Exhibit 4.1
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE, dated as of August 26, 2005 (the "Supplemental
Indenture") to the Indenture among Di Giorgio Corporation, a Delaware
corporation (the "Company") and The Bank of New York, as Trustee (the "Trustee")
dated June 20, 1997 (the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company has issued its 10% Senior Notes due 2007 (the "Notes")
in the aggregate principal amount of $155,000,000 pursuant to the Indenture and
the aggregate principal amount outstanding as of August 9, 2005 is $148,300,000;
and
WHEREAS, Section 9.2 of the Indenture provides that with the written
consent of not less than a majority of the outstanding principal amount of the
Notes, the Company and the Trustee may enter into an indenture or indentures
supplemental thereto for the purpose of adding any provisions to or amending,
modifying or changing in any manner or eliminating any of the provisions of the
Indenture; and
WHEREAS, the Company has solicited the consent of the holders of the Notes
to an amendment to the Indenture (the "Proposed Amendment") pursuant to that
certain Consent Solicitation Statement dated August 26, 2005 (the "Statement");
and
WHEREAS, the holders of a majority in aggregate principal amount of the
outstanding Notes issued under the Indenture have consented to the Proposed
Amendments.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
AUTHORIZATION; DEFINITIONS
Section 1.01. EFFECTIVENESS AND EFFECT. This Supplemental Indenture shall
become effective only upon satisfaction of the conditions described in the
Statement. Except as modified, amended and supplemented by this Supplemental
Indenture, the provisions of the Indenture are in all respects ratified and
confirmed and shall remain in full force and effect. The provisions set forth in
this Supplemental Indenture shall be deemed to be, and shall be construed as
part of, the Indenture, the terms of which shall bind every holder of Notes. On
and after the date hereof, all references to the Indenture in the Indenture or
in any other agreement, document or instrument delivered in connection therewith
or pursuant thereto shall be deemed to refer to the Indenture as amended by this
Supplemental Indenture.
Section 1.02. DEFINITIONS. Unless the context shall otherwise require, all
terms which are defined in Section 1.1 of the Indenture shall have the same
meanings, respectively, in this Supplemental Indenture as such terms are given
in said Section 1.1 of the Indenture. Any references or definitions in the
Indenture which would be deleted or amended as a result of the deletions and
amendments set forth in Section 2.01 of this Supplemental Indenture shall be
deemed deleted or amended, as necessary.
ARTICLE II
AMENDMENTS TO INDENTURE
Section 2.01. AMENDED PROVISIONS. The Indenture is hereby amended as
follows:
1. Section 10.17 "Provision of Financial Statements" is amended in its
entirety to read:
Section 10.17. Provision of Financial Statements.
If the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall:
(a) provide the Trustee for delivery to the Holders, within 45
days after the end of each of the first three fiscal quarters of each
fiscal year of the Company and within 90 days after the end of each
fiscal year of the Company, financial statements prepared in
accordance with GAAP and such other information that would be required
to be contained in quarterly reports on Form 10-Q and annual reports
on form 10-K, respectively, were the Company required to file such
reports pursuant to Section 13 or 15(d) of the Exchange Act (the
"Quarterly and Annual Reports"), except with respect to Section 404 of
the Sarbanes Oxley Act of 2002, as amended, and the rules and
regulations of the Securities and Exchange Commission (the "SEC")
promulgated as a result thereof (including but not limited to Rules
13a-15 and 15d-15 of the Exchange Act and Items 307 and 308 of
Regulation S-K, including the required certifications thereof);
(b) provide the Trustee for delivery to the Holders such
information as would be required to be contained in a Current Report
on Form 8-K were the Company required to file such current reports
pursuant to Section 13 or 15(d) of the Exchange Act (the "Current
Reports") within the timeframes for filing such Current Reports set
forth by the rules of the SEC, except, if applicable, with respect to
Section 404 of the Sarbanes Oxley Act of 2002, as amended, and the
rules and regulations of the SEC promulgated as a result thereof;
(c) provide the information described above in (a) and (b) to the
Trustee for delivery to (i) beneficial owners of the Notes that
certify that they are beneficial owners of the Notes; (ii) prospective
investors that certify that they are QIBs and (iii) securities
analysts that certify that they are securities analysts, in each case
upon their written request;
(d) for so long as any Notes remain outstanding, furnish to (i)
Holders of Notes and (ii) prospective investors that certify that they
are QIBs, in each case upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act; and
(e) conduct a conference call regarding its recent earnings
results following the delivery of each Quarterly and Annual Report,
after giving advanced notice thereof as to form, substance and timing
which shall, in the Company's reasonable determination, be consistent
with those of public companies.
ARTICLE III
Section 3.01. COUNTERPARTS. This Supplemental Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 3.02. ACCEPTANCE. The Trustee accepts the Indenture, as
supplemented by this Supplemental Indenture, and agrees to perform the same upon
the terms and conditions set forth therein as so supplemented. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or the due execution by the Company,
or for or in respect of the recitals contained herein, all of which are made
solely by the Company.
Section 3.03. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture, by the Company, the Guarantors or the Trustee shall bind
its respective successors and assigns, whether so expressed or not.
Section 3.04. SEVERABILITY. In case any provision in this 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, it being intended that each provision hereof and each portion
of such provision shall be enforceable to the fullest extent permitted by law
even if other portions of such provisions, or other provisions hereof, are held
invalid, illegal or unenforceable.
Section 3.05. GOVERNING LAW. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of New York, as
applied to contracts made and performed within the State of New York, without
regard to principles of conflict of laws. Each of the parties hereto agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Supplemental Indenture.
Section 3.06. INCORPORATION INTO INDENTURE. All provisions of this
Supplemental Indenture shall be deemed to be incorporated in, and made part of,
the Indenture, and the Indenture, as amended and supplemented by this
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
Section 3.07. TRUSTEE. The Trustee makes no representations as to the
validity or sufficiency of this Supplemental Indenture. The recitals and
statements herein are deemed to be those of the Company and not of the Trustee.
Section 3.08. COMPLIANCE WITH TRUST INDENTURE ACT. This Supplemental
Indenture shall be interpreted to comply in every respect with the Trust
Indenture Act of 1939, as amended (the "TIA"). If any provision of this
Supplemental Indenture limits, qualifies, or conflicts with the duties imposed
by the TIA, the imposed duties shall control.
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be
duly executed as of the date first above written.
DI GIORGIO CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Executive Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
