EXHIBIT 4.12
This Supplemental Indenture, dated as of April 1, 1999 (this
"Supplemental Indenture" or "Guarantee"), among Sea Coast Foods, Inc. (the
"Guarantor"), Aurora Foods Inc. (together with its successors and assigns, the
"Company") and Wilmington Trust Company, as Trustee under the Indenture referred
to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of July 1, 1997 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of 9
7/8% Series C Senior Subordinated Notes due 2007 of the Company (the
"Securities");
WHEREAS, Section 4.10 of the Indenture provides that the Company is
required to cause each Subsidiary which Incurs Indebtedness or which is a
guarantor of Indebtedness Incurred pursuant to Section 4.3(b)(i) of the
Indenture to execute and deliver to the Trustee a Supplemental Indenture
pursuant to which such Subsidiary will Guarantee, jointly and severally, to the
Holders and the Trustee, subject to subordination provisions in Article X, the
full and prompt payment of the Securities in the Indenture; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the 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
Guarantor, the Company and the Trustee mutually covenant and agree for the equal
and ratable benefit of the holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Subsidiary Guarantee,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined, except that the term "Holders" in this Guarantee
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf or for the benefit of such holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1. Agreement to be Bound. The Guarantor hereby becomes a
party to the Indenture as a Subsidiary Guarantor and as such will have all of
the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2. Guarantee. (a) The Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally with each other Subsidiary Guarantor, to each
Holder of the Securities and the Trustee, the full and punctual payment when
due, whether at maturity, by acceleration, by redemption or otherwise, of the
Obligations pursuant to Article XI of the Indenture.
(b) The Guarantor agrees that the Indebtedness evidenced by its
Subsidiary Guarantee shall be subordinated in right of payment, to the extent
and in the manner provided in Article X of the Indenture, to the prior payment
when due in cash or Cash Equivalents of all Guarantor Senior Indebtedness of the
Guarantor and that the subordination is for the benefit of and enforceable by
the holders of Guarantor Senior Indebtedness of the Guarantor. This Guarantee
shall in all respects rank pari passu with all other Guarantor Senior
Subordinated Indebtedness of the Guarantor and only Indebtedness of the
Guarantor which is Guarantor Senior Indebtedness will rank senior to this
Guarantee in accordance with the provisions set forth herein.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices and other communications to the
Guarantor shall be given as provided in the Indenture to the Guarantor, at its
address set forth below, with a copy to the Company as provided in the Indenture
for notices to the Company.
SECTION 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee and the holders of any Guarantor Senior
Indebtedness, any legal or equitable right, remedy or claim under or in respect
of this Supplemental Indenture or the Indenture or any provision herein or
therein contained.
SECTION 3.3. Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 3.4. Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
SECTION 3.5. Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 3.6. Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
SECTION 3.7. Headings. The headings of the Articles and the sections
in this Guarantee are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
SEA COAST FOODS, INC.,
as a Subsidiary Guarantor
By:______________________________
Name:
Title:
AURORA FOODS INC.
By:______________________________
Name:
Title:
WILMINGTON TRUST COMPANY
as Trustee
By:______________________________
Name:
Title:
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