Exhibit 10.12
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
White & Case LLP Davie County, North Carolina
1155 Avenue of the Americas
New York, New York 10036
Attention: Jeffrey J. Temple, Esq.
1107993/0083
FIRST AMENDMENT TO DEED OF TRUST, SECURITY
AGREEMENT, ASSIGNMENT OF LEASES, RENTS AND PROFITS,
FINANCING STATEMENT AND FIXTURE FILING
FIRST AMENDMENT TO DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES, RENTS AND PROFITS, FINANCING STATEMENT AND FIXTURE FILING (as amended,
modified or supplemented from time to time, this "Agreement"), dated as of July
30, 2004 by and between R. J. REYNOLDS TOBACCO COMPANY, a North Carolina
corporation (successor to RJ Reynolds Tobacco Company, a New Jersey
corporation), having an office at 401 North Main Street, Winston-Salem, North
Carolina 27102, as Trustor (the "Trustor"),) and JPMORGAN CHASE BANK, as
Collateral Agent, with an address at 270 Park Avenue, New York, New York 10017
(the "Beneficiary") for the benefit of the Secured Creditors, and acknowledged
and agreed to by BANK OF NEW YORK, in its capacity as the Existing Senior Notes
Trustee (the "Existing Senior Notes Trustee") and by THE FIDELITY COMPANY, in
its capacity as Trustee, with an office at One West Fourth Street,
Winston-Salem, North Carolina 27101, (the "Trustee"). Except as otherwise
defined herein, terms used herein and defined in the Credit Agreement referred
to below shall be used herein as so defined.
W I T N E S S E T H :
WHEREAS, Reynolds American Inc. (the "Parent"), R.J. Reynolds
Tobacco Holdings, Inc. (the "Borrower"), the various lending institutions from
time to time party thereto (the "Lenders") and the Beneficiary, as
Administrative Agent, have entered into a Credit Agreement, dated as of May 7,
1999, as amended and restated as of November 17, 2000, as further amended and
restated as of May 10, 2002, and further amended and restated as of July 30,
2004, providing for the making of Loans to the Borrower and the issuance of, and
articipation in, Letters of Credit for the account of the Borrower, all as
contemplated therein
(with the Lenders, each Letter of Credit Issuer, the Administrative Agent, the
Senior Managing Agents, and the Collateral Agent being herein collectively
called the "Lender Creditors")(as the same may be further amended, modified,
extended, renewed, replaced, restated, supplemented and/or refinanced from time
to time, and including any agreement extending the maturity of, or refinancing
or restructuring (including, but not limited to, the inclusion of additional
borrowers or guarantors thereunder or any increase in the amount borrowed) all
or any portion of, the indebtedness under such agreement or any successor
agreement, whether or not with the same agent, trustee, representative, lender
or holders, the "Credit Agreement"; provided that, with respect to any agreement
providing for the refinancing or replacement of indebtedness under the Credit
Agreement, such agreement shall only be treated as, or as part of, the Credit
Agreement hereunder if (x) either (A) all obligations under the Credit Agreement
being refinanced or replaced shall be paid in full at the time of such
refinancing or replacement, and all commitments and letters of credit issued
pursuant to the refinanced or replaced Credit Agreement shall have terminated in
accordance with their terms or (B) the Required Lenders shall have consented in
writing to the refinancing or replacement indebtedness being treated as
indebtedness pursuant to the Credit Agreement, and (y) a notice to the effect
that the refinancing or replacement indebtedness shall be treated as issued
under the Credit Agreement shall be delivered by the Borrower to the Collateral
Agent);
WHEREAS, the Parent and/or one or more of its Subsidiaries has from
time to time entered into, and/or may in the future from time to time enter
into, one or more (i) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements),
(ii) foreign exchange contracts, currency swap agreements, commodity agreements
or other similar agreements or arrangements designed to protect against the
fluctuations in currency values and/or (iii) other types of hedging agreements
from time to time (each such agreement or arrangement with a Hedging Creditor
(as hereinafter defined), together with the Existing Interest Rate Swap
Agreement, a "Secured Hedging Agreement"), with any Lender or any affiliate
thereof or a syndicate of financial institutions organized by a Lender or an
affiliate of a Lender (even if any such Lender ceases to be a Lender under the
Credit Agreement for any reason) (any such Lender, affiliate or other financial
institution that participates therein, together with Calyon (as counterparty to
the Existing Interest Rate Swap Agreement) and in each case their subsequent
successors and assigns collectively, the "Hedging Creditors", and together with
the Lender Creditors, the "Lender Secured Creditors");
WHEREAS, the Borrower and the trustee thereunder (the "Existing
Senior Notes Trustee"), on behalf of the holders of the Existing Senior Notes
(such holders, together with the Existing Senior Notes Trustee, the "Existing
Senior Notes Creditors"), have from time to time entered into, and may in the
future from time to time enter into, one or more Indentures (collectively, as
amended, modified or supplemented from time to time, the "Existing Senior Notes
Indenture" and, together with the Existing Senior Notes, the "Existing Senior
Notes Documents") providing for the issuance of Existing Senior Notes by the
Borrower;
WHEREAS, the Borrower and the trustee or trustees thereunder
(collectively, the "Refinancing Senior Notes Trustee"), on behalf of the holders
of the Refinancing Senior Notes (such holders, together with the Refinancing
Senior Notes Trustee, the "Refinancing Senior Notes Creditors", and together
with the Lender Secured Creditors and the Existing Senior Notes Creditors, the
"Secured Creditors"), may from time to time enter into one or more Indentures
(collectively, as amended, modified or supplemented from time to time, the
"Refinancing Senior Notes Indenture" and, together with the Refinancing Senior
Notes, the "Refinancing Senior Notes Documents") providing for the issuance of
Refinancing Senior Notes by the Borrower;
WHEREAS, pursuant to the Subsidiary Guaranty, the Trustor has
(together with the other Subsidiaries of the Borrower party thereto) jointly and
severally guaranteed to the Lender Secured Creditors the payment when due of the
Guaranteed Obligations (as and to the extent defined in the Subsidiary
Guaranty);
WHEREAS, the Trustor has guaranteed to the Existing Senior Notes
Creditors the payment when due of principal, premium (if any) and interest on
the Existing Senior Notes;
WHEREAS, the Trustor has guaranteed to the Refinancing Senior Notes
Creditors the payment when due of principal, premium (if any) and interest on
the Refinancing Senior Notes;
WHEREAS, as required by the Credit Agreement, the Secured Hedging
Agreements, the Existing Senior Notes Indenture and the Refinancing Senior Notes
Indenture, the Trustor executed a Deed of Trust, Security Agreement, Assignment
of Leases, Rents and Profits, Financing Statement and Fixture Filing, dated as
of July 9, 2003, in favor of the Trustee for the benefit of the Beneficiary, and
recorded on July 15, 2003 in Book 497, page 436, in the Office of the Register
of Deeds of Davie County, North Carolina (as amended hereby and as further
amended, modified, restated or supplemented from time to time, the "Deed of
Trust") encumbering certain property (the "Property") more particularly
described on Exhibit A annexed to the Deed of Trust;
WHEREAS, the Deed of Trust remains in full force and effect and the
lien and security interest and the priority of such lien and security interest
granted to the existing Secured Creditors named therein continues (without
interruption) thereunder; and
WHEREAS, the Trustor desires to execute this Agreement pursuant to
Section 5.01(P) of the Credit Agreement, and pursuant to, and as required by the
Secured Hedging Agreements, the Existing Senior Notes Indenture and the
Refinancing Senior Notes Indenture to reflect the amendment to and restatement
of the Credit Agreement and certain other Credit Documents.
NOW, THEREFORE, in consideration of the execution and delivery by
the Beneficiary of the Credit Agreement and other benefits provided therein to
the Trustor, the receipt and sufficiency of which are hereby acknowledged, the
Trustor hereby makes the following representations and warranties and the
Trustor and the Beneficiary hereby covenant and agree as follows:
AGREEMENT
1. The sum of $622,000,000 appearing in the first WHEREAS clause of
the Deed of Trust is hereby deleted and the sum of $486,250,000 is hereby
substituted in lieu thereof.
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2. The second WHEREAS clause of the Deed of Trust is hereby amended
by deleting therefrom the entire subsection following "(iii)" and substituting
in lieu thereof the following language:
"other types of hedging agreements from time to time (each such
agreement or arrangement with a Hedging Creditor (as hereinafer
defined), together with the Existing Interest Rate Swap Agreement, a
"Secured Hedging Agreement"), with any Lender, any affiliate thereof
or a syndicate of financial institutions organized by a Lender or an
affiliate of a Lender (even if any such Lender ceases to be a Lender
under the Credit Agreement for any reason) (any such Lender,
affiliate or other such financial institution that participates
therein, together with Calyon (as counterparty to the Existing
Interest Rate Swap Agreement), and in each case their subsequent
successors and assigns, collectively, the "Hedging Creditors", and
together with the Lender Creditors, the "Lender Secured
Creditors");"
3. The fourth WHEREAS clause of the Deed of Trust is hereby amended
by deleting the words "have from time to time entered into and may in the future
from time to time enter into," appearing in lines five and six of such clause,
and substituting therefor the following words: "may from time to time enter
into".
4. Subsection (ii) of the tenth WHEREAS clause of the Deed of Trust
is hereby amended by adding the following words after the comma appearing at the
end of line six of such subsection: "and all interest that accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency, reorganization or similar proceeding of the Borrower or any other
Credit Party at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such proceeding";
5. Subsection (iii) of the tenth WHEREAS clause of the Deed of Trust
is hereby amended by adding the following words after the term "Existing Senior
Notes" appearing on lines 11 and 12 of such subsection: "and the due performance
and compliance by the Trustor with the terms of each such Existing Senior Notes
Document";
6. Subsection (iv) of the tenth WHEREAS clause of the Deed of Trust
is hereby amended by adding the following words after the term "Refinancing
Senior Notes" appearing in line 12 of such subsection "and the due performance
and compliance by the Trustor with the terms of each such Refinancing Senior
Notes Document";
7. The paragraph appearing on Page 6 of the Deed of Trust following
the components of the Trust Property is hereby amended by adding the following
words following the word "Subsidiary" appearing in line five of such paragraph
"of Parent";
8. Section 2.02 of the Deed of Trust is hereby amended as follows:
(i) Section 2.02(5) of the Deed of Trust is hereby deleted and the following
substituted in lieu thereof: "(5) the organizational identification number of
the Debtor is NC0711678;"; and (ii)
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Section 2.02(6) of the Deed of Trust is hereby deleted and the following
substituted in lieu thereof: "(6) the Debtor is a corporation, organized under
the laws of the State of North Carolina;".
9. The sum of $2,072,000,000 appearing in Section 6.26 of the Deed
of Trust is hereby deleted and the sum of $1,936,250,000 is hereby substituted
in lieu thereof.
10. The sum of $3,072,000,000 appearing in Section 6.26 of the Deed
of Trust is hereby deleted and the sum of $2,936,250,000 is hereby substituted
in lieu thereof.
11. It is hereby acknowledged and agreed that each reference in the
Deed of Trust to the "Credit Agreement" shall mean and be a reference to the
Credit Agreement as defined in the first WHEREAS clause hereof, including, but
not limited to the Third Amended and Restated Credit Agreement dated as of July
30, 2004, by and among Reynolds American Inc., R.J. Reynolds Tobacco Holdings,
Inc., JPMorgan Chase Bank, as Administrative Agent and various lending
institutions a party thereto.
12. It is hereby acknowledged and agreed that each reference in the
Deed of Trust to the "Security Agreement" shall mean and be a reference to the
Security Agreement dated as of July 15, 2003 among R.J. Reynolds Tobacco
Holdings, Inc., various Subsidiaries of R.J. Reynolds Tobacco Holdings, Inc.,
and JPMorgan Chase Bank, as Collateral Agent, as amended and restated as of July
30, 2004 by that certain Amended and Restated Security Agreement among Reynolds
American Inc., R.J.Reynolds Tobacco Holdings, Inc., various Subsidiaries of
R.J.Reynolds Tobacco Holdings, Inc. and JPMorgan Chase Bank, as Collateral
Agent.
13. It is hereby acknowledged and agreed that each reference in the
Deed of Trust to: (i) the "New Senior Notes Trustee" shall mean and be a
reference to the "Existing Senior Notes Trustee"; (ii) the "New Senior Notes
Creditors" shall mean and be a reference to the "Existing Senior Notes
Creditors"; (iii) the "New Senior Notes Indenture" shall mean and be a reference
to the "Existing Senior Notes Indenture"; (iv) the "New Senior Notes Documents"
shall mean and be a reference to the "Existing Senior Notes Documents"; and (v)
the "New Senior Notes" shall mean and be a reference to the "Existing Senior
Notes".
14. Section 6.19 of the Deed of Trust is hereby amended in the
following respects:
(a) the reference to Section 7.11(b) appearing in
Section 6.19(c) of the Deed of Trust is hereby deleted, and the words
"Section 7.10(b)" substituted in lieu thereof;
(b) a reference to Section 6.19(a) is hereby added to
the fifth line of Section 6.19(d) such that the line shall now read in
full as follows: "...provisions of Sections 6.19(a), (b) or (c) and in
such case the Beneficiary, at the request and expense...."
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(c) the parenthetical beginning in the ninth line of
Section 6.19(d) is hereby deleted and the following substituted in lieu
thereof: "(or which the Beneficiary in good faith believes to be permitted
by)".
15. The Trustor hereby reaffirms to the Secured Creditors each of
the representations, warranties, covenants and agreements of the Trustor set
forth in the Deed of Trust with the same force and effect as if each were
separately stated herein and made as of the date hereof.
16. The Trustor hereby ratifies, affirms, reaffirms, acknowledges,
confirms and agrees that the Deed of Trust, as modified by this Agreement, and
each and every other document and/or instrument which evidences and/or secures
payment of the Notes, the Loans, the Existing Senior Notes and the Refinancing
Senior Notes represent the valid, enforceable and collectible obligations of the
Trustor and the Trustor further acknowledges there are no existing claims,
defenses, personal or otherwise, or rights of set-off whatsoever with respect to
any of the aforementioned instruments and/or documents known to the Trustor and
further acknowledges and represents that, to the Trustor's knowledge no event
has occurred and no condition exists which would constitute a default under the
Deed of Trust or this Agreement either with or without notice or lapse of time
or both.
17. Except as specifically modified herein, all of the terms and
provisions of the Deed of Trust and all other documents executed by the parties
hereto or binding upon the parties hereto in connection with the Deed of Trust
are ratified and reaffirmed by the parties hereto, and are incorporated herein
by reference, the Trustor specifically acknowledging the validity and
enforceability thereof.
18. The Trustor agrees to pay all costs in connection herewith,
including, but without limitation, recordation and filing fees, taxes (other
than taxes based on gross receipts, income or revenue of the Beneficiary),
reasonable attorneys' fees and expenses, and, to the extent incurred in
connection with updating the Beneficiary's existing title policy on the
Property, charges for title examination and title insurance premiums (to the
extent there is an existing title policy on the Property). The Trustor agrees to
have any existing title insurance policy in favor of the Beneficiary updated at
its sole cost and expense, the endorsement thereto being subject to the
Beneficiary's reasonable approval.
19. The liens, security interests, assignments and other rights
evidenced by the Deed of Trust are hereby renewed, extended and modified to
secure the Obligations in accordance with this Agreement.
20. This Agreement is limited as specified and other than the
specific amendments contained herein shall not constitute an amendment,
modification or waiver of, or otherwise affect, in any way, any other provisions
of the Deed of Trust. As modified hereby, the Deed of Trust is ratified and
confirmed in all respects.
21. The Trustor agrees to execute and deliver, or cause to be
executed and delivered, to the Benenficiary all other instruments, certificates,
agreements and consents as the Beneficiary may reasonably require in order to
confirm the terms of this Agreement.
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22. The terms and provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
23. This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
24. Any reference to the "Deed of Trust" in the Deed of Trust shall
be deemed to mean the Deed of Trust as modified by this Agreement.
25. The use of the singular shall include the plural when the
context requires and vice versa; the use of "a" shall include "an" when the
context requires and vice versa.
26. The Trustee joins in this Agreement only to evidence its
knowledge of and consent to the terms hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
Trustor:
R. J. REYNOLDS TOBACCO COMPANY, a North
Carolina corporation
[SEAL] By: \s\ Lynn L. Lane
-------------------------------------
Name: Lynn L. Lane
Title: Senior Vice President and
Treasurer
Beneficiary:
JPMORGAN CHASE BANK,
Administrative Agent and as Collateral
Agent
By \s\ Randolph Cates
-----------------------------------------
Name: Randolph Cates
Title: Vice President
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ACKNOWLEDGED AND AGREED TO THIS
28th DAY OF JULY, 2004
EXISTING SENIOR NOTES TRUSTEE:
BANK OF NEW YORK
By:\s\ Derek Kettel
-------------------------------
Name: Derek Kettel
Title: Agent
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ACKNOWLEDGED AND AGREED TO THIS
30th DAY OF JULY, 2004
TRUSTEE:
THE FIDELITY COMPANY, as Trustee
By: \s\ Kenneth A. Moser
-------------------------------
Name: Kenneth A. Moser
Title: Vice President
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STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
I, Jonathan J. Katz, certify that Lynn L. Lane personally came before me
this day and acknowledged that she is the Senior Vice President and Treasurer of
R. J. Reynolds Tobacco Company, a North Carolina corporation, and that by
authority duly given and as the act of the corporation, she executed the
foregoing instrument as Senior Vice President and Treasurer of the corporation,
for and on behalf of the corporation.
WITNESS my hand and notarial seal, this 30 day of July, 2004.
\s\ Jonathan J. Katz
----------------------------------
Notary Public
My Commission Expires: 8/11/2007
Jonathan J. Katz
Notary Public, State of New York
Commission # 01KA6096856
Qualified in New York County
Commission Expires August 11, 2007
STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
I, May Karen Yip-Daniels, certify that Randolph Cates personally came
before me this day and acknowledged that (s)he is the Vice President of JPMorgan
Chase Bank, and that by authority duly given and as the act of the corporation,
(s)he executed the foregoing instrument as Vice President of the corporation,
for and on behalf of the corporation.
WITNESS my hand and notarial seal, this ____ day of July, 2004.
\s\ May Karen Yip-Daniels
----------------------------------
Notary Public
My Commission Expires:______________
MAY KAREN YIP DANIELS
Notary Public, State of New York
No. 01Y16111759
Qualified in New York County
Commission Expires June 20, 2008
STATE OF FLORIDA)
ss.:
COUNTY OF DUVAL)
I, Tracy M. Ramseur, certify that Derek Kettel personally came before me
this day and acknowledged that he is the Agent of The Bank of New York, and that
by authority duly given and as the act of the corporation, (s)he executed the
foregoing instrument as Agent of the corporation, for and on behalf of the
corporation.
WITNESS my hand and notarial seal, this 28th day of July, 2004.
\s\ Tracy Moore Ramseur
----------------------------------
Notary Public
My Commission Expires:______________
TRACY MOORE RAMSEUR
Comm# DD0238322
Expires 9/21/2007
Bonded thru (800)432-4264
Florida Notary Assn., Inc.
STATE OF NORTH CAROLINA)
ss.:
COUNTY OF FORSYTH)
I, Laura H. Carlyle, certify that Kenneth A. Moser personally came before
me this day and acknowledged that he is the Vice Pres. of The Fidelity Company,
as Trustee, and that by authority duly given and as the act of the corporation,
he executed the foregoing instrument as Vice President of the corporation, for
and on behalf of the corporation.
WITNESS my hand and notarial seal, this 30th day of July, 2004.
\s\ Laura H. Carlyle
----------------------------------
Notary Public
My Commission Expires:_______________
Official Seal
LAURA H. CARLYLE
NOTARY PUBLIC-NORTH CAROLINA
COUNTY OF YADKIN
My Commission Expires 10-16-07
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