Exhibit 4.4
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this "First Supplemental Indenture"), dated
as of December 20, 2002, among each of SKF Foods, Inc., a Delaware corporation
(the "Issuer"), Del Monte Foods Company, a Delaware corporation (the
"Guarantor") and Deutsche Bank Trust Company Americas (formerly Bankers Trust
Company), as trustee (the "Trustee") under the indenture referred to below.
WITNESSETH
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, the Guarantor, and the Original Issuer, a wholly owned subsidiary of the
Guarantor, entered into a Merger Agreement dated as of June 12, 2002 (the
"Merger Agreement") providing for the merger of the Original Issuer into the
Issuer;
WHEREAS, Section 5.01(a) of the Indenture provides, inter alia, that the
Original Issuer will not consolidate or merge with or into any Person unless
such Person expressly assumes, by supplemental indenture executed and delivered
to the Trustee, 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;
WHEREAS, in order to comply with the provisions of the Indenture the
Issuer desires to expressly assume, by this First Supplemental Indenture, 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; and
WHEREAS, pursuant to Section 9.01(2) of the Indenture, the Trustee is
authorized to execute and deliver this First 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 Issuer
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.
2. Assumption. The Issuer hereby irrevocably assumes, for the benefit of
the Trustee and for the equal and ratable benefit of the Holders of the Notes,
the due and punctual payment of the principal of and premium, if any, and
interest (including, without limitation, any Additional Interest) on all of the
Notes and the performance of every covenant of the Notes, the
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Indenture and the Registration Rights Agreement on the part of the Original
Issuer to be performed or observed thereunder or pursuant thereto.
3. Representations of the Issuer. The Issuer hereby represents to and for
the benefit of the Trustee and for the equal and ratable benefit of the Holders
of the Notes as follows: (a) immediately after giving effect to the transactions
contemplated by the Merger Agreement and by this First Supplemental Indenture
the Issuer shall be and is able to incur at least $1.00 of additional
Indebtedness (other than permitted Indebtedness) in compliance with Section 4.12
of the Indenture; and (b) immediately before and immediately after giving effect
to the transactions contemplated by the Merger Agreement and by this First
Supplemental Indenture no Default or Event of Default has occurred and is
continuing.
4. Reaffirmation of Guarantee. The Guarantor hereby acknowledges the
transactions contemplated by the Merger Agreement and by this First Supplemental
Indenture, and reaffirms for the benefit of the Trustee and for the equal and
ratable benefit of the Holders of the Notes the Guarantee, subject to and on the
terms and conditions contained in the Indenture.
5. NEW YORK LAW TO GOVERN. THIS FIRST 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 FIRST SUPPLEMENTAL INDENTURE.
6. Counterparts. The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. 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 First Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
SKF FOODS, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
DEL MONTE FOODS COMPANY
By:___________________________________
Name:_________________________________
Title:________________________________
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:___________________________________
Name:_________________________________
Title:________________________________
Signature Page to First Supplemental Indenture
