SIXTH SUPPLEMENTAL INDENTURE
EXHIBIT 4.6
SIXTH SUPPLEMENTAL INDENTURE
This Sixth Supplemental Indenture is dated as of June 20, 2006 (this “Sixth Supplemental
Indenture”), among X.X. Xxxxxxxx Tobacco Holdings, Inc., a Delaware corporation (together with
its successors and assigns, the “Company”); Xxxxxxxx American Inc., a North Carolina
corporation (“RAI”), X. X. Xxxxxxxx Tobacco Company, a North Carolina corporation
(“RJRT”), RJR Acquisition Corp., a Delaware corporation, GMB, Inc., a North Carolina
corporation, FHS, Inc., a Delaware corporation, 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 (the “Trustee”).
WITNESSETH:
WHEREAS, the Company, X. X. Xxxxxxxx Tobacco Company, a New Jersey corporation which was a
predecessor-in-interest of RJRT, and the Trustee have heretofore executed and delivered an
Indenture, dated as of May 15, 1999 , providing for the issuance of, among other series of notes,
an aggregate principal amount of $200,000,000 of the Company’s 7.875% Notes due 2009 (the “2009
Notes”); and
WHEREAS, RAI has solicited consents (the “Consent Solicitation”) from the Holders of
the 2009 Notes to certain proposed amendments to the Indenture (the “Proposed Amendments”)
as set forth in Article II hereof, in accordance with the terms of an Offer to Exchange and Consent
Solicitation Statement dated May 19, 2006 (the “Offer to Exchange”); and
WHEREAS, pursuant to Section 9.2 of the Indenture, with the consent of the Holders of
not less than a majority in aggregate principal amount of the 2009 Notes at the time outstanding,
the Company, RAI, the Guarantors and the Trustee may enter into a supplemental indenture for the
purpose of adopting the Proposed Amendments;
WHEREAS, pursuant to the Consent Solicitation, the Holders of a majority in aggregate
principal amount of the outstanding 2009 Notes have consented to the adoption of the Proposed
Amendments; and
WHEREAS, the 2009 Notes are the only series of notes currently outstanding under the
Indenture;
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 as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Sixth Supplemental Indenture, terms
defined in the Indenture or in the preamble or recitals hereto are used herein as therein defined,
except that
the term “Holders” in this Sixth Supplemental Indenture shall refer to the “Holders” as
defined in the Indenture and to 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 Sixth
Supplemental Indenture refer to this Sixth Supplemental Indenture as a whole and not to any
particular section hereof.
ARTICLE II
Indenture Amendments
SECTION 2.1 Deletion of Certain Articles, Sections and Clauses from the Indenture.
The text of the following articles and sections of the Indenture shall be deleted from the
Indenture:
| Section 3.5 | Negative Pledge | |||
| Section 3.6 | Certain Sale and Lease-back Transactions | |||
| Section 3.7 | Corporate Existence | |||
| Section 3.8 | Payment of Taxes and Other Claims | |||
| Section 3.9 | Waiver of Stay, Extension or Usury Laws | |||
| Article IV | Consolidation, Merger, Sale or Conveyance |
In addition, the text set forth in clause (f) of Section 6.1, “Event of Default Defined;
Acceleration of Maturity; Waiver of Default,” shall be deleted.
In place of the deleted text of the foregoing articles, sections and clauses, the following
text shall be inserted immediately after the section or article number or clause letter:
“[Reserved].”
Any and all references to the foregoing articles, sections and clauses and any and all
obligations thereunder related solely to such articles, sections and clauses throughout the
Indenture shall be of no further force or effect. All definitions in the Indenture which are used
exclusively in the articles, sections and clauses deleted pursuant to this Section 2.1 shall be of
no further force or effect.
SECTION 2.1 Amendment of Clause (e) of Section 6.1. The following proviso shall be
inserted immediately after the existing text that precedes the semicolon in clause (e) of Section
6.1, “Event of Default Defined; Acceleration of Maturity; Waiver of Default”:
“provided, however, that it shall not be an Event of Default if the Company or any Guarantor
that is a Subsidiary of the Company, as applicable, consents to the entry of such a decree
or order”
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ARTICLE III
Effectiveness of Supplemental Indenture; Operativeness of Amendments
SECTION 3.1 Effectiveness of Supplemental Indenture. This Sixth Supplemental
Indenture shall become effective upon the due execution and delivery by the Company, the
Guarantors, RAI and the Trustee of this Sixth Supplemental Indenture.
SECTION 3.2 Operativeness of Amendments. Notwithstanding Section 3.1 of this Sixth
Supplemental Indenture, the Proposed Amendments set forth in Article II of this Sixth Supplemental
Indenture shall become operative when, and only when, all of the following shall have been
satisfied: RAI shall have accepted the 2009 Notes validly tendered and not validly withdrawn in the
exchange offer described in the Offer to Exchange.
ARTICLE IV
Miscellaneous
SECTION 4.1 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 Sixth Supplemental Indenture
or the Indenture or any provision herein or therein contained.
SECTION 4.2 Governing Law. This Sixth Supplemental Indenture shall be governed by
the laws of the State of New York.
SECTION 4.3 Severability Clause. In any case any provision in this Sixth
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 and
unenforceability.
SECTION 4.4 Ratification of Indenture; Sixth 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 Sixth 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.
SECTION 4.5 Counterparts. The parties hereto may sign one or more copies of this
Sixth Supplemental Indenture in counterparts, all of which together shall constitute one and the
same agreement
SECTION 4.6 Headings. The headings of the Articles and the sections in this Sixth
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 4.7 Trustee. The Trustee makes no representations as to the validity or
sufficiency of this Sixth 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 Sixth Supplemental Indenture to be duly executed as
of the date first above written.
| Address: | X.X. XXXXXXXX TOBACCO HOLDINGS, INC. | |||||
000 Xxxxx Xxxx Xxxxxx |
||||||
Xxxxxxx-Xxxxx, X X 00000 |
||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Title: Senior Vice President & Treasurer | ||||||
| Address: | XXXXXXXX AMERICAN INC., | |||||
| 000 Xxxxx Xxxx Xxxxxx | as a Guarantor | |||||
Winston-Salem, N C 27102 |
||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Title: Senior Vice President & Treasurer | ||||||
| Address: | RJR ACQUISITION CORP., | |||||
| 0000 X. Xxxxxx Xxxxxx | as a Guarantor | |||||
Xxxxx 0000 |
||||||
Xxxxxxxxxx, XX 00000 |
||||||
| By: | /s/ XxXxxx X. Xxxxx, III | |||||
| Title: Vice President & Assistant Secretary | ||||||
| Address: | X. X. XXXXXXXX TOBACCO COMPANY, | |||||
| 000 Xxxxx Xxxx Xxxxxx Winston-Salem, N C 27102 |
as a Guarantor | |||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Title: Senior Vice President & Treasurer | ||||||
| Address: | X. X. XXXXXXXX TOBACCO CO., | |||||
| 000 Xxxxx Xxxx Xxxxxx | as a Guarantor | |||||
Winston-Salem, N C 27102 |
||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Title: Senior Vice President & Treasurer | ||||||
Signature Pages to Sixth Supplemental Indenture to 0000 Xxxxxxxxx
| Address: | FHS, INC., | |||||||||
| 0000 X. Xxxxxx Xxxxxx | as a Guarantor | |||||||||
| Xxxxx 0000 | ||||||||||
| Xxxxxxxxxx, XX 00000 | ||||||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||||||
| Title: Treasurer | ||||||||||
| Address: | GMB, INC., | |||||||||
| 000 Xxxxx Xxxx Xxxxxx | as a Guarantor | |||||||||
| Winston-Salem, N C 27102 | ||||||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||||||
| Title: Treasurer | ||||||||||
| THE BANK OF NEW YORK TRUST | ||||||||||
| COMPANY, N.A., as Trustee | ||||||||||
By:
|
/s/ Xxxx Xxxxxx | |||||||||
| Title: Assistant Treasurer | ||||||||||
Signature Pages to Sixth Supplemental Indenture to 1999 Indenture
