term "may" is used herein to
refer solely to conduct which is optional and not compulsory and
thus is not used herein to create binding obligations among the
parties hereto.
(b) The parties hereto shall have no rights, power or
duties except as specified herein, and no such rights, powers or
duties shall be implied. Nothing herein shall give any party
hereto the power to bind any other party hereto to any contract,
agreement or obligation to any third party.
(c) All notices and other communications hereunder
shall be in writing and shall be deemed given when received by
the parties hereto at the following addresses (or at such other
address for any party hereto as shall be specified by like
notice):
If to BGL or BGLS:
100 S.E. Second Street
Miami, Florida 33131
Attention: Bennett S. LeBow
Telecopy: (305) 579-8001
With a copy to:
Michael L. Hirschfeld, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005-1413
Telecopy: (212) 530-5219
If to High River:
c/o Icahn Associates Corp.
114 West 47th Street
19th Floor
New York, New York 10036
Attention: Carl C. Icahn
Telecopy: (212) 921-3359
With a copy to:
Marc Weitzen, Esq.
Gordon Altman Butowsky Weitzen
Shalov & Wein
114 West 47th Street
20th Floor
New York, NY 10036
Telecopy: (212) 626-0799
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement.
(e) This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and
understandings among the parties hereto with respect to the
subject matter hereof.
(f) This Agreement shall be governed and construed in
accordance with the laws of the state of New York applicable to a
contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
(g) Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties hereto;
provided, however, that High River may assign any of its rights
and interests hereunder to (i) any corporation incorporated in
any state of the United States or in the District of Columbia if
at least 98.5% of the shares of each class of capital stock of
such corporation are owned by Carl C. Icahn (a "wholly-owned
Icahn subsidiary"), either directly or through one or more
wholly-owned Icahn subsidiaries or (ii) any partnership whose
partners are all wholly-owned Icahn subsidiaries; and provided
further that no such assignment shall relieve High River of any
of its obligations hereunder. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of and
be enforceable by the parties hereto and their respective
successors and assigns.
(h) This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on
behalf of each party hereto. No waiver of any term or condition
in this Agreement shall be effective unless set forth in writing
and signed by or on behalf of the waiving party. No waiver by
any party hereto of any term or condition of this Agreement shall
be deemed to be or construed as a waiver of the same or any other
term or condition of this Agreement on any future occasion.
(i) The terms and provisions of this Agreement are
intended solely for the benefit of the parties hereto and their
successors and permitted assigns and are not intended to confer
upon any other person any rights or remedies hereunder, except
that the provisions of clause (z) of the proviso to Section 4(a),
as they relate to the reimbursement obligations of BGL and BGLS,
are expressly for the benefit of New Valley and shall be
enforceable by New Valley against BGL and BGLS (but not against
High River) by appropriate proceedings in any court of competent
jurisdiction.
(j) In the event that any party hereto prevails in any
action or proceeding alleging a breach of this Agreement, such
party shall be entitled to recover all reasonable attorney's fees
and other costs of prosecuting such action or proceeding and, in
addition, shall be entitled to receive simple interest on any
damages awarded in such action or proceeding at the rate of 10%
per annum from the date of such breach.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their representatives thereunto duly
authorized, all as of the date first above written.
BROOKE GROUP LTD.
By:
BGLS INC.
By:
HIGH RIVER LIMITED PARTNERSHIP
By:
[Signature page to Agreement among Brooke Group Ltd., BGLS Inc.
and High River Limited Partnership dated October 17, 1995]
High River Limited Partnership
100 South Bedford Road
Mount Kisco, New York 10549
November 5, 1995
Brooke Group Ltd.
BGLS Inc.
100 S.E. Second Street
Miami, Florida 33131
Attn: Bennett S. LeBow
Dear Bennett:
By executing this letter in the space provided below,
Brooke Group Ltd., a Delaware corporation ("BGL"), BGLS Inc., a
Delaware corporation and a direct wholly-owned subsidiary of BGL
("BGLS") and High River Limited Partnership, a Delaware limited
partnership ("High River"), each hereby agree as follows:
1. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms
in the Agreement by and among BGL, BGLS and High River, dated
October 17, 1995 (the "BGL Agreement").
2. Section 1(a) of the BGL Agreement is deleted in its
entirety and all reference thereto in the BGL Agreement is
likewise deleted.
3. Section 1(c)(ii)(B) of the BGL Agreement is hereby
amended to delete the subsection in its entirety and to
substitute in lieu thereof the following:
"(B) Prior to the consummation of the Spinoff, the BGL Group
will (I) not directly or indirectly exercise any management
control over Nabisco or Nabisco, Inc., a Delaware
corporation ("Nabisco, Inc."), (II) refrain from becoming
involved in the ordinary course of business of Nabisco or
Nabisco, Inc. and (III) use its best efforts to ensure that
a majority of the directors of Nabisco and Nabisco, Inc.
consists of individuals who are presently members of the
board of directors of Nabisco and Nabisco, Inc.,
respectively and"
4. Section 3(c)(ix)(C) of the BGL Agreement is hereby
amended to delete the subsection in its entirety and to
substitute in lieu thereof the following:
"(C) fail to file the Solicitation Statement relating to the
Annual Meeting preliminarily with the SEC prior to the
earlier of (I) February 15, 1996 and (II) sixty (60) days
following the record date for the solicitation of Written
Consents with respect to the Spinoff Proposal and the By-Law
Amendment Proposal,"
5. In the event that prior to February 1, 1996 (i)
the BGL Group provides High River Group with notice of
termination of the BGL Agreement or New Valley Group (as defined
below) provides High River Group with notice of termination of
the Agreement by and among New Valley Corporation, ALKI Corp. and
High River, dated October 17, 1995 (the "New Valley Agreement")
at a time when a Termination Event set forth in Section 3(c)(vii)
or 3(c)(viii) of the BGL Agreement has occurred or (ii) High
River Group provides BGL Group with notice of termination of the
BGL Agreement or provides New Valley Group with notice of
termination of the New Valley Agreement at a time when a
Termination Event set forth in Section 3(c)(ix)(A) of the BGL
Agreement has occurred, BGL Group shall not transfer any Shares
beneficially owned by BGL Group until February 1, 1996 in
consequence of or in reliance upon such notice of termination.
If the notice of termination specified in clause (i) of the
preceding sentence is provided after January 16, 1996, and the
aggregate number of shares of common stock, par value $.01 per
share, of RJR Nabisco Holdings Corp. ("Shares") beneficially
owned by High River Group exceeds the aggregate number of Shares
beneficially owned by (A) New Valley Corporation, ALKI Corp. and
any assignee of the foregoing ("New Valley Group") plus (B) BGL
Group (collectively, the "Aggregate LeBow Shares"), BGL Group
shall not Transfer any Shares beneficially owned by BGL Group for
fifteen (15) days following receipt by High River Group of BGL
Group's or New Valley Group's notice of termination; provided,
however, that on such date not before February 1, 1996 that the
aggregate number of Shares beneficially owned by High River Group
is equal to or less than the Aggregate LeBow Shares, and
thereafter, BGL Group may Transfer any Shares beneficially owned
by BGL Group.
6. In the event that High River Group provides BGL
Group with notice of termination of the BGL Agreement or provides
New Valley Group with notice of termination of the New Valley
Agreement at a time when a Termination Event under any of
Sections 3(c)(ix)(B) through (E) of the BGL Agreement has
occurred and the aggregate number of shares beneficially owned by
High River Group exceeds the Aggregate LeBow Shares, BGL Group
shall not Transfer any Shares beneficially owned by BGL Group in
consequence of or in reliance upon such notice of termination
until the earlier of (i) fifteen (15) days following receipt by
BGL Group or New Valley Group of High River Group's notice of
termination specified in the preceding sentence and (ii) the date
that the aggregate number of Shares beneficially owned by High
River Group is equal to or less than the Aggregate LeBow Shares.
7. BGLS shall promptly make any payments due under
Section 4(c) of the BGL Agreement. In the event that High River
Group believes that BGLS has breached any of its obligations
under Section 4(c) of the BGL Agreement, the parties shall
promptly follow the procedures set forth in Section 1(c)(v) of
the New Valley Agreement in order to resolve the dispute. If the
Arbitrator (as defined in the New Valley Agreement) determines
that BGLS is required to make a payment pursuant to Section 4(c)
of the BGL Agreement, BGLS shall make or cause to be made to High
River Group such payment within twenty (20) days after receiving
the Arbitrator's notice of decision. In the event that BGLS
fails to make such payment within twenty (20) days after receipt
of the Arbitrator's notice of decision, BGLS shall immediately
pay or cause to be paid to High River Group an additional sum in
the amount of $50 million.
8. Section 9(k) shall be added to the BGL Agreement
to read as follows:
"(k) Anything in this Agreement to the contrary
notwithstanding, High River shall have no obligation with
respect to the selection of the BGL Nominees or the
solicitation of Written Consents or Proxies."
9. Nothing herein contained shall be construed to
otherwise abrogate the rights and obligations of the parties to
this letter agreement with respect to all other provisions of the
BGL Agreement, the New Valley Agreement and the letter agreement
by and among New Valley, ALKI Corp. and High River, dated October
17, 1995 (the "Letter Agreement").
If the foregoing reflects your understanding, please
sign this letter below. Upon your execution hereof, this letter
agreement will become a binding contract between us.
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP., INC.
Its: General Partner
By:
Name:
Title:
Agreed to and Accepted:
BROOKE GROUP LIMITED
By:
Name:
Title:
BGLS INC.
By:
Name:
Title:
[Signature page for letter agreement by and among Brooke Group
Limited, BGLS Inc. and High River Limited Partnership, dated
November __, 1995]
AGREEMENT
This AGREEMENT among New Valley Corporation, a New York
corporation ("New Valley"), ALKI Corp., a Delaware corporation
and a direct wholly owned subsidiary of New Valley ("NV Sub"),
and High River Limited Partnership, a Delaware limited
partnership ("High River"), dated October 17, 1995.
W I T N E S S E T H:
WHEREAS, each of the parties hereto, directly or
indirectly, is a stockholder of RJR Nabisco Holdings Corp., a
Delaware corporation ("RJRN");
WHEREAS, the parties hereto believe that the value of
RJRN stockholders' investment can be substantially increased
through a spinoff (the "Spinoff") of all or substantially all of
RJRN's remaining investment in Nabisco Holding Corp., a Delaware
corporation ("Nabisco");
WHEREAS, New Valley and NV Sub desire to obtain the
assistance and advice of High River with respect to measures
designed to effectuate the Spinoff at the earliest possible date;
WHEREAS, High River is willing to give such assistance
and advice to New Valley and NV Sub (the "New Valley Group") in
consideration of the agreements by the New Valley Group set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and
of the mutual promises set forth herein, the parties hereto,
intending to be legally bound, agree as follows:
Section 1. Investment. (a) High River hereby agrees
to purchase from New Valley and NV Sub, and New Valley and NV Sub
hereby agree to sell, assign, transfer and deliver to High River,
at the Closing (as defined below), 1,611,550 shares of common
stock, par value $.01 per share ("Shares"), of RJRN (the
"Purchased Shares"). The closing of the purchase and sale of the
Purchased Shares (the "Closing") shall occur at 10:00 a.m. on
October 23, 1995 (the "Closing Date") at the offices of Milbank,
Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York, New
York. At the Closing, High River will pay to New Valley
$50,976,921 (the "Purchase Price"), by wire transfer of
immediately available funds to an account designated by New
Valley, against delivery to High River of the Purchased Shares in
a commercially customary manner such that, upon the payment of
the Purchase Price for such Purchased Shares, High River shall
have acquired good and marketable title to such Shares, free and
clear of all encumbrances and liens whatsoever.
(b) It is the intention of the New Valley Group and
High River to cooperate to invest a minimum of at least $300
million ($150 million each) in Shares, and they may further
increase their investment to a minimum of at least $500 million
in Shares ($250 million each), in accordance with the following
plan:
(i) Each of the New Valley Group and High River
and its affiliates (the "High River Group") is expected to
make a minimum equity investment in Shares of $75 million
(the "First Stage Equity Investments").
(ii) In addition to their respective First Stage
Equity Investments, each of the New Valley Group and the
High River Group is expected to invest in Shares at least a
minimum additional amount (the "First Stage Margin
Investments" and, together with the First Stage Equity
Investments, the "First Stage Investments") equal to the
lesser of (A) $75 million and (B) the maximum additional
amount that such group would lawfully have been able to
invest in Shares if (I) the Shares acquired pursuant to such
group's First Stage Equity Investment had been acquired with
funds not obtained from the proceeds of "purpose credit"
secured directly or indirectly by "margin stock" (as such
terms are defined in Regulation T and Regulation U
promulgated by the Board of Governors of the Federal Reserve
System (the "Margin Rules")) ("Margin Loans") and (II) such
group had used its best efforts to borrow additional funds
by pledging the Shares so acquired as collateral to secure
Margin Loans to the extent that such Margin Loans could have
been obtained lawfully and on reasonable commercial terms
and had used the proceeds of such Margin Loans to acquire
additional Shares, which had been similarly pledged to
secure additional Margin Loans and to acquire further
Shares, and so forth until no further such Margin Loans had
been lawfully available.
(iii) Following the completion of the First Stage
Investments, each of the New Valley Group and the High River
Group may make a further investment in Shares of up to the
sum of (A) $50 million of equity (the "Second Stage Equity
Investment") plus (B) an additional amount (the "Second
Stage Margin Investments" and, together with the Second
Stage Equity Investments, the "Second Stage Investments")
equal to the lesser of (I) $50 million and (II) the maximum
amount that such group would lawfully have been able to
invest in Shares, in the manner described in Section
1(b)(ii)(B), using the Shares acquired through the Second
Stage Equity Investment as collateral.
(c) In order to effectuate the objectives of the
parties hereto described in Section 1(b), each of the New Valley
Group and High River agrees that it shall (or shall cause its
affiliates to) make the following investments in Shares:
(i) Promptly after the close of business on
each business day during the term of this Agreement,
each of New Valley and High River shall notify the
other of (A) the number of Shares acquired or sold by
the New Valley Group and the High River Group,
respectively, since the last such notice, (B) the
purchase price or sale price of each Share so acquired
or sold and (C) the amount of brokerage fees or
commissions incurred in acquiring or selling each such
Share.
(ii) On the last business day of each second
calendar week (commencing with the end of the second full
calendar week following the date of this Agreement) prior to
such time as the High River Group has made an investment in
Shares equal to at least the Second Stage Investment (the
"Second Stage Completion Date"), promptly after the exchange
of notices described in Section 1(c)(i), the parties hereto
shall calculate the aggregate number and the average price
of all Shares acquired during such two calendar weeks by
either the New Valley Group or the High River Group at a
price per Share equal to the Hurdle Price (as defined below
in this paragraph (ii)) or less (exclusive of brokerage fees
and commissions incurred in such acquisition) ("Qualifying
Shares"). Thereupon, each party shall make or cause to be
made to the other party (or the other party's designee) such
transfers of Shares and such payments in immediately
available funds (in each case in the manner described in
Section 1(c)(iv)) as would have been necessary so that,
after giving effect to such transfers and payments, the New
Valley Group and the High River Group would have acquired
the same number of Qualifying Shares during such two
calendar weeks and the aggregate investment (excluding
brokerage fees and commissions incurred in the acquisition
of Shares) of the New Valley Group and the High River Group
in Qualifying Shares during such week would have been
identical. For purposes of this Agreement, "Hurdle Price"
means (x) prior to the time that both the new Valley Group
and the High River Group have made investments in Shares
equal to at least the First Stage Investment (the "First
Stage Completion Date"), $35.50 per Share and (y) at all
times from and after the First Stage Completion Date and
prior to the Second Stage Completion Date, $31.00 per Share.
(iii) In addition to the obligations of the
parties hereto under Section 1(c)(ii), for each business day
prior to the Second Stage Completion Date, New Valley may,
in its sole discretion, by notice to High River promptly
after the exchange of the notices with respect to such
business day described in Section 1(c)(i), put to High River
a number of Shares equal to or less than one-half of the
excess, if any, of (A) the aggregate number of Shares other
than Qualifying Shares ("Non-Qualifying Shares") acquired by
the New Valley Group since the close of business on the
previous business day over (B) the number of Non-Qualifying
Shares acquired by the High River Group since the close of
business on the previous business day. The put price per
Share shall be equal to the Hurdle Price. Thereupon, the
New Valley Group shall sell and transfer or cause to be sold
and transferred to High River or another member of the High
River Group designated by High River the number of Shares so
put to High River, and High River shall purchase or cause
such designee to purchase such Shares and shall pay or cause
to be paid to New Valley or New Valley's designee a purchase
price equal to the put price of such Shares, in each case in
the manner described in Section 1(c)(iv).
(iv) All payments required to be made under
Section 1(c)(ii) or Section 1(c)(iii) shall be made in
immediately available funds before the opening of
business on the fourth New York Stock Exchange trading
day after (A) in the case of Section 1(c)(ii), the last
business day of each second calendar week in which the
exchange of notices referred to therein is made and (B)
in the case of Section 1(c)(iii), the last business day
of the calendar week in which New Valley delivers the
notice referred to therein. All transfers of Shares
required by Section 1(c)(ii) and Section 1(c)(iii)
shall be made simultaneously with such payment in a
commercially customary manner such that upon the
payment of the purchase price for such Shares, the
transferee shall have acquired good and marketable
title to such Shares, free and clear of all
encumbrances and liens whatsoever.
(v) As promptly as practicable following the
close of business on November 27, 1995 (in the case of the
First Stage Investments) and January 11, 1996 (in the case
of the Second Stage Investments), but in each case prior to
the close of business on the next business day, each of New
Valley and High River shall notify the other of (A) the date
of purchase of any Shares acquired by the New Valley Group
and the High River Group, respectively, since the date of
this Agreement, (B) the number of Shares purchased on each
such date and (C) the purchase price of each Share so
acquired. If prior to January 17, 1996, either New Valley
or High River believes that the other has breached any of
its obligations under Section 1(c)(ii) or Section 1(c)(iii),
such party (the "Notifying Party") shall deliver to the
other party (the "Receiving Party") a notice setting forth
in reasonable detail the nature of the breach and the
reasons for such belief (the "Notice of Breach"). The
Notice of Breach shall specifically describe the number of
Shares that the Receiving Party must transfer to the
Notifying Party, or that the Notifying Party must transfer
to the Receiving Party, and the amount of the payments that
the Receiving Party must make to the Notifying Party, or
that the Notifying Party must make to the Receiving Party,
in order to cure such breach, and shall demand performance
of such transfers and payments. Prior to the close of
business on the third business day after receiving the
Notice of Breach, the Receiving Party shall either (x) pay
the amounts and transfer the Shares described in the Notice
of Breach, against receipt of the amounts to be paid and/or
the Shares to be transferred by the Notifying Party as
described in the Notice of Breach or (y) deliver to the
Notifying Party a notice stating that the Receiving Party
disputes the demand made in the Notice of Breach (the
"Notice of Dispute"). In the event that the Receiving Party
delivers a Notice of Dispute, then prior to the close of
business on the next business day, the parties hereto shall
by mutual agreement choose an independent, nationally
recognized public accounting firm, which shall be retained
by the parties hereto to arbitrate the dispute (the
"Arbitrator"), or if they cannot agree, each of New Valley
and High River shall choose one such accounting firm, and
such firms shall choose a third such accounting firm to
serve as Arbitrator. The fees and expenses of the
Arbitrator shall be shared equally by New Valley and High
River. The parties hereto shall make available to the
Arbitrator all information which the Arbitrator may
reasonably request for the purpose of arbitrating the
dispute. Prior to the close of business on the fifth
business day after being retained, the Arbitrator shall make
its own independent calculations and shall notify New Valley
and High River in writing of its decision, indicating the
amounts to be paid and the number of Shares to be
transferred by each of the parties hereto to cure any breach
of Section 1(c)(ii) or 1(c)(iii), identified by the
Arbitrator as having occurred. Prior to the close of
business on the third business day after receiving the
notice of such decision, each party hereto shall make
payments and transfer Shares in accordance with such
decision. In each case where a party is required to make
any payment pursuant to this Section 1(c)(v) by reason of
any breach by such party of Section 1(c)(ii) or Section
1(c)(iii), the amount of such payment shall be based on a
purchase price per Share, without interest, equal to the
Hurdle Price in effect at the time that the relevant
transfer of Shares would have originally occurred if not for
the relevant breach.
(d) (i) Except as provided in subpart (ii) of this
subparagraph (d), until the termination of this Agreement,
(i) the New Valley Group shall not make or agree to make any
sale, transfer or other disposition (a "Transfer") of Shares
beneficially owned by it, if following such Transfer the New
Valley Group's total investment in Shares would be less than
the sum of the First Stage Investment plus the Second Stage
Investment and (ii) High River shall not (and shall cause
the High River Group not to) make or agree to make any
Transfer of Shares beneficially owned by it, if following
such Transfer the High River Group's total investment in
Shares would be less than the sum of the First Stage
Investment plus the Second Stage Investment; provided,
however, that (x) the New Valley Group and the High River
Group may sell Shares to an unaffiliated third party on an
arms'-length basis if (1) such sale is made solely in
response to a demand for repayment or additional collateral
(other than Shares) of the sort usually made by a lender
extending Margin Loans secured by such Shares, which demand
results from a decline in the market price of the Shares so
that the account with the lender falls below the lender's
pre-established maintenance requirement for the New Valley
Group or the High River Group, as the case may be, (2) the
proceeds of such sale are used solely to repay Margin Loans,
(3) the total number of Shares sold does not exceed the
minimum number that must be sold in order to satisfy such
demand and (y) in the event the New Valley Group or the High
River Group (each, a "Group") sells any Shares pursuant to
clause (x) of this proviso and following such sale such
first Group's investment in Shares is less than the second
Group's investment in Shares, then the second Group may
Transfer Shares so long as following such Transfer the
second Group's investment in Shares is equal to or greater
than the first Group's investment in Shares; and provided
further that each member of the New Valley Group and the
High River Group may Transfer Shares to any other member of
the New Valley Group or the High River Group (but only if,
in the case of a Transfer to another member of the High
River Group, such member agrees to be bound by the
provisions of this Agreement to the same extent as High
River). Following a sale by either the New Valley Group or
the High River Group pursuant to clause (x) of the first
proviso to the preceding sentence, neither Group shall be
obligated to purchase any additional Shares pursuant to
Section 1(c)(ii) or Section 1(c)(iii), but the provisions of
Section 1(c)(v) shall continue to be applicable with respect
to any purchases that were required to be made prior to such
sale pursuant to Section 1(c)(ii) or Section 1(c)(iii).
(ii) In addition, notwithstanding the terms of
subpart (i) of this subparagraph (d), in the event that the
lender extending Margin Loans to a member of the New Valley
Group or the High River Group, as the case may be (the
"Borrower"), for any reason other than as set forth in
clause (x) of the first proviso to the first sentence of
subpart (i) of this subparagraph (d), terminates or reduces
the loan facility or otherwise requires the sale of Shares
by Borrower (such Shares required as a result to be sold,
together with a number of Shares equal to the number of
Shares (if any) sold pursuant to such clause (x), during the
thirty consecutive calendar days immediately following the
date that the Borrower is informed of such required sale,
being hereinafter referred to as the "Selloff Shares") and
after exercise of best efforts to replace such loan facility
Borrower is unable to do so, then the Borrower shall
irrevocably offer to the other party hereto the right for a
five business day period, at the election of the other
party, either (A) to acquire the Selloff Shares at a price
equal to the lower (such lower price being referred to
herein as the "Selloff Price") of (I) 90% of the Weighted-
Average Cost (calculated as set forth in Section 4(h) but
without giving effect to the interest factor described in
Section 4(h)(i) or Section 4(h)(ii)(B)) of the Selloff
Shares, and (II) 90% of the then current market price of the
Selloff Shares, as measured by the average closing sales
price of Shares on the New York Stock Exchange in the five
business days preceding said offer, or (B) to receive
payment from the Borrower in immediately available funds in
an amount equal to the excess of the then current market
price of the Selloff Shares, as so measured, over the
Selloff Price. In the event the other party exercises its
right to acquire the Selloff Shares, the closing shall take
place prior to the close of business on the third business
day after such party exercises its right to purchase the
Selloff Shares, and the party electing to exercise its right
to purchase shall be entitled to an order of specific
performance in the event of a failure by the Borrower to
close as hereinabove provided. In the event the other party
does not exercise its right to acquire the Selloff Shares
within such five business day period, or shall affirmatively
elect to receive payment from the Borrower, the Borrower
shall thereafter have the right to sell the Selloff Shares
to an unaffiliated third party on an arms'-length basis. In
the event the other party exercises its right to receive
payment from the Borrower, such payment shall be made within
five business days of notice to the Borrower of the other
party's election to exercise its right thereto.
(e) For purposes of this Section 1 and Section 4(c),
in calculating the amount of the investment in Shares by the New
Valley Group and the High River Group at any time, (i) each
Group's acquisition of Shares shall be deemed to increase such
Group's investment by the actual cost, including all brokerage
fees and commissions incurred in the acquisition of such Shares,
and (ii) each Group's sale of Shares shall be deemed to decrease
such Group's investment by the actual price realized, net of all
brokerage fees and commissions incurred in such sale.
(f) In addition to the investments required by Section
1(c), each of the parties hereto and its affiliates may, in its
sole discretion, invest additional amounts from time to time to
acquire additional Shares. Notwithstanding any other provision
of this Agreement, the funds invested by any party hereto or its
affiliates in Shares, either pursuant to Section 1(c) or to this
Section 1(f), may be obtained through any lawful method,
including, without limitation, Margin Loans and other loans or
borrowings subject to the Margin Rules.
(g) Notwithstanding anything in this Agreement to the
contrary, (i) all Shares acquired by any party hereto shall be
held by it for its own account and not for the account of any
other party hereto, (ii) except as set forth in Section 5(d), no
party hereto shall have any right or obligation to share in the
profits or losses of any other party hereto arising from the
acquisition, holding or disposition of Shares beneficially owned
by such other party or its affiliates and (iii) all transfers of
Shares pursuant to Section 1(c)(ii) or Section 1(c)(iii), and all
payments in respect of such Shares pursuant to Section 1(c)(ii)
or Section 1(c)(iii), shall be made simultaneously on the
respective dates such transfers and payments are required to be
made pursuant to Section 1(c)(iv), and no party hereto shall be
deemed to own or to have any rights of ownership in any such
Shares (including, without limitation, any right to vote such
Shares or to receive dividends paid in respect of such Shares)
until such transfer and payment are made.
Section 2. Agreement to Vote. In the event that
Brooke Group Ltd. ("BGL") or BGLS Inc. ("BGLS") determines to
solicit Stockholder Demands, Written Consents or Proxies (as such
terms are defined in the Agreement dated as of October 17, 1995
among BGL, BGLS and High River (the "BGL Agreement")), the New
Valley Group shall execute and deliver to BGL or BGLS a valid
Stockholder Demand, Written Consent or Proxy, as the case may be
(and not withdraw such Stockholder Demand, Written Consent or
Proxy) with respect to all of the Shares, and all of the
depositary shares representing Series C Conversion Preferred
Stock, par value $.01 per share, of RJRN, that it beneficially
owns or has the right to vote.
Section 3. Termination. (a) This Agreement shall
automatically terminate upon the earlier of (i) the first
anniversary of the date hereof and (ii) the termination of the
BGL Agreement by High River, and any party hereto may terminate
this Agreement sooner at any time in its sole discretion by
written notice to the other parties hereto; provided, however,
that if BGL or BGLS terminates the BGL Agreement, then New Valley
and NV Sub shall be deemed to have simultaneously terminated this
Agreement.
(b) If this Agreement is terminated pursuant to this
Section 3, this Agreement shall forthwith become null and void,
and there shall be no liability or obligation on the part of any
party hereto, except that (i) the obligations of the parties
hereto pursuant to Section 5 and Section 6 shall remain in full
force and effect following any termination of this Agreement for
the periods set forth therein and (ii) if (A) either the New
Valley Group or the BGL Group sells any Shares under the
circumstances described in clause (x) of the first proviso to the
first sentence of Section 1(d)(i) of this Agreement, or is
required to offer any Shares to another party pursuant to the
first sentence of Section 1(d)(ii) of this Agreement, and (B) a
party hereto which is not a member of such Group thereafter
terminates this Agreement prior to or on the tenth day after the
first date that such party becomes aware that such event has
occurred, then the obligations of any member of such Group
pursuant to Section 1(d)(ii) shall remain in full force and
effect following such termination until the later of (I) the end
of the 30-day period set forth in Section 1(d)(ii) or (II) the
time that the Selloff Shares are delivered at the closing
described in the second sentence of Section 1(d)(ii), or the time
when payment is made pursuant to the fourth sentence of Section
1(d)(ii), as the case may be.
Section 4. Certain Definitions. For purposes of this
Agreement, the following terms shall have the meanings indicated
below:
(a) "Termination Event" shall have the meaning
assigned to it in the BGL Agreement.
(b) "Other Securities" means any securities or assets
(other than cash) received by the New Valley Group from RJRN in
respect of any Shares held by the New Valley Group, whether by
way of a dividend or other distribution in respect of such
Shares, in exchange for such Shares, pursuant to a
reclassification of such Shares, or otherwise.
(c) The "Trading Profit" realized in any sale of any
Shares or any Other Securities of any class or series by any
member of the New Valley Group or by BGL, BGLS or any of their
affiliates (the "BGL Group") means the excess, if any, of the
actual price realized in such sale, net of all brokerage fees and
commissions incurred in such sale, over the Weighted-Average Cost
(as defined below in Section 4(h) and Section 4(i)) of the Shares
or the Other Securities of such class or series sold. The
"Trading Profit" existing on the Reference Date (as defined below
in Section 5(a)) in respect of any Shares or Other Securities of
any class or series held by the New Valley Group or the BGL Group
as of such date means the excess, if any, of the Market Value (as
defined below in Section 4(j) and Section 4(k)) as of the
Reference Date of the Shares or the Other Securities of such
class or series so held over the Weighted-Average Cost of such
Shares or such Other Securities. Notwithstanding the foregoing,
if the aggregate investment in Shares and Other Securities made
at any time, either before or after the date of termination of
this Agreement, by the New Valley Group, before giving effect to
any sales of Shares and Other Securities held by the New Valley
Group (the "Aggregate New Valley Investment"), exceeds the
greater of (x) the sum of the First Stage Investment plus the
Second Stage Investment and (y) the aggregate investment of the
High River Group in Shares and Other Securities made prior to the
date of the termination of this Agreement (the greater of such
amounts being referred to herein as the "Target Investment"),
then the "Trading Profit" realized on any sale of Shares or any
Other Securities of any class or series, or existing on the
Reference Date in respect of any Shares or any Other Securities
of any class or series held by the New Valley Group on the
Reference Date, means the product of (x) the "Trading Profit,"
calculated as set forth in the previous two sentences, multiplied
by (y) a fraction, the numerator of which is the Target
Investment and the denominator of which is the Aggregate New
Valley Investment.
(d) The "New Valley Expenses" means the out-of-pocket
costs and expenses incurred by the New Valley Group or the BGL
Group in connection with the preparation, negotiation and
execution of this Agreement and the BGL Agreement, the
consummation of the transactions contemplated hereby or thereby
and the solicitation of Stockholder Demands, Written Consents and
Proxies from the stockholders of RJRN (including without
limitation, to the extent incurred in connection therewith, (i)
all registration and filing fees under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or the Securities
Act of 1933, as amended (the "Securities Act"), (ii) all
printing, messenger, telephone and delivery expenses, (iii) all
fees and disbursements of counsel and (iv) all fees and
disbursements of public relations firms, proxy solicitation
firms, investment bankers and other financial advisors), plus an
amount equivalent to simple interest on each such cost and
expense at the rate of 10% per annum from the date of payment
thereof; provided, however, that "New Valley Expenses" shall
exclude, without duplication, (x) all costs and expenses relating
to the acquisition of the Shares beneficially owned or hereafter
acquired by the New Valley Group, (y) all internal costs and
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing duties relating
to the transactions contemplated by this Agreement and the BGL
Agreement) and (z) all costs and expenses paid to the New Valley
Group, or the BGL Group, except as reimbursement for out-of-
pocket costs and expenses incurred by the New Valley Group or the
BGL Group to unaffiliated third parties.
(e) The "Net Profit" realized on any sale of Shares or
any Other Securities of any class or series, or existing on the
Reference Date in respect of any Shares or any Other Securities
of any class or series held by the New Valley Group or the BGL
Group on the Reference Date, means the excess, if any, of (i) the
Trading Profit realized on such sale or existing on the Reference
Date with respect to such Shares or such class or series of Other
Securities, as the case may be, together with the aggregate
Trading Profit realized on all previous or simultaneous sales (if
any) of any Shares or any Other Securities of such class or
series, over (ii) the sum of (A) the aggregate New Valley
Expenses incurred on or prior to such sale or the Reference Date,
as the case may be, and (B) five times the excess, if any of (I)
the aggregate percentage payments (if any) that High River would
have been entitled to receive under Section 5(d) of this
Agreement and Section 4(c) of the BGL Agreement with respect to
such previous or simultaneous sales if not for the effect of
clauses (x) and (y) of the provisos to such Sections over (II)
any repayment that New Valley or BGLS would have been entitled to
receive under clause (z) of such provisos.
(f) The "Net Loss" realized on any sale of Shares or
any Other Securities of any class or series, or existing on the
Reference Date in respect of any Shares or any Other Securities
of any class or series held by the New Valley Group or the BGL
Group on the Reference Date, means the excess, if any, of (i) the
sum of (A) the aggregate New Valley Expenses incurred on or prior
to such sale or the Reference Date, as the case may be, and (B)
five times the excess, if any of (I) the aggregate percentage
payments (if any) that High River would have been entitled to
receive under Section 5(d) of this Agreement and Section 4(c) of
the BGL Agreement with respect to any previous or simultaneous
sale of Shares or any Other Securities of such class or series if
not for the effect of clauses (x) and (y) of the provisos to such
Sections over (II) any repayment that New Valley or BGLS would
have been entitled to receive under clause (z) of such provisos
over (ii) the Trading Profit realized on such sale or existing on
the Reference Date with respect to such Shares or such class or
series of Other Securities, as the case may be, together with the
aggregate Trading Profit realized on all previous or simultaneous
sales (if any) of any Shares or any Other Securities of such
class or series, as the case may be.
(g) The "Net Profit Override" on any sale of Shares or
any Other Securities of any class or series, or existing on the
Reference Date in respect of any Shares or any Other Securities
of any class or series held by the New Valley Group or the BGL
Group on the Reference Date, means 20% of the Net Profit, if any,
on such sale or existing on such date.
(h) The "Weighted-Average Cost" of any Shares means
(i) the weighted-average cost of all Shares owned by the New
Valley Group and the BGL Group as of the date hereof, or acquired
by the New Valley Group and the BGL Group hereafter prior to or
at the time that the aggregate investment of the New Valley Group
in Shares first exceeds the Target Investment (including in each
case all brokerage fees and commissions incurred in the
acquisition of such Shares and including an amount equivalent to
simple interest on the cost of any Shares at the rate of 8-1/2%
per annum from the date of payment for such Shares, but excluding
any other interest, fees, premiums and other costs of any loans
or borrowings incurred or maintained to acquire or carry such
Shares), calculated in accordance with generally accepted
accounting principles, reduced by (ii) the sum of (A) the amount
of any cash dividends or distributions received in respect of
such Shares and the Market Value (as of the date received) of any
Other Securities received in respect of such Shares by way of any
dividend or distribution, plus (B) an amount equivalent to simple
interest on such amount and such Market Value at the rate of 8-
1/2% per annum from such date received; provided, however, that
any exchange of Shares for Other Securities or reclassification
of Shares into Other Securities shall be treated for purposes of
calculating the Weighted-Average Cost of the remaining Shares as
a sale of the Shares so exchanged or reclassified at a price
equal to their Weighted-Average Cost.
(i) The "Weighted-Average Cost" of any Other
Securities received by the New Valley Group and the BGL Group
means (i) in the case of any Other Securities received by way of
any dividend or distribution, the Market Value of such Other
Securities as of the date received, plus an amount equivalent to
simple interest on such Market Value at the rate of 8-1/2% per
annum from the date of receipt of such Other Securities, but
excluding any other interest, fees, premiums and other costs of
any loans or borrowings incurred or maintained to carry such
Other Securities and (ii) in the case of any Other Securities
received by the New Valley Group and the BGL Group by way of any
exchange of Shares for Other Securities or reclassification of
Shares into Other Securities, an amount equal to the Weighted-
Average Cost of the Shares so exchanged or reclassified, plus an
amount equivalent to simple interest on such amount at the rate
of 8-1/2% per annum from the date of receipt of such Other
Securities, but excluding any other interest, fees, premiums and
other costs of any loans or borrowings incurred or maintained to
carry such Other Securities; provided, however, that the
Weighted-Average Cost of any Other Securities shall be reduced by
the sum of (A) the amount of any cash dividends or distributions
received by the New Valley Group and the BGL Group in respect of
such Other Securities and the Market Value (as of the date
received) of any securities or assets (other than cash) received
by the New Valley Group and the BGL Group in respect of such
Other Securities by way of any dividend or distribution plus (B)
an amount equivalent to simple interest on the amount of such
cash or the Market Value of such securities or other assets at
the rate of 8-1/2% per annum from the date received.
(j) The "Market Value" of any securities as of any
date means the product obtained by multiplying (i) the number or
amount of such securities by (ii) the average of the daily
closing prices per share or other unit of such securities for the
ten consecutive trading days (or, if such securities have not
traded for ten consecutive trading days, such lesser number of
trading days as they have traded) on or prior to such date. For
this purpose, the "closing price" of any securities as of any
date means, the closing sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices per share or other unit for such securities,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange or, if such securities are not then listed or admitted
to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect
to securities listed on the principal national securities
exchange on which such securities are listed or admitted to
trading or, if such securities are not then listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices, per share or other unit for such securities in the
over-the-counter market, as reported by the NASDAQ system or, if
such system is not in use, any other similar system then in use,
or, if on any such date such securities are not then quoted by
any such system, the average of the closing bid and asked prices
per share or other unit for such securities as furnished by a
professional market maker making a market in such securities
selected by mutual agreement of New Valley and High River or, if
no such person then makes a market in such securities, the fair
market value of such securities, as determined by an independent,
nationally recognized investment banking or appraisal firm
selected by mutual agreement of New Valley and High River;
provided, however, that if any dividend or distribution shall
have been declared but not paid in respect of such securities as
of the date in question, and the ex-dividend date for the
determination of the holders of securities entitled to receive
such dividend or distribution shall occur prior to the date of
valuation, the "Market Value" of such securities shall be
appropriately increased by the value of such dividend or
distribution (as determined by mutual agreement of New Valley and
High River, or if they cannot agree, by an independent,
nationally recognized investment banking or appraisal firm
selected by mutual agreement of New Valley and High River, or if
they cannot agree, selected by the American Arbitration
Association).
(k) The "Market Value" of any assets other than
securities means the fair market value of such assets, as
determined by an independent, nationally recognized investment
banking or appraisal firm selected by mutual agreement of New
Valley and High River, or if they cannot agree, selected by the
American Arbitration Association).
Section 5. Certain Fees and Percentage Payments. (a)
Subject to Section 5(c), New Valley shall pay or cause to be paid
to High River the sum of $50 million promptly upon
(i) any termination of this Agreement by High
River at a time when (A) no Termination Event has occurred,
(B) New Valley or NV Sub is in material breach of its
obligations (the "New Valley Obligations") under Section
1(a), the fourth sentence of Section 1(c)(v), the ninth
sentence of Section 1(c)(v), Section 1(d)(i) or Section 2 of
this Agreement and (C) High River is not in material breach
of its obligations (the "High River Obligations") under
Section 1(a), the fourth sentence of Section 1(c)(v), the
ninth sentence of Section 1(c)(v) or Section 1(d)(i) of this
Agreement or Section 1(c)(iii) or Section 8 of the BGL
Agreement;
(ii) any termination of this Agreement by New
Valley or NV Sub at a time when (A) no Termination Event has
occurred and (B) High River is not in material breach of the
High River Obligations; or
(iii) the consummation of any Business Combination
(as defined in the BGL Agreement), including any Permitted
Business Combination (as defined in the BGL Agreement), with
respect to the New Valley Group, if (A) such Business
Combination is consummated prior to the later of (I) the
date of RJRN's annual meeting of stockholders for 1997 and
(II) the first anniversary of the date of termination of
this Agreement (the later of such dates being referred to
herein as the "Reference Date"), or (B) a legally binding
agreement to enter into such Business Combination or any
other Business Combination is entered into prior to the
Reference Date and such Business Combination is consummated
prior to the second anniversary of the date of such
agreement or (C) the BGL Nominees (as such term is defined
in the BGL Agreement) are elected to constitute a majority
of the Board of Directors of RJRN and such Business
Combination is consummated prior to the fifth anniversary of
the date of such election;
provided, however, that (x) High River shall not be entitled to
more than one fee under this Section 5(a), (y) High River shall
not be entitled to any fee under this Section 5(a) if New Valley
shall have previously or shall concurrently become entitled to
the fee described in Section 5(b) of this Agreement or if BGL
shall have previously become entitled to the fee described in
Section 4(b) of the BGL Agreement and (z) the amount of any fee
to which High River may be entitled at any time pursuant to this
Agreement shall be reduced by the amount of any fee which High
River shall theretofore have been paid pursuant to Section 4(a)
of the BGL Agreement and by the amounts of any percentage
payments which High River shall theretofore have been paid
pursuant to Section 5(d) of this Agreement or pursuant to Section
4(c) of the BGL Agreement.
(b) Subject to Section 5(c), High River shall pay or
cause to be paid to New Valley the sum of $50 million promptly
upon:
(i) any termination of this Agreement by High
River at a time when (A) no Termination Event has occurred,
(B) New Valley and NV Sub are not in material breach of the
New Valley Obligations and (C) BGL and BGLS are not in
material breach of their obligations under Section 1(c)(iii)
of the BGL Agreement (the "BGL Obligations"); or
(ii) any termination of this Agreement by New
Valley or NV Sub at a time when (A) no Termination Event has
occurred, (B) High River is in material breach of its
obligations under Section 1(a), the fourth sentence of
Section 1(c)(v), the ninth sentence of Section 1(c)(v) or
Section 1(d)(i) of this Agreement, (C) New Valley and NV Sub
are not in material breach of the New Valley Obligations and
(D) BGL and BGLS are not in material breach of the BGL
Obligations;
provided, however, that (x) New Valley shall not be entitled to
more than one fee under this Section 5(b), (y) New Valley shall
not be entitled to any fee under this Section 5(b) if High River
shall have previously or shall concurrently become entitled to
the fee described in Section 5(a) of this Agreement or the fee
described in Section 4(a) of the BGL Agreement and (z) the amount
of any fee to which New Valley may be entitled at any time
pursuant to this Agreement shall be reduced by the amount of any
fee which BGL shall theretofore have been paid pursuant to
Section 4(b) of the BGL Agreement.
(c) Each of New Valley and High River shall give
notice to the other promptly upon becoming aware that any
Termination Event has occurred, or that any event has occurred
that would be a Termination Event but for the giving of notice or
the termination of this Agreement. Such notice shall specify in
reasonable detail the facts giving rise to such Termination
Event.
(d) Notwithstanding anything in this Agreement or the
BGL Agreement to the contrary,
(i) if the New Valley Group or the BGL Group sells
any Shares or any Other Securities of any class or series
prior to the Reference Date, then New Valley shall pay or
cause to be paid to High River promptly upon the
consummation of such sale a percentage payment equal to the
product of (A) the Net Profit Override realized in such
sale, multiplied by (B) a fraction (the "Sale Fraction,"
which shall be calculated separately for the Shares and for
each class or series of Other Securities), the numerator of
which is the number of Shares or such Other Securities (as
the case may be) held as of the date hereof, or hereafter
acquired prior to such sale, by the New Valley Group and the
denominator of which is the number of Shares or such Other
Securities (as the case may be) held as of the date hereof,
or hereafter acquired prior to such sale, by the New Valley
Group and the BGL Group; and
(ii) if the New Valley Group or the BGL Group
holds any Shares or any Other Securities of any class or
series on the Reference Date, then New Valley shall pay or
cause to be paid to High River promptly upon the Reference
Date a percentage payment equal to the product of (A) the
Net Profit Override existing on the Reference Date in
respect of such Shares or such Other Securities, multiplied
by (B) a fraction (the "Holdings Fraction," which shall be
calculated separately for the Shares and for each class or
series of Other Securities), the numerator of which is the
number of Shares or such Other Securities (as the case may
be) held as of the date hereof, or hereafter acquired prior
to the Reference Date, by the New Valley Group and the
denominator of which is the number of Shares or such Other
Securities (as the case may be) held as of the date hereof,
or hereafter acquired prior to the Reference Date, by the
New Valley Group and the BGL Group;
provided, however, that (x) the amount of any percentage payment
to which High River is entitled at any time under this Section
5(d) shall be reduced by the product of (1) the amount of any fee
which High River shall have theretofore been paid by New Valley
under Section 5(a) of this Agreement or by BGLS under Section
4(a) of the BGL Agreement, multiplied by (2) the Sale Fraction or
the Holdings Fraction, as the case may be, (y) in the event that
(1) the New Valley Group or the BGL Group realizes a Net Loss on
any sale of Shares or any Other Securities of any class or
series, or a Net Loss exists on the Reference Date in respect of
any Shares or any Other Securities of any class or series held by
the New Valley Group or the BGL Group on the Reference Date, and
(2) High River has theretofore received any percentage payments
from New Valley pursuant to this Section 5(d) or from BGLS
pursuant to Section 4(c) of the BGL Agreement, then in each such
event High River shall repay or cause to be repaid to New Valley
promptly upon receipt of notice from New Valley an amount equal
to the product of (1) the excess, if any, of (X) 20% of such Net
Loss over (Y) the aggregate amount of such percentage payments
theretofore received by High River, multiplied by (2) a fraction,
the numerator of which is the aggregate amount of such percentage
payments theretofore paid by New Valley and the denominator of
which is the aggregate amount of such percentage payments
theretofore paid by New Valley and BGLS and (z) High River shall
not be entitled to any percentage payment under this Section 5(d)
if New Valley shall have previously become entitled to the fee
described in Section 5(b) of this Agreement or if BGL shall have
previously become entitled to the fee described in Section 4(b)
of the BGL Agreement. New Valley and NV Sub shall use their
reasonable best efforts to provide to High River (x) once each
calendar week, commencing with the date of this Agreement, a
report containing a reasonably detailed calculation of the number
of Shares and the amount of Other Securities then held by the New
Valley Group and the Weighted-Average Cost of such Shares and
Other Securities, as well as a reasonably detailed estimate
prepared in good faith of the New Valley Expenses incurred to
that date and (y) promptly after the close of business on each
business day on which any Shares are sold by the New Valley
Group, a report setting forth the number of Shares or Other
Securities sold since the close of business on the previous
business day, the aggregate price realized in such sales and the
aggregate commissions paid in such sales; provided, however, that
New Valley and NV Sub shall not incur any liability or suffer any
prejudice as a result of its provision of any such estimate.
(e) The parties hereto hereby acknowledge and agree
that the arrangements in Section 5(d) with respect to percentage
payments constitute a partnership for Federal income tax purposes
and that the parties hereto shall file income tax returns in a
consistent manner.
Section 6. Costs and Expenses. Each party hereto
shall be solely responsible for all of its costs and expenses
relating to this Agreement and the transactions contemplated
hereby.
Section 7. Required Filings; Publicity. (a) Each of
the parties hereto shall (and shall cause each of its affiliates
to) (i) take all actions necessary to comply promptly with all
legal requirements which may be imposed on such party (or its
affiliates) as a result of this Agreement or any of the
transactions contemplated hereby, and (ii) without limiting the
foregoing, make all required filings pursuant to the Securities
Act and the Exchange Act.
(b) To the extent reasonably practicable, the parties
hereto shall consult with each other prior to all public
statements or filings to be issued or made by any of them or
their affiliates with respect to this Agreement and the
transactions contemplated hereby.
Section 8. Representations and Warranties. (a) Each
of the parties hereto hereby represents and warrants to the other
parties hereto as follows:
(i) Such party is a corporation or partnership
duly organized, validly existing and in good standing under
the laws of the state of its incorporation or organization,
has full corporate or partnership power and authority to
execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions
contemplated hereby.
(ii) The execution and delivery by such party of
this Agreement and the performance by such party of its
obligations hereunder have been duly and validly authorized
by all necessary corporate or partnership action. This
Agreement has been duly and validly executed and delivered
by such party and constitutes a legal, valid and binding
obligation of such party enforceable against such party in
accordance with its terms.
(iii) The execution and delivery by such party of
this Agreement do not, and the performance by such party of
its obligations under this Agreement will not, conflict with
or result in a violation or breach of any of the provisions
of the certificate of incorporation, bylaws or other
organizational documents of such party, any law or order
applicable to such party or any of such party's contractual
obligations to other persons, in each case, in any manner
that would prevent or materially impede such party from
fulfilling its obligations hereunder.
(b) New Valley and NV Sub hereby represent and warrant
to High River that as of the date hereof the New Valley Group
owns beneficially and of record 4,278,700 Shares, free and clear
of all liens and encumbrances whatsoever, which Shares were
purchased by the New Valley Group at an aggregate cost (exclusive
of all brokerage fees and commissions incurred in the acquisition
of such Shares) of $129,572,796, and in respect of which New
Valley and NV Sub received dividends of $37,500 on July 3, 1995
and dividends of $298,387.50 on October 2, 1995. New Valley and
NV Sub further represent that, upon the consummation of the
purchase and sale of Purchased Shares contemplated by Section
1(a), High River will acquire title to the Purchased Shares, free
and clear of all encumbrances and liens whatsoever.
(c) High River hereby represents and warrants to New
Valley and NV Sub that as of the date hereof the High River Group
owns beneficially and of record 1,205,900 Shares, free and clear
of all liens and encumbrances whatsoever, which Shares were
purchased by the High River Group at an aggregate cost (including
all brokerage fees and commissions incurred in the acquisition of
such Shares) of $33,173,434.30, and in respect of which High
River received dividends of $452,212.50 on October 2, 1995. High
River further represents and warrants that it has as of the date
hereof, and will have on each date prior to the termination of
this Agreement, net stockholders' or partners' equity of at least
$22 million.
Section 9. Miscellaneous. (a) For purposes of this
Agreement, (i) the terms "affiliate" and "associate" have the
meanings assigned to them in Rule 12b-2 promulgated under the
Exchange Act, provided that the BGL Group shall not be deemed to
be "affiliates" or "associates" of the New Valley and NV Sub for
any purpose of this Agreement, (ii) the term "shall" is used
herein to refer to actions which are compulsory and thus to
create binding obligations among the parties hereto, (iii) the
terms "will," "expect," "expectation," "intend" and "intention,"
and other terms of similar import, are used herein solely to
refer to the aspirations and objectives of the parties hereto and
thus are not used herein to create binding obligations among the
parties hereto and (iv) the term "may" is used herein solely to
refer to conduct which is optional and not compulsory and thus is
not used herein to create binding obligations among the parties
hereto.
(b) The parties hereto shall have no rights, powers or
duties except as specified herein, and no such rights, powers or
duties shall be implied. Nothing herein shall give any party
hereto the power to bind any other party hereto to any contract,
agreement or obligation to any third party.
(c) All notices and other communications hereunder
shall be in writing and shall be deemed given when received by
the parties hereto at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to New Valley or NV Sub:
100 S.E. Second Street
Miami, Florida 33131
Attention: Bennett S. LeBow
Telecopy: (305) 579-8001
With a copy to:
Michael L. Hirschfeld, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005-1413
Telecopy: (212) 530-5219
If to High River:
c/o/ Icahn Associates Corp.
114 West 47th Street
19th Floor
New York, New York 10036
Attention: Carl C. Icahn
Telecopy: (212) 921-3359
With a copy to:
Marc Weitzen, Esq.
Gordon Altman Butowsky Weitzen
Shalov & Wein
114 West 47th Street
20th Floor
New York, New York 10036
Telecopy: (212) 626-0799
(d) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement.
(e) This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and
understandings among the parties hereto with respect to the
subject matter hereof.
(f) This Agreement shall be governed and construed in
accordance with the laws of the state of New York applicable to a
contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
(g) Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties hereto;
provided, however, that High River may assign any of its rights
and interests hereunder to (i) any corporation incorporated in
any state of the United States or in the District of Columbia if
at least 98.5% of the shares of each class of capital stock of
such corporation are owned by Carl C. Icahn (a "wholly-owned
Icahn subsidiary"), either directly or through one or more
wholly-owned Icahn subsidiaries or (ii) any partnership, the
partners of which are all wholly-owned Icahn subsidiaries; and
provided further that no such assignment shall relieve High River
of any of its obligations hereunder. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their
respective successors and assigns.
(h) This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on
behalf of each party hereto. No waiver of any term or condition
in this Agreement shall be effective unless set forth in writing
and signed by or on behalf of the waiving party. No waiver by
any party hereto of any term or condition of this Agreement shall
be deemed to be or construed as a waiver of the same or any other
term or condition of this Agreement on any future occasion.
(i) The terms and provisions of this Agreement are
intended solely for the benefit of the parties hereto and their
successors and permitted assigns and are not intended to confer
upon any other person any rights or remedies hereunder.
(j) In the event that any party hereto prevails in any
action or proceeding alleging a breach of this Agreement, such
party shall be entitled to recover all reasonable attorney's fees
and other costs of prosecuting such action or proceeding and, in
addition, shall be entitled to receive simple interest on any
damages awarded in such action or proceeding at the rate of 10%
per annum from the date of such breach.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their representatives thereunto duly
authorized, all as of the date first above written.
NEW VALLEY CORPORATION
By:
ALKI CORP.
By:
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP., INC.
General Partner
By:
[Signature page to Agreement among New Valley Corporation, ALKI
Corp. and High River Limited Partnership dated October 17, 1995]
NEW VALLEY CORPORATION
ALKI CORP.
100 S.E. Second Street
Miami, Florida 33131
October 17, 1995
High River Limited Partnership
100 South Bedford Road
Mount Kisco, New York 10549
Attn: Carl C. Icahn
Dear Carl:
By executing this letter in the space provided below,
New Valley Corporation, a New York corporation ("New Valley"),
ALKI Corp., a Delaware corporation and a direct wholly owned
subsidiary of New Valley ("NV Sub") and High River Limited
Partnership, a Delaware limited partnership ("High River"), each
hereby agree as follows:
1. Notwithstanding the terms of Sections 1(c)(ii)-
(iv) of the Agreement by and among New Valley, NV Sub and
High River, dated October 17, 1995 (the "New Valley
Agreement"), New Valley and NV Sub ("New Valley Group") and
High River and its affiliates ("High River Group") will
calculate the aggregate number and the average price of all
shares of common stock, par value $.01 per share, of RJR
Nabisco Holding Corp. ("Shares") owned by New Valley Group
and High River Group, respectively, on a periodic basis,
with emphasis on doing so when the parties own a similar
number of Shares, and make payments to one another in
immediately available funds, so that after giving effect to
such payments, the New Valley Group and the High River Group
will have invested the same amount in Shares (exclusive of
brokerage fees and commissions incurred in such
acquisitions).
2. Strict compliance with Section 1(c)(ii)-(iv) of
the New Valley Agreement is not required, notwithstanding
the terms thereof.
3. Nothing herein contained shall be construed to
otherwise abrogate the rights and obligations of the parties
to this letter agreement with respect to all other
provisions of the New Valley Agreement.
If the foregoing reflects your understanding, please
sign this letter below. Upon your execution hereof, this letter
agreement will become a binding contract between us.
Very truly yours,
Bennett S. LeBow
Accepted and Agreed to:
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP., INC.
General Partner
By:_________________________
Edward E. Mattner
President
[Signature page for letter agreement
by and among New Valley Corporation,
ALKI Corp. and High River Limited
Partnership]
High River Limited Partnership
100 South Bedford Road
Mount Kisco, New York 10549
November 5, 1995
New Valley Corporation
ALKI Corp.
100 S.E. Second Street
Miami, Florida 33131
Attn: Bennett S. LeBow
Dear Bennett:
By executing this letter in the space provided below,
New Valley Corporation, a New York corporation ("New Valley"),
ALKI Corp., a Delaware corporation and a direct wholly-owned
subsidiary of New Valley ("NV Sub") and High River Limited
Partnership, a Delaware limited partnership ("High River"), each
hereby agree as follows:
1. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms
in the Agreement by and among New Valley, NV Sub and High River,
dated October 17, 1995 (the "New Valley Agreement").
2. Section 1(b)(iii) of the New Valley Agreement is
hereby amended to add the following to the end of the subsection:
"; provided, however, that neither High River nor the New
Valley Group shall have any obligation to make a Second
Stage Investment unless and until the New Valley Group gives
notice ("Second Stage Notice") to High River of the New
Valley Group's intention to proceed with and make its Second
Stage Investment."
3. Notwithstanding the terms of Sections 1(c)(ii)-
(iv) of the New Valley Agreement and the letter agreement by and
among New Valley, NV Sub and High River, dated October 17, 1995
(the "Letter Agreement"), following the First Stage Completion
Date and prior to the earlier of (i) such time that New Valley,
NV Sub and any assignee of the foregoing ("New Valley Group")
beneficially own a number of shares of common stock, par value
$.01 per share, of RJR Nabisco Holdings Corp. ("Shares") equal to
or greater than the number of Shares beneficially owned by High
River and its affiliates ("High River Group") (the "Catch Up
Date") and (ii) both New Valley Group and High River Group have
made investments in Shares equal to at least the Second Stage
Investment (the "Second Stage Completion Date"), neither High
River Group nor New Valley Group shall be obligated to make or
cause to be made to the other party:
(i) such transfer of Shares and such payments as would have
been necessary so that, after giving effect to such
transfers and payments, New Valley Group and High River
Group would have acquired the same number of Qualifying
Shares;
(ii) such payments as would have been necessary so that,
after giving effect to such payments, New Valley Group and
High River Group would have invested the same amount in
Qualifying Shares (exclusive of brokerage fees and
commissions incurred in such acquisitions); or
(iii) such transfer of Non-Qualifying Shares or payment for
Non-Qualifying Shares in accordance with Section 1(c)(iii)
of the New Valley Agreement.
In the event that the Catch Up Date precedes the Second Stage
Completion Date and following the Catch Up Date (but prior to the
Second Stage Completion Date) New Valley Group purchases Shares,
then (x) the parties shall calculate the aggregate number and the
average price of all Qualifying Shares acquired after the Catch
Up Date by New Valley Group and High River Group, respectively,
on a periodic basis, with emphasis on doing so when the parties
own a similar number of Shares, and make payments to one another
in immediately available funds, so that after giving effect to
such payments, New Valley Group and High River Group will have
invested the same amount in Qualifying Shares acquired after the
Catch Up Date (exclusive of brokerage fees and commissions
incurred in such acquisitions); (y) New Valley Group may, in
accordance with Section 1(c)(iii) of the New Valley Agreement,
put to High River Non-Qualifying Shares at the Hurdle Price; and
(z) the parties shall follow the even up procedures set forth in
Section 1(c)(v) of the New Valley Agreement. In the event that
following the Catch Up Date, New Valley does not purchase Shares,
then clauses (i)-(iii) of this Paragraph 3 shall remain in
effect.
4. Section 1(d)(i) of the New Valley Agreement is
hereby amended to delete the first two lines in their entirety
and to substitute in lieu thereof the following:
"Except as provided in subpart (ii) of this subparagraph (d)
and except as provided in Section 9(g) of this Agreement,
until the termination of this Agreement,"
5. Notwithstanding Section 1(d) of the New Valley
Agreement, if at any time subsequent to the First Stage
Completion Date but prior to the Second Stage Completion Date,
High River Group beneficially owns more Shares than New Valley
Group, then High River Group may sell, transfer or otherwise
dispose of ("Transfer") Shares beneficially owned by it, provided
that following such Transfer, the number of Shares beneficially
owned by High River Group would not be less than the number of
Shares beneficially owned by New Valley Group, as reflected in
New Valley Group's last written notice to High River Group in
accordance with Section 1(c)(i) of the New Valley Agreement.
6. Section 3(b)(ii)(B) of the New Valley Agreement is
hereby amended to delete the subsection in its entirety and to
substitute in lieu thereof the following:
"(B) a party hereto which is not a member of such selling or
offering Group thereafter terminates this Agreement prior to
or on the tenth day after the first date that such party
becomes aware that such event has occurred,"
7. New Valley Group shall promptly make any payments
due under Section 5(d) of the New Valley Agreement and Section
4(c) of the Agreement among Brooke Group Ltd., BGLS Inc. and High
River dated October 17, 1995 (the "BGL Agreement"). In the event
that High River Group believes that New Valley Group has breached
any of its obligations under Section 5(d) of the New Valley
Agreement or Section 4(c) of the BGL Agreement, the parties shall
promptly follow the procedures set forth in Section 1(c)(v) of
the New Valley Agreement in order to resolve the dispute. If the
Arbitrator determines that (i) New Valley Group is required to
make a payment pursuant to Section 5(d) of the New Valley
Agreement and/or Section 4(c) of the BGL Agreement, New Valley
Group shall make or cause to be made such payment within twenty
(20) days after receiving the Arbitrator's notice of decision.
In the event that New Valley Group fails to make such payment
within twenty (20) days after receipt of the Arbitrator's notice
of decision, New Valley Group shall immediately pay or cause to
be paid to High River Group an additional sum in the amount of
$50 million.
8. The first sentence of Section 9(g) of the New
Valley Agreement is hereby amended to add the following to the
end of the sentence:
"; and provided, however, that the New Valley Group may
assign any of its rights and interests hereunder to (i) any
corporation incorporated in any state of the United States
or in the District of Columbia if 100% of the shares of each
class of capital stock of such corporation are owned by New
Valley (a "wholly-owned New Valley subsidiary"), either
directly or through one or more wholly-owned New Valley
subsidiaries or (ii) any partnership, the partners of which
are all wholly-owned New Valley subsidiaries; and provided,
further, that no such assignment shall relieve the New
Valley Group of any of its obligations hereunder."
9. In the event that prior to February 1, 1996 (i)
New Valley Group provides High River Group with notice of
termination of the New Valley Agreement or BGL Group provides
High River with notice of termination of the BGL Agreement at a
time when a Termination Event (as defined in the BGL Agreement)
set forth in Section 3(c)(vii) or 3(c)(viii) of the BGL Agreement
has occurred or (ii) High River Group provides New Valley Group
with notice of termination of the New Valley Agreement or
provides BGL Group with notice of termination of the BGL
Agreement at a time when a Termination Event set forth in Section
3(c)(ix)(A) of the BGL Agreement has occurred, New Valley Group
shall not transfer any Shares beneficially owned by New Valley
Group until February 1, 1996 in consequence of or in reliance
upon such notice of termination. If the notice of termination
specified in clause (i) of the preceding sentence is provided
after January 16, 1996, and the aggregate number of Shares
beneficially owned by High River Group exceeds the aggregate
number of Shares beneficially owned by New Valley Group plus BGL
Group (collectively, the "Aggregate LeBow Shares"), New Valley
Group shall not Transfer any Shares beneficially owned by New
Valley Group for fifteen (15) days following receipt by High
River Group of New Valley Group's or BGL Group's notice of
termination; provided, however, that on such date not before
February 1, 1996 that the aggregate number of Shares beneficially
owned by High River Group is equal to or less than the Aggregate
Lebow Shares, and thereafter, New Valley Group may Transfer any
Shares beneficially owned by New Valley Group.
10. In the event that High River Group provides New
Valley Group with notice of termination of the New Valley
Agreement or provides BGL Group with notice of termination of the
BGL Agreement at a time when a Termination Event under any of
Sections 3(c)(ix)(B) through (E) of the New Valley Agreement has
occurred and the aggregate number of shares beneficially owned by
High River Group exceeds the Aggregate LeBow Shares, New Valley
Group shall not Transfer any Shares beneficially owned by New
Valley Group in consequence of or in reliance upon such notice of
termination until the earlier of (i) fifteen (15) days following
receipt by New Valley Group or BGL Group of High River Group's
notice of termination specified in the preceding sentence and
(ii) the date that the aggregate number of Shares beneficially
owned by High River Group is equal to or less than the Aggregate
LeBow Shares.
11. Nothing herein contained shall be construed to
otherwise abrogate the rights and obligations of the parties to
this letter agreement with respect to all other provisions of the
New Valley Agreement, the BGL Agreement and the Letter Agreement.
<PAGE>
If the foregoing reflects your understanding, please
sign this letter below. Upon your execution hereof, this letter
agreement will become a binding contract between us.
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: RIVERDALE INVESTORS CORP., INC.
Its: General Partner
By:
Name:
Title:
Agreed to and Accepted:
NEW VALLEY CORPORATION
By:
Name:
Title:
ALKI CORP.
By:
Name:
Title:
[Signature page for letter agreement by and among New Valley
Corporation, ALKI Corp. and High River Limited Partnership, dated
November __, 1995]
[COMPOSITE COPY
GIVING EFFECT TO AMENDMENT
NOS. 1-11 AND TO TERMINATION AND
AMENDMENT AGREEMENT DATED
AS OF JANUARY 12, 1994]
*****************************************************************
TORTOISE CORP.
_________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 20, 1993
_________________________________
INTERNATIONALE NEDERLANDEN BANK N.V., NEW YORK BRANCH
*****************************************************************
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 20, 1993, between:
TORTOISE CORP., a corporation duly organized and validly existing under the
laws of New York (the "Company"); and INTERNATIONALE NEDERLANDEN BANK N.V.,
NEW YORK BRANCH (together with any assignee thereof, the "Bank"), formerly
known as NMB Postbank Groep N.V., New York Branch.
WHEREAS, the Company and the Bank have heretofore entered into a certain
Credit Agreement, dated as of January 10, 1991, as successively amended
(the "Original Credit Agreement"); and
WHEREAS, the Company and the Bank now desire to amend and restate the
Original Credit Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, (i) the Company and the Bank agree that the Original Credit
Agreement is hereby amended and restated in its entirety as provided for
herein, and (ii) the Company and the Bank further agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"ACF" shall mean ACF Industries, Incorporated, a New Jersey corporation,
and its successors and assigns.
"ACF Holding" shall mean ACF Industries Holding Corp., a Delaware
corporation, and its successors and assigns.
"ACF Holding Guaranty" shall mean that certain Guaranty, dated June 17,
1994, as the same may be modified and supplemented and in effect from time
to time, from ACF Holding in favor of the Bank.
"ACL II C" shall mean American Car Line II Company, a Delaware
corporation.
"ACL II C Guaranty" shall mean the Guaranty substantially in the form of
Exhibit C-2 from ACL II C to the Bank, as the same shall be modified and
supplemented and in effect from time to time. ACL II C is being
compensated by the Company for executing and delivering the ACL II C
Guaranty.
"ACL II C Security Agreement" shall mean the security agreement-trust deed
dated May 20, 1993 between ACL II C and the Bank, as the same shall be
modified and supplemented and in effect from time to time.
"Advances" shall mean (i) loans made under credit or loan agreements
between or among one or more borrowers and one or more financial
institutions of which loans the Company is the direct beneficial owner and
the owner of record and (ii) participations in loans made under credit or
loan agreements between or among one or more borrowers and one or more
financial institutions which participations the Company holds pursuant to
participation agreements satisfactory to the Bank in form and substance
with one or more financial institutions.
"Affiliate" shall mean any person which directly or indirectly controls,
or is under common control with, or is controlled by, the Company and, if
such Person is an individual, any member of the immediate family (including
parents, spouse and children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or
trust. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause
the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), provided that, in any event, any Person which owns directly or
indirectly 5% or more of the securities having ordinary voting power for
the election of directors or other governing body of a corporation or 5% or
more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to
control such corporation or other Person. Notwithstanding the foregoing,
no individual shall be deemed to be an Affiliate solely by reason of his or
her being a director, officer or employee of the Company.
"Agreement" shall mean, on any date, this Credit Agreement as originally
in effect and as thereafter from time to time amended, supplemented,
amended and restated, or otherwise modified and in effect.
"AKF" shall mean AKF Corp., a Delaware corporation.
"AKF Railcar Credit Agreement" shall mean that certain Credit Agreement,
dated as of December 21, 1994, between AKF and the Bank, as the same shall
be amended, supplemented, amended and restated, or otherwise modified from
time to time.
"AKF Security Agreement" shall mean that certain Security Agreement-Trust
Deed, dated as of December 21, 1994, between AKF and the Bank, as the same
shall be modified and supplemented and in effect from time to time.
"Applicable Lending Office" shall mean the Principal Office or, with
respect to any Type of Loan, such other office of the Bank (or of an
affiliate of the Bank) as the Bank may from time to time specify to the
Company as the office by which the Loans of such Type are to be made and
maintained.
"Applicable Margin" shall mean: (a) with respect to Base Rate Loans,
1-1/2% per annum; and (b) with respect to Eurodollar Loans, 3-1/2% per
annum.
"AREP" shall mean American Real Estate Partners, L.P., a Delaware limited
partnership.
"Assets" shall mean Advances and Securities.
"Base Rate" shall mean, for any day, the higher of (a) the Federal Funds
Rate for such day plus 1/2 of 1% per annum and (b) the Prime Rate for such
day. Each change in any interest rate provided for herein based upon the
Base Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans which bear interest at rates based upon
the Base Rate.
"Basic Documents" shall mean, collectively, this Agreement, the Letters of
Credit and all applications therefor, the Note, the ARAC Guaranty, the
Bayswater Guaranty, the Tortoise Guaranty and the Security Documents.
"Bayswater Guaranty" shall mean the Guaranty, dated as of December 22,
1993, from the Company to the Bank, as the same shall be modified and
supplemented and in effect from time to time.
"BGLS" means BGLS Inc., a Delaware corporation.
"Brooke Partners" means Brooke Partners, L.P., a Delaware limited
partnership.
"Borrowing Base" shall mean, at any time, an amount equal to the sum at
such time of (i) 50% of the Portfolio Value plus (ii) the aggregate amount
of cash and Permitted Investments on deposit in the Collateral Account.
"Borrowing Value" shall mean, with respect to any Asset at any time, an
amount equal to 50% of the Fair Market Value of such Asset at such time.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City and, if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on,
or a Conversion of or into, or an Interest Period for, a Eurodollar Loan or
a notice by the Company with respect to any such borrowing, payment,
prepayment, Conversion or Interest Period, which is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Capital Lease Obligations" shall mean, for any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) real and/or personal Property which
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP (including Statement of
Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board).
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral Account" shall have the meaning assigned that term in the
Security Agreement.
"Commitment" shall mean the obligation of the Lender to make Loans to and
to issue Letters of Credit for the account of the Company in an aggregate
amount at any one time outstanding up to but not exceeding $200,000,000 (as
the same may be reduced at any time or from time to time pursuant to
Section 2.04 hereof).
"Commitment Termination Date" shall mean December 19, 1996.
"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated
with the financial statements of such Person in accordance with GAAP.
"Continue", "Continuation" and "Continued" shall refer to the continuation
pursuant to Section 2.08 hereof of a Eurodollar Loan from one Interest
Period to the next Interest Period.
"Contract" is defined in Section 3.06.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to Section 2.08 hereof of Base Rate Loans into Eurodollar Loans or
of Eurodollar Loans into Base Rate Loans, which may be accompanied by the
transfer by the Bank (at its sole discretion) of a Loan from one Applicable
Lending Office to another.
"Credit Extension" shall mean, as the context may require,
(a) the making of a Loan; or
(b) the issuance or extension of any Letter of Credit.
"Default" shall mean an Event of Default or an event which with notice or
lapse of time or both would become an Event of Default.
"Disbursement" shall mean any payment made under a Letter of Credit by the
Bank to the beneficiary (or its assignee or transferee) of such Letter of
Credit.
"Disbursement Date" is defined in Section 3.04.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Company, but excluding dividends payable solely in
shares of capital stock of the Company.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Eligible Pledged Advances" shall mean all Pledged Advances other than
(i) Pledged Advances owing by any Person to the extent that the Fair Market
Value of all Pledged Assets issued or otherwise owing by such Person
exceeds 15% (or such higher or lower percentage, if any, specified by the
Bank to the Company at the time (or from time to time as the Bank and the
Company may mutually agree) it initially accepted Assets issued or
otherwise owing by such Person as Eligible Pledged Assets) of the Portfolio
Value as at the time of determination and (ii) Pledged Advances as to which
there exists any restriction (including, without limitation, any
requirement that prior consent of any Person be obtained, but excluding any
limitation that has been waived to the satisfaction of the Bank) in the
documentation relating thereto limiting the right of any holder thereof to
assign or pledge the same or the right of any pledgee thereof to exercise
foreclosure remedies with respect thereto, unless the Bank has otherwise
agreed in writing.
"Eligible Pledged Assets" shall mean Eligible Pledged Advances and
Eligible Pledged Securities.
"Eligible Pledged Securities shall mean (a) all Pledged Securities
constituting RJR Common Stock and (b) all other Pledged Securities other
than Pledged Securities issued by any Person (other than RJR with respect
to the RJR Common Stock) to the extent that the Fair Market Value of all
Pledged Assets issued or otherwise owing by such Person exceeds (i) in the
case of AREP limited partnership interests, 20% of the Portfolio Value as
at the time of determination, (ii) in the case of the aggregate of (a) the
14.5% notes due April 1, 1998 issued by Brooke Partners, (b) the 13.75%
notes due March 1, 1997 issued by BGLS, (c) the 11.50% notes due February
1, 1999 issued by Liggett and (d) the class A and class B preferred stock,
par value $0.01 per share and par value $0.10 per share, respectively, of
New Valley, collectively, 15% of the Portfolio Value as at the time of
determination and (iii) in all other cases (other than with respect to the
RJR Common Stock), 15% of the Portfolio Value as at the time of
determination (or such higher or lower percentage, if any, specified by the
Lender to the Company at the time (or from time to time as the Lender and
the Company may mutually agree) it initially accepted Assets issued or
otherwise owing by such Person as Eligible Pledged Assets).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business which is
a member of the same controlled group of corporations (within the meaning
of Section 414(b) of the Code) as the Company or is under common control
(within the meaning of Section 414(c) of the Code) with the Company.
"Escrow Instructions" shall mean escrow instructions from each of ACF,
Tortoise, Unicorn Associates Corporation, a New York corporation, and
Chelonian Corp., a New York corporation, each substantially in the form of
Exhibit C-1 hereto, as each may be amended, restated or otherwise modified,
from time to time, each executed pursuant to this agreement.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) quoted by the Bank at approximately
11:00 a.m. London time (or as soon thereafter as practicable) on the date
two Business Days prior to the first day of such Interest Period for the
offering by the Bank to leading banks in the London interbank market of
Dollar deposits having a term comparable to such Interest Period and in an
amount comparable to the principal amount of the Eurodollar Loan to be made
by the Bank for such Interest Period.
"Eurodollar Loans" shall mean Loans interest rates on which are determined
on the basis of rates referred to in the definition of "Eurodollar Base
Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Bank to be equal to the Eurodollar
Base Rate for such Loan for such Interest Period divided by 1 minus the
Reserve Requirement for such Loan for such Interest Period.
"Event of Default" shall have the meaning assigned to such term in Section
9 hereof.
"Excess Equity" shall mean at any time, the difference between (but not
less than zero) (A) the sum of (x) the aggregate Fair Market Value of
Eligible Pledged Securities at such time, plus (y) the aggregate Fair
Market Value of Eligible Pledged Advances at such time, plus (z) the
aggregate amount of cash and Permitted Investments on deposit in the
Collateral Account at such time, and (B) the sum of (x) the aggregate
outstanding principal amount of the Loans at such time, plus (y) the
aggregate amount of all Letter of Credit Outstandings at such time.
"Fair Market Value" shall mean at any time:
(a) with respect to any Security, the arithmetic mean of the bid prices
quoted by the Valuation Sources for such Security to the Bank for the
purchase of such Security at such time; provided that (i) if any Valuation
Source for such Security does not timely furnish such information, the Bank
may determine such Fair Market Value by reference to the arithmetic mean of
bid prices quoted by the remaining Valuation Sources for such Security,
(ii) if no Valuation Source for such Security timely furnished such
information, the "Fair Market Value" of such Security at such time shall
mean the fair market value thereof at such time as determined by the Bank
in its sole discretion, and (iii) the "Fair Market Value" of any Security
proposed by the Company to be a Pledged Security shall mean, at the time
such Security becomes a Pledged Security, the cash purchase price paid by
the Company for such Security in an open market transaction not with an
Affiliate where the purchase is substantially contemporaneous with the
pledge of such Security to the Bank under the Security Agreement (or with
an order for delivery to the Bank against payment according to customary
business terms). Notwithstanding clauses (i) and (ii), but subject to
clause (iii), of the preceding sentence, the Company may complete each
Valuation Certificate and make each Credit Extension request hereunder on
the basis of quotes of bid prices for the relevant Securities at the
relevant time from sources reasonably believed by it to be reliable and the
Bank may (but shall not be required to) rely upon such determinations by
the Company; provided that, through and including the second Business Day
following the date of such Valuation Certificate or Credit Extension
request, as the case may be, the Bank may notify the Company that the
amount of such determination by the Company exceeded the Fair Market Value
of the relevant Securities, in which case (i) if such Valuation Certificate
incorrectly showed the Company to be in compliance with Section 8.14 hereof
on any date, the Fair Market Value of such Securities on the date the Bank
furnishes such notice to the Company shall for all purposes of the Basic
Documents be deemed to be the lower of Fair Market Value of such Securities
as at the date of such Valuation Certificate or such Fair Market Value on
the date of such notice and (ii) if the amount of such Credit Extension
exceeded the amount to which the Company was entitled by reason of clause
(a) of the second sentence of Section 2.01 hereof, the Bank shall be
entitled to demand at any time through and including such second Business
Day that the Company immediately pay or prepay Loans and/or pay funds into
the Collateral Account in an aggregate principal amount equal to such
excess;
(b) with respect to any Advance, (i) at the time such Advance becomes a
Pledged Advance until the first Valuation Event (as defined in the
following clause (ii)), the amount agreed upon by the Bank and the Company
at such time or (ii) at any time after the provision by the Company of a
Valuation Certificate with respect to any Advance (each such disclosure
being referred to herein as a "Valuation Event") the value of such Advance
most recently disclosed by the Company in a Valuation Certificate; provided
that through and including the third Business Day following the date of any
Valuation Event, the Bank may notify the Company that it disagrees with the
value so disclosed (the date of such notice being referred to herein as a
"Notification Date"), specifying a value that it believes is the
appropriate Fair Market Value for such Advance, in which case (A) the
Company and the Bank shall negotiate in good faith with a view toward
reaching agreement on the Fair Market Value of such Advance or on the
identity of an independent third Person to determine such Fair Market
Value, (B) if the Company and the Bank do not so agree on or before the
third Business Day following such Notification Date, the Company and the
Bank shall on such third Business Day each appoint any one of Bear,
Stearns & Co., Inc., Goldman, Sachs & Co., Jefferies & Co., Inc.,
Oppenheimer & Co., Inc. and Credit Research & Trading, Inc. (each, an
"Acceptable Appraiser") to select a third Acceptable Appraiser (the
"Appointed Appraiser") to determine the fair market value of such Advance
on or before the sixth Business Day after the Notification Date, provided
that if the Bank does not, on such third Business Day, appoint an
Acceptable Appraiser to select a third Acceptable Appraiser, the Acceptable
Appraiser appointed by the Company shall be the Appointed Appraiser, (C) if
an Appointed Appraiser determines the fair market value of an Advance as
contemplated by the preceding clause (B) on or before the sixth Business
Day following a Notification Date, such fair market value shall be the Fair
Market Value of such Advance until the next Valuation Event and (D) if the
Fair Market Value of an Advance is not determined on or before the sixth
Business Day following a Notification Date, such Fair Market Value shall
thereafter be determined by the Bank from time to time thereafter in its
sole discretion. The fees and expenses of the independent Persons referred
to in clause (B) above shall be shared 50/50 by the Bank and the Company.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (i) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate charged to the Bank on such day on
such transactions as determined by the Bank.
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time.
"Guarantee" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of
any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an
agreement to purchase, sell or lease (as lessee or lessor) Property,
products, materials, supplies or services primarily for the purpose of
enabling a debtor to make payment of his, her or its obligations or an
agreement to assure a creditor against loss, and including, without
limitation, causing a bank or other financial institution to issue a letter
of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course
of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning.
"High Coast" shall mean High Coast Limited Partnership, a Delaware limited
partnership.
"High Coast Letter Agreement" shall mean a letter agreement, in the form
of Exhibit G attached hereto, among the Company, High Coast and the Lender,
as the same shall be amended, supplemented, amended and restated, or
otherwise modified from time to time.
"High River" means High River Limited Partnership, a Delaware limited
partnership.
"High River Letter Agreement" means a letter agreement, in the form of
Exhibit H attached hereto, among the Company, High River and the Lender, as
the same shall be amended, supplemented, amended and restated, or otherwise
modified from time to time with the prior consent of the Lender.
"IHC" shall mean Icahn Holding Corporation, a Delaware corporation.
"IHC Indemnification Agreement" shall mean that certain Indemnification
Agreement, dated as of December 30, 1993, made by IHC in favor of the Bank,
as the same shall be modified and supplemented and in effect from time to
time.
"Indebtedness" shall mean, for any Person: (a) indebtedness created,
issued or incurred by such Person for borrowed money (whether by loan or
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise,
to repurchase such Property from such Person); (b) obligations of such
Person to pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of business
so long as such trade accounts payable are payable within 90 days of the
date the respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a Lien on the Property of
such Person, whether or not the respective indebtedness so secured has been
assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and
other financial institutions for the account of such Person; (e) Capital
Lease Obligations of such Person; and (f) Indebtedness of others Guaranteed
by such Person.
"Indemnification Agreement" shall mean that certain Indemnification
Agreement, dated as of May 20, 1993, as the same shall be modified and
supplemented and in effect from time to time, from IHC.
"Indemnified Liabilities" is defined in Section 3.08.
"Indemnified Parties" is defined in Section 3.08.
"Interest Period" shall mean, with respect to any Eurodollar Loan, each
period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or the last day of the next preceding Interest Period
for such Loan and ending on the numerically corresponding day in the first,
second or third calendar month thereafter, as the Company may select as
provided in Section 4.04 hereof, except that each Interest Period which
commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. Notwithstanding the foregoing: (i)
if any Interest Period would otherwise end after the Commitment Termination
Date, such Interest Period shall end on the Commitment Termination Date;
(ii) each Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, if such
next succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day); and (iii) notwithstanding clause (i)
above, no Interest Period shall have a duration of less than one month and,
if the Interest Period for any Eurodollar Loan would otherwise be a shorter
period, such Loan shall not be available hereunder.
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between
such Person and a financial institution providing for the transfer or
mitigation of interest risks either generally or under specific
contingencies.
"Investment" shall mean, for any Person: (a) the acquisition (whether for
cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such
acquisition (including, without limitation, any "short sale" or any sale of
any securities at a time when such securities are not owned by the Person
entering into such short sale); (b) the making of any deposit with, or
advance, loan or other extension of credit to, any other Person (including
the purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such Person,
but excluding any such advance, loan or extension of credit having a term
not exceeding 90 days representing the purchase price of inventory or
supplies sold in the ordinary course of business); (c) the entering into of
any Guarantee of, or other contingent obligation with respect to,
Indebtedness or other liability of any other Person and (without
duplication) any amount committed to be advanced, lent or extended to such
Person; or (d) the entering into of any Interest Rate Protection Agreement.
"Issuance Date" is defined in Section 3.03.
"Issuance Request" shall mean an issuance request duly completed and
executed by an authorized officer of the Company substantially in the form
of Exhibit F hereto.
"Letter of Credit" shall mean any irrevocable stand-by letter of credit
issued pursuant to an Issuance Request by the Bank for the account of the
Company in a form acceptable to the Bank and the Company and in a Stated
Amount requested by the Company.
"Letter of Credit Outstandings" shall mean, on any date, an amount equal
to the sum of
(a) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement, the Company shall be deemed
to own subject to a Lien any Property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"Liggett" means Liggett Group Inc., a Delaware corporation.
"Loans" shall mean the loans provided for by Section 2.01 hereof.
"Maintenance Base" shall mean, at any time, an amount equal to the sum at
such time of (i) 60% of the Portfolio Value at such time plus (ii) the
aggregate amount of cash and Permitted Investments on deposit in the
Collateral Account.
"Margin Stock" shall mean margin stock within the meaning of Regulations U
and X.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
Property, business, operations, financial condition, liabilities or
capitalization of the Company, the Parent Corporation, ACF or AKF, (b) the
ability of the Company to perform its obligations under any of the Basic
Documents, (c) the validity or enforceability of any of the Basic
Documents, (d) the rights and remedies of the Bank under any of the Basic
Documents, or (e) the Company's ability to make timely payment of the
principal of or interest on or fees relating to the Credit Extensions or
other amounts payable in connection therewith; provided that a decline in
the Portfolio Value to an amount equal to or exceeding the Maintenance Base
shall not by itself be deemed to constitute a Material Adverse Effect.
"Monthly Dates" shall mean the last Business Day of each calendar month.
"Multiemployer Plan" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Company
or any ERISA Affiliate and which is covered by Title IV of ERISA.
"New Valley" means New Valley Corporation, a Delaware corporation.
"Note" shall mean the promissory note provided for by Section 2.07 hereof.
"Outstanding Amount" is defined in Section 2.09.
"Original Credit Agreement" is defined in the first recital.
"Parent Corporation" shall mean such corporation as may from time to time
own all of the issued and outstanding shares of capital stock of the
Company.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Investments" shall have the meaning assigned that term in the
Security Agreement.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization
or government (or any agency, instrumentality or political subdivision
thereof).
"Plan" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and which is covered by
Title IV of ERISA, other than a Multiemployer Plan.
"Pledged Advances" shall have the meaning assigned to that term in the
Security Agreement.
"Pledged Assets" shall have the meaning assigned to that term in the
Security Agreement.
"Pledged Securities" shall have the meaning assigned to that term in the
Security Agreement.
"Portfolio Value" shall mean, at any time, the sum at such time of (i) the
aggregate Fair Market Value of Eligible Pledged Securities plus (ii) the
lesser of (x) $200,000,000 or (y) the aggregate Fair Market Value of
Eligible Pledged Advances.
"Post-Default Rate" shall mean, in respect of any principal of any Loan or
any other amount under this Agreement, the Note, or any other Basic
Document that is not paid when due (whether at stated maturity, by
acceleration, by mandatory prepayment or otherwise), a rate per annum
during the period from and including the due date to but excluding the date
on which such amount is paid in full equal to 2% above the Base Rate as in
effect from time to time plus the Applicable Margin (if any) (provided
that, if the amount so in default is principal of a Eurodollar Loan and the
due date thereof is a day other than the last day of an Interest Period
therefor, the "Post-Default Rate" for such principal shall be, for the
period from and including such due date to but excluding the last day of
such Interest Period, 2% above the interest rate for such Loan as provided
in Section 3.02(b) hereof and, thereafter, the rate provided for above in
this definition).
"Prime Rate" shall mean the rate of interest from time to time announced
by the Bank at the Principal Office as its prime commercial lending rate;
provided that if the Bank shall cease to announce a prime commercial
lending rate, then "Prime Rate" shall mean the arithmetic average of the
rates of interest publicly announced by The Chase Manhattan Bank (National
Association), Citibank, N.A. and Morgan Guaranty Trust Company of New York
(or their respective successors) as their respective prime commercial
lending rates (or, as to any such bank that does not announce such a rate,
such bank's "prime" or other rate determined by the Bank to be the
equivalent rate announced by such bank), except that, if any such bank
shall, for any period, cease to announce publicly its prime commercial
lending (or equivalent) rate, the Bank shall, during such period, determine
the "Prime Rate" based upon the prime commercial lending (or equivalent)
rates announced publicly by the other such banks.
"Principal Office" shall mean the principal office of the Bank, presently
located at 135 East 57th Street, New York, New York 10022-2101.
"Property" shall mean any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Railcar Credit Agreement" shall mean that certain Credit Agreement, dated
as of May 20, 1993, as from time to time amended, supplemented, amended and
restated, or otherwise modified, between ACL II C and the Bank.
"Regulations D, U and X" shall mean, respectively, Regulations D, U and X
of the Board of Governors of the Federal Reserve System (or any successor),
as the same may be amended or supplemented from time to time.
"Regulatory Change" shall mean any change after the date of this Agreement
in United States Federal, state or foreign law or regulations (including,
without limitation, Regulation D) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks
including the Bank of or under any United States Federal, state or foreign
law or regulations (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Reimbursement Obligation" is defined in Section 3.06.
"Reporting Parent" shall mean a direct or indirect parent corporation of
the Company whose consolidated financial statements include the Company as
a Consolidated Subsidiary provided that such corporation is not a direct or
indirect parent of Highcrest Investors Corp., a Delaware corporation.
"Reserve Requirement" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall include any other reserves required to be maintained by
such member banks by reason of any Regulatory Change against (i) any
category of liabilities which includes deposits by reference to which the
Eurodollar Base Rate is to be determined as provided in the definition of
"Eurodollar Base Rate" in this Section 1.01 or (ii) any category of
extensions of credit or other assets which includes Eurodollar Loans.
"RJR" means RJR Nabisco Holdings Corp., a Delaware corporation.
"RJR Common Stock" means the common stock, par value $0.01 per share, of
RJR.
"Securities" shall mean high-yield bonds, or securities received therefor
as a result of reorganization, exchanges or conversions in each case that
are "securities" as defined in section 8-102(l)(c) of the Uniform Commercial
Code of the State of New York.
"Security Agreement" shall mean the Amended and Restated Security
Agreement substantially in the form of Exhibit C-1 hereto between the
Company and the Bank, as the same shall be modified and supplemented and in
effect from time to time.
"Security Documents" shall mean, the Security Agreement and all Uniform
Commercial Code financing statements required by this Agreement or the
Security Agreement to be filed with respect to the security interests in
personal Property and fixtures created pursuant to the Security Agreement.
"Settlement Plan" shall mean that certain Settlement Agreement, dated as
of January 5, 1993, as the same may be modified and supplemented and in
effect from time to time, among Trans World Airlines, Inc., Official
Unsecured Creditors' Committee of Trans World Airlines, Inc., Pension
Benefit Guaranty Corporation, The Icahn Entities described therein and
various other parties.
"Stated Amount" shall mean the face amount of a Letter of Credit as such
amount is in effect on the issuance date thereof.
"Stated Expiration Date" is defined in Section 3.03.
"Subsidiary" shall mean, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other
ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing
similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries of such Person. "Wholly-Owned
Subsidiary" shall mean any such corporation, partnership or other entity of
which all of such securities or other ownership interests (other than, in
the case of a corporation, directors' qualifying shares) are so owned or
controlled.
"Tangible Net Worth" shall mean, as at any date, the sum for the Company
of the following, determined in accordance with GAAP (except that
Securities shall be carried at current market value):
(a) the amount of capital stock, plus
(b) the amount of surplus and retained earnings (or, in the case of a
surplus or retained earnings deficit, minus the amount of such deficit),
minus
(c) the sum of the following: cost of treasury shares and the book value
of all assets which should be classified as intangibles (without
duplication of deductions in respect of items already deducted in arriving
at surplus and retained earnings) but in any event including goodwill,
research and development costs, trademarks, trade names, copyrights,
patents and franchises, unamortized debt discount and expense, and all
reserves.
"Tortoise Guaranty" shall mean that certain Guaranty, dated as of December
31, 1994, from the Company to the Bank, as the same shall be modified and
supplemented and in effect from time to time.
"Type" shall have the meaning assigned that term in Section 1.03 hereof.
"Valuation Certificate" shall mean a certificate of the chief financial
officer of the Company, substantially in the form of Exhibit B hereto and
appropriately completed.
"Valuation Sources" shall mean, for any Pledged Security, three of the
Persons listed on Annex I hereto specified by the Bank in a notice to the
Company at or before the time such Pledged Security is pledged to the Bank
under the Security Agreement; provided that the Bank may at any time or
from time to time designate another Person listed on Annex I hereto to
replace a Valuation Source for such Pledged Security upon three Business
Days' notice to the Company (or such shorter period as the Company may
agree).
1.02 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made,
and all financial statements and certificates and reports as to financial
matters required to be furnished to the Bank hereunder shall be prepared,
in accordance with generally accepted accounting principles as in effect
from time to time, applied on a basis consistent with that used in the
audited consolidated financial statements of the Company and the
consolidated Subsidiaries referred to in Section 7.02 hereof. To enable
the ready and consistent determination of compliance with the covenants set
forth in Section 8 hereof, the Company will not change the last day of its
fiscal year from December 31 of each year, or the last days of the first
three fiscal quarters in each of its fiscal years from March 31, June 30
and September 30 of each year, respectively.
1.03 Types of Loans. Loans hereunder are distinguished by "Type". The
"Type" of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes a Type.
Section 2. The Commitments.
2.01 Loans. The Bank agrees, on the terms of this Agreement, to make
loans (the "Loans") to the Company in Dollars during the period from and
including the date hereof to but not including the Commitment Termination
Date (or any earlier date of termination of the Commitment) in an aggregate
principal amount at any one time outstanding, together with the aggregate
amount of all Letter of Credit Outstandings, up to but not exceeding the
amount of the Commitment as in effect from time to time. Subject to the
terms of this Agreement, during such period the Company may borrow, repay
and reborrow the Loans by means of Base Rate Loans and Eurodollar Loans and
may Convert Loans of one Type into Loans of another Type (as provided in
Section 2.08 hereof) or Continue Loans of one Type as Loans of the same
Type; provided that (a) the Company shall not be entitled to make any
borrowing unless either (i) the Borrowing Base is at least equal to the
aggregate principal amount of the Loans outstanding and Letter of Credit
Outstandings after giving effect thereto or (ii) substantially
simultaneously with such borrowing Assets with a Borrowing Value equal to
or more than the principal amount of such borrowing (excluding Advances to
the extent that, when included as Eligible Pledged Advances, the aggregate
Fair Market Value of all Eligible Pledged Advances would exceed
$200,000,000 when any obligations are outstanding under the AKF Railcar
Credit Agreement and the AKF Railcar Credit Agreement is in full force and
effect, or $200,000,000 thereafter), become Eligible Pledged Assets in
accordance with Section 2.10 hereof (and the Bank shall be satisfied with
the manner and timing of the creation and perfection of its security
interest in any Eligible Pledged Assets), and (b) no more than three
separate Interest Periods in respect of Eurodollar Loans may be outstanding
at any one time, and (c) the Bank shall not be required to make and the
Company shall not be permitted to borrow, any Loan if, after giving effect
thereto, the aggregate principal amount of the sum of all Loans outstanding
hereunder, all Letter of Credit Outstandings hereunder, and all loans and
letter of credit outstandings under the AKF Railcar Credit Agreement would
exceed $200,000,000.
2.02 Borrowings. The Company shall give the Bank notice of each
borrowing hereunder as provided in Section 4.04 hereof. On the date
specified for each borrowing hereunder, the Bank shall, subject to the
terms and conditions of this Agreement, make available the amount of such
borrowing to the Company by depositing the same, in immediately available
funds, in an account of the Company maintained with the Bank at the
Principal Office designated by the Company.
2.03 Letters of Credit. The Bank agrees, on the terms of this Agreement,
to issue Letters of Credit for the account of the Company in Dollars during
the period from and including the date hereof to but not including the
Commitment Termination Date (or any earlier date of termination of the
Commitment) in an aggregate Stated Amount at any one time outstanding,
together with all other Letter of Credit Outstandings and the aggregate
principal amount of the Loans then outstanding, up to but not exceeding the
amount of the Commitment as in effect from time to time; provided that the
Bank shall not be obligated to issue any Letter of Credit (a) unless either
(i) the Borrowing Base is at least equal to the aggregate principal amount
of the Loans outstanding and Letter of Credit Outstandings after giving
effect thereto or (ii) substantially simultaneously with such Credit
Extension Assets with a Borrowing Value equal to or more than the amount of
such Credit Extension (excluding Advances to the extent that, when included
as Eligible Pledged Advances, the aggregate Fair Market Value of all
Eligible Pledged Advances would exceed $200,000,000 when any obligations
are outstanding under the AKF Railcar Credit Agreement and the AKF Railcar
Credit Agreement is in full force and effect, or $200,000,000 thereafter),
become Eligible Pledged Assets in accordance with Section 2.10 hereof (and
the Bank shall be satisfied with the manner and timing of the creation and
perfection of its security interest in any Eligible Pledged Assets), and
(b) if, after giving effect thereto, the aggregate amount of the sum of all
Letter of Credit Outstandings hereunder, the aggregate principal amount of
all Loans then outstanding hereunder, and all letters of credit and loan
outstandings under the AKF Railcar Credit Agreement would exceed
$200,000,000.
2.04 Changes of Commitment.
(a) The Commitment shall be automatically reduced to zero on the
Commitment Termination Date.
(b) The Company shall have the right at any time or from time to time
(i) so long as there are no Letter of Credit Outstandings and no Loans are
outstanding, to terminate the Commitment and (ii) to reduce the unused
amount of the Commitment; provided that (x) the Company shall give notice
of each such termination or reduction as provided in Section 4.04 hereof,
and (y) each partial reduction shall be in an amount at least equal to
$5,000,000 and in multiples of $1,000,000 in excess thereof.
(c) The Commitment once terminated or reduced may not be reinstated.
2.05 Fees.
(a) The Company shall pay to the Bank a non-refundable commitment fee on
the daily average unused amount of the Commitment, for the period from and
including the date of this Agreement to but not including the earlier of
the date the Commitment is terminated and the Commitment Termination Date,
at a rate per annum equal to 1/2 of 1%. Accrued commitment fee shall be
payable on each Monthly Date and on the earlier of the date the Commitment
is terminated and the Commitment Termination Date.
(b) If, during the period commencing on February 28, 1992 and ending on
the earlier of the date the Commitment is terminated and the Commitment
Termination Date, there shall not have occurred 180 days (whether or not
such days are consecutive)
during which the sum of (x) the daily average aggregate outstanding
principal amount of the Loans plus (y) the daily average aggregate face
amount of all outstanding Letters of Credit is at least $75,000,000, the
Company shall pay to the Bank a utilization fee in the amount of $1,000,000
on the earlier of the date the Commitment is terminated and the Commitment
Termination Date; provided that such fee shall not be payable if, during
such period, the Bank requests compensation under Section 5.01(c) hereof
and the Company pays or prepays the principal of and interest on the Loans
in full, pays all Letter of Credit Outstandings and terminates the
Commitment after such request.
(c) The Company agrees to pay to the Bank, with respect to each Letter of
Credit, a non-refundable Letter of Credit fee in the amount of 3% per annum
of the undrawn amount of such Letter of Credit, such fee to commence on the
issuance of such Letter of Credit and to be payable monthly in arrears on
each Monthly Date thereafter until the earlier of (x) the date the undrawn
amount of such Letter of Credit is reduced to zero and (y) the Stated
Expiration Date thereof, and on such earlier date.
(d) The Borrower shall pay to the Lender a non-refundable facility fee in
the amount of $3,000,000, which shall be payable on the following dates and
in the following amounts:
(i) on the Closing Date, in an amount equal to $500,000 (1/4 of 1% of
the Lender's Commitment);
(ii) on January 10, 1996, in an amount equal to $1,500,000 (3/4 of 1%
of the Lender's Commitment); and
(iii) on each of April 1, 1996 and July 1, 1996, in each case in an
amount equal to $500,000 (1/4 of 1% of the Lender's Commitment).
2.06 Lending Offices. The Loans of each Type shall be made and
maintained at the Bank's Applicable Lending Office for Loans of such Type.
2.07 Note.
(a) The Loans shall be evidenced by a single promissory note of the
Company substantially in the form of Exhibit A hereto, dated the date
hereof, payable to the Bank in a principal amount equal to the amount of
the Commitment and otherwise duly completed.
(b) The date, amount, Type, interest rate, and duration of Interest
Period (if applicable) of each Loan made by the Bank to the Company, and
each payment made on account of the principal thereof, shall be recorded by
the Bank on its books and, prior to any transfer of the Note, endorsed by
the Bank on the schedule attached to the Note or any continuation thereof;
provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Company to make a
payment when due of any amount owing under the Note.
2.08 Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.03 hereof, the Company shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or
Continue Loans of one Type as Loans of the same Type, at any time or from
time to time, provided that: (i) the Company shall give the Bank notice of
each such prepayment, Conversion or Continuation as provided in Section
4.04 hereof; and (ii) a Eurodollar Loan may be prepaid or Converted only on
the last day of an Interest Period for such Loan. Notwithstanding the
foregoing, and without limiting the rights and remedies of the Bank under
Section 9 hereof, in the event that any Event of Default shall have
occurred and be continuing, the Bank may suspend the right of the Company
to Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a
Eurodollar Loan, in which event all Loans shall be Converted into (on the
last day(s) of the respective Interest Periods therefor) or continued, as
the case may be, as Base Rate Loans.
2.09 Mandatory Prepayments. The Company shall, within one Business Day
following each date when the sum of (x) the aggregate outstanding principal
amount of the Loans plus (y) the aggregate amount of all Letter of Credit
Outstandings (with the sum of such amounts being referred to as the
"Outstanding Amount") exceeds the Maintenance Base in effect on such date,
make a mandatory prepayment of Loans and/or pay over to the Lender to be
held by the Lender in the Collateral Account for application to
Reimbursement Obligations an aggregate amount equal to the amount by which
the Outstanding Amount exceeds the Borrowing Base then in effect; provided,
that the Company may also satisfy its obligations under this Section by
pledging additional Assets as Eligible Pledged Assets in accordance with
Section 2.10 with a Fair Market Value such that, after giving effect to
such pledge, the Outstanding Amount on such date shall not exceed the
Borrowing Base then in effect.
2.10 Additional Pledged Assets. The Company may from time to time after
the Closing Date by one Business Day prior notice to the Bank, in
connection with a Credit Extension hereunder or otherwise, request that it
be permitted to pledge additional Assets under the Security Agreement
(whether in addition to or in substitution for existing Pledged Assets) and
thereby constitute such additional Assets "Eligible Pledged Assets"
hereunder. Such notice shall specify in detail reasonably acceptable to
the Bank such additional Assets, the Company's opinion (and the source of
such opinion) as to the fair market value thereof, the date such additional
Assets are proposed to be pledged to the Bank and the proposed manner and
source of consideration for the purchase thereof, and (in the case of
Advances) shall be accompanied by (1) a true, complete and current copy
certified by a senior officer of the Company of the loan or credit
agreement and (if applicable) participation agreement relating thereto and
any other documentation relating thereto containing provisions relating to
the right of any holder thereof to assign or pledge the same, the right of
any pledgee thereof to exercise foreclosure remedies with respect thereto
or the obligation to provide notice to any Person relating to any of the
foregoing and (2) a certificate of a senior officer of the Company which
shall certify that no Pension Event shall have occurred. The Bank shall
respond to such request not later than the close of business on the second
Business Day following the date of receipt by it of such request, and
(subject to the following sentence) it shall be in the Bank's sole
discretion whether to accept such additional Assets as "Eligible Pledged
Assets". The Bank shall be required so to accept Assets of the same issue
or borrowed under the same loan or credit agreement and (if applicable)
purchased under an identical participation agreement, as the case may be,
as Assets previously accepted and then held by it in pledge under the
Security Agreement as Eligible Pledged Assets so long as: (a) after giving
effect to such acceptance the aggregate Fair Market Value of all Eligible
Pledged Assets issued or otherwise owing by the same Person would not
exceed a percentage of the Portfolio Value specified by the Bank to the
Company at the time it initially accepted Assets issued or otherwise owing
by such Person and (b) if such Assets are Advances, (i) such acceptance
would not result in the aggregate Fair Market Value of all Eligible Pledged
Advances exceeding $115,000,000 when any obligations are outstanding under
the AKF Railcar Credit Agreement and the AKF Railcar Credit Agreement is in
full force and effect, or $200,000,000 thereafter and (ii) no restriction
(including, without limitation, any requirement that prior consent of any
Person be obtained, but excluding any limitation that has been waived to
the satisfaction of the Bank) exists in the documentation relating thereto
limiting the right of any holder thereof to assign or pledge the same or
the right of any pledgee thereof to exercise foreclosure remedies with
respect thereto, unless the Bank otherwise agrees in writing. If the Bank
does not so accept such additional Assets, such additional Assets shall not
constitute "Eligible Pledged Assets"; provided that, if and until the Bank
declines the Company's request so to accept such additional Assets, such
additional Assets shall be deemed to constitute "Eligible Pledged Assets"
to the extent that they are pledged under and in accordance with the terms
of the Security Agreement having a fair market value as determined by the
Company reasonably and in good faith and notified by the Company to the
Bank at the time of such pledge (and, if the Bank declines so to accept any
such additional Assets that are so pledged, it shall promptly release such
Assets from the pledge created by the Security Agreement). Notwithstanding
anything contained herein to the contrary, the Bank shall not be required
to accept additional Pledged Assets under the Security Agreement (whether
in addition to or in substitution for existing Pledged Assets) after the
occurrence of a Pension Event. In no event shall any addition to or
substitution of Eligible Pledged Assets pursuant to this Section 2.10 be
permitted on a date when the Outstanding Amount on such date exceeds the
Borrowing Base in effect on such date unless the Company shall pledge
additional Assets as Eligible Pledged Assets in accordance with this
Section 2.10 with a Fair Market Value such that, after giving effect to
such pledge, the Outstanding Amount on such date shall not exceed the
Borrowing Base then in effect.
Section 3. Payments of Principal and Interest; Issuance of Letters of
Credit.
2.01 Repayment of Loans. The Company hereby promises to pay to the Bank
the entire outstanding principal amount of the Loans, and each Loan shall
mature, on the Commitment Termination Date (or the earlier date of
termination of the Commitment).
3.02 Interest. The Company hereby promises to pay to the Bank interest
on the unpaid principal amount of each Loan for the period from and
including the date of such Loan to but excluding the date such Loan shall
be paid in full, at the following rates per annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base Rate
(as in effect from time to time) plus the Applicable Margin and
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period plus the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Bank interest at the applicable Post-Default Rate on any principal of any
Loan and on any other amount payable by the Company hereunder or under the
Note which shall not be paid in full when due (whether at stated maturity,
by acceleration, by mandatory prepayment or otherwise), for the period from
and including the due date thereof to but excluding the date the same is
paid in full. Accrued interest on each Loan shall be payable (i) in the
case of each Base Rate Loan, monthly on the Monthly Dates, (ii) in the case
of each Eurodollar Loan, on the last day of each Interest Period therefor
and (iii) in the case of each Loan, upon the payment or prepayment thereof
or the Conversion of such Loan to a Loan of another Type (but only on the
principal amount so paid, prepaid or Converted) and, except that interest
payable on any amount at the Post-Default Rate shall be payable from time
to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, the Bank shall give notice
thereof to the Company.
3.03 Issuing the Letters of Credit. Not later than 11:00 a.m., New York
City time, on the third Business Day prior to the date of a requested
initial issuance of a Letter of Credit, and on not less than 30 nor more
than 60 days' prior notice in the case of a request for an extension of the
Stated Expiration Date of a Letter of Credit (in each case, an "Issuance
Date"), the Company may, by delivery to the Bank of an Issuance Request
specifying (i) the Issuance Date, (ii) the Stated Amount of the Letter of
Credit, (iii) the stated expiration date thereof not to exceed one year,
or, if earlier, the Commitment Termination Date (the "Stated Expiration
Date") and (iv) the beneficiary of such Letter of Credit, request that the
Bank issue, or extend the Stated Expiration Date of, a Letter of Credit.
Each Issuance Request shall be revocable by delivery of written notice to
the Bank prior to 10:00 a.m., New York City time, on the proposed Issuance
Date, at which time it shall become irrevocable. On the Issuance Date and
upon fulfillment of the applicable conditions set forth in Section 6, the
Bank will issue (or extend, as the case may be) such Letter of Credit in
accordance with its terms.
3.04 Drawing under the Letters of Credit. In the event there occurs one
or more drawings under any Letter of Credit, the Bank shall, not later than
12:30 p.m., New York City time, on the Business Day on which such drawing
is required to be honored pursuant to such Letter of Credit (the
"Disbursement Date"), and provided that the conditions to drawing in such
Letter of Credit have been strictly complied with, make available to the
beneficiary under such Letter of Credit, in same day funds, the amount
drawn on the Bank pursuant to such drawing.
3.05 Reimbursement on Demand. On (or promptly after) each Disbursement
Date the Bank shall notify the Company of a drawing under a Letter of
Credit, and the Bank will promptly thereafter furnish to the Company copies
of (i) each draft drawn under such Letter of Credit and (ii) each
certificate accompanying any such draft; provided, however, that the
failure to give such notice or to provide such copies shall not affect the
obligations of the Company hereunder. The Company will, as reimbursement
for such payment by the Bank, immediately and unconditionally pay to the
Bank the amount of each payment made under each Letter of Credit, provided
that so long as no Default shall have occurred and be continuing, or would
result therefrom, and subject to the provisions of Section 2.01, the
Reimbursement Obligations in respect of such Letter of credit shall, on the
Disbursement Date, without regard to the minimum prior notice provisions of
Section 4.04, convert to a Base Rate Loan hereunder unless the Company
shall have notified the Bank on such date of the Company's intention
directly to reimburse the Bank. Interest will accrue on any amount
remaining unpaid by the Company to the Bank under this Section which has
not been converted to a Base Rate Loan pursuant to clause (ii) of the
preceding sentence, from the date of demand until such amount is paid in
full at an interest rate per annum equal to the Base Rate in effect from
time to time plus the Applicable Margin plus 2%.
3.06 Obligations Absolute. The obligation (a "Reimbursement Obligation")
of the Company to reimburse the Bank with respect to each drawing under
each Letter of Credit shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) any lack of validity or enforceability of any Letter of Credit or any
related contract, instrument or other agreement in support of which the
Letter of Credit has been issued (collectively referred to as a
"Contract");
(b) any amendment or waiver of or any consent to departure from all or
any of the Letters of Credit or any Contract agreed to in each case by the
Company;
(c) the existence of any claim, set-off, defense or other right which the
Company may have at any time against any beneficiary of any Letter of
Credit (or any Person for whom any such beneficiary may be acting), the
Bank or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or in such Letter of Credit or any
Contract or any unrelated transaction; or
(D) any certificate or any other document presented under any Letter of
Credit proving to be forged, fraudulent or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
provided, however, that nothing herein shall affect the right of the
Company to commence any proceeding against the Bank for any wrongful
Disbursement made by the Bank as a result of acts or omissions constituting
gross negligence on the part of the Bank.
3.07 Action in Respect of the Letters of Credit. The Company assumes all
risks of the acts or omissions of the beneficiaries under the Letters of
Credit with respect to their use of the Letters of Credit. Except to the
extent of its own gross negligence, neither the Bank nor any of its
officers, employees, agents or directors shall be liable or responsible
for:
(a) the use which may be made of any Letter of Credit;
(b) the form, sufficiency, accuracy or genuineness of certificates or
other documents delivered under or in connection with any Letter of Credit,
even if such certificates or other documents should prove to be
insufficient, fraudulent or forged;
(c) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telex, telecopy, telegraph,
wireless or otherwise; or
(d) errors in translation or for errors in interpretation of technical
terms.
The Bank may accept certificates or other documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary. In furtherance
and not in limitation of the foregoing provisions, the Company agrees that
any action, inaction or omission taken or suffered by the Bank in good
faith in connection with any Letter of Credit, or the relative drafts,
certificates or other documents, shall be binding on the Company and shall
not result in any liability of the Bank to the Company.
3.08 Indemnification. The Company hereby indemnifies, exonerates and
holds free and harmless the Bank and each of its officers, directors,
employees and agents (collectively, the "Indemnified Parties") from and
against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities") incurred by the Indemnified Parties or any of them by reason
of or in connection with the execution and delivery of, or payment or
failure to make payment under, any Letter of Credit; provided, however,
that the Company shall not be required to indemnify any Indemnified Party
pursuant to this Section for any Indemnified Liabilities to the extent
caused by (i) such Indemnified Party's wilful misconduct or gross
negligence in determining whether documents presented under any Letter of
Credit comply with the terms of such Letter of Credit or (ii) the Bank's
wilful failure to make lawful payment under any Letter of Credit after
presentation to it by a beneficiary of a draft and certificate strictly
complying with the terms and conditions of such Letter of Credit. If and
to the extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
3.09 Deemed Disbursements. Upon the occurrence and during the
continuation of a Default of the nature set forth in Section 9(f) or (g) or
any other Event of Default
(a) an amount equal to the then aggregate amount of each Letter of Credit
which is undrawn and available under all issued and outstanding Letters of
Credit shall, without demand upon or notice to the Company, be deemed to
have been paid or disbursed by the Bank under such Letter of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Bank to the Company of its obligations under
this Section, the Company shall be immediately obligated to reimburse the
Bank for the amount deemed to have been so paid or disbursed by the Bank.
Any amounts so payable by the Company pursuant to this Section shall be
deposited in immediately available funds in the Collateral Account, and
held as collateral security for the Reimbursement Obligations. At such
time when all Events of Default shall have been cured or waived, the Bank
shall return to the Company all amounts then on deposit with the Bank
pursuant to this Section which have not been applied towards satisfaction
of the obligations of the Company under this Agreement.
Section 4. Payments; Computations; etc.
4.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Company under this
Agreement, the Note or with respect to any Letter of Credit, and, except to
the extent otherwise provided therein, all payments to be made by the
Company under any other Basic Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
the Bank at the Principal Office, not later than 1:00 p.m. New York time on
the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) The Bank may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit account
of the Company with the Bank (with notice to the Company).
(c) The Company shall, at the time of making each payment under this
Agreement, the Note or with respect to any Letter of Credit, specify to the
Bank the Loans or other amounts payable by the Company hereunder to which
such payment is to be applied (and in the event that it fails to so
specify, or if an Event of Default has occurred and is continuing, the Bank
may apply the amount of such payment received by it in such manner as the
Bank may determine to be appropriate).
(d) If the due date of any payment under this Agreement, the Note or with
respect to any Letter of Credit, would otherwise fall on a day which is not
a Business Day, such date shall be extended to the next succeeding Business
Day and interest shall be payable for any principal so extended for the
period of such extension.
4.02 Computations. Interest on Eurodollar Loans and fees shall be
computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the
period for which payable and interest on Base Rate Loans shall be computed
on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed (including the first day but excluding the last day) occurring
in the period for which payable.
4.03 Minimum Amounts. Each borrowing, Conversion and prepayment of
principal of Loans shall be in an amount at least equal to $5,000,000 and
in multiples of $1,000,000 in excess thereof (borrowings, Conversions or
prepayments of or into Loans of different Types or, in the case of
Eurodollar Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period). Anything
in this Agreement to the contrary notwithstanding, the aggregate principal
amount of Eurodollar Loans having the same Interest Period shall be in an
amount at least equal to $5,000,000 and in multiples of $1,000,000 in
excess thereof and, if any Eurodollar Loans would otherwise be in a lesser
principal amount for any period, such Loans shall be Base Rate Loans during
such period.
4.04 Certain Notices. Notices by the Company to the Bank of terminations
or reductions of the Commitment, of borrowings, Conversions, Continuations
and optional prepayments of Loans, and of Types of Loans and of the
duration of Interest Periods shall be irrevocable and shall be effective
only if received by the Bank not later than 10:00 a.m. New York time on the
number of Business Days prior to the date of the relevant termination,
reduction, borrowing, Conversion, Continuation or prepayment or the first
day of such Interest Period specified below:
Number of
Business
Notice Days Prior
Termination or reduction
of the Commitment 1
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans 2
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount of
the Commitment to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or optional prepayment shall specify the Loans to
be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.03 hereof) and Type of each Loan to be borrowed, Converted,
Continued or prepaid and the date of borrowing, Conversion, Continuation or
optional prepayment (which shall be a Business Day) and, if Securities are
to pledged to the Bank in order to satisfy the condition to such borrowing
contained in clause (a) of the last sentence of Section 2.01 hereof, shall
specify the fair market value of such Securities and the source used by the
Company to determine such fair market value. Each such notice of the
duration of an Interest Period shall specify the Loans to which such
Interest Period is to relate. In the event that the Company fails to
select the Type of Loan, or the duration of any Interest Period, for any
Eurodollar Loan within the time period and otherwise as provided in this
Section 4.04, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate
Loan) will remain as, or (if not then outstanding) will be made as, a Base
Rate Loan.
4.05 Set-off. The Company agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim the Bank
may otherwise have, the Bank shall be entitled, at its option, to offset
balances held by it for the account of the Company at any of its offices,
in Dollars or in any other currency, against any principal of or interest
on any of the Loans or any other amount payable to the Bank hereunder, that
is not paid when due (regardless of whether such balances are then due to
the Company), in which case it shall promptly notify the Company thereof,
provided that the Bank's failure to give such notice shall not affect the
validity thereof.
Section 5. Yield Protection, etc.
5.01 Additional Costs.
(a) The Company shall pay to the Bank from time to time such amounts as
the Bank may determine to be necessary to compensate it for any costs which
the Bank determines are attributable to its issuing Letters of Credit or
making or maintaining of any Eurodollar Loans or its obligation to make any
Eurodollar Loans hereunder or to issue Letters of Credit hereunder, or any
reduction in any amount receivable by the Bank hereunder in respect of any
of such Letters of Credit, Loans or such obligation (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to the Bank
under this Agreement or the Note in respect of any of such Letters of
Credit or Loans (other than (x) taxes on or measured by the overall gross
or net income or receipts of the Bank or its Applicable Lending Office for
any of such Loans (or other taxes in lieu of such taxes) imposed by the
jurisdiction in which the Bank has its principal office or such Applicable
Lending Office or is engaged in business and (y) withholding taxes imposed
by or on behalf of the United States or any taxing authority thereof or
therein on amounts received by the Bank from sources in the United States);
or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, the Bank (including any of such Loans or any deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof), or any commitment of the Bank (including the Commitment of the
Bank hereunder); or
(iii) imposes any other condition affecting this Agreement, any Letter
of Credit or the Note (or any of such extensions of credit or liabilities)
or the Commitment.
If the Bank requests compensation from the Company under this Section
5.01(a), the Company may, by notice to the Bank, suspend the obligation of
the Bank to issue Letters of Credit or to make or Continue Eurodollar
Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect).
(b) Without limiting the effect of the provisions of paragraph (a) of
this Section 5.01, in the event that, by reason of any Regulatory Change,
the Bank either (i) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits or
other liabilities of the Bank which includes deposits by reference to which
the interest rate on Eurodollar Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of the Bank
which includes Eurodollar Loans or (ii) becomes subject to restrictions on
the amount of such a category of liabilities or assets which it may hold,
then, if the Bank so elects by notice to the Company, the obligation of the
Bank to make or Continue, or to Convert Base Rate Loans into, Eurodollar
Loans hereunder shall be suspended until such Regulatory Change ceases to
be in effect.
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay to the Bank
from time to time on request such amounts as the Bank may determine to be
necessary to compensate the Bank (or, without duplication, the bank holding
company of which the Bank is a subsidiary) for any costs which it
determines are attributable to the maintenance by the Bank (or any
Applicable Lending Office or such bank holding company), pursuant to any
law or regulation or any interpretation, directive or request (whether or
not having the force of law) of any court or governmental or monetary
authority (i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) heretofore or hereafter issued by any government or governmental
or supervisory authority implementing at the national level the Basle
Accord (including, without limitation, the Final Risk-Based Capital
Guidelines of the Board of Governors of the Federal Reserve System (12 CFR
Part 208, Appendix A; 12 CFR Part 225, Appendix A) and the Final Risk-Based
Capital Guidelines of the Office of the Comptroller of the Currency (12 CFR
Part 3, Appendix A)), of capital in respect of the Commitment, Letters of
Credit or Loans (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of
the Bank (or any Applicable Lending Office or such bank holding company) to
a level below that which the Bank (or any Applicable Lending Office or such
bank holding company) could have achieved but for such law, regulation,
interpretation, directive or request). For purposes of this Section
5.01(c), "Basle Accord" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended,
modified and supplemented and in effect from time to time or any
replacement thereof.
(d) The Bank shall notify the Company of any event occurring after the
date of this Agreement that will entitle the Bank to compensation under
paragraph (a) or (c) of this Section 5.01 as promptly as practicable, but
in any event within 30 days, after the Bank obtains actual knowledge
thereof; provided, that (i) if the Bank fails to give such notice within
30 days after it obtains actual knowledge of such an event, the Bank shall,
with respect to compensation payable pursuant to this Section 5.01 in
respect of any costs resulting from such event, only be entitled to payment
under this Section 5.01 for costs incurred from and after the date 30 days
prior to the date that the Bank does give such notice and (ii) the Bank
will designate a different Applicable Lending Office for the Loans affected
by such event if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole opinion of the Bank,
be disadvantageous to the Bank, except that the Bank shall have no
obligation to designate an Applicable Lending Office located in the United
States of America. The Bank will furnish to the Company a certificate
setting forth the basis and amount of each request by the Bank for
compensation under paragraph (a) or (c) of this Section 5.01.
Determinations and allocations by the Bank for purposes of this Section
5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or
(b) of this Section 5.01, or of the effect of capital maintained pursuant
to paragraph (c) of this Section 5.01, on its costs or rate of return of
maintaining Loans or Letters of Credit or its obligation to make Loans or
issue Letters of Credit , or on amounts receivable by it in respect of
Loans or Letters of Credit, and of the amounts required to compensate the
Bank under this Section 5.01, shall (absent manifest error) be conclusive,
provided that such determinations and allocations are made in good faith
and on a reasonable basis.
5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar
Base Rate for any Interest Period, the Bank determines (which determination
shall be conclusive) that:
(a) quotations of interest rates for the relevant deposits referred to in
the definition of "Eurodollar Base Rate" in Section 1.01 hereof are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for Eurodollar Loans as provided
herein; or
(b) the relevant rates of interest referred to in the definition of
"Eurodollar Base Rate" in Section 1.01 hereof upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to the Bank of
making or maintaining Eurodollar Loans for such Interest Period;
then the Bank shall give the Company prompt notice thereof, and so long as
such condition remains in effect, the Bank shall be under no obligation to
make additional Eurodollar Loans, to Continue Eurodollar Loans or to
Convert Base Rate Loans into Eurodollar Loans and the Company shall, on the
last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Loans or Convert such Loans into Base
Rate Loans in accordance with Section 2.08 hereof.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for the Bank or its Applicable
Lending Office to honor its obligation to make or maintain Eurodollar Loans
hereunder, then the Bank shall promptly notify the Company thereof and the
Bank's obligation to make or Continue, or to Convert Loans of any other
Type into, Eurodollar Loans shall be suspended until such time as the Bank
may again make and maintain Eurodollar Loans and the Company shall, upon
the request of the Bank, prepay any of such Loans then outstanding
hereunder together with accrued interest thereon.
5.04 Compensation. The Company shall pay to the Bank, upon the request
of the Bank, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Bank) to compensate it for any loss, cost or
expense which the Bank determines is attributable to:
(a) any payment, prepayment or Conversion of a Eurodollar Loan for any
reason (including, without limitation, the acceleration of the Loans
pursuant to Section 9 hereof, but excluding any prepayment of Loans
pursuant to Section 5.03 hereof) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 6 hereof to be satisfied) to borrow a Eurodollar Loan on the date
for such borrowing specified in the relevant notice of borrowing given
pursuant to Section 2.02 hereof (provided that, if a portion of a borrowing
would cause the aggregate outstanding principal amount of the Loans and the
aggregate Letter of Credit Outstandings to exceed the Borrowing Base, such
compensation for a failure to borrow shall cover only the principal amount
of Loans not borrowed).
Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of (i) the amount of
interest which otherwise would have accrued on the principal amount so
paid, prepaid or Converted or not borrowed for the period from the date of
such payment, prepayment, Conversion or failure to borrow to the last day
of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, the Interest Period for such Loan which would have
commenced on the date specified for such borrowing) at the applicable rate
of interest for such Loan provided for herein over (ii) the amount of
interest which otherwise would have accrued on such principal amount at a
rate per annum equal to the interest component of the amount the Bank would
have bid in the London interbank market for Dollar deposits of leading
banks in amounts comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by the Bank).
5.05 Withholding Taxes. The Company may withhold the appropriate
percentage (as determined in accordance with Section 1441 or 1442 of the
Code, or comparable successor provisions) of payments to the Bank
hereunder; provided, however, that the Company will not so withhold if the
Bank delivers to the Company such valid certificates, documents, or other
evidence as may be required from time to time, including any certificate or
statement of exemption required by Treasury Regulation Section 1.1441-4(a)
or Section 1.1441-6(c) or any subsequent version thereof, properly
completed and duly executed by the Bank, to establish that payments
hereunder to the Bank are not subject to withholding under Section 1441 or
1442 of the Code, or comparable successor provisions, because such payments
to the Bank are effectively connected with the conduct by the Bank of a
trade or business in the United States or are exempt from United States tax
under a provision of an applicable tax treaty.
Section 6. Conditions Precedent.
6.01 Initial Credit Extension. The obligation of the Bank to make the
initial Credit Extension hereunder is subject to the receipt by the Bank of
the following items, each of which shall be satisfactory to the Bank in
form and substance:
(a) Corporate Documents. The following documents, each certified as
indicated below:
(i) a copy of the charter, as amended, of the Company certified by the
Secretary of State of New York, and a certificate as to the good standing
of and charter documents filed by the Company from such Secretary of State,
dated as of a recent date;
(ii) a certificate of the Secretary or an Assistant Secretary of the
Company, dated the Closing Date and certifying (A) that attached thereto is
a true and complete copy of the by-laws of the Company as in effect on the
date of such certificate, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the board of directors of the Company
authorizing the execution, delivery and performance of such of the Basic
Documents to which the Company is or is intended to be a party and the
extensions of credit hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that
the charter of the Company has not been amended since the date of the
certification thereto furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer of the Company
executing such of the Basic Documents to which the Company is intended to
be a party and each other document to be delivered by the Company from time
to time in connection therewith (and the Bank may conclusively rely on such
certificate until it receives notice in writing from such Person);
(iii) a certificate of another officer of the Company as to the
incumbency and specimen signature of the Secretary or Assistant Secretary,
as the case may be, of the Company; and
(iv) the same documents as listed in the preceding paragraphs (i) -
(iii) but with respect to ACL II C and the ACL II C Guaranty.
(b) Officer's Certificate. A certificate of a senior officer of the
Company to the effect set forth in the first sentence of Section 6.02
hereof.
(c) Opinion of Counsel to the Company. An opinion of Gordon Altman
Butowsky Weitzen Shalov & Wein, counsel to the Company, substantially in
the form of Exhibit D hereto.
(d) Note. The Note, duly completed and executed by the Company.
(e) Security Agreement. The Security Agreement, duly executed and
delivered by the Company and the Bank and evidence that the Company shall
have taken such other action (including delivering to the Bank, for filing,
appropriately completed and duly executed copies of Uniform Commercial Code
financing statements) as the Bank shall have requested in order to perfect
the security interests created pursuant to the Security Agreement.
(f) Tortoise Guaranty. The Tortoise Guaranty, duly completed and
executed.
(g) ACL II C Guaranty. The ACL II C Guaranty, duly completed and
executed.
(h) ACL II C Security Agreement. The ACL II C Security Agreement, duly
executed and delivered by ACL II C and the Bank and evidence that ACL II C
shall have taken such other action (including delivering to the Bank, for
filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements) as the Bank shall have requested in
order to perfect the security interests created pursuant to the ACL II C
Security Agreement.
(i) The Railcar Credit Agreement. The Railcar Credit Agreement, duly
executed and delivered by ACL II C and the Bank and all conditions to the
effectiveness thereof or to the Bank's obligations to make credit
extensions thereunder shall be fully satisfied or waived.
(j) Indemnification Agreement. The Indemnification Agreement, duly
completed and executed.
(k) Initial Eligible Pledged Securities. The Bank shall be satisfied in
its sole discretion with the initial Eligible Pledged Securities.
(l) Payment of Expenses. Evidence that the Company shall have paid all
fees and expenses then payable under Section 10.3 hereof (to the extent
that bills for such fees and expenses have been delivered to the Company).
(m) Other Documents. Such other documents as the Bank or counsel to the
Bank may reasonably request.
6.02 Initial and Subsequent Credit Extensions. The obligation of the
Bank to make any Credit Extension to the Company is subject to the further
conditions precedent that: (i) both immediately prior to the making of
such Credit Extension and also after giving effect thereto (a) no Default
shall have occurred and be continuing and (b) the representations and
warranties made by the Company in Section 7 hereof, and in each of the
other Basic Documents, shall be true and complete on and as of the date of
the making of such Credit Extension with the same force and effect as if
made on and as of such date and (ii) immediately prior to the making of
such Credit Extension, the Bank shall receive a Valuation Certificate as to
the Portfolio Value and Excess Equity at the opening of business on the
date such Credit Extension is to be made, including pro forma adjustments
reflecting additions to and withdrawals from the portfolio of Eligible
Pledged Assets to take place on such date. Each notice of a Credit
Extension by the Company hereunder shall constitute a certification by the
Company to the effect set forth in clause (i) of the preceding sentence
(both as of the date of such notice and, unless the Company otherwise
notifies the Bank prior to the date of such Credit Extension, as of the
date of such Credit Extension).
Section 7. Representations and Warranties. The Company represents and
warrants to the Bank that:
7.01 Corporate Existence. The Company: (a) is a corporation, duly
organized and validly existing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure so to qualify would have a
Material Adverse Effect.
7.02 Financial Condition. The consolidated and consolidating balance
sheets of ACF and its Consolidated Subsidiaries as at December 31, 1992 and
the related consolidated and consolidating statements of income, retained
earnings and changes in financial position (or of cash flow, as the case
may be) of ACF and its Consolidated Subsidiaries for the fiscal year ended
on said date, with the opinion thereon (in the case of said consolidated
balance sheet and statements) of KPMG Peat Marwick, are complete and
correct and fairly present the consolidated financial condition of ACF and
its Consolidated Subsidiaries as at said date and the consolidated and
unconsolidated results of their operations for the fiscal year ended on
said date, all in accordance with generally accepted accounting principles
and practices applied on a consistent basis. The Company did not have on
said date any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated
losses from any unfavorable commitments, except as referred to or reflected
or provided for in said balance sheets as at said date. Since December 31,
1992, there has been no material adverse change in the financial condition,
operations, business or prospects of the Company from that set forth in
said financial statements as at said date.
7.03 Litigation. Except as disclosed to the Bank in writing prior to the
date of this Agreement, there are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or
agency, now pending or (to the knowledge of the Company) threatened against
the Company which, if adversely determined, could have a Material Adverse
Effect.
7.04 No Breach. None of the execution and delivery of this Agreement and
the Note and the other Basic Documents to which the Company is a party, the
consummation of the transactions herein and therein contemplated and
compliance with the terms and provisions hereof and thereof will conflict
with or result in a breach of, or require any consent under, the charter or
by-laws of the Company, or any applicable law or regulation, or any order,
writ, injunction or decree of any court or governmental authority or
agency, or any agreement or instrument to which the Parent Corporation, the
Company or any other Subsidiary of the Parent Corporation is a party or by
which any of them is bound or to which any of them is subject, or
constitute a default under any such agreement or instrument, or (except for
the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of the Company
pursuant to the terms of any such agreement or instrument.
7.05 Action. The Company has all necessary corporate power and authority
to execute, deliver and perform its obligations under each of the Basic
Documents to which the Company is a party; the execution, delivery and
performance by the Company of each of the Basic Documents have been duly
authorized by all necessary corporate action on its part; and this
Agreement has been duly and validly executed and delivered by the Company
and constitutes, and each of the other Basic Documents to which the Company
is a party when executed and delivered (in the case of the Notes, for
value) will constitute, its legal, valid and binding obligation,
enforceable in accordance with its terms.
7.06 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency are necessary for the execution, delivery or performance by the
Company of the Basic Documents to which the Company is a party or for the
validity or enforceability thereof, except for filings and recordings in
respect of the Liens created pursuant to the Security Documents.
7.07 No Margin Stock. The Pledged Securities do not include any Margin
Stock other than by reason of having been issued to the Company in exchange
for other Pledged Securities in a bankruptcy case or other restructuring of
indebtedness of the relevant issuer.
7.08 ERISA. The Company and the ERISA Affiliates have fulfilled their
respective obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance in all material
respects with the presently applicable provisions of ERISA and the Code,
and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan (other than to make contributions in the ordinary course
of business and other than contingent liabilities that would arise upon the
termination of any Plan or Multiemployer Plan (no such termination being
reasonably foreseen by the Company)).
7.09 Taxes. The Parent Corporation and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Parent
Corporation or any of its Subsidiaries. The charges, accruals and reserves
on the books of the Parent Corporation and its Subsidiaries in respect of
taxes and other governmental charges are, in the opinion of the Company,
adequate.
7.10 Investment Company Act. The Company is not an "investment company",
or a company "controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
7.11 Public Utility Holding Company Act. The Company is not a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.12 Credit Agreements. As of the date of this Agreement, the Company
does not have any credit agreement, loan agreement, indenture, purchase
agreement, guarantee or other arrangement providing for or otherwise
relating to any Indebtedness or any extension of credit (or commitment for
any extension of credit) to, or Guarantee by, the Company other than (a)
the Basic Documents and (b) as indicated on Schedule 1 hereto.
7.13 Investments. Set forth in Schedule 2 hereto is a complete and
correct list, as of the date of this Agreement, of all Investments held by
the Company in any Person. Except as disclosed in Schedule 3 hereto, the
Company owns all such Investments free and clear of Liens, provided that
the Company will own all Pledged Securities free and clear of Liens (other
than the Liens created by the Security Agreement).
7.14 Railcar Credit Facility. The representations and warranties set
forth in the AKF Railcar Credit Agreement and the other "Basic Documents"
(as defined in the AKF Railcar Credit Agreement) are true and accurate on
and as of the date made, unless they relate to an earlier date, in which
case they were true and accurate on and as of such earlier date. No
"Default" (as defined in the AKF Railcar Credit Agreement) has occurred and
is continuing under the AKF Railcar Credit Agreement or under the "Basic
Documents" (as defined therein).
Section 8. Covenants of the Company. The Company covenants and agrees
with the Bank that, so long as the Commitment or any Loan, Letter of Credit
or Reimbursement Obligation is outstanding and until payment in full of all
amounts payable by the Company hereunder:
8.01 Financial Statements. The Company shall deliver to the Bank:
(a) as soon as available and in any event within 55 days after the end
of each quarterly fiscal period of each fiscal year of the Reporting
Parent, consolidated statements of income, retained earnings and cash flow
of the Reporting Parent and its Consolidated Subsidiaries for such period
and for the period from the beginning of the respective fiscal year to the
end of such period, and the related consolidated balance sheets as at the
end of such period, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the corresponding
period in the preceding fiscal year, accompanied by a certificate of a
senior financial officer of the Reporting Parent, which certificate shall
state that said financial statements fairly present the consolidated
financial condition and results of operations of the Reporting Parent and
its Consolidated Subsidiaries in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 120 days after the end
of each fiscal year of the Reporting Parent, consolidated statements of
income, retained earnings and cash flow of the Reporting Parent and its
Consolidated Subsidiaries for such year and the related consolidated
balance sheets as at the end of such year, setting forth in each case in
comparative form the corresponding consolidated figures for the preceding
fiscal year, and accompanied by an opinion thereon of independent certified
public accountants of recognized national standing, which opinion shall
state that said financial statements fairly present the consolidated
financial condition and results of operations of the Reporting Parent and
its Consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance with generally accepted accounting principles, and a
certificate of such accountants stating that, in making the examination
necessary for their opinion, they obtained no knowledge, except as
specifically stated, of any Default;
(c) as soon as available and in any event within 30 days after the end of
each calendar month, a statement of income, retained earnings and cash flow
of the Company for such month and for the period from the beginning of the
respective fiscal year to the end of such month, and the related balance
sheet as at the end of such month, accompanied by a certificate of a senior
financial officer of the Company, which certificate shall state that said
financial statements fairly present the financial condition and results of
operations of the Company in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such period
(subject to normal-year-end audit adjustments);
(d) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, which the Reporting Parent
or any of its Subsidiaries shall have filed with the Securities and
Exchange Commission (or any governmental agency substituted therefor) or
any national securities exchange;
(e) as soon as possible, and in any event within ten days after the
Company knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan have
occurred or exist, a statement signed by a senior financial officer of the
Company setting forth details respecting such event or condition and the
action, if any, which the Company or its ERISA Affiliate proposes to take
with respect thereto (and a copy of any report or notice required to be
filed with or given to PBGC by the Company or an ERISA Affiliate with
respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and
the regulations issued thereunder, with respect to a Plan, as to which PBGC
has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified within 30 days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of Section
412 of the Code or Section 302 of ERISA shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d)
of the Code);
(ii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA Affiliate
of a notice from a Multiemployer Plan that such action has been taken by
PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal by the Company or any ERISA
Affiliate under Section 4201 or 4204 of ERISA from a Multiemployer Plan, or
the receipt by the Company or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any Multiemployer
Plan against the Company or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days;
(vi) the failure to make a required contribution to a Plan if such
failure is sufficient to give rise to a lien under Section 302(f) of ERISA
or Section 412(n) of the Code.
(f) (i) not later than 10:00 a.m. New York time on the first Business
Day of each week, a Valuation Certificate as to the Portfolio Value and the
Excess Equity as at the close of business on the last Business Day of the
preceding week, (ii) not later than 10:00 a.m., New York time, on the date
of each Credit Extension hereunder and each withdrawal of collateral under
the Security Agreement, a Valuation Certificate as to the Portfolio Value
and the Excess Equity at the opening of business on such date, including
pro forma adjustments reflecting additions to and withdrawals from the
portfolio of Pledged Assets to take place on such date and, if applicable,
stating the Fair Market Value of Pledged Assets to be so withdrawn, and
(iii) from time to time upon request of the Bank, a Valuation Certificate
as to the Portfolio Value and the Excess Equity as at a recent time
reasonably specified by the Bank;
(g) promptly after the Company knows or has reason to believe that any
Default has occurred, a notice of such Default describing the same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a description of the action that the Company has taken and
proposes to take with respect thereto;
(h) from time to time such other information regarding the financial
condition, operations, business or prospects of the Company (including,
without limitation, any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA) as the Bank may reasonably
request; and
(i) no later than three Business Days prior to any change in the legal
identity of the Parent Corporation, a notice specifying the proposed
change, together with a description of the Person designated to become the
new Parent Corporation and a diagram showing the position within the
corporate structure of IHC and all of its Subsidiaries that the Company
shall hold immediately prior to and after giving effect to such change.
The Company will furnish to the Bank, at the time it furnishes each set of
financial statements pursuant to paragraph (a), (b) or (c) above, a
certificate of a senior financial officer of the Company (i) to the effect
that no Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail and
describing the action that the Company has taken and proposes to take with
respect thereto) and (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in compliance
with Section 8.10 hereof as of the end of the respective quarterly fiscal
period, fiscal year or calendar month.
8.02 Litigation. The Company will promptly give to the Bank notice of
all legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material
development in respect of such legal or other proceedings, affecting the
Company, except proceedings which, if adversely determined, would not have
a Material Adverse Effect.
8.03 Existence, etc. The Company will: preserve and maintain its legal
existence and all of its material rights, privileges and franchises; comply
with the requirements of all applicable laws, rules, regulations and orders
of governmental or regulatory authorities if failure to comply with such
requirements would have a Material Adverse Effect; pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on
its income or profits or on any of its property prior to the date on which
penalties attach thereto, except for any such tax, assessment, charge or
levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained;
maintain all of its Properties used or useful in its business in good
working order and condition, ordinary wear and tear excepted; and permit
representatives of the Bank, during normal business hours, to examine, copy
and make extracts from its books and records, to inspect its Properties,
and to discuss its business and affairs with its officers, all to the
extent reasonably requested by the Bank.
8.04 Insurance. The Company will keep insured by financially sound and
reputable insurers all Property of a character usually insured by
corporations engaged in the same or similar business similarly situated
against loss or damage of the kinds and in the amounts customarily insured
against by such corporations and carry such other insurance as is usually
carried by such corporations.
8.05 Prohibition of Fundamental Changes. The Company will not enter into
any transaction of merger or consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution). The
Company will not acquire any business or Property from, or capital stock
of, or be a party to any acquisition of, any Person except for purchases of
Property to be used in the ordinary course of business and Investments
permitted under Section 8.08 hereof. The Company will not, and will not
permit any of its Subsidiaries to, convey, sell, lease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all
or a substantial part of its business or Property, whether now owned or
hereafter acquired (including, without limitation, receivables and
leasehold interests, but excluding obsolete or worn-out property no longer
used or useful in its business), except that the Company may transfer cash
and Securities (other than collateral pledged under the Security Agreement)
to its Wholly-Owned Subsidiaries. Notwithstanding the foregoing, the
Company may transfer Investments in the ordinary course of business and on
ordinary business terms, provided that, in the case of Investments
consisting of Pledged Securities, (i) such transfer shall be in exchange
for cash and/or Securities accepted by the Bank pursuant to Section 2.10
hereof as Eligible Pledged Securities for an aggregate consideration (equal
to the sum of the amount of such cash plus the fair market value of such
Securities) not less than the fair market value of the Pledged Securities
so transferred, (ii) the consideration to be received by the Company in
such transfer shall be delivered directly by the transferee to the Bank as
collateral under the Security Agreement (and the Bank shall be satisfied
with the manner and timing of both such delivery and the creation and
perfection of its security interest in such collateral), and (iii) no
Default shall then exist or result therefrom.
8.06 Limitation on Liens. The Company will not create, incur, assume or
suffer to exist any Lien upon any of its Property (other than Margin
Stock), whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens imposed by any governmental authority for taxes, assessments
or charges not yet due or which are being contested in good faith and by
appropriate proceedings if, unless the amount thereof is not material with
respect to it or its financial condition, adequate reserves with respect
thereto are maintained on the books of the Company in accordance with GAAP;
(c) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(d) judgment liens unless the judgments secured thereby shall not,
within 30 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal; and
(e) Liens on securities (other than Pledged Securities) purchased by the
Company securing the repayment of Indebtedness incurred by the Company to
finance or refinance the purchase of such securities to the extent such
Indebtedness is permitted by Section 8.07(b), (c) or (d) hereof.
8.07 Indebtedness. The Company will not create, incur or suffer to exist
any Indebtedness of the Company except:
(a) Indebtedness to the Bank hereunder and under the Tortoise Guaranty;
(b) until the close of business on the date falling 30 days after
Closing Date, the Indebtedness listed on Schedule 1 hereto;
(c) Indebtedness incurred by the Company to finance or refinance the
purchase of securities, provided that the aggregate outstanding principal
amount of such Indebtedness (excluding the Indebtedness referred to in
paragraph (b) of this Section 8.07 and the Loans and obligations referred
to in paragraph (d) of this Section 8.07) shall not exceed $5,000,000 at
any time;
(d) obligations of the Company to pay the purchase price of securities
outstanding during the settlement of such purchase in accordance with
customary market practice;
(e) Indebtedness owing to Affiliates, provided that the incurrence of
such Indebtedness is permitted by Section 8.12 hereof and such Indebtedness
is evidenced written agreements or instruments; and
(f) Indebtedness to the Bank under the Bayswater Guaranty.
8.08 Investments. The Company will not make any Investments other than
(a) Assets purchased for fair market value (determined as at the time made)
and (b) loans and capital contributions to Wholly-Owned Subsidiaries of the
Company and (c) the Tortoise Guaranty and the Bayswater Guaranty and the
collateral security therefor.
8.09 Dividend Payments. The Company will not, and will not permit any of
its Subsidiaries to, declare or make any Dividend Payment at any time if a
Default then exists or would result therefrom or if the aggregate
outstanding principal amount of the Loans and the aggregate amount of all
Letter of Credit Outstandings then exceeds the Borrowing Base.
8.10 Tangible Net Worth. The Company will not permit Tangible Net Worth
at any time to be less than 60% of the aggregate outstanding principal
amount of the Loans and Letter of Credit Outstandings at such time.
8.11 Lines of Business. The Company will not engage to any substantial
extent in any line or lines of business activity other than the business of
investing in Securities, provided that this Section 8.11 shall not be
deemed to restrict the lines of business of Subsidiaries of the Company.
8.12 Transactions with Affiliates. Except as expressly permitted by this
Agreement, the Company will not, directly or indirectly: (a) make any
Investment in an Affiliate (other than by means of purchases of Securities
issued by Affiliates from Persons who are not Affiliates); (b) transfer,
sell, lease, assign or otherwise dispose of any property to an Affiliate;
(c) merge into or consolidate with or purchase or acquire Property from an
Affiliate; or (d) enter into any other transaction directly or indirectly
with or for the benefit of an Affiliate (including, without limitation,
guarantees and assumptions of obligations of an Affiliate); provided that
(i) the Company may enter into transactions (other than extensions of
credit by the Company to an Affiliate) in the ordinary course of business
if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Company as the monetary or business
consideration which would obtain in a comparable transaction with a Person
not an Affiliate, (ii) the Company may make capital contributions or loans
to its Wholly-Owned Subsidiaries and (iii) so long as no Default or Event
of Default has occurred and is continuing (or would result therefrom) and
the Company has given the Lender at least one Business Day's prior written
notice, the Company may make payments to (A) Ichan & Co., Inc. in the form
of a management or advisory fee and (B) Bayswater Realty & Capital Corp.
("Bayswater") in the form of reimbursement for certain payroll and related
expenses incurred by Bayswater with respect to certain accounting,
bookkeeping, tax administration and similar services to the extent
performed for the benefit of the Company; provided, that in no event shall
the aggregate amount paid or distributed pursuant to this clause in any
twelve-month period exceed $500,000. The Company shall notify the Bank
prior to or promptly after the consummation by it of any transaction
referred to in clause (a), (b), (c), or (d) of this Section 8.12 describing
the same in reasonable detail.
8.13 Use of Proceeds. The Company may not use the proceeds of the Loans
hereunder other than to repay Letter of Credit drawings pursuant to Section
3.05, to make Investments (other than to purchase or carry Margin Stock)
permitted by Section 8.08 hereof, to pay the principal of and interest on
the Indebtedness referred to in Section 8.07(b) hereof and to pay fees,
expenses and similar transaction costs incurred in connection with this
Agreement (in each case in compliance with all applicable legal and
regulatory requirements); provided that the Bank shall not have any
responsibility as to the use of any of such proceeds.
8.14 Maintenance Base. The Company will not at any time permit the sum
of (x) the aggregate outstanding principal amount of the Loans at such time
plus (y) the aggregate amount of all Letter of Credit Outstandings at such
time to exceed the Maintenance Base at such time.
8.15 Minimum Excess Equity. The Company will not, so long as any
obligations are outstanding under the AKF Railcar Credit Agreement and the
AKF Railcar Credit Agreement is in full force and effect, permit at any
time the sum of (x) the aggregate outstanding principal amount of the
"Loans" under the AKF Railcar Credit Agreement at such time, plus (y) the
aggregate "Letter of Credit Outstandings" under the AKF Railcar Credit
Agreement at such time to exceed Excess Equity at such time. Should at any
time the sum of the amounts referred to in the preceding clauses (x) and
(y) exceed Excess Equity at such time then, unless in the interim the sum
of the amounts referred to in clauses (x) and (y) shall be reduced by means
of a prepayment under the AKF Railcar Credit Agreement so as no longer to
exceed Excess Equity, within three Business Days the Company shall either
(i) pledge to the Bank additional assets pursuant to the provisions of
Section 2.10 so that the Company shall be in compliance with the terms of
this Section 8.15, or (ii) prepay the Loans in such amounts and/or pay over
to the Bank such amounts to be held by the Bank for application against the
Letter of Credit Outstandings so that the Company shall be in compliance
with the terms of this Section 8.15.
8.16 RJR Common Stock. The Company will not at any time permit RJR
Common Stock to comprise less than 20% of the Portfolio Value for purposes
of determining "Eligible Pledged Securities"; provided, however, that the
Company may request in accordance with Section 2.10 hereof that the Lender
permit the Company to pledge additional Assets under the Security Agreement
of an issuer (other than RJR) of a similar quality acceptable to the Lender
in its discretion (whether in addition to or in substitution for existing
Pledged Assets) and thereby constitute such additional Assets "Eligible
Pledged Assets", or deposit cash in the Collateral Account, in each case in
order to comply with this Section 8.16.
Section 9. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) the Company shall default in the payment when due of any principal
of or interest on any Loan, any Reimbursement Obligation, any fee or any
other amount payable by it hereunder or under any other Basic Document to
which the Company is a party; or
(b) the Parent Corporation, ACF Holding, IHC, ACF, the Company or any
Subsidiary of the Company shall default in the payment when due of any
principal of or interest on any of its Indebtedness (other than
Indebtedness referred to in Section 9(a)), or in the payment when due of
any amount under any Interest Rate Protection Agreement and the aggregate
principal amount of the Indebtedness and/or liquidation payments under such
Interest Rate Protection Agreement to which such default relates is not
less than $5,000,000 (in the case of the Parent Corporation, ACF Holding,
IHC or ACF) or $1,000,000 (in the case of the Company or any such
Subsidiary); or any event specified in any note, agreement, indenture or
other document evidencing or relating to any Indebtedness of the Parent
Corporation, ACF Holding, IHC or ACF in the aggregate amount of not less
than $5,000,000 shall occur if the effect of such event is to cause such
Indebtedness to become due, or to be prepaid in full (whether by
redemption, purchase, offer to purchase or otherwise) prior to its stated
maturity; or any event specified in any note, agreement, indenture or other
document evidencing or relating to any Indebtedness of the Parent
Corporation, ACF Holding, IHC or ACF in the aggregate amount of not less
than $10,000,000 or any event specified in any Interest Rate Protection
Agreement to which the Parent Corporation, ACF Holding, IHC or ACF is party
shall occur if the effect of such event is (with the giving of any notice
or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders to
cause) to cause such Indebtedness to become due, or to be prepaid in full
(whether by redemption, purchase, offer to purchase or otherwise) prior to
its stated maturity or, in the case of an Interest Rate Protection
Agreement, to permit the payments owing thereunder to be liquidated; or any
event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness of the Company or any of
its Subsidiaries in the aggregate amount of not less than $1,000,000 or any
event specified in any Interest Rate Protection Agreement to which any of
the Subsidiaries of the Company is party shall occur if the effect of such
event is to cause, or (with the giving of any notice or the lapse of time
or both) to permit the holder or holders of such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, such Indebtedness
to become due, or to be prepaid in full (whether by redemption, purchase,
offer to purchase or otherwise), prior to its stated maturity or, in the
case of an Interest Rate Protection Agreement, to permit the payments owing
under such Interest Rate Protection Agreement to be liquidated; or
(c) any representation, warranty or certification made or deemed made in
any Basic Document (or in any modification or supplement thereto) by the
Company, or any certificate furnished to the Bank pursuant to the
provisions hereof, shall prove to have been false or misleading as of the
time made or furnished in any material respect; or
(d) the Company shall default in the performance of its obligation under
Section 8.01 (g) and Section 8.16 hereof; the Company shall default in the
performance of its obligation under Section 8.14 hereof and such default
shall continue unremedied after 5:00 p.m. New York time on the Business Day
immediately following the day on which such default occurs; the Company
shall default in the performance of any of its obligations under any of
Sections 8.05, 8.06, 8.07, 8.08, 8.09, 8.12, 8.13 or 8.15 hereof or Section
5.01 or Section 5.02 of the Security Agreement and such default shall
continue unremedied for a period of five days; or the Company shall default
in the performance of Section 8.10 hereof and such default shall continue
unremedied for a period of fifteen days; or the Company shall default in
the performance of any of its other obligations in this Agreement or any
other Basic Document and such default shall continue unremedied for a
period of ten days after notice thereof to the Company by the Bank; or
(e) the Parent Corporation, ACF Holding, ACF, the Company or any
Subsidiary of the Company shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) the Parent Corporation, ACF Holding, ACF, the Company or any
Subsidiary of the Company shall (i) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its Property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Bankruptcy Code (as now or hereafter in effect),
(iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the application or
consent of the Parent Corporation, ACF Holding, ACF, the Company or any
Subsidiary of the Company, in any court of competent jurisdiction, seeking
(i) its liquidation, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Parent
Corporation, ACF Holding, ACF, the Company or any Subsidiary of the Company
or of all or any substantial part of its assets, or (iii) similar relief in
respect of the Parent Corporation, ACF Holding, ACF, the Company or any
Subsidiary of the Company under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect for a period of 60 or more days; or an
order for relief against the Parent Corporation, ACF Holding, ACF, the
Company or any Subsidiary of the Company shall be entered in an involuntary
case under the Bankruptcy Code; or
(h) a final judgment or judgments for the payment of money shall be
rendered by a one or more courts (regardless of insurance coverage),
administrative tribunals or other bodies having jurisdiction against the
Parent Corporation, ACF Holding, ACF, the Company and/or any Subsidiary of
the Company in an aggregate amount of not less than $5,000,000 (in the case
of the Parent Corporation, ACF Holding or ACF) or $1,000,000 (in the case
of the Company or any of its Subsidiaries) and the same shall not be
discharged (or provision shall not be made for such discharge), or a stay
of execution thereof shall not be procured, within 30 days from the date of
entry thereof and the Parent Corporation, ACF Holding, ACF, the Company or
such Subsidiary shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal;
or
(i) an event or condition specified in Section 8.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or in the
reasonable opinion of the Bank shall be reasonably likely to incur a
liability to a Plan, a Multiemployer Plan or PBGC (or any combination of
the foregoing) which would constitute, in the reasonable determination of
the Bank, a Material Adverse Effect; or
(j) the Company shall cease at any time to be a Wholly-Owned Subsidiary
of the Parent Corporation; or
(k) the Parent Corporation shall at any time (i) cease to be a second
tier Wholly-Owned Subsidiary of Highcrest Investors Corp., a Delaware
corporation, (ii) cease to be a third tier Wholly-Owned Subsidiary of IHC,
or (iii) become a subsidiary of any Person with the result that the Company
shall in any way become liable for, or with respect to, any Indemnified
Liability (as defined in the Indemnification Agreement); or
(l) except for expiration in accordance with its terms, any of the
Security Documents, the Tortoise Guaranty, the Bayswater Guaranty or the
IHC Indemnification Agreement shall be terminated or shall cease to be in
full force and effect or the legality, validity, binding effect or
enforceability of any such document shall be challenged by the Company or
any other Person, for whatever reason; or
(m) any Event of Default (as so defined therein) shall occur under the
AKF Railcar Credit Agreement; or
(n) ACF Holding shall default in the payment when due of any amount
payable under the ACF Holding Guaranty; or
(o) any representation or warranty made in the ACF Holding Guaranty
shall prove to have been false or misleading as of the time made in any
material respect; or
(p) ACF Holding shall default in the performance of any of its
obligations set forth in the ACF Holding Guaranty (other than those
referred to in paragraph (n) above) and such default shall continue
unremedied for a period of ten days; or
(q) the ACF Holding Guaranty shall be terminated (without the consent of
the Bank) or shall cease to be in full force and effect (without the
consent of the Bank), or the legality, validity, binding effect or
enforceability of the ACF Holding Guaranty shall be challenged by ACF
Holding or any other Person, for whatever reason;
THEREUPON: (1) in the case of an Event of Default other than one referred
to in clause (f) or (g) of this Section 9 with respect to the Company, the
Bank may, by notice to the Company, terminate the Commitment and/or declare
the principal amount then outstanding of, and the accrued interest on, the
Loans, all Letter of Credit Outstandings and all other amounts payable by
the Company hereunder and under the Note (including, without limitation,
any amounts payable under Section 5.04 hereof) to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any kind, all
of which are hereby expressly waived by the Company; and (2) in the case of
the occurrence of an Event of Default referred to in clause (f) or (g) of
this Section 9 with respect to the Company, the Commitment shall
automatically be terminated and the principal amount then outstanding of,
and the accrued interest on, the Loans, all Letter of Credit Outstandings
and all other amounts payable by the Company hereunder and under the Note
(including, without limitation, any amounts payable under Section 5.04
hereof) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which
are hereby expressly waived by the Company.
Section 10. Miscellaneous.
10.01 Waiver. No failure on the part of the Bank to exercise and no
delay in exercising, and no course of dealing with respect to, any right,
power or privilege under this Agreement, the Note or any Letter of Credit
shall operate as a waiver thereof, nor shall any single or partial exercise
of any right, power or privilege under this Agreement, the Note or any
Letter of Credit preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
10.02 Notices. All notices and other communications provided for herein
and under the Security Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be
given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof; or, as to any party, at such
other address as shall be designated by such party in a notice to each
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
10.03 Expenses, etc. The Company agrees to pay or reimburse the Bank for
paying: (a) all reasonable out-of-pocket costs and expenses of the Bank
(including, without limitation, the reasonable fees and expenses of Mayer,
Brown & Platt, counsel to the Bank), in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement and the
other Basic Documents and the making of the Loans and the issuing of the
Letters of Credit hereunder, (ii) due diligence, communication and travel
expenses relating to this Agreement and the other Basic Documents and the
transactions contemplated hereby and thereby and (iii) any amendment,
modification or waiver of any of the terms of this Agreement or any of the
other Basic Documents; (b) all reasonable costs and expenses of the Bank
(including reasonable counsels' fees) in connection with (i) any Default
and any enforcement or collection proceedings resulting therefrom and
(ii) the enforcement of this Section 10.03; (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any of
the other Basic Documents or any other document referred to herein or
therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration recording or
perfection of any security interest contemplated by this Agreement or any
other Basic Document or any other document referred to herein or therein;
provided, however, that the Company shall not be required to pay or
reimburse the Bank with respect to any cost, expense, fee, tax or other
charge arising as a result of the transfer by the Bank of any rights under
this Agreement or the Note.
The Company hereby agrees to indemnify the Indemnified Parties for, and
hold each of them harmless against, any and all Indemnified Liabilities
incurred by any of them arising out of or by reason of or relating to the
extensions of credit hereunder or under the Original Credit Agreement or
any actual or proposed use by the Company or any of its Subsidiaries of the
proceeds of any of the extensions of credit hereunder or under the Original
Credit Agreement (but excluding any such Indemnified Liabilities incurred
by reason of the gross negligence or willful misconduct of the Person to be
indemnified). If and to the extent the foregoing undertaking may be
unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
10.04 Amendments, etc. No provision of this Agreement may be amended or
modified except by an instrument in writing signed by the Company and the
Bank.
10.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
10.06 Assignments and Participations.
(a) The Company may not assign its rights or obligations hereunder, under
the Note or in respect of any Letter of Credit, without the prior consent
of the Bank.
(b) The Bank may assign any of the Loans, the Note, the Letters of Credit
and its Commitment (but, in the case of assignments to other than
affiliates of the Bank, only with the consent of the Company, which consent
shall not be unreasonably withheld); provided that, (i) any such partial
assignment shall be in an amount at least equal to $5,000,000 and (ii) each
such assignment by the Bank of its Loans, Note, Letters of Credit or
Commitment shall be made in such manner so that the same portion of its
Loans, Note, Letters of Credit and Commitment is assigned to the respective
assignee. Upon execution and delivery by the assignee to the Company of an
instrument in writing pursuant to which such assignee agrees to become a
"Bank" hereunder having the Commitment and Loans specified in such
instrument, and upon consent thereto by the Company to the extent required
above, the assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the Company), the
obligations, rights and benefits of the Bank hereunder holding the
Commitment, Loans and Letters of Credit (or portions thereof) assigned to
it (in addition to the Commitment and Loans, if any, theretofore held by
such assignee) and the Bank shall, to the extent of such assignment, be
released from the Commitment (or portion thereof) so assigned; provided
that no such assignee shall be entitled to compensation under Section 5.01
hereof in excess of any such compensation payable to the Bank.
(c) The Bank may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans, Letters of Credit or its
Commitment (but, in the case of participations to other than affiliates of
the Bank, only with the consent of the Company, which consent shall not be
unreasonably withheld), in which event each purchaser of a participation (a
"participant") shall be entitled to the rights and benefits of the
provisions of Section 8.01(h) hereof with respect to its participation in
such Loans and Commitment as if (and the Company shall be directly
obligated to such Participant under such provisions as if) such Participant
were the "Bank" for purposes of said Section, but shall not have any other
rights or benefits under this Agreement or the Note or any other Basic
Document (the participant's rights against the Bank in respect of such
participation to be those set forth in the agreements executed by the Bank
in favor of the Participant). All amounts payable by the Company to the
Bank under Section 5 hereof in respect of Loans, Letters of Credit and the
Commitment, shall be determined as if the Bank had not sold or agreed to
sell any participations in such Loans, Letters of Credit and Commitment,
and as if the Bank were funding each of such Loans, Letters of Credit, and
Commitment in the same way that it is funding the portion of such Loans,
Letters of Credit, and Commitment in which no participations have been
sold. In no event shall the Bank agree with the Participant to take or
refrain from taking any action hereunder (including, without limitation,
under Section 2.10 hereof) or under any other Basic Document except that
the Bank may agree with the Participant that it will not, without the
consent of the Participant, agree to (i) increase or extend the term, or
extend the time or waive any requirement for the reduction or termination,
of the Commitment, (ii) extend the date fixed for the payment of principal
of or interest on the related Loan or Loans or any portion of any fee
hereunder payable to the Participant, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below
the rate at which the Participant is entitled to receive such interest or
fee, or (v) alter the rights or obligations of the Company to prepay the
related Loans.
(d) Anything in this Section 10.06 to the contrary notwithstanding, the
Bank may assign and pledge all or any portion of its Loans, Reimbursement
Obligations and its Note to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circular issued by such Federal Reserve Bank, and
such Loans and Note shall be fully transferrable as provided therein. No
such assignment shall release the Bank from its obligations hereunder.
(e) The Bank may furnish any information concerning the Company or any of
its Subsidiaries in the possession of the Bank from time to time to
assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 10.12(b)
hereof.
10.07 Survival. The obligations of the Company under Sections 3.08,
5.01, 5.04 and 10.03 hereof shall survive the repayment of the Loans, the
Reimbursement Obligations and the termination of the Commitment. In
addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit, herein or pursuant hereto shall survive
the making of such representation and warranty, and the Bank shall be
deemed to have waived, by reason of making any extension of credit
hereunder, any Default which may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding that the
Bank may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such
extension of credit was made.
10.08 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are
not intended to affect the interpretation of any provision of this
Agreement.
10.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart.
10.10 Governing Law; Submission to Jurisdiction. This Agreement and the
Note shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to the choice of law provisions
thereof. The Company hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and
of any New York state court sitting in New York City for the purposes of
all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum.
10.11 Waiver of Jury Trial. EACH OF THE COMPANY AND THE BANK HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.12 Treatment of Certain Information; Confidentiality.
(a) The Company acknowledges that (i) services may be offered or provided
to it (in connection with this Agreement or otherwise) by the Bank or by
one or more subsidiaries or affiliates of the Bank and (ii) information
delivered to the Bank by the Company may be provided to each such
subsidiary and affiliate, it being understood that any such subsidiary or
affiliate receiving such information shall be bound by the provisions of
clause (b) below as if it were the Bank hereunder.
(b) The Bank agrees (on behalf of itself and each of its affiliates,
directors, officers, employees and representatives) to use reasonable
precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices, any non-public
information supplied to it by the Company pursuant to this Agreement which
is identified by the Company as being confidential at the time the same is
delivered to the Bank, provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by statute,
rule, regulation or judicial process, (ii) to counsel for the Bank,
(iii) to bank examiners, auditors or accountants, (iv) in connection with
any litigation to which the Bank is a party, (v) to a subsidiary or
affiliate of the Bank as provided in clause (a) above or (vi) to any
assignee or participant (or prospective assignee or participant) so long as
the Company shall have consented to such Person becoming an assignee or
participant and such Person first executes and delivers to the Bank a
Confidentiality Agreement substantially in the form of Exhibit E hereto and
(y) in no event shall the Bank be obligated or required to return any
materials furnished by the Company.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
TORTOISE CORP.
By______________________________________
Title:
Address for Notices:
100 South Bedford Road
Mount Kisco, New York 10549
Telecopier No.: (914) 242-4097
Telephone No.: (914) 242-4000
Attention: Robert Mitchell
Edward Mattner
INTERNATIONALE NEDERLANDEN BANK N.V.,
NEW YORK BRANCH
By______________________________________
Title:
By______________________________________
Title:
Lending Office for all Loans:
135 East 57th Street
New York, New York 10022-2101
Address for Notices:
135 East 57th Street
New York, New York 10022-2101
Telecopier No.: (212) 593-3362
Telephone No.: (212) 446-1525
Attention: Mr. Matthew J. Cooleen
ANNEX 1
List of Acceptable Valuation Sources
Bear Stearns
First Boston
DLJ
Kidder Peabody
Goldman Sachs
Jefferies
Merrill Lynch
Morgan Stanley
Oppenheimer
Salomon Brothers
R.D. Smith
Shearson Lehman
The American Exchange
The Pacific Exchange
Prudential Bache<PAGE>
SCHEDULE 1
INDEBTEDNESS OF THE COMPANY
SECTION 7.12 AND SECTION 8.07
None.
SCHEDULE 2
Omitted from schedule 13D Filing
SCHEDULE 3
None.
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$200,000,000
May 20, 1993
New York, New
York
FOR VALUE RECEIVED, TORTOISE CORP., a New York corporation
(the "Company"), hereby promises to pay to the order of
INTERNATIONALE NEDERLANDEN BANK N.V., NEW YORK BRANCH (the
"Bank"), for the account of its respective Applicable
Lending Offices provided for by the Credit Agreement
referred to below, at its principal office at 135 East 57th
Street, New York, New York 10022-2101, the principal sum of
TWO HUNDRED MILLION Dollars (or such lesser amount as shall
equal the aggregate unpaid principal amount of the Loans
made by the Bank to the Company under the Credit Agreement),
in lawful money of the United States of America and in
immediately available funds, on the dates and in the
principal amounts provided in the Credit Agreement, and to
pay interest on the unpaid principal amount of each such
Loan, at such office, in like money and funds, for the
period commencing on the date of such Loan until such Loan
shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate, and duration of
Interest Period (if applicable) of each Loan made by the
Bank to the Company, and each payment made on account of the
principal thereof, shall be recorded by the Bank on its
books and, prior to any transfer of this Note, endorsed by
the Bank on the schedule attached hereto or any continuation
thereof.
This Note is the Note referred to in the Amended and
Restated Credit Agreement (as amended, modified and
supplemented and in effect from time to time, the "Credit
Agreement") dated as of May 20, 1993, between the Company
and the Bank, and evidences Loans made by the Bank
thereunder. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit
Agreement.
To the extent of $200,000,000, this Note represents a
renewal of the outstanding principal amount of, and a
replacement and substitution for, a certain Promissory Note
of the Company, dated ___________, 19__ (the "Prior Note")
payable to the order of the Bank. The indebtedness
evidenced by the Prior Note is a continuing indebtedness and
nothing contained herein shall be construed to constitute a
novation of the Prior Note, to deem paid the Prior Note or
to release or terminate any lien or security interest given
to secure payment of the Prior Note.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events
and for prepayments of Loans upon the terms and conditions
specified therein.
Except as permitted by paragraphs (b) and (d) of Section
10.6 of the Credit Agreement, this Note may not be assigned
by the Bank to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
TORTOISE CORP.
By __________________________
Title:
<PAGE>
SCHEDULE OF LOANS
This Note evidences Loans made, Continued or Converted
under the within-described Credit Agreement to the Company,
on the dates, in the principal amounts, of the Types,
bearing interest at the rates, and having Interest Periods
(if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of
principal set forth below:
<PAGE>
EXHIBIT B
[Form of Valuation Certificate]
CERTIFICATE
Reference is made to the Amended and Restated Credit Agreement
dated as of May 20, 1993 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), between
Tortoise Corp. (the "Company") and Internationale Nederlanden
Bank N.V., New York Branch. Terms defined in the Credit Agreement
are used herein as defined therein.
Pursuant to Section 8.1(f) of the Credit Agreement, the
undersigned, the Chief Financial Officer of the Company, hereby
certifies that, to the best of [his/her] knowledge, attached
hereto as Annex 1 is a true and accurate calculation of the
Portfolio Value and Excess Equity as at the close of business on
the date indicated above determined in accordance with the
requirements of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has caused this certificate
to be duly executed as of the __________ day of _____________
199__.
_____________________________________
Title: Chief Financial Officer
<PAGE>
ANNEX 1 to
Valuation
Certificate
Tortoise Corp.
Valuation Certificate as of (Date)
Source
for Issuer
Face Market Market Market Concen-
Description Amount Price Value Price tration %
______ _______
Total
Less Concentration Exclusions (_______)
Portfolio Value _______
Advance Rate .50
Plus Cash in Collateral
Account _______
Borrowing Base
a) Fair Market Value of
Eligible Pledged
Securities ________
b) Plus Fair Market Value
of Eligible Pledged
Advances ________
c) Total ________
d) Aggregate Outstanding
Loans ________
e) Plus Aggregate Letter of
Credit Outstandings ________
f) Total ________
g) Excess Equity ((c) - (f)) <PAGE>
EXHIBIT C-1
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT dated as of May 20, 1993
(this "Agreement"), between TORTOISE CORP., a corporation duly
organized and validly existing under the laws of the State of New
York (the "Company") and INTERNATIONALE NEDERLANDEN BANK N.V.,
NEW YORK BRANCH (the "Bank"), formerly known as NMB Postbank
Groep N.V., New York Branch.
The Company and the Bank are parties to a Credit Agreement dated
as of January 10, 1991 (as modified and supplemented and in
effect from time to time, the "Original Credit Agreement"),
providing, subject to the terms and conditions thereof, for loans
to be made by the Bank to the Company in an aggregate principal
amount not exceeding $200,000,000 at any one time outstanding.
To induce the Bank to enter into the Original Credit Agreement,
the Company has executed and delivered to the Bank a Security
Agreement dated as of January 10, 1991 (as modified and
supplemented and in effect from time to time, the "Original
Security Agreement").
The Company and the Bank have now entered into a certain Amended
and Restated Credit Agreement dated as of May 20, 1993 (as
modified and supplemented and in effect from time to time, the
"Credit Agreement"), which amends and restates the Original
Credit Agreement.
The Company and the Bank now desire to amend and restate the
Original Security Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, (i) the Company and the Bank agree that the
Original Security Agreement is hereby amended and restated in its
entirety as provided for herein, and (ii) the Company and the
Bank further agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement
are used herein as defined therein. In addition, as used herein:
"Collateral" shall have the meaning ascribed thereto in Section
3 hereof.
"Collateral Account" shall have the meaning ascribed thereto in
Section 4.1 hereof.
"Permitted Investments" shall mean:
(a) direct obligations of the United States of America, or of
any agency thereof, or obligations guaranteed as to principal and
interest by the United States of America, or of any agency
thereof, in either case maturing not more than five years from
the date of acquisition thereof;
(b) certificates of deposit issued by any bank or trust company
organized under the laws of the United States of America or any
state thereof and having capital, surplus and undivided profits
of at least $500,000,000, maturing not more than 90 days from the
date of acquisition thereof;
(c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Corporation or Moody's Investors Services, Inc.,
respectively, maturing not more than 90 days from the date of
acquisition thereof; and
(d) repurchase agreements and reverse repurchase agreements
with any bank having combined capital and surplus in an amount of
not less than $500,000,000, or any primary dealer of United
States government securities, relating to marketable direct
obligations issued or unconditionally guaranteed or insured by
the United States of America or any agency or instrumentality
thereof and backed by the full faith and credit of the United
States of America, in each case maturing within 30 days from the
date of acquisition thereof, provided that the terms of such
agreements comply with the guidelines set forth in the Federal
Financial Institutions Examination Council Supervisory Policy
Repurchase Agreements of Depository Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the Currency
on October 31, 1985.
"Pledged Advances" shall have the meaning ascribed thereto in
Section 3(a) hereof.
"Pledged Assets" shall mean Pledged Advances and Pledged
Securities.
"Pledged Securities" shall have the meaning ascribed thereto in
Section 3(a) hereof.
"Secured Obligations" shall mean the principal of and interest
on the Loans and the Note and all other amounts from time to time
owing to the Bank by the Company under the Basic Documents.
"Uniform Commercial Code" shall mean the Uniform Commercial Code
as in effect in the State of New York from time to time.
Section 2. Representations and Warranties. The Company
represents and warrants to the Bank that (a) it is the sole
beneficial owner of the Collateral in which it purports to grant
a security interest pursuant to Section 3 hereof and no Lien
exists or will exist upon any such Collateral at any time except
the pledge and security interest in favor of the Bank created or
provided for herein which pledge and security interest
constitutes a first priority perfected pledge and security
interest in and to all of such Collateral; and (b) the Company's
principal place of business and the place where its records
concerning the Collateral are kept is 100 South Bedford Road,
Mount Kisco, New York 10549, and the Company will not change such
principal place of business or remove such records unless it has
(i) taken such actions as is necessary to cause the security
interest of the Bank in the Collateral to continue to be
perfected, and (ii) given thirty (30) days' prior written notice
thereof to the Bank.
Section 3. Collateral. As collateral security for the prompt
payment in full when due (whether at stated maturity, by
acceleration or mandatory prepayment or otherwise) of the Secured
Obligations, the Company hereby pledges and grants to Bank as
hereinafter provided, a security interest in all of its right,
title and interest in the following property, whether now owned
by the Company or hereafter acquired and whether now existing or
hereafter coming into existence, and wherever located (all being
collectively referred to herein as "Collateral"):
(a) the securities listed on Schedule 1 hereto and all other
securities now or hereafter owned by the Company and pledged from
time to time by the Company hereunder, excluding securities
released by the Bank from the pledge hereof (collectively, the
"Pledged Securities") and all Advances now or hereafter owned by
the Company and pledged from time to time by the Company
hereunder, excluding Advances released by the Bank from the
pledge hereof (collectively, the "Pledged Advances");
(b) all shares, securities, moneys or property representing
principal of or interest on any of the Pledged Assets, or
representing a distribution in respect of any of the Pledged
Assets, or resulting from reclassification or other like change
of any of the Pledged Assets or otherwise received in exchange
therefor, and any subscription warrants, rights or options issued
to the holders of, or otherwise in respect of, any of the Pledged
Assets;
(c) the balance from time to time in the Collateral Account;
(d) any policy of insurance on any of the foregoing,
including, without limitation, insurance payable by reason of
loss or damage to any of the Pledged Assets;
(e) all proceeds of and from any of the property of the
Company described in clauses (a) through (d) above in this
Section 3 (including, without limitation, any proceeds of
insurance thereon).
Section 4. Cash Proceeds of Collateral.
4.01 Collateral Account. There has heretofore been established
at the Bank a cash collateral account (the "Collateral Account")
in the name and under the control of the Bank into which there
shall be deposited from time to time the cash proceeds of any of
the Collateral required to be delivered to the Bank pursuant
hereto or pursuant to the Credit Agreement. The balance from time
to time in the Collateral Account shall constitute part of the
Collateral hereunder and shall not constitute payment of the
Secured Obligations until applied as hereinafter provided.
Except as provided in Section 5.12 hereof, in the next sentence
and in Section 6 hereof, the balance from time to time in the
Collateral Account shall not be subject to withdrawal by or upon
the order of the Company. If such payment or prepayment is
permitted under the Credit Agreement, the Bank shall, from time
to time upon the request of the Company, withdraw all or any
portion of the balance in the Collateral Account and apply, or
cause to be applied, the same to the payment or prepayment of the
Loans or Reimbursement Obligations in accordance with the Credit
Agreement. At any time following the occurrence and during the
continuance of an Event of Default, the Bank may in its
discretion apply or cause to be applied (subject to collection)
the balance from time to time outstanding to the credit of the
Collateral Account to the payment of the Secured Obligations in
the manner specified in Section 5.09 hereof. The balance from
time to time in the Collateral Account shall be subject to
withdrawal only as provided herein.
4.02 Investment of Balance in Collateral Account. Amounts on
deposit in the Collateral Account shall be invested from time to
time in such Permitted Investments as the Company (or, after the
occurrence and during the continuance of a Default, the Bank)
shall determine, which Permitted Investments shall be held in the
name and be under the control of the Bank, provided that at any
time after the occurrence and during the continuance of an Event
of Default, the Bank may in its discretion at any time and from
time to time elect to liquidate any such Permitted Investments
and to apply or cause to be applied the proceeds thereof to the
payment of the Secured Obligations in the manner specified in
Section 5.09 hereof.
Section 5. Further Assurances; Remedies; Waivers. In
furtherance of the grant of the pledge and security interest
pursuant to Section 3 hereof, the Company hereby agrees with the
Bank as follows:
5.01 Delivery and Other Perfection. The Company shall:
(a) do one of the following (as appropriate) with respect to
each of the Pledged Assets owned by it:
(i) deliver or cause to be delivered to the Bank all Pledged
Assets that are certificated securities (as defined in the
Uniform Commercial Code) either (A) registered or issued in the
name of, or payable or endorsed to bearer or to the order of, a
nominee of the Bank or (B) endorsed in blank or accompanied by
undated stock powers duly executed in blank, or
(ii) cause the making of the appropriate entries on the books
of a financial intermediary (as defined in section 8-313(4) of the
Uniform Commercial Code), reducing the account of the Company or
(in the case of a transfer directly from a seller of securities
to the Bank) the seller of such Pledged Assets, and increasing
the account of the Bank, by the amount or number of such Pledged
Assets and cause such financial intermediary to confirm to the
Bank that it is in the custody of such Pledged Assets for account
of the Bank and that appropriate entries have been made on its
books and records, or
(iii) in the case of uncertificated securities (as defined in
the Uniform Commercial Code), cause the making of appropriate
entries on books maintained by or on behalf of the issuer for
such purpose transferring such uncertificated securities into the
name of the Bank or a nominee of the Bank;
(b) if any of the above-described shares, securities, monies
or property required to be pledged by the Company under clauses
(a) and (b) of Section 3 hereof are received by the Company,
forthwith either (x) transfer and deliver to the Bank such shares
or securities so received by the Company (together with any
certificates for any such shares and securities duly endorsed in
blank or accompanied by undated stock powers duly executed in
blank) all of which thereafter shall be held by the Bank,
pursuant to the terms of this Agreement, as part of the
Collateral or (y) take such other action as the Bank shall deem
necessary or appropriate to duly record and perfect the Lien
created hereunder in such shares, securities, monies or property
referred to in said clauses (a) and (b);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other
papers that may be necessary or desirable (in the judgment of the
Bank) to create, preserve, perfect or validate any security
interest granted pursuant hereto or to enable the Bank to
exercise and enforce its rights hereunder with respect to such
security interest, including, without limitation, causing any or
all of the Pledged Assets to be transferred of record into the
name of the Bank or its nominee (and the Bank agrees that if any
of the Assets are transferred into its name or the name of its
nominee, the Bank will thereafter promptly give to the Company
copies of any notices and communications received by it with
respect to the Assets pledged by the Company hereunder);
(d) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in
such manner as the Bank may reasonably require in order to
reflect the security interests granted by this Agreement; and
(e) permit representatives of the Bank, upon reasonable
notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the
Collateral, and permit representatives of the Bank to be present
at the Company's place of business to receive copies of all
communications and remittances relating to the Collateral, and
forward copies of any notices or communications received by the
Company with respect to the Collateral all in such manner as the
Bank may require.
5.02 Other Financing Statements and Liens. Without the prior
written consent of the Bank, the Company shall not file or suffer
to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement, or file or
authorize any like instrument, with respect to the Collateral in
which the Bank is not named as the sole secured party.
5.03 Preservation of Rights. The Bank shall not be required to
take steps necessary to preserve any rights against prior parties
to any of the Collateral.
5.04 Special Provisions Relating to Certain Collateral.
(a) So long as no Event of Default shall have occurred and be
continuing, the Company shall have the right to exercise all
voting, consensual and other powers of ownership pertaining to
Securities for all purposes not inconsistent with the terms of
this Agreement, the Credit Agreement, the Notes or any other
instrument or agreement referred to herein or therein, provided
that the Company agrees that it will not vote any of the Pledged
Securities in any manner that is inconsistent with the terms of
this Agreement, the Credit Agreement, the Notes or any such other
instrument or agreement; and the Bank shall execute and deliver
to the Company or cause to be executed and delivered to the
Company all such proxies, powers of attorney, dividend and other
orders, and all such instruments, without recourse, as the
Company may reasonably request for the purpose of enabling the
Company to exercise the rights and powers which they are entitled
to exercise pursuant to this Section 5.04(a).
(b) Unless and until an Event of Default has occurred and is
continuing or would result therefrom, the Company shall be
entitled to any principal of and interest on any Collateral that
is a debt security and any dividends on capital stock paid out of
earnings (such principal, interest and dividends which the
Company is entitled to receive and retain under this Section
5.04(b) being herein called "Retained Distributions") and the
Bank shall promptly pay such principal, interest and dividends to
the Company if and when received by the Bank in the form so
received.
(c) If any Event of Default shall have occurred, then so long
as such Event of Default shall continue, and whether or not the
Bank exercises any available right to declare any Secured
Obligation due and payable or seeks or pursues any other relief
or remedy available to it under applicable law or under this
Agreement, the Credit Agreement, the Note or any other agreement
relating to such Secured Obligation, all Retained Distributions
on the Collateral shall be paid directly to the Bank and retained
by it in the Collateral Account as part of the Collateral,
subject to the terms of this Agreement, and, if the Bank shall so
request in writing, the Company agrees to execute and deliver to
the Bank appropriate orders and documents to that end, provided
that if such Event of Default is cured, any such Retained
Distributions theretofore paid to the Bank shall, upon request of
the Company (except to the extent theretofore applied to the
Secured Obligations) be returned by the Bank to the Company.
5.05 Events of Default, etc. During the period during which an
Event of Default shall have occurred and be continuing:
(i) the Bank may make any reasonable compromise or settlement
deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments,
or otherwise modify the terms of, any of the Collateral;
(ii) the Bank shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform
Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction where any
rights and remedies hereunder may be asserted, including, without
limitation, the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Bank were the sole and
absolute owner thereof (and the Company agrees to take all such
action as may be appropriate to give effect to such right);
(iii) the Bank in its discretion may, in its name or in the
name of the Company or otherwise, demand, sue for, collect or
receive any money or property at any time payable or receivable
on account of or in exchange for any of the Collateral, but shall
be under no obligation to do so; and
(iv) the Bank may, upon 10 Business Days' prior written notice
to the Company (or upon such shorter notice, or without notice,
as may be permitted under the Uniform Commercial Code) of the
time and place, with respect to the Collateral or any part
thereof which shall then be or shall thereafter come into the
possession, custody or control of the Bank or any of their
respective agents, sell, lease, assign or otherwise dispose of
all or any of such Collateral, at such place or places as the
Bank deems best, and for cash or on credit or for future delivery
(without thereby assuming any credit risk), at public or private
sale, without demand of performance or notice of intention to
effect any such disposition or of time or place thereof (except
such notice as is required above or by applicable statute and
cannot be waived) and the Bank or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale), and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or
otherwise), of the Company, any such demand, notice or right and
equity being hereby expressly waived and released. The Bank may,
without notice or publication, adjourn any public or private sale
or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the same may be so
adjourned.
The proceeds of each collection, sale or other disposition under
this Section 5.05 shall be applied in accordance with Section
5.09 hereof.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and
applicable state securities laws, the Bank may be compelled, with
respect to any sale of all or any part of the Collateral, to
limit purchasers to those who will agree, among other things, to
acquire the Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. The
Company acknowledges that any such private sales may be at prices
and on terms less favorable to the Bank than those obtainable
through a public sale without such restrictions, and,
notwithstanding such circumstances, agree that any such private
sale of Collateral subject to the aforesaid prohibitions shall
not be deemed to not have been made in a commercially reasonable
manner because such sale was effected at such a private sale and
that the Bank shall have no obligation to engage in public sales
and no obligation to delay the sale of any Collateral for the
period of time necessary to permit the respective issuer thereof
or obligor thereunder to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05
hereof are insufficient to cover the costs and expenses of such
realization and the payment in full of the Secured Obligations,
the Company shall remain liable for any deficiency.
5.07 Removals, etc. Without at least 30 days prior written
notice to the Bank, the Company shall not (a) maintain any of its
books or records with respect to the Collateral at any office or
maintain its chief executive office or its principal place of
business at any place other than at the address indicated beneath
the signature of the Company to the Credit Agreement or (b)
change its corporate name, or name under which it does business,
from its name shown on the signature pages hereto.
5.08 Private Sale. The Bank shall incur no liability as a
result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 hereof conducted in a
commercially reasonable manner. The Company hereby waives any
claims against the Bank arising by reason of the fact that the
price at which the Collateral may have been sold at such a
private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount
of the Secured Obligations, even if the Bank accepts the first
offer received and does not offer the Collateral to more than one
offeree.
5.09 Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other
realization of all or any part of the Collateral pursuant hereto,
and any other cash at the time held by the Bank under Section 4
hereof or this Section 5, shall be applied by the Bank:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable out-
of-pocket costs and expenses of the Bank and the fees and
expenses of its agents and counsel, and all expenses, and
advances made or incurred by the Bank in connection therewith;
Next, to the payment in full of the Secured Obligations in such
order of application as the Bank shall select; and
Finally, after the payment in full of the Secured Obligations,
to the payment to the Company, or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus
then remaining.
As used in this Section 5, "proceeds" of Collateral shall mean
cash, securities and other property realized in respect of, and
distributions in kind of, Collateral, including any thereto
received under any reorganization, liquidation or adjustment of
debt of either the Company or any issuer of or obligor on any of
the Collateral.
5.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Bank while no Event of Default
has occurred and is continuing, upon the occurrence and during
the continuance of any Event of Default the Bank is hereby
appointed the attorney-in-fact of the Company for the purpose of
carrying out the provisions of this Section 5 and taking any
action and executing any instruments which the Bank may deem
necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with
an interest. Without limiting the generality of the foregoing,
so long as the Bank shall be entitled under this Section 5 to
make collections in respect of the Collateral, the Bank shall
have the right and power to receive, endorse and collect all
checks made payable to the order of the Company representing any
interest, principal or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the
same.
5.11 Perfection. Prior to or concurrently with the execution
and delivery of this Agreement, the Company shall file such
financing statements and other documents in such offices as the
Bank may request to perfect the security interests granted by
Section 3 of this Agreement.
5.12 Termination. When all Secured Obligations shall have been
paid in full and the Commitment of the Bank under the Credit
Agreement shall have expired or been terminated, this Agreement
shall terminate, and the Bank shall forthwith cause to be
assigned, transferred and delivered, against receipt but without
any recourse, warranty or representation whatsoever (other than
as to there being no Liens resulting from any act of or claim
against the Bank), any remaining Collateral and money received in
respect thereof, to or on the order of the Company.
5.13 Expenses. The Company agrees to pay to the Bank all out-
of-pocket expenses (including reasonable expenses for legal
services of every kind) of, or incident to, the enforcement of
any of the provisions of this Section 5, or performance by the
Bank of any obligations of the Company in respect of the
Collateral which the Company has failed or refused to perform, or
any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or
asserting rights and claims of the Bank in respect thereof, by
litigation or otherwise, including expenses of insurance, and all
such expenses shall be Secured Obligations to the Bank secured
under Section 3 hereof.
5.14 Further Assurances. The Company agrees that, from time to
time upon the written request of the Bank, the Company will
execute and deliver such further documents and do such other acts
and things as the Bank may reasonably request in order to fully
effect the purposes of this Agreement.
5.15 Amendments. The Company shall not consent to any
modification or supplement to any of any documentation relating
to any Collateral if, in the reasonable judgment of the Bank,
such modification would limit the right of the Bank to exercise
foreclosure remedies with respect thereto. The Company shall
furnish to the Bank promptly after receipt thereof copies of all
modifications and supplements to documentation relating to
Collateral.
Section 6. Release of Collateral. The Bank shall release the
Collateral from time to time as follows:
6.01 Excess Collateral. The Bank shall release Collateral from
time to time upon request of the Company if (a) no Default exists
or would result therefrom and (b) after giving effect to such
release, the sum of the aggregate Fair Market Value of the
Eligible Pledged Assets plus the balance of the cash and
Permitted Investments in the Collateral Account is equal to or
more than the product of the aggregate outstanding principal
amount of the Loans and Letter of Credit Outstandings multiplied
by 2.0; provided that (i) the aggregate amount (in the case of
cash) and/or fair market value (in the case of other collateral)
of each such release shall be not less than $5,000,000, (ii) the
Collateral to be so released shall, subject to the foregoing
clause (i), consist of (x) if and to the extent requested by the
Company, cash or Permitted Investments held in the Collateral
Account or Pledged Assets that are not Eligible Pledged Assets,
or (y) Eligible Pledged Assets specified by the Company and
agreed to by the Bank or (if the Bank does not agree in its sole
discretion to release the Pledged Assets so specified) Eligible
Pledged Assets of all issues determined on a pro rata basis (or
as near thereto as practicable, as determined by the Bank)
according to the respective Fair Market Values thereof.
6.02 Withdrawals Pursuant to Credit Agreement. In connection
with any transfer of Pledged Assets permitted by Section 8.05 of
the Credit Agreement, the Bank shall release the Lien of this
Agreement with respect to such Pledged Assets so long as the
consideration to be received by the Company in such transfer is
delivered directly by the transferee to the Bank as Collateral
hereunder (and the Bank shall be satisfied with the manner and
timing of both such delivery and the creation and perfection of
its security interest in such Collateral).
6.03 Reinvestment of Cash Collateral. In connection with any
purchase of Assets pursuant to Section 2.10 of the Credit
Agreement that the Bank has agreed are to become Eligible Pledged
Assets, the Bank shall, if no Default exists or would result
therefrom, upon instruction of the Company, withdraw all or such
lesser portion of the balance in the Collateral Account as may be
required and apply, or cause to be applied, the same to the
purchase of such Assets, provided that (a) the Fair Market Value
of such Assets shall be not less than the amount of such balance
and (b) the Bank shall be satisfied with the manner and timing of
the creation and perfection of its security interest in such
Assets.
Section 7. Miscellaneous.
7.01 No Waiver. No failure on the part of the Bank or any of
its agents to exercise, and no course of dealing with respect to,
and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or
partial exercise by the Bank or any of its agents of any right,
power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies herein are cumulative and are not exclusive of any
remedies provided by law.
7.02 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.03 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied, telegraphed, cabled
or delivered to the intended recipient at its address specified
pursuant to Section 10.02 of the Credit Agreement and shall be
deemed to have been given at the times specified in said Section
10.02.
7.04 Waivers, etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed
by the Company and the Bank. Any such amendment or waiver shall
be binding upon the Bank, each holder of any Secured Obligation
and the Company.
7.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and
assigns of the Company, the Bank and each holder of the Secured
Obligations (provided, however, that the Company shall not assign
or transfer its rights hereunder without the prior written
consent of the Bank).
7.06 Counterparts. This Agreement may be executed in any
number of counterparts, all of which together shall constitute
one and the same instrument and any of the parties hereto may
execute this Agreement by signing any such counterpart.
7.07 Agents. The Bank may employ agents and attorneys-in-fact
in connection herewith and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith.
7.08 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (a) the other provisions hereof shall remain in
full force and effect in such jurisdiction and shall be liberally
construed in favor of the Bank in order to carry out the
intentions of the parties hereto as nearly as may be possible and
(b) the invalidity or unenforceability of any provision hereof in
any jurisdiction shall not affect the validity or enforceability
of such provision in any other jurisdiction.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
TORTOISE CORP.
By_________________________
Title:
INTERNATIONALE NEDERLANDEN BANK N.V.,
NEW YORK BRANCH
By_________________________
Title:
<PAGE>
EXHIBIT C-2
GUARANTY
THIS GUARANTY dated as of May 20, 1993 (this "Guaranty"), made
by AMERICAN CAR LINE II COMPANY, a corporation duly organized and
existing under the laws of Delaware (the "Guarantor"), in favor
of INTERNATIONALE NEDERLANDEN BANK N.V., New York Branch (the
"Lender"),
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated Credit Agreement,
dated as of May 20, 1993 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), between Tortoise Corp., a New York
corporation (the "Borrower") and the Lender, the Lender has
extended Commitments to make Loans to and issue Letters of Credit
for the account of the Borrower; and
WHEREAS, as a condition precedent to the making of the initial
Loans and the issuance of the initial Letters of Credit under the
Credit Agreement, the Guarantor is required to execute and
deliver this Guaranty;
WHEREAS, the Borrower is paying to the Guarantor compensation
for executing and delivering this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution,
delivery and performance of this Guaranty;
NOW, THEREFORE, for good and valuable consideration the receipt
of which is hereby acknowledged, and in order to induce the
Lender to make the Loans (including the initial Loan) to the
Borrower pursuant to the Credit Agreement and to issue Letters of
Credit (including the initial Letter of Credit) for the account
of the Borrower pursuant to the Credit Agreement, the Guarantor
agrees, for the benefit of the Lender, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or
not underscored) when used in this Guaranty, including its
preamble and recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural
forms thereof):
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender" is defined in the preamble.
"Obligations" means all obligations (monetary or otherwise) of
the Borrower arising under or in connection with the Credit
Agreement and the other Basic Documents (as defined in the Credit
Agreement), other than this Guaranty and the Tortoise Guaranty
(as defined in the Credit Agreement).
"Security Agreement" means the Security Agreement - Trust Deed,
dated as of May 20, 1993, as amended, supplemented or otherwise
modified from time to time, between the Guarantor and the Lender.
"U.C.C." means the Uniform Commercial Code as in effect in the
State of New York.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in
this Guaranty, including its preamble and recitals, have the
meanings provided in the Credit Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Guaranty,
including its preamble and recitals, with such meanings.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the
Borrower whether for principal, interest, fees, expenses or
otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of
the United States Bankruptcy Code, 11 U.S.C. section 362(a), and the
operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. section 502(b) and section 506(b)), and
(b) indemnifies and holds harmless the Lender and each holder
of any Obligations of the Borrower for any and all costs and
expenses (including reasonable attorney's fees and expenses)
incurred by the Lender or such holder, as the case may be, in
enforcing any rights under this Guaranty.
provided, however, that the Guarantor shall be liable under this
Guaranty for the maximum amount of such liability that can be
hereby incurred without rendering this Guaranty, as it relates to
the Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This Guaranty constitutes a guaranty of payment
when due and not of collection, and the Guarantor specifically
agrees that it shall not be necessary or required that the Lender
or any holder of any Obligations of the Borrower exercise any
right, assert any claim or demand or enforce any remedy
whatsoever against the Borrower (or any other Person) before or
as a condition to the obligations of the Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. The Guarantor agrees
that, in the event of the dissolution or insolvency of the
Borrower or the Guarantor, or the inability or failure of the
Borrower or the Guarantor to pay debts as they become due, or an
assignment by the Borrower or the Guarantor for the benefit of
creditors, or the commencement of any case or proceeding in
respect of the Borrower or the Guarantor under any bankruptcy,
insolvency or similar laws, and if such event shall occur at a
time when any of the Obligations of the Borrower may not then be
due and payable, the Guarantor will pay to the Lender forthwith
the full amount which would be payable hereunder by the Guarantor
if all such Obligations were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in
all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force
and effect until all Obligations of the Borrower have been paid
in full, all obligations of the Guarantor hereunder shall have
been paid in full and the Commitment shall have terminated. The
Guarantor guarantees that the Obligations of the Borrower will be
paid strictly in accordance with the terms of the Credit
Agreement and each other Basic Document under which they arise,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Lender or any holder of any Obligations of the
Borrower with respect thereto. The liability of the Guarantor
under this Guaranty shall be absolute, unconditional and
irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement or any other Basic Document;
(b) the failure of the Lender or any holder of any Obligations
of the Borrower
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower or any other Person (including any
other guarantor) under the provisions of the Credit Agreement or
otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of the
Borrower;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the
Borrower, or any other extension, compromise or renewal of any
Obligation of the Borrower;
(d) any reduction, limitation, impairment or termination of
the Obligations of the Borrower for any reason, including any
claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to (and the Guarantor hereby waives any
right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting,
the Obligations of the Borrower or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the
terms of the Credit Agreement or any other Basic Document;
(f) any addition, exchange, release, surrender or
nonperfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by the Lender or any holder of any Obligations of
the Borrower; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any surety or any guarantor.
SECTION 2.4 Reinstatement, etc. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment (in whole or in part) of
any of the Obligations of the Borrower is rescinded or must
otherwise be restored by the Lender or any holder of any
Obligations of the Borrower, upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, as though such
payment had not been made.
SECTION 2.5. Waiver, etc. The Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations of the Borrower and this
Guaranty and any requirement that the Lender or any holder of any
Obligations of the Borrower protect, secure, perfect or insure
any security interest or Lien, or any property subject thereto,
or exhaust any right or take any action against the Borrower or
any other Person (including any other guarantor) or entity or any
collateral securing payment of the Obligations of the Borrower.
SECTION 2.6. Waiver of Subrogation. The Guarantor hereby
irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Borrower that arise from the
existence, payment, performance or enforcement of the Guarantor's
obligations under this Guaranty, including any right of
subrogation, reimbursement, exoneration or indemnification, any
right to participate in any claim or remedy of the Lender against
the Borrower or any collateral which the Lender now has or
hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law,
including the right to take or receive from the Borrower,
directly or indirectly, in cash or other property or by set-off
or in any manner, payment or security on account of such claim or
other rights. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and the Obligations of the
Borrower shall not have been paid in cash in full and the
Commitment of the Lender under the Credit Agreement and any other
commitments by the Lender to the Borrower have not been
terminated, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for, the Lender,
and shall forthwith be paid to the Lender to be credited and
applied upon the Obligations of the Borrower, whether matured or
unmatured. The Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements
contemplated by the Credit Agreement and that the waiver set
forth in this Section is knowingly made in contemplation of such
benefits.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of
Notes, etc. This Guaranty shall:
(a) be binding upon the Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the Lender,
each holder of any Obligations of the Borrower and each of their
respective successors, transferees and assigns.
Without limiting the generality of clause (b), the Lender may
assign or otherwise transfer (in whole or in part) any
Obligations of the Borrower to any other Person or entity, and
such other Person or entity shall thereupon become vested with
all rights and benefits in respect thereof granted to the Lender
under this Guaranty or otherwise, subject, however, to the
provisions of Section 10.06 of the Credit Agreement.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Binding on Successors, Transferees and Assigns;
Assignment of Guaranty. In addition to, and not in limitation
of, Section 2.7, this Guaranty shall be binding upon the
Guarantor and its successors, transferees and assigns and shall
inure to the benefit of and be enforceable by the Lender and each
holder of any Obligations of the Borrower and their respective
successors and assigns (to the full extent provided pursuant to
Section 2.7); provided, however, that the Guarantor may not
assign any of its obligations hereunder without the prior written
consent of the Lender and each holder of any Obligations of the
Borrower.
SECTION 3.2. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the
Guarantor herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Lender, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 3.3. Addresses for Notices to the Guarantor. All
notices and other communications hereunder to the Guarantor shall
be in writing (including facsimile communication) and mailed or
telecopied or delivered to it, addressed to it at the address set
forth below its signature hereto or at such other address as
shall be designated by the Guarantor in a written notice to the
Lender. All such notices and other communications shall, when
mailed or telecopied, respectively, be effective when deposited
in the mails or telecopied, respectively, addressed as aforesaid.
SECTION 3.4. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the
part of the Lender or any holder of any Obligations of the
Borrower to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 3.5. Section Captions. Section captions used in this
Guaranty are for convenience of reference only, and shall not
affect the construction of this Guaranty.
SECTION 3.6. Severability. Wherever possible each provision of
this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Guaranty.
SECTION 3.7.Governing Law. THIS GUARANTY SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH INTERNAL LAWS OF THE STATE OF
NEW YORK.
SECTION 3.8. Waiver of Jury Trial. THE GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
ENTERING INTO THE CREDIT AGREEMENT.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
AMERICAN CAR LINE II COMPANY
By:____________________________
Title:
Address: 3301 Rider Trail South
(Suite 234)
Earth City, Missouri
63045-1393
Telecopy: (314) 344-4216
Attention: President
with copy to:
Robert Mitchell
100 South Bedford Road
Mount Kisco, New York 10549
Telecopy: (914) 242-4097<PAGE>
EXHIBIT C-3
Escrow No. _______
ESCROW INSTRUCTIONS
To: Internationale Nederlanden Bank N.V.,
New York Branch, as Escrowee
135 East 57th Street
New York, New York 10022-2102
Attention: Matthew J. Cooleen
[Name of Company], a ___________ corporation ("XXX") has
deposited with you the amount of $______________ (the "Escrow
Property").
As Escrowee, you are hereby directed to hold, deal with and
dispose of the Escrow Property in the following manner (the
"Instructions") subject, however, to the terms and conditions
(the "Terms and Conditions") hereinafter set forth:
A. The Escrow Property shall be held by the Escrowee and
invested as provided in Paragraph B below. The Escrow Property
shall be released to the parties set forth below on the first to
occur of the following events:
[a] to ACF Industries, Incorporated on the day that ACF
presents to Escrowee a signed certificate to the effect that the
court having jurisdiction over the chapter 11 case of E-II
Holdings, Inc. has entered an order confirming the plan of
reorganization dated March 3, 1993;
[b] to E-II Holdings, Inc., as debtor and debtor-in-possession,
on the day that the Escrowee is presented with a signed
certificate from E-II Holdings, Inc. in the form of Attachment 1
hereto, together with an order of the United States Bankruptcy
Court, Southern District of New York, in the form attached to
such certificate; or
[c] to XXX on June 7, 1993 or such later date as specified by
XXX by written notice to the Escrowee given at any time on or
prior to June 7, 1993.
B. Escrowee shall hold the Escrow Property for the account of
XXX and shall use all reasonable efforts to invest the Escrow
Property; provided, however, that the Escrowee shall invest the
Escrow Property only in such Permitted Investments (hereinafter
defined) as XXX shall direct the Escrowee from time to time. All
earnings on the Escrow Property shall be for the account of
ACF. The Escrowee shall not be responsible for, or liable to,
any party to these Escrow Instructions for any loss suffered in
connection with any investment of funds made by it in accordance
with these Escrow Instructions. As used herein, "Permitted
Investment" shall mean
(a) direct obligations of the United States of America, or of
any agency thereof, or obligations guaranteed as to principal and
interest by the United States of America, or of any agency
thereof, in either case maturing not more than 270 days from the
date of acquisition thereof;
(b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America
or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000, maturing not more than 90 days
from the date of acquisition thereof;
(c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Corporation or Moody's Investors Services, Inc.,
respectively, maturing not more than 90 days from the date of
acquisition thereof; and
(d) repurchase agreements and reverse repurchase agreements
with any bank having combined capital and surplus in an amount of
not less than $50,000,000, or any primary dealer of United States
government securities, relating to marketable direct obligations
issued or unconditionally guaranteed or insured by the United
States of America or any agency or instrumentality thereof and
backed by the full faith and credit of the United States of
America, in each case maturing within 30 days from the date of
acquisition thereof, provided that the terms of such agreements
comply with the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy Repurchase
Agreements of Depository Institutions With Securities Dealers and
Others, as adopted by the Comptroller of the Currency on October
31, 1985.
C. In the event that you receive conflicting instructions
pursuant to Paragraphs A or B of these Instructions, you shall be
entitled, but not required, to consult with counsel of your
choosing and to act or omit to act as so advised by such counsel.
Notwithstanding anything to the contrary contained herein, but
not in limitation of the provisions of Paragraph 2 of the Terms
and Conditions, you shall not be liable in any manner whatsoever
to any or all of the undersigned if you choose to act or omit to
act as advised by such counsel.
Terms and Conditions
1. Your duties and responsibilities shall be limited to those
expressly set forth in these Escrow Instructions, and you shall
not be subject to, nor obliged to recognize, any other agreement
between, or direction or instruction of, any or all of the
parties hereto even though reference thereto may be made herein;
provided, however, with your written consent, these Escrow
instructions may be amended at any time or times by an instrument
in writing signed by all the then parties in interest.
2. You are authorized in your sole discretion to disregard any
and all notices or instructions given by any of the undersigned
or by any other person, firm or corporation, except only such
notices or instructions as are hereinabove provided for and
orders or process of any court entered or issued with or without
jurisdiction. If any property subject hereto is at any time
attached, garnished, or levied upon under any court order or in
case the payment, assignment, transfer, conveyance or delivery of
any such property shall be stayed or enjoined by any court order,
or in case any order, writ, judgment or decree shall be made or
entered by any court affecting such property or any part thereof,
then and in any of such events you are authorized, in your sole
discretion, to rely upon and comply with any such order, writ,
judgment or decree which you are advised by legal counsel of your
own choosing is binding upon you; and if you comply with any such
order, writ, judgment or decree you shall not be liable to any of
the parties hereto or to any other person, firm or corporation by
reason of such compliance even though such order, writ, judgment
or decree may be subsequently reversed, modified, annulled, set
aside or vacated.
3. You shall not be personally liable for any act taken or
omitted hereunder if taken or omitted by you in good faith and in
the exercise of your own best judgment. You shall also be fully
protected in relying upon any written notice, demand, certificate
or document which you in good faith believe to be genuine.
4. You shall not be responsible for the sufficiency or accuracy
of the form, execution, validity or genuineness of documents now
or hereafter deposited hereunder, or for any description therein,
nor shall you be responsible or liable in any respect on account
of the identity, authority or rights of the persons executing or
delivering or purporting to execute or deliver any such document
or these Escrow Instructions.
5. Any notices which you are required or desire to give hereunder
to any of the undersigned shall be in writing and may be given by
mailing the same to the address indicated below opposite the
signature of such undersigned (or to such other address as such
undersigned may have theretofore substituted therefor by written
notification to you), by United States mail, postage prepaid.
For all purposes hereof any notice so mailed shall be as
effectual as though served upon the person of the undersigned to
whom it was mailed at the time it is deposited in the United
States mail by you whether or not such undersigned thereafter
actually receives such notice. Notices to you shall be in
writing and shall not be deemed to be given until actually
received by your employee or officer who administers this escrow.
Whenever under the terms hereof the time for giving a notice or
performing an act falls upon a Saturday, Sunday or holiday, such
time shall be extended to the next business day, but such an
extension shall in no manner affect the rights of the undersigned
among and between themselves under any agreement among and
between themselves.
6. If you believe it to be reasonably necessary to consult with
counsel concerning any of your duties in connection with this
escrow, or in case you become involved in litigation on account
of being Escrowee hereunder or on account of having received
property subject hereto, then in either case, your costs,
expenses, and reasonable attorneys' fees shall be paid by XXX.
7. You shall, from time to time, be paid a reasonable fee for
your services hereunder by XXX, as agreed separately between you
and XXX.
8. It is understood that you reserve the right to resign as
Escrowee at any time by giving written notice of your
resignation, specifying the effective date thereof, to the
undersigned. Within thirty (30) days after receiving the
aforesaid notice, XXX and you agree to appoint a successor
Escrowee to which you may distribute the property then held
hereunder. If a successor Escrowee has not been appointed and
has not accepted such appointment by the end of the thirty-day
period, you may apply to a court of competent jurisdiction for
the appointment of a successor Escrowee, and the costs, expenses
and reasonable attorneys' fees which you incur in connection with
such a proceeding shall be paid by XXX.
9. XXX hereby agrees to reimburse you, on demand, for all costs
and expenses (including, without limitation, reasonable
attorneys' fees) incurred by you in connection with the
administration of these Escrow Instructions. XXX hereby
indemnifies, exonerates and holds free and harmless you and each
of your officers, directors, employees and agents (collectively,
the "Indemnified Parties") from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages,
and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities") incurred by the Indemnified Parties or any of them
hereunder or in connection herewith or in connection with the
transactions contemplated hereby; provided however, that XXX
shall not be required to indemnify any Indemnified Party pursuant
to this Paragraph for any Indemnified Liabilities to the extent
caused by such Indemnified Party's wilful misconduct or gross
negligence. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, XXX hereby agrees to make
the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under
applicable law. The agreements in this Paragraph 9 and in
Paragraphs 6, 7 and 8 relating to payment of fees, costs,
expenses and reasonable attorneys' fees shall survive the
termination of these Escrow Instructions.
10. These Escrow Instructions shall be governed by, and construed
in accordance with, the law of the State of New York without
giving effect to the choice of law provisions thereof. XXX
hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and
of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to
these Escrow Instructions or the transactions contemplated
hereby. XXX irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
11. EACH OF ACF AND YOU HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE ESCROW
INSTRUCTIONS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12. These Escrow Instructions may be executed in any number of
counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same Escrow Instructions.
Dated: May 20, 1993
Parties to Escrow Addresses
[Name of Company]
By:_____________________________
Title:_______________________
INTERNATIONALE NEDERLANDEN BANK 135 East 57th Street
N.V., NEW YORK BRANCH, New York, New York 10022-2102
as Escrowee Attention: Matthew J. Cooleen
By:_____________________________
Title:_______________________
<PAGE>
[Letterhead of E-II Holdings, Inc.]
Internationale Nederlanden Bank N.V.,
New York Branch, as Escrowee
135 East 57th Street
New York, New York 10022-2102
Attention: Matthew J. Cooleen
Gentlemen:
We hereby certify that the United States Bankruptcy Court,
Southern District of New York, has entered an order authorizing
the release to us of the funds maintained in escrow account
number ______, a copy of which is attached to this certificate,
and such order has become final and non-appealable and is in full
force and effect on and as of the date hereof.
Very truly yours,
E-II HOLDINGS, INC.,
debtor and debtor-in-possession
Dated _________, 1993 _______________________________
Title:<PAGE>
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
- -----------------------------------x
: Chapter 11
In re: Case No. 92-B-43614 (CB)
:
E-II HOLDINGS, INC.,
:
Debtor.
:
- -----------------------------------x
ORDER APPROVING SALE OF
ASSETS TO ACF INDUSTRIES, INC.
OR ITS DESIGNEE
The Court having directed and authorized the Debtor to sell all
of its assets (other than cash, rights to payment from Unilever,
Inc. and unliquidated claims against third parties) (the
"Assets") to the highest bidder at a sale pursuant to 11 U.S.C. section
363(c)(2); and ACF Industries, Inc. and/or its designees and
affiliates (collectively, "ACF") having posted letters of credit
issued by ING Bank (the "L/Cs") and having escrowed cash at ING
Bank (the "Escrow Cash") in an amount aggregating
________________________ to secure the bid made by ACF; and
notice of such sale, and the terms and conditions thereof, having
been given more than 20 days prior to the date thereof in
accordance with Rule Bankruptcy Rules 2002(a)(2) and 6004; and a
sale having been held in accordance with terms prescribed in the
order authorizing the sale; and the Court having scheduled a
hearing on such sale for _____________; and ACF having made the
highest and best bid for the purchase of the Assets at such sale
that and ACF having purchased the Assets in good faith; and the
Debtor having given the notification required under subsection
(a) of Section 7A of the Clayton Act (15 U.S.C. section 18a) and the
required waiting period (as shortened to ten days under 11 U.S.C
section 363(b)(2)(B)) having expired without objection by either the
United States Department of Justice or Federal Trade Commission
to the proposed sale of the Assets to ACF; and after due
deliberation and sufficient cause appearing therefor; it is
hereby
FOUND, that ACF has purchased the Assets in good faith; and it
is hereby
FOUND, that the cash paid by ACF out of the proceeds of the L/Cs
and the Escrowed Cash to the Debtor in exchange for the Assets is
good, valuable and fair consideration for the Assets; and it is
hereby
ORDERED, that all of the Debtor's right, title and interest in
and to the Assets be, and it hereby is, sold, conveyed,
transferred and set over to ACF free and clear of any liens,
security interests, encumbrances or adverse claims of any nature
or description; and it is hereby
ORDERED, that ACF shall be, and it hereby is, granted good and
warrantable title to the Assets, free and clear of any liens,
security interests, encumbrances or adverse claims of any nature
or description; and it is hereby
ORDERED, that the Debtor be, and it hereby is, authorized to
withdraw the Escrow Cash, and it is hereby
ORDERED, that the Debtor be, and it hereby is, authorized to
draw on the L/Cs.
Dated: New York, New York
April 19, 1993
United States Bankruptcy Judge
<PAGE>
The Escrowed Funds shall be released to the parties set forth
below on the first to occur of the following events:
[a] to ACF on the day the court having jurisdiction over the
chapter 11 case of E-II Holdings, Inc. enters an order confirming
the plan of reorganization dated
March 3, 1993;
[b] to E-II Holdings, Inc., as debtor and debtor-in-possession,
on the day an order is entered in the form attached hereto; or
[c] to ACF on July 24, 1993.
EXHIBIT D
May __, 1993
Internationale Nederlanden Bank, N.V.
New York Branch
135 East 57th Street
New York, New York 10022
Ladies and Gentlemen:
We have acted as counsel to Tortoise Corp. (the "Company") in
connection with the Amended and Restated Credit Agreement
("Credit Agreement") dated as of May 20, 1993, between the
Company and Internationale Nederlanden Bank N.V., New York
Branch, providing for loans to be made to and letters of credit
to be issued for the account of the Company. Terms defined in
the Credit Agreement are used herein as defined therein.
In furnishing this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of
the Credit Agreement, the other Basic Documents delivered in
connection therewith by the Company, the certificate of
incorporation and all amendments thereto and the by-laws of the
Company, such other corporate records of the Company,
certificates of public officials and of officers and
representatives of the Company, resolutions of the board of
directors of the Company and such matters of law, as we have
deemed appropriate or necessary as the basis for the opinions
hereinafter set forth. As to various questions of fact material
to our opinion (including, without limitation, those factual
matters which are stated to be to the best of our knowledge), we
have relied solely upon representations in the Credit Agreement
and the Basic Documents by the Company and upon certificates of
officers of the Company or oral representations made by such
officers to us and have made no independent investigation of such
facts.
In making such examinations, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to us as originals and
the conformity to originals of documents submitted to us as
certified or photostatic copies.
In making our examination of documents we have assumed as to
Persons other than the Company: (i) such parties had the power
to enter into such documents and to perform all obligations
thereunder, (ii) the execution and delivery by such parties of
such document has taken place and has been duly authorized by all
requisite action, and (iii) the validity and binding effect of
such documents on such parties. With your consent, we have not
examined any records of any court, administrative tribunal or
other similar entity in connection with our opinion expressed
herein.
Based solely on the foregoing, and subject to the qualifications
and exceptions specified in this letter, we are of the opinion
that:
1. The Company is a corporation duly organized validly existing
and in good standing under the laws of New York and has the
necessary corporate power to make and perform the Basic Documents
and to borrow under the Credit Agreement. To the best of our
knowledge, it is not necessary for the Company to be qualified as
a foreign corporation to transact business outside of New York.
2. The making and performance by the Company of the Basic
Documents and the borrowings under the Credit Agreement have been
duly authorized by all necessary corporate action, and do not and
will not violate any provision of law or regulation or any
provision of its certificate of incorporation or by-laws or
result in the breach of, or constitute a default or require any
consent under, or (except for the Liens created pursuant to the
Security Documents) result in the creation of any Lien upon any
of the properties, revenues or assets of the Company pursuant to
any indenture or any other agreement or instrument known to us to
which the Company is a party, by which the Company or its
Properties may be bound, pursuant to the indenture of ACF dated
as of February 28, 1986, as amended, the indenture of ACF dated
as of December 15, 1984, as amended, or, to the best of our
knowledge without independent investigation, any other agreement
or instrument to which ACF is a party.
3. The Credit Agreement, the Security Agreement constitute and
the Tortoise Guaranty, and the Note when executed and delivered
will constitute, the valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms,
except as the foregoing may be (i) limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect, relating to or generally affecting creditors
rights, (ii) subject to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (whether enforceability is considered in a
proceeding at law or in equity) and (iii) limited by state or
federal securities laws or public policy relating thereto with
respect to any rights of indemnification. We express no opinion
with respect to those provisions of the Basic Documents relating
to whether or not rights or remedies are exclusive. In addition,
no opinion is expressed herein as to the specific remedy that any
court, governmental authority or arbitrator may grant, impose or
render and as to the legality, validity, binding nature or
enforceability of each and every right, remedy and provision of
the Basic Documents, but, subject to the limitations set forth in
the foregoing clauses (i), (ii) and (iii), it is our opinion that
any such failure will not render the Basic Documents invalid as a
whole or substantially interfere with the realization of the
principal benefits provided thereby through the exercise of the
rights and remedies provided in the Basic Documents and those
otherwise legally available.
4. There are no legal or arbitral proceedings, and no
proceedings by or before any governmental or regulatory authority
or agency, known to us to be pending or threatened against or
affecting the Company or any Properties or rights of the Company
which, if adversely determined, would have a Material Adverse
Effect.
5. No authorizations, consents, approvals, licenses, filings or
registrations with any governmental or regulatory authority,
bureau or agency are required in connection with the execution,
delivery or performance by the Company of the Basic Documents.
6. Upon the transfer by the Company to the Bank of the Pledged
Securities (within the meaning of Section 8-313 of the New York
Uniform Commercial Code) and upon the execution of the Security
Agreement, there will be created in favor of the Bank a valid
security interest in all Collateral (as defined therein) in which
the Company has rights, in each case as collateral security for
the payment of the Secured Obligations described in the Security
Agreement. We express no opinion as to the validity of the
security interests which may be created by the Security Agreement
with respect to property (other than the Pledged Securities)
distributed on or with respect to the Pledged Securities after
the date hereof. We also express no opinion as to the right,
title or interest of the Company in or to any Properties in which
any Liens are purported to be created by any of the Security
Documents or the perfection or priority of any such Liens.
7. The Company is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
We are members of the bar of the State of New York and are not
licensed or admitted to practice law in any other jurisdiction.
Accordingly, we express no opinion with respect to the laws of
any jurisdiction other than the State of New York and the United
States of America. This opinion is directed to the addressee
hereof and may not be relied on by any other person without the
prior written consent of the undersigned. Our opinion is based
and relies on the current status of the law, and is subject in
all respects to, and may be limited by, further rules,
regulations and legislation, as well as developing case law. We
do not undertake to notify any person of changes in facts or law
occurring or coming to our attention after the delivery of this
opinion.
Very truly yours,
<PAGE>
EXHIBIT D
[Form of Opinion]
<PAGE>
EXHIBIT E
[Form of Confidentiality Agreement]
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Amended and Restated Credit Agreement dated as of May 20,
1993, between Tortoise Corp. (the "Company") and Internationale
Nederlanden Bank N.V., New York Branch.
Dear ____________:
As the Bank party to the above-referenced Amended and Restated
Credit Agreement (the "Credit Agreement"), we have agreed with
Tortoise Corp. (the "Company") pursuant to Section 10.12 of the
Credit Agreement to use reasonable precautions to keep
confidential, except as otherwise provided therein, all non-
public information identified by the Company as being
confidential at the time the same is delivered to us pursuant to
the Credit Agreement.
As provided in said Section 10.12, we are permitted to provide
you, as a prospective [holder of a participation in the Loans (as
defined in the Credit Agreement) and Letters of Credit (as
defined in the Credit Agreement)][assignee Bank], with certain of
such non-public information subject to the execution and delivery
by you, prior to receiving such non-public information, of a
Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to
us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on
behalf of yourself and each of your affiliates, directors,
officers, employees and representatives) that (A) such
information will not be used by you except in connection with the
proposed [participation] [assignment] mentioned above and (B) you
shall use reasonable precautions, in accordance with your
customary procedures for handling confidential information and in
accordance with safe and sound banking practices, to keep such
information confidential, provided that nothing herein shall
limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii)
to your counsel (whom you shall notify of the confidential nature
of such information) or to our counsel, (iii) to bank examiners,
auditors or accountants, (iv) in connection with any litigation
to which you are a party, (v) to a subsidiary or affiliate of
yours as provided in Section 10.12(a) of the Credit Agreement, or
(vi) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or
prospective assignee or participant) first executes and delivers
to you a Confidentiality Agreement substantially in the form
hereof; provided, further, that, unless specifically prohibited
by applicable law or court order, you agree, prior to disclosure
thereof, to notify the Company of (x) any request for disclosure
of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection
with an examination of your financial condition by such
governmental agency) or (y) any disclosure in connection with any
litigation to which you or we are a party; and provided finally
that in no event shall you be obligated to return any materials
furnished to you pursuant to this Confidentiality Agreement.
Please be aware that the Company is an intended third party
beneficiary of your agreements contained herein and has rights
under this Confidentiality Agreement as fully as if it were a
party hereto.
Would you please indicate your agreement to the foregoing by
signing at the place provided below the enclosed copy of this
Confidentiality Agreement.
Very truly yours,
INTERNATIONALE NEDERLANDEN BANK N.V.,
NEW YORK BRANCH
By __________________________________
The foregoing is agreed to
as of the date of this letter.
[Insert name of prospective
participant or assignee]
By __________________________
EXHIBIT F
ISSUANCE REQUEST
Internationale Nederlanden Bank N.V.,
New York Branch
135 East 57th Street
New York, New York 10022
Attention:
Re: Amended and Restated Credit Agreement, dated as of May 20,
1993 (together with all amendments, if any, thereafter from time
to time made thereto, the "Credit Agreement"), between Tortoise
Corp. (the "Company") and Internationale Nederlanden Bank N.V.
(the "Bank").
Gentlemen/Ladies:
This Issuance Request is delivered to you pursuant to Section
3.03 of the Credit Agreement. Unless otherwise defined herein,
terms used herein have the meanings assigned to them in the
Credit Agreement.
The Company hereby requests that on _________, 19__ (the "Date
of Issuance") you [issue a Letter of Credit on _________, 19__
in the initial Stated Amount of $________ with a Stated Expiry
Date (as defined therein) of ________, 19__] [extend the Stated
Expiry Date as defined under Irrevocable Standby Letter of Credit
No.__, issued on __________________, 19--, in the initial Stated
Amount of $________) to a revised Stated Expiry Date (as defined
therein of _________, 19__].
The beneficiary of the requested Letter of Credit will be
__________________ and such Letter of Credit will be in
support of ____________________.
The Company hereby acknowledges that, pursuant to Section 6.02
of the Credit Agreement, each of the delivery of this Issuance
Request and the [issuance] [extension] of the Letter of Credit
requested hereby constitutes a representation and warranty by the
Company that, on such date of [issuance] [extension] all
statements set forth in Section 6.02 are true and correct in all
material respects.
The Company agrees that if, prior to the time of the
[issuance] [extension] of the Letter of Credit requested
hereby, any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so
notify the Bank. Except to the extent, if any, that prior to the
time of the issuance or extension requested hereby the Bank shall
receive written notice to the contrary from the Bank, each matter
certified to herein shall be deemed to be certified at the date
of such issuance or extension.
IN WITNESS WHEREOF, the Company has caused this request to be
executed and delivered by its duly Authorized Officer this day of
_________, 19__.
TORTOISE CORP.
By __________________________
Title:
High River Limited Partnership
100 South Bedford Road
Mt. Kisco, New York 10549
December 28, 1995
Tortoise Corp.
One Wall Street Court
9th Floor
New York, New York 10005
Internationale Nederlanden (U.S.) Capital Corporation
135 East 57th Street
New York, New York 10022
Re: Loan to Tortoise Corp. ("Borrower") by
High River Limited Partnership ("Lender")
Gentlemen:
Reference is made to that certain letter agreement
by and among Borrower and Lender, dated December 21, 1995
(the "Original Letter Agreement"), executed and delivered by
Borrower and Lender. Borrower and Lender desire to amend
and restate the Original Letter Agreement and Internationale
Nederlanden (U.S.) Capital Corporation ("ING") desires to
become a party to such amended and restated agreement (the
"Amended and Restated Agreement"). Therefore, in
consideration of the mutual agreements contained herein,
Borrower and Lender agree that the Original Letter Agreement
is hereby amended and restated in its entirety as provided
for herein, and Borrower, Lender and ING agree as follows:
Background
On December 21, 1995, the following occurred:
Chelonian Corp., a New York corporation ("Chelonian"), made
a capital contribution in the amount of Forty-Five Million
Dollars ($45,000,000) (the "Proceeds") to Lender. Lender
instructed Chelonian to pay such amount to Lehman Brothers
Inc. ("Lehman Brothers") for the account of Lender.
Borrower distributed a dividend to Chelonian in the amount
of the Proceeds. Chelonian instructed Borrower to pay such
amount to Lehman Brothers for the account of Lender.
Borrower caused an amount equal to the Proceeds to be paid
to Lehman Brothers, and Lehman Brothers released its
security interest in the Securities (as defined below).
On December 21, 1995, Lender desired to lend the
Securities (as defined below) to Borrower in a manner
equivalent to an accommodation pledge. Pursuant to such
objectives, Borrower and Lender entered into the Original
Letter Agreement and have entered into this Amended and
Restated Letter Agreement regarding the lending of the
Securities under circumstances in which Lender's risk of
loss or opportunity for gain with respect to the Securities
will not be reduced, subject to the rights of ING set forth
herein. Also on December 21, 1995, ING made a loan to
Borrower secured (in part) by a pledge by Borrower in favor
of ING of the Securities.
1. The Loan.
1.1 Simultaneously with the execution and
delivery of the Original Letter Agreement, Lender loaned
(the "Loan") to Borrower and Borrower borrowed from Lender
2,951,000 shares of common stock, par value $.01 per share
("Shares"), of RJR Nabisco Holdings Corp. ("RJR") (the
"Securities"). In connection therewith, Borrower had the
right to transfer the Securities to its own name or to the
name of ING, as its designee.
1.2 Simultaneously with the execution of the
Original Letter Agreement, Lender (i) delivered or caused to
be delivered to Borrower all Securities that are
certificated securities (as defined in the Uniform
Commercial Code) either (A) registered or issued in the name
of, or payable or endorsed to bearer or to the order of, a
nominee of Borrower or (B) endorsed in blank or accompanied
by undated stock powers duly executed in blank, or (ii)
caused the making of the appropriate entries on the books of
a financial intermediary (as defined in section 8-313(4) of the
Uniform Commercial Code), reducing the account of Lender or
(in the case of a transfer directly from a seller of
securities to Borrower) the seller of such Securities, and
increasing the account of Borrower, by the amount or number
of such Securities and caused such financial intermediary to
confirm to Borrower that it is in the custody of such
Securities for the account of Borrower and that appropriate
entries have been made on its books and records.
1.3 In consideration of the Loan contemplated by
the Original Letter Agreement, simultaneously with the
execution of the Original Letter Agreement, Borrower
delivered to Lender, a fee in the amount of $45,000 and, if
the Loan is outstanding on December 21, 1996, Borrower shall
deliver to Lender, on such date, as consideration for the
continued extension of the Loan, a fee in the amount of
$45,000.
1.4 Borrower shall have the right to pledge the
Securities to ING pursuant to the Amended and Restated
Security Agreement, dated May 20, 1993, between Borrower and
ING (as amended from time to time, the "Security
Agreement"), to secure the payment of all loans and other
amounts now or in the future owed by Borrower to ING arising
in connection with or pursuant to the Amended and Restated
Credit Agreement, dated May 20, 1993, between Borrower and
ING (as amended from time to time, the "Credit Agreement").
In connection therewith, Borrower shall have the right to
transfer the Securities into the name of Borrower and, to
the extent the Securities are in certificated form (the
"Certificates"), deliver to ING the Certificates, together
with undated stock powers duly endorsed in blank. If the
Securities are pledged and delivered to ING as provided in
this Section 1.4, Lender specifically acknowledges and
agrees that (i) the direct and incidental rights of Lender
to the Securities (including under Section 1.5 below) and
hereunder against Borrower shall be subject and subordinate
to the rights of ING, (ii) ING may treat the Securities in
the same manner as other collateral pledged to it under the
Security Agreement, (iii) if an Event of Default (as defined
in the Credit Agreement) occurs, ING may sell or otherwise
dispose of and deliver the Securities in accordance with the
Security Agreement and Credit Agreement, and may apply the
proceeds thereof to all or any amounts due to ING under the
Credit Agreement or the Security Agreement or any other
Basic Document (as defined in the Credit Agreement), (iv) it
waives any and all claims with respect to the ownership
(whether legal or beneficial) of the Securities for so long
as the Securities are pledged to ING (including, without
limitation, if the Securities are sold by ING in accordance
with the terms of the Credit Agreement and the Security
Agreement), and (v) ING will be under no obligation to
separately account to Lender for the proceeds of the sale of
the Securities upon the occurrence of an Event of Default,
or with regard to other actions taken by ING with respect to
the sale or disposition of the Securities pursuant to the
Security Agreement and Credit Agreement.
1.5 During the term of the Loan, Borrower shall
deliver to Lender promptly (but subject to any rights in
favor of ING under the Security Agreement), amounts equal to
any and all amounts (i) paid as distributions by the issuers
of the Securities to the holders thereof, and (ii) paid upon
redemption of any of the Securities to the holders thereof,
regardless of whether any such distributions or amounts paid
upon redemption are received by Borrower. If the Securities
are pledged to ING pursuant to the Security Agreement, (i)
Borrower shall have the right to pledge to ING on the same
basis as the Securities are pledged, any and all dividends
and distributions made in respect of the Securities and all
securities received on account of the Securities which,
pursuant to the Security Agreement, are required to be
pledged to ING, and (ii) Borrower shall promptly transfer to
Lender, securities identical to any securities received on
account of the Securities, whether or not pledged to ING.
1.6 Within five (5) business days after Lender
has given Borrower and ING written notice of demand
therefor, but in no event more than two (2) years after the
date hereof, Borrower will transfer the Securities,
aggregating 2,951,000 Shares, to the name of Lender and
deliver the Certificates (or an identical number of
identical Shares) to Lender at 100 South Bedford Road, Mt.
Kisco, New York 10549 and the Loan under this agreement
shall terminate. If Borrower defaults under this agreement
and fails to transfer ownership or deliver the Certificates
for any reason, including, without limitation, because the
Securities are pledged to ING in accordance with Section 1.4
hereof, Borrower shall pay to Lender, as liquidated damages,
an amount equal to the then current Market Value of the
Securities (as hereinafter defined) plus a default penalty
in the amount of five percent (5%) of the then current
Market Value of the Securities. For purposes of this
Section 1.6, "Market Value" shall mean, on any date
specified herein, the amount per Share equal to (a) the last
sale price of a Share, regular way, on such date, or if no
such sale takes place on such date, the average of the
closing bid and asked prices thereof on such date, in each
case as officially reported on the principal national
securities exchange on which the Securities are then listed
or admitted to trading, or (b) if the Securities are not
then listed or admitted to trading on any national
securities exchange but are designated as a national market
system security by the NASD, the last trading price of a
Share on such date, or (c) if there shall have been no
trading on such date or if the Securities are not so
designated, the average of the closing bid and asked prices
of a Unit on such date as shown by the NASDAQ system, or (d)
if the Securities are not then listed or admitted to trading
on any national exchange or quoted in the over-the-counter
market, the higher of (x) the book value per Share or (y)
the fair market value thereof determined in good faith by
the Board of Directors of Lender as of a date which is not
more than 15 days prior to the date as of which the
determination is to be made.
1.7 Borrower shall have the right at any time and
from time to time to prepay the Loan in whole or in part
without penalty.
2. Representations by Borrower.
Borrower represents and warrants to ING and Lender
as set forth in Sections 2.1 through 2.6, and covenants and
agrees with Lender and ING as set forth in Section 2.7,
that, with respect to the Original Letter Agreement, as of
December 21, 1995, and with respect to the Amended and
Restated Letter Agreement, as of the date hereof:
2.1 Borrower is a corporation, duly incorporated,
validly existing and in good standing under the laws of the
State of New York.
2.2 The execution, delivery and performance of
the Original Letter Agreement and this Amended and Restated
Letter Agreement are within Borrower's corporate powers,
have been duly authorized by all necessary corporate action,
and have been fully executed and delivered by Borrower.
2.3 Borrower is not a party to any contract or
agreement or subject to any restriction which materially and
adversely affects its business, assets or financial
condition. Neither the execution, delivery and performance
of the terms and provisions of the Original Letter Agreement
nor this Amended and Restated Letter Agreement will be
contrary to the provisions of, or constitute a default
under, any law, rule or regulation applicable to Borrower,
the Certificate of Incorporation of Borrower or any
agreement to which Borrower is a party or to which any of
its property may be subject.
2.4 Each of the Original Letter Agreement and
this Amended and Restated Letter Agreement constitutes the
legal, valid and binding obligation of Borrower enforceable
against Borrower in accordance with its terms.
2.5 On December 21, 1995, Borrower, a transferor
who had rights in the Securities within the meaning of
Section 8-321(2) of the Uniform Commercial Code as in effect
in the State of New York (the "UCC"), transferred its
interest in the Securities to ING within the meaning of
Sections 8-313 and 8-301 of the UCC, and accordingly, ING
acquired a perfected security interest in the Securities,
and all proceeds thereof, pursuant to Section 8-321(2) of
the UCC, securing the Obligations (as defined in the Credit
Agreement).
2.6 Promptly following a request by either ING or
Lender, Borrower shall execute, deliver and perform all such
additional documents, instruments and certificates and take
all such other action necessary to enable Lender and ING to
execute or exercise and enforce its rights hereunder or
thereunder.
3. Representations by Lender.
Lender represents and warrants to Borrower and ING
as set forth in Sections 3.1 through 3.4, and covenants and
agrees with Borrower and ING as set forth in Section 3.5,
that with respect to the Original Letter Agreement, as of
December 21, 1995, and with respect to the Amended and
Restated Letter Agreement, as of the date hereof:
3.1 Lender is a Delaware limited partnership,
duly organized, validly existing and in good standing under
the laws of the State of Delaware.
3.2 On December 21, 1995, Lender transferred its
interest in the Securities to Borrower within the meaning of
Sections 8-301 and 8-313 of the UCC.
3.3 Lender is not a party to any contract or
agreement or subject to any restriction which materially
adversely affects its business, assets or financial
condition. Neither the execution, delivery and performance
of the terms and provisions of the Original Letter Agreement
nor this Amended and Restated Letter Agreement will be
contrary to the provisions of, or constitute a default
under, any law, rule or regulation applicable to Lender,
Lender's organizational documents or any agreement to which
Lender is a party or to which any of its property may be
subject.
3.4 Each of the Original Letter Agreement and
this Amended and Restated Letter Agreement constitutes the
legal, valid and binding obligation of Lender enforceable
against Lender in accordance with its terms.
3.5 Promptly following a request by either ING or
Borrower, Lender shall execute, deliver and perform all such
additional documents, instruments and certificates and take
all such other action necessary to enable Borrower and ING
to execute or exercise and enforce its rights hereunder or
thereunder.
4. Governing Law. THIS AMENDED AND RESTATED LETTER
AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE
WITH THE LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES.
5. Consent to Jurisdiction. THE PARTIES HERETO AGREE
THAT ALL DISPUTES BETWEEN THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AMENDED AND
RESTATED LETTER AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE
OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK, BUT
SUCH PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK
COUNTY, NEW YORK. EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION IN ANY DISPUTE THAT IT MAY HAVE TO THE LOCATION OF
THE COURT CONSIDERING SUCH DISPUTE.
6. Waiver of Jury Trial. EACH OF THE PARTIES
HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN ANY OF THE PARTIES ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM UNDER THIS AMENDED AND RESTATED
LETTER AGREEMENT. INSTEAD, ANY SUCH DISPUTE RESOLVED IN
COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
7. Amendments. This Amended and Restated Letter
Agreement may not be amended except in a writing signed by
each of the parties hereto.
8. Successors and Assigns. This Amended and Restated
Letter Agreement shall be binding upon and shall inure to
the benefit of Borrower, Lender and ING and their respective
successors and assigns, provided, that neither Lender nor
Borrower may assign its rights or obligations hereunder
without the prior written consent of ING.
9. Inducement for ING. The parties acknowledge and
agree that this Amended and Restated Letter Agreement is a
material inducement to ING making loans to Borrower, and
that a breach of a representation or covenant hereunder
shall constitute an Event of Default under (and as defined
in) the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be signed by their representatives
thereunto duly authorized, all as of the date first above
written.
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale Investors Corp., Inc.,
general partner
____________________________________
Edward E. Mattner
President
Accepted and Agreed
this 28th day of December, 1995
TORTOISE CORP.
By:_________________________
Edward E. Mattner
President
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:_________________________
Name:
Title:
[Signature Page to Amended and Restated Letter Agreement
between High River Limited Partnership, Tortoise Corp. and
Internationale Nederlanden (U.S.) Capital Corporation]
