SECOND AMENDMENT TO CREDIT
AGREEMENT
SECOND
AMENDMENT TO CREDIT AGREEMENT (this “ Second Amendment
”), dated as of June 30, 2009, among REYNOLDS AMERICAN
INC., a North Carolina corporation (the “ Borrower
”), and various Lenders (as defined below) party to the
Credit Agreement referred to below. All capitalized terms used
herein and not otherwise defined herein shall have the respective
meanings provided such terms in the Credit Agreement.
WHEREAS,
the Borrower, various lending institutions (the “
Lenders ”) and JPMorgan Chase Bank, N.A., as
Administrative Agent (in such capacity, the “
Administrative Agent ”), are parties to a Fifth
Amended and Restated Credit Agreement, dated as of June 28,
2007 (as amended, supplemented, restated and/or otherwise modified
to, but not including, the date hereof, the “ Credit
Agreement ”); and
WHEREAS,
the Borrower and the Lenders wish to amend, and enter into certain
agreements with respect to, the Credit Agreement, in each case on
the terms and conditions provided herein;
NOW,
THEREFORE, it is agreed:
I. Certain
Agreements with respect to Revolving Loan Commitments of
LCPI.
1. Notwithstanding
anything to the contrary contained in Sections 3.01, 3.02,
3.03, 4.03 and 12.06 of the Credit Agreement (including any
otherwise applicable notice requirements or minimum commitment
reduction amounts or multiples described therein), the Borrower,
Lehman Commercial Paper Inc. (“ LCPI ”) and
Lenders constituting the Required Lenders hereby agree that
(A) on the Second Amendment Effective Date (as defined below)
(which shall occur on the Quarterly Payment Date occurring closest
to June 30, 2009), (i) the Revolving Loan Commitment of
LCPI shall terminate in its entirety and shall be permanently
reduced to $0.00 (the “ Commitment Termination
”), (ii) the Total Revolving Loan Commitment shall be
reduced by the amount of the Revolving Loan Commitment of LCPI so
terminated, and (iii) the RL Percentage of each RL Lender
shall be automatically adjusted to give effect to the Commitment
Termination and the related reduction of the Total Revolving Loan
Commitment (it being understood, for the avoidance of doubt, that
immediately following the Commitment Termination, the RL Percentage
of LCPI shall be reduced to zero (0%)), (B) concurrently with
the termination of LCPI’s Revolving Loan Commitment on the
Second Amendment Effective Date, (x) the Borrower shall repay
in full all Swingline Loans and Revolving Loans outstanding on such
date (including any Revolving Loans made by LCPI), together with
all accrued but unpaid interest
thereon and
(y) pay to the RL Lenders (including LCPI) all Commitment Fees
and Letter of Credit Fees due and owing to such RL Lenders on such
date pursuant to, and in accordance with the terms of,
Sections 3.01(a) and (b), respectively, of the Credit
Agreement; provided , however , that the Borrower
shall have no obligation to pay to the Administrative Agent for the
account of LCPI (and LCPI shall not be entitled to and hereby
forever waives its right to receive) such portion of the accrued
but unpaid Commitment Fees and Letter of Credit Fees otherwise due
and owing to LCPI on such date as separately agreed to by the
Borrower and LCPI (and notified by the Borrower in writing to the
Administrative Agent), (C) no payment of Commitment Fees or
Letter of Credit Fees pursuant to preceding sub-clause (B)(y) above
shall give rise to an obligation by any RL Lender to purchase from
LCPI any interest or participation in any Obligations pursuant to
Section 12.06(b) of the Credit Agreement with amounts paid to
such RL Lender as contemplated by such sub-clause, and
(D) after giving effect to the foregoing transactions, LCPI
shall (x) cease to constitute an “RL Lender” or a
“Lender” under the Credit Agreement; provided
that LCPI, in its capacity as an RL Lender, shall remain entitled
to its rights pursuant to the indemnification and other similar
provisions of the Credit Documents which by their terms would
survive the repayment of the Loans and the termination of the
Credit Agreement (including, without limitation,
Sections 1.10, 1.11, 2.05, 2.06, 4.04 and 12.01 of the Credit
Agreement) and (y) have no further obligation to fund any
amount or extend any credit as an RL Lender under the Credit
Documents.
2.
The Credit Parties hereby acknowledge that, on and after the Second
Amendment Effective Date (after giving effect thereto), LCPI shall
have no obligation to provide any further financial accommodations
to or for the benefit of the Credit Parties or any of their
Affiliates pursuant to any of the Credit Documents.
3.
Each party hereto hereby agrees that this Second Amendment
(a) does not impose on LCPI affirmative obligations or
indemnities not already existing as of the date of its petition
commencing its proceeding under chapter 11 of title 11 of the
United States Code, and that could give rise to administrative
expense claims, and (b) has been effected in a manner not
inconsistent with the terms of the Credit Agreement.
II.
Amendments to the Credit Agreement .
1.
Section 1.01(b) of the Credit Agreement is hereby amended by
inserting the following text immediately after the first sentence
appearing in said Section:
“Notwithstanding anything to the contrary
contained in this Section 1.01(b), no Swingline Lender shall
be obligated to make any Swingline Loans at a time when a Lender
Default exists with respect to an RL Lender, unless such Swingline
Lender has entered into arrangements reasonably satisfactory to it
and the Borrower to eliminate such Swingline Lender’s risk
with respect to each Defaulting Lender’s participation in
such Swingline Loans (which arrangements are hereby consented to by
the Lenders), including by requiring the Borrower to cash
collateralize each Defaulting Lender’s RL Percentage of the
outstanding Swingline Loans (such arrangements, the “
Swingline Defaulting Lender Arrangements
”).”.
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2.
Section 1.04(b) of the Credit Agreement is hereby amended by
inserting the following text immediately preceding the period
(“.”) appearing at the end of the first sentence of
said Section:
“;
provided that, if, on the date of a Borrowing of Revolving
Loans (other than a Mandatory Borrowing), there are Unpaid Drawings
or Swingline Loans then outstanding, then the proceeds of such
Borrowing shall be applied, first , to the payment in full
of any such Unpaid Drawings, second , to the payment of
principal of then outstanding Swingline Loans in excess of
$10,000,000, and third , to the Borrower as otherwise
provided above”.
3.
Section 2.01(b) of the Credit Agreement is hereby amended by
(i) deleting the text “and” appearing immediately
prior to clause (iii) of said Section and (ii) inserting
the following text immediately preceding the period
(“.”) at the end of said Section:
“; and
(iv) if a Lender Default exists with respect to any RL Lender,
no Letter of Credit Issuer shall be required to issue, renew,
extend or amend any Letter of Credit, unless such Letter of Credit
Issuer has entered into arrangements reasonably satisfactory to it
and the Borrower to eliminate such Letter of Credit Issuer’s
risk with respect to such Defaulting Lender’s participation
in Letters of Credit issued by such Letter of Credit Issuer (which
arrangements are hereby consented to by the Lenders), including by
cash collateralizing each Defaulting Lender’s RL Percentage
of the Letter of Credit Outstandings with respect to such Letters
of Credit in an amount (in Dollars) at all times equal to 105% of
such Defaulting Lender’s RL Percentage of such Letter of
Credit Outstandings (such arrangements, the “ Letter of
Credit Defaulting Lender Arrangements
”)”.
4.
Section 3.02 of the Credit Agreement is hereby amended by
(i) inserting the text “(a)” immediately prior to
the first sentence of said Section, (ii) replacing each
reference to the text “3.02(i)” appearing in said
Section with the text “3.02(a)(i)”,
(iii) replacing each reference to the text
“3.02(ii)” appearing in said Section with the text
“3.02(a)(ii)”, and (iv) inserting the following
new clause (b) at the end of said Section:
“(b) If
(i) the Borrower is entitled to replace a Replaced Lender
pursuant to the terms of Section 1.14 but cannot (after
commercially reasonable efforts to do so) identify a Replacement
Lender to replace such Replaced Lender as otherwise contemplated by
Section 1.14 and (ii) no Loans are then outstanding, the
Borrower shall have the right, upon not less than five Business
Days’ prior written notice to the Administrative Agent at the
Administrative Agent’s Office (which notice the
Administrative Agent shall promptly transmit to each of the
Lenders), to terminate the entire Revolving Loan Commitment of such
Replaced Lender, so long as (1) all Fees and other amounts
owing to such Replaced Lender are repaid concurrently with the
effectiveness of such termination (at which time Annex I shall be
deemed modified to reflect such termi
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