Exhibit 4.4
SECOND SUPPLEMENTAL
INDENTURE
dated as of September 30,
2009
with respect to
the:
SUPPLEMENTAL
INDENTURE
Dated as of December 20,
2002
among
DEL MONTE CORPORATION, as
Issuer
THE GUARANTORS PARTY
HERETO
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
SECOND SUPPLEMENTAL INDENTURE (this
“ Second Supplemental Indenture ”), dated as of
September 30, 2009, among Del Monte Corporation, a Delaware
corporation (formerly known as SKF Foods, Inc.) (the “
Company ”), the Guarantors party hereto, and The Bank
of New York Mellon Trust Company, N.A., as trustee (the “
Trustee ”) for the Company’s 8
5
/ 8 % Senior
Subordinated Notes due 2012 (the “ Notes
”).
W I T N E S S E T H
WHEREAS, the Company has heretofore
executed and delivered to the Trustee a Supplemental Indenture (the
“ Original Indenture ”), dated as of
December 20, 2002, providing for the issuance of the Notes,
which Original Indenture has been supplemented by a First
Supplemental Indenture, dated as of May 19, 2006 (the Original
Indenture as so supplemented, the “ Indenture
”);
WHEREAS, the Company has offered to
purchase any and all of the Notes (the “ Offer
”) and has solicited consents (the “
Solicitation ”) to certain amendments to the Indenture
pursuant to the Company’s Offer to Purchase and Consent
Solicitation Statement dated September 17, 2009;
WHEREAS, Section 9.02 of the
Indenture provides that the Company, when authorized by a Board
Resolution, and the Trustee may amend or supplement the Indenture
with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes;
WHEREAS, in accordance with
Section 9.02 of the Indenture, the Company has obtained the
written consent to the proposed amendments to the Indenture from
the Holders of at least a majority in aggregate principal amount of
the Notes;
WHEREAS, the Company is authorized
to enter into this Second Supplemental Indenture by a Board
Resolution, and the Trustee has received an Opinion of Counsel and
an Officers’ Certificate stating that the execution of this
Second Supplemental Indenture is permitted by the Indenture and all
conditions precedent under the Indenture have been satisfied;
and
Whereas, all actions necessary to
make the Indenture, as supplemented by this Second Supplemental
Indenture, the legal, valid and binding obligation of the Company,
have been done.
NOW, THEREFORE, for and in
consideration of the foregoing premises, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Notes, as follows:
A G R E E M E N T S
SECTION 1.01. Capitalized
Terms . Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
SECTION 2.01. Amendments to
Indenture and Notes . At such time as the Company delivers
written notice to the Trustee and Global Bondholder Services
Corporation, in its capacity as the depositary for the Notes with
respect to the Offer, that Notes representing at least a majority
in aggregate principal amount of the Notes have been validly
tendered and not validly withdrawn pursuant to the Offer and
accepted for purchase:
(a) The definition of “Asset
Sale” in Section 1.01 of the Indenture shall be amended
by deleting the text of such definition in its entirety and
replacing it with the following text:
“Asset Sale” means any
direct or indirect sale, issuance, conveyance, transfer, lease
(other than operating leases entered into in the ordinary course of
business), assignment or other transfer for value by the Company or
any of its Restricted Subsidiaries (including any Sale and
Leaseback Transaction) to any Person other than the Company or a
Wholly Owned Restricted Subsidiary of the Company of:
(a) any Capital Stock of any
Restricted Subsidiary of the Company, or
2
(b) any other property or
assets of the Company or any Restricted Subsidiary of the Company
other than in the ordinary course of business; provided,
however, that Asset Sales shall not include:
(i) a transaction or series of
related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than
$3 million;
(ii) the sale or transfer of
Receivables Related Assets in connection with a Qualified
Receivables Transaction; and
(iii) the sale or transfer of
certain assets identified in Schedule 1 to this Indenture as
being held for disposition.
(b) Section 3.01 of the
Indenture shall be amended by deleting the text of the second
paragraph of Section 3.01 in its entirety and replacing it
with the following text:
The Company shall give each notice
provided for in this Section 3.01 at least 3 days but not more
than 60 days before the Redemption Date (unless a shorter notice
period shall be satisfactory to the Trustee and the Paying Agent,
as evidenced in a writing signed on behalf of the Trustee and the
Paying Agent), together with an Officers’ Certificate stating
that such redemption complies with the conditions contained herein
and in the Notes.
(c) Section 3.03 of the
Indenture shall be amended by deleting the text of the first
paragraph of Section 3.03 in its entirety and replacing it
with the following text:
At least 3 days but not more than 60
days before a Redemption Date, the Company shall mail or cause to
be mailed a notice of redemption by first class mail, postage
prepaid, to each Holder whose Notes are to be redeemed at its
registered address, with a copy to the Trustee and any Paying
Agent. At the Company’s written request, the Trustee shall
give the notice of redemption in the Company’s name and at
the Company’s expense.
(d) The following Sections of the
Indenture, and any corresponding provisions in the Notes, shall be
deleted in their entirety and replaced with “Intentionally
Omitted,” and all references made thereto throughout the
Indenture and the Notes shall be deleted in their
entirety:
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Existing Section or
Subsection Number
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Caption
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SECTION
4.03
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Corporate
Existence
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SECTION
4.04
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Payment of
Taxes and Other Claims
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SECTION
4.05
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Maintenance of
Properties and Insurance
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SECTION
4.07
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Compliance with
Laws
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SECTION
4.09
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Waiver of Stay,
Extension or Usury Laws
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SECTION
4.10
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Limitation on
Restricted Payments
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SECTION
4.11
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Limitation on
Transactions with Affiliates
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SECTION
4.12
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Limitation on
Incurrence of Additional Indebtedness
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SECTION
4.13
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Limitation on
Dividends and Other Payment Restrictions Affecting
Subsidiaries
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SECTION
4.14
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Prohibition on
Incurrence of Senior Subordinated Debt
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SECTION
4.17
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Limitation on
Preferred Stock of Restricted Subsidiaries
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SECTION
4.18
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Limitation on
Liens
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SECTION
4.20
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Restriction of
Lines of Business to Food, Food Distribution and Related
Businesses
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SECTION
5.01
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Merger,
Consolidation and Sale of Assets of the Company
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SECTION
5.03
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Merger,
Consolidation and Sale of Assets of Holdings
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SECTION
5.05
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Merger,
Consolidation and Sale of Assets of Subsidiary
Guarantors
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(e) Section 4.06 of the
Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text:
SECTION 4.06. Compliance
Certificate; Notice of Default.
The Company shall deliver to the
Trustee not less often than annually an Officers’ Certificate
stating that as to each such Officer’s knowledge the Company
has complied with all conditions and covenants under this
Indenture.
(f) Section 4.08 of the
Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text:
SECTION 4.08. SEC
Reports.
The Company will comply with the
provisions of TIA Section 314(a).
(g) Section 4.16 of the
Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text:
SECTION 4.16. Limitation on
Asset Sales.
(a) In the event and to the
extent that the Net Cash Proceeds received by the Company or any of
its Restricted Subsidiaries from one or more Asset Sales occurring
on or after the Merger Date in any period of 12 consecutive months
exceed 10% of Consolidated Net Tangible Assets (determined as of
the date closest to the commencement of such 12-month period for
which a consolidated balance sheet of the Company and its
Subsidiaries has been prepared), then the Company shall or shall
cause the relevant Restricted Subsidiary, within 360 days after the
date Net Cash Proceeds so received exceed 10% of Consolidated Net
Tangible Assets, to apply such excess Net Cash Proceeds:
(i) to prepay any Senior Debt
or any Guarantor Senior Debt of a Subsidiary Guarantor and, in the
case of any prepaid Senior Debt or Guarantor Senior Debt under any
revolving credit facility, effect a permanent reduction in the
availability under such revolving credit facility, or to so prepay
any Indebtedness of a Wholly Owned Restricted
Subsidiary,
(ii) to make an Investment (or
enter into a definitive agreement committing to so invest within
360 days after the date of such agreement and to make such
Investment as provided in such agreement) in properties and assets
that replace the properties and assets that were the subject of
such Asset Sale or in properties and assets that will be used in
the business of the Company and its Restricted Subsidiaries as it
exists on the date of such Asset Sale or in
4
businesses that are the same as such
business of the Company and its Restricted Subsidiaries on the date
of such Asset Sale or similar or reasonably related thereto
(“Replacement Assets”), or
(iii) a combination of
prepayment and investment permitted by the foregoing clauses
(i) and (ii).
Pending the final application of
such Net Cash Proceeds, the Company may temporarily reduce
borrowings under the Credit Agreement or any other revolving credit
facility, if any, or otherwise invest such Net Cash Proceeds in
Cash Equivalents, in each case in a manner not prohibited by this
Indenture. Subject to the last sentence of this paragraph, on the
361st day after an Asset Sale or such earlier date, if any, as the
Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such
Asset Sale as set forth in clause (i), (ii) or (iii) of
the second preceding sentence (each, a “Net Proceeds Offer
Trigger Date”), such aggregate amount of Net Cash Proceeds
which have not been applied (or committed to be applied pursuant to
a definitive agreement as described above) on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (i),
(ii) and (iii) of the second pre