Exhibit 4.2
RALCORP HOLDINGS,
INC.
AND THE GUARANTORS PARTY
HERETO
6.625% Notes due
2039
First Supplemental
Indenture
Dated as of August 14,
2009
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
as Trustee
TABLE OF CONTENTS
____________________
PAGE
ARTICLE 1
SCOPE OF SUPPLEMENTAL INDENTURE;
GENERAL
|
Section 1.01. Scope of Supplemental Indenture;
General
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2
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ARTICLE 2
CERTAIN DEFINITIONS
|
Section 2.01. Certain
Definitions
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4
|
|
Section 2.02. Rules of
Construction
|
9
|
ARTICLE 3
COVENANTS
|
Section 3.01. Offer to Redeem upon Change of
Control Triggering Event.
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9
|
|
Section 3.02. Restrictions on Secured
Debt.
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10
|
|
Section 3.03. Limitations on Sale and
Lease-Back
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12
|
|
Section 3.04. Applicability of Covenants
Contained in the Base Indenture
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12
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ARTICLE 4
REMEDIES
|
Section 4.01. Events of Default
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13
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ARTICLE 5
GUARANTEES
|
Section 5.01. Unconditional
Guarantees
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13
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ARTICLE 6
THE NOTES
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Section 6.01. Form of Notes
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13
|
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Section 6.02. Depositary
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13
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ARTICLE 7
REDEMPTION
|
Section 7.01. Optional
Redemption
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14
|
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Section 7.02. Applicability of Sections of the
Base Indenture
|
14
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ARTICLE 8
DEFEASANCE
ARTICLE 9
MISCELLANEOUS
|
Section 9.01. GOVERNING LAW
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14
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SCHEDULE:
EXHIBIT:
FIRST SUPPLEMENTAL INDENTURE dated
as of August 14, 2009 (“ Supplemental Indenture
”) to the Indenture dated as of August 14, 2009 (the “
Base Indenture ” and as supplemented by this
Supplemental Indenture, the “ Indenture ”), is
by and among RALCORP HOLDINGS, INC., a Missouri corporation (the
“ Company ”), each of the Guarantors a party
hereto and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking
corporation, as trustee (as defined in the Indenture, the “
Trustee ”).
Each party agrees as follows for the
benefit of the other parties and for the equal and ratable benefit
of the Holders of Notes (as defined herein):
WHEREAS, the Company has duly
authorized the execution and delivery of the Base Indenture to
provide for the issuance from time to time of the Company’s
debentures, notes, bonds or other evidences of indebtedness (as
defined in the Indenture, the “ Debt Securities
”), to be issued in one or more series, as in the Indenture
provided;
WHEREAS, the Company and the
Guarantors desire and have requested the Trustee to join them in
the execution and delivery of this Supplemental Indenture in order
to establish and provide for the issuance by the Company of a
series of Debt Securities designated as its 6.625% Notes due 2039
(the “ Notes ”), guaranteed by the Guarantors
(as defined herein), on the terms set forth herein;
WHEREAS, the Company now wishes to
issue Notes in an initial aggregate principal amount of
$300,000,000;
WHEREAS, Section 11.1 of the Base
Indenture provides that a supplemental indenture may be entered
into without the consent of the Holders of any Debt Securities by
the Company, the Guarantors and the Trustee for such purpose
provided certain conditions are met;
WHEREAS, the conditions set forth in
the Indenture for the execution and delivery of this Supplemental
Indenture have been complied with; and
WHEREAS, all things necessary to
make this Supplemental Indenture a valid agreement of the Company,
the Guarantors and the Trustee, in accordance with its terms, and a
valid amendment of, and supplement to, the Base Indenture have been
done;
NOW, THEREFORE:
In consideration of the premises and
the purchase and acceptance of the Notes by the Holders thereof,
the Company and the Guarantors mutually covenant and agree with the
Trustee, for the equal and ratable benefit of the Holders of the
Notes, that the Base Indenture is supplemented and amended, to the
extent expressed herein, as follows:
ARTICLE 1
SCOPE OF SUPPLEMENTAL INDENTURE; GENERAL
Section 1.01
. Scope of Supplemental
Indenture; General. (a) This
Supplemental Indenture supplements, and to the extent inconsistent
therewith, replaces the provisions of the Indenture, to which
provisions reference is hereby made.
The changes, modifications and
supplements to the Indenture effected by this Supplemental
Indenture shall be applicable only with respect to, and govern the
terms of, the Notes (which shall be initially in the aggregate
principal amount of $300,000,000) and shall not apply to any other
Debt Securities that have been or may be issued under the Indenture
unless a supplemental indenture with respect to such other Debt
Securities specifically incorporates such changes, modifications
and supplements. Pursuant to this Supplemental Indenture, there is
hereby created and designated a series of Debt Securities under the
Indenture entitled “6.625% Notes due 2039.” The Notes
shall be in the form of Exhibit A hereto, the terms of which are
incorporated herein by reference. The Notes shall be guaranteed by
the Guarantors as provided in such form and the
Indenture.
The Company may issue additional
notes subsequent to the Issue Date (such notes, the “
Additional Notes ” (as defined in Article 19 of the
Indenture)) of the same series as the Notes. In the event that the
Company shall issue and the Trustee shall authenticate any
Additional Notes issued under this Supplemental Indenture
subsequent to the Issue Date, the Company shall use its best
efforts to obtain the same “CUSIP” number for such
Notes as is printed on the Notes outstanding at such time;
provided, however , that if any series of Notes issued under
this Supplemental Indenture subsequent to the Issue Date is
determined, pursuant to an Opinion of Counsel in a form reasonably
satisfactory to the Trustee, to be a different class of security
than the Notes outstanding at such time for federal income tax
purposes, the Company may obtain a “CUSIP” number for
such Notes that is different than the “CUSIP” number
printed on the Notes then outstanding. Notwithstanding the
foregoing, all Notes issued under this Supplemental Indenture shall
vote and consent together on all matters as one class, including
without limitation on waivers and amendments, and no Holder of
Notes will have the right to vote or consent as a separate class
from other Holders on any matter except matters which affect such
Holder only.
(b)
The information applicable to the Notes required pursuant to
Section 3.1 of the Indenture is as follows:
(1) the
title of the Notes is “6.625% Senior Notes due
2039”;
(2) the
initial aggregate principal amount of the Notes is $300,000,000,
which may be increased in the future as set out below;
(3) the
Debt Securities will be issued to the Initial Purchasers at a price
of 98.827% of the principal amount, resulting in total net proceeds
to the Company of $296,481,000; the price to the public will be
99.702% of the principal amount; and 100% of the principal amount
will be payable upon declaration of acceleration or
maturity;
(4) principal
will be payable as set forth in the form of Note;
(5) the
rate of interest and interest payment and record dates are as set
forth in the form of Note;
(6) not
applicable;
(7) the
Notes will be subject to mandatory offer to repurchase as set forth
in Article 3 below;
(8) the
Notes will be subject to optional redemption as set forth in
Article 7 below;
(9) the
Notes will be issuable in a minimum denomination of $2,000 and
higher integral multiples of $1,000;
(10) not
applicable;
(11) the provisions
set forth in the Indenture relating to defeasance and discharge
will be applicable;
(12) not
applicable;
(13) not
applicable;
(14) the rate of
interest otherwise applicable to the Notes will be the Overdue
Rate;
(15) not
applicable;
(16) as
set forth elsewhere herein;
(17) the Notes
shall be issuable as Global Securities and the provisions of
Section 3.4(b) of the Indenture shall apply to the
Notes;
(18) not
applicable;
(19) not
applicable;
(20) the Notes will
not be convertible;
(21) not
applicable;
(22) each of the
Guarantors (as defined herein) will guarantee the Notes;
(23) not
applicable;
(24) the Notes will
be secured on the terms set forth in Section 3.02(c) below and the
terms of Article XVIII of the Indenture will apply to the
Notes;
(25) the provisions
of Article XIX of the Indenture will apply to the Notes;
(26) not
applicable;
(27) not
applicable; and
(26) as
set forth elsewhere herein.
ARTICLE 2
CERTAIN DEFINITIONS
Section 2.01
. Certain
Definitions. Section 1.1 of the Base Indenture is
hereby amended by adding the following definitions in their proper
alphabetical order which, in the event of a conflict with the
definition of terms in the Indenture, shall govern. Capitalized
terms used but not defined herein have the meanings ascribed to
such terms in the Base Indenture.
“ Additional Notes
” has the meaning ascribed to it in Article 19 of the Base
Indenture.
“ Attributable Debt
” means the present value (discounted at the actual
percentage rate inherent in such arrangement as determined in good
faith by the Company, compounded semi-annually) of the obligation
of a lessee for rental payments during the remaining term of any
lease (including any period for which such lease has been
extended). Such rental payments shall not include amounts payable
by the lessee for maintenance and repairs, insurance, taxes,
assessments and similar charges and for contingent rents (such as
those based on sales). In case of any lease which is terminable by
the lessee upon the payment of a penalty, such rental payments
shall also include such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date
upon which it may be so terminated. Any determination of any actual
percentage rate inherent in any such arrangement made in good faith
by the Company shall be binding and conclusive, and the Trustee
shall have no duty with respect to any determination made under
this covenant.
“ Change of Control
” means the occurrence of any one of the
following:
(a) the
direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
transaction or a series of related transactions, of all or
substantially all of the assets of the Company and the
Company’s Subsidiaries taken as a whole to any
“person” (as that term is used in Section 13(d)(3) of
the Exchange Act) other than to the Company or one of the
Company’s Subsidiaries;
(b)
the consummation of any transaction (including without
limitation, any merger or consolidation) the result of which is
that any “person” (as that term is used in Section
13(d)(3) of
the Exchange Act) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of more than 50%
of the Company’s outstanding Voting Stock, measured by voting
power rather than number of shares;
(c)
the Company consolidates with, or merges with or into, any
person, or any person consolidates with, or merges with or into,
the Company, in any such event pursuant to a transaction in which
any of the outstanding Voting Stock of the Company or such other
person is converted into or exchanged for cash, securities or other
property, other than any such transaction where the shares of the
Company’s Voting Stock outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for, a
majority of the Voting Stock of the surviving person immediately
after giving effect to such transaction;
(d)
the first day on which the majority of the members of the
Board of Directors cease to be Continuing Directors; or
(e) the
approval of a plan relating to the liquidation or dissolution of
the Company by the Company’s stockholders.
Notwithstanding the foregoing, a
transaction (or series of related transactions) will not be deemed
to involve a Change of Control under clauses (1) or (2) above if
the Company becomes a direct or indirect wholly-owned subsidiary of
a holding company and (a) the direct or indirect Holders of a
majority of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the
Holders of a majority of the Company’s Voting Stock
immediately prior to that transaction or (b) the shares of the
Company’s Voting Stock outstanding immediately prior to such
transaction are converted into or exchanged for a majority of the
Voting Stock of such holding company immediately after giving
effect to such transaction.
“ Change of Control
Triggering Event ” means the rating on the Notes is
lowered by both of the Rating Agencies and the Notes are rated
below an Investment Grade Rating by each of the Rating Agencies, in
each case, on any date during the period (the “ Trigger
Period ”) commencing 60 days prior to the first public
announcement by the Company of any Change of Control (or pending
Change of Control) and ending 60 days following consummation of
such Change of Control (which Trigger Period will be extended
following consummation of a Change of Control for so long as any of
the Rating Agencies has publicly announced that it is considering a
possible ratings change). If either of the Rating Agencies
(including any replacement rating agency) has ceased to provide a
rating for the Notes at the commencement of any Trigger Period, a
Change of Control Triggering Event will mean the rating on the
Notes is lowered by the remaining Rating Agency and the Notes are
rated below Investment Grade by such agency on any date during the
Trigger Period. If both Rating Agencies (including any replacement
rating agency) have ceased to provide a rating for the Notes, at
the commencement of any Trigger Period, a Change of Control
Triggering Event will be deemed to have occurred. Notwithstanding
the foregoing, no Change of Control Triggering Event will be deemed
to have occurred in connection with any particular Change of
Control unless and until such Change of Control has actually been
consummated.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the
Notes.
“ Comparable Treasury
Price ” means, with respect to any Redemption Date, (i)
the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Quotation
Agent obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations, or (iii) if only
one Reference Treasury Dealer Quotation is received, such
quotation.
“ Consolidated Net
Assets ” means total assets after deducting therefrom all
current liabilities as set forth on the Company’s most recent
consolidated balance sheet and computed in accordance with U.S.
generally accepted accounting principles.
“ Continuing Director
” means, as of any date of determination, any member of the
Board of Directors who:
(1) was
a member of the Board of Directors on the date of the Indenture;
or
(2) was
nominated for election or elected or appointed to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the time
of such nomination, election or appointment (or such lesser number
comprising a majority of a nominating committee if authority for
such nomination, election or appointment has been delegated to a
nominating committee whose authority and composition have been
approved by at least a majority of the directors who were
Continuing Directors at the time such committee was formed),
whether by specific vote or by approval of the proxy statement in
which such individual is named as a nominee or
otherwise.
Without limiting the generality of
the foregoing, “Continuing Director” shall include one
or more directors or nominees who are part of a dissident slate of
directors in connection with a proxy contest, which director or
nominee is approved by the Company’s Board of Directors as a
Continuing Director, even if such Board of Directors opposed or
opposes the directors for purposes of such proxy
contest.
“ Credit Facilities
” means (i) the Company’s $400 million revolving credit
agreement dated as of July 18, 2008 and (ii) the Company’s
$200 million term loan credit agreement dated as of August 4, 2008,
in each case as amended, modified, supplemented, replaced, renewed
or refinanced from time to time.
“ DTC ” has the
meaning ascribed to such term in Section 6.02 of the First
Supplemental Indenture.
“ Event of Default
” means any event specified as such in Section 5.1 of the
Indenture or Section 4.01 of the First Supplemental
Indenture.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ First Supplemental
Indenture ” means the First Supplemental Indenture, dated
as of August 14, 2009, among the Company, the Guarantors and the
Trustee, pursuant to which the Company’s 6.625% Notes due
2039 have been issued.
“ Global Note ”
has the meaning ascribed to such term in Section 6.01 of the First
Supplemental Indenture.
“ Global Note Holder
” has the meaning ascribed to such term in Section 6.02 of
the First Supplemental Indenture.
“ Guarantors ”
means all of the Company’s existing and future Subsidiaries
that are Guarantors as required pursuant to Article 5 of the First
Supplemental Indenture until any such entity’s Guarantee is
released.
“ Investment Grade
” means a rating of Baa3 or better by Moody’s (or its
equivalent under any successor rating category of Moody’s); a
rating of BBB- or better by S&P (or its equivalent under any
successor rating category of S&P); or, if applicable, the
equivalent investment grade rating by any replacement Rating
Agency.
“ Issue Date ”
means August 14, 2009.
“ Moody’s ”
means Moody’s Investors Service, Inc., a subsidiary of
Moody’s Corporation, or its successors.
“ Notes ” has the
meaning ascribed to it in the preamble of the First Supplemental
Indenture.
“ Principal Property
” means any manufacturing or processing plant or warehouse
distribution facility or office owned or leased at the date hereof
or hereafter acquired by the Company or any Restricted Subsidiary
of the Company which is located within the United States and the
gross book value (including related land and improvements thereon
and all machinery and equipment included therein without deduction
of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 5% of Consolidated Net Assets
other than:
(1) any
such manufacturing or processing plant or warehouse or any portion
thereof (together with the land on which it is erected and fixtures
comprising a part thereof) which is financed by industrial
development bonds which are tax exempt pursuant to Section 103 of
the Internal Revenue Code (or which receive similar tax treatment
under any subsequent
amendments thereto or any successor
laws thereof or under any other similar statute of the United
States),
(2) any
property which, as evidenced by or determined pursuant to a board
resolution, is not of material importance to the total business
conducted by the Company as an entirety or
(3) any
portion of a particular property which, as evidenced by or
determined pursuant to a board resolution, is not of material
importance to the use or operation of such property.
“ Quotation Agent
” means one of the Reference Treasury Dealers selected by the
Company.
“ Rating Agency ”
means each of Moody’s and S&P; provided , that if
any of Moody’s or S&P ceases to provide rating services
to issuers or investors, the Company may appoint a replacement for
such Rating Agency that is reasonably acceptable to the Trustee
under the Indenture, provided , that Fitch Inc. or its
successors shall be deemed to be reasonably acceptable.
“ Reference Treasury
Dealer ” means (i) J.P. Morgan Securities Inc. and Banc
of America Securities LLC (or their respective affiliates which are
Primary Treasury Dealers), and their successors; provided ,
however , that if any of the foregoing
