EXHIBIT 10.3
AMERICAN SEAFOODS GROUP LLC
AMERICAN SEAFOODS, INC.
SOUTHERN PRIDE CATFISH LCC
10 1/8% SENIOR SUBORDINATED NOTES DUE 2010
Supplemental Indenture
Dated as of December 16, 2002
▇▇▇▇▇ Fargo
Bank Minnesota,
National Association
as Trustee
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
December 16, 2002, among Southern Pride Catfish LLC, a Delaware limited
liability company (the "Guaranteeing Subsidiary"), a subsidiary of American
Seafoods Group LLC (or its permitted successor), a Delaware limited liability
company (the "Company"), the Company, American Seafoods, Inc., a Delaware
corporation and wholly owned subsidiary of the Company ("ASI" and together with
the Company, collectively, the "Issuers" and each an "Issuer"), the other
Guarantors (as defined in the Indenture referred to herein) and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as trustee under the Indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company and ASI has heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of April 18, 2002 providing
for the issuance of an aggregate principal amount of $175 million of 10 1/8%
Senior Subordinated Notes due 2010 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the obligations of the Issuers under the Notes and the
Indenture on the terms and conditions set forth herein (the "Note Guarantee");
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary 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. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and
2
enforceability of the Indenture, the Notes or the obligations of the
Issuers hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the Company
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 any of 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, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. This Note
Guarantee is a guarantee of payment and not of collection.
(b) The 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 Companies, any action to enforce the
same or any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) Subject to Section 6.06 of the Indenture, the following is hereby
waived: diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all
demands whatsoever.
(d) The Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any Custodian,
Trustee, liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
3
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, 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 Note 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
declaration of 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 the Guarantors for the purpose of this
Note Guarantee.
(h) Pursuant to Section 11.03 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed liabilities that
are relevant under any applicable Bankruptcy or fraudulent conveyance laws,
and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under Article Eleven
of the Indenture shall result in the obligations of such Guarantor under
its Note Guarantee constituting a fraudulent transfer or conveyance.
3. Subordination. The Obligations of the Guaranteeing Subsidiary under
its Note Guarantee pursuant to this Supplemental Indenture shall be junior and
subordinated to the prior payment in full of all Senior Debt of the Guaranteeing
Subsidiary (including Senior Debt of the Guaranteeing Subsidiary incurred after
the date of the Indenture) on the same basis as the Notes are junior and
subordinated to the Senior Debt of the Company as described in Article Ten of
the Indenture. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by the
Guaranteeing Subsidiary only at such time as they may receive and/or retain
payments in respect of the Notes pursuant to the Indenture, including Article
Ten thereof.
4. Execution and Delivery. Each Guaranteeing Subsidiary agrees that
the Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
5. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.
Except as otherwise provided in Section 11.06 of the Indenture, a Guarantor may
not sell or otherwise dispose of all or substantially all of its assets, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person other
4
than the Company or another Guarantor, unless either:
(1) (a) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(b) the Person acquiring the property in any such sale or disposition
or the Person formed by or surviving any such consolidation or merger is a
corporation or limited liability company, organized or existing under the
laws of the United States, any state thereof or the District of Columbia
and assumes all the obligations of that Guarantor under the Indenture, its
Note Guarantee and the Registration Rights Agreement pursuant to a
supplemental indenture satisfactory to the Trustee; or
(2) such sale or other disposition complies with Section 4.10, including
the application of the Net Proceeds therefrom.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of the Indenture to be performed by a Guarantor,
such successor Person shall succeed to and be substituted for a Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued shall in all respects have the same legal rank and benefit
under the Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of such Note Guarantees
had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (1) and (2) above, nothing contained in the Indenture or
in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
6. Releases.
(a) Any Guarantor will be released and relieved of any obligations
under its Note Guarantee (i) in connection with any sale of Capital Stock
of a Guarantor to a Person that is not (either before or after giving
effect to such transaction) an
5
Affiliate of the Company, in compliance with either clause (1) or clause
(2) of the first paragraph of Section 4.16 of the Indenture; (ii) if the
Company properly designates any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary; or (iii) upon legal defeasance of the
Company's and all Guarantors' obligations pursuant to Section 8.02 of the
Indenture or upon satisfaction and discharge of the Indenture pursuant to
Section 12.01 of the Indenture. Upon delivery by the Company to the Trustee
of an Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with
the provisions of the Indenture, including without limitation Section 4.10
hereof, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations under
its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under
the Indenture as provided in Article Eleven of the Indenture.
7. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, member, stockholder or agent of the
Guaranteeing Subsidiary (or any holder of an Equity Interest in the Guaranteeing
Subsidiary), as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver may
not be effective to waive liabilities under the federal securities laws.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
9. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
6
11. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
* * * * * * * *
7
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: December 16, 2002
SOUTHERN PRIDE CATFISH LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
AMERICAN SEAFOODS GROUP LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
AMERICAN SEAFOODS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇ Fargo Bank Minnesota,
National Association
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Corporate Trust Officer
8
