EXHIBIT 4a1
THIRD SUPPLEMENTAL INDENTURE dated as of May 28, 1997 between
AMERICAN BRANDS, INC., a Delaware corporation (hereinafter called the "Company")
having its principal office at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxxx 00000, and THE CHASE MANHATTAN BANK, a New York banking corporation
(formerly known as Chemical Bank, as successor by merger to Manufacturers
Hanover Trust Company), as trustee (hereinafter called the "Trustee") having its
principal corporate trust office in the Borough of Manhattan, The City of New
York.
WHEREAS, the Company and the Trustee have entered into an
Indenture dated as of July 15, 1988, a First Supplemental Indenture dated as of
November 14, 1990 and a Second Supplemental Indenture dated as of September 1,
1991, which Indenture, as amended by such First Supplemental Indenture and such
Second Supplemental Indenture (hereinafter collectively, the "Indenture"),
provides for the issuance from time to time of unsecured debentures, notes or
other evidences of indebtedness of the Company in one or more series
(hereinafter called the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms thereof; and
WHEREAS, Section 9.02 of the Indenture provides that with the
consent of the Holders (as defined in Section 1.01 thereof) of not less than a
majority in principal amount of the Outstanding Securities (as defined in
Section 1.01 of the Indenture) of each series affected thereby (or such greater
percentage in such principal amount as may be specified with respect to the
Securities of such series pursuant to Section 3.01 of the Indenture), by Act (as
defined in Section 1.01 of the Indenture) of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution (as
defined in Section 1.01 of the Indenture), and the Trustee may enter into an
indenture or indentures supplemental thereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under the Indenture, subject to certain conditions;
and
WHEREAS, the Company has requested the Trustee to enter into
this Third Supplemental Indenture; and
WHEREAS, the Company desires to (i) amend Sections 1.01, 8.01
and 8.02 of the Indenture and (ii) add a Section 8.04 to the Indenture; and
WHEREAS, all things necessary to make this Third Supplemental
Indenture a valid indenture supplemental to the Indenture have been done;
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is hereby
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE I
AMENDMENT OF THE INDENTURE
A. Definitions. (1) The following definition shall be added
to Section 1.01 of the Indenture immediately following the definition of the
term "Depositary" set forth therein:
"'Distribution Agreement' means the Distribution Agreement
dated as of May 8, 1997 among the Company, ATIC Group, Inc., Xxxxxxxx
Group Limited and Xxxxxxxx Limited, as the same may be amended,
modified or supplemented from time to time."
(2) The following definition shall be added to Section 1.01 of the
Indenture immediately following the definition of the term "Exchange Date" set
forth therein:
"'Excluded Conveyance' means any transaction described in the
Distribution Agreement."
B. Company May Consolidate, etc., Only on Certain Terms.
Section 8.01 of the Indenture shall be deleted in its entirety and replaced with
the following:
"The Company shall not consolidate with or merge into
any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless
(1) the corporation formed by such consolidation or
into which the Company is merged or the Person which acquires
by conveyance or transfer the properties and assets of the
Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America or any State or
the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any)
and interest, if any, on all Securities of all series and the
performance of every covenant of this Indenture on the part
of the Company to be performed or observed; provided,
however, that any Person that acquires such properties and
assets in an Excluded Conveyance shall not be required to
assume any payment on the Securities or performance or
observance of any covenants or conditions of this Indenture;
(2) immediately after giving effect to such
transaction, no Event of Default in respect of the Securities
of any series, and no event which, after notice or lapse of
time, or both, would become an Event of Default in respect of
the Securities of any series, shall have happened and be
continuing; provided, however, that an Excluded Conveyance
shall not result in an Event of Default, or an event which,
after notice or lapse of time, or both, would become an Event
of Default, in respect of the Securities of any series;
(3) with respect to Securities of any series that, in
connection with their original issuance, were offered for sale
outside the United States, the corporation formed by such
consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer the properties
and assets of the Company substantially as an entirety shall
have agreed, by an indenture supplemental hereto, to indemnify
the individuals liable therefor for the amount of United
States federal estate tax attributable to or paid in respect
of any such Securities includable in the gross estate of an
individual who is not a citizen or resident of the United
States at the time of death; provided, however, that any
Person that acquires such properties and assets in an Excluded
Conveyance shall not be required to indemnify any individual
liable therefor for the amount of United States federal estate
tax attributable to or paid in respect of any such Securities
includable in the gross estate of an individual who is not a
citizen or resident of the United States at the time of death;
and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and
such indenture supplemental hereto comply with the Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with."
C. Successor Corporation Substituted. Section 8.02 of the
Indenture shall be deleted in its entirety and replaced with the following:
"Upon any consolidation or merger, or any conveyance
or transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 8.01,
the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or
transfer (other than an Excluded Conveyance) is made shall
succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as
the Company herein. In the event of any such conveyance or
transfer (other than a transfer by way of lease) the
predecessor company shall be discharged from all obligations
and covenants under this Indenture, the Securities and any
Coupons and may be liquidated and dissolved."
D. Permitted Dispositions. The following Section 8.04 shall
be added to the Indenture immediately following Section 8.03 thereof:
"Section 8.04. Permitted Dispositions.
Notwithstanding anything in this Indenture to the contrary,
nothing contained in this Indenture or in any of the Securities shall be deemed
to prevent, or place any restrictions or conditions on, the consummation by the
Company or any of its Subsidiaries of any of the transactions described in the
Distribution Agreement. Without limiting the generality of the foregoing, the
Company may sell, lease, transfer or otherwise dispose of any of its property or
assets in connection with the transactions described in the Distribution
Agreement and the corporation or corporations or other person or persons to
which such sale, lease transfer or other disposition is made shall not be
required to assume any obligations under this Indenture or under the
Securities."
ARTICLE II
MISCELLANEOUS
A. Effectiveness. Notwithstanding anything contained in this
Third Supplemental Indenture to the contrary, none of the provisions of Article
I hereof will become effective or be of any force or effect until the Effective
Date (as defined below) has occurred.
B. Effective Date. For purposes of this Third Supplemental
Indenture, the "Effective Date" means the date on which the later of the
following events occurs: (i) this Third Supplemental Indenture has been duly
executed and delivered by the parties hereto and (ii) the Distribution, as
defined in the Distribution Agreement, shall have occurred or be simultaneously
occurring.
C. Execution of Third Supplemental Indenture. This Third
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture and, as provided in the Indenture, this Third
Supplemental Indenture forms a part thereof. The Indenture, as supplemented and
amended by this Third Supplemental Indenture, is in all respects hereby adopted,
ratified and confirmed. Except as herein expressly otherwise defined, the use of
the terms and expressions herein is in accordance with the definitions, uses and
constructions contained in the Indenture.
D. Responsibility for Recitals, etc. The recitals herein shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee makes no representations
as to the validity or sufficiency of this Third Supplemental Indenture.
E. Provisions Binding on Company's Successors. All the
covenants and agreements in this Third Supplemental Indenture by the Company
shall bind its successors and assigns whether so expressed or not.
F. Governing Law. This Third Supplemental Indenture shall be
governed and construed in accordance with the laws governing the Indenture and
its construction.
G. Execution and Counterparts. 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.
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 above written.
AMERICAN BRANDS, INC.
[CORPORATE SEAL] By X.X. Xxxxxxxxx, Xx.
---------------------------
X.X. Xxxxxxxxx, Xx.
Senior Vice President and
and Chief Financial Officer
Attest:
Xxxxx X. Xxxxxxx, Xx.
----------------------------
Xxxxx X. Xxxxxxx, Xx.
Vice President and Secretary
THE CHASE MANHATTAN BANK,
Trustee
[CORPORATE SEAL] By X.X. Xxxxx
-------------------------
Name: X.X. Xxxxx
Title: Vice President
Attest:
Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Trust Officer
STATE OF CONNECTICUT )
: ss.: Xxx Xxxxxxxxx, XX - 0/00/00
XXXXXX XX XXXXXXXXX )
On this 28th day of May, 1997, before me personally came X.X.
XXXXXXXXX, XX., to me known, who, being by me duly sworn, did depose and say
that he resides at 00 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx; that he is the Senior
Vice President and Chief Financial Officer of AMERICAN BRANDS, INC., one of the
parties described in and which executed the foregoing instrument; that he knows
the seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he signed his name thereto by like authority.
Xxxxxx X. Xxxxx
------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 28th day of May, 1997, before me personally came X.X.
XXXXX, to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxxxx Xxxxx, Xxxxxxx, X.X. 00000; that he is the Vice President
of THE CHASE MANHATTAN BANK, one of the parties described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
Xxxxx Xxxxx
------------------------------
Notary Public
