Exhibit 4.1
CFP HOLDINGS, INC.,
Issuer,
CFP GROUP, INC.
CUSTOM FOOD PRODUCTS, INC.
and
QFAC, LLC
Guarantors
and
United States
Trust Company of new york
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of ______ __, 1999
______________________________
$115,000,000
11 5/8% Senior Guaranteed Notes Due 2004
11 5/8% Series B Senior Guaranteed Notes Due 2004
This First Supplemental Indenture supplements an Indenture dated as of January
28, 1997.
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of _______ __, 1999 (the
"First Supplemental Indenture"), is by and among CFP HOLDINGS, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), QFAC, LLC, a limited liability company duly
organized and existing under the laws of the State of Delaware, and UNITED
STATES TRUST COMPANY OF NEW YORK, a bank and trust company duly organized and
existing under the laws of the State of New York (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, capitalized terms used herein but not otherwise defined herein
will be deemed to have the respective meanings given to such terms in the
Indenture, dated as of January 28, 1997 (the "Indenture"), among the Company, as
issuer, the Parent Guarantor, the Subsidiary Guarantors and the Trustee, as
trustee, regarding the issuance of the Company's 11 5/8% Senior Guaranteed Notes
Due 2004 and 11 5/8% Series B Senior Guaranteed Notes Due 2004;
WHEREAS, the Company desired to change the organization of Quality
Foods, a Subsidiary Guarantor, from a corporation incorporated under the General
Corporation Law of the State of Delaware to a limited liability company formed
under the Limited Liability Company Act of the State of Delaware (the "Delaware
LLC Act");
WHEREAS, in order to effectuate such organizational change, the Company
caused to be formed QFAC, LLC under the Delaware LLC Act and, after designating
QFAC, LLC as a "Restricted Subsidiary" (as such term is defined in the
Indenture) by resolution duly adopted by written consent of the Board of
Directors of the Company, Quality Foods was merged with and into QFAC, LLC, with
QFAC, LLC as the surviving Subsidiary having the same assets and liabilities
that Quality Foods had prior to the merger;
WHEREAS, pursuant to Section 1308 of the Indenture, the Company is
obligated to cause each Person that becomes a Subsidiary to become a Subsidiary
Guarantor with respect to the Indenture Obligations;
WHEREAS, Section 9.01(h) of the Indenture provides that the Company and
the Trustee may enter into a Supplemental Indenture without the consent of any
Holders to add a Subsidiary Guarantor pursuant to Section 1308 of the Indenture;
and
WHEREAS, in order to effectuate the addition of QFAC, LLC as a
Subsidiary Guarantor in compliance with the terms and provisions of the
Indenture, the Company and the Trustee have agreed to supplement the Indenture
as provided by this First Supplemental Indenture;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS FIRST SUPPLEMENTAL
INDENTURE WITNESSETH:
For and in consideration of the mutual covenants herein
exchanged, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the Company,
QFAC, LLC and the Trustee hereby agree as follows:
Section 1. Additional Subsidiary Guarantor. Pursuant to Section 1308 of
the Indenture and upon the merger of Quality Foods with and into QFAC, LLC,
QFAC, LLC hereby succeeds to, and shall be substituted for, and may exercise
every right and power, and shall be bound by the obligations, of Quality Foods,
under the Indenture with the same effect as if QFAC, LLC had been originally
named as a Subsidiary Guarantor in the Indenture.
Section 2. Miscellaneous.
(a) The Trustee accepts the trusts created by the Indenture,
as supplemented hereby, and agrees to perform the same upon the terms and
conditions of the Indenture.
(b) In case any provision in this First Supplemental Indenture
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.
(c) Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the Securities, any benefit or
any legal or equitable right, remedy or claim under the Indenture.
(d) If any provision of this First Supplemental Indenture
limits, qualifies or conflicts with a provision of the TIA that is required
under the TIA to be part of and govern this First Supplemental Indenture, the
statutorily mandated provision shall control.
(e) This First Supplemental Indenture shall be governed by and
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether in the
State of New York or any other jurisdiction) that would cause the application of
laws of any jurisdiction other than the State of New York.
(f) All provisions of this First Supplemental Indenture shall
be deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as supplemented by this First Supplemental Indenture, shall be read,
taken and construed as one and the same instrument.
(g) The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
This First Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be an original, but
all such counterparts shall together constitute but one and the same instrument.
* * * *
IN WITNESS WHEREOF, the undersigned have executed this First
Supplemental Indenture as of the date first written above.
CFP HOLDINGS, INC.
By: ________________________________
Name:
Title:
QFAC, LLC
By: ________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: ________________________________
Name:
Title:
