Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture, dated as of June 30, 2003 (this
"First Supplemental Indenture"), 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, 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, RJRT and RJRA are existing Guarantors under the Indenture;
WHEREAS, Section 10.05 of the Indenture provides that the Company is
required to cause each Subsidiary other than 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 the other 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 become a party to the Indenture as a
Guarantor for all purposes of the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, the
Guarantors and the Trustee are authorized to execute and deliver this First
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 First 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 First
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 First Supplemental Indenture refer to this First 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 agree 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 Securities 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 10 of
the Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to GMB, FHS,
▇▇▇▇▇▇▇▇ Tobacco, Santa Fe or RJR Packaging 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 First Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3 Governing Law. This First 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
First 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; First 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 First 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 First
Supplemental Indenture.
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SECTION 3.6 Counterparts. The parties hereto may sign one or more
copies of this First 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 First Supplemental 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 First 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 First
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