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EXHIBIT 4.4
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DI GIORGIO CORPORATION
AS ISSUER
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$100,000,000
12% SENIOR NOTES, DUE 2003
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 9, 1997
AMENDING AND SUPPLEMENTING THE
INDENTURE DATED AS OF FEBRUARY 1, 1993
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THE BANK OF NEW YORK
AS TRUSTEE
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THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of June 9, 1997, between DI GIORGIO CORPORATION, a corporation duly organized
and existing under the laws of the State of Delaware, as issuer (the "Company")
and THE BANK OF NEW YORK a New York banking corporation, as trustee (the
"Trustee").
WHEREAS, there has heretofore been executed and delivered to the Trustee an
Indenture dated as of February 1, 1993 (the "Original Indenture"), regarding the
Company's 12% Senior Notes Series due 2003 (the "Securities");
WHEREAS, the Company has commenced a tender offer (the "Tender Offer") for
the Securities and, in connection therewith, has solicited consents (the
"Solicitation") from the Holders to certain amendments to the Original
Indenture, as set forth in the Offer to Purchase and Consent Solicitation
Statement of the Company dated May 16, 1997; and
WHEREAS, pursuant to the Solicitation, the Holders of at least a majority
in aggregate principal amount of the Securities outstanding (excluding for this
purpose any Securities held by the Company, or any Affiliate of the Company)
have consented to the amendments effected by this First Supplemental Indenture
in accordance with the provisions of the Original Indenture.
NOW THEREFORE, in consideration of the foregoing and the mutual premises
and covenants contained herein and for other good and valuable consideration,
the parties hereto agree as follows.
ARTICLE I
DEFINITIONS; AMENDMENTS TO ORIGINAL INDENTURE; WAIVER
SECTION 1.01 Definitions.
Capitalized terms used but not defined in this First Supplemental Indenture
shall have the specified meanings therefor set forth in the Original Indenture.
SECTION 1.02 Amendments to Original Indenture.
(a) The amendments set forth in this First Supplemental Indenture shall
become operative on the date that the Company notifies The Bank of New York, in
its capacity as Depositary in connection with the Tender Offer, that the
Securities tendered are accepted for purchase and payment pursuant to the Tender
Offer and shall be deemed effective as of June 9, 1997. If the Securities are
not accepted for payment by the Company for any reason, the amendments set forth
herein will not become operative.
(b) Sections 4.04, 4.05, 4.06, 4.07, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22 and 8.01 of the Original Indenture
shall be deleted.
(c) Section 5.01 of the Original Indenture shall be amended by deleting
clauses (iii), (iv) and (v) thereof and inserting "[intentionally omitted]" in
lieu thereof.
(d) Section 8.02 of the Original Indenture shall be amended and restated so
as to read in its entirety as follows:
SECTION 8.02 Successor Corporation.
Upon any consolidation or merger or any transfer of all or substantially
all of the assets of the Company, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made, shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
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(e) All references in the Original Indenture and the Securities to the
sections, subsections and clauses of the Original Indenture and the Securities
deleted or amended by the foregoing paragraphs (b) through (d) shall be void and
of no further force and effect.
(f) All defined terms used in Section 1.01 of the Original Indenture that
are used solely in the sections, subsections and clauses deleted by the
foregoing paragraphs (b) through (d) shall be void and of no further force and
effect.
SECTION 1.03 Waiver.
If and to the extent that any provision of the covenants set forth in the
sections and subsections of the Original Indenture deleted by Section 1.02 (b)
through (d) of this First Supplemental Indenture would impair the Company's
ability to effect the Tender Offer and the Solicitation, compliance with such
provision is hereby waived by the Trustee.
ARTICLE II
MISCELLANEOUS
SECTION 2.01. Instruments To Be Read Together.
This First Supplemental Indenture is an indenture supplemental to the
Original Indenture; and, as such, said Original Indenture and this First
Supplemental Indenture shall henceforth be read together.
SECTION 2.02. Confirmation.
The Original Indenture as amended and supplemented by this First
Supplemental Indenture is in all respects confirmed and preserved.
SECTION 2.03. Headings.
The headings of the Articles and Sections of this First Supplemental
Indenture have been inserted for convenience of reference only, and are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SECTION 2.04. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE AND THE
SECURITIES.
SECTION 2.05. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts notwithstanding that all parties named herein may not be
signatories to the same counterpart, each of which so executed shall be deemed
to be an original, but all such counterparts shall together constitute but one
and the same instrument.
SECTION 2.06. Effectiveness.
The provisions of this First Supplemental Indenture will take effect
immediately upon its execution and delivery by the Trustee.
SECTION 2.08. Acceptance by Trustee.
The Trustee accepts the amendments to the Original Indenture effected by
this First Supplemental Indenture and agrees to execute the trusts created by
the Indenture as hereby amended, but only upon the terms and conditions set
forth in the Indenture. Without limiting the generality of the foregoing, the
Trustee assumes no responsibility for the correctness of the recitals contained
herein, which shall be taken as the
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statements of the Company and the Guarantors and except as provided in the
Original Indenture the Trustee shall not be responsible or accountable in any
whatsoever for or with respect to the validity or execution or sufficiency of
this First Supplemental Indenture and the Trustee makes no representation with
respect thereto.
SECTION 2.08. Trust Indenture Act Controls.
If any provision of this First Supplemental Indenture limits, qualifies or
conflicts with another provision that is required to be included in this First
Supplemental Indenture by the Trust Indenture Act, the required provision shall
control.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the date first written above.
DI GIORGIO CORPORATION
By /s/ XXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President and
Corporate Controller
THE BANK OF NEW YORK
By /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
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