EXHIBIT 4.5
This AGREEMENT OF REMOVAL, APPOINTMENT AND ACCEPTANCE, dated as of
March 28, 2003, by and among XXXX FOOD COMPANY, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Issuer"),
X. X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, successor in interest to
Chemical Trust Company of California, a banking association duly organized and
existing under the laws of the United States of America and having its principal
corporate trust office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 ("Prior Trustee"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a banking association duly organized and existing under the laws of the United
States of America and having its principal corporate trust office at 000
Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Successor
Trustee ").
RECITALS:
WHEREAS, the Issuer appointed Prior Trustee as Trustee under (i) that
certain Indenture dated as of April 13, 1993 (the "April Indenture"), by and
between the Issuer and Prior Trustee in connection with the issuance of the
Issuer's 7% Senior Notes Due 2003 (the "2003 Notes"), and (ii) that certain
Indenture dated as of July 15, 1993 (the "July Indenture", and together with the
April Indenture, the "Indentures"), by and between the Issuer and Prior Trustee
in connection with the issuance of the Issuer's 6.375% Senior Notes Due 2005
(the "2005 Notes"), 7.25% Senior Notes due 2009 (the "2009 Notes") and 7.875%
Debentures due 2013 (the "2013 Notes");
WHEREAS, the Securities (as such term is defined in the Indentures)
were originally authorized and issued under the Indentures;
WHEREAS, as of the date hereof, there are $209,756,000 aggregate
principal amount of 2003 Notes outstanding, $300,000,000 aggregate principal
amount of 2005 Notes outstanding, $400,000,000 aggregate principal amount of
2009 Notes outstanding and $155,000,000 aggregate principal amount of 2013 Notes
outstanding;
WHEREAS, the Issuer desires to remove Prior Trustee and appoint
Successor Trustee as Trustee to succeed Prior Trustee in such capacity under the
Indentures; and
WHEREAS, Successor Trustee is willing to accept such appointment as
Successor Trustee under the Indentures;
NOW, THEREFORE, the Issuer, Prior Trustee and Successor Trustee, for
and in consideration of the premises of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, hereby consent and
agree as follows:
ARTICLE I
PRIOR TRUSTEE
Section 1.01 Prior Trustee hereby acknowledges its removal as Trustee
under each of the Indentures.
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Section 1.02 Prior Trustee hereby assigns, transfers, delivers and
confirms to successor trustee all right, title and interest of Prior Trustee in
and to the trusts of the Trustee under the Indentures and all the rights, powers
and trusts of the Trustee under the Indentures. Prior Trustee shall execute and
deliver such further instruments and shall do such other things as Successor
Trustee may reasonably require so as to more fully and certainly vest and
confirm in Successor Trustee all the rights, powers and trust hereby assigned,
transferred, delivered and confirmed to Successor Trustee as Trustee under the
Indentures.
ARTICLE II
THE ISSUER
Section 2.01 The Issuer hereby acknowledges the removal of Prior
Trustee as Trustee under the Indentures.
Section 2.02 All conditions relating to the appointment of XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Successor Trustee under the Indentures have been
met by the Issuer, and the Issuer hereby appoints Successor Trustee as Trustee
under the Indentures with like effect as if originally named as Trustee in the
Indentures.
Section 2.03 Notwithstanding the removal of Prior Trustee under the
Indentures, the Issuer shall remain obligated to compensate, reimburse and
indemnify Prior Trustee for the services rendered under the Indentures,
including the related cost of its counsel, in each case subject to the
applicable provisions of the Indentures.
ARTICLE III
SUCCESSOR TRUSTEE
Section 3.01 Successor Trustee hereby represents and warrants to Prior
Trustee and to the Issuer that Successor Trustee is not disqualified to act as
Trustee under the Indentures.
Section 3.02 Successor Trustee hereby accepts its appointment as
Successor Trustee under the Indentures and accepts the rights, powers, duties
and obligations of Prior Trustee as Trustee under the Indentures, upon the terms
and conditions set forth therein, with like effect as if originally named as
Trustee under the Indentures.
ARTICLE IV
MISCELLANEOUS
Section 4.01 This Agreement and the removal, appointment and acceptance
effected hereby shall be effective as of the opening of business on March 28,
2003.
Section 4.02 This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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Section 4.03 Agreement may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 4.04 The persons signing this Agreement on behalf of the
Issuer, Successor Trustee and Prior Trustee are duly authorized to execute it on
behalf of the each party, and each party warrants that it is authorized to
execute this Agreement and to perform its duties hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Removal,
Appointment and Acceptance to be duly executed and acknowledged all as of the
day and year first above written.
XXXX FOOD COMPANY, INC.,
as Issuer
By: /s/ C. Xxxxxxx Xxxxxx
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Name: C. Xxxxxxx Xxxxxx
Title: Vice President, General Counsel and
Corporate Secretary
X. X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
as Prior Trustee
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Successor Trustee
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
Title: Vice President
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