8/26/98 Draft
RJR NABISCO HOLDINGS CORP.
RJR NABISCO HOLDINGS CAPITAL TRUSTS
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
____ __, 1998
From time to time, RJR Nabisco Holdings Capital Trust II, RJR
Nabisco Holdings Capital Trust III, RJR Nabisco Holdings Capital Trust IV, RJR
Nabisco Holdings Capital Trust V and RJR Nabisco Holdings Capital Trust VI and
each other statutory business trust (collectively, the "Trusts") formed by the
Company under the laws of the State of Delaware and RJR Nabisco Holdings
Corp., a Delaware corporation (the "Company"), as sponsor of each of the
Trusts and as guarantor, may enter into one or more underwriting agreements
(each an "Underwriting Agreement") that provide for the sale by the Trust
identified therein (such Trust being the "Designated Trust" with respect to
such Underwriting Agreement) of certain of its preferred securities (the
"Securities") to the several underwriters named therein (such underwriters
constituting the "Underwriters" with respect to such Underwriting Agreement
and such Securities). The Securities specified in such Underwriting Agreement
are referred to as the "Firm Designated Securities" with respect to such
Underwriting Agreement. If specified in such Underwriting Agreement, the
Designated Trust may grant the Underwriters the right to purchase at their
election an additional number of Securities, as provided in such Underwriting
Agreement as provided in Section 3 hereof (the "Option Designated
Securities"). The Firm Designated Securities and the Option Designated
Securities are collectively called the "Designated Securities." The proceeds
of the sale of the Designated Securities to the public and of the common
securities of the Designated Trust (the "Common Securities") to the Company
concurrently with the sale of the Designated Securities will be invested in
junior subordinated debentures of the Company (the "Subordinated Debentures")
identified in the Underwriting Agreement (with respect to such Underwriting
Agreement, the "Designated Subordinated Debentures"), to be issued pursuant to
the Indenture dated as of September 21, 1995 (the "Indenture") between the
Company and The Bank of New York, as trustee (the "Indenture Trustee"). The
Securities will be guaranteed by the Company to the extent set forth in a
guarantee agreement identified in the Underwriting Agreement (the "Designated
Guarantee" and any such Designated Guarantee, the "Guarantee") between the
Company and The Bank of New York, as trustee (the "Guarantee Trustee"). The
terms and rights of any particular issuance of Designated Securities will be
specified in the Underwriting Agreement and in or pursuant to the amended and
restated trust agreement identified in such Underwriting Agreement (with
respect to such Underwriting Agreement, the "Trust Agreement") among The Bank
of New York, as trustee (the "Property Trustee") and the other trustees named
therein (collectively with the Property Trustee, the "Trustees"). The
Securities, the Guarantee and the Subordinated Debentures are collectively
referred to herein as the "Offered Securities" and the Designated Securities,
the Designated Guarantee and the Designated Subordinated Debentures are
collectively referred to herein as the "Designated Offered Securities." The
Indenture, the Designated Subordinated Debenture, the Trust Agreement of the
Designated Trust and the Designated Guarantee are collectively referred to
herein as the "Company Agreements."
The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement.
The Company and the Trusts have filed with the Securities and
Exchange Commission (the "Commission") a registration statement, including a
prospectus, relating to the Offered Securities and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Designated Offered Securities
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"). The term "Registration Statement" means the registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the
Designated Offered Securities, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement" and "amendment" or "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company and the Trusts with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The term Contract Securities means the Designated Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company and the
Designated Trust may approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Designated Securities other than Contract
Securities.
1. Representations and Warranties. Each of the Company and the
Designated Trust jointly and severally represents and warrants to each of the
Underwriters that:
(a) The Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending before
or, to the Company's or the Designated Trust's knowledge, threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Indenture Trustee, the Property Trustee or the
Guarantee Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
assets and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the financial condition or the results of operations of the Company and its
subsidiaries, taken as a whole.
(d) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the laws of the State of
Delaware, is and will be treated as a "grantor trust" for Federal income tax
purposes under existing law, has the business trust power and authority to
conduct its business as presently conducted and as described in the
Prospectus, and is not required to be authorized to do business in any other
jurisdiction.
(e) Each of R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco
International, Inc. and Nabisco, Inc. (collectively, the "Principal Operating
Subsidiaries") has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
assets and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the financial condition or the results of operations of the Company and its
subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and the Designated Trust.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally and of
general principles of equity, whether applied by a court of law or equity.
(h) The Designated Subordinated Debentures to be deposited in
the Designated Trust as trust assets in connection with offering of the
Designated Offered Securities have been duly and validly authorized and when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to the Designated Trust will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally and of
general principles of equity, whether applied by a court of law or equity.
(i) The Trust Agreement for the Designated Trust has been duly
qualified under the Trust Indenture Act and has been duly authorized by the
Company and, when executed and delivered by the Company and the Trustees, will
be a valid and binding obligation of the Company and the Trustees, enforceable
against the Company and the Trustees in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
and remedies generally and to general principles of equity, whether applied by
a court of law or equity. The Designated Guarantee has been duly qualified
under the Trust Indenture Act and has been duly authorized by the Company and,
when executed and delivered by the Company and the Guarantee Trustee, will be
a valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally and of general principles of
equity, whether applied by a court of law or equity.
(j) The Designated Securities to be issued by the Designated
Trust have been duly authorized by the Designated Trust's Trust Agreement and,
when executed and authenticated in accordance with the provisions of such
Trust Agreement and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of the
Underwriters' Securities, or by institutional investors in accordance with the
terms of the Delayed Delivery Contracts, in the case of the Contract
Securities, will be validly issued and (subject to the terms of such Trust
Agreement) fully paid and nonassessable undivided beneficial interests in the
assets of the Designated Trust, not subject to any preemptive or similar
rights, and will conform to all statements relating thereto contained in the
Prospectus. Holders of Designated Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit.
(k) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and the Designated Trust and are valid
and binding agreements of the Company and the Designated Trust, enforceable
against the Company and the Designated Trust in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting the
rights and remedies of creditors generally and of general principles of
equity, whether applied by a court of law or equity.
(l) The Company and the Designated Trust are not in violation of
any provision of the certificate of incorporation or by-laws of the Company or
the Trust Agreement of the Designated Trust. The execution and delivery by
the Company and the Designated Trust of, the performance by the Company and the
Designated Trust of their obligations under, this Agreement, the Company
Agreements or the Delayed Delivery Contracts, the issuance and delivery by the
Designated Trust of the Designated Securities and the fulfillment of the terms
herein contemplated will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or the Trust Agreement
of the Designated Trust or any agreement or other instrument binding upon the
Company or any of its subsidiaries or the Designated Trust or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary or the Designated Trust, except for such
contraventions that would not, individually or in the aggregate, have a
material adverse effect on the financial condition or results of operations of
the Company and its subsidiaries taken as a whole, or the Designated Trust and
no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company or
the Designated Trust of their obligations under this Agreement, the Company
Agreements or the Delayed Delivery Contracts and the issuance and delivery of
the Designated Securities, except as have been obtained under the Securities
Act, the Exchange Act and the Trust Indenture Act and except as such as may be
required by the securities or Blue Sky laws of the various states or other
jurisdictions in connection with the offer and sale of the Designated Offered
Securities.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole, or the Designated Trust from that set forth in the Prospectus.
(n) There are no legal or governmental proceedings pending or, to
the best of the Company's or the Designated Trust's knowledge, threatened to
which the Company or any of its subsidiaries or the Designated Trust is a
party or to which any of the properties of the Company or any of its
subsidiaries or the Designated Trust is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
filed as required.
(o) Neither the Company nor the Designated Trust is, or after
giving effect to the consummation of transactions contemplated by this
Agreement, will be, and neither the Company nor the Designated Trust is
directly or indirectly controlled by, or acting on behalf of any person which
is, an investment company within the meaning of the Investment Company Act of
1940, as amended.
(p) The Company has complied with all provisions of Section
517.075 Florida Statutes (Chapter 92-198, Laws of Florida).
2. Delayed Delivery Contracts. If the Prospectus provides for
sales of Designated Securities pursuant to Delayed Delivery Contracts, the
Company and the Designated Trust hereby authorizes the Underwriters to solicit
offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to Delayed Delivery Contracts.
Delayed Delivery Contracts may be entered into only with institutional
investors approved by the Company of the types set forth in the Prospectus.
On each Closing Date, the Company will pay to the Manager, by wire transfer of
immediately available funds to a bank account designated by the Manager, as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or
the performance of any Delayed Delivery Contracts.
If the Company and the Designated Trust executes and delivers
Delayed Delivery Contracts with institutional investors, the aggregate amount
of Designated Securities to be purchased by the several Underwriters shall be
reduced by the aggregate amount of Contract Securities; such reduction shall
be applied to the commitment of each Underwriter pro rata in proportion to the
amount of Designated Securities set forth opposite such Underwriter's name in
the Underwriting Agreement, except to the extent that the Manager determines
that such reduction shall be applied in other proportions and so advises the
Company; provided, however, that the total amount of Designated Securities to
be purchased by all Underwriters shall be the aggregate amount set forth
above, less the aggregate amount of Contract Securities.
3. Public Offering. The Company and the Designated Trust is
advised by the Manager that the Underwriters propose to make a public offering
of their respective portions of the Underwriters' Securities as soon after
this Agreement has been entered into as in the Manager's judgment is
advisable. The terms of the public offering of the Underwriters' Securities
are set forth in the Prospectus.
The Designated Trust may specify in the Underwriting Agreement
applicable to any Designated Securities that the Designated Trust thereby
grants to the Underwriters the right (an "Over-allotment Option") to purchase
at their election up to the number of Optional Designated Securities set forth
in such Underwriting Agreement, on the terms set forth in the paragraph above,
for the sole purpose of covering over-allotments in the sale of the
Underwriters' Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Manager to the
Designated Trust and the Company, given within a period specified in the
Underwriting Agreement, setting forth the aggregate number of Optional
Designated Securities to be purchased and the date on which such Optional
Designated Securities are to be delivered, as determined by the Manager but in
no event earlier than the First Closing Date (as defined in Section 4 hereof)
or, unless the Manager, the Designated Trust and the Company otherwise agree
in writing, earlier than or later than the respective number of business days
after the date of such notice set forth in such Underwriting Agreement.
The number of Optional Designated Securities to be added to the
number of Underwriters' Securities to be purchased by each Underwriter as set
forth in Schedule I to the Underwriting Agreement applicable to such
Designated Securities shall be, in each case, the number of Optional Designated
Securities which the Designated Trust and the Company have been advised by the
Manager have been attributed to such Underwriter; provided that, if the
Designated Trust and the Company have not been so advised, the number of
Optional Designated Securities to be so added shall be, in each case, that
proportion of Optional Designated Securities which the number of Underwriters'
Securities to be purchased by such Underwriter under such Underwriting
Agreement bears to the aggregate number of Underwriters' Securities (rounded
as the Manager may determine to the nearest 100 securities). The total number
of Designated Securities to be purchased by all the Underwriters pursuant to
such Underwriting Agreement shall be the aggregate number of Underwriters'
Securities set forth in Schedule I to such Underwriting Agreement plus the
aggregate number of Optional Designated Securities which the Underwriters
elect to purchase.
As compensation to the Underwriters of the Underwriters'
Securities for their commitments hereunder and under the Underwriting
Agreement, and in view of the fact that the proceeds of the sale of the
Designated Securities will be used by the Designated Trust to purchase the
Designated Subordinated Debentures of the Company, the Company agrees to pay,
by wire transfer of immediately available funds to a bank account designated
by the Manager, at each Closing Date to the Manager, for the accounts of the
several Underwriters, the amount set forth in the Underwriting Agreement per
Underwriters' Security to be delivered at each Closing Date.
4. Purchase and Delivery. Except as otherwise provided in this
Section 4, payment for the Underwriters' Securities shall be made by certified
or official bank check or checks payable to the order of the Designated Trust
in New York Clearing House funds (or such other funds as are specified in the
Underwriting Agreement) at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective accounts of the
several Underwriters of the Underwriters' Securities, registered in such names
and in such denominations as the Manager shall request in writing not less
than two full business days prior to the date of delivery, with any transfer
taxes payable in connection with the transfer of the Underwriters' Securities
to the Underwriters duly paid.
Certificates for the Underwriters' Securities to be purchased by
each Underwriter pursuant to the Underwriting Agreement relating thereto, in
the form specified in such Underwriting Agreement, and in such authorized
denominations and registered in such names as the Manager may request upon at
least forty-eight hours' prior notice to the Designated Trust and the Company,
shall be delivered by or on behalf of the Designated Trust to the Manager for
the account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer of immediately
available funds to an account designated by the Designated Trust, (i) with
respect to the Firm Designated Securities, all in the manner and at the place
and time and date specified in such Underwriting Agreement or at such other
place and time and date as the Manager, the Designated Trust and the Company
may agree upon in writing. Such time and date being herein called the "First
Closing Date" and (ii) with respect to the Optional Designated Securities, if
any, in the manner and at the time and date specified by the Manager in the
written notice given by the Manager of the Underwriters' election to purchase
such Optional Designated Securities, or at such other time and date as the
Manager, the Designated Trust and the Company may agree upon in writing, such
time and date, if not the First Closing Date, herein called the "Second
Closing Date." Each such time and date for delivery is herein called a
"Closing Date."
5. Conditions to Closing. The several obligations of the
Underwriters hereunder on each Closing Date are subject to the following
conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to each Closing Date,
(i) there shall not have occurred any downgrading in the
rating accorded any securities of the Company or a Trust by any
"nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act and no such organization shall have
revised its public announcements that it has under surveillance or
review, with possible negative implications, its rating of any
securities of the Company or a Trust; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus, that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Designated Securities on the terms and
in the manner contemplated in the Prospectus.
(b) The Manager shall have received on each Closing Date a
certificate, dated such Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct in all material respects as of
such Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on each Closing Date a
certificate, dated such Closing Date and signed by a regular trustee of
the Designated Trust, to the effect that the representations and
warranties of the Designated Trust contained in this Agreement are true
and correct in all material respects as of such Closing Date and that
the Designated Trust has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
on or before such Closing Date.
The regular trustee signing and delivering such certificate may
rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on each Closing Date an
opinion of counsel for the Company and the Designated Trust, dated such
Closing Date, to the effect set forth in Exhibit A-1.
(e) The Manager shall have received on each Closing Date an
opinion of special Delaware counsel for the Company and the Designated
Trust, dated such Closing Date, to the effect set forth in Exhibit A-2.
(f) The Manager shall have received on each Closing Date an
opinion of counsel for the Underwriters, dated such Closing Date, to the
effect set forth in Exhibit B.
(g) The Manager shall have received on the date hereof and each
Closing Date a letter, dated such date, in form and substance
satisfactory to the Manager, from the Company's independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
6. Covenants of the Company and the Designated Trust. In further
consideration of the agreements of the Underwriters contained herein, each of
the Company and the Designated Trust covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to
the Registration Statement as the Manager may reasonably request.
(b) Prior to the termination of the offering of the Designated
Offered Securities pursuant to this Agreement, before amending or
supplementing the Registration Statement or the Prospectus with respect
to the Designated Offered Securities, to furnish to the Manager a copy
of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects;
provided, however, that the foregoing requirement shall not apply to any
of the Company's periodic filings with the Commission required to be
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
copies of which filings the Company will cause to be delivered to the
Manager promptly after being transmitted for filing with the Commission.
(c) If, during such period after the first date of the public
offering of the Designated Offered Securities as in the opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters, and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Designated Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealer upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Designated Offered Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection
with such qualification and in connection with any review of the
offering of the Designated Offered Securities by the National
Association of Securities Dealers, Inc. (the "NASD"), provided that
neither the Company nor the Designated Trust shall be obligated to so
qualify the Designated Offered Securities if such qualification requires
it to file any general consent to service of process or to register or
qualify as a foreign corporation in any jurisdiction in which it is not
so registered or qualified.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement covering
a twelve month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(f) To use its best efforts to effect the listing of the
Designated Securities on the New York Stock Exchange ("NYSE"), subject
to official notice of issuance, as soon as practicable after the date of
this Agreement.
(g) During the period beginning on the date of the Underwriting
Agreement for such Designated Securities and continuing to and including
the date which is forty-five days after the last Closing Date for such
Designated Securities, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any Securities, any other
beneficial interests in the assets of any Trust or any preferred
securities or any other securities of any Trust or the Company, as the
case may be, that are substantially similar to such Designated Securities
(including any guarantee of such securities) or any securities that are
convertible into or exchangeable for, or that represent the right to
receive Securities, such beneficial interests or such preferred
securities or any such substantially similar securities of any Trust or
the Company without the prior written consent of the Manager.
(h) To pay all costs and expenses incurred in connection with
the performance of its obligations in connection with this Agreement
including, without limitation, (i) the preparation, printing and filing
of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the preliminary
prospectuses, the Prospectus and any amendments or supplements to any of
the foregoing, and the cost of furnishing copies thereof to the
Underwriters, (ii) the preparation and distribution of this Agreement
and any Blue Sky surveys and the preparation and printing of certificates
for the Designated Securities, (iii) the fees and disbursements of
counsel to the Company and the Designated Trust and the Company's and
the Designated Trust's accountants, (iv) the qualification of the
Designated Offered Securities under the applicable securities laws in
accordance with Section 6(d) and any filing for review with the NASD
(including filing fees and fees and disbursements of counsel for the
Manager in connection with such filing with the NASD), (vi) the fees and
expenses of the Trustees of the Designated Trust and (vii) all other
costs and expenses incident to the offering of the Designated Offered
Securities incurred by the Designated Trust and the Company and its
subsidiaries.
7. Indemnification and Contribution. The Company and the
Designated Trust jointly and severally agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls such Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Manager expressly for use therein; provided that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Designated Securities, or any person
controlling such Underwriter, if it shall be established that a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
copies of the Prospectus as then amended or supplemented in compliance with
Section 6(a) hereof) was not sent or given by or on behalf of such
Underwriter, to such person, if required by law so to have been delivered, at
or prior to the written confirmation of the sale of the Designated Securities
to such person, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such losses, claims, damages or
liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless (i) the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and (ii) the Designated Trust and its trustees to the same
extent as the foregoing indemnity from the Company and the Designated Trust to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through
the Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the
Manager, in the case of parties indemnified pursuant to the second preceding
paragraph, and by the Company, in the case of parties indemnified pursuant to
the first preceding paragraph. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first or second
paragraph in this Section 7 is unavailable to an indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Designated Trust on the one hand and
the Underwriters on the other hand from the offering of the Designated Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Designated Trust on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits
received by the Company and the Designated Trust on the one hand and the
Underwriters on the other hand in connection with the offering of the
Designated Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Designated Offered
Securities (before deducting expenses) received by the Company and/or the
Designated Trust and the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover of
the Prospectus Supplement, bear to the aggregate public offering price of the
Designated Securities. The relative fault of the Company on the one hand and
of the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Designated Trust or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective liquidation amounts of
Designated Securities they have purchased hereunder, and not joint.
The Company, the Designated Trust and the Underwriters agree that
it would not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to
in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company or the Designated Trust or its trustees and (iii) acceptance of and
payment for any of the Designated Securities.
8. Termination. This Agreement shall be subject to termination,
by notice given by the Manager to the Company and the Designated Trust, if (a)
after the execution and delivery of the Underwriting Agreement and prior to
the First Closing Date (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or materially limited, (ii) trading
in debt or equity securities of the Company or a Trust on the New York Stock
Exchange shall have been suspended or materially limited, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, which event is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the reasonable judgment of the Manager, impracticable to market the
Designated Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on a Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Underwriters'
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate amount of the Underwriters' Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of Underwriters' Securities set forth
opposite their respective names above bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such amount of Underwriters' Securities without the written consent of such
Underwriter. If, on a Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default occurs is more
than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities are not made within
36 hours after such default, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter, the Company or the Designated
Trust. In any such case either the Manager or the Company shall have the
right to postpone such Closing Date but in no event for longer then seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or the
Designated Trust to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason (other than termination due to the
preceding paragraph or Section 8 hereof) the Company or the Designated Trust
shall be unable to perform their obligations under this Agreement, the Company
will reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the
offering of the Designated Offered Securities, provided that the Company shall
have no further liability to any Underwriter except as provided in Section 7
hereof and with respect to the payment of expenses referred to in paragraph
(d) of Section 6 hereof.
10. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
11. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Exhibit A-1
Opinion of
Counsel for the Company
The opinion of counsel for the Company, to be delivered pursuant
to Section 5(d) of the Underwriting Agreement shall be to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and
assets and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, taken as a whole;
(ii) each Principal Operating Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and assets and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) the Underwriting Agreement and the Company Agreements have
been duly authorized, executed and delivered by the Company;
(iv) the Indenture, the Trust Agreement and the Designated
Guarantee have been duly qualified under the Trust Indenture Act and the
Indenture and the Designated Guarantee are valid and binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws
affecting the rights and remedies of creditors generally and of general
principles of equity, whether applied by a court of law or equity;
(v) when executed and authenticated in accordance with the
provisions of the Indenture and delivered to the Designated Trust,
the Designated Subordinate Debentures will be entitled to the
benefits of the Indenture and will be valid and binding obligations
of the Company enforceable against the Company in accordance with its
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws
affecting the rights and remedies of creditors generally and of
general principles of equity, whether applied by a court of law or
equity;
(vi) the Company and the Designated Trust are not in violation of
any provision of the certificate of incorporation or by-laws of the
Company or the Trust Agreement of the Designated Trust; and the execution
and delivery by the Company and the Designated Trust of, the performance
by the Company and the Designated Trust of their obligations under, this
Agreement, the Company Agreements or the Delayed Delivery Contracts, the
issuance and delivery by the Designated Trust of the Designated
Securities and the fulfillment of the terms herein contemplated will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or the Trust Agreement of the
Designated Trust or any agreement or other instrument binding upon the
Company or any of its subsidiaries or the Designated Trust that is
material to the Company and its subsidiaries, taken as a whole, or the
Designated Trust or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary or the Designated
Trust, except for such contraventions that would not, individually or in
the aggregate, have a material adverse effect on the financial condition
or results of operations of the Company and its subsidiaries taken as a
whole or the Designated Trust, and no consent, approval, authorization
or order of or qualification with any governmental body or agency is
required for the performance by the Company or the Designated Trust of
their obligations under the Underwriting Agreement, the Company
Agreements or the Delayed Delivery Contracts or the issuance and delivery
of the Designated Securities, except such as may be required by the
securities or Blue Sky laws of the various states or other jurisdictions
in connection with the offer and sale of the Designated Offered
Securities;
(vii) the statements in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Junior
Subordinated Debentures," "Description of the Junior Subordinated Debt
Securities," "Description of the Guarantee," "Description of the
Preferred Securities Guarantees" and "ERISA Matters," insofar as such
statements constitute summaries of the legal matters or documents
referred to therein are accurate in all material respects;
(viii) such counsel confirms its opinions in the Prospectus under
the caption "Taxation";
(ix) neither the Company nor the Designated Trust is, or after
giving effect to the consummation of transactions contemplated by this
Agreement, will be, and neither the Company nor the Designated Trust is
directly or indirectly controlled by, or acting on behalf of any person
which is, an investment company within the meaning of the Investment
Company Act of 1940, as amended;
(x) after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or
any of its subsidiaries or the Designated Trust is a party or to which
any of the properties or assets of the Company or any of its
subsidiaries or the Designated Trust is subject that is required to be
described in the Registration Statement or the Prospectus and is not so
described or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required;
(xi) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements and schedules included
therein as to which such counsel need not express any opinion) complied
when so filed as to form in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder,
(2) has no reason to believe that (except for financial statements and
schedules as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes the
Statements of Eligibility and Qualification (Form T-1) of the Indenture
Trustee, the Property Trustee or the Guarantee Trustee under the Trust
Indenture Act) each part of the Registration Statement, when such part
became effective contained, and as of the date such opinion is
delivered, contains any untrue statement of a material fact or, when
such part became effective, omitted or, as of the date such opinion is
delivered, omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (3) is of
the opinion that the Registration Statement and Prospectus (except for
financial statements and schedules included therein as to which such
counsel need not express any opinion and except for that part of the
Registration Statement that constitutes the Statements of Eligibility and
Qualification (Form T-1) of the Indenture Trustee, the Property Trustee
or the Guarantee Trustee under the Trust Indenture Act) comply as to
form in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4) has no reason
to believe that (except for financial statements and schedules as to
which such counsel need not express any belief) the Prospectus as of the
date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely as to certain
matters of fact on certificates of officers of the Company and of public
officials and may state that such counsel expresses no opinion as to the
laws of any jurisdiction other than the State of New York, the federal
law of the United States and the Delaware General Corporation Law.
The opinion of counsel for the Company (other than an opinion of
an officer of the Company) shall be rendered to you at the request of
the Company and shall so state therein.
With respect to paragraph (xi) above, counsel for the Company may
state that such counsel's opinion and belief are based upon such counsel's
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
Exhibit A-2
Opinion of
Special Delaware Counsel
for the Company
The opinion of special Delaware counsel for the Company, to be
delivered pursuant to Section 5(e) of the Underwriting Agreement shall be to
the effect that:
(i) the Designated Trust has been duly organized and is validly
existing in good standing as a business trust under the laws of the
State of Delaware and has the business trust power and authority to
conduct its business as described in the Prospectus;
(ii) the Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, enforceable against the
Company and the Trustees in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, moratorium and other similar laws affecting
the rights and remedies of creditors generally as from time to time
in effect, general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law),
and considerations of public policy or the effect of applicable law
relating to fiduciary duties;
(iii) under the Trust Agreement for the Designated Trust and
the laws of the State of Delaware, the execution and delivery of the
Underwriting Agreement and the Delayed Delivery Contracts by the
Designated Trust, and the performance by the Trust of its obligations
hereunder, have been duly authorized by all requisite business trust
action on the part of the Trust;
(iv) the Designated Securities have been duly authorized by the
Trust Agreement of the Designated Trust and are duly and validly
issued and, subject to the terms of such Trust Agreement, fully paid
and nonassessable beneficial interests in the Designated Trust. The
holders of Designated Securities will be, subject to the terms of the
Trust Agreement of the Designated Trust, entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law
of the State of Delaware; and
(v) under the Trust Agreement for the Designated Trust and the
laws of the State of Delaware, the issuance of the Designated
Securities is not subject to preemptive rights.
Exhibit B
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be delivered
pursuant to Section 5(f) of the Underwriting Agreement shall be to the effect
that:
(i) the Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware;
(ii) the Underwriting Agreement, the Company Agreements and the
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and, assuming due authorization, execution and delivery
by the Indenture Trustee, is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(iv) the Delayed Delivery Contracts are valid and binding
agreements of the Company, enforceable against the Company in
accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing;
(v) assuming due authentication thereof by the Indenture
Trustee and upon payment and delivery in accordance with the terms of
the Trust Agreement for the Designated Trust, the Designated
Subordinated Debentures will constitute valid and legally binding
obligations of the Company, in each case enforceable against the
Company in accordance with their respective terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing;
(vi) The Designated Guarantee has been duly qualified under
the Trust Indenture Act and, upon valid issuance and delivery of the
Designated Securities in accordance with the Underwriting Agreement,
will constitute a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing;
(vii) The Trust Agreement has been duly qualified under the
Trust Indenture Act and, assuming due authorization, execution and
delivery thereof by the Trustees, the Trust Agreement constitutes a
valid and legally binding instrument of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing;
(viii) The Designated Securities have been duly authorized
under the Trust Agreement and, upon payment and delivery in
accordance with the Underwriting Agreement, will be validly issued
and, subject to the terms of the Trust Agreement, fully paid and
nonassessable beneficial interests in the Designated Trust;
(ix) the statements in the Prospectus under the captions
"Description of the Preferred Securities," "Description of the Junior
Subordinated Debentures," "Description of the Junior Subordinated
Debt Securities," "Description of the Guarantee," and "Description of
the Preferred Securities Guarantees," insofar as they purport to
constitute summaries of certain terms of documents therein,
constitute accurate summaries of the terms of such documents in all
material respects; and
(x) such counsel (1) has no reason to believe that (except for
financial statements and schedules as to which such counsel need not
express any belief and except for that part of the Registration
Statement that constitutes the Form T-1 heretofore referred to) each
part of the Registration Statement, when such part became effective
contained, and as of the date such opinion is delivered, contains any
untrue statement of a material fact or, when such part became
effective, omitted or, as of the date such opinion is delivered,
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (2) is of
the opinion that the Registration Statement and Prospectus (except
for financial statements and schedules included therein as to which
such counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (3) has no reason to
believe that (except for financial statements and schedules as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading.
With respect to clause (x) above, such counsel may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the documents incorporated by reference) and
upon review and discussion of the contents thereof (including documents
incorporated by reference) but are without independent check or verification,
except as specified. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State
of New York, and the Federal law of the United States and the corporate law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Manager. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Designated Trust and
certificates of public officials.
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs:
The undersigned hereby agrees to purchase from RJR Nabisco
Holdings Capital Trust __, a statutory business trust (the "Trust") formed by
RJR Nabisco Holdings Corp., a Delaware corporation (the "Company"), under the
laws of the State of Delaware, and the Trust agrees to sell to the undersigned
the Trust's preferred securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's and the Trust's Prospectus dated
__________________, 19__ and Prospectus Supplement dated ________________,
19__, receipt of copies of which are hereby acknowledged, at a purchase price
stated in Schedule A and on the further terms and conditions set forth in this
Agreement. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Trust or its order by
certified or official bank check in New York Clearing House funds at the
office of ______________________________, New York, N.Y., at 10:00 A.M. (New
York time) on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company and the Trust
not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Trust shall have
sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company and the Trust will mail or
deliver to the undersigned as its address set forth below notice to such
effect, accompanied by a copy of the opinions of counsel for the Company and
the Trust delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this Agreement.
This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company and the Trust, it
is requested that the Company and the Trust sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding agreement, as of the date
first above written, between the Company and the Trust on the one hand and the
undersigned on the other hand when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
---------------------------
(Purchaser)
By
------------------------
---------------------------
(Title)
---------------------------
---------------------------
(Address)
Accepted:
RJR Nabisco Holdings Corp.
By
--------------------------------
RJR Nabisco Holdings Capital Trust __
By: RJR Nabisco Holdings
Corp., as sponsor
By
--------------------------------
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
---------------- --------------- -----------------
SCHEDULE A
----------
Securities:
- ----------
Liquidation Amounts or Numbers to be Purchased:
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Purchase Price:
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Delivery Dates:
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UNDERWRITING AGREEMENT
_________, 199_
RJR NABISCO HOLDINGS CORP.
RJR NABISCO HOLDINGS CAPITAL TRUST __
1301 Avenue of the Americas
New York, New York 10019
Dear Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
RJR NABISCO HOLDINGS CAPITAL TRUST __, a statutory business trust (the
"Designated Trust") formed by RJR Nabisco Holdings Corp., a Delaware
corporation (the "Company"), under the laws of the State of Delaware, proposes
to issue and sell [number of Preferred Securities] of the Trust's __% Trust
Originated Preferred Securities, liquidation amount $___ per Preferred
Security (the "Designated Securities"). The Designated Securities will be
issued pursuant to the provisions of the Amended and Restated Trust Agreement
dated as of ______, 199_ (the "Trust Agreement") between the Company, as
sponsor, The Bank of New York, as trustee, and the other trustees named
therein. The principal asset of the Designated Trust will consist of
[$_______] aggregate principal amount of the Company's _% Junior Subordinated
Debentures (the "Designated Subordinated Debentures"). The Designated
Securities will be guaranteed by the Company to the extent set forth in the
Guarantee Agreement dated as of ________ __, 199_ between the Company and The
Bank of New York, as trustee.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Designated Trust hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the respective
number of Designated Securities set forth below opposite their names at a
purchase price of $____ per Designated Security [, plus accrued distributions,
if any, from the date of the Designated Securities] to the date of payment and
delivery.(1)
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(1) To be added only if the transaction does not close flat.
Number of
Name Designated Securities
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[Insert syndicate list]
Total . . . . . .
============
[The number of Designated Securities to be purchased by the
several Underwriters shall be reduced by the number of Designated Securities
sold pursuant to delayed delivery contracts.](2)
The Underwriters will pay for the Designated Securities [(less any
Designated Securities sold pursuant to delayed delivery contracts)] upon
delivery thereof at [office] at _______ a.m. (New York time) on __________,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
__________, 199_, as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.(3)
The Designated Securities shall have the terms set forth in the
Prospectus dated ___________, 199_, and the Prospectus Supplement dated
_________, 199_, including the following:
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(2) To be added only if delayed delivery contracts are contemplated.
(3) This paragraph would have to be modified if the Designated Trust
grants the Underwriters an Over-allotment Option.
Terms of Designated Securities
Maturity Date:
Distribution Rate:
Redemption Provisions:
Distribution Payment Dates: _____, ___, __ and
_______ commencing
_____________ ____
[(Distributions accrue from
_______________, 199_)(4)
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(4) To be added only if the transaction does not close flat.
Form and Denomination:
[Other Terms:]
[The commission to be paid to the Underwriters in respect of the
Designated Securities purchased pursuant to delayed delivery contracts
arranged by the Underwriters shall be ___% of the liquidation amount of the
Designated Securities so purchased.](5)
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(5) To be added only if delayed delivery contacts are contemplated.
All provisions contained in the document entitled RJR NABISCO
HOLDINGS CORP., RJR NABISCO HOLDINGS CAPITAL TRUSTS Underwriting Agreement
Standard Provisions dated ______ __, 1998, a copy of which is attached
hereto, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, except that if any term
defined in such document is otherwise defined herein, the definition set
forth herein shall control.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
LEAD MANAGER
[Name of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: LEAD MANAGER
By:
--------------------------
Name:
Title:
Accepted:
RJR NABISCO HOLDINGS CORP.
By
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RJR NABISCO HOLDINGS CAPITAL TRUST __
By: RJR Nabisco Holdings
Corp., as sponsor
By
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