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SUPPLEMENT, dated as of December 27, 1996 (the "Supplement"), by and
between Xxxxx Xxxx Foods, Inc., a Delaware corporation (the "Issuer"), and The
Bank of New York, a New York banking corporation, as trustee (the "Trustee"),
to the Indenture dated as of November 8, 1993 (as amended and supplemented, the
"Indenture") by and between the Issuer and the Trustee.
RECITALS
WHEREAS, the Issuer duly authorized the creation of an issue of Senior
Discount Notes Due 1998, Series A and Senior Discount Notes Due 1998, Series B
(the "Securities"), of substantially the tenor and amount set forth in the
Indenture, and to provide therefor the Issuer duly authorized the execution and
delivery of the Indenture.
WHEREAS, all acts and things necessary were done to make the
Securities, when executed by the Issuer and authenticated and delivered under
the Indenture and duly issued by the Issuer, the valid obligations of the
Issuer and to make the Indenture a valid agreement of the Issuer in accordance
with the terms of the Indenture.
WHEREAS, the Issuer and DIG Holding Corp., a New York corporation
("DIG Holding"), desire to effect a merger (the "Merger") between the Issuer
and DIG Holding with the Issuer continuing as the surviving corporation. The
Merger is not intended to adversely affect the interests of the Holders.
WHEREAS, the Issuer is controlled by Xxxxxx X. Xxxxxxxx, the Chairman,
President and Chief Executive Officer of the Issuer. 91.8% of the issued and
outstanding shares of common stock of the Issuer are owned by DIG Holding, a
holding company controlled by Xx. Xxxxxxxx and his affiliates. The remaining
8.2% of the common stock is owned by Rose Partners, L.P., ("Rose Partners"), an
entity controlled by Xx. Xxxxxxxx and his affiliates.
WHEREAS, after giving effect to the Merger, the Issuer will continue
to be controlled by Xx. Xxxxxxxx with 98.53 % of the common stock of the Issuer
owned by Rose Partners.
WHEREAS, the parties have entered into this Supplement pursuant to
Section 7.01 of the Indenture, including paragraph (v) thereunder, in order to
clarify and cure a potential ambiguity in Article Eight with respect to the
scope of that provision. Under Section 7.01 of the Indenture the Issuer may
amend the Indenture or the Securities without notice to or consent of any
Holder.
WHEREAS, the effect of this Supplement will be to reaffirm that the
contemplated Merger is outside the scope of the limitations set forth in
Article Eight of the Indenture since the transaction will not result in a
transfer of all or substantially all of the assets of the Issuer and the
Restricted Subsidiaries on a consolidated basis.
WHEREAS, all acts and things necessary have been done to make this
Supplement a valid agreement of the Issuer in accordance with the terms of the
Indenture.
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NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
Amendment of Indenture
The parties hereto mutually covenant and agree to, and do hereby,
supplement and amend the Indenture as follows:
The introductory language of Section 8.01 shall be and is hereby
amended to reflect certain definitional and other typographical modifications,
as follows:
When Issuer May Merge, Etc. (a) The Issuer shall not (i)
consolidate with, (ii) merge with or into, or (iii) transfer, directly
or indirectly by lease, assignment, sale or otherwise, including,
without limitation, as a result of the merger or consolidation of any
Restricted Subsidiary with any other Person (collectively, a
"transfer"), all or substantially all of its assets in one transaction
or a series of related transactions to ((i), (ii) and (iii) are
sometimes collectively referred to as a "Transaction"), any Person or
group of affiliated Persons or permit any Restricted Subsidiary to
enter into any such Transaction or Transactions if such Transaction or
Transactions in the aggregate would result in a transfer of all or
substantially all of the assets of the Issuer and the Restricted
Subsidiaries on a consolidated basis, unless...
In addition, the following new paragraph (b) shall be added to Section
8.01:
(b) Any Transaction which does not result in a transfer
of all or substantially all of the assets of the Issuer and its
Restricted Subsidiaries on a consolidated basis shall not be subject
to any of the limitations, restrictions or covenants set forth in this
Section 8. The merger of DIG Holding (or another holding company) with
and into the Issuer with the Issuer continuing as the surviving
corporation shall be outside the scope of Article 8.
ARTICLE 11
Effectiveness
This Supplement shall become effective as of the date first above
written.
ARTICLE III
Miscellaneous
(a) Capitalized terms herein used are used as defined in the
Indenture unless otherwise indicated.
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(b) This Supplement shall be governed by and constructed in
accordance with the laws of the State of New York.
(c) This Supplement may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together
constitute but one contract.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXXXX XXXX FOODS, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Assistant Vice President
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