EXHIBIT 4.3
EXECUTION COPY
FOURTH SUPPLEMENTAL INDENTURE
This Fourth Supplemental Indenture, dated as of October 31, 2003, by
and among Michael Foods, Inc., a Minnesota corporation (the "Company") and BNY
Midwest Trust Company, as trustee under the Indenture referred to below (the
"Trustee").
W I T N E S S E T H
WHEREAS, Michael 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, pursuant to the Supplemental Indenture, dated as of April 10,
2001, the Company, as successor by merger to Acquisition, has expressly assumed
all of the respective obligations of Acquisition as issuer of the Notes under
the Indenture;
WHEREAS, the Company desires to execute and deliver an amendment to
the Indenture for the purposes of eliminating and amending certain of the
principal restrictive covenants and certain other provisions contained in the
Indenture and the Notes;
WHEREAS, THL Food Products Co., a Delaware corporation (the
"Purchaser") has caused to be delivered to the Holders of the Notes an Offer to
Purchase and Consent Solicitation Statement, dated October 20, 2003 (as the same
may be amended from time to time, the "Statement") and the related Consent and
Letter of Transmittal, pursuant to which the Purchaser has (i) offered to
purchase for cash any and all of the outstanding Notes (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 amendments to the
Indenture, as further described herein;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company and
the Trustee may amend or supplement the Indenture or the Notes in respect of the
matters described in the Statement with the written consent of the Holders of at
least a majority in principal amount of the Notes (the "Requisite Holders");
WHEREAS, the Purchaser has received the written consents of the
Requisite Holders to the amendments to the Indenture set forth in this Fourth
Supplemental Indenture;
WHEREAS, the Company and the Trustee desire to enter into, execute and
deliver this Fourth Supplemental Indenture in compliance with the provisions of
the Indenture; and
WHEREAS, all other conditions and requirements necessary to make this
Fourth 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
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. Amendment of Certain Provisions of the Indenture. The Indenture is
hereby amended to provide that, effective upon the Operative Time (as defined in
Section 4 of this Fourth Supplemental Indenture):
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"), and/or
(ii) is not used in any 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:
(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 Securities")
(iv) Section 4.09 (entitled "Incurrence of Indebtedness and Issuance
of Preferred Stock");
(v) Section 4.10 (entitled "Asset Sales");
(vi) Section 4.11 (entitled "Transactions with Affiliates");
(vii) Section 4.12 (entitled "Liens");
(viii) Section 4.14 (entitled "Offer to Repurchase upon Change of
Control");
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(ix) Section 4.15 (entitled "Limitation on Other Senior Subordinated
Debt");
(x) Section 4.16 (entitled "Sale and Leaseback Transactions");
(xi) Section 4.17 (entitled "Limitation on Issuances of Guarantees of
Indebtedness");
(xii) Section 4.18 (entitled "Additional Guarantees");
(xiii) Section 4.19 (entitled "Business Activities"); and
(xiv) Section 4.20 (entitled "Designation of Restricted and
Unrestricted Subsidiaries").
2.3 Amendment to Article Five. The text of Section 5.01 (entitled
"Merger, Consolidation, or Sale of Assets"), excluding the Section number
and introductory heading at the beginning of such Section, is amended in
its entirety to read as follows:
"The Company will not, directly or indirectly, consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation), and the Company will not, and will not cause or permit any
Restricted Subsidiary to, sell, assign, transfer, convey or otherwise dispose of
all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person (including by way of consolidation or merger), unless either:
(a) the Company or such Restricted Subsidiary, as the case may be, is the
surviving corporation; or (b) the Person formed by or surviving any such
consolidation or merger (if other than the Company or such Restricted
Subsidiary) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a corporation, partnership or limited
liability company organized or existing under the laws of the United States, any
state thereof or the District of Columbia; provided, that in the case such
Person is a limited liability company or a partnership, a co-obligor of the
Notes is a corporation."
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":
(a) default in the payment when due of interest on, or Liquidated
Damages with respect to, the Notes (whether or not permitted by Article 10
hereof) and such default continues for a period of 30 days;
(b) default in payment when due of the principal of or premium, if
any, on the Notes (whether or not permitted by Article 10 hereof);
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(c) [Intentionally Omitted];
(d) failure by the Company or any of its Restricted Subsidiaries for
45 days after notice from the Trustee or holders of at least 25% in principal
amount of the Notes including Additional Notes, if any then outstanding to
comply with any of its other covenants or agreements in this Indenture or the
Notes;
(e) [Intentionally Omitted];
(f) [Intentionally Omitted];
(g) except as permitted by this Indenture, any Note Guarantee of a
Guarantor (other than an Immaterial Guarantor) 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 (other than an Immaterial Guarantor), or
any Person acting on behalf of any Guarantor (other than an Immaterial
Guarantor), shall deny or disaffirm its obligations under its Note Guarantee;
(h) the Pledge Agreement shall cease to be in full force and effect or
enforceable in accordance with its terms (other than in accordance with its
terms) or the Company denies or disaffirms its obligations under the Pledge
Agreement or the obligations under the Pledge Agreement cease to be secured by a
perfected first priority security interest in any portion of the collateral
purported to be pledged under the Pledge Agreement (other than in accordance
with its terms); and
(i) any Guarantor, the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case; or
(ii) consents to entry of an order for relief against it in an
involuntary case; or
(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; or
(j) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against any Guarantor, the Company or any of
its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries
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that, taken as a whole, would constitute a Significant Subsidiary in
an involuntary case;
(ii) appoints a custodian of any Guarantor, the Company or any of
its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary or for all or substantially all of the property of any
Guarantor, the Company or any of its Subsidiaries that is a
Significant Subsidiary or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of any Guarantor, the Company or any
of its Subsidiaries that is a Significant Subsidiary or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days."
3. Ratification of Indenture; Fourth 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 Fourth
Supplemental Indenture shall form a part of the Indenture for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered shall
be bound hereby and thereby.
4. Operative Time. Notwithstanding the execution of this Fourth
Supplemental Indenture on the date hereof, the amendments set forth in Section 2
of this Fourth Supplemental Indenture shall not become operative unless and
until the Purchaser accepts Notes for purchase pursuant to the Offer (the date
and time of such acceptance being referred to herein as the "Operative Time").
At the Operative Time, the amendments to the Indenture effected hereby shall be
deemed fully operative without any further notice or action on the part of the
Company, the Guarantors, the Trustee, the Purchaser, any Holder or any other
Person.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS FOURTH 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
Fourth 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.
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8. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Fourth
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
9. Trust Indenture Act Controls. If any provision of this Fourth
Supplemental Indenture limits, qualifies or conflicts with another provision
which is required to be included in this Fourth Supplemental Indenture by the
Trust Indenture Act of 1939, as amended, the required provision shall control.
10. Separability. In case any provision in this Fourth 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.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
COMPANY:
MICHAEL FOODS, INC.
By: /s/ Gregg A. Ostrander
---------------------------------
Name: Gregg A. Ostrander
Title: Chief Executive Officer &
President
TRUSTEE:
BNY MIDWEST TRUST COMPANY
By: /s/ D.G. Donovan
---------------------------------
Name: D.G. Donovan
Title: Assistant Vice President
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