EXHIBIT 4.7
FOODBRANDS AMERICA, INC., as Issuer
and
the GUARANTORS as identified herein
and
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of December 11, 1995
$110,000,000
9 3/4% Senior Subordinated Redeemable Securities due 2000
TABLE OF CONTENTS
Page
SECTION I
GUARANTEE OF SECURITIES
Section 1.01. Addition of Subsidiary Guarantors . . . . . . . .2
Section 1.02. Opinion of Counsel and Officer's Certificate. . .2
SECTION II
MISCELLANEOUS PROVISIONS
Section 2.1. Terms Defined . . . . . . . . . . . . . . . . 2
Section 2.2. Indenture . . . . . . . . . . . . . . . . . . 2
Section 2.3. Governing Law . . . . . . . . . . . . . . . . 2
Section 2.4. Successors . . . . . . . . . . . . . . . . . 3
Section 2.5. Multiple Counterparts . . . . . . . . . . . . 3
Section 2.6. Effectiveness . . . . . . . . . . . . . . . . 3
Section 2.7. Recitals . . . . . . . . . . . . . . . . . . 3
Section 2.8. Notices . . . . . . . . . . . . . . . . . . . 3
Note: This Table of Contents shall not, for any
purpose, be deemed to be a part of the Third
Supplemental Indenture.
THIRD SUPPLEMENTAL INDENTURE, dated as of December 11,
1995, by FOODBRANDS AMERICA, INC., a corporation incorporated
under the laws of the State of Delaware (the "Company"), and
RKR-GP, INC., a Delaware corporation, KPR HOLDINGS, L.P., a
Delaware limited partnership, XXXXXXXX FOOD SERVICE COMPANY,
L.L.C., an Oklahoma limited liability company, FBAI INVESTMENTS
CORPORATION, an Oklahoma corporation, and XXXXXXX PACKING CO.,
INC., a Delaware corporation (individually each a "Guarantor" and
collectively the "Guarantors"), and FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee the
"Trustee").
WHEREAS, the Company previously executed and delivered
an Indenture dated as of April 28, 1993 providing for the
issuance initially of $110,000,000 aggregate principal amount of
the Company's 9 3/4% Senior Subordinated Redeemable Securities
due 2000 (the "Securities"); and
WHEREAS, there have been issued and are now outstanding
under the Indenture, Securities in the aggregate principal amount
of $110,000,000; and
WHEREAS, Xxxxxxxx Specialty Brands Company, (formerly known
as International Multifoods Foodservice Corp.), a Delaware
corporation, Continental Deli Foods, Inc., (formerly known as
Xxxxxx Foods Corporation and successor in interest to
Stoppenbach, Inc.), a Delaware corporation and Xxxxxx Certified
Express, Inc., a Delaware corporation, were made party to the
Indenture dated as of April 28, 1993 by the First Supplemental
Indenture dated as of June 1, 1994; and
WHEREAS, pursuant to the Second Supplemental Indenture dated
as of May 16, 1995, the Company as the successor in interest to
Xxxxxxxx Companies Incorporated ("Xxxxxxxx") expressly assumed
all obligations of Xxxxxxxx under the April 28, 1993 Indenture
(the above referenced Indenture and each Supplemental Indenture
are collectively referred to herein as the "Indenture"); and
WHEREAS, the Company is entering into that certain
Credit Agreement to be dated as of December 11, 1995 with the
lenders as identified therein ("Lenders"), Chemical Bank, a New
York banking corporation as syndications agent, documentation
agent and administrative agent for the Lenders, and as issuing
lender, and Citibank, N.A., as managing agent, for $320,000,000
(the "Credit Agreement"), whereby the Restricted Subsidiaries
identified herein as the Guarantors will guarantee the
obligations of the Company under the Credit Agreement; and
WHEREAS, pursuant to and as contemplated by Section 4.17(a)
and Article Twelve of the Indenture, each of the Guarantors
desires by this Third Supplemental Indenture to subject itself to
the provisions of the Indenture as a Guarantor; and
WHEREAS, the execution and delivery of this Third
Supplemental Indenture has been authorized by a resolution of the
Board of Directors of the Company and each of the Guarantors; and
WHEREAS, all conditions and requirements necessary to
make this Third Supplemental Indenture a valid and binding
instrument in accordance with its terms have been performed and
the execution and delivery of this agreement have been in all
respects duly authorized;
THEREFORE, in consideration of the above premises, each
party agrees, for the benefit of the other and for the equal and
ratable benefit of the holders of the Securities as follows:
SECTION I
GUARANTEE OF SECURITIES
Section 1.01. Addition of Subsidiary Guarantors. In
accordance with Article 12.03 of the Indenture, the undersigned
Guarantors guarantee the Indenture, thereby subjecting themselves
to all terms of the Indenture as a Guarantor, as evidenced by
execution and delivery of this Third Supplemental Indenture to
the Trustee.
Section 1.02. Opinion of Counsel and Officer's Certificate.
This Third Supplemental Indenture shall be accompanied by an
opinion of counsel, McAfee & Xxxx A Professional Corporation, and
an officer's certificate to the effect that the Third
Supplemental Indenture has been duly authorized and executed, and
constitutes the legal, valid, binding and enforceable obligation
of the Company and the Subsidiary Guarantors.
SECTION II
MISCELLANEOUS PROVISIONS
Section 2.1. Terms Defined. For all purposes of this
Third Supplemental Indenture, except as otherwise defined or
unless the context otherwise requires, terms used in capitalized
form in this Third Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture.
Section 2.2. Indenture. Except as amended hereby, the
Indenture and the Securities are in all respects ratified and
confirmed and all terms thereof shall remain in full force and
effect.
Section 2.3. Governing Law. This Third Supplemental
Indenture shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the
conflicts of laws rules existing there.
Section 2.4. Successors. All agreements of the Company,
each of the Guarantors, and the Trustee in this Third
Supplemental Indenture and the Securities shall bind their
respective successors.
Section 2.5. Multiple Counterparts. The parties may sign
multiple counterparts of this Third Supplemental Indenture. Each
signed counterpart shall be deemed an original, but all of them
together represent the same agreement.
Section 2.6. Effectiveness. The provisions of this Third
Supplemental Indenture will take effect immediately upon its
execution and delivery by the Trustee, the Company, and each of
the Guarantors.
Section 2.7. Recitals. The recitals of fact contained
here shall be taken as the statements of the Company and the
Guarantors, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as
to the validity or adequacy of this Third Supplemental Indenture
or its due execution by the Company and the Guarantors.
Section 2.8. Notices. Any notices or communication to the
Guarantors shall be given pursuant to Section 11.02 of the
Indenture, addressed as follows:
If to any Guarantor to:
[Insert Guarantor's Name]
0000 X.X. Xxxxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
With a copy to:
McAfee & Xxxx A Professional Corporation
Xxxxx Xxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
FOODBRANDS AMERICA, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Xxxxxx X. Xxxxx, Vice President
RKR-GP, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Xxxxxx X. Xxxxx, Vice President
KPR HOLDINGS, L.P., a Delaware
limited partnership
By: RKR-GP, a Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxx
_________________________
Xxxxxx X. Xxxxx,
Vice President
XXXXXXXX FOOD SERVICE COMPANY,
L.L.C., an Oklahoma limited
liability company
By: RKR-GP, a Delaware corporation,
its Manager
By: /s/ Xxxxxx X. Xxxxx
_________________________
Xxxxxx X. Xxxxx,
Vice President
FBAI INVESTMENTS CORPORATION, an
Oklahoma corporation
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Xxxxxx X. Xxxxx, Vice President
XXXXXXX PACKING CO., INC., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Xxxxxx X. Xxxxx, Vice President
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxx Xxxxxx
_______________________
Name: Xxxxxx Xxxxxx
Title: Vice President
