THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 22, 2002, to the
Indenture (herein called the "Indenture"), dated as of November 18, 1998 by and
among Agrilink Foods, Inc., a New York corporation (the "Issuer"), the
Guarantors named therein (the "Guarantors") and The Bank of New York (as
successor trustee to IBJ Schroder Bank & Trust Company), as trustee (herein
called the "Trustee") with respect to the Issuer's 11 7/8% Senior Subordinated
Notes due 2008 (the "Notes"), is by and among the Issuer, the Guarantors and the
Trustee.
PRELIMINARY STATEMENT
Capitalized terms used and not otherwise defined herein, shall have the
meanings ascribed to them in the Indenture.
Section 9.02 of the Indenture provides that, under certain
circumstances, a supplemental indenture may be entered into by the Issuers, the
Guarantors and the Trustee with the written consent of the Holders of at least a
majority (except with respect to Sections 4.15 and 4.18 which require the
consent of at least 75% of the aggregate principal amount of the outstanding
notes) in aggregate principal amount of the then outstanding Notes. The Issuer
has received and delivered to the Trustee the requisite consents to effect the
proposed amendments contained herein upon the terms set forth in the Consent
Solicitation Statement dated July 9, 2002, as the same may be amended (the
"Consent Solicitation"). In accordance with the terms of Sections 9.02 and 9.06
of the Indenture, the Issuer and the Guarantor have, by resolution of the Board
of Directors, authorized this Supplemental Indenture. The Trustee has determined
that this Supplemental Indenture is in form satisfactory to it.
All things necessary to make this Supplemental Indenture a valid
agreement of the Issuer, the Guarantors and the Trustee and a valid amendment of
and supplement to the Indenture have been performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes
issued under the Indenture from and after the date of this Supplemental
Indenture, as follows:
Section 1. Amendments to the Indenture.
A. Deletions.
Section 4.18 (Payments Pursuant to the Pro-Fac Marketing Agreement;
Reinvestments by Pro-Fac; Borrowings by Pro-Fac) is hereby deleted
in its entirety and replaced with the words "Reserved."
B. Amendment to Section 11.01 of the Indenture.
(i) The definition of the term "Acquired Indebtedness" is hereby
amended and restated in its entirety as follows:
"Acquired Indebtedness" means (a) with respect to any Person
that becomes a Restricted Subsidiary after the date of this
Indenture, Indebtedness of such Person and its Subsidiaries
existing at the time such Person becomes a Restricted
Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted
Subsidiary and (b) with respect to the Company or any of its
Restricted Subsidiaries, any Indebtedness of a Person (other
than the Company or a Restricted Subsidiary) existing at the
time such Person is merged with or into the Company or a
Restricted Subsidiary, or Indebtedness assumed by the
Company or any of its Restricted Subsidiaries in connection
with the acquisition of an asset or assets from another
Person, which Indebtedness was not, in any case, incurred by
such other Person in connection with, or in contemplation
of, such merger or acquisition.
(ii) The definition of the term "Affiliate" is hereby amended and
restated in its entirety as follows:
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified
Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms
"controlling," "controlled by" and under "common control
with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities,
by agreement or otherwise; provided, however, that
beneficial ownership of 10% or more of the voting securities
of a Person shall be deemed to be control.
(iii) The definition of the term "Change of Control" is hereby
amended and restated in its entirety as follows:
"Change of Control" means the occurrence of any of the
following: (i) the sale, lease or transfer, in one or a
series of related transactions (other than by way of merger
or consolidation), of all or substantially all of the assets
of the Company and its Restricted Subsidiaries taken as a
whole to any Person or group (as such term is used in
Section 13(d)(3) of the Exchange Act) (other than the
Principals and their Related Parties); provided, however,
that the Recapitalization shall not constitute a Change of
Control under this clause (i); (ii) the consummation of any
transaction the result of which is that any Person or group
(as such term is used in Section 13(d)(3) of the Exchange
Act) (other than the Principals and their Related Parties)
owns, directly or indirectly, more than 50% of the voting
power of the voting stock of the Company; (iii) the first
day following the date of consummation of the
Recapitalization on which a majority of the members of the
Board of Directors of the Company are not Continuing
Directors, or (iv) the adoption by the stockholders of the
Company of a plan or proposal relating to the liquidation or
dissolution of the Company.
(iv) The definition of the term "Consolidated Interest Expense"
is hereby amended and restated in its entirety as follows:
"Consolidated Interest Expense" for any period means the
sum, without duplication, of the total interest expense of
the Company and its consolidated Restricted Subsidiaries for
such period, determined on a consolidated basis in
accordance with GAAP and including, without limitation (i)
imputed interest on Capitalized Lease Obligations and
Attributable Indebtedness; (ii) commissions, discounts and
other fees and charges owed with respect to letters of
credit securing financial obligations and bankers'
acceptance financing; (iii) the net costs associated with
Hedging Obligations; (iv) amortization of other financing
fees and expenses; (v) the interest portion of any deferred
payment obligations; (vi) amortization of debt discount or
premium, if any; (vii) all other non-cash interest expense;
(viii) capitalized interest; (ix) all cash dividend payments
(and non-cash dividend payments in the case of a Restricted
Subsidiary) on any series of preferred stock of the Company
or any Restricted Subsidiary; (x) all interest payable with
respect to discontinued operations; and (xi) all interest on
any Indebtedness of any other Person guaranteed by the
Company or any Restricted Subsidiary to the extent paid by
the Company or such Restricted Subsidiary; provided, that
interest expense related to the termination fee payable to
Pro-Fac pursuant to the Termination Agreement shall be
excluded from the calculation of Consolidated Interest
Expense.
(v) The definition of the term "Consolidated Net Income" is
hereby amended and restated in its entirety as follows:
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"Consolidated Net Income" for any period means the net
income (or loss) of the Company and its consolidated
Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that
there shall be excluded from such net income (to the extent
otherwise included therein), without duplication (i) the net
income (or loss) of any Person (other than a Restricted
Subsidiary) in which any Person other than the Company and
its Restricted Subsidiaries has an ownership interest,
except to the extent that any such income has actually been
received by the Company and its Restricted Subsidiaries
(unless and to the extent such Restricted Subsidiary is
subject to clause (iii) below) in the form of cash dividends
or distributions during such period; (ii) except to the
extent includable in the consolidated net income of the
Company pursuant to the foregoing clause (i), the net income
(or loss) of any Person that accrued prior to the date that
(a) such Person becomes a Restricted Subsidiary or is merged
into or consolidated with the Company or any Restricted
Subsidiary or (b) the assets of such Person are acquired by
the Company or any Restricted Subsidiary; (iii) the net
income of any Restricted Subsidiary during such period to
the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of that
income (a) is not permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable
to that Subsidiary during such period or (b) would be
subject to any taxes payable on such dividend or
distribution; (iv) any gain (or, only in the case of a
determination of Consolidated Net Income as used in EBITDA,
any loss), together with any related provisions for taxes on
any such gain (or, if applicable, the tax effects of such
loss), realized during such period by the Company or any
Restricted Subsidiary upon (a) the acquisition of any
securities, or the extinguishment of any Indebtedness, of
the Company or any Restricted Subsidiary or (b) any Asset
Sale by the Company or any of its Restricted Subsidiaries;
provided, however, that there shall be excluded from
Consolidated Net Income for all purposes any loss realized
by the Company or any Restricted Subsidiary upon the
acquisition of any securities, or the extinguishment of any
Indebtedness, of the Company or any Restricted Subsidiary,
or the write-off of deferred financing costs, in connection
with the Acquisition and all refinancings of Indebtedness
consummated in connection therewith; (v) any extraordinary
gain (or, only in the case of a determination of
Consolidated Net Income as used in EBITDA, any extraordinary
loss), together with any related provision for taxes on any
such extraordinary gain (or, if applicable, the tax effects
of such extraordinary loss), realized by the Company or any
Restricted Subsidiary during such period; (vi) any charges
related to the Recapitalization (including, without
limitation, any charges on account of amounts paid pursuant
to the Termination Agreement, Vestar Capital Management
Agreement or as shortfall payments under the Pro-Fac
Marketing Agreement and any charges resulting from the
application of "purchase accounting" under GAAP); (vii) in
the case of a successor to the Company by consolidation,
merger or transfer of its assets, any earnings of the
successor prior to such merger, consolidation or transfer of
assets; and provided, further, that any gain in excess of
return of capital referred to in clauses (iv) and (v) above
that relates to a Restricted Investment and which is
received in cash by the Company or a Restricted Subsidiary
during such period shall be included in the Consolidated Net
Income of the Company; and (viii) amortization or impairment
of goodwill recognized in any period beginning on or after
July 1, 2001 and impairment of goodwill for any period.
(vi) The definition of the term "Disqualified Capital Stock" is
hereby amended and restated in its entirety as follows:
"Disqualified Capital Stock" means any Capital Stock of a
Person or any of its Subsidiaries that, by its terms, by the
terms of any agreement related thereto or by the terms of
any security into which it is convertible, puttable or
exchangeable, is, or upon the happening of any event or the
passage of time would be, required to be redeemed or
repurchased by such Person or any of its Subsidiaries,
whether or not at the option of the holder thereof, or
matures or is mandatorily redeemable, pursuant to a sinking
fund
3
obligation or otherwise, in whole or in part, on or prior to
the final maturity date of the Notes.
(vii) The definition of the term "EBITDA" is hereby amended and
restated in its entirety as follows:
"EBITDA" for any period means without duplication, the sum
of the amounts for such period of (i) Consolidated Net
Income plus (ii) in each case to the extent deducted in
determining Consolidated Net Income for such period (and
without duplication), (A) Consolidated Income Tax Expense,
(B) Consolidated Amortization Expense (but only to the
extent not included in Consolidated Interest Expense), (C)
Consolidated Depreciation Expense, (D) Consolidated Interest
Expense, (E) all other non-cash items reducing the
Consolidated Net Income (excluding any such non-cash charge
that results in an accrual of a reserve for cash charges in
any future period) for such period, in each case determined
on a consolidated basis in accordance with GAAP, plus (iii)
in the case of the Company, for any period that includes a
fiscal quarter beginning on or prior to consummation of the
Recapitalization, the Pro-Fac share of earnings (loss) as
determined in accordance with the Pro-Fac Marketing
Agreement for such period through the date of consummation
of the Recapitalization, minus (iv) the aggregate amount of
all non-cash items, determined on a consolidated basis, to
the extent such items increased Consolidated Net Income for
such period.
(viii) The definition of the term "New Credit Facility" is hereby
amended and restated in its entirety as follows:
"New Credit Facility" means the Credit Agreement dated as of
the closing of the Recapitalization by and among the
Company, the other guarantors party thereto, JPMorgan Chase
Bank, individually and as Administrative Agent, J.P. Morgan
Securities Inc, individually and as a Syndication Agent, and
the other lenders party thereto, together with any
guarantees, security agreements or other collateral
documents and any other related documents, as any of the
foregoing may be subsequently amended, restated, refinanced,
or replaced from time to time, and shall include agreements
in respect of Hedging Obligations designed to protect
against fluctuations in interest rates and entered into with
respect to loans thereunder.
(ix) The definition of the term "Permitted Indebtedness" is
hereby amended and restated in its entirety as follows:
"Permitted Indebtedness" means any of the following:
(i) Indebtedness of the Company and the related guarantees
of the Subsidiary Guarantors under the New Credit Facility
in an aggregate principal amount at any time outstanding not
to exceed (a) under the Term Loan Facilities, $455.0
million, less any required permanent repayments actually
made thereunder (excluding any such repayment to the extent
refinanced and replaced at the time of payment), and (b)
under the Revolving Loan Facility, the greater of (x) $200.0
million, and (y) the sum of (A) 80% of the book amount of
all accounts receivable owned by the Company and its
Restricted Subsidiaries and (B) 50% of the book value of all
inventory owned by the Company and its Restricted
Subsidiaries, in each case computed in accordance with GAAP
as of the end of the last fiscal month of the Company,
reduced by any required permanent repayments actually made
(which are accompanied by a corresponding permanent
commitment reduction) in respect of the Revolving Loan
Facility (excluding any such repayment and commitment
reductions to the extent refinanced and replaced at the time
of payment);
(ii) Indebtedness under the Notes, the Note Guarantees and
this Indenture;
4
(iii) Existing Indebtedness;
(iv) Indebtedness under Hedging Obligations, provided that
(1) such Hedging Obligations are related to payment
obligations on Permitted Indebtedness or Indebtedness
otherwise permitted by Section 4.07, and (2) the notional
principal amount of such Hedging Obligations at the time
incurred does not exceed the principal amount of such
Indebtedness to which such Hedging Obligations relate;
(v) Indebtedness of the Company to a Subsidiary Guarantor
and Indebtedness of any Subsidiary Guarantor to the Company
or any other Subsidiary Guarantor; provided, however, that
upon either (1) the subsequent issuance (other than
directors' qualifying shares), sale, transfer or other
disposition of any Capital Stock or any other event which
results in any such Subsidiary Guarantor ceasing to be a
Subsidiary Guarantor or (2) the transfer or other
disposition of any such Indebtedness (except to the Company
or a Subsidiary Guarantor), the provisions of this clause
(v) shall no longer be applicable to such Indebtedness and
such Indebtedness shall be deemed, in each case, to be
incurred and shall be treated as an incurrence for purposes
of Section 4.07 at the time the Subsidiary Guarantor in
question ceased to be a Subsidiary Guarantor or the time
such transfer or other disposition occurred;
(vi) Indebtedness in respect of bid, performance or surety
bonds or insurance of self-reinsurance obligations
(including to secure worker's compensation and other similar
insurance coverage) issued for the account of the Company in
the ordinary course of business consistent with past
practice, including guarantees or obligations of the Company
with respect to letters of credit supporting such bid,
performance or surety obligations or such insurance or
self-insurance obligations (in each case other than for an
obligation for money borrowed);
(vii) Indebtedness in respect of Non-Recourse Purchase Money
Indebtedness incurred by the Company or any Restricted
Subsidiary;
(viii) Refinancing Indebtedness;
(ix) Indebtedness in respect of the Guarantee by the Company
of revolving credit indebtedness incurred by Great Lakes
Kraut Company in an aggregate principal amount at any time
outstanding not to exceed $10.0 million;
(x) Indebtedness incurred by the Company or any Subsidiary
Guarantor, in addition to Indebtedness incurred pursuant to
the foregoing clauses of this definition, with an aggregate
principal face or stated amount (as applicable) at any time
outstanding for all such Indebtedness incurred pursuant to
this clause not in excess of $25.0 million; and
(xi) Indebtedness in respect of the termination fee payable
to Pro-Fac of up to $50.0 million in the aggregate (plus any
interest accrued thereon to the extent such payments are
required to be deferred by holders of certain of the
Company's Indebtedness) pursuant to the Termination
Agreement.
(x) The definition of the term "Pro-Fac" is hereby amended and
restated in its entirety as follows:
"Pro-Fac" means Pro-Fac Cooperative, Inc., a New York
cooperative corporation, unless and until a successor
replaces it in accordance with Article 5 and thereafter
means such successor.
5
(xi) The definition of the term "Restricted Investment" is hereby
amended and restated in its entirety as follows:
"Restricted Investment" means any Investment by the Company
or any Restricted Subsidiary (other than investments in Cash
Equivalents) in any Person that is not the Company or a
Restricted Subsidiary, including in any Unrestricted
Subsidiary, but shall not include (i) Investments by the
Company or any Restricted Subsidiary in a Person, if as a
result of such Investment (a) such Person becomes a
Restricted Subsidiary of the Company that is engaged in a
Related Business or (b) such Person is merged, consolidated
or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company that
is engaged in a Related Business; (ii) loans by the Company
or any of its Restricted Subsidiaries to employees of the
Company or any of its Restricted Subsidiaries the proceeds
of which are applied to purchase Capital Stock of Holding
Company in amount not to exceed $2.0 million at any time
outstanding; or (iii) the Guarantee by the Company of
revolving credit indebtedness incurred by Great Lakes Kraut
Company in an aggregate principal amount at any time
outstanding not to exceed $10.0 million; or (iv) loans for
working capital purposes from the Company to Pro-Fac not
exceeding $5.0 million at any time outstanding plus
additional amounts associated with accrued interest which is
added to the principal of such loans pursuant to the terms
of such loans.
(xii) The definition of the term "Restricted Payment" is hereby
amended and restated in its entirety as follows:
"Restricted Payment" means with respect to any Person: (i)
the declaration or payment of any dividend (other than a
dividend declared and paid (x) by a Wholly-Owned Restricted
Subsidiary to holders of its Capital Stock, or (y) by a
Subsidiary (other than a Wholly-Owned Restricted Subsidiary)
to its shareholders on a pro rata basis, but only to the
extent of the dividends actually received by the Company or
a Restricted Subsidiary) or the making of any other payment
or distribution of cash, securities or other property or
assets in respect of such Person's Capital Stock (except
that a dividend payable solely in Capital Stock (other than
Disqualified Capital Stock) of such Person shall not
constitute a Restricted Payment); (ii) any payment on
account of the purchase, redemption, retirement or other
acquisition for value of (A) the Capital Stock of the
Company or (B) the Capital Stock of any Restricted
Subsidiary, or any other payment or distribution made in
respect thereof, either directly or indirectly (other than a
payment solely in Capital Stock that is not Disqualified
Capital Stock, and excluding any such payment to the extent
actually received by the Company or a Restricted
Subsidiary); (iii) any Restricted Investment; or (iv) any
Restricted Debt Payment; provided, that Permitted Payments
shall not be deemed Restricted Payments.
(xiii) The definition of the term "Unrestricted Subsidiary" is
hereby amended and restated in its entirety as follows:
"Unrestricted Subsidiary" means (i) any Subsidiary that at
the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors of the
Company in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary, and any such designation shall be
deemed to be a Restricted Investment at the time of and
immediately upon such designation by the Company and its
Restricted Subsidiaries in the amount of the Consolidated
Net Worth of such designated Subsidiary (provided, however
that in the case of Great Lakes Kraut Company or any
successor of Great Lakes Kraut Company being designated an
Unrestricted Subsidiary, the amount of such Restricted
Investment shall be deemed to be only the incremental
Investment by the Company and its Restricted Subsidiaries in
the Great Lakes Kraut Company at the time the Great Lakes
Kraut Company becomes a Subsidiary of the
6
Company) and its consolidated Subsidiaries at such time,
provided that such designation shall be permitted only if
(A) the Company and its Restricted Subsidiaries would be
able to make the Restricted Investment deemed made pursuant
to such designation at such time, (B) no portion of the
Indebtedness or any other obligation (contingent or
otherwise) of such Subsidiary (x) is Guaranteed by the
Company or any Restricted Subsidiary, (y) is recourse to the
Company or any Restricted Subsidiary or (z) subjects any
property or asset of the Company or any Restricted
Subsidiary, directly or indirectly, contingently or
otherwise, to the satisfaction thereof and (C) no default or
event of default with respect to any Indebtedness of such
Subsidiary would permit any holder of any Indebtedness of
the Company or any Restricted Subsidiary to declare such
Indebtedness of the Company or any Restricted Subsidiary due
and payable prior to its maturity. The Board of Directors of
the Company may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary, and any such designation shall be
deemed to be an incurrence by the Company and its Restricted
Subsidiaries of the Indebtedness (if any) of such Subsidiary
so designated for purposes of Section 4.07 as of the date of
such designation, provided that such designation shall be
permitted only if immediately after giving effect to such
designation and the incurrence of any such additional
Indebtedness deemed to have been incurred thereby (x) the
Company would meet the Coverage Ratio Incurrence Condition
and (y) no Default or Event of Default shall have occurred
and be continuing. Any such designation by the Board of
Directors described in the two preceding sentences shall be
evidenced to the Trustee by the filing with the Trustee of a
certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions and
setting forth the underlying calculations of such
certificate.
(xiv) The following terms and definitions are hereby added in
appropriate alphabetical order:
"Continuing Directors" means, as of any date of
determination, any member of the Board of directors of the
Company, who:
(1) was a member of the Board of Directors immediately
following the consummation of the Recapitalization;
(2) was nominated for election or elected to the Board
of Directors with the approval of a majority of the
Continuing Directors who were members of the Board of
Directors at the time of such nomination or election; or
(3) was nominated by the Principals.
"Dean Foods Note" means the unsecured subordinated note due
November 22, 2008 issued by the Company and originally
payable to Dean Foods Company which was originally issued on
September 24, 1998 in the principal amount of $30.0 million
and which accrues interest at a rate of 5% annually through
November 2003 and then bears cash interest at a rate of 10%
through maturity.
"Holding Company" means Agrilink Holdings, Inc., a Delaware
company, and its successors and assigns and Agrilink
Holdings, LLC, a Delaware limited liability company, and its
successors and assigns.
"Permitted Payments" means: (i) the payment to Pro-Fac of a
termination fee of up to $50.0 million in the aggregate
(plus any interest accrued thereon to the extent such
payments are required to be deferred by holders of certain
of the Company's Indebtedness) pursuant to the Termination
Agreement; (ii) forgiveness of amounts payable by Pro-Fac to
the Company under the working capital line of credit
provided pursuant to the Pro-Fac Marketing Agreement in
effect prior to the closing of the Recapitalization of up to
$23.5 million or the distribution to Pro-Fac of such amounts
to
7
repay amounts outstanding under such line of credit; (iii)
distributions to Pro-Fac to be used to repay a $9.4 million
note payable to the Company or the forgiveness by the
Company of amounts payable by Pro-Fac pursuant to such note;
and (iv) a payment of net patronage income for the 2002 tax
year to members of Pro-Fac, not to exceed $2.5 million in
the aggregate.
"Principals" means Vestar Capital Partners IV, L.P. and its
Affiliates.
"Pro-Fac Credit Facility" means the working capital facility
of up to $5.0 million (plus accrued and unpaid interest
thereon) provided by the Company to Pro-Fac.
"Pro-Fac Transition Services Agreement" means that certain
Transitional Services Agreement to be entered into by
Pro-Fac and the Company in connection with the
Recapitalization, as such agreement may be amended,
restated, renewed, extended or replaced in accordance with
this Indenture.
"Recapitalization" means the consummation of the
transactions contemplated by the Unit Purchase Agreement and
the agreements referred to therein and the refinancing of
the New Credit Facility.
"Securityholders Agreement" means the Securityholders
Agreement to be entered into by Pro-Fac, an Affiliate of
Vestar Capital Partners IV, L.P., Pro-Fac Investors LLC and
employees of the Company in connection with the
Recapitalization, as such agreement may be amended,
restated, renewed, extended or replaced in accordance with
this Indenture.
"Side Letters" means those certain Side Letter Agreements to
be entered into by Pro-Fac and the Company in connection
with the Recapitalization related to the supply of products
and services to Dean Specialty Foods and Seneca Foods
Corporation, as such agreements may be amended, restated,
renewed, extended or replaced in accordance with this
Indenture.
"Termination Agreement" means the Termination Agreement to
be entered into by Pro-Fac and the Company in connection
with the Recapitalization, as such agreement may be amended,
restated, renewed, extended or replaced in accordance with
this Indenture.
"Unit Purchase Agreement" means that certain Unit Purchase
Agreement dated June 20, 2002, by and among Agrilink Foods,
Inc., Pro-Fac Cooperative, Inc. and Vestar/Agrilink Holdings
LLC, as such agreement may be amended, restated, renewed,
extended or replaced in accordance with this Indenture.
"Vestar Capital" means Vestar Capital Partners, a New York
partnership, and its successors or assigns.
"Vestar Capital Management Agreement" means that certain
Management Services Agreement dated as of the date of the
Recapitalization by and among the Company, Agrilink
Holdings, Inc. and Vestar Capital.
(xv) The following terms and definitions are hereby deleted in
their entirety:
"Disinterested Directors"
"Pro-Fac Director"
"Pro-Fac Merger"
8
C. Section 4.02 of the Indenture is hereby amended by amending and
restating Section 4.02 in its entirety as follows:
Whether or not required by the rules and regulations of the
Securities and Exchange Commission (the "Commission"), so
long as any Notes are outstanding, the Company will file
with the Commission, to the extent such filings are accepted
by the Commission, and will furnish (within 15 days after
such filing) to the Trustee and the Holders of Notes all
quarterly and annual reports and other information,
documents and reports that would be required to be filed
with the Commission pursuant to Section 13 of the Exchange
Act if the Company were required to file under such section.
In addition, the Company will make such information
available to prospective purchasers of the Notes, securities
analysts and broker-dealers who request it in writing. The
Company has agreed that, for so long as any Notes remain
outstanding, it will furnish to the Holders and beneficial
holders of Notes and to prospective purchasers of Notes
designated by the holders of Transfer Restricted Securities
(as defined in the Registration Rights Agreement) and to
broker dealers, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
D. Section 4.03 of the Indenture is hereby amended by deleting the
reference to Section 4.18 of the Indenture.
E. Section 4.05 of the Indenture is hereby amended and restated in
its entirety as follows:
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any
Restricted Payment (except as permitted below) if at the
time of such Restricted Payment: (i) a Default or Event of
Default shall have occurred and be continuing or shall occur
as a consequence thereof; (ii) the Company would be unable
to meet the Coverage Ratio Incurrence Condition; or (iii)
the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments (except as
expressly provided in the second following paragraph) made
on or after the first day of the last completed fiscal
quarter of the Company ending immediately prior to the Issue
Date, exceeds the sum of (A) 50% of the Company's
Consolidated Net Income (taken as one accounting period)
from the first day of the last completed fiscal quarter of
the Company ending immediately prior to the Issue Date to
the end of the Company's most recently ended fiscal quarter
for which financial statements are available at the time of
such Restricted Payment (or, if such aggregate Consolidated
Net Income shall be a deficit, minus 100% of such aggregate
deficit) plus (B) the net cash proceeds from the issuance
and sale (other than to a Subsidiary of the Company) after
the Issue Date of (1) the Company's Capital Stock that is
not Disqualified Capital Stock (excluding amounts
contributed to the Company pursuant to clause (E) of this
paragraph and excluding Capital Stock purchased with the
proceeds of loans from the Company or any of its
Subsidiaries) or (2) debt securities of the Company that
have been converted into the Company's Capital Stock that is
not Disqualified Capital Stock and that is not held by a
Subsidiary of the Company, plus (C) to the extent that any
Restricted Investment that was made after the Issue Date is
sold for cash or otherwise liquidated or repaid for cash,
the lesser of (x) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if
any) and (y) the initial amount of such Restricted
Investment plus (D) the amount of Restricted Investment
outstanding in an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted
Subsidiary of the Company in accordance with the definition
of "Unrestricted Subsidiary," plus (E) 40% of the aggregate
contributions by Pro-Fac to the Company subsequent to the
Issue Date but prior to the consummation of the
Recapitalization, plus (F) $7.5 million.
The foregoing provisions of clauses (ii) and (iii) of the
immediately preceding paragraph will not prohibit (1) the
payment of any dividend by the Company or any Restricted
Subsidiary within 60 days after the date of declaration
thereof, if at said date of
9
declaration such payment would have complied with the
provisions of this Indenture; (2) the redemption,
repurchase, retirement or other acquisition of any Capital
Stock of the Company in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Capital Stock of the
Company (other than any Disqualified Capital Stock); (3) the
defeasance, redemption, repurchase or other retirement of
Subordinated Indebtedness in exchange for, or out of the
proceeds of, the substantially concurrent issue and sale of
Capital Stock of the Company (other than (x) Disqualified
Capital Stock, (y) Capital Stock sold to a Subsidiary of the
Company and (z) Capital Stock purchased with the proceeds of
loans from the Company or any of its Subsidiaries); (4) the
payment of amounts required to fund Holding Company's
reasonable operating expenses and working capital
requirements, not in excess of $250,000, as adjusted to
reflect changes in the Consumer Price Index between the
Issue Date and the date of any such payment, in any fiscal
year; (5) (x) the payments of dividends, distributions or
loans to Holding Company solely in amounts and at the times
necessary to permit Holding Company, or (y) any payments or
loans to holders of securities issued by Holding Company, in
each case to purchase, redeem, acquire, cancel or otherwise
retire for value Capital Stock of Holding Company (i) held
by officers, directors or employees or former officers,
directors or employees (or their transferees, estates or
beneficiaries under their estates), or a trust established
for the benefit of any of the foregoing, of Holding Company,
the Company or its Subsidiaries, upon death, disability,
retirement, severance or termination of employment or
service or pursuant to any agreement under which such
Capital Stock or related rights were issued or (ii) held by
members or former members of Holding Company, upon the
departure of such Persons as members of Holding Company;
provided that the amount of such payments under this clause
(5) does not exceed in the aggregate $2.0 million in any
fiscal year; or (6) Restricted Investments the amount of
which, together with the amount of all other Restricted
Investments made pursuant to this clause (6) after the Issue
Date, does not exceed $15.0 million.; (7) payments to
Affiliates of the Company in amounts equal to the amounts
required to pay any Federal, state or local income taxes to
the extent that such income taxes are attributable to the
income of the Company and its Restricted Subsidiaries; (8)
the making of a Restricted Investment in exchange for, or
out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of Capital Stock
of the Company (other than any Disqualified Capital Stock);
(9) the payment or repurchase of the Dean Foods Note
(provided that such Restricted Payment complies with clause
(iii) above); or (10) the designation of Great Lakes Kraut
Company, or its successor, as an Unrestricted Subsidiary
(provided that such Restricted Payment complies with clause
(iii) above).
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payments referred to in
clauses (2), (3), (7) and (8) thereof, and, to the extent
deducted in determining Consolidated Net Income in any
period, the Restricted Payments referred to in clause (5)
thereof) shall be included once in calculating whether the
conditions of clause (iii) of the second preceding paragraph
have been met with respect to any subsequent Restricted
Payments. For purposes of determining compliance with this
Section 4.05, in the event that a transaction meets the
criteria of more than one of the types of Restricted
Payments described in the clauses of the immediately
preceding paragraph or of the exceptions in of the
definition of "Restricted Payment," the Company, in its sole
discretion, shall classify such transaction and only be
required to include the amount and type of such transaction
in one of such clauses. If an issuance of Capital Stock of
the Company is applied to make a Restricted Payment pursuant
to clauses (2), (3) or (8) above, then, in calculating
whether the conditions of clause (iii) of the second
preceding paragraph have been met with respect to any
subsequent Restricted Payments, the proceeds of any such
issuance shall be included under such clause (iii) only to
the extent such proceeds are not applied as so described in
this sentence.
10
Not later than the date of making any Restricted Payment,
the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the
calculations required by this Section 4.05 were computed,
which calculations shall be based upon the Company's latest
available financial statements.
F. Section 4.07 of the Indenture is hereby amended by deleting the
text of paragraph (b) thereof in its entirety and replacing it
with the word "Reserved".
G. Section 4.10 of the Indenture is hereby amended and restated in
its entirety as follows:
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, in one
transaction or a series of related transactions, sell,
lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets
from or enter into any contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on
terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person and (ii)
the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction (or series of related transactions)
involving aggregate payments in excess of $1.0 million, an
Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and which sets
forth and authenticates a resolution that has been adopted
by a vote of a majority of the Board of Directors approving
such Affiliate Transaction and (b) with respect to any
Affiliate Transaction (or series of related transactions)
involving aggregate payments in excess of $5.0 million
(other than any Affiliate Transaction (or series of related
transactions) relating to the Pro-Fac Marketing Agreement or
any agreement for the purchase of crops entered into
pursuant to the Pro-Fac Marketing Agreement), the Officers'
Certificate described in the preceding clause (a) and an
opinion as to the fairness to the Company or such Subsidiary
from a financial point of view of such Affiliate Transaction
(or series of related transactions) issued by an Independent
Financial Advisor; provided, however, that the following
shall not be deemed to be Affiliate Transactions: (i)
transactions exclusively between or among (1) the Company
and one or more Restricted Subsidiaries or (2) Restricted
Subsidiaries, provided, in each case, that no Affiliate of
the Company (other than another Restricted Subsidiary) owns
Capital Stock of any such Restricted Subsidiary; (ii)
transactions between the Company or any Restricted
Subsidiary and any qualified employee stock ownership plan
established for the benefit of the Company's employees, or
the establishment or maintenance of any such plan; (iii)
reasonable director, officer and employee compensation and
other benefit and indemnification arrangements entered into
in the ordinary course of business and consistent with past
practice; (iv) transactions permitted by Section 4.05 or
excluded from the definition of "Restricted Payments;" (v)
the pledge of Capital Stock of Unrestricted Subsidiaries to
support the Indebtedness thereof; (vi) transactions between
the Company or any Restricted Subsidiary and any Affiliate
of the Company or such Restricted Subsidiary that is a joint
venture, provided that no direct or indirect holder of an
equity interest in such joint venture (other than the
Company or a Restricted Subsidiary) is an Affiliate of the
Company or such Restricted Subsidiary; (vii) the Pro-Fac
Marketing Agreement and any transaction effected pursuant
thereto including amendments thereto which are no less
favorable to the Company; (viii) the Vestar Capital
Management Agreement and any transaction effected pursuant
thereto including amendments thereto which are no less
favorable to the Company; (ix) the Pro-Fac Transition
Services Agreement and any transaction effected pursuant
thereto including amendments thereto which are no less
favorable to the Company; (x) the Unit Purchase Agreement
and any transaction effected pursuant thereto including
amendments thereto which are no less favorable to the
Company; (xi) the Securityholders Agreement and any
transaction effected pursuant thereto including amendments
thereto which are no
11
less favorable to the Company; (xii) the Termination
Agreement and any transaction effected pursuant thereto
including amendments thereto which are no less favorable to
the Company; (xiii) the Side Letters and any transaction
effected pursuant thereto including amendments thereto which
are no less favorable to the Company; and (xiv) the Pro-Fac
Credit Facility and any transaction effected pursuant
thereto including amendments thereto which are no less
favorable to the Company.
H. Section 4.16 of the Indenture is hereby amended and restated in
its entirety as follows:
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate any Asset Sale unless
(i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal
to the Fair Market Value of the assets included in such
Asset Sale (evidenced by the delivery by the Company to the
Trustee of an Officers' Certificate certifying that such
Asset Sale complies with this clause (i)), (ii) immediately
after giving effect to such Asset Sale, no Default or Event
of Default shall have occurred and be continuing, and (iii)
at least 80% of the consideration received by the Company or
such Restricted Subsidiary therefor is in the form of cash
paid at the closing thereof. The amount (without
duplication) of any (x) Indebtedness (other than
Subordinated Indebtedness) of the Company or such Restricted
Subsidiary that is expressly assumed by the transferee in
such Asset Sale and with respect to which the Company or
such Restricted Subsidiary, as the case may be, is
unconditionally released by the holder of such Indebtedness,
(y) any Cash Equivalents, or other notes, securities or
items of property received from such transferee that are
promptly (but in any event within 15 days) converted by the
Company or such Restricted Subsidiary to cash (to the extent
of the cash actually so received) and (z) Indebtedness of
the Company or such Restricted Subsidiary represented by the
Dean Foods Note that is expressly assumed or forgiven by the
transferee in such asset sale and with respect to which the
Company or such Restricted Subsidiary, as the case may be,
is unconditionally released by the holder of such
Indebtedness, shall be deemed to be cash for purposes of
clause (iii) of the preceding sentence and, in the case of
clause (x) above, shall also be deemed to constitute a
repayment of, and a permanent reduction in, the amount of
such Indebtedness for purposes of the following paragraph
(b) and in the case of clause (z) above shall not be
required to be applied in accordance with the following
paragraph (b). If at any time any non-cash consideration
received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset
Sale is converted into or sold or otherwise disposed of for
cash (other than interest received with respect to any such
non-cash consideration), then the date of such conversion or
disposition shall be deemed to constitute the date of an
Asset Sale hereunder and the Net Available Proceeds thereof
shall be applied in accordance with this Section 4.16. A
transfer of assets by the Company to a Restricted Subsidiary
or by a Restricted Subsidiary to the Company or to a
Restricted Subsidiary will not be deemed to be an Asset
Sale, and a transfer of assets that is excluded from the
definition of "Restricted Payment" or that constitutes a
Restricted Investment and that is permitted under Section
4.05 will not be deemed to be an Asset Sale.
I. Section 5.01 is hereby amended and restated in its entirety as
follows:
(a) The Company will not, in a single transaction or a
series of related transactions, (i) consolidate or merge
with or into (other than a merger with a Wholly-Owned
Restricted Subsidiary solely for the purpose of changing the
Company's jurisdiction of incorporation to another State of
the United States; provided that clauses (a) and (d) below
are complied with), or sell, lease, transfer, convey or
otherwise dispose of or assign all or substantially all of
the assets of the Company or the Company and its
Subsidiaries (taken as a whole), or permit any of its
Restricted Subsidiaries to do so if such transaction would
result in the transfer of all or substantially all of the
assets of the Company and its Subsidiaries (taken as a
whole), or assign any of its obligations under
12
the Notes and this Indenture, to any Person or (ii) adopt a
Plan of Liquidation unless, in either case: (a) the Person
formed by or surviving such consolidation or merger (if
other than the Company) or to which such sale, lease,
conveyance or other disposition or assignment shall be made
(or, in the case of a Plan of Liquidation, any Person to
which assets are transferred) (collectively, the
"Successor"), is a corporation or a cooperative corporation
organized and existing under the laws of any State of the
United States of America or the District of Columbia, and
the Successor assumes by supplemental indenture in a form
satisfactory to the Trustee all of the obligations of the
Company under the Notes and this Indenture; (b) immediately
prior to and immediately after giving effect to such
transaction and the assumption of the obligations as set
forth in clause (a) above and the incurrence of any
Indebtedness to be incurred in connection therewith, no
Default or Event of Default shall have occurred and be
continuing; and (c) immediately after and giving effect to
such transaction and the assumption of the obligations set
forth in clause (a) above and the incurrence of any
Indebtedness to be incurred in connection therewith, and the
use of any net proceeds therefrom on a pro forma basis, the
Company or the Successor, as the case may be, could meet the
Coverage Ratio Incurrence Condition; and (d) each Guarantor,
unless it is the other party to the transactions described
above, shall have by amendment to its Note Guarantee
confirmed that its Note Guarantee shall apply to the
obligations of the Company or the Successor under the Notes
and this Indenture. For purposes of this Section 5.01, any
Indebtedness of the Successor which was not Indebtedness of
the Company immediately prior to the transaction shall be
deemed to have been incurred in connection with such
transaction.
(b) No Guarantor (other than a Subsidiary Guarantor
whose Note Guarantee is to be released in accordance with
Section 11.08) may consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person),
another Person or entity whether or not affiliated with such
Guarantor unless:
(i) the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor under the Note
Guarantee of such Guarantor and this Indenture pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustee under the notes and this
Indenture;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(iii) immediately after giving effect to any such
transaction involving a Subsidiary Guarantor, the Coverage
Ratio Incurrence Condition would be met.
J. Section 6.01 is hereby amended and restated in its entirety as
follows:
(a) Each of the following constitutes an event of
default (an "Event of Default"):
(i) failure by the Company to pay interest or
Additional Interest on any of the Notes when it becomes due
and payable and the continuance of any such failure for 30
days (whether or not such payment shall be prohibited by
Article 10);
(ii) failure by the Company to pay the principal or
premium, if any, on any of the Notes when it becomes due and
payable, whether at stated maturity, upon redemption
(including, without limitation, the failure to make a
payment to purchase Notes tendered pursuant to a Change of
Control Offer or Net Proceeds Offer), upon acceleration or
otherwise (whether or not such payment shall be prohibited
by Article 10);
13
(iii) failure by the Company to comply with any of
its agreements or covenants described above under Article 5
or in respect of its obligations to make a Change of Control
Offer or a Net Proceeds Offer described in Sections 4.15 and
4.16, respectively;
(iv) failure by the Company or any Guarantor to
comply with any other covenant in this Indenture and
continuance of such failure for 60 days after notice of such
failure has been given to the Company by the Trustee or by
the holders of at least 25% of the aggregate principal
amount of the Notes then outstanding;
(v) failure by either the Company or any of its
Restricted Subsidiaries to make any principal payment at
final maturity after the expiration of any applicable grace
period in respect of any Indebtedness of the Company or any
of such Restricted Subsidiaries, or the acceleration of the
maturity of such Indebtedness by the holders thereof because
of a default, with an aggregate outstanding principal amount
for all such Indebtedness under this clause (v) of $7.5
million or more;
(vi) one or more final, non-appealable judgments or
orders that exceed $7.5 million in the aggregate for the
payment of money have been entered by a court or courts of
competent jurisdiction against the Company or any Restricted
Subsidiary of the Company and such judgment or judgments
have not been satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(vii) if under any Bankruptcy Law, (A) the Company
or any Significant Subsidiary commences a voluntary case,
consents to the entry of an order for relief against it in
an involuntary case, consents to the appointment of a
Custodian of it or for all or substantially all of its
property, or makes a general assignment for the benefit of
its creditors, or (B) a court of competent jurisdiction
enters an order or decree, and such order or decree remains
unstated and in effect for 60 days, that is for relief
against the Company or any Significant Subsidiary in an
involuntary case, appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of
the property of the Company or any Significant Subsidiary,
or orders the liquidation of the Company or any Significant
Subsidiary; and
(viii) except as permitted by Section 11.08 any Note
Guarantee ceases to be in full force and effect or any Note
Guarantee is declared to be null and void and unenforceable
or is found to be invalid or any Guarantor repudiates its
obligations under any Note Guarantee.
(b) Any notice of default delivered to the Company by
the Trustee or by Holders of Notes with a copy to the
Trustee must specify the Default, demand that it be remedied
and state that the notice is a "Notice Of Default".
K. Section 9.02 is hereby amended by deleting the text of paragraph
(B) thereof in its entirety and replacing it with the word
"Reserved".
L. Section 12.01 of the Indenture is hereby amended and restated by
replacing the name and address of the Trustee with the following:
The Bank of New York
101 Barclay Street - 8W
New York, New York 10286
Telecopier No.: (212) 815-5707
Attention: Corporate Trust Administration
14
Section 2. Effectiveness; Termination:
(a) This Supplemental Indenture is entered into pursuant to and
consistent with Section 9.02 of the Indenture, and nothing herein shall
constitute an amendment, supplement or waiver requiring the approval of each
Holder pursuant to clauses (i) through (ix) of paragraph (a) Subsection (C) of
Section 9.02.
(b) This Supplemental Indenture shall become effective and binding on
the Issuer, the Guarantors, the Trustee and the Holders of the Notes upon the
execution and delivery by the parties to this Supplemental Indenture; provided,
however, that the provisions of the Indenture referred to in Section 1 above
(such provisions being collectively referred to as the "Amended Provisions")
will remain in effect in the form they existed prior to the execution of this
Supplemental Indenture, the deletions and amendments of the Amended Provisions
will not become operative, and the terms of the Indenture will not be amended,
modified or deleted, in each case unless the Consent Solicitation is not
terminated and until the date and time, if any (the "Closing Date"), that the
Recapitalization as defined in Section 1 above is consummated pursuant to its
terms. On the Closing Date (assuming the Consent Solicitation is not
terminated), the Amended Provisions will automatically be deleted or amended as
contemplated by Section 1 above.
Section 3. Miscellaneous.
(a) On and after the Closing Date, each reference in the Indenture to
"the Indenture," "this Indenture," "hereunder," "hereof" or "herein" shall mean
and be a reference to the Indenture as supplemented by this Supplemental
Indenture unless the context otherwise requires.
(b) Except as specifically amended above, the Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
(c) This Supplemental Indenture shall be construed and enforced in
accordance with, and interpreted under, the internal laws of the State of New
York.
(d) This Supplemental Indenture may be executed in several
counterparts, all of which together shall constitute one agreement binding on
all parties, notwithstanding that all parties have not signed the same
counterpart.
(e) Section titles are for descriptive purposes only and shall not
control or alter the meaning of this Supplemental Indenture as set forth in the
text.
(f) The Trustee accepts the trusts created by the Indenture, as
supplemented by this Supplemental Indenture, and agrees to perform the same upon
the terms and conditions of the Indenture, as supplemented by this Supplemental
Indenture.
(g) Each of the Issuer and the Trustee hereby confirms and reaffirms
the Indenture in every particular respect except as amended by this Supplemental
Indenture.
(h) All agreements of the Issuer in this Supplemental Indenture shall
bind its successors and assigns whether so expressed or not. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors and assigns
whether so expressed or not.
(i) In case any provision in this Supplemental Indenture 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.
(j) Nothing in this Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto and their successors under the
Indenture and the Holders, any benefit or any legal or equitable right, remedy
or claim under the Indenture.
15
(k) This Supplemental Indenture shall be interpreted to comply in every
respect with the Trust Indenture Act of 1939, as amended (the "TIA"). If any
provision of this Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by the TIA, the imposed duties shall control and remain
obligatory.
16
IN WITNESS WHEREOF, the Issuer, the Guarantors and the Trustee have
caused this Supplemental Indenture to be duly executed by their respective
officers thereunto duly authorized as of the day and year first written above.
AGRILINK FOODS, INC.
By: /s/ Earl L. Powers
-------------------------
Name: Earl L. Powers
Title: EVP and CFO
PRO-FAC COOPERATIVE, INC.
By: /s/ David M. Mehalick
----------------------------
Name: David M. Mehalick
Title: Assistant Secretary
LINDEN OAKS CORPORATION
By: /s/ Linda K. Nelson
--------------------------
Name: Linda K. Nelson
Title: Treasurer
KENNEDY ENDEAVORS, INCORPORATED
By: /s/ Earl L. Powers
-------------------------
Name: Earl L. Powers
Title: VP and Secretary
THE BANK OF NEW YORK as Trustee
By: /s/ James E. Logan
-------------------------
Name: James E. Logan
Title: Vice President
17