EX-4.3 7 g90345exv4w3.txt EX-4.3 EXHIBIT 4.3 SECOND SUPPLEMENTAL INDENTURE This Second Supplemental Indenture, dated as of July 30, 2004 (this "Second Supplemental Indenture"), among R.J.Reynolds Tobacco Holdings, Inc., a Delaware corporation (together with its successors and assigns, the "Company"), Reynolds American Inc., a North Carolina corporation ("RAI"), R. J. Reynolds Tobacco Company, a North Carolina corporation ("Successor RJRT"), RJR Acquisition Corp., a Delaware corporation ("RJRA"), GMB, Inc., a North Carolina corporation ("GMB"), FHS, Inc., a Delaware corporation ("FHS"), R. J. Reynolds Tobacco Co., a Delaware corporation ("Reynolds Tobacco"), RJR Packaging, LLC, a Delaware limited liability company ("RJR Packaging"), BWT Brands, Inc., a Delaware corporation ("BWT") and The Bank of New York, as Trustee under the Indenture referred to below. WITNESSETH: WHEREAS, the Company, R. J. Reynolds Tobacco Company, a New Jersey corporation and a predecessor to Successor RJRT ("Old 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, the Company has combined the business and operations of Old RJRT with those of another entity as a result of the structure of which, among other things, the Company became a direct, wholly owned subsidiary of RAI, Successor RJRT succeeded to Old RJRT and BWT became a direct, wholly owned subsidiary of Successor RJRT; WHEREAS, Section 10.05 of the Indenture provides that the Company is required to cause each Subsidiary other than Old 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 each other Guarantor, the full and prompt payment of the principal of, premium, if any, and interest, on the Securities, on an unsecured and unsubordinated basis, and all other Obligations of the Company under the Indenture, and become a party to the Indenture as a Guarantor for all purposes of the Indenture; WHEREAS, BWT, Successor RJRT, RJRA, GMB, FHS, Reynolds Tobacco and RJR Packaging are each a Bank Credit Agreement Guarantor; WHEREAS, the Company, RJRA, Old RJRT, FHS, GMB, Reynolds Tobacco, RJR Packaging, Santa Fe Natural Tobacco Company, Inc. ("Santa Fe") and the Trustee, have heretofore executed and delivered a First Supplemental Indenture, dated as of June 30, 2003, pursuant to which FHS, GMB, Reynolds Tobacco, RJR Packaging and Santa Fe, each became a party to the Indenture as a Guarantor and guaranteed the payment of the Obligations in accordance with Article 10 of the Indenture; WHEREAS, RAI has determined that it is desirable and would be a direct benefit to RAI, along with the Company, Successor RJRT, RAI, Reynolds Tobacco, RJR Packaging, FHS, GMB and BWT, for RAI to similarly execute and deliver to the Trustee a supplemental indenture pursuant to which RAI will unconditionally guarantee, on a joint and several basis with the 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 all other Obligations of the Company under the Indenture, and become a party to the Indenture to the same extent as a Guarantor; and WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, RAI, the Guarantors and the Trustee are authorized or permitted to execute and deliver this Second 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 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 Second 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 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. Successor RJRT and BWT each hereby becomes a party to the Indenture as a Guarantor, and RAI becomes a party to the Indenture to the same extent as if it were a Guarantor, and each such party will have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture. Successor RJRT, BWT and RAI 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. Successor RJRT, BWT and RAI 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 all of the Obligations of the Company under the Indenture in accordance with Article 10 of the Indenture. 2 ARTICLE III Miscellaneous SECTION 3.1 Notices. All notices and other communications to a Guarantor or RAI shall be given as provided in the Indenture to the Guarantor or RAI, as the case may be, 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 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 Second 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 Second Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company, the Guarantors and RAI and not of the Trustee. 3 IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first above written. Address: R.J. REYNOLDS TOBACCO HOLDINGS,INC. 401 North Main Street Winston-Salem, NC 27102 By: /s/ McDara P. Folan, III ------------------------------------------ Name: McDara P. Folan, III Title: Vice President and Secretary Address: REYNOLDS AMERICAN INC., 401 North Main Street as a guarantor Winston-Salem, NC 27102 By: /s/ McDara P. Folan, III --------------------------------------- Name: McDara P. Folan, III Title: Vice President, Deputy General Counsel and Secretary Address: RJR ACQUISITION CORP., 1007 N. Orange Street as a Guarantor Suite 1402 Wilmington, DE 19801 By: /s/ McDara P. Folan, III ---------------------------------------- Name: McDara P. Folan, III Title: Vice President and Assistant Secretary Address: R.J. REYNOLDS TOBACCO COMPANY, 401 North Main Street as a Guarantor Winston-Salem, NC 27102 By: /s/ Lynn L. Lane ----------------------------------------- Name: Lynn L. Lane Title: Senior Vice President and Treasurer Address: R. J. REYNOLDS TOBACCO CO., 401 North Main Street as a Guarantor Winston-Salem, NC 27102 By: /s/ Lynn L. Lane ---------------------------------------- Name: Lynn L. Lane Title: Treasurer Address: RJR PACKAGING, LLC, 220 East Polo Road as a Guarantor Winston-Salem, NC 27102 By: /s/ McDara P. Folan, III ---------------------------------------- Name: McDara P. Folan, III Title: Secretary Address: FHS, INC., 1007 N. Orange Street as a Guarantor Suite 1402 Wilmington, DE 19801 By: /s/ Caroline M. Price ---------------------------------------- Name: Caroline M. Price Title: President Address: GMB, INC., 401 North Main Street as a Guarantor Winston-Salem, NC 27102 By: /s/ Daniel A. Fawley --------------------------------------- Name: Daniel A. Fawley Title: Treasurer Address: BWT BRANDS, INC., 401 North Main Street as a Guarantor Winston-Salem, NC 27102 By: /s/ Daniel A. Fawley ---------------------------------------- Name: Daniel A. Fawley Title: Treasurer THE BANK OF NEW YORK, as Trustee By: /s/ Derek Kettel ---------------------------- Name: Derek Kettel Title: Agent