EXHIBIT 4.1
THIS SECOND SUPPLEMENTAL INDENTURE AND NOTE GUARANTEE, dated as of
March 1, 2003, to the Indenture dated as of November 18, 1998 by and among
Agrilink Foods, Inc., a New York corporation n/k/a Birds Eye Foods, Inc., a
Delaware corporation (the "Issuer"), the Guarantors named therein (the
"Guarantors") and The Bank of New York (as successor trustee to IBJ ▇▇▇▇▇▇▇▇
Bank & Trust Company), as trustee (herein called the "Trustee") as supplemented
by a First Supplemental Indenture dated as of July 22, 2002 (collectively the
"Indenture"), with respect to the Issuer's 11 7/8% Senior Subordinated Notes due
2008 (the "Notes"), is made by the Issuer, the Trustee, and GLK Holdings, Inc.,
a Delaware corporation and a wholly owned Subsidiary of the Issuer (the
"Additional Note Guarantor").
PRELIMINARY STATEMENT
Capitalized terms used and not otherwise defined herein, shall have the
meanings ascribed to them in the Indenture.
Effective August 19, 2002, the Issuer was re-incorporated in the State
of Delaware as contemplated by Section 1, I of the First Supplemental Indenture
dated July 22, 2002, and effective February 10, 2003, the certificate of
incorporation of the Issuer was amended by the filing with the Secretary of
State of Delaware of a certificate of amendment to change the name of the Issuer
from Agrilink Foods, Inc. to Birds Eye Foods, Inc.
Section 4.17(b) of the Indenture provides that a supplemental indenture
be entered into by a Subsidiary of the Issuer when a new Subsidiary of the
Issuer is created which is required to provide an additional note guarantee for
the Notes. The Additional Note Guarantor is a wholly owned Subsidiary of the
Issuer required to become a Guarantor under Section 4.17 of the Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE AND NOTE GUARANTEE
WITNESSETH:
For and in consideration of the premises, it is 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. NOTE GUARANTEE. Pursuant to Section 11.07 of the Indenture,
the Additional Note Guarantor hereby unconditionally guarantees, as principal
obligor and not only as a surety, to the Holders of the Notes the cash payments
in United States dollars of principal of, premium, if any, and interest (and
Additional Interest, if any) on the Notes in the amounts and at the times when
due and interest on the overdue principal, premium, if any, and interest (and
Additional Interest, if any), if any, of the Notes, if lawful, and the payment
or performance of all other obligations of the Issuer under the Indenture or the
Notes, to the Holders of the Notes and the Trustee, all in accordance with and
subject to the terms and limitations of the Notes, Articles 10 and 11 of the
Indenture (the "Note Guarantee"). This Note Guarantee is effective in accordance
with Article 11 of the Indenture and its terms shall be evidenced therein. The
validity and enforceability of this Note Guarantee shall not be affected by the
fact that it is not affixed to any particular Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Note Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture, and are expressly subordinated in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of the Additional Note Guarantor to the extent set forth in
Article 10 of the Indenture, and reference is hereby made to the Indenture for
the precise terms of this Note Guarantee and all of the other provisions of the
Indenture to which this Note Guarantee relates.
THIS SUPPLEMENTAL INDENTURE INCLUDING THIS NOTE GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
This Note Guarantee is subject to release upon the terms set forth in
the Indenture.
Section 2. Miscellaneous.
(a) On and after March 1, 2003, 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 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.
(d) 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.
(e) 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.
(f) Each of the Issuer and the Trustee hereby confirms and
reaffirms the Indenture in every particular respect except as amended by this
Supplemental Indenture.
(g) 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.
(h) 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.
(i) Nothing in this Supplemental Indenture, express or
implied, shall give to any Person, other than the Additional Note Guarantor and
the Holders, any benefit or any legal or equitable right, remedy or claim under
the Indenture.
(j) 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.
IN WITNESS WHEREOF, the Additional Note Guarantor has caused this
Second Supplemental Indenture to be duly executed.
Date: March 1, 2003
BIRDS EYE FOODS, INC.
(Issuer)
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, CFO, and
Secretary
BANK OF NEW YORK
(Trustee)
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Assistant Vice President
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GLK HOLDINGS, INC.
(Additional Note Guarantor)
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary