Back to top

SECOND SUPPLEMENTAL INDENTURE

Addendum or Modifications

SECOND SUPPLEMENTAL INDENTURE | Document Parties: DEL MONTE FOODS CO | BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | DEL MONTE FOODS COMPANY | MEOW MIX COMPANY, LLC | MEOW MIX DECATUR PRODUCTION I LLC | SKF Foods, Inc You are currently viewing:
This Addendum or Modifications involves

DEL MONTE FOODS CO | BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | DEL MONTE FOODS COMPANY | MEOW MIX COMPANY, LLC | MEOW MIX DECATUR PRODUCTION I LLC | SKF Foods, Inc

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: SECOND SUPPLEMENTAL INDENTURE
Governing Law: New York     Date: 10/2/2009
Industry: Food Processing     Sector: Consumer/Non-Cyclical

SECOND SUPPLEMENTAL INDENTURE, Parties: del monte foods co , bank of new york mellon trust company  n.a. , del monte foods company , meow mix company  llc , meow mix decatur production i llc , skf foods  inc
50 of the Top 250 law firms use our Products every day

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:

 

Existing Section or
Subsection Number

  

Caption

SECTION 4.03

  

Corporate Existence

SECTION 4.04

  

Payment of Taxes and Other Claims

SECTION 4.05

  

Maintenance of Properties and Insurance

SECTION 4.07

  

Compliance with Laws

SECTION 4.09

  

Waiver of Stay, Extension or Usury Laws

SECTION 4.10

  

Limitation on Restricted Payments

SECTION 4.11

  

Limitation on Transactions with Affiliates

SECTION 4.12

  

Limitation on Incurrence of Additional Indebtedness

SECTION 4.13

  

Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries

SECTION 4.14

  

Prohibition on Incurrence of Senior Subordinated Debt

SECTION 4.17

  

Limitation on Preferred Stock of Restricted Subsidiaries

 

3


SECTION 4.18

  

Limitation on Liens

SECTION 4.20

  

Restriction of Lines of Business to Food, Food Distribution and Related Businesses

SECTION 5.01

  

Merger, Consolidation and Sale of Assets of the Company

SECTION 5.03

  

Merger, Consolidation and Sale of Assets of Holdings

SECTION 5.05

  

Merger, Consolidation and Sale of Assets of Subsidiary Guarantors

(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


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more