THIRD SUPPLEMENTAL INDENTURE
EXHIBIT 4.6
This Third Supplemental Indenture, dated as of May 31, 2006 (this “Third Supplemental
Indenture”), among X.X. Xxxxxxxx Tobacco Holdings, Inc., a Delaware corporation (the
“Company”) and Xxxxxxxx American Inc., a North Carolina corporation, X. X. Xxxxxxxx Tobacco
Company, a North Carolina corporation, RJR Acquisition Corp., a Delaware corporation, GMB, Inc., a
North Carolina corporation, FHS, Inc., a Delaware corporation, and X. X. Xxxxxxxx Tobacco Co., a
Delaware corporation, (collectively, the “Guarantors”), and The Bank of New York Trust
Company, N.A., as Trustee under the Indenture referred to below.
WITNESSETH:
WHEREAS, the Company, the Guarantors, and the Trustee are parties to an Indenture, dated as of
May 20, 2002 (as amended, supplemented, waived or otherwise modified, the “Indenture”),
pursuant to which an aggregate principal amount of $300,000,000 of the Company’s 6.50 % Notes due
2007, an aggregate principal amount of $450,000,000 of the Company’s 7.25% Notes due 2012, an
aggregate principal amount of $300,000,000 of the Company’s 6.500% Secured Notes due 2010, and an
aggregate principal amount of the Company’s 7.300% Secured Notes due 2015 (the “Notes”)
remain outstanding; and
WHEREAS, the Third Amended and Restated Credit Agreement, dated as of July 30, 2004, among the
Company, JPMorgan Chase Bank, N.A., as Administrative Agent, and the various lending institutions
named on the signature pages thereof (the “Third Amended and Restated Credit Agreement”)
has been replaced by that certain Fourth Amended and Restated Credit Agreement, dated as of May 31,
2006, among Xxxxxxxx American, Inc. (“RAI”), JPMorgan Chase Bank, N.A., as Administrative
Agent, and the various lending institutions named on the signature pages thereof (the “Fourth
Amended and Restated Credit Agreement”); and
WHEREAS, the Company and the Guarantors have determined that it is desirable to confirm and
agree that (i) for purposes of the Indenture, the Fourth Amended and Restated Credit Agreement
constitutes a refinancing and replacement of the Third Amended and Restated Credit Agreement and
thus should be encompassed by the definition of Bank Credit Agreement in the Indenture, and (ii)
RAI, which is the borrower under the Fourth Amended and Restated Credit Agreement rather than a
guarantor, shall not as a result of its new status be released as a Guarantor under the Indenture;
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, the Guarantors, and
the Trustee are authorized or permitted to execute and deliver this Third Supplemental Indenture to
amend the Indenture, without the consent of any Noteholder;
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 Notes as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Third 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 Third 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
Third Supplemental Indenture refer to this Third Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
Amendments to Indenture
SECTION 2.1 Definition of Bank Credit Agreement. Section 1.01 of the Indenture is
hereby amended so that the term “Bank Credit Agreement” as used in the Indenture shall mean the
Fourth Amended and Restated Credit Agreement, dated as of May 31, 2006, among Xxxxxxxx American,
Inc., JPMorgan Chase Bank, N.A., as Administrative Agent, and the various lending institutions
named on the signature pages thereof, as such agreement may be amended, modified, renewed,
refunded, restated, refinanced or replaced from time to time.
SECTION 2.2 RAI as Guarantor. RAI shall remain as a Guarantor under the Indenture so
long as it is either a borrower under, or party to, the Bank Credit Agreement, as defined above, or
a Bank Credit Agreement Guarantor.
SECTION 2.3 Packaging No Longer Guarantor. The parties hereby acknowledge that RJR
Packaging, LLC is not a guarantor of the Fourth Amended and Restated Credit Agreement and
accordingly is no longer a Guarantor under the Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to a Guarantor shall be
given as provided in the Indenture to the Guarantor 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 Third Supplemental Indenture
or the Indenture or any provision herein or therein contained.
2
SECTION 3.3 Governing Law. This Third 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 Third 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; Third 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 Third
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 Third Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or more copies of this
Third 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 Third
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 Third Supplemental Indenture. The recitals and statements herein are deemed to
be those of the Company and the Guarantors and not of the Trustee.
[Signatures on following page]
3
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed as of the date first above written.
| Address: 000 Xxxxx Xxxx Xxxxxx Xxxxxxx-Xxxxx, XX 00000 |
X.X. XXXXXXXX TOBACCO HOLDINGS, INC. | |||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President & Treasurer | |||
| Address: 000 Xxxxx Xxxx Xxxxxx Xxxxxxx-Xxxxx, XX 00000 |
XXXXXXXX AMERICAN INC., as a guarantor |
|||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President & Treasurer | |||
| Address: 0000 X. Xxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxxx, XX 00000 |
RJR ACQUISITION CORP., as a Guarantor |
|||
| By: | /s/ XxXxxx X. Xxxxx, III | |||
| Name: | XxXxxx X. Xxxxx, III | |||
| Title: | Vice President & Assistant Secretary | |||
| Address: 000 Xxxxx Xxxx Xxxxxx Xxxxxxx-Xxxxx, XX 00000 |
X. X. XXXXXXXX TOBACCO COMPANY, as a Guarantor |
|||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President & Treasurer | |||
| Address: 000 Xxxxx Xxxx Xxxxxx Xxxxxxx-Xxxxx, XX 00000 |
X. X. XXXXXXXX TOBACCO CO., as a Guarantor |
|||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
4
| Address: 0000 X. Xxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxxx, XX 00000 |
FHS, INC., as a Guarantor |
|||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Treasurer | |||
| Address: 000 Xxxxx Xxxx Xxxxxx Xxxxxxx-Xxxxx, XX 00000 |
GMB, INC., as a Guarantor |
|||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Treasurer | |||
| THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Assistant Treasurer | |||
5
