Exhibit 10.3
[EXECUTION COPY]
RJR NABISCO, INC.,
Issuer
and
THE BANK OF NEW YORK,
Trustee
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FIRST SUPPLEMENTAL INDENTURE AND WAIVER
Dated as of April 27, 1999
(Supplemental to the Amended and Restated Indenture dated as of July 24, 1995)
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FIRST SUPPLEMENTAL INDENTURE AND WAIVER (this "First 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 ▇.▇. ▇▇▇▇▇▇▇▇ 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 July 24, 1995 (the "Original Indenture") between the
Issuer and Citibank, N.A., as trustee (the "Original Trustee"), providing for
the issue from time to time of its debentures, notes or other evidences of
indebtedness to be issued in one or more series (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 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 the Issuer has determined that, as of the date hereof, the
Outstanding series of Securities affected by this First Supplemental Indenture
include (i) the 8% Notes due January 15, 2000; (ii) the 7.625% Medium Term Notes
due September 1, 2000; (iii) the 8% Notes due July 15, 2001; (iv) the 7.375%
Medium Term Notes due August 1, 2001; (v) the 7.63% Medium Term Notes due August
13, 2001; (vi) the 6.80% Medium Term Notes due September 1, 2001; (vii) the
85/8% Notes due December 1, 2002; (viii) the 75/8% Notes due September 15, 2003;
(ix) the 8.25% Notes due July 1, 2004; (x) the 8.75% Notes due August 15, 2005;
(xi) the 8.50%
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Notes due July 1, 2007; (xii) the 8.75% Notes due July 15, 2007 and (xiii) the 9
1/4% Debentures due August 15, 2013 (together, the "Outstanding Securities") and
that such required holders of the Outstanding Securities have consented to the
amendments and waiver herein; and
WHEREAS, all other conditions and requirements necessary to make this
First 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 First 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
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 3.6, 3.7, 3.8 and 9.1 thereof (the "Negative Covenants") in their
entirety.
SECTION 4. The Original Indenture is hereby amended by deleting the
words "or any Restricted Subsidiary" from Section 5.1(f) thereof.
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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 permit the Debt Restructuring (the "Waiver").
SECTION 6. (a) Upon the execution and delivery of this First Supple
mental Indenture by the Issuer and the Trustee, the Original Indenture shall be
amended and supplemented in accordance herewith, and this First 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 First 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
First 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 First 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 First 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 First 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 First 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 First 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 First
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
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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 First Supplemental
Indenture other than as to the validity of its execution and delivery by the
Trustee.
SECTION 10. This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 11. This First 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 First
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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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:
▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
)
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:_____________
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