Exhibit 4.11
================================================================================
AMERICAN SEAFOODS GROUP LLC
AMERICAN SEAFOODS FINANCE, INC.
and the Guarantors listed on Schedule A
----------
10 1/8% Senior Subordinated Notes due 2010
----------------------------------------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of September 26, 2003
----------------------------------------------
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
----------------------------------------------
Third Supplemental Indenture
================================================================================
THIRD SUPPLEMENTAL INDENTURE
----------------------------
THIRD SUPPLEMENTAL INDENTURE, dated as of September 26, 2003
(the "Third Supplemental Indenture"), among AMERICAN SEAFOODS GROUP LLC, a
----------------------------
Delaware limited liability company (the "Company"), and AMERICAN SEAFOODS
-------
FINANCE, INC., a Delaware corporation ("ASF" and together with the Company, the
---
"Offerors"), WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee (the
--------
"Trustee") and the guarantors listed on Schedule A to the Indenture (the
-------
"Guarantors").
----------
W I T N E S S E T H
-------------------
WHEREAS, the Offerors, the Trustee and the Guarantors are
party to an indenture, dated as of April 18, 2002, as amended and supplemented
(the "Indenture"), pursuant to which an aggregate principal amount of
---------
$175,000,000 of 10 1/8% Senior Subordinated Notes due 2010 (the "Securities")
----------
was issued;
WHEREAS, the Offerors have proposed certain amendments to the
Indenture, which are comprised of Proposed Amendments No. 1 and Proposed
Amendments No. 2 (collectively, the "Proposed Amendments"). Adoption of Proposed
-------------------
Amendments No. 1 requires consents from Holders representing at least a majority
in principal amount of the outstanding Notes. Adoption of Proposed Amendments
No. 2 requires consents from Holders representing at least seventy-five percent
(75%) in principal amount of the outstanding Notes;
WHEREAS, the Offerors and the Guarantors desire to execute and
deliver this Third Supplemental Indenture for the purposes of eliminating and
amending certain of the restrictive covenants and certain other provisions
contained in the Indenture;
WHEREAS, the Offerors have caused to be delivered to the
Holders of the Securities an Offer to Purchase and Consent Solicitation
Statement, dated September 15, 2003 (as the same may be amended from time to
time, the "Statement") and the Consent and Letter of Transmittal, each as
---------
amended by the Offerors' press release dated September 24, 2003, pursuant to
which the Offerors have (i) offered to purchase for cash any and all of the
outstanding Securities (such offer on the terms set forth in the Statement and
such Consent and Letter of Transmittal, the "Offer") and (ii) solicited consents
-----
to the adoption of the Proposed Amendments to the Indenture, as further
described herein;
WHEREAS, pursuant to Section 9.02 of the Indenture, the
Offerors, the Trustee and the Guarantors may amend or supplement the Indenture
or the Securities with the written consent of the Holders of at least a majority
in principal amount of the Securities (the "Requisite Holders"). However, any
-----------------
amendment, change or modification of the obligation of the Company to make and
consummate an Asset Sale Offer with
Third Supplementary Indenture
respect to any Asset Sale in accordance with Section 4.10 of the Indenture or
the obligation of the Company to make and consummate a Change of Control Offer
in the event of a Change of Control in accordance with Section 4.15 of the
Indenture, including, in each case, amending, changing or modifying any
definition relating thereto, will require the consent of the Holders of at least
75% in aggregate principal amount of Notes then outstanding (the "Additional
----------
Holders");
- -------
WHEREAS, the Offerors have received the valid written consents
of the Requisite Holders and the Additional Holders to the amendments to the
Indenture set forth in this Third Supplemental Indenture;
WHEREAS, the Offerors, the Trustee and the Guarantors desire
to enter into, execute and deliver this Third Supplemental Indenture in
compliance with the provisions of the Indenture;
WHEREAS, the board of directors of each of the Company and ASF
has authorized and empowered it to enter into this Third Supplemental Indenture;
and
WHEREAS, all other conditions and requirements necessary to
make this Third Supplemental Indenture a valid and binding instrument in
accordance with its terms and the terms of the Indenture have been satisfied;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Offerors, the Trustee and the Guarantors mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
1. Definitions. (a) Capitalized terms used herein without
-----------
definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Third Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same meanings
as corresponding terms and expressions used in the Indenture; and (ii) the words
"herein", "hereof" and "hereby" and other words of similar import used in this
Third Supplemental Indenture refer to this Third Supplemental Indenture as a
whole and not to any particular section hereof.
2. Amendment of Certain Provisions of Indenture. The Indenture
--------------------------------------------
is hereby amended to provide that, effective upon the Offerors' accepting for
purchase of and payment for all Securities validly tendered pursuant to the
Offer:
2.1 Elimination of Definitions. Each definition set forth in
--------------------------
Section 1.01 of the Indenture of any capitalized term that (i) is not
used in any provision of the Indenture other than the provisions listed
in Section 2.2 below (such definitions, collectively, the "Exclusive
---------
Definitions"), or (ii) is not used in any
-----------
2
Third Supplementary Indenture
provision of the Indenture other than in the Exclusive Definitions, is
deleted in its entirety.
2.2 Elimination of Provisions. The text of and introductory
-------------------------
heading to each Section of the Indenture listed below (excluding the
Section number at the beginning of each such Section) are deleted in
their entirety and the phrase "[Intentionally Omitted]" is inserted in
substitution therefor, and all references to such Sections are deleted
in their entirety. The word "[deleted]" is inserted in substitution for
sentences that are partially deleted:
(i) Section 4.03 (entitled "Reports");
(ii) Section 4.07 (entitled "Restricted Payments");
(iii) Section 4.08 (entitled "Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries");
(iv) Section 4.09 (entitled "Incurrence of Indebtedness and
Issuance of Preferred Stock");
(v) Section 4.10 (entitled "Assets Sales");
(vi) Section 4.11 (entitled "Transactions with Affiliates");
vii) Section 4.12 (entitled "Liens");
(viii) Section 4.13 (entitled "Business Activities");
(ix) Section 4.14 (entitled "Limitation on Senior
Subordinated Debt");
(x) Section 4.15 (entitled "Offer to Repurchase upon a
Change of Control");
(xi) Section 4.16 (entitled "Limitation on Issuances and
Sales of Equity Interests in Restricted Subsidiaries");
(xii) Section 4.17 (entitled "Designation of Restricted and
Unrestricted Subsidiaries");
(xiii) Section 4.19 (entitled "Limitations on Issuance of
Guarantees of Indebtedness");
(xiv) Section 4.20 (entitled "Additional Note Guarantees");
and
(xv) Section 4.21 (entitled "Restriction on Structure of
ASI").
3
Third Supplementary Indenture
2.3 Amendment to Article Five. Paragraphs (3) and (4) of
-------------------------
Section 5.01 (entitled "Merger Condition or Sales of Assets"),
including the paragraph number at the beginning of each such paragraph,
as well as the last paragraph of Section 5.01, are deleted in their
entirety, and all references to such paragraphs are deleted in their
entirety.
2.4 Amendment to Article Six. The text of Section 6.01
------------------------
(entitled "Events of Default"), excluding the Section number and
introductory heading at the beginning of such Section, is amended in
its entirety to read as follows:
"Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the Notes
whether or not prohibited by the subordination provisions of
this Indenture;
(2) default in payment when due of the principal of,
or premium, if any, on the Notes, whether or not prohibited by
the subordination provisions of this Indenture;
(3) [intentionally omitted];
(4) [intentionally omitted];
(5) [intentionally omitted];
(6) [intentionally omitted];
(7) except as permitted by this Indenture, any Note
Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Note Guarantee;
(8) the Company [deleted], pursuant to or within the
meaning of Bankruptcy Law:
(i) commences a voluntary case; or
(ii) consents to the entry of an order for
relief against it in an involuntary case; or
4
Third Supplementary Indenture
(iii) consents to the appointment of a
custodian of it or for all or substantially all of
its property; or
(iv) makes a general assignment for the
benefit of its creditors; or
(v) generally is not paying its debts as
they become due; and
(9) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
( i) is for relief against the Company
[deleted], in an involuntary case; or (ii) is for
relief against the Company [deleted], in an
involuntary case; or
(iii) orders the liquidation of the Company
[deleted];
and the order or decree remains unstayed and in effect for
60 consecutive days."
3. Ratification of Indenture; Third Supplemental Indenture
-------------------------------------------------------
Part of Indenture. Except as expressly amended hereby, the Indenture is
-----------------
in all respects ratified and confirmed by the parties hereto and all
the terms, conditions and provisions thereof shall remain in full force
and effect. This Third Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore
or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE
-------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK 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.
5. Guarantors Makes No Representation. The Guarantors makes no
----------------------------------
representation as to the validity or sufficiency of this Third
Supplemental Indenture.
6. Trust Indenture Act Controls. If any provision of this
----------------------------
Third Supplemental Indenture limits, qualifies or conflicts with
another
5
Third Supplementary Indenture
provision which is required to be included in this Third Supplemental
Indenture by the Trust Indenture Act of 1939, as amended, the required
provision shall control.
7. Separability. In case any provision in this Third
------------
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.
8. Counterparts. The parties may sign any number of copies of
------------
this Third Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
------------------
convenience only and shall not affect the construction thereof.
6
Third Supplementary Indenture
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first written above.
AMERICAN SEAFOODS GROUP LLC
By: /s/ Bernt O. Bodal
------------------------------------------------
Name: Bernt O. Bodal
Title: Chairman and Chief Executive Officer
AMERICAN SEAFOODS FINANCE, INC.
By: /s/ Bernt O. Bodal
------------------------------------------------
Name: Bernt O. Bodal
Title: President
AMERICAN CHALLENGER LLC
By: /s/ Bernt O. Bodal
------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
AMERICAN DYNASTY LLC
By: /s/ Bernt O. Bodal
------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
AMERICAN SEAFOODS COMPANY LLC
By: /s/ Bernt O. Bodal
------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
7
Third Supplementary Indenture
AMERICAN SEAFOODS INTERNATIONAL LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
AMERICAN SEAFOODS PROCESSING LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
AMERICAN TRIUMPH LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
THE HADLEY GROUP LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
KATIE ANN LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
NEW BEDFORD SEAFOODS LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
8
Third Supplementary Indenture
NORTHERN EAGLE LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
NORTHERN HAWK LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
NORTHERN JAEGER LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
OCEAN ROVER LLC
By: /s/ Bernt O. Bodal
---------------------------------------------------
Name: Bernt O. Bodal
Title: Manager
SOUTHERN PRIDE CATFISH LLC
By: /s/ Randy Rhodes
---------------------------------------------------
Name: Randy Rhodes
Title: Secretary and Vice President
SOUTHERN PRIDE CATFISH TRUCKING, INC.
By: /s/ Garry B. Smith
---------------------------------------------------
Name: Garry B. Smith
Title: Vice President, Treasurer and Secretary
9
Third Supplementary Indenture
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Joseph O'Donnell
--------------------------------------------------
Name: Joseph O'Donnell
Title: Corporate Trust Officer
10
Third Supplementary Indenture
SCHEDULE A
GUARANTORS
Guarantor Jurisdiction of Organization
- --------- ----------------------------
American Challenger LLC Delaware
American Dynasty LLC Delaware
American Seafoods Company LLC Delaware
American Seafoods International LLC Delaware
American Seafoods Processing LLC Delaware
American Triumph LLC Delaware
The Hadley Group LLC Delaware
Katie Ann LLC Delaware
New Bedford Seafoods LLC Delaware
Northern Eagle LLC Delaware
Northern Hawk LLC Delaware
Northern Jaeger LLC Delaware
Ocean Rover LLC Delaware
Southern Pride Catfish LLC Delaware
Southern Pride Trucking, Inc. Delaware
11
Third Supplementary Indenture