Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
This Second Supplemental Indenture, dated as of June 30, 2003 (this
"Second Supplemental Indenture" or "Guarantee"), among GMB, Inc. ("GMB"), FHS
Inc. ("FHS"), ▇. ▇. ▇▇▇▇▇▇▇▇ Tobacco Co. ("▇▇▇▇▇▇▇▇ Tobacco"), Santa Fe Natural
Tobacco Company, Inc. ("Santa Fe"), RJR Packaging, LLC ("RJR Packaging"), ▇.▇.
▇▇▇▇▇▇▇▇ Tobacco Holdings, Inc. (together with its successors and assigns, the
"Company"), ▇. ▇. ▇▇▇▇▇▇▇▇ Tobacco Company ("RJRT"), RJR Acquisition Corp.
("RJRA") and The Bank of New York, as Trustee under the Indenture referred to
below.
WITNESSETH:
WHEREAS, the Company, RJRT and the Trustee have heretofore executed and
delivered an Indenture, dated as of May 15, 1999 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of an
aggregate principal amount of $550,000,000 of 7 3/8% Notes due 2003, an
aggregate principal amount of $500,000,000 7 3/4% Notes due 2006, and an
aggregate principal amount of $200,000,000 7 7/8% Notes due 2009 of the Company
(the "Notes");
WHEREAS, Section 10.5 of the Indenture provides that the Company is
required to cause each Subsidiary other than RJRT (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 when due,
whether at maturity, by acceleration, by redemption, by repurchase, or
otherwise, of the principal of, premium, if any, and interest, including
Additional Interest, on the Notes on an unsecured and unsubordinated basis and
become a party to the Indenture as a Guarantor for all purposes of the
Indenture;
WHEREAS, the Company, RJRT, RJRA and the Trustee have heretofore
executed and delivered a First Supplemental Indenture, dated as of December 12,
2000, pursuant to which RJRA became a party to the Indenture as a Guarantor and
guaranteed the payment of the Obligations in accordance with Article X of the
Indenture; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Company, the
Guarantors and the Trustee are authorized to execute and deliver this Second
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
Guarantors, the Company and the Trustee 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 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
Guarantee 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. GMB, FHS, ▇▇▇▇▇▇▇▇ Tobacco, Santa Fe
and RJR Packaging each hereby becomes a party to the Indenture as a Guarantor
and as such will have all of the rights and be subject to all of the obligations
and agreements of a Guarantor under the Indenture. GMB, FHS, ▇▇▇▇▇▇▇▇ Tobacco,
Santa Fe and RJR Packaging 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. GMB, FHS, ▇▇▇▇▇▇▇▇ Tobacco, Santa Fe and RJR
Packaging 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 Notes and the Trustee, the full and punctual
payment when due, whether at maturity, by acceleration, by redemption, by
repurchase or otherwise, of the Obligations in accordance with Article X of the
Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to the
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 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
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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 Guarantee 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 and the Guarantors 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: ▇.▇. ▇▇▇▇▇▇▇▇ TOBACCO HOLDINGS, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: VP, Deputy General Counsel and Secretary
Address: RJR ACQUISITION CORP.,
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ as a Guarantor
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: VP and Assistant Secretary
Address: ▇. ▇. ▇▇▇▇▇▇▇▇ TOBACCO COMPANY,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as a Guarantor
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: SVP and Treasurer
Address: GMB, INC.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as a Guarantor
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
Address: FHS, INC.,
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ as a Guarantor
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address: ▇. ▇. ▇▇▇▇▇▇▇▇ TOBACCO CO.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ as a Guarantor
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Address: SANTA FE NATURAL TOBACCO COMPANY, INC.,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ as a Guarantor
▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Assistant Secretary
Address: RJR PACKAGING, LLC,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ as a Guarantor
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President