Exhibit 4.5
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture (this "Second Supplemental Indenture"),
dated as of December 20, 2002, among SKF Foods, Inc., a Delaware corporation
(the "Issuer"), Xxxx Mac IHC, Inc., a Delaware corporation, Star-Xxxx Samoa,
Inc., a California corporation, Star-Xxxx Mauritius, Inc., a Delaware
corporation and Marine Trading (Pacific), Inc, a Delaware corporation (each a
subsidiary of the Issuer, and referred to herein as a "Guaranteeing Subsidiary,"
and collectively, the "Guaranteeing Subsidiaries") and Deutsche Bank Trust
Company Americas (formerly Bankers Trust Company), as trustee (the "Trustee")
under the indenture referred to below.
W I T N E S S E T H
WHEREAS, Del Monte Corporation, a New York corporation (the "Original
Issuer") has heretofore executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of May 15, 2001 providing for the issuance of 9-1/4%
Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, each of X. X. Xxxxx Company, a Pennsylvania corporation, the
Issuer, Del Monte Foods Company, a Delaware corporation ("DMFC"), and the
Original Issuer, a wholly owned subsidiary of DMFC, entered into a Merger
Agreement dated as of June 12, 2002, providing for the merger of the Original
Issuer into the Issuer;
WHEREAS, pursuant to Section 5.01(a)(1) of the Indenture the Issuer has
executed and delivered to the Trustee a First Supplemental Indenture providing
for the express assumption by the Issuer of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Notes and the
performance of every covenant of the Notes, the Indenture and the Registration
Rights Agreement on the part of the Original Issuer to be performed or observed
thereunder or pursuant thereto;
WHEREAS, Section 4.19 of the Indenture provides that under certain
circumstances subsidiaries of the Issuer shall guarantee the payment of the
Notes on the terms and conditions set forth herein (the "Subsidiary Guarantee");
and
WHEREAS, pursuant to Section 9.01(7) of the Indenture, the Trustee is
authorized to execute and deliver this Second Supplemental Indenture without
notice to or consent of any Holder.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
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2.1 Guarantee. Each Guaranteeing Subsidiary hereby unconditionally
guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns on behalf of such Holder,
that: (i) the principal of and interest on the Notes will be promptly paid in
full when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and, to the extent lawful, interest on the overdue
principal of and interest on the Notes and all other Obligations of the Issuer
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and (ii)
in case of any extension of time of payment or renewal of any Notes or of any
such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise. Each Guaranteeing Subsidiary hereby agrees that, subject to the
provisions of the immediately following paragraph, its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Issuer, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Guaranteeing Subsidiary hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest, notice and all demands whatsoever and covenants that this Subsidiary
Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and in this Subsidiary
Guarantee. If any Noteholder, the Trustee or any Paying Agent is required by any
court or otherwise to return to the Issuer, Holdings, any Guaranteeing
Subsidiary or any custodian, trustee, liquidator or other similar official
acting in relation to the Issuer, Holdings or any Guaranteeing Subsidiary, any
amount paid by the Issuer, Holdings or any Guaranteeing Subsidiary to the
Trustee or such Paying Agent or Noteholder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guaranteeing Subsidiary further agrees that, as between such Guaranteeing
Subsidiary, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six of the Indenture for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any acceleration of such obligations as provided in Article Six of
the Indenture, such obligations (whether or not due and payable) shall forthwith
become due and payable by such Guaranteeing Subsidiary for the purpose of this
Subsidiary Guarantee.
2.2 Subordination of Guarantee. The obligations of each
Guaranteeing Subsidiary to the Holders of the Notes and to the Trustee on behalf
of the Holders pursuant to this Subsidiary Guarantee and the Indenture are
expressly subordinate and subject in right of payment to the prior payment in
full of all Guarantor Senior Debt of such Guaranteeing Subsidiary, to the extent
and in the manner provided in Article Twelve of the Indenture. Article Twelve of
the Indenture is hereby incorporated herein by reference with such modifications
thereto as are necessary to reflect the fact that for the purposes of this
Second Supplemental Indenture only it shall apply to each Guaranteeing
Subsidiary and to each Subsidiary Guarantee to the same extent and in the same
manner as it applies to Holdings and to the Guarantee of Holdings contained in
Article Eleven of the Indenture; provided that, nothing contained in this Second
Supplemental Indenture
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shall affect the provisions of Article Ten or Article Twelve of the Indenture as
set forth therein, or its applicability to Holdings and to the Guarantee of
Holdings contained in Article Eleven of the Indenture.
2.3 Severability. In case any provision of this Guarantee 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.
2.4 Release of Subsidiary Guarantees. Notwithstanding anything
else contained herein, each such Subsidiary Guarantee shall be automatically and
unconditionally released and discharged, without any further action required on
the part of the Trustee or any Holder, upon:
(i) the unconditional release of such Guaranteeing Subsidiary from
its liability in respect of the Indebtedness in connection with which such
Subsidiary Guarantee was executed and delivered pursuant to the Indenture; or
(ii) any sale or other disposition (by merger or otherwise) to any
Person which is not a Restricted Subsidiary of the Issuer, of all of the
Issuer's Capital Stock in, or all or substantially all of the assets of, such
Guaranteeing Subsidiary; provided that
(a) such sale or disposition of such Capital Stock or
assets is otherwise in compliance with the terms of the Indenture, and
(b) such assumption, guarantee or other liability of such
Guaranteeing Subsidiary has been released by the holders of the other
Indebtedness so guaranteed.
2.5 Waiver of Subrogation. Until payment in full is made of the
Notes and all other obligations of the Issuer to the Holders or the Trustee on
behalf of the Holders hereunder and under the Notes, each Guaranteeing
Subsidiary hereby irrevocably waives any claim or other rights which it may now
or hereafter acquire against the Issuer that arise from the existence, payment,
performance or enforcement of such Guaranteeing Subsidiary's obligations under
its Subsidiary Guarantee, including without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Notes against the Issuer,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Issuer, directly or indirectly, in cash or other property or by
set-off or any other manner, payment or security on account of such claim or
other rights. If any amount shall be paid to any Guaranteeing Subsidiary in
violation of the preceding sentence and the Notes shall not have been paid in
full, such amount shall be deemed to have been paid to such Guaranteeing
Subsidiary for the benefit of, and held in trust for the benefit of, the Holders
of the Notes, and shall forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Notes, whether matured or unmatured,
in accordance with the terms of the Indenture. Each such Guaranteeing Subsidiary
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Indenture and by this Second
Supplemental Indenture and that the waiver set forth in this Section 2.5 is
knowingly made in contemplation of such benefits.
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2.6 Waiver of Stay, Extension or Usury Laws. Each Guaranteeing
Subsidiary covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive such Guaranteeing Subsidiary from performing its
Subsidiary Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
the Indenture; and (to the extent that it may lawfully do so) each Guaranteeing
Subsidiary hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
3. Limitations on Subsidiary Guarantees. Notwithstanding anything
else contained herein, each Subsidiary Guarantee will be limited in amount to an
amount not to exceed the maximum amount that can be guaranteed by such
Guaranteeing Subsidiary without rendering such Subsidiary Guarantee, as it
relates to such Guaranteeing Subsidiary, void or voidable under applicable laws
relating to fraudulent conveyance or fraudulent transfer or other similar laws
affecting the rights of creditors generally.
4. NEW YORK LAW TO GOVERN. THIS SECOND SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY. 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 SECOND SUPPLEMENTAL INDENTURE.
5. Counterparts. The parties may sign any number of copies of
this Second Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
SKF FOODS, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
XXXX MAC IHC, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
STAR-XXXX SAMOA, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
STAR-XXXX MAURITIUS, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
MARINE TRADING (PACIFIC), INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:______________________________________
Name:____________________________________
Title:___________________________________
Signature Page to Second Supplemental Indenture
