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Exhibit 4.2
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FIRST SUPPLEMENTAL INDENTURE
by and between
TOM'S FOODS INC.
and
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
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Dated as of February 27, 1998
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Relating to:
$70,000,000
10 1/2% Senior Secured Notes due 2004
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of February 27,
1998, by and between Tom's Foods Inc., a Delaware corporation, as Issuer (the
"Company") and IBJ Xxxxxxxx Bank & Trust Company, a New York banking
corporation, as Trustee and as Collateral Agent (in either or both of such
capacities, the "Trustee"):
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WITNESSETH
WHEREAS, the Company has heretofore entered into an Indenture
of Trust, dated as of October 14, 1997 (the "Original Indenture") by and between
the Company and the Trustee;
WHEREAS, all capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Original Indenture, as
supplemented;
WHEREAS, the Original Indenture contains certain ambiguities
and inconsistencies with respect to the treatment of proceeds of sales of
Collateral other than proceeds of sales of Collateral which constitute Asset
Sales;
WHEREAS, the Original Indenture provides that it may be
amended, waived or supplemented to cure any ambiguity, defect or inconsistency,
without notice to or consent of any Holder;
WHEREAS, the Company deems it desirable to amend the Original
Indenture as set forth and described herein; and
WHEREAS, all of the requirements and conditions set forth in
the Original Indenture for the amendment thereof have been satisfied (or will be
satisfied prior to execution and delivery of this First Supplemental Indenture).
NOW, THEREFORE, in consideration of this First Supplemental
Indenture and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
CONDITIONS PRECEDENT TO THIS
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture is conditioned upon the
receipt by the Trustee of:
(i) This First Supplemental Indenture duly executed by
the Company;
(ii) A certificate of (a) the Secretary or Assistant Secretary of the Company
certifying: (I) a copy of the Unanimous Written Consent of the Company's board
of directors authorizing and directing the execution, delivery and performance
of this First Supplemental Indenture; and (II) the names and true signatures of
the officers of the Company authorized to sign this First Supplemental
Indenture; and (b) an Authorized Officer of the Company (I) as to such matters
required under the Original Indenture; and (II) as to such matters as the
Trustee may reasonably request;
(iii) An Opinion of XxXxxxxxx, Will & Xxxxx, counsel to the Company, as to (A)
such matters required under the Original Indenture; and (B) as to such matters
as the Trustee may reasonably request; and
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(iv) Such other documents as the Trustee may reasonably request.
ARTICLE II
AMENDMENTS TO ORIGINAL INDENTURE
Section 2.01. Purpose of Amendments. In order to clarify the
ambiguities and correct the inconsistencies in the Original Indenture with
respect to the treatment of proceeds of sales of Collateral other than proceeds
of sales of Collateral which constitute Asset Sales, the Company and the Trustee
have agreed to certain amendments to the Original Indenture.
Section 2.02. Amendment to Section 1.1. Section 1.1 of the Original
Indenture is hereby amended as follows:
(i) The definition of "Related Business Investment" is amended to read in its
entirety:
" "Related Business Investment" means any Investment, capital expenditure or
other expenditure by the Company which is related to the business of the Company
and its Restricted Subsidiaries as it is conducted on the date of the sale of
the Collateral giving rise to the Net Cash Proceeds or net proceeds (as defined
in Section 10.4(d)) to be reinvested ".
Section 2.03. Amendments to Section 10.4. Section 10.4 of the Original
Indenture is hereby amended as follows:
(i) The first paragraph of Section 10.4 is amended to read in
its entirety:
" In addition to its rights under Sections 10.3 and 10.5, the Company (and any
Restricted Subsidiary with respect to any Collateral pledged by such Restricted
Subsidiary) shall have the right, at any time and from time to time, to sell,
exchange or otherwise dispose of any of the Collateral (other than Trust Moneys
(but other than Trust Moneys constituting Collateral Proceeds or net proceeds
(as defined in Section 10.4(d)), which are subject to release from the Lien of
the Security Documents as provided under Article XI), upon compliance with the
requirements and conditions of this Section 10.4, and the Trustee shall promptly
release the same from the Lien of any of the Security Documents upon receipt by
the Trustee (other than in the case of Section 10.4(d) of a Release Notice (as
hereinafter defined) requesting such release and describing the property to be
so released, together with delivery of the following, among other matters: ".
(ii) Section 10.4(b)(i)(2) is amended to read in its entirety:
" (2) the Collateral to be released is Trust Moneys representing net proceeds
(as defined in Section 10.4(d)) that are not required or cannot possibly be
required through the passage of time or otherwise, to be used to purchase the
Securities pursuant to Section 4.14; ".
Section 2.04. Amendment to Section 11.4. Section 11.4 of the Original
Indenture is hereby amended as follows:
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(i) The first paragraph of Section 11.4 is amended to read in
its entirety:
" To the extent that any Trust Moneys consist of (a) Net Cash Proceeds received
by the Trustee pursuant to Section 4.14 or (b) net proceeds (as defined in
Section 10.4(d)) of sales of Collateral which do not constitute Asset Sales, and
the Company intends to reinvest such Net Cash Proceeds or net proceeds (as
defined in Section 10.4(d)) in a manner that would constitute a Related Business
Investment, such Trust Moneys may be withdrawn by the Company by the proper
officer or officers of the Company, to reimburse the Company for expenditures
made or to pay costs incurred by the Company in connection with such Related
Business Investment, upon receipt by the Trustee of the following: ".
ARTICLE III
MISCELLANEOUS
Section 3.01. Severability. If any provision of this First Supplemental
Indenture shall be held or deemed to be or shall, in fact, be illegal,
inoperative or unenforceable, the same shall not affect any other provision or
provisions herein contained or render the same invalid, inoperative or
unenforceable to any extent whatsoever.
Section 3.02. Counterparts. This First Supplemental Indenture may be
simultaneously executed in several counterparts, each of which shall be an
original and all of such shall constitute but one and the same instrument.
Section 3.03. Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York.
Section 3.04. Captions. The captions and headings in this First
Supplemental Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or Sections of this First
Supplemental Indenture.
Section 3.05. Amendments and Supplements. This First Supplemental
Indenture may be amended, changed or modified only as provided in Article IX of
the Original Indenture.
Section 3.06. Original Indenture. This First Supplemental Indenture is
supplemental to the Original Indenture and all provisions of the Original
Indenture, unless clearly amended hereby, shall remain in full force and effect
and be applicable to this First Supplemental Indenture, and matters relating
thereto as if set forth verbatim herein.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be executed by their respective officers thereunto
duly authorized, as of the date first above.
TOM'S FOODS INC.
By:_____________________________
Name:___________________________
Title:____________________________
IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee
By:____________________________
Name:__________________________
Title:___________________________
