EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
This Second Supplemental Indenture, dated as of July 30, 2004 (this
"Second Supplemental Indenture"), among R.J.Reynolds Tobacco Holdings, Inc., a
Delaware corporation (together with its successors and assigns, the "Company"),
Reynolds American Inc., a North Carolina corporation ("RAI"), R. J. Reynolds
Tobacco Company, a North Carolina corporation ("Successor RJRT"), RJR
Acquisition Corp., a Delaware corporation ("RJRA"), GMB, Inc., a North Carolina
corporation ("GMB"), FHS, Inc., a Delaware corporation ("FHS"), R. J. Reynolds
Tobacco Co., a Delaware corporation ("Reynolds Tobacco"), RJR Packaging, LLC, a
Delaware limited liability company ("RJR Packaging"), BWT Brands, Inc., a
Delaware corporation ("BWT") and The Bank of New York, as Trustee under the
Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, R. J. Reynolds Tobacco Company, a New Jersey
corporation and a predecessor to Successor RJRT ("Old RJRT"), RJRA and the
Trustee have heretofore executed and delivered an Indenture, dated as of May 20,
2002 (as amended, supplemented, waived or otherwise modified, the "Indenture"),
providing for the issuance from time to time of the Company's unsecured
debentures, notes or other evidences of its indebtedness to be issued in one or
more series up to such principal amount or amounts as may from time to time be
authorized in accordance with the terms of the Indenture (the "Securities");
WHEREAS, the Company has combined the business and operations of Old RJRT
with those of another entity as a result of the structure of which, among other
things, the Company became a direct, wholly owned subsidiary of RAI, Successor
RJRT succeeded to Old RJRT and BWT became a direct, wholly owned subsidiary of
Successor RJRT;
WHEREAS, Section 10.05 of the Indenture provides that the Company is
required to cause each Subsidiary other than Old RJRT and RJRA (whether
previously existing or created or acquired by the Company) which becomes a Bank
Credit Agreement Guarantor, to execute and deliver to the Trustee a supplemental
indenture pursuant to which such Subsidiary will unconditionally guarantee, on a
joint and several basis with each other Guarantor, the full and prompt payment
of the principal of, premium, if any, and interest, on the Securities, on an
unsecured and unsubordinated basis, and all other Obligations of the Company
under the Indenture, and become a party to the Indenture as a Guarantor for all
purposes of the Indenture;
WHEREAS, BWT, Successor RJRT, RJRA, GMB, FHS, Reynolds Tobacco and RJR
Packaging are each a Bank Credit Agreement Guarantor;
WHEREAS, the Company, RJRA, Old RJRT, FHS, GMB, Reynolds Tobacco, RJR
Packaging, Santa Fe Natural Tobacco Company, Inc. ("Santa Fe") and the Trustee,
have heretofore executed and delivered a First Supplemental Indenture, dated as
of June 30, 2003, pursuant to which FHS, GMB, Reynolds Tobacco, RJR Packaging
and Santa Fe, each became a party to the Indenture as a Guarantor and guaranteed
the payment of the Obligations in accordance with Article 10 of the Indenture;
WHEREAS, RAI has determined that it is desirable and would be a direct
benefit to RAI, along with the Company, Successor RJRT, RAI, Reynolds Tobacco,
RJR Packaging, FHS, GMB and BWT, for RAI to similarly execute and deliver to the
Trustee a supplemental indenture pursuant to which RAI will unconditionally
guarantee, on a joint and several basis with the Guarantors, the full and prompt
payment of the principal of, premium, if any, and interest, on the Securities,
on an unsecured and unsubordinated basis, and all other Obligations of the
Company under the Indenture, and become a party to the Indenture to the same
extent as a Guarantor; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, RAI, the
Guarantors and the Trustee are authorized or permitted to execute and deliver
this Second Supplemental Indenture to amend the Indenture without the consent of
any Securityholder.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Second Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Second
Supplemental Indenture shall refer to the term "Holders" as defined in the
Indenture and the Trustee acting on behalf or for the benefit of such holders.
The words "herein," "hereof" and "hereby" and other words of similar import used
in this Second Supplemental Indenture refer to this Second Supplemental
Indenture as a whole and not to any particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. Successor RJRT and BWT each hereby
becomes a party to the Indenture as a Guarantor, and RAI becomes a party to the
Indenture to the same extent as if it were a Guarantor, and each such party will
have all of the rights and be subject to all of the obligations and agreements
of a Guarantor under the Indenture. Successor RJRT, BWT and RAI each agrees to
be bound by all of the provisions of the Indenture applicable to a Guarantor and
to perform all of the obligations and agreements of a Guarantor under the
Indenture.
SECTION 2.2 Guarantee. Successor RJRT, BWT and RAI each hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally with each other Guarantor, to each Holder of the
Securities and the Trustee, the full and punctual payment when due, whether at
maturity, by acceleration, by redemption, by repurchase or otherwise, of all of
the Obligations of the Company under the Indenture in accordance with Article 10
of the Indenture.
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ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to a Guarantor
or RAI shall be given as provided in the Indenture to the Guarantor or RAI, as
the case may be, at its address set forth below, with a copy to the Company as
provided in the Indenture for notices to the Company.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is intended or
shall be construed to give any Person, firm or corporation, other than the
Holders and the Trustee, any legal or equitable right, remedy or claim under or
in respect of this Second Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3 Governing Law. This Second Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 3.4 Severability Clause. In any case any provision in this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Second Supplemental Indenture Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Second Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder
of Notes heretofore or hereafter authenticated and delivered shall be bound
hereby. The Trustee makes no representation or warranty as to the validity of
this Second Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or more copies
of this Second Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the sections in
this Second Supplemental Indenture are for convenience of reference only and
shall not be deemed to alter or affect the meaning or interpretation of any
provisions hereof.
SECTION 3.8 Trustee. The Trustee makes no representations as to the
validity or sufficiency of this Second Supplemental Indenture. The recitals and
statements herein are deemed to be those of the Company, the Guarantors and RAI
and not of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first above written.
Address: R.J. REYNOLDS TOBACCO HOLDINGS,INC.
401 North Main Street
Winston-Salem, NC 27102
By: /s/ McDara P. Folan, III
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Name: McDara P. Folan, III
Title: Vice President and Secretary
Address: REYNOLDS AMERICAN INC.,
401 North Main Street as a guarantor
Winston-Salem, NC 27102
By: /s/ McDara P. Folan, III
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Name: McDara P. Folan, III
Title: Vice President, Deputy General Counsel
and Secretary
Address: RJR ACQUISITION CORP.,
1007 N. Orange Street as a Guarantor
Suite 1402
Wilmington, DE 19801
By: /s/ McDara P. Folan, III
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Name: McDara P. Folan, III
Title: Vice President and Assistant Secretary
Address: R.J. REYNOLDS TOBACCO COMPANY,
401 North Main Street as a Guarantor
Winston-Salem, NC 27102
By: /s/ Lynn L. Lane
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Name: Lynn L. Lane
Title: Senior Vice President and Treasurer
Address: R. J. REYNOLDS TOBACCO CO.,
401 North Main Street as a Guarantor
Winston-Salem, NC 27102
By: /s/ Lynn L. Lane
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Name: Lynn L. Lane
Title: Treasurer
Address: RJR PACKAGING, LLC,
220 East Polo Road as a Guarantor
Winston-Salem, NC 27102
By: /s/ McDara P. Folan, III
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Name: McDara P. Folan, III
Title: Secretary
Address: FHS, INC.,
1007 N. Orange Street as a Guarantor
Suite 1402
Wilmington, DE 19801
By: /s/ Caroline M. Price
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Name: Caroline M. Price
Title: President
Address: GMB, INC.,
401 North Main Street as a Guarantor
Winston-Salem, NC 27102
By: /s/ Daniel A. Fawley
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Name: Daniel A. Fawley
Title: Treasurer
Address: BWT BRANDS, INC.,
401 North Main Street as a Guarantor
Winston-Salem, NC 27102
By: /s/ Daniel A. Fawley
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Name: Daniel A. Fawley
Title: Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Derek Kettel
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Name: Derek Kettel
Title: Agent