Exhibit 10.1
SUBSIDIARY ASSUMPTION AGREEMENT
SUBSIDIARY ASSUMPTION AGREEMENT, dated as of June 30, 2003 (this
"Agreement"), made by GMB, Inc., a corporation organized under the laws of the
State of North Carolina ("GMB"), FHS, Inc., a corporation organized under the
laws of the State of Delaware ("FHS"), X.X. Xxxxxxxx Tobacco Co., a corporation
organized under the laws of the State of Delaware ("Xxxxxxxx Tobacco"), Santa Fe
Natural Tobacco Company, Inc., a corporation organized under the laws of the
State of New Mexico ("Santa Fe"), and RJR Packaging, LLC, a limited liability
company organized under the laws of the State of Delaware ("RJR Packaging", and
together with GMB, FHS, Xxxxxxxx Tobacco and Santa Fe, the "New Subsidiaries",
and each a "New Subsidiary"). Except as otherwise defined herein, capitalized
terms used herein and not otherwise defined shall have the meaning assigned to
those terms in the Credit Agreement (as hereinafter defined).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, X.X. Xxxxxxxx Tobacco Holdings, Inc. (f/k/a/ RJR Nabisco,
Inc.), a Delaware corporation (the "Borrower"), various lending institutions
(the "Lenders") and JPMorgan Chase Bank, as Administrative Agent (the
"Administrative Agent"), are parties to a Second Amended and Restated Credit
Agreement, dated as of May 10, 2002 (as so amended and restated and as the same
may be further amended, modified, restated and/or supplemented from time to
time, the "Credit Agreement");
WHEREAS, X.X. Xxxxxxxx Tobacco Company, RJR Acquisition Corp. and the
Administrative Agent are parties to a Third Amended and Restated Subsidiary
Guaranty Agreement, dated as of January 17, 2003 (as so amended and restated and
as the same may be further amended, modified, restated and/or supplemented from
time to time, the "Subsidiary Guaranty"); and
WHEREAS, each New Subsidiary desires to execute and deliver this
Agreement and to become a party to the Subsidiary Guaranty in order to satisfy
the requirements set forth in Section 7.11(a) of the Credit Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subsidiary Guaranty. By executing and delivering this Agreement,
each New Subsidiary hereby (i) becomes a party to the Subsidiary Guaranty as a
"Guarantor" thereunder with the same force and effect as if originally named
therein as a Guarantor, (ii) expressly, irrevocably, absolutely and jointly and
severally assumes all obligations and liabilities of a "Guarantor" under the
Subsidiary Guaranty and (iii) makes each of the representations and warranties
contained in the Subsidiary Guaranty on the date hereof, after giving effect to
this Agreement. Each reference to a "Guarantor" in the Subsidiary Guaranty shall
be deemed to include each New Subsidiary. In accordance with Section 24 of the
Subsidiary Guaranty, attached as Annex I to this Agreement are executed
counterparts of the Subsidiary Guaranty with respect to each New Subsidiary.
2. Representations and Warranties; Acknowledgment; Counterparts;
Supplements; Severability; Binding Effect; Credit Document. Each New Subsidiary
represents and warrants that this Agreement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligations,
enforceable against it in accordance with its terms, subject to the effect of
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and equitable principles of general applicability. Each New Subsidiary
hereby acknowledges that it has received copies of and is familiar with the
terms of the Subsidiary Guaranty. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Except as expressly
supplemented hereby, the Subsidiary Guaranty shall remain in full force and
effect. Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. This Agreement shall be binding upon the parties hereto and
their respective permitted successors and assigns. From and after the execution
and delivery hereof by the parties hereto, this Agreement shall constitute a
"Credit Document" for all purposes of the Credit Agreement and the other Credit
Documents.
3. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF
LAWS PROVISIONS).
* * *
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered by their respective authorized officers as of
the date first above written.
GMB, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
FHS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: President
X.X. XXXXXXXX TOBACCO CO.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Treasurer
SANTA FE NATURAL TOBACCO COMPANY, INC.
By: /s/ XxXxxx X. Xxxxx, III
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Name: XxXxxx X. Xxxxx, III
Title: Assistant Secretary
RJR PACKAGING, LLC
By: /s/ XxXxxx X. Xxxxx, III
-----------------------------------
Name: XxXxxx X. Xxxxx, III
Title: Secretary
Accepted and Agreed to:
JPMORGAN CHASE BANK,
as Administrative Agent for the Lenders
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
ANNEX I
SUBSIDIARY GUARANTY
GMB, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
FHS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
X.X. XXXXXXXX TOBACCO CO.
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Treasurer
SANTA FE NATURAL TOBACCO COMPANY, INC.
By: /s/ XxXxxx X. Xxxxx, III
-----------------------------------
Name: XxXxxx X. Xxxxx, III
Title: Assistant Secretary
RJR PACKAGING, LLC
By: /s/ XxXxxx X. Xxxxx, III
-----------------------------------
Name: XxXxxx X. Xxxxx, III
Title: Secretary
