EXHIBIT 4.14
Form of
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
RJR Nabisco Holdings Capital Trust [ ]
Dated as of __________, 1998
TABLE OF CONTENTS
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Page
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ARTICLE 1
Definitions
Section 1.01. Definitions................................ 2
ARTICLE 2
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application........... 8
Section 2.02. Lists of Holders of Preferred Securities... 9
Section 2.03. Reports by the Institutional Trustee....... 9
Section 2.04. Periodic Reports to Institutional Trustee.. 9
Section 2.05. Evidence of Compliance with Conditions
Precedent.................................. 9
Section 2.06. Events of Default; Waiver.................. 9
Section 2.07. Disclosure of Information.................. 12
ARTICLE 3
Organization
Section 3.01. Name....................................... 12
Section 3.02. Office..................................... 12
Section 3.03. Issuance of the Trust Securities........... 12
Section 3.04. Purchase of Debentures..................... 13
Section 3.05. Purpose.................................... 14
Section 3.06. Authority.................................. 14
Section 3.07. Title to Property of the Trust............. 14
Section 3.08. Powers and Duties of the Regular Trustees.. 14
Section 3.09. Prohibition of Actions by Trust and
Trustees................................... 17
Section 3.10. Powers and Duties of the Institutional
Trustee.................................... 18
Section 3.11. Delaware Trustee........................... 20
Section 3.12. Certain Rights and Duties of the
Institutional Trustee...................... 21
Section 3.13. Registration Statement and Related
Matters.................................... 23
Section 3.14. Filing of Amendments to Certificate of
Trust...................................... 25
Section 3.15. Execution of Documents by Regular
Trustees................................... 25
Section 3.16. Trustees Not Responsible for Recitals or
Issuance of Securities..................... 25
Section 3.17. Duration of Trust.......................... 25
ARTICLE 4
Sponsor
Section 4.01. Purchase of Common Securities by Sponsor... 25
Section 4.02. Expenses................................... 25
ARTICLE 5
Trustees
Section 5.01. Number of Trustees; Qualifications......... 26
Section 5.02. Appointment, Removal and Resignation of
Trustees................................... 29
Section 5.03. Vacancies among Trustees................... 31
Section 5.04. Effect of Vacancies........................ 31
Section 5.05. Meetings................................... 31
Section 5.06. Delegation of Power........................ 32
Section 5.07. Other Activities........................... 32
ARTICLE 6
Distributions
Section 6.01. Distributions.............................. 33
ARTICLE 7
Issuance of Securities
Section 7.01. General Provisions Regarding Securities.... 33
ARTICLE 8
Termination of Trust
Section 8.01. Termination of Trust....................... 35
ARTICLE 9
Transfer of Interests
Section 9.01. Transfer of Securities..................... 35
Section 9.02. Transfer of Certificates................... 36
Section 9.03. Deemed Security Holders.................... 36
Section 9.04. Book Entry Interests....................... 37
Section 9.05. Notices to Holders of Certificates......... 38
Section 9.06. Appointment of Successor Clearing Agency... 38
Section 9.07. Definitive Preferred Securities
Certificates............................... 38
Section 9.08. Mutilated, Destroyed, Lost or Stolen
Certificates............................... 38
ARTICLE 10
Limitation of Liability; Indemnification
Section 10.01. Exculpation................................ 39
Section 10.02. Indemnification............................ 40
ARTICLE 11
Accounting
Section 11.01. Fiscal Year................................ 40
Section 11.02. Certain Accounting Matters................. 40
Section 11.03. Banking.................................... 41
Section 11.04. Withholding................................ 41
ARTICLE 12
Amendments and Meetings
Section 12.01. Amendments................................. 42
Section 12.02. Meetings of the Holders of Securities;
Action by Written Consent.................. 43
ARTICLE 13
Representations of Institutional Trustee
and Delaware Trustee
Section 13.01. Representations and Warranties of
Institutional Trustee.......................44
ARTICLE 14
Miscellaneous
Section 14.01. Notices.................................... 46
Section 14.02. Undertaking for Costs...................... 47
Section 14.03. Governing Law.............................. 47
Section 14.04. Headings................................... 47
Section 14.05. Partial Enforceability..................... 47
Section 14.06. Counterparts............................... 48
Section 14.07. Intention of the Parties................... 48
Section 14.08. Successors and Assigns..................... 48
EXHIBIT A CERTIFICATE OF TRUST OF RJR NABISCO HOLDINGS CAPITAL
TRUST [ ]
EXHIBIT B TERMS OF PREFERRED SECURITIES
EXHIBIT C TERMS OF COMMON SECURITIE
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated
and effective as of __________, 1998 by the undersigned trustees (together
with all other Persons from time to time duly appointed and serving as
trustees in accordance with the provisions of this Declaration, the
"Trustees"), RJR Nabisco Holdings Corp., a Delaware corporation, as trust
sponsor ("Holdings" or the "Sponsor"), and by the holders, from time to time,
of undivided beneficial interests in the assets of the Trust to be issued
pursuant to this Declaration.
WHEREAS, the Sponsor and the Trustees entered into a
Declaration of Trust dated as of __________, 1998 (the "Original Declaration")
in order to establish a statutory business trust (the "Trust") under the
Business Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust (the "Certificate of Trust")
of the Trust was filed with the office of the Secretary of State of the State
of Delaware on __________, 1998;
WHEREAS, the Trustees and the Sponsor desire to continue the
Trust pursuant to the Business Trust Act for the purpose of, as described more
fully in Section 3.03 hereof, (i) issuing and selling Preferred Securities (as
defined herein) representing undivided beneficial interests in the assets of
the Trust in exchange for cash and investing the proceeds thereof in
Debentures (as hereinafter defined) of Holdings issued under the Indenture (as
hereinafter defined) to be held as assets of the Trust and (ii) issuing and
selling Common Securities (as defined herein) representing undivided
beneficial interests in the assets of the Trust to Holdings in exchange for
cash and investing the proceeds thereof in additional Debentures of Holdings
issued under the Indenture to be held as assets of the Trust; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
business trust, the Trustees declare that all assets referred to in clauses
(i) and (ii) of the previous Whereas clause purchased by the Trust will be
held in trust for the benefit of the Holders (as defined herein) from time to
time, of the Certificates (as defined herein) representing undivided
beneficial interests in the assets of the Trust issued hereunder, subject to
the provisions of this Declaration.
ARTICLE 1
Definitions
Section 1.01. Definitions.
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.01;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Amended and Restated Declaration of Trust (including Exhibits A, B and
C hereto (the "Exhibits")) as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Appointment Event" means an event defined in the terms of the
Preferred Securities set forth in Exhibit B which entitles the Holders of a
Majority in liquidation amount of the Preferred Securities to appoint a Special
Regular Trustee.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.04.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Certificate of Trust" has the meaning set forth in the second
WHEREAS clause above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depository for the Preferred Securities and in whose name or in the name of a
nominee of that organization, shall be registered a Global Certificate and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the Closing Date as specified in the
Underwriting Agreement which date is also the date of execution and delivery
of this Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation. A reference to a specific section
((Sec.)) of the Code refers not only to such specific section but also to any
corresponding provision of any federal tax statute enacted after the date of
this Declaration, as such specific section or corresponding provision is in
effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.01(b).
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security substantially in the form
of Annex I to Exhibit C.
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employees,
representatives or agents of Holdings or its Affiliates and (iii) the Holders
from time to time of the Securities.
"Debenture Trustee" means The Bank of New York, as trustee under
the Indenture until a successor is appointed thereunder and thereafter means
such successor trustee.
"Debentures" means the series of Junior Subordinated Debentures
issued by Holdings under the Indenture to the Institutional Trustee and
entitled the "_____% Junior Subordinated Debentures, Series A, due [ ]".
"Delaware Trustee" has the meaning set forth in Section
5.01(a)(3).
"Depositary Agreement" means the agreement among the Trust, the
Institutional Trustee and DTC dated as of the Closing Date, as the same may
be amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Expiration Date" has the meaning set forth in the Prospectus.
"Fiscal Year" has the meaning specified in Section 11.01.
"Global Certificate" has the meaning set forth in Section 9.04.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Indenture" means the Indenture dated as of September 21, 1995
between Holdings and the Debenture Trustee, as supplemented by the First
Supplemental Indenture thereto dated as of September 21, 1995 and the [
] Supplemental Indenture thereto dated as of __________, pursuant to which
the Debentures are to be issued.
"Indenture Event of Default" means any event or condition
defined as an "Event of Default" with respect to the Debentures under Section
6.01 of the Indenture has occurred and is continuing.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.01(c) and having the duties
set forth for the Institutional Trustee herein.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning specified in Section 3.06(g).
"Liquidation Distribution" has the meaning set forth in
Exhibits B and C hereto establishing the terms of the Securities.
"Majority in liquidation amount of the Securities" means,
except as otherwise required by the Trust Indenture Act and except as provided
in the penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents more than 50% of the liquidation amount of all outstanding
Securities of such class.
"Ministerial Action" has the meaning set forth in the terms of
the Securities as set forth in Exhibits B and C hereto.
"Option Closing Date" means the Option Closing Date as
specified in the Underwriting Agreement.
"Original Declaration" has the meaning set forth in the first
WHEREAS clause above.
"Paying Agent" has the meaning specified in Section 3.08(i).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee" means the Guarantee Agreement to be dated
as of ______, 199_ of Holdings in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section
7.01(b).
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate
in fully registered form representing a Preferred Security substantially in
the form of Annex I to Exhibit B.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Institutional
Trustee and the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned
subsidiary of Holdings or any other Person which owns, directly or indirectly,
100% of the outstanding voting securities of Holdings.
"Resignation Request" has the meaning specified in Section
5.02(d).
"Responsible Officer" means, with respect to the Institutional
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Institutional Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"RJR Nabisco Holdings Capital Trust" shall mean any
statuatory busines trust created under the laws of the State of Delaware
specified in the applicable board resolution or supplemental indenture
establishing a particular series of Securities pursuant to Section 2.3 of
the Indenture.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Exhibits B and C hereto.
"Special Regular Trustee" means a Regular Trustee appointed by
the Holders of a Majority in liquidation amount of the Preferred Securities in
accordance with Section 5.02(a)(ii)(B).
"Sponsor" or "Holdings" means RJR Nabisco Holdings Corp., a
Delaware corporation, or any successor entity in a merger, in its capacity as
sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in
Section 5.02(b)(ii).
"Successor Institutional Trustee" means a successor Trustee
possessing the qualifications to act as Institutional Trustee under Section
5.01(c).
"10% in liquidation amount of the Securities" means, except as
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents 10% or more of the liquidation amount of all outstanding Securities
of such class.
"Treasury Regulations" means the income tax regulations
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriting Agreement" means the Underwriting Agreement dated
as of __________, 199_ among the Trust and the Sponsor, as representative of
the several underwriters named therein.
ARTICLE 2
Trust Indenture Act
Section 2.01. Trust Indenture Act; Application. (a) This
Declaration is subject to the provisions of the Trust Indenture Act that are
required to be part of this Declaration and shall, to the extent applicable,
be governed by such provisions;
(b) if and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Section Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control;
(c) the Institutional Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be
the only Trustee which is a trustee for the purposes of the Trust Indenture
Act; and
(d) the application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.02. Lists of Holders of Preferred Securities. (a)
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide the Institutional Trustee with such information as is required under
Section 312(a) of the Trust Indenture Act at the times and in the manner
provided in Section 312(a); and
(b) the Institutional Trustee shall comply with its obligations
under Section Section 310(b), 311 and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by the Institutional Trustee. Within 60
days after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form, in the manner and at the times
provided by Section 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
Section 2.04. Periodic Reports to Institutional Trustee. Each
of the Sponsor and the Regular Trustees on behalf of the Trust shall provide
to the Institutional Trustee, the Commission and the Holders of the
Securities, as applicable, such documents, reports and information as required
by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act (provided that any certificate to be provided pursuant to Section
314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the
end of each Fiscal Year).
Section 2.05. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Institutional Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration which relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to Section 314(c)
shall comply with Section 314(e) of the Trust Indenture Act.
Section 2.06. Events of Default; Waiver. (a) Subject to Section
2.06(c), Holders of Preferred Securities may by vote of at least a Majority in
liquidation amount of the Preferred Securities (A) in accordance with the terms
of the Preferred Securities, direct the time, method and place of conducting
any proceeding for any remedy available to the Institutional Trustee (as holder
of the Debentures, and in the case of any of RJR Nabisco Holdings Capital
Trust holding Debentures issued under the Indenture, voting with the holders
of preferred securities of such other RJR Nabisco Holdings Capital Trust), or
exercising any trust or power conferred upon the Institutional Trustee by this
Declaration, or (B) on behalf of the Holders of all Preferred Securities, waive
any past Event of Default in respect of the Preferred Securities and its
consequences, provided that if the Event of Default arises out of an Indenture
Event of Default:
(i) which is not waivable under the Indenture, the Event of Default
under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures, or (2) each holder of Debentures, the Event of
Default under this Declaration may only be waived by, in the case of
clause (1) above, the vote of Holders of Preferred Securities representing
such specified percentage of the aggregate liquidation amount of the
Preferred Securities (as holder of the Debentures, and in the case of any
of RJR Nabisco Holdings Capital Trust holding Debentures issued under the
Indenture, voting with the holders of preferred securities of such other
RJR Nabisco Holdings Capital Trust); or, in the case of clause (2) above,
each Holder of Preferred Securities.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising
therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
default or Event of Default with respect to the Preferred Securities or impair
any right consequent thereon.
(b) Subject to Section 2.06(c), Holders of Common Securities may by
vote of at least a Majority in liquidation amount of the Common Securities,
(A) in accordance with the terms of the Common Securities, direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee by this Declaration or (B) on behalf of the Holders of
all of the Common Securities, waive any past Event of Default with respect to
the Common Securities and its consequences, provided that, if the Event of
Default arises out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below, the Event of Default
under this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures or (2) each holder of Debentures, except where
the holders of the Common Securities are deemed to have waived such Event
of Default under this Declaration as provided below, the Event of Default
under this Declaration may only be waived by, in the case of clause (1)
above, the vote of Holders of Common Securities representing such
specified percentage of the aggregate liquidation amount of the Common
Securities, or, in the case of clause (2) above, each holder of Common
Securities; and
provided, further that, each Holder of Common Securities will be
deemed to have waived any Event of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived by the Holders of Preferred
Securities as provided in this Declaration or otherwise eliminated and until
all Events of Default with respect to the Preferred Securities have been so
cured, waived or otherwise eliminated, the Institutional Trustee will be
deemed to be acting solely on behalf of the Holders of the Preferred
Securities and only the Holders of the Preferred Securities will have the
right to direct the Institutional Trustee in accordance with the terms of this
Declaration or the Securities. In the event that any Event of Default with
respect to the Preferred Securities is waived by the Holders of Preferred
Securities as provided in this Declaration, the Holders of Common Securities
agree that such waiver shall also constitute the waiver of such Event of
Default with respect to the Common Securities for all purposes under this
Declaration without any further act, vote or consent of the Holders of the
Common Securities. Subject to the foregoing provisions of this Section
2.06(b), upon such waiver, any such default shall cease to exist and any Event
of Default with respect to the Common Securities arising therefrom shall be
deemed to have been cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment of
Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the
respective payment dates therefor, or to institute suit for the enforcement of
any such payment on or after such payment dates, shall not be impaired without
the consent of each such Holder.
(d) As provided in the terms of the Securities set forth in
Exhibits B and C hereto, a waiver of an Indenture Event of Default by the
Institutional Trustee at the written direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration in respect of the Securities.
Section 2.07. Disclosure of Information. The disclosure of
information as to the names and addresses of the Holders of the Securities in
accordance with Section 312 of the Trust Indenture Act, regardless of the
source from which such information was derived, shall not be deemed to be a
violation of any existing law, or any law hereafter enacted which does not
specifically refer to Section 312 of the Trust Indenture Act, nor shall the
Institutional Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
ARTICLE 3
Organization
Section 3.1. Name. The Trust continued by this Declaration is
named "RJR Nabisco Holdings Capital Trust [ ]" as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
Section 3.02. Office. The address of the principal office of
the Trust is c/o RJR Nabisco Holdings Corp., 1301 Avenue of the Americas, New
York, New York 10019. Upon ten days written notice to the Holders, the
Regular Trustees may change the location of the Trust's principal office. The
name of the registered agent and office of the Trust in the State of Delaware
is __________________________. At any time, the Regular Trustees may
designate another registered agent and/or registered office.
Section 3.03. Issuance of the Trust Securities. On __________,
199_ the Sponsor, on behalf of the Trust and pursuant to the Original
Declaration, executed and delivered the Underwriting Agreement. On the
Closing Date and contemporaneously with the execution and delivery of this
Declaration, the Regular Trustees, on behalf of the Trust, shall execute and
deliver to (i) the underwriters named in the Underwriting Agreement, a Global
Certificate, registered in the name of the nominee of the initial Clearing
Agency as specified in Section 9.04, in an aggregate amount of ___________
Preferred Securities having an aggregate liquidation amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$___________, and (ii) the Sponsor, Common Securities Certificates, registered
in the name of the Sponsor, in an aggregate amount of ________ Common
Securities having an aggregate liquidation amount of $____________, against
receipt of the aggregate purchase price of such Common Securities of
$___________.(1) In the event and to the extent the over allotment option
granted by the Trust pursuant to the Underwriting Agreement is exercised by
such underwriters, on the Option Closing Date the Regular Trustees, on behalf
of the Trust, shall execute and deliver to such underwriters a Global
Certificate, registered in the name of the nominee of the initial Clearing
Agency as specified in Section 9.04, in an aggregate amount of up to
___________ Preferred Securities having an aggregate liquidation amount of up
to $___________, against receipt of the aggregate purchase price of such
Preferred Securities of up to $____________.
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(1)See Section 4.01.
Section 3.04. Purchase of Debentures.
On the Closing Date and contemporaneously with the execution and
delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall purchase from the Sponsor with the proceeds received by the Trust from
the sale of the Securities on such date pursuant to Section 3.03, at a purchase
price of 100% of the principal amount thereof, Debentures, registered in the
name of the Institutional Trustee and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price for such
Debentures, the Regular Trustee, on behalf of the Trust, shall deliver or
cause to be delivered to the Sponsor the sum of $___________. In the event
the over allotment option granted by the Trust with respect to the Preferred
Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, on the Option Closing Date the Regular Trustees,
on behalf of the Trust, shall purchase from the Sponsor with the proceeds
received by the Trust from the sale of the Preferred Securities on such date
pursuant to Section 3.03, at a purchase price of 100% of the principal amount
thereof, additional Debentures, registered in the name of the Institutional
Trustee and having an aggregate principal amount of up to $__________, and, in
satisfaction of the purchase price for such Debentures, the Regular Trustees,
on behalf of the Trust, shall deliver or cause to be delivered to the Sponsor
an amount equal to the aggregate principal amount of the Debentures being
purchased.
Section 3.05. Purpose. The exclusive purposes and functions of
the Trust are: (a)(i) to issue and sell Preferred Securities in exchange for
cash and use the proceeds of such sales to acquire from Holdings Debentures
issued under the Indenture having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities so issued and sold;
(ii) to enter into such agreements and arrangements as may be necessary in
connection with the sale of Preferred Securities to the initial purchasers
thereof (including the Underwriting Agreement) and to take all action, and
exercise such discretion, as may be necessary or desirable in connection
therewith and to file such registration statements or make such other filings
under the Securities Act, the Exchange Act or state securities or "Blue Sky"
laws as may be necessary or desirable in connection therewith and the issuance
of the Preferred Securities; and (iii) to issue and sell Common Securities to
Holdings for cash and use the proceeds of such sale to purchase as trust
assets an equal aggregate principal amount of Debentures issued under the
Indenture; and (b) except as otherwise limited herein, to engage in only those
other activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets or at any time while the Securities are outstanding, otherwise
undertake (or permit to be undertaken) any activity that would result in or
cause the Trust to be treated as anything other than a grantor trust for
United States federal income tax purposes.
Section 3.06. Authority. Subject to the limitations provided
in this Declaration and to the specific duties of the Institutional Trustee,
the Regular Trustees shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by the Regular Trustees in
accordance with their powers shall constitute the act of and serve to bind the
Trust and an action taken by the Institutional Trustee in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required
to inquire into the authority of the Trustees to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and
authority of the Trustees as set forth in this Declaration.
Section 3.07. Title to Property of the Trust. Unless
otherwise provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. The Holders of Certificates shall not
have legal title to any part of the assets of the Trust, but shall have an
individual undivided beneficial interest in the assets of the Trust.
Section 3.08. Powers and Duties of the Regular Trustees. The
Regular Trustees shall have the exclusive power, authority and duty to cause
the Trust, and shall cause the Trust, to engage in the following activities:
(a) to issue Preferred Securities and Common Securities, in each
case in accordance with this Declaration; provided, however, that the Trust may
issue no more than one class or series of Preferred Securities and no more
than one class or series of Common Securities, and, provided further, there
shall be no interests in the Trust other than the Securities and the issuance
of Securities shall be limited to (x) a one-time, simultaneous issuance of both
Preferred Securities and Common Securities on the Closing Date and (y) any
subsequent issuance of Preferred Securities on the Option Closing Date
pursuant to an exercise of the over-allotment option granted to the
underwriters in the Underwriting Agreement;
(b) in connection with the issuance of the Preferred Securities,
at the direction of the Sponsor, to effect or cause to be effected the
filings, and to execute or cause to be executed, the documents, set forth in
Section 3.13 and to execute, deliver and perform on behalf of the Trust the
Depositary Agreement;
(c) to acquire as trust assets Debentures with the proceeds of the
sale of Preferred Securities and Common Securities; provided, however, the
Regular Trustees shall cause legal title to all of the Debentures to be vested
in, and the Debentures to be held of record in the name of, the Institutional
Trustee for the benefit of the Holders of the Preferred Securities and the
Common Securities;
(d) subject to Section 3.13, to cause the Trust to enter into the
Underwriting Agreement and such other agreements and arrangements as may be
necessary or desirable in connection with the sale of Preferred Securities to
the initial purchasers thereof and the consummation thereof, and to take all
action, and exercise all discretion, as may be necessary or desirable in
connection with the consummation thereof;
(e) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Special Event provided, that the Regular
Trustees shall consult with the Sponsor and the Institutional Trustee before
taking or refraining to take any Ministerial Action in relation to a Special
Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions, and exchanges, and to issue
relevant notices to Holders of the Preferred Securities and Common Securities
as to such actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against
the Trust ("Legal Action"), unless pursuant to Section 3.08(e), the
Institutional Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate to the Institutional Trustee required
by Section 314(a)(4) of the Trust Indenture Act which certificate may be
executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to carry
out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Institutional Trustee for such purposes;
(m) to take all actions and perform such duties as may be required
of the Regular Trustee pursuant to this Declaration, including, without
limitation, the terms of the Securities set forth in Exhibits B and C hereto;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust has been
created;
(p) to take all action, not inconsistent with this Declaration or
with applicable law, which the Regular Trustees determine in their discretion
to be reasonable and necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.08, in order that:
(i) the Trust will not be deemed to be an Investment Company required
to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States federal
income tax purposes as an association taxable as a corporation or a
partnership and will be treated as a grantor trust for United States
federal income tax purposes; and
(iii) the Trust will comply with any requirements imposed by any
taxing authority on holders of instruments treated as indebtedness for
United States federal income tax purposes;
provided that such action does not adversely affect the interests of
Holders;
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(r) subject to the requirements of Rule 3a-7 and Section 317(b)
of the Trust Indenture Act, to appoint one or more Paying Agents in addition
to the Institutional Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.08 in a manner which is consistent with the purposes and functions
of the Trust set out in Section 3.05 and the Regular Trustees shall not take
any action which is inconsistent with the purposes and functions of the Trust
set forth in Section 3.05.
Subject to this Section 3.08, the Regular Trustees shall have
none of the powers nor any of the authority of the Institutional Trustee set
forth in Section 3.10.
Section 3.09. Prohibition of Actions by Trust and Trustees.
The Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Institutional Trustee) shall
not:
(a) invest any proceeds received by the Trust from holding the
Debentures but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, the Trust other than the Securities;
(g) incur any indebtedness for borrowed money; or
(h) (i) direct the time, method and place of exercising any trust
or power conferred upon the Debenture Trustee with respect to the Debentures,
(ii) waive any past default that is waivable under this Declaration or the
Indenture, (iii) exercise any right to rescind or annul any declaration that
the principal of all of the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of this Declaration, the
Indenture or the Debentures, where such consent shall be required, unless in
the case of this clause (h) the Institutional Trustee shall have received an
unqualified opinion of nationally recognized independent tax counsel
recognized as expert in such matters to the effect that such action will not
cause the Trust to be classified for United States federal income tax purposes
as an association taxable as a corporation or partnership and that the Trust
will continue to be classified as a grantor trust for United States federal
income tax purposes.
Section 3.10. Powers and Duties of the Institutional Trustee.
(a) The Institutional Trustee shall:
(i) on the receipt of payments of funds made in respect of the
Debentures held by the Trust, without any further acts of the
Institutional Trustee or the Regular Trustees, promptly make payments
to the Holders of the Preferred Securities and Common Securities in
accordance with Section 6.01. Funds held in the Trust shall remain
uninvested, and without liability for interest thereon, until
disbursed in accordance with this Declaration;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Preferred Securities
and the Common Securities to the extent the Debentures are redeemed or
mature;
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the distribution pursuant to terms of the
Securities of Debentures to Holders of Securities upon the occurrence of a
Special Event; and
(iv) have the legal power to exercise all of the rights, powers and
privileges of a holder of the Debentures under the Indenture and, if an
Event of Default occurs and is continuing, the Institutional Trustee,
subject to Section 2.06(b), shall for the benefit of the Holders of the
Securities, enforce its rights as holder of the Debentures under the
Indenture, subject to the rights of the Holders of the Preferred Securities
pursuant to the terms of this Declaration and the Trust Indenture Act.
(b) The Institutional Trustee shall take all actions and perform
such duties as may be specifically required of the Institutional Trustee
pursuant to the terms of this Declaration, including, without limitation, the
Securities set forth in Exhibits B and C hereto.
(c) The Institutional Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default or the Institutional
Trustee's duties and obligations under this Declaration or the Trust Indenture
Act.
(d) All moneys and all Debentures held by the Institutional
Trustee for the benefit of the Holders of the Securities will not be
subject to any right, charge, security interest, lien or claim of any kind
in favor of, or for the benefit of that Institutional Trustee or its agents
or their creditors.
(e) The Institutional Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities, transmit by mail,
first class postage prepaid, to the holders of the Securities, as their names
and addresses appear upon the register, notice of all defaults with respect to
the Securities known to the Institutional Trustee, unless such defaults shall
have been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 3.10(g) being hereby defined to be an Indenture Event
of Default, not including any periods of grace provided for in the Indenture
and irrespective of the giving of any notice provided therein); provided,
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Debentures, the Institutional
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers, of the Institutional Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Securities. The Institutional Trustee shall not be deemed to
have knowledge of any default, except (i) a default in the payment of
principal, premium or interest on the Debentures or (ii) any default as to
which the Institutional Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Declaration shall
have obtained written notice.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds thereof
distributed to the Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Institutional Trustee has been appointed and
accepted that appointment in accordance with Article 5.
(g) The Institutional Trustee shall act as paying agent in respect
of the Common Securities and, if the Preferred Securities are not in book
entry only form, the Preferred Securities subject to Section 3.08(r), may
authorize one or more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the Trust with
respect to the Preferred Securities. Any such Paying Agent shall comply with
Section 317(b) of the Trust Indenture Act. Any Paying Agent may be removed
by the Institutional Trustee, after consultation with the Regular Trustees, at
any time and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Institutional Trustee, subject to Section
3.08(r).
(h) The Institutional Trustee shall give prompt written notice to
the Holders of the Securities of any notice received by it from Holdings of its
election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
(i) Subject to this Section 3.10, the Institutional Trustee shall
have none of the powers or the authority of the Regular Trustees set forth in
Section 3.08.
(j) The Institutional Trustee shall exercise the powers, duties and
rights set forth in this Section 3.10 and Section 3.12 in a manner which is
consistent with the purposes and functions of the Trust set out in Section 3.05
and the Institutional Trustee shall not take any action which is inconsistent
with the purposes and functions of the Trust set forth in Section 3.05.
Section 3.11. Delaware Trustee. Notwithstanding any other
provision of this Declaration other than Section 5.01(a)(3), the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities of the Trustees described
in this Declaration. Except as set forth in Section 5.01(a)(3), the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act. No implied covenants
or obligations shall be read into this Declaration against the Delaware
Trustee.
Section 3.12. Certain Rights and Duties of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of an Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration, and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.06), the Institutional
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Institutional Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Institutional Trustee shall
be determined solely by the express provisions of this Declaration,
and the Institutional Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Institutional Trustee;
and
(B) in the absence of bad faith on the part of the Institutional
Trustee, the Institutional Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Institutional Trustee, the Institutional Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Institutional
Trustee, unless it shall be proved that the Institutional Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Institutional Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders as provided herein relating to the time,
method and place of conducting any proceeding for any remedy available to
the Institutional Trustee hereunder or under the Indenture, or exercising
any trust or power conferred upon the Institutional Trustee under this
Declaration; and
(iv) no provision of this Declaration shall require the Institutional
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable ground
for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or adequate
indemnity against such risk or liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.12(a) and 3.12(b):
(i) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Institutional Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part and, if the Trust
is excluded from the definition of Investment Company solely by means of
Rule 3a-7, subject to the requirements of Rule 3a-7, request and rely upon
a certificate, which shall comply with the provisions of Section 314(e) of
the Trust Indenture Act, signed by any two of the Regular Trustees or by an
authorized officer of the Sponsor, as the case may be;
(ii) The Institutional Trustee (A) may consult with counsel (which may
be counsel to the Sponsor or any of its Affiliates and may include any of
its employees) selected by it in good faith and with due care and the
written advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice and opinion and (B)
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(iii) The Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it in good faith and with due care;
(iv) The Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holders, unless such Holders shall have
offered to the Institutional Trustee reasonable security and indemnity
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction; provided that nothing contained in this clause (iv) shall
relieve the Institutional Trustee of the obligation, upon the occurrence of
an Event of Default (which has not been cured or waived) to exercise such
of the rights and powers vested in it by this Declaration, and to use the
same degree of care and skill in this exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs; and
(v) Any action taken by the Institutional Trustee or its agents
hereunder shall bind the Holders of the Securities and the signature of the
Institutional Trustee or its agents alone shall be sufficient and effective
to perform any such action; and no third party shall be required to inquire
as to the authority of the Institutional Trustee to so act, or as to its
compliance with any of the terms and provisions of this Declaration, both
of which shall be conclusively evidenced by the Institutional Trustee's or
its agent's taking such action.
Section 3.13. Registration Statement and Related Matters. In
accordance with the Original Declaration, Holdings and the Trustees have
authorized and directed, and hereby confirm the authorization of, Holdings, as
the sponsor of the Trust, (i) to file with the Commission and execute, in each
case on behalf of the Trust, (a) the Registration Statement on Form S-3 (File
No. 333- ) (the "1933 Act Registration Statement") and any pre-effective
or post-effective amendments to such Registration Statement, relating to the
registration under the Securities Act of the Preferred Securities of the Trust
and (b) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Exchange Act;
(ii) to prepare and file with the New York Stock Exchange ("NYSE") and execute
on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on the
NYSE; (iii) to prepare, file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as Holdings on behalf of
the Trust, may deem necessary or desirable and (iv) to negotiate the terms of
and to execute on behalf of the Trust the Underwriting Agreement. In the
event that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the NYSE or state securities or
blue sky laws, to be executed on behalf of the Trust by the Trustees, the
Regular Trustees, in their capacities as Trustees of the Trust, are hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that the
Institutional Trustee and the Delaware Trustee, in their capacities as
Trustees of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the NYSE or state securities or blue sky
laws. In connection with all of the foregoing, Holdings and each Trustee,
solely in its capacity as Trustee of the Trust, have constituted and
appointed, and hereby confirm the appointment of, John J. Delucca, H. Colin
McBride and Richard G. Russell, and each of them, as his, her or its, as the
case may be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for Holdings or such Trustee or in Holdings's
or such Trustee's name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents and
purposes as Holdings or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their or his or her substitute or substitutes, shall do or cause to
be done by virtue hereof.
Section 3.14. Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State of the State of
Delaware on _______, 1995 is attached hereto as Exhibit A. On or after the
date of execution of this Declaration, the Trustees shall cause the filing with
the Secretary of State of the State of Delaware of such amendments to the
Certificate of Trust as the Trustees shall deem necessary or desirable.
Section 3.15. Execution of Documents by Regular Trustees.
Unless otherwise determined by the Regular Trustees and except as otherwise
required by the Business Trust Act with respect to the Certificate of Trust or
otherwise, a majority of, or if there are only two, both of, the Regular
Trustees are authorized to execute and deliver on behalf of the Trust any
documents which the Regular Trustees have the power and authority to execute
or deliver pursuant to this Declaration.
Section 3.16. Trustees Not Responsible for Recitals or
Issuance of Securities. The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor and the Trustees do
not assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
Section 3.17. Duration of Trust. The Trust, absent termination
pursuant to the provisions of Article 8 hereof, shall have existence until
__________, 20__.
ARTICLE 4
Sponsor
Section 4.01. Purchase of Common Securities by Sponsor. On the
Closing Date, the Sponsor will purchase Common Securities issued by the Trust
at the same time as the Preferred Securities to be issued on such date are
issued, such purchase to be in an amount equal to 3% of the total capital of
the Trust (including, for this purpose the maximum amount of Preferred
Securities, if any, which may be issued on the Option Closing Date pursuant to
the exercise of the over allotment option set forth in the Underwriting
Agreement).
Section 4.02. Expenses. (a) In connection with the purchase of
Debentures by the Trust, the Sponsor (not in its capacity as a holder, if
applicable) shall be responsible for and shall pay for all debts and
obligations (other than with respect to the Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance of the Preferred
Securities to the initial purchasers thereof, the fees and expenses (including
reasonable counsel fees and expenses) of the Trustees (including any amounts
payable under Article 10), the costs and expenses relating to the operation of
the Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the Trust,
the Sponsor (not in its capacity as a Holder, if applicable) will pay any and
all taxes (other than United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and expenses with respect to
such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.02 shall be for
the benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before
proceeding against the Sponsor. The Sponsor agrees to execute such additional
agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 4.02.
ARTICLE 5
Trustees
Section 5.01. Number of Trustees; Qualifications. (a) The
number of Trustees initially shall be five (5). At any time (i) before the
issuance of the Securities, the Sponsor may, by written instrument, increase
or decrease the number of, and appoint, remove and replace the, Trustees, and
(ii) after the issuance of the Securities and except as provided in clause (5)
below and Section 5.02(a)(ii)(B) with respect to the Special Regular Trustee,
the number of Trustees may be increased or decreased solely by, and Trustees
may be appointed, removed or replaced solely by, vote of Holders of Common
Securities representing a Majority in liquidation amount of the Common
Securities voting as a class; provided that in any case:
(1) the number of Trustees shall be at least five (5) unless the
Trustee that acts as the Institutional Trustee also acts as the
Delaware Trustee, in which cases the number of Trustees shall be at
least three (3);
(2) unless a Special Regular Trustee has been appointed (which
appointment shall not impair the right of the Holders of Common
Securities to increase or decrease the number of, or to appoint,
remove or replace, Trustees (other than the Special Regular Trustee)
as provided above), at least a majority of the Trustees shall at all
times be officers, directors or employees of Holdings;
(3) if required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be either a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under the laws of
the State of Delaware, except that if the Institutional Trustee has
its principal place of business in the State of Delaware and otherwise
is permitted to act as a Trustee hereunder under the laws of the State
of Delaware, then the Institutional Trustee shall also be the Delaware
Trustee and Section 3.09 shall have no application;
(4) there shall at all times be a Institutional Trustee hereunder
which shall satisfy the requirements of Section 5.01(c); and
(5) the number of Trustees shall be increased automatically by
one (1) if an Appointment Event has occurred and is continuing and the
Holders of a Majority in liquidation amount of the Preferred
Securities appoint a Special Regular Trustee in accordance with
Section 5.02(a)(ii)(B) and the terms of the Preferred Securities.
Each Trustee shall be either a natural person at least 21 years
of age or a legal entity which shall act through one or more duly appointed
representatives.
(b) The initial Regular Trustees shall be:
John J. Delucca
H. Colin McBride
Richard G. Russell
c/o RJR Nabisco Holding Corp.
1301 Avenue of the Americas
New York, New York 10019
(c) There shall at all times be one Trustee which shall act as
Institutional Trustee. In order to act as Institutional Trustee hereunder,
such Trustee shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then for the purposes of this Section 5.01(c)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
If at any time the Institutional Trustee shall cease to satisfy
the requirements of clauses (i)-(iii) above, the Institutional Trustee shall
immediately resign in the manner and with the effect set out in Section
5.02(d). If the Institutional Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Institutional Trustee and the Holders of the Common Securities (as if such
Holders were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act. The Preferred Guarantee shall be deemed to be
specifically described in this Declaration for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
The initial Trustee which shall serve as the Institutional
Trustee is The Bank of New York, whose address is as set forth in Section
14.01(b).
(d) The initial Trustee which shall serve as the Delaware Trustee
is The Bank of New York (Delaware), a Delaware corporation, whose address is
as set forth in Section 14.01(c).
(e) Any action taken by (i) Holders of Common Securities pursuant
to this Article 5 or (ii) Holders of Preferred Securities pursuant to this
Article 5 to appoint or remove a Special Regular Trustee upon the occurrence
of an Appointment Event, shall be taken at a meeting of Holders of Common
Securities or Preferred Securities, as the case may be, convened for such
purpose or by written consent as provided in Section 12.02.
(f) No amendment may be made to this Section 5.01 which would
change any rights with respect to the number, existence or appointment and
removal of Trustees (other than any Special Regular Trustee), except with the
consent of each Holder of Common Securities.
(g) No amendment may be made to this Section 5.01 or Section
5.02(a)(ii)(B), which would change the rights of Holders of Preferred
Securities to appoint, remove or replace a Special Regular Trustee except with
the consent of each Holder of Preferred Securities.
Section 5.02. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.02(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities,
(A) other than with respect to the Special Regular Trustee,
by vote of the Holders of a Majority in liquidation amount of the
Common Securities voting as a class; and
(B) if an Appointment Event has occurred and is continuing,
one (1) additional Regular Trustee (the "Special Regular
Trustee") may be appointed, who need not be an Affiliate of the
Sponsor, by vote of the Holders of a Majority in liquidation
amount of the Preferred Securities, voting as a class and such
Special Regular Trustee may only be removed (otherwise than by
the operation of Section 5.02(c)), by vote of the Holders of a
Majority in liquidation amount of the Preferred Securities voting
as a class.
(b) (i) The Trustee that acts as Institutional Trustee shall not
be removed in accordance with Section 5.02(a) until a Successor Institutional
Trustee possessing the qualifications to act as Institutional Trustee under
Section 5.01(c) has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional Trustee and
delivered to the Regular Trustees, the Sponsor and the Institutional Trustee
being removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.02(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Section 5.01(a)(3) (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and the Delaware
Trustee being removed.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation, provided that a Special Regular Trustee shall only hold office
while an Appointment Event is continuing and shall cease to hold office
immediately after the Appointment Event pursuant to which the Special Regular
Trustee was appointed and all other Appointment Events cease to be continuing.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the Institutional
Trustee shall be effective until a Successor Institutional Trustee
possessing the qualifications to act as Institutional Trustee under Section
5.01(c) has been appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered to the
Trust, the Sponsor and the resigning Institutional Trustee;
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall be
effective until the 60th day following delivery of the Resignation Request
to the Sponsor and the Trust or such later date specified in the
Resignation Request during which period the Holders of the Preferred
Securities shall have the right to appoint a successor Special Regular
Trustee as provided in this Article 5.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.02 within 60 days after delivery to the Sponsor and the Trust of a
Resignation Request, the resigning Institutional Trustee or Delaware Trustee
may petition any court of competent jurisdiction for appointment of a
Successor Institutional Trustee or Successor Delaware Trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a Successor Institutional Trustee or Successor Delaware Trustee, as the
case may be.
Section 5.03. Vacancies among Trustees. If a Trustee ceases to
hold office for any reason and the number of Trustees is not reduced pursuant
to Section 5.01 or if the number of Trustees is increased pursuant to Section
5.01, a vacancy shall occur. A resolution certifying the existence of such
vacancy by a majority of the Regular Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with the requirements of this Article 5.
Section 5.04. Effect of Vacancies. The death, resignation,
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee, or any one of them, shall not
operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur until such vacancy is filled as provided in this Article
5, the Regular Trustees in office, regardless of their number, shall have all
the powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
Section 5.05. Meetings. Meetings of the Regular Trustees shall
be held from time to time upon the call of any Trustee. Regular meetings of
the Regular Trustees may be held at a time and place fixed by resolution of the
Regular Trustees. Notice of any in-person meetings of the Regular Trustees
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Regular Trustees or
any committee thereof shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement
of the time, place and anticipated purposes of the meeting. The presence
(whether in person or by telephone) of a Regular Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a Regular Trustee
attends a meeting for the express purpose of objecting to the transaction of
any activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the Regular
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Regular Trustees.
Section 5.06. Delegation of Power. (a) Any Regular Trustee
may, by power of attorney consistent with applicable law, delegate to any
other natural person over the age of 21 his or her power for the purpose of
executing any registration statement or amendment thereto or other document or
schedule filed with the Commission or making any other governmental filing
(including, without limitation to filings referred to in Section 3.13).
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
Section 5.07. Other Activities. Subject to Section 5.01(c)
(with respect to the Institutional Trustee), the Sponsor and any Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders shall have no rights by
virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Sponsor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken
by the Trust, and the Sponsor or any Trustee shall have the right to take for
its own account (individually or as a partner of fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as Sponsory for, trustee or agent
for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE 6
Distributions
Section 6.01. Distributions. Holders shall receive periodic
distributions, redemption payments and liquidation distributions in accordance
with the applicable terms of the relevant Holder's Securities
("Distributions"). Distributions shall be made to the Holders of Preferred
Securities and Common Securities in accordance with the terms of the
Securities as set forth in Exhibits B and C hereto. If and to the extent that
Holdings makes a payment of interest (including Compounded Interest (as
defined in the Indenture)), premium and principal on the Debentures held by
the Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed to promptly make a
Distribution of the Payment Amount to Holders in accordance with the terms of
the Securities as set forth in Exhibits B and C hereto.
ARTICLE 7
Issuance of Securities
Section 7.01. General Provisions Regarding Securities.
(a) The Regular Trustees shall issue on behalf of the Trust
securities in fully registered form representing undivided beneficial
interests in the assets of the Trust in accordance with Section 7.01(b) and
for the consideration specified in Section 3.03.
(b) The Regular Trustees shall issue on behalf of the Trust one
class of preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made
a part of, this Declaration as if specifically set forth herein, and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by any two
of the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Security. In case any Regular Trustee of
the Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificate so signed shall be delivered by the
Trust, such Certificate nevertheless may be delivered as though the person who
signed such Certificate had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons as, at the
actual date of the execution of such Certificate, shall be the Regular Trustees
of the Trust, although at the date of the execution and delivery of the
Declaration any such person was not such a Regular Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage. Pending the preparation of definitive Certificates, the
Regular Trustees on behalf of the Trust may execute temporary Certificates
(printed, lithographed or typewritten), in substantially in the form of the
definitive Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates all as may be determined by the Regular Trustees. Each temporary
Certificate shall be executed by the Regular Trustees on behalf of the Trust
upon the same conditions and in substantially the same manner, and with like
effect, as definitive Certificates. Without unnecessary delay, the Regular
Trustees on behalf of the Trust will execute and furnish definitive
Certificates and thereupon any or all temporary Certificates may be
surrendered to the transfer agent and registrar in exchange therefor (without
charge to the Holders). Each Certificate whether in temporary or definitive
form shall be countersigned by the manual or facsimile signature of an
authorized signatory of the Person acting as registrar and transfer agent for
the Securities, which shall initially be the Institutional Trustee.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by this Declaration.
(g) Upon issuance of the Securities as provided in this
Declaration, the Regular Trustees on behalf of the Trust shall return to
Holdings the $10 constituting initial trust assets as set forth in the
Original Declaration.
ARTICLE 8
Termination of Trust
Section 8.01. Termination of Trust. This Declaration and the
Trust shall terminate and be of no further force or effect when:
(i) all of the Securities shall have been called for redemption and
the amounts necessary for redemption thereof shall have been paid to the
Holders of Securities in accordance with the terms of the Securities; or
(ii) all of the Debentures shall have been distributed to the Holders
of Securities in exchange for all of the Securities in accordance with the
terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set forth in
Section 3.17,
and a certificate of cancellation is filed by the Trustees with
the Secretary of State of the State of Delaware. The Trustees shall so file
such a certificate as soon as practicable after the occurrence of an event
referred to in this Section 8.01.
The provisions of Sections 3.12 and 4.02 and Article 10 shall
survive the termination of the Trust.
ARTICLE 9
Transfer of Interests
Section 9.01. Transfer of Securities. (a) Securities may only
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Declaration. Any transfer or purported transfer
of any Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article 9, Preferred Securities shall be
freely transferable.
(c) Subject to this Article 9, Holdings and any Related Party
may only transfer Common Securities to Holdings or a Related Party, provided
that any such transfer shall be subject to the condition that the transferor
shall have obtained (1) either a ruling from the Internal Revenue Service or an
unqualified written opinion addressed to the Trust and delivered to the
Trustees of nationally recognized independent tax counsel experienced in such
matters to the effect that such transfer will not (i) cause the Trust to be
treated as issuing a class of interests in the Trust differing from the class
of interests represented by the Common Securities originally issued to
Holdings, (ii) result in the Trust acquiring or disposing of, or being deemed
to have acquired or disposed of, an asset, or (iii) result in or cause the
Trust to be treated as anything other than a grantor trust for United States
federal income tax purposes and (2) an unqualified written opinion addressed
to the Trust and delivered to the Trustees of a nationally recognized
independent counsel experienced in such matters that such transfer will not
cause the Trust to be an Investment Company or controlled by an Investment
Company.
Section 9.02. Transfer of Certificates. The Regular Trustees
shall provide for the registration of Certificates and of transfers of
Certificates, which will be effected without charge but only upon payment
(with such indemnity as the Regular Trustees may require) in respect of any
tax or other government charges which may be imposed in relation to it. Upon
surrender for registration of transfer of any Certificate, the Regular
Trustees shall cause one or more new Certificates to be issued in the name of
the designated transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
Section 9.03. Deemed Security Holders. The Trustees may treat
the Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part
of any Person, whether or not the Trustees shall have actual or other notice
thereof.
Section 9.04. Book Entry Interests. Unless otherwise specified
in the terms of the Preferred Securities, the Preferred Securities
Certificates, on original issuance (including Preferred Securities, if any,
issued on the Option Closing Date pursuant to the exercise of the over
allotment option set forth in the Underwriting Agreement), will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.07. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.07:
(i) the provisions of this Section 9.04 shall be in full force and
effect;
(ii) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and, except as set forth herein or
in Rule 3a-7 with respect to the Institutional Trustee, shall have no
obligation to the Preferred Security Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.04 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.04 shall control; and
(iv) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants; provided, that solely for the purposes of determining whether
the Holders of the requisite amount of Preferred Securities have voted on
any matter provided for in this Declaration, so long as Definitive
Preferred Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by DTC setting
forth the Preferred Security Beneficial Owners' votes or assigning the
right to vote on any matter to any other Persons either in whole or in
part. DTC will make book entry transfers among Clearing Agency Participants
and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants.
Section 9.05. Notices to Holders of Certificates. Whenever a
notice or other communication to the Holders is required to be given under this
Declaration, unless and until Definitive Preferred Security Certificates shall
have been issued pursuant to Section 9.07, the relevant Trustees shall give
such notices and communications specified herein to be given to Preferred
Securities Holders, to the Clearing Agency and, with respect to any Preferred
Security Certificate registered in the name of a Clearing Agency or the
nominee of a Clearing Agency, the Trustees shall, except as set forth
herein have no obligations to the Preferred Security Beneficial Owners.
Section 9.06. Appointment of Successor Clearing Agency. If any
Clearing Agency elects to discontinue its services as securities depository
with respect to the Preferred Securities, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with respect to the
Preferred Securities.
Section 9.07. Definitive Preferred Securities Certificates. If
(i) a Clearing Agency elects to discontinue its services as securities
depository with respect to the Preferred Securities and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 9.06 or (ii) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities, then (x) Definitive Preferred Security
Certificates shall be prepared by the Regular Trustees on behalf of the Trust
with respect to such Preferred Securities and (y) upon surrender of the Global
Certificates by the Clearing Agency, accompanied by registration instructions,
the Regular Trustees shall cause definitive Preferred Security Certificates to
be delivered to Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Neither the Trustees nor the Trust shall
be liable for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, such instructions.
Section 9.08. Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b)
there shall be delivered to the Regular Trustees such security or indemnity as
may be required by them to keep each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide
purchaser, any two Regular Trustees on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.08, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE 10
Limitation of Liability; Indemnification
Section 10.01. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Declaration or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's gross negligence (or, in the case of the Institutional
Trustee, negligence) or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Securities might properly be paid.
(c) Pursuant to Section 3803 (a) of the Business Trust Act, the
Holders of Securities, in their capacities as Holders, shall be entitled to
the same limitation of liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
Section 10.02. Indemnification. (a) To the fullest extent
permitted by applicable law, the Sponsor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or omitted by
such Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration, except
that no Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence (or, in the case of the Institutional Trustee, negligence) or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim, demand,
action, suit or proceeding upon receipt by the Sponsor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.02(a).
ARTICLE 11
Accounting
Section 11.01. Fiscal Year. The fiscal year ("Fiscal Year") of
the Trust shall be the calendar year, or such other year as is required by the
Code.
Section 11.02. Certain Accounting Matters. (a) At all times
during the existence of the Trust, the Regular Trustees shall keep, or cause
to be kept, full books of account, records and supporting documents, which
shall reflect in reasonable detail, each transaction of the Trust. The books
of account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently
applied. The Trust shall use the accrual method of accounting for United
States federal income tax purposes. The books and records of the Trust,
together with a copy of this Declaration and a certified copy of the
Certificate of Trust, or any amendment thereto, shall at all times be
maintained at the principal office of the Trust and shall be open for
inspection for any examination by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
(b) The Regular Trustees shall, as soon as available after the end
of each Fiscal Year of the Trust, cause to be prepared and mailed to each
Holder of Securities unaudited financial statements of the Trust for such
Fiscal Year, prepared in accordance with generally accepted accounting
principles; provided that if the Trust is required to comply with the periodic
reporting requirements of Sections 13(a) or 15(d) of the Exchange Act, such
financial statements for such Fiscal Year shall be examined and reported on by
a firm of independent certified public accountants selected by the Regular
Trustees (which firm may be the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be prepared and mailed to
each Holder of Securities, an annual United States federal income tax
information statement, on such form as is required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after the
end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on such form as is required by the Code, and any other annual income
tax returns required to be filed by the Regular Trustees on behalf of the Trust
with any state or local taxing authority, such returns to be filed as soon as
practicable after the end of each Fiscal Year of the Trust.
Section 11.03. Banking. The Trust shall maintain one or more
bank accounts in the name and for the sole benefit of the Trust. The sole
signatories for such accounts shall be designated by the Regular Trustees.
Section 11.04. Withholding. The Trust and the Trustees shall
comply with all withholding requirements under United States federal, state
and local law. The Trust shall request, and the Holders shall provide to the
Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and
forms as shall reasonably be requested by the Trust to assist it in
determining the extent of, and in fulfilling, its withholding obligations.
The Trust shall file required forms with applicable jurisdictions and, unless
an exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To
the extent that the Trust is required to withhold and pay over any amounts to
any authority with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder. In the event of any claimed over withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount to be withheld was not withheld from a Distribution, the Trust may
reduce subsequent Distributions by the amount of such withholding.
ARTICLE 12
Amendments and Meetings
Section 12.01. Amendments. (a) Except as otherwise provided in
this Declaration or by any applicable terms of the Securities, this
Declaration may be amended by, and only by, a written instrument executed by a
majority of the Regular Trustees; provided, however, that (i) no amendment to
this Declaration shall be made unless the Regular Trustees shall have obtained
(A) either a ruling from the Internal Revenue Service or a written unqualified
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that such amendment will not cause the Trust to be
classified for United States federal income tax purposes as an association
taxable as a corporation or a partnership and to the effect that the Trust will
continue to be treated as a grantor trust for purposes of United States federal
income taxation and (B) a written unqualified opinion of nationally recognized
independent counsel experienced in such matters to the effect that such
amendment will not cause the Trust to be an Investment Company which is
required to be registered under the Investment Company Act, (ii) at such time
after the Trust has issued any Securities which remain outstanding, any
amendment which would adversely affect the rights, privileges or preferences
of any Holder of Securities may be effected only with such additional
requirements as may be set forth in the terms of such Securities, (iii) Section
4.02, Section 9.01(c) and this Section 12.01 shall not be amended without the
consent of all of the Holders of the Securities, (iv) no amendment which
adversely affects the rights, powers and privileges of the Institutional
Trustee or the Delaware Trustee shall be made without the consent of the
Institutional Trustee or the Delaware Trustee, as the case may be, (v) Article
4 shall not be amended without the consent of the Sponsor, (vi) the rights of
Holders of Common Securities under Article 5 to increase or decrease the
number of, and to appoint, replace or remove, Trustees (other than a Special
Regular Trustee) shall not be amended without the consent of each Holder of
Common Securities and (vii) the rights of Holders of Preferred Securities to
appoint or remove a Special Regular Trustee shall not be amended without the
consent of each Holder of Preferred Securities.
(b) Notwithstanding Section 12.02(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities to (i) cure any
ambiguity, (ii) correct or supplement any provision in this Declaration that
may be defective or inconsistent with any other provision of this Declaration,
(iii) to add to the covenants, restrictions or obligations of the Sponsor, and
(iv) to conform to any changes in Rule 3a-7 or any change in interpretation or
application of Rule 3a-7 by the Commission, which amendment does not adversely
affect the rights, preferences or privileges of the Holders.
Section 12.02. Meetings of the Holders of Securities; Action by
Written Consent. (a) Meetings of the Holders of Preferred Securities and/or
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms
of this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of Holders of Preferred Securities or
Common Securities, if directed to do so by Holders of at least 25% in
liquidation amount of such class of Securities. Such direction shall be given
by delivering to the Regular Trustees one or more calls in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those specified Certificates shall be counted for purposes of
determining whether the required percentage set forth in the second sentence
of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to all the
Holders of Securities having a right to vote thereat not less than 7 days
nor more than 60 days prior to the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote, consent
or approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting forth the action so
taken is signed by Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Holders of Securities for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of a Security is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of the
Security executing it. Except as otherwise provided herein or in the terms
of the Securities, all matters relating to the giving, voting or validity
of proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as
if the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees
may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange on which the Preferred
Securities are then listed or admitted for trading, the Regular Trustees,
in their sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Holders
of Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any
such right to vote.
ARTICLE 13
Representations of Institutional Trustee and Delaware Trustee
Section 13.01. Representations and Warranties of Institutional
Trustee.
(a) The Trustee which acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Institutional Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Institutional
Trustee's acceptance of its appointment as Institutional Trustee that:
(i) The Institutional Trustee is a banking Corporation
with trust powers, duly organized, validly existing and in good standing
under the laws of the United States, with trust power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration.
(ii) The execution, delivery and performance by the
Institutional Trustee of this Declaration has been duly authorized by all
necessary corporate action on the part of the Institutional Trustee. The
Declaration has been duly executed and delivered by the Institutional Trustee,
and constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles
of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at
law).
(iii) The execution, delivery and performance of this
Declaration by the Institutional Trustee does not conflict with or constitute
a breach of the Charter or By-laws of the Institutional Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking authority which supervises or
regulates the Institutional Trustee is required for the execution, delivery
or performance by the Institutional Trustee, of this Declaration.
(v) The Institutional Trustee satisfies the qualifications
set forth in Section 5.01(c).
(b) The Trustee which acts as initial Delaware Trustee represents
and warrants to the Trust and the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee, that it satisfies the qualifications set
forth in Section 5.01(a)(3).
ARTICLE 14
Miscellaneous
Section 14.01. Notices. All notices provided for in this
Declaration shall be in writing, duly signed by the party giving such notice,
and shall be delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Regular
Trustees on behalf of the Trust may give notice of to the Holders of the
Securities):
RJR Nabisco Holdings Capital Trust [ ]
c/o RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, NY 10019-6013
Attention: H. Colin McBride, Trustee
Facsimile No: (212) 969-9198
(b) if given to the Institutional Trustee, at the mailing address
of the Institutional Trustee set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
[TO COME]
(c) if given to the Delaware Trustee, at the mailing address of the
Delaware Trustee set forth below (or such other address as the Delaware
Trustee may give notice of to the Holders of the Securities):
[TO COME]
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
RJR Nabisco Holdings Corp.
1301 Avenue of the Americas
New York, NY 10019-6013
Facsimile No. (212) 969-9198
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
A copy of any notice to the Institutional Trustee or the
Delaware Trustee shall also be sent to the Trust. All notices shall be deemed
to have been given, when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be delivered because of
a changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
Section 14.02. Undertaking for Costs. All parties to this
Declaration agree, and each Holder of any Securities by his or her acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Declaration, or in any suit against the Institutional Trustee for any action
taken or omitted by it as Institutional Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 14.02 shall not apply to
any suit instituted by the Institutional Trustee, to any suit instituted by
any Holder of Preferred Securities, or group of Holders of Preferred
Securities, holding more than 10% in aggregate liquidation amount of the
outstanding Preferred Securities, or to any suit instituted by any Holder of
Preferred Securities for the enforcement of the payment of the principal of
(or premium, if any) or interest on the Debentures, on or after the respective
due dates expressed in such Debentures.
Section 14.03. Governing Law. This Declaration and the rights
of the parties hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware and all rights and remedies shall be
governed by such laws without regard to principles of conflict of laws.
Section 14.04. Headings. Headings contained in this
Declaration are inserted for convenience of reference only and do not affect
the interpretation of this Declaration or any provision hereof.
Section 14.05. Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Declaration, or the
application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
Section 14.06. Counterparts. This Declaration may contain more
than one counterpart of the signature pages and this Declaration may be
executed by the affixing of the signature of the Sponsor and each of the
Trustees to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single signature
page.
Section 14.07. Intention of the Parties. It is the intention
of the parties hereto that the Trust not be classified for United States
federal income tax purposes an association taxable as a corporation or
partnership but that the Trust be treated as a grantor trust for United States
federal income tax purposes. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
Section 14.08. Successors and Assigns. Whenever in this
Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants
and agreements in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and assigns, whether
so expressed.
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
RJR Nabisco Holdings Corp.
as Sponsor
By:
------------------------------------
Name:
Title:
- -----------------------------------
John J. Delucca
as Trustee
- -----------------------------------
H. Colin McBride
as Trustee
- -----------------------------------
Richard G. Russell
as Trustee
The Bank of New York
as Institutional Trustee
By:
------------------------------------
Name:
Title:
The Bank of New York (Delaware)
as Delaware Trustee
By:
------------------------------------
Name:
Title:
STATE OF [ ] )
)
COUNTY OF [ ] )
BEFORE ME, the undersigned authority, on this day of
_____________, 199_, personally appeared _______________ (on behalf of RJR
Nabisco Holdings Corp.), and John J. Delucca, H. Colin McBride and Richard G.
Russell, each known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer, as the case may be, whose
name is subscribed to the foregoing instrument, and each acknowledged to me
that he executed the same as the act of such are for the purposes and
consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, 199_.
(SEAL)
------------------------------------
NOTARY PUBLIC, STATE OF [ ]
Print Name:
-------------------------
Commission Expires:
-----------------
STATE OF [ ] )
)
COUNTY OF [ ] )
BEFORE ME, the undersigned authority, on this day of
_____________, 199_, personally appeared ________________ of The Bank of New
York known to me (or proved to me by introduction upon the oath of a person
known to me) to be the person and officer whose names are subscribed to the
foregoing instrument, and acknowledged to me that she executed the same as the
act of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, 199_.
(SEAL)
------------------------------------
NOTARY PUBLIC, STATE OF [ ]
Print Name:
-------------------------
Commission Expires:
-----------------
STATE OF [ ] )
)
COUNTY OF [ ] )
BEFORE ME, the undersigned authority, on this day of
_____________, 199_, personally appeared _______________________ of The Bank
of New York (Delaware) known to me (or proved to me by introduction upon the
oath of a person known to me) to be the person and officer whose names are
subscribed to the foregoing instrument, and acknowledged to me that she
executed the same as the act of such trust for the purposes and consideration
herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ day of _________, 199_.
(SEAL)
------------------------------------
NOTARY PUBLIC, STATE OF [ ]
Print Name:
-------------------------
Commission Expires:
-----------------
EXHIBIT A
CERTIFICATE OF TRUST
OF
RJR NABISCO HOLDINGS CAPITAL TRUST [ ]
THIS Certificate of Trust of RJR Nabisco Holdings Capital Trust
[ ] (the "Trust"), dated as of August __, 199_, is being duly executed and
filed by the undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
RJR Nabisco Holdings Capital Trust [ ].
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), a Delaware banking corporation,
White Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
4. Counterparts. This Certificate of Trust may be executed in
one or more counterparts.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
The Bank of New York (Delaware),
as Delaware Trustee
By:
------------------------------------
Name:
Title:
The Bank of New York,
as Institutional Trustee
By:
------------------------------------
Name:
Title:
---------------------------------------,
John J. Delucca,
as Trustee
---------------------------------------,
H. Colin McBride,
as Trustee
---------------------------------------,
Richard G. Russell,
as Trustee
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.01 of the Amended and Restated
Declaration of Trust of RJR Nabisco Holdings Capital Trust [ ] dated as of
______, 199_ (as amended from time to time, the "Declaration"), the
designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities are set forth below (each
capitalized term used but not defined herein having the meaning set forth in
the Declaration):
1. Designation and Number. Preferred Securities of the Trust
with an aggregate liquidation amount in the assets of the Trust of
___________________ ______________________________________________________ and
a liquidation amount in the assets of the Trust of $25 per Preferred Security,
are hereby designated as "____% Trust Originated Preferred Securities". The
Preferred Security Certificates evidencing the Preferred Securities shall be
substantially in the form attached hereto as Annex I, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange on which
the Preferred Securities are listed. In connection with the issuance and sale
of the Preferred Securities and the Common Securities, the Trust will purchase,
respectively, as trust assets Debentures of Holdings having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities and Common Securities so issued and bearing interest at an annual
rate equal to the annual Distribution rate on the Preferred Securities and
Common Securities and having payment and redemption provisions which
correspond to the payment and redemption provisions of the Preferred
Securities and Common Securities.
2. Distributions. (a) Distributions payable on each Preferred
Security will be fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Preferred Security. Distributions in
arrears for more than one quarter will bear interest at the rate per annum of
____% thereof (to the extent permitted by law), compounded quarterly. The
term "Distributions" as used in these terms means such periodic cash
distributions and any such interest payable unless otherwise stated. A
Distribution will be made by the Institutional Trustee only to the extent that
interest payments are made in respect of the Debentures held by the
Institutional Trustee. The amount of Distributions payable for any period will
be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any Distribution period shorter
than a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed in such a 30-day month.
(b) Distributions on the Preferred Securities will be cumulative, will
accrue from ______, 199_ and will be payable quarterly in arrears, on
_______, ______, ___________ and __________ of each year, commencing on
_____________, 199_, except as otherwise described below, but only if and
to the extent that interest payments are made in respect of the Debentures
held by the Institutional Trustee. So long as Holdings shall not be in
default in the payment of interest on the Debentures, Holdings has the
right under the Indenture for the Debentures to defer payments of interest
by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarterly interest
periods (each, an "Extension Period") and, as a consequence, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the rate of ____% per annum, compounded
quarterly, to the extent permitted by applicable law during any such
Extension Period. Prior to the termination of any such Extension Period,
Holdings may further extend such Extension Period; provided that such
Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly interest periods and
provided, further, that no Extension Period may extend beyond the Maturity
of the Debentures. Upon the termination of any Extension Period and the
payment of all amounts then due, Holdings may commence a new Extension
Period, subject to the above requirements. Payments of accrued
Distributions will be payable to Holders of Preferred Securities as they
appear on the books and records of the Trust on the first record date after
the end of the Extension Period.
(c) Distributions on the Preferred Securities will be payable promptly
by the Institutional Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the
books and records of the Trust on the relevant record dates, which will be
the fifteenth (15th) day of the month prior to the relevant Distribution
date, which record and payment dates correspond to the record and interest
payment dates on the Debentures. Distributions payable on any Preferred
Securities that are not punctually paid on any Distribution payment date as
a result of Holdings having failed to make the corresponding interest
payment on the Debentures will forthwith cease to be payable to the person
in whose name such Preferred Security is registered on the relevant record
date, and such defaulted Distribution will instead be payable to the person
in whose name such Preferred Security is registered on the special record
date established by the Regular Trustees, which record date shall
correspond to the special record date or other specified date determined in
accordance with the Indenture; provided, however, that Distributions shall
not be considered payable on any Distribution payment date falling within
an Extension Period unless Holdings has elected to make a full or partial
payment of interest accrued on the Debentures on such Distribution payment
date. Subject to any applicable laws and regulations and the provisions of
the Declaration, each payment in respect of the Preferred Securities will
be made as described paragraph 9 hereof. If any date on which Distributions
are payable on the Preferred Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date and the record date for such payment shall
be the immediately preceding Business Day.
(d) All Distributions paid with respect to the Preferred Securities
and the Common Securities will be paid Pro Rata to the Holders thereof
entitled thereto. If an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities
with respect to Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money
or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of
the dissolution, winding-up or termination, as the case may be, will be
entitled to receive Pro Rata solely out of the assets of the Trust available
for distribution to Holders of Preferred Securities and Common Securities after
satisfaction of liabilities to creditors, an amount equal to the aggregate of
the stated liquidation amount of $25 per Preferred Security and Common Security
plus accrued and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"), unless, in connection with such
dissolution, winding-up or termination, and after satisfaction of liabilities
to creditors, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities and Common
Securities and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, such Preferred Securities and Common
Securities, shall be distributed Pro Rata to the Holders of the Preferred
Securities and Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity, upon redemption at any time or from time to time on or after
_________, 1998, the proceeds of such repayment will be promptly applied to
redeem Pro Rata Preferred Securities and Common Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60
days' notice, at a redemption price of $25 per Preferred and Common
Security plus an amount equal to accrued and unpaid Distributions thereon
to the date of redemption, payable in cash (the "Redemption Price"). The
date of any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or
redemption date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Preferred Securities to be
redeemed will be redeemed as described in paragraph 4(f)(ii) below. If a
partial redemption would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on
which the Preferred Securities are then listed, Holdings pursuant to the
Indenture will only redeem Debentures in whole and, as a result, the Trust
may only redeem the Preferred Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed
in the limited circumstances described below, dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the Institutional
Trustee having an aggregate principal amount equal to the aggregate stated
liquidation amount of and accrued and unpaid interest equal to accrued and
unpaid Distributions on, and having the same record date for payment as the
Preferred Securities and Common Securities, to be distributed to the
Holders of the Preferred Securities and Common Securities on a Pro Rata
basis in liquidation of such Holders' interests in the Trust, within 90
days following the occurrence of such Special Event (the "90 Day Period");
provided, however, that in the case of the occurrence of a Tax Event, as a
condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may
rely on any then applicable published revenue ruling of the Internal
Revenue Service, to the effect that the Holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust and distribution of
Debentures; and provided, further, that, if and as long as at the time
there is available to the Trust the opportunity to eliminate, within the 90
Day Period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, Holdings, or
the Holders of the Preferred Securities ("Ministerial Action"), the Trust
will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk
that Holdings would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even if the
Debentures were distributed to the Holders of Preferred Securities and Common
Securities in liquidation of such Holder's interest in the Trust as described
in this paragraph 4(c) or (ii) the Regular Trustees shall have been informed
by such tax counsel that a No Recognition Opinion cannot be delivered to the
Trust, Holdings shall have the right at any time, upon not less than 30 nor
more than 60 days' notice, to redeem the Debentures in whole or in part for
cash at the Redemption Price within 90 days following the occurrence of such
Tax Event, and promptly following such redemption Preferred Securities and
Common Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis; provided, however, that, if at
the time there is available to Holdings or the Regular Trustees on behalf of
the Trust the opportunity to eliminate, within such 90 day period, the Tax
Event by taking some Ministerial Action, Holdings or the Regular Trustees on
behalf of the Trust will pursue such measure in lieu of redemption and;
provided further that Holdings shall have no right to redeem the Debentures
while the Regular Trustees on behalf of the Trust are pursuing such
Ministerial Action. The Common Securities will be redeemed Pro Rata with the
Preferred Securities, except if an Event of Default under the Indenture has
occurred and is continuing, the Preferred Securities will have a priority over
the Common Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after ______,
199_ as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
any amendment to, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after ______, 199_, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount
of taxes, duties or other governmental charges or (iii) interest payable by
Holdings to the Trust on the Debentures is not, or within 90 days of the date
thereof will not be, deductible by Holdings for United States federal income
tax purposes.
"Investment Company Event" means that the Regular Trustees shall
have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after ______, 199_.
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Preferred Securities will no longer be
deemed to be outstanding and (ii) certificates representing Preferred
Securities will be deemed to represent beneficial interests in the Debentures
having an aggregate principal amount equal to the stated liquidation amount
of, and bearing accrued and unpaid interest equal to accrued and unpaid
Distributions on, such Preferred Securities until such certificates are
presented to Holdings or its agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid Distributions have been paid on
all Preferred Securities for all quarterly Distribution periods terminating
on or prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, Holdings, pursuant to the terms of the Indenture, will use its
best efforts to have the Debentures listed on the New York Stock Exchange
or on such other exchange as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(f) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees
on behalf of the Trust by mail to each Holder of Preferred Securities and
Common Securities to be redeemed or exchanged not less than 30 nor more
than 60 days prior to the date fixed for redemption or exchange thereof.
For purposes of the calculation of the date of redemption or exchange and
the dates on which notices are given pursuant to this paragraph (f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Preferred Securities and Common Securities. Each Redemption/Distribution
Notice shall be addressed to the Holders of Preferred Securities and Common
Securities at the address of each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Securities are to be redeemed, the Preferred Securities
to be redeemed will be redeemed Pro Rata from each Holder of
Preferred Securities, it being understood that, in respect of
Preferred Securities registered in the name of and held of record
by DTC (or successor Clearing Agency) or any other nominee, the
distribution of the proceeds of such redemption will be made to,
each Clearing Agency Participant (or person on whose behalf such
nominee holds such securities) in accordance with the procedures
applied by such agency or nominee.
(iii) Subject to paragraph 9 hereof, if the Trust gives a
Redemption/ Distribution Notice in respect of a redemption of
Preferred Securities as provided in this paragraph 4 (which notice
will be irrevocable) then (A) while the Preferred Securities are
in book-entry only form, with respect to the Preferred Securities,
by 12:00 noon, New York City time, on the redemption date,
provided that Holdings has paid the Institutional Trustee, in
immediately available funds, a sufficient amount of cash in
connection with the related redemption or maturity of the
Debentures, the Institutional Trustee will deposit irrevocably
with DTC (or any successor Clearing Agency) funds sufficient to
pay the applicable Redemption Price with respect to the Preferred
Securities and will give DTC (or any successor Clearing Agency)
irrevocable instructions and authority to pay the Redemption Price
to the Holders of the Preferred Securities and (B) if the Preferred
Securities are issued in definitive form, with respect to the
Preferred Securities and provided that Holdings has paid the
Trust, in immediately available funds, a sufficient amount of cash
in connection with the related redemption or maturity of the
Debentures, the Institutional Trustee will pay the relevant
Redemption Price to the Holders of such Preferred Securities by
check mailed to the address of the relevant Holder appearing on
the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to
the close of business on the redemption date, Distributions will
cease to accrue on the Preferred Securities called for redemption,
such Preferred Securities will no longer be deemed to be
outstanding and all rights of Holders of such Preferred Securities
so called for redemption will cease, except the right of the
Holders of such Preferred Securities to receive the Redemption
Price, but without interest on such Redemption Price. Neither the
Trustees nor the Trust shall be required to register or cause to
be registered the transfer of any Preferred Securities which have
been so called for redemption. If any date fixed for redemption
of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of
Preferred Securities is improperly withheld or refused and not
paid either by the Trust or by Holdings pursuant to the Preferred
Securities Guarantee, Distributions on such Preferred Securities
will continue to accrue, compounded quarterly, from the original
redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to DTC or its nominee (or
any successor Clearing Agency or its nominee) if the Global
Certificates have been issued or, if Definitive Preferred Security
Certificates have been issued, to the Holders of the Preferred
Securities.
(v) Upon the date of dissolution of the Trust and
distribution of Debentures as a result of the occurrence of a
Special Event, Preferred Security Certificates shall be deemed to
represent beneficial interests in the Debentures so distributed,
and the Preferred Securities will no longer be deemed outstanding
and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities so
distributed.
(vi) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws),
Holdings or any of its subsidiaries may at any time and from time
to time purchase outstanding Preferred Securities by tender, in
the open market or by private agreement.
5. Voting Rights. (a) Except as provided under paragraph 5(b)
below and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
(b) If (i) the Trust fails to make Distributions in full on the
Preferred Securities for 6 consecutive regularly scheduled quarterly
Distribution periods; or (ii) an Event of Default occurs and is continuing,
(each, an "Appointment Event"), then the Holders of the Preferred
Securities, acting as a single class, will be entitled by the vote of
Holders of Preferred Securities representing a Majority in liquidation
amount of the Preferred Securities to appoint a Special Regular Trustee in
accordance with paragraph 5.02(a)(ii)(B) of the Declaration. Any Holder of
Preferred Securities (other than the Sponsor or any Affiliate of the
Sponsor) will have the right to nominate any Person to be appointed as
Special Regular Trustee. For purposes of determining whether the Trust has
failed to pay Distributions in full for 6 consecutive regularly scheduled
quarterly Distribution periods, Distributions shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full
cumulative Distributions have been or contemporaneously are paid with
respect to all quarterly Distribution periods terminating on or prior to
the date of payment of such cumulative Distributions. Not later than 30
days after such right to appoint a Special Regular Trustee arises, the
Regular Trustees will convene a meeting for the purpose of appointing a
Special Regular Trustee. If the Regular Trustees fail to convene such
meeting within such 30-day period, the Holders of Preferred Securities
representing 10% in liquidation amount of the outstanding Preferred
Securities will be entitled to convene such meeting in accordance with
Section 12.02 of the Declaration. The record date for such meeting will be
the close of business on the Business Day next preceding the day on which
notice of the meeting is sent to Holders of Preferred Securities. The
provisions of the Declaration relating to the convening and conduct of the
meetings of the Holders will apply with respect to any such meeting. If, at
any such meeting, Holders of less than a Majority in liquidation amount of
Preferred Securities entitled to vote for the appointment of a Special
Regular Trustee vote for such appointment, no Special Regular Trustee shall
be appointed. Any Special Regular Trustee may be removed without cause at
any time by the Holders of Preferred Securities representing a Majority in
liquidation amount of the Preferred Securities in accordance with Section
5.02(a)(ii)(B) of the Declaration. The Holders of 10% in liquidation amount
of the Preferred Securities will be entitled to convene such a meeting in
accordance with Section 12.02 of the Declaration. The record date for such
meeting will be the close of business on the Business Day next preceding
the day on which notice of the meeting is sent to Holders of Preferred
Securities. Any Special Regular Trustee appointed shall cease to be a
Special Regular Trustee as provided in Section 5.02(c) of the Declaration.
Notwithstanding the appointment of any such Special Regular Trustee,
Holdings shall retain all rights under the Indenture, including the right
to extend the interest payment period on Debentures, and any extension for
a period not exceeding 20 quarterly interest periods will not constitute an
Event of Default under the Indenture.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Institutional Trustee, upon the
occurrence of a Special Event or in connection with the redemption of
Preferred Securities as a consequence of a redemption of Debentures, then the
Holders of outstanding Securities will be entitled to vote on such amendment
or proposal as a class and such amendment or proposal shall not be effective
except with the approval of the Holders of Securities representing a Majority
in liquidation amount of such Securities; provided, however, that (A) if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities; (B) the rights of
Holders of Preferred Securities under Article 5 of the Declaration to appoint
and remove a Special Regular Trustee shall not be amended without the consent
of each Holder of Preferred Securities; and (C) amendments to the Declaration
shall be subject to such further requirements as are set forth in Sections
12.01 and 12.02 of the Declaration.
In the event the consent of the Institutional Trustee, as the
holder of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Institutional Trustee shall vote with respect to such amendment, modification
or termination as directed by a Majority in liquidation amount of the
Securities voting together as a single class (and in the case of any other RJR
Nabisco Holdings Capital Trust holding Debentures issued under the Indenture,
voting with the holders of preferred securities of such other RJR Nabisco
Holdings Capital Trust); provided that where such amendment, modification or
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures, the
Institutional Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above,
the vote of Holders of Securities representing such specified percentage of the
aggregate liquidation amount of the Securities, or, in the case of clause (2)
above, each Holder of Securities; and provided, further, that the Institutional
Trustee shall be under no obligation to take any action in accordance with the
directions of the Holders of Securities unless the Institutional Trustee shall
have received, at the expense of the Sponsor, an opinion of nationally
recognized independent tax counsel recognized as expert in such matters to the
effect that the Trust will not be classified for United States federal income
tax purposes as an association taxable as a corporation or a partnership on
account of such action and will be treated as a grantor trust for United
States federal income tax purposes following such action.
Subject to Section 2.06 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Preferred Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Preferred Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method, and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee, as the holder of the Debentures (and in the case of any other RJR
Nabisco Holdings Capital Trust holding Debentures issued under the Indenture,
voting with the holders of preferred securities of such other RJR Nabisco
Holdings Capital Trust), to (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture Trustee with
respect to the Debentures, (ii) waive any past default that is waivable under
Section 6.04 of the Indenture, or (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and
payable; provided that where the taking of any action under the Indenture
requires the consent or vote of (1) holders of Debentures representing a
specified percentage greater than a majority in principal amount of the
Debentures or (2) each holder of Debentures, the Institutional Trustee may
only take such action if directed by, in the case of clause (1) above, the
vote of Holders of Preferred Securities representing such specified percentage
of the aggregate liquidation amount of the Preferred Securities, or, in the
case of clause (2) above, each Holder of Preferred Securities. The
Institutional Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other than
with respect to directing the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall be under
no obligation to take any of the foregoing actions at the direction of the
Holders of Preferred Securities unless the Institutional Trustee shall have
received, at the expense of the Sponsor, an opinion of nationally recognized
independent tax counsel recognized as expert in such matters to the effect that
the Trust will not be classified for United States federal income tax purposes
as an association taxable as a corporation or a partnership on account of such
action and will be treated as a grantor trust for United States federal income
tax purposes following such action. If the Institutional Trustee fails to
enforce its rights under the Declaration (including, without limitation, its
rights, powers and privileges as a holder of the Debentures under the
Indenture), any Holder of Preferred Securities may, after a period of 30 days
has elapsed from such Holder's written request to the Institutional Trustee to
enforce such rights, institute a legal proceeding directly against Holdings to
enforce the Institutional Trustee's rights under the Declaration, without
first instituting a legal proceeding against the Institutional Trustee or any
other Person.
A waiver of an Indenture Event of Default by the Institutional
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred
Securities convened for such purpose, at a meeting of all of the Holders of
Securities of the Trust or pursuant to written consent. The Regular Trustees
will cause a notice of any meeting at which Holders of Preferred Securities
are entitled to vote, or of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each Holder of record of
Preferred Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities in
accordance with the Declaration.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above,
any of the Preferred Securities at such time that are owned by Holdings or by
any entity directly or indirectly controlling or controlled by or under direct
or indirect common control with Holdings shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
Except as provided in this paragraph 5, Holders of the Preferred
Securities will have no rights to increase or decrease the number of Trustees
or to appoint, remove or replace a Trustee, which voting rights are vested
solely in the Holders of the Common Securities.
6. Pro Rata Treatment. A reference in these terms of the
Preferred Securities to any payment, distribution or treatment as being "Pro
Rata" shall mean pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding
unless, in relation to a payment, an Event of Default has occurred and is
continuing, in which case any funds available to make such payment shall be
paid first to each Holder of the Preferred Securities pro rata according to
the aggregate liquidation amount of Preferred Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Preferred
Securities outstanding, and only after satisfaction of all amounts owed to the
Holders of the Preferred Securities, to each Holder of Common Securities pro
rata according to the aggregate liquidation amount of Common Securities held
by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
7. Ranking. The Preferred Securities rank pari passu and payment
thereon will be made Pro Rata with, the Common Securities except that where
an Event of Default occurs and is continuing, the rights of Holders of
Preferred Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise rank in priority to the rights of Holders
of the Common Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfer, Exchange, Method of Payments. Payment of
Distributions and payments on redemption of the Preferred Securities will be
payable, the transfer of the Preferred Securities will be registrable, and
Preferred Securities will be exchangeable for Preferred Securities of other
denominations of a like aggregate liquidation amount, at the principal
corporate trust office of the Institutional Trustee in The City of New York;
provided that payment of Distributions may be made at the option of the
Regular Trustees on behalf of the Trust by check mailed to the address of the
persons entitled thereto and that the payment on redemption of any Preferred
Security will be made only upon surrender of such Preferred Security to the
Institutional Trustee.
10. Acceptance of Indenture and Preferred Guarantee. Each Holder
of Preferred Securities, by the acceptance thereof, agrees to the provisions
of (i) the Preferred Guarantee, including the subordination provisions therein
and (ii) the Indenture and the Debentures, including the subordination
provisions of the Indenture.
11. No Preemptive Rights. The Holders of Preferred Securities
shall have no preemptive rights to subscribe to any additional Preferred
Securities or Common Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the
Indenture to a Holder without charge on written request to the Trust at its
principal place of business.
Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- - This Preferred Security is a Global Certificate within the meaning of the
Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company ("DTC") or a nominee of DTC. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a person
other than DTC or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or
by a nominee of DTC to DTC or another nominee of DTC) may be registered except
in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York) to
the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an interest herein.]
Number ___________ Preferred Securities
___________
CUSIP NO. ____________
Certificate Evidencing Preferred Securities
of
RJR Nabisco Holdings Capital Trust [ ]
____% Preferred Trust Securities
(liquidation amount $25 per Preferred Security)
RJR Nabisco Holdings Capital Trust [ ], a statutory
business trust created under the laws of the State of Delaware (the "Trust"),
hereby certifies that _________ (the "Holder") is the registered owner of
_____ (______) preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated the ____% Trust
Originated Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Declaration of Trust of the Trust dated as of
____ __, 199_, as the same may be amended from time to time (the
"Declaration") including the designation of the terms of Preferred Securities
as set forth in Exhibit B thereto. The Preferred Securities and the Common
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by RJR Nabisco Holdings Corp., a Delaware
corporation ("Holdings"), to the Trust pursuant to the Indenture referred to
in the Declaration. The Holder is entitled to the benefits of the Guarantee
Agreement of Holdings dated as of ______ , 199_ (the "Guarantee") to the
extent provided therein. The Trust will furnish a copy of the Declaration,
the Guarantee and the Indenture to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment
to all Senior Debt (as defined in the Indenture) as and to the extent provided
in the Indenture and (ii) agreed to the terms of the Guarantee, including that
the Guarantee ranks (a) pari passu in right of payment with Holdings'
obligations under other guarantees of preferred securities, (b) subordinate
and junior in right of payment to all other liabilities of Holdings, including
the Debentures, except those made pari passu or subordinate by their terms,
and (c) senior to all capital stock now or hereafter issued by Holdings and to
any guarantee now or hereafter entered into by Holdings in respect of any of
its capital stock.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this __ day of ____, 199_.
RJR NABISCO HOLDINGS CAPITAL TRUST [ ]
By: _________________________, as trustee
Name:
Title:
By: _________________________, as trustee
Name:
Title:
Dated:
Countersigned and Registered:
THE BANK OF NEW YORK
______________________________
Transfer Agent and Registrar
By:___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books
of the Trust. The agent may substitute another to act for him or her.
Date: _________________________
Signature: ____________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated
Declaration of Trust of RJR Nabisco Holdings Capital Trust [ ] dated as of
______, 1998 (as amended from time to time, the "Declaration"), the
designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities are set forth below (each capitalized
term used but not defined herein having the meaning set forth in the
Declaration):
1. Designation and Number. Common Securities of the Trust with
an aggregate liquidation amount in the assets of the Trust of
___________________________________________ Dollars ($_________) and a
liquidation amount in the assets of the Trust of $25 per Common Security, are
hereby designated as "____% Trust Originated Common Securities". The Common
Security Certificates evidencing the Common Securities shall be substantially
in the form attached hereto as Annex I, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice. The Common Securities are to be issued and sold to RJR Nabisco
Holdings Corp. ("Holdings") in consideration of $_________ in cash. In
connection with the issuance and sale of the Preferred Securities and the
Common Securities, the Trust will purchase as trust assets Debentures of
Holdings having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and Common Securities so
issued, and bearing interest at an annual rate equal to the annual Distribution
rate on the Preferred Securities and Common Securities and having payment and
redemption provisions which correspond to the payment and redemption
provisions of the Preferred Securities and Common Securities.
2. Distributions. (a) Distributions payable on each Common
Security will be fixed at a rate per annum of ____% (the "Coupon Rate") of the
stated liquidation amount of $25 per Common Security. Distributions in
arrears for more than one quarter will bear interest at the rate per annum of
____% thereof (to the extent permitted by applicable law), compounded
quarterly. The term "Distributions" as used in these terms means such
periodic cash distributions and any such interest payable unless otherwise
stated. A Distribution will be made by the Institutional Trustee only to the
extent that interest payments are made in respect of the Debentures held by the
Institutional Trustee. The amount of Distributions payable for any period will
be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed in such a 30-day month.
(b) Distributions on the Common Securities will be cumulative, will
accrue from ______, 199_ and will be payable quarterly in arrears, on
_______, ______, ___________ and __________ of each year, commencing on
_______, 199_, except as otherwise described below, but only if and to the
extent that interest payments are made in respect of the Debentures held by
the Institutional Trustee. So long as Holdings shall not be in default in
the payment of interest on the Debentures, Holdings has the right under the
Indenture for the Debentures to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period
not exceeding 20 consecutive quarterly interest periods (each, an
"Extension Period") and, as a consequence, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by
applicable law) at the rate of ____% per annum, compounded quarterly during
any such Extension Period. Prior to the termination of any such Extension
Period, Holdings may further extend such Extension Period; provided that
such Extension Period together with all such previous and further
extensions thereof may not exceed 20 consecutive quarterly interest periods
and provided, further, that no Extension Period may extend beyond the
maturity of the Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, Holdings may commence a new
Extension Period, subject to the above requirements. Payments of accrued
Distributions will be payable to Holders of Common Securities as they
appear on the books and records of the Trust on the record date for the
first payment occurring on or after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable promptly by
the Institutional Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the
books and records of the Trust on the relevant record dates which will be
one business day prior to the relevant Distribution date which record and
payment dates correspond to the record and interest payment dates on the
Debentures. Distributions payable on any Common Securities that are not
punctually paid on any Distribution date as a result of Holdings having
failed to make the corresponding interest payment on the Debentures will
forthwith cease to be payable to the person in whose name such Common
Security is registered on the relevant record date, and such defaulted
Distribution will instead be payable to the person in whose name such
Common Security is registered on the special record date established by the
Regular Trustees, which record date shall correspond to the special record
date or other specified date determined in accordance with the Indenture;
provided, however, that Distributions shall not be considered payable on
any Distribution payment date falling within an Extension Period unless
Holdings has elected to make a full or partial payment of interest accrued
on the Debentures on such Distribution payment date. Subject to any
applicable laws and regulations and the provisions of the Declaration, each
payment in respect of the Common Securities will be made as described in
paragraph 9 hereof. If any date on which Distributions are payable on the
Common Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on
such date and the record date for such payment shall be the immediately
preceding Business Day.
(d) All Distributions paid with respect to the Common Securities and
the Preferred Securities will be paid Pro Rata to the Holders thereof
entitled thereto. If an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities
with respect to Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money
or property shall be distributed Pro Rata among the Holders of the
Preferred Securities and Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Preferred Securities and Common Securities at the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive Pro Rata solely out of the assets of the Trust available for
distribution to Holders of Preferred Securities and Common Securities, after
satisfaction of liabilities to creditors, as provided by applicable law, an
amount equal to the aggregate of the stated liquidation amount of $25 per
Preferred Security and Common Security plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution, winding-up or
termination, and after satisfaction of liabilities to creditors, as provided by
applicable law, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Preferred Securities and Common
Securities bearing accrued and unpaid interest in an amount equal to the accrued
and unpaid Distributions on, such Preferred Securities and Common Securities,
shall be distributed Pro Rata to the Holders of the Preferred Securities and
Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Preferred Securities and Common Securities shall
be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
Securities and Common Securities may only be redeemed if Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and Common Securities are repaid, redeemed or distributed
as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part, whether
at maturity, upon redemption at any time or from time to time on or after
___________, 199_, the proceeds of such repayment will be promptly applied
to redeem Pro Rata Preferred Securities and Common Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than 60
days' notice, at a redemption price of $25 per Preferred and Common
Security plus an amount equal to accrued and unpaid Distributions thereon
to the date of redemption, payable in cash (the "Redemption Price"). The
date of any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or
redemption date of the Debentures.
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed Pro Rata and the Common Securities to be
redeemed will be redeemed as described in paragraph 4(e)(ii) below. If a
partial redemption would result in the delisting of the Preferred
Securities by any national securities exchange or other organization on
which the Preferred Securities are then listed, Holdings pursuant to the
Indenture will only redeem Debentures in whole and, as a result, the Trust
may only redeem the Common Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed
in the limited circumstances described below, dissolve the Trust and, after
satisfaction of creditors, cause Debentures held by the Institutional
Trustee having an aggregate principal amount equal to the aggregate stated
liquidation amount of and accrued and unpaid interest equal to accrued and
unpaid Distributions on, and having the same record date for payment as the
Preferred Securities and Common Securities, to be distributed to the
Holders of the Preferred Securities and Common Securities on a Pro Rata
basis in liquidation of such Holders' interests in the Trust, within 90
days following the occurrence of such Special Event (the "90 Day Period");
provided, however, that in the case of the occurrence of a Tax Event, as a
condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may
rely on any then applicable published revenue rulings of the Internal
Revenue Service, to the effect that the Holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust and distribution of
Debentures; and provided, further, that, if and as long as at the time
there is available to the Trust the opportunity to eliminate, within the 90
Day Period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the Trust, Holdings, or
the Holders of the Preferred Securities ("Ministerial Action") the Trust
will pursue such measure in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the
Regular Trustees have received an opinion (a "Redemption Tax Opinion") of
nationally recognized independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that
Holdings would be precluded from deducting the interest on the Debentures for
United States federal income tax purposes even if the Debentures were
distributed to the Holders of Preferred Securities and Common Securities in
liquidation of such Holder's interest in the Trust as described in this
paragraph 4(c) or (ii) the Regular Trustees shall have been informed by such
tax counsel that a No Recognition Opinion cannot be delivered to the Trust,
Holdings shall have the right at any time, upon not less than 30 nor more than
60 days notice, to redeem the Debentures in whole or in part for cash at the
Redemption Price within 90 days following the occurrence of such Tax Event,
and promptly following such redemption Preferred Securities and Common
Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed will be redeemed by the Trust
at the Redemption Price on a Pro Rata basis: provided, however, that, if at the
time there is available to Holdings or the Regular Trustees on behalf of the
Trust the opportunity to eliminate, within such 90 day period, the Tax Event
by taking some Ministerial Action, Holdings or the Holders of the Preferred
Securities, Holdings or the Regular Trustees on behalf of the Trust will pursue
such measure in lieu of redemption; and provided, further, that Holdings shall
have no right to redeem the Debentures while the Regular Trustees on behalf
of the Trust are pursuing such Ministerial Action. The Common Securities will
be redeemed Pro Rata with the Preferred Securities, except if an Event of
Default under the Indenture has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with respect to
payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained
an opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that on or after ________,
199_ as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
any amendment to, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after ______, 199_, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount
of taxes, duties or other governmental charges or (iii) interest payable by
Holdings to the Trust on the Debentures is not, or within 90 days of the date
thereof will not be, deductible by Holdings for United States federal income
tax purposes.
"Investment Company Event" means that the Regular Trustees shall
have received an opinion of nationally recognized independent counsel
experienced in practice under the Investment Company Act that, as a result of
the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after ______, 199_.
On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed
to be outstanding and (ii) any certificates representing Common Securities
will be deemed to represent beneficial interests in the Debentures having an
aggregate principal amount equal to the stated liquidation amount of, and
bearing accrued and unpaid interest equal to accrued and unpaid Distributions
on, such Common Securities until such certificates are presented to Holdings
or its agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Common
Securities unless all accrued and unpaid Distributions have been paid on
all Common Securities for all quarterly Distribution periods terminating on
or prior to the date of redemption.
(e) (i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and Common Securities
(a "Redemption/Distribution Notice") will be given by the Regular Trustees
on behalf of the Trust by mail to each Holder of Preferred Securities and
Common Securities to be redeemed or exchanged not less than 30 nor more
than 60 days prior to the date fixed for redemption or exchange thereof.
For purposes of the calculation of the date of redemption or exchange and
the dates on which notices are given pursuant to this paragraph (e)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Preferred Securities and Common Securities. Each Redemption/Distribution
Notice shall be addressed to the Holders of Preferred Securities and
Common Securities at the address of each such Holder appearing in the
books and records of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder
shall affect the validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed Pro Rata from each Holder of Common Securities (subject to
adjustment to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/Distribution Notice in respect
of a redemption of Common Securities as provided in this paragraph 4 (which
notice will be irrevocable) then immediately prior to the close of business
on the redemption date, provided that Holdings has paid to the Trust in
immediately available funds a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, Distributions will
cease to accrue on the Common Securities called for redemption, such Common
Securities will no longer be deemed to be outstanding and all rights of
Holders of such Common Securities so called for redemption will cease,
except the right of the Holders of such Common Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither
the Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Common Securities which have been so called
for redemption. If any date fixed for redemption of Common Securities is
not a Business Day, then payment of the Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of Common Securities is
improperly withheld or refused and not paid by the Institutional Trustee,
Distributions on such Common Securities will continue to accrue, from the
original redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes
of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Common Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Common
Security Certificates shall be deemed to represent beneficial interests in
the Debentures so distributed, and the Common Securities will no longer be
deemed outstanding and may be canceled by the Regular Trustees. The
Debentures so distributed shall have an aggregate principal amount equal to
the aggregate liquidation amount of the Common Securities so distributed.
5. Voting Rights. (a) Except as provided under paragraph 5(b)
below and as otherwise required by law and the Declaration, the Holders of the
Common Securities will have no voting rights.
(b) Except as provided in the Declaration with respect to a Special Regular
Trustee, Holders of Common Securities have the sole right under the Declaration
to increase or decrease the number of Trustees, and to appoint, remove or
replace a Trustee, any such increase, decrease, appointment, removal or
replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Institutional Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Common
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal
as a class and such amendment or proposal shall not be effective except with
the approval of the Holders of Securities representing a Majority in
liquidation amount of such Securities; provided, however, (A) if any
amendment or proposal referred to in clause (i) above would adversely
affect only the Preferred Securities or the Common Securities, then only
the affected class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Securities,
(B) the rights of Holders of Common Securities under Article 5 of the
Declaration to increase or decrease the number of, and to appoint, replace
or remove, Trustees (other than a Special Regular Trustee) shall not be
amended without the consent of each Holder of Common Securities, and (C)
amendments to the Declaration shall be subject to such further requirements
as are set forth in Sections 12.01 and 12.02 of the Declaration.
In the event the consent of the Institutional Trustee as the
holder of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Institutional Trustee shall vote with respect to such amendment, modification
or termination as directed by a Majority in liquidation amount of the
Securities voting together as a single class; provided that where such
amendment, modification or termination of the Indenture requires the consent
or vote of (1) holders of Debentures representing a specified percentage
greater than a majority in principal amount of the Debentures or (2) each
holder of Debentures, the Institutional Trustee may only vote with respect to
that amendment, modification or termination as directed by, in the case of
clause (1) above, the vote of Holders of Securities representing such specified
percentage of the aggregate liquidation amount of the Securities, or, in the
case of clause (2) above, each Holder of Securities; and provided, further,
that the Institutional Trustee shall be under no obligation to take any action
in accordance with the directions of the Holders of the Securities unless the
Institutional Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as an
expert in such matters to the effect that the Trust will not be classified for
United States federal income tax purposes as an association taxable as a
corporation or a partnership on account of such action and will be treated as a
grantor trust for United States federal income tax purposes following such
action.
Subject to Section 2.06 of the Declaration, and the provisions
of this and the next succeeding paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class
shall have the right to (A) on behalf of all Holders of Common Securities,
waive any past default that is waivable under the Declaration (subject to, and
in accordance with the Declaration) and (B) direct the time, method, and place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including the right to direct the Institutional
Trustee, as holder of the Debentures, to (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 6.4 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable; provided that where the taking of any
action under the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (e) each holder of Debentures, the
Institutional Trustee may only take such action if directed by, in the case of
clause (1) above, the vote of Holders of Common Securities representing such
specified percentage of the aggregate liquidation amount of the Common
Securities, or, in the case of clause (2) above, each Holder of Common
Securities. Pursuant to this paragraph, the Institutional Trustee shall not
revoke, or take any action inconsistent with, any action previously authorized
or approved by a vote of the Holders of the Preferred Securities, and shall
not take any action in accordance with the direction of the Holders of the
Common Securities under this paragraph if the action is prejudicial to the
Holders of Preferred Securities. Other than with respect to directing the
time, method and place of conducting any proceeding for any remedy available
to the Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall be under no obligation to take any of the
foregoing actions at the direction of the Holders of Common Securities unless
the Properties Trustee shall have received, at the expense of the Sponsor, an
opinion of nationally recognized independent tax counsel recognized as expert
in such matters to the effect that the Trust will not be classified for United
States federal income tax purposes as an association taxable as a corporation
or a partnership on account of such action and will be treated as a grantor
trust for United States income tax purposes following such action.
Notwithstanding any other provision of these terms, each Holder
of Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by
the Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities
or otherwise eliminated, the Institutional Trustee will be deemed to be acting
solely on behalf of the Holders of Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Institutional
Trustee in accordance with the terms of the Declaration or of the Securities.
In the event that any Event of Default with respect to the Preferred
Securities is waived by the Holders of Preferred Securities as provided in the
Declaration, the Holders of Common Securities agree that such waiver shall
also constitute the waiver of such Event of Default with respect to the Common
Securities for all purposes under the Declaration without any further act,
vote or consent of the Holders of the Common Securities.
A waiver of an Indenture Event of Default by the Institutional
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the
Declaration in respect of the Securities.
Any required approval of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities of the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and (iii)
instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities in accordance
with the Declaration.
6. Pro Rata Treatment. A reference in these terms of the Common
Securities to any payment, distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
7. Ranking. The Common Securities rank pari passu with the
Preferred Securities except that where an Event of Default occurs and is
continuing, the rights of Holders of Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise are
subordinate to the rights of Holders the Preferred Securities.
8. Mergers, Consolidations or Amalgamations. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets to, any corporation or other body.
9. Transfers, Exchanges, Method of Payments. Payment of
Distributions and payments on redemption of the Common Securities will be
payable, the transfer of the Common Securities will be registrable, and Common
Securities will be exchangeable for Common Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust
office of the Institutional Trustee in The City of New York; provided that
payment of Distributions may be made at the option of the Regular Trustees on
behalf of the Trust by check mailed to the address of the persons entitled
thereto and that the payment on redemption of any Common Security will be made
only upon surrender of such Common Security to the Institutional Trustee.
Notwithstanding the foregoing, transfers of Common Securities are subject to
conditions set forth in Section 9.01(c) of the Declaration.
10. Acceptance of Indenture. Each Holder of Common Securities, by
the acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions thereof.
11. No Preemptive Rights. The Holders of Common Securities shall
have no preemptive rights to subscribe to any additional Common Securities or
Preferred Securities.
12. Miscellaneous. These terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Common Securities
C-1 ______
Certificate Evidencing Common Securities
of
RJR Nabisco Holdings Capital Trust [ ]
____% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
RJR Nabisco Holdings Capital Trust [ ], a statutory business
trust formed under the laws of the State of Delaware (the "Trust"), hereby
certifies that RJR Nabisco Holdings Corp. (the "Holder") is the registered
owner of _____________________________ (______) common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ____% Trust Originated Common Securities (liquidation amount
$25 per Common Security) (the "Common Securities"). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer and satisfaction of the other conditions set forth in
the Declaration (as defined below) including, without limitation Section
9.01(c) thereof. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions
of, the Amended and Restated Declaration of Trust of the Trust dated as of
_____, 199_, as the same may be amended from time to time (the "Declaration")
including the designation of the terms of Common Securities as set forth in
Exhibit C thereto. The Common Securities and the Preferred Securities issued
by the Trust pursuant to the Declaration represent undivided beneficial
interests in the assets of the Trust, including the Debentures (as defined in
the Declaration) issued by RJR Nabisco Holdings Corp., a Delaware corporation,
to the Trust pursuant to the Indenture referred to in the Declaration. The
Trust will furnish a copy of the Declaration and the Indenture to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment
to all Senior Indebtedness (as defined in the Indenture) as and to the extent
provided in the Indenture.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this __th day of ____, 199_.
RJR NABISCO HOLDINGS CAPITAL TRUST [ ]
By ________________________, as trustee
Name:
Title:
By _________________________, as trustee
Name:
Title: Trustee
Dated:
Countersigned and Registered:
_____________________________
Transfer Agent and Registrar
By: ___________________________
Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfer this
Common Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books
of the Trust. The agent may substitute another to act for him or her.
Date: _________________________
Signature: ____________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)