Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of June 30, 2004 (this "FIRST
SUPPLEMENTAL INDENTURE"), among Pierre Foods, Inc., a North Carolina corporation
(the "COMPANY"), Fresh Foods Properties LLC, a North Carolina limited liability
company (the "INITIAL GUARANTOR"), and U.S. Bank National Association, as
trustee under the Indenture referred to below ("the TRUSTEE").
W I T N E S S E T H:
WHEREAS, Pierre Merger Corp., a North Carolina Corporation ("PMC"),
and the Trustee have heretofore executed and delivered an Indenture dated as of
June 30, 2004 (as amended, supplemented, waived or otherwise modified, the
"INDENTURE"), providing for the issuance of 9 7/8% Senior Subordinated Notes due
2012 (the "Notes");
WHEREAS, Section 9.01 of the Indenture provides that PMC and the
Trustee may execute and deliver a supplemental indenture to, among other things,
(i) provide for the assumption of PMC's obligations to Holders of Notes in the
case of a merger or consolidation or sale of all or substantially all of the
assets of PMC, and (ii) to add Guarantors with respect to the Notes or to secure
the Notes;
WHEREAS, pursuant to Section 9.01 of the Indenture, PMC and the
Trustee are authorized to execute and deliver this First Supplemental Indenture
to amend the Indenture, without the consent of any Holder of Notes;
WHEREAS, upon effectiveness of the Merger, the Company, as surviving
corporation pursuant to the Merger has, by operation of law, assumed the
obligations of PMC pursuant to the Indenture, the Notes and the Registration
Rights Agreement (as defined in the Indenture);
WHEREAS, pursuant to the terms of the Acquisition, the Initial
Guarantor has agreed to become a party to the Indenture as a Guarantor and
execute a Guarantee;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Initial Guarantor and the Trustee mutually covenant and agree for
the equal and ratable benefit of the Holders of Notes as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 DEFINED TERMS. Terms used in this First Supplemental
Indenture but not defined herein shall have the meaning assigned to such terms
in the Indenture. The words "herein," "hereof" and "hereby" and other words of
similar import used in this First Supplemental Indenture refer to this First
Supplemental Indenture as a whole and not to any particular section hereof.
ARTICLE TWO
AGREEMENT TO BE BOUND; GUARANTEE
Section 2.1 AGREEMENT OF THE COMPANY TO BE BOUND. The Company
hereby becomes a party to the Indenture and the Notes by assuming all of PMC's
obligations under the Indenture and the Notes. The Company agrees to be bound by
all of the provisions of the Indenture and the Notes applicable to PMC and to
perform all of the obligations and agreements of PMC under the Indenture and the
Notes. All references to the "Company" in the Indenture shall be deemed to refer
to Pierre Foods, Inc. from and after the date of this Supplemental Indenture.
Section 2.2 AGREEMENT OF THE INITIAL GUARANTOR TO BE BOUND. The
Initial Guarantor hereby becomes a party to the Indenture as a Guarantor and
executes a Guarantee, and as such will have all of the rights and be subject to
all of the obligations and agreements of a Guarantor under the Indenture. The
Initial Guarantor agrees to be bound by all of the provisions of the Indenture
applicable to a Guarantor and to perform all of the obligations and agreements
of a Guarantor under the Indenture.
Section 2.3 GUARANTEE. Subject to Article 11 of the Indenture, the
Initial Guarantor unconditionally, as primary obligor and not merely as surety,
guarantees 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 enforceability of this Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that: (a) the principal of, premium, if any,
interest and Liquidated Damages, if any, 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 (subject in all cases to any applicable grace period provided herein),
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 (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that 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.
ARTICLE THREE
MISCELLANEOUS
Section 3.1 RATIFICATION OF INDENTURE; FIRST SUPPLEMENTAL INDENTURE
PART OF INDENTURE; TRUSTEE'S DISCLAIMER. 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
First Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Notes 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 First Supplemental Indenture, and is
not responsible for any of the recitals or statements made herein, all of which
are the recitals or statements of the Company.
Section 3.2 GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
Section 3.3 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
First Supplemental Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other Person
(other than the Indenture). Any such indenture, loan or debt agreement may not
be used to interpret this First Supplemental Indenture or the Indenture.
Section 3.4 SEVERABILITY. In case any provision in this First
Supplemental Indenture, the Indenture or in the Notes 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.
Section 3.5 COUNTERPART ORIGINALS. The parties may sign any number
of copies of this First Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
Section 3.6 HEADINGS, ETC. The Headings of the Articles and
Sections of this First Supplemental Indenture have been inserted for convenience
of reference only, are not to be considered a part of this First Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
PIERRE FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
FRESH FOODS PROPERTIES LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Alison X.X. Xxxxxx
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Name: Alison X.X. Xxxxxx
Title: Vice President
