EXHIBIT 10.4
RJR NABISCO HOLDINGS CORP.,
Issuer
and
THE BANK OF NEW YORK,
Trustee
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THIRD SUPPLEMENTAL INDENTURE AND WAIVER
Dated as of May 18, 1999
(Supplemental to the Indenture dated as of September 21,
1995 as supplemented by the First Supplemental Indenture thereto dated as of
September 21, 1995
and the Second Supplemental Indenture thereto dated as of September 16, 1998)
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THIRD SUPPLEMENTAL INDENTURE AND WAIVER (this "Third Supplemental
Indenture"), dated as of May 18, 1999 between RJR NABISCO HOLDINGS CORP., a
Delaware corporation (the "Issuer"), and THE BANK OF NEW YORK, a New York
banking corporation (the "Trustee"),
WHEREAS, there is proposed to be a series of certain transactions
(collectively, the "Reorganization"), which includes (i) the sale (the
"International Tobacco Sale") by RJR Nabisco, Inc. ("RJRN") and R.J. Reynolds
Tobacco Company of the international tobacco business to Japan Tobacco Inc.,
(ii) the transfer of RJRN's 80.5% interest in Nabisco Holdings Corp., together
with approximately $1.6 billion in after-tax proceeds from the International
Tobacco Sale, to the Issuer through a merger transaction that is intended to
be tax-free (the "Reorganization Merger"), and (iii) the spinoff of RJRN to
the common stockholders of the Issuer that is intended to be tax-free (the
"RJRN Spin-Off");
WHEREAS, the Issuer executed and delivered an Indenture dated as of
September 21, 1995 between the Issuer and the Trustee, as supplemented by the
First Supplemental Indenture dated as of September 21, 1995 between the Issuer
and the Trustee and the Second Supplemental Indenture dated as of September
16, 1998 between the Issuer and the Trustee (as so supplemented, the "Original
Indenture") providing for the issue from time to time of its notes, debentures
and other evidences of indebtedness to be issued in one or more series (the
"Securities");
WHEREAS, Section 8.2 of the Original Indenture provides that the
Original Indenture may be amended with the consent of the holders of a
majority in aggregate principal amount of the Securities then Outstanding (as
defined therein) of all series affected by such supplemental indenture (voting
as one class) (and, in the case of any series of Securities held as trust
assets of an RJR Nabisco Holdings Capital Trust and with respect to which a
Security Exchange (as defined therein) has not theretofore occurred, such
consent of holders of the Preferred Securities and the Common Securities (each
as defined therein) of such RJR Nabisco Holdings Capital Trust as may be
required under the Declaration of Trust of such RJR Nabisco Holdings Capital
Trust), and the Issuer has determined that, as of the date hereof, the
Outstanding series of Securities affected by this Third Supplemental Indenture
includes the 9 1/2 % Junior Subordinated Debentures Due 2047 (the "Affected
Securities") held as trust assets of RJR Nabisco Holdings Capital Trust II
(the "Trust") and that such required holders of the Affected Securities and of
the Preferred Securities and the Common Securities of the Trust have consented
to the amendment and waiver herein; and
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WHEREAS, all other conditions and requirements necessary to make this
Third Supplemental Indenture a valid and binding instrument in accordance with
its terms and the terms of the Original Indenture have been satisfied.
NOW, THEREFORE, this Third Supplemental Indenture
W I T N E S S E T H:
That in consideration of the premises and of the mutual covenants
herein contained, the Issuer and the Trustee hereby covenant and agree, for
the equal and proportionate benefit of all holders from time to time of the
Affected Securities as follows:
SECTION 1. For all purposes of this Third Supplemental Indenture,
except as otherwise expressly provided or unless the context otherwise
requires, all capitalized terms used and not defined herein that are defined
in the Original Indenture shall have the meanings assigned to them in the
Original Indenture.
SECTION 2. Section 1.1 of the Original Indenture is hereby amended by
deleting the definition of "Restricted Subsidiary" therein in its entirety.
SECTION 3. The Original Indenture is hereby amended by deleting the
words "or any Restricted Subsidiary" from Section 5.1(e) and (f) thereof.
SECTION 4. Subject to Section 5(b) hereof, the application of the
covenants contained in Article 9 of the Original Indenture is hereby waived as
applied to the Affected Securities to the extent required to effect the RJRN
Spin- Off (the "Waiver").
SECTION 5. (a) Upon the execution and delivery of this Third Supple
mental Indenture by the Issuer and the Trustee, the Original Indenture shall
be amended and supplemented in accordance herewith, and this Third
Supplemental Indenture shall form a part of the Original Indenture for all
purposes, and every holder of Affected Securities heretofore or hereafter
authenticated and delivered under the Original Indenture shall be bound
thereby, as hereby amended and supplemented; provided, however, that the
provisions of this Third Supplemental Indenture, except as described in (b)
with respect to the Waiver, shall not become operative until the later of (x)
the consummation of the Reorganization Merger and (y) the time that the Issuer
has notified the Trustee that it has accepted for payment the Affected
Securities tendered pursuant to the offer to purchase for cash any and all of
the Affected Securities, upon the terms and conditions set forth in the Offer
to Purchase and Consent Solicitation Statement dated April 13, 1999, as
amended from time to time (the "Offer") (and at such time the provisions of
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this Third Supplemental Indenture shall automatically become operative without
the requirement of any further action by or notice to the Issuer, the Trustee
or any holder of Affected Securities).
(b) The Waiver shall become operative upon the later of (x) the
execution and delivery of this Third Supplemental Indenture by the Issuer and
the Trustee and (y) the consummation of the Reorganization Merger. However, if
the Offer is terminated or withdrawn or the tendered Affected Securities are
not accepted for payment pursuant to the Offer, the Waiver will cease to be
operative.
SECTION 6. Nothing in this Third Supplemental Indenture, expressed or
implied, is intended or shall be construed to confer upon or give to any
person or corporation, other than the parties hereto and the holders of the
Affected Securities any right, remedy or claim under or by reason of this
Third Supplemental Indenture or any covenant, stipulation, promise or
agreement contained herein; all the covenants, stipulations, promises and
agreements contained herein being for the sole and exclusive benefit of the
parties hereto and their successors, and the holders from time to time of the
Affected Securities.
SECTION 7. This Third Supplemental Indenture shall form a part of the
Original Indenture for all purposes and every holder of Affected Securities
heretofore or hereafter authenticated and delivered under the Original
Indenture shall be bound hereby. The Original Indenture as supplemented by
this Third Supplemental Indenture is hereby in all respects ratified and
confirmed.
SECTION 8. The Trustee, for itself and its successor or successors,
accepts the trust of the Original Indenture as amended by this Third
Supplemental Indenture, and agrees to perform the same, but only upon the
terms and conditions set forth in the Original Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities of
the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created
by the Original Indenture, and, without limiting the generality of the
foregoing, the recitals contained herein shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Third Supplemental Indenture other than as to the validity of its execution
and delivery by the Trustee.
SECTION 9. This Third Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
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SECTION 10. This Third Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the date first written
above.
RJR NABISCO HOLDINGS CORP., ISSUER
By: /s/ Francis X. Suozzi
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Name: Francis X. Suozzi
Title: Senior Vice President -
Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Suzanne P. Jenney
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Name: Suzanne P. Jenney
Title: Assistant Secretary
THE BANK OF NEW YORK, TRUSTEE
By: /s/ Iliana Arciprete
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Name: Iliana Arciprete
Title: Assistant Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Mary Beth Lewick
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Name: Mary Beth Lewick
Title: Assistant Vice President
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