EXHIBIT 5.2
, 1995
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RJR Nabisco Holdings
Capital Trust I
1301 Avenue of the Americas
New York, NY 10019
Re: RJR Nabisco Holdings Capital Trust I
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Ladies and Gentlemen:
We have acted as special Delaware counsel to RJR Nabisco Holdings
Capital Trust I, a Delaware statutory business trust (the "Trust"), in
connection with certain matters relating to the organization of the Trust and
the proposed issuance of Preferred Securities to beneficial owners pursuant to
and as described in the Trust's Registration Statement (and the Prospectus
forming a part thereof) on Form S-4 to be filed with the Securities and Exchange
Commission on or about the date hereof (the "Registration Statement").
Capitalized terms used herein and not otherwise herein defined are used as
defined in the Amended and Restated Declaration of Trust of the Trust in the
form attached as an exhibit to the Registration Statement (the "Governing
Instrument").
In rendering this opinion, we have examined copies of the following
documents in the forms provided to us: the Certificate of Trust of the Trust as
filed in the Office of the Secretary of State of the State of Delaware (the
"State Office") on June 20, 1995 (the "Certificate"); a Declaration of Trust
dated as of June 20, 1995 (the "Original Governing Instrument"); the Governing
Instrument; the Guarantee Agreement by RJR Nabisco Holdings Corp. relating to
the Preferred Securities; the Dealer Manager Agreement relating to the Preferred
Securities; the Registration Statement; and a certificate of good standing of
the Trust obtained as of the date hereof from the State Office. In such
examinations, we have assumed the genuineness of all signatures, the conformity
to original documents of all documents submitted to us as drafts or copies or
forms of documents to be executed and the legal capacity of natural persons to
complete the execution of documents. We have further assumed for purposes of
this opinion: (i) the due formation or organization, valid existence and good
standing of each entity
RJR Nabisco Holdings
Capital Trust I
, 1995
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Page 2
(other than the Trust) that is a party to any of the documents reviewed by us
under the laws of the jurisdiction of its respective formation or organization;
(ii) the due authorization, execution and delivery by, or on behalf of, each of
the parties thereto of the above-referenced documents (including, without
limitation, the due execution and delivery of the Governing Instrument and the
Dealer Manager Agreement prior to the first issuance of Preferred Securities);
(iii) that no event has occurred subsequent to the filing of the Certificate
that would cause a dissolution or liquidation of the Trust under the Original
Governing Instrument or the Governing Instrument, as applicable; (iv) that the
activities of the Trust have been and will be conducted in accordance with the
Original Governing Instrument or the Governing Instrument, as applicable, and
the Delaware Business Trust Act, 12 Del. C. Sec. 3801 et seq. (the "Delaware
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Act"); (v) that each Holder of a Preferred Security has validly tendered a
Depository Share in exchange therefor, that such Depository Share has been duly
accepted, and that such Holder has duly received a Preferred Securities
Certificate in consideration thereof, all in accordance with the terms and
conditions of the Governing Instrument, Registration Statement and Dealer
Manager Agreement; (vi) that the Preferred Securities are issued and sold to
the Preferred Securities Holders in accordance with the terms, conditions,
requirements and procedures set forth in the Governing Instrument,
Registration Statement and Dealer Manager Agreement; and (vii) that the
documents examined by us are in full force and effect, express the entire
understanding of the parties thereto with respect to the subject matter
thereof and have not been modified, supplemented or otherwise amended, except
as herein referenced. No opinion is expressed with respect to the requirements
of, or compliance with, federal or state securities or blue sky laws. We have
not participated in the preparation of the Registration Statement or any other
offering materials relating to the Preferred Securities and we assume no
responsibility for their contents. As to any fact material to our opinion,
other than those assumed, we have relied without independent investigation on
the above-referenced documents and on the accuracy, as of the date hereof, of
the matters therein contained.
Based on and subject to the foregoing, and limited in all respects to
matters of Delaware law, it is our opinion that:
1. The Trust is a duly organized and validly existing business trust
in good standing under the laws of the State of Delaware.
2. The Preferred Securities, upon issuance, will constitute validly
issued and, subject to the qualifications set forth in paragraph 3 below, fully
paid and nonassessable beneficial interests in the Trust.
RJR Nabisco Holdings
Capital Trust I
, 1995
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Page 3
3. Under the Delaware Act and the terms of the Governing Instrument,
each Preferred Security Holder of the Trust, in such capacity, will be entitled
to the same limitation of personal liability as that extended to stockholders of
private corporations for profit organized under the General Corporation Law of
the State of Delaware; provided, however, we express no opinion with respect to
the liability of any Preferred Security Holder who is, was or may become a named
Trustee of the Trust. Notwithstanding the foregoing, we note that pursuant to
Sec. 11.4 of the Governing Instrument, the Trust may withhold amounts otherwise
distributable to a Holder and pay over such amounts to the applicable
jurisdictions in accordance with federal, state and local law and any amount
withheld will be deemed to have been distributed to such Holder and that,
pursuant to the Governing Instrument, Preferred Security Holders may be
obligated to make payments or provide indemnity or security under the
circumstances set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving this consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. This opinion
speaks only as of the date hereof and is based on our understandings or
assumptions as to present facts, and on our review of the above referenced
documents and the application of Delaware law as the same exist as of the date
hereof, and we undertake no obligation to update or supplement this opinion
after the date hereof for the benefit of any person or entity with respect to
any facts or circumstances that may hereafter come to our attention or any
changes in facts or law that may hereafter occur or take effect.
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL