Exhibit 10.4
[EXECUTION COPY]
RJR NABISCO, INC.,
Issuer
and
THE BANK OF NEW YORK,
Trustee
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SECOND SUPPLEMENTAL INDENTURE AND WAIVER
Dated as of April 27, 1999
(Supplemental to the Amended and Restated Indenture dated as of May 18, 1992,
as amended by the First Supplemental Indenture thereto dated as of June 2, 1995)
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SECOND SUPPLEMENTAL INDENTURE AND WAIVER (this "Second Supplemental
Indenture"), dated as of April 27, 1999 between RJR NABISCO, INC., 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 the Issuer and X.X. Xxxxxxxx Tobacco Company
of the international tobacco business to Japan Tobacco Inc., (ii) the transfer
of the Issuer's 80.5% interest in Nabisco Holdings Corp., together with
approximately $1.6 billion in after-tax proceeds from the International Tobacco
Sale, to RJR Nabisco Holdings Corp., the parent of the Issuer ("RJRN
Holdings"), through a merger transaction that is intended to be tax-free, and
(iii) the spinoff of the Issuer to the common stockholders of RJRN Holdings
that is intended to be tax-free;
WHEREAS, as part of the Reorganization, RJRN intends (i) to issue new RJRN
debt securities and (ii) to enter into a new bank credit facility (together,
the "Debt Restructuring");
WHEREAS, the Issuer executed and delivered an Amended and Restated
Indenture dated as of May 18, 1992 between the Issuer and Citibank, N.A., as
trustee (the "Original Trustee"), as supplemented by the First Supplemental
Indenture dated as of June 2, 1995 between the Issuer and the Original Trustee
(as so supplemented, the "Original Indenture"), providing for the issuance of
$600,000,000 of 8.75% Senior Notes due April 15, 2004 (the "Securities");
WHEREAS, the Trustee succeeded to the obligations of the Original Trustee
pursuant to the Agreement of Resignation, Appointment and Acceptance, dated as
of July 27, 1998, by and among the Issuer, the Original Trustee and the Trustee
and relating to the Original Indenture;
WHEREAS, Section 7.2 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 and the Issuer
has determined that the required holders of such Securities have consented to
the amendments and waiver herein; and
WHEREAS, all other conditions and requirements necessary to make this
Second 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 Second Supplemental Indenture
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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 Securities as
follows:
SECTION 1. For all purposes of this First Supplemental Indenture,
(a) 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; and
(b) "Statement" means the Offer to Purchase and Consent Solicitation
Statement of the Issuer dated April 13, 1999, as amended from time to time.
"Offer" means the offer to purchase for cash any and all of the
outstanding Securities, upon the terms and conditions set forth in the
Statement.
SECTION 2. Section 1.1 of the Original Indenture is hereby amended by
deleting the definitions of "Attributable Debt", "Consolidated Net Worth",
"Exempted Debt", "Funded Debt", "Principal Property" and "Restricted
Subsidiary" therein in their entirety.
SECTION 3. The Original Indenture is hereby amended by deleting Sections
3.9, 3.10, 3.11 and 8.1 thereof (the "Negative Covenants") in their entirety.
SECTION 4. Section 4.1 of the Original Indenture is hereby amended by
deleting each reference to "any Restricted Subsidiary" in clauses (d) and (e)
thereof.
SECTION 5. Subject to Section 6(b) hereof, the application of the Negative
Covenants is hereby waived to the extent required to effect the Reorganization
and the Debt Restructuring (the "Waiver").
SECTION 6. (a) Upon the execution and delivery of this Second Supple
mental Indenture by the Issuer and the Trustee, the Original Indenture shall be
amended and supplemented in accordance herewith, and this Second Supplemental
Indenture shall form a part of the Original Indenture for all purposes, and
every holder of 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 Second
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Supplemental Indenture, except as described in (b) with respect to the Waiver,
shall not become operative until the Issuer has notified the Trustee that it has
accepted for payment the Securities tendered pursuant to the Offer upon the
terms and conditions set forth in the Statement (and at such time the provisions
of this Second 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 Securities).
(b) The Waiver shall become operative immediately upon the execution and
delivery of this Second Supplemental Indenture by the Issuer and the Trustee.
However, if the Offer is terminated or withdrawn or the tendered Securities are
not accepted for payment pursuant to the Offer, the Waiver will cease to be
operative.
SECTION 7. Nothing in this Second 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 Securities
any right, remedy or claim under or by reason of this Second 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 Securities.
SECTION 8. This Second Supplemental Indenture shall form a part of the
Original Indenture for all purposes and every holder of Securities heretofore
or hereafter authenticated and delivered under the Original Indenture shall be
bound hereby. The Original Indenture as supplemented by this Second
Supplemental Indenture is hereby in all respects ratified and confirmed.
SECTION 9. The Trustee, for itself and its successor or successors,
accepts the trust of the Original Indenture as amended by this Second
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 Second
Supplemental Indenture other than as to the validity of its execution and
delivery by the Trustee.
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SECTION 10. This Second Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 11. This Second 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 Second
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of April 27, 1999.
RJR NABISCO, INC.,
Issuer
By:________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Treasurer
[CORPORATE SEAL]
Attest:
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK,
Trustee
By:________________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By:__________________________________
Name:
Title:
0
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this _______ day of April, 1999,
personally appeared ______________________, ____________________ of RJR
Nabisco, Inc., a Delaware corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he/she executed the same as the act of such corporation for the
purposes and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS ____ DAY OF APRIL, 1999.
(SEAL)
_________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this _______ day of April, 1999,
personally appeared ______________________, ____________________ of The Bank of
New York, a New York banking corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and
officer whose name is subscribed to the foregoing instrument, and acknowledged
to me that he/she executed the same as the act of such trust for the purposes
and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF APRIL, 1999.
(SEAL)
_________________________________
NOTARY PUBLIC, STATE OF NEW YORK
Print Name:_____________________
Commission Expires:_____________
