Exhibit 4.4
SECOND SUPPLEMENTAL INDENTURE
This Second Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"),
dated as of May 2, 2001, by and among M-Foods Dairy, LLC and M-Foods Dairy TXCT,
LLC (each a "GUARANTEEING SUBSIDIARY" and, collectively, the "GUARANTEEING
SUBSIDIARIES" ), each of which is an indirect subsidiary of Xxxxxxx Foods, Inc.,
a Minnesota corporation (the "COMPANY"), the Company and BNY Midwest Trust
Company, as trustee under the Indenture referred to below (the "TRUSTEE").
W I T N E S E T H
WHEREAS, Xxxxxxx Foods Acquisition Corp. ("ACQUISITION") has
heretofore executed and delivered to the Trustee an indenture (the "INDENTURE"),
dated as of March 27, 2001 providing for the issuance of an aggregate principal
amount of up to $300 million of 11 3/4% Senior Subordinated Notes due 2011 (the
"NOTES");
WHEREAS, Section 4.18 of the Indenture provides that, if the Company
creates or acquires another Domestic Subsidiary on or after the Merger Date,
then the newly created or acquired Domestic Subsidiary must become a Guarantor
and execute a supplemental indenture within 20 Business Days of the date it was
acquired or created pursuant to which such Guarantor shall unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms and conditions set forth herein and in the Indenture;
WHEREAS, on April 10, 2001, in connection with the consummation of the
Merger and the transfer of certain assets of certain of the Domestic
Subsidiaries of the Company to the Guaranteeing Subsidiaries, the Company
acquired the Guaranteeing Subsidiaries; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto mutually covenant and agree for the equal and ratable benefit of
the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the Guaranteeing Subsidiaries
hereby agrees to become subject to the terms of the Indenture as a Guarantor.
3. INCORPORATION OF TERMS OF INDENTURE. The obligations of the
Guaranteeing Subsidiaries under the Note Guarantees shall be governed in all
respects by the terms of the Indenture and shall constitute a Note Guarantee
thereunder. Each of the Guaranteeing Subsidiaries shall be bound by the terms of
the Indenture as they relate to the Note Guarantees.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the SEC that such a waiver is against public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies of this
Second Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiaries and the
Company.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: May 2, 2001
XXXXXXX FOODS, INC.
By:
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Name:
Title:
M-FOODS DAIRY, LLC
By:
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Name:
Title:
M-FOODS DAIRY TXCT, LLC
By:
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Name:
Title:
BNY MIDWEST TRUST COMPANY, AS TRUSTEE
By:
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Name:
Title:
