EXHIBIT 4.12
XXXX FOOD COMPANY, INC.,
as Issuer,
MIRADERO FISHING COMPANY, INC.,
as New Subsidiary Guarantor
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 25, 2003
Supplementing the Trust Indenture Dated as of May 29, 2003
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 25, 2003, by and among
XXXX FOOD COMPANY, INC., a corporation duly incorporated and existing under the
laws of the State of Delaware (the "Company"), having its principal office at
Xxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000, MIRADERO FISHING COMPANY,
INC., a corporation duly incorporated and existing under the laws of the
Commonwealth of Puerto Rico (the "Additional Subsidiary Guarantor"), having its
principal office at Banco Popular Building, X.X. Xxx 0000, Xxx Xxx Xxxx, Xxxxxx
Xxxx 00000, the guarantors listed on Exhibit A hereto (the "Subsidiary
Guarantors") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, having an office at 000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 (the "Trustee"), as Trustee under the Indenture, dated
as of May 29, 2003 (the "Original Indenture"), which Original Indenture was
executed and delivered by the Company to the Trustee to secure the payment of
senior debt securities issued or to be issued under and in accordance with the
provisions of the Original Indenture, reference to which Original Indenture is
hereby made, this instrument (hereinafter called the "Supplemental Indenture")
being supplemental thereto;
Capitalized terms used herein and not otherwise defined herein shall have
the meanings ascribed thereto in the Original Indenture;
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the Original Indenture (together with this Supplemental Indenture, the
"Indenture"), providing for the issuance by the Company from time to time of its
unsecured debt securities to be issued in one or more series (in the Original
Indenture and herein called the "Securities");
WHEREAS, pursuant to the Original Indenture, the Company issued
$400,000,000 aggregate principal amount of its 7-1/4% Debentures due 2010 (the
"2010 Notes");
WHEREAS, as of the date of this Supplemental Indenture, there are
$400,000,000 aggregate principal amount of 2010 Notes outstanding;
WHEREAS, the Additional Subsidiary Guarantor intends to guarantee the 2010
Notes under the Indenture and the issuance of guarantees has been authorized by
resolutions adopted by the Board of Directors of the Additional Subsidiary
Guarantor;
WHEREAS, as permitted by Section 9.1 of the Original Indenture, the
Company, in the exercise of the power and authority conferred upon and reserved
to it under the provisions of the Original Indenture, has duly determined to
make, execute and deliver to the Trustee this Supplemental Indenture to the
Original Indenture in order to provide for the guarantee of the 2010 Notes by
the Additional Subsidiary Guarantor; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
supplement to the Original Indenture according to its terms and the terms of the
Original Indenture have been done.
2
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
The Company covenants and agrees to and with the Trustee and its
successors in said trust under the Original Indenture, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Section References. Each reference to a particular section set forth
in this Supplemental Indenture shall, unless the context otherwise requires,
refer to this Supplemental Indenture.
ARTICLE TWO
AGREEMENT TO GUARANTEE
Section 201 Additional Subsidiary Guarantor. The Additional Subsidiary
Guarantor, by its signature below, agrees to become a Subsidiary Guarantor under
the Indenture with the same force and effect as if originally named therein as a
Subsidiary Guarantor. The Additional Subsidiary Guarantor hereby agrees to all
the terms and provisions of the Indenture applicable to it as a Subsidiary
Guarantor thereunder and each reference to a "Subsidiary Guarantor" in the
Indenture shall be deemed to include the Additional Subsidiary Guarantor.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 301 Confirmation of Original Indenture. The Original Indenture, as
heretofore supplemented and amended by this Supplemental Indenture, is in all
respects ratified and confirmed, and this Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument.
Section 302 Governing Law. This Supplemental Indenture and the 2010 Notes shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made or instruments entered into and, in each
case, performed in said state.
Section 303 Separability. In case any provision in this Supplemental Indenture
or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions of this Supplemental Indenture or the 2010 Notes shall not in any way
be affected or impaired thereby.
Section 304 Counterparts. This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same document.
Section 305 Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
XXXX FOOD COMPANY, INC.
By: /s/
-----------------------------------
Name:
Title:
MIRADERO FISHING COMPANY, INC.
By: /s/
-----------------------------------
Name:
Title:
THE GUARANTORS LISTED ON EXHIBIT A HERETO
By: /s/
-----------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as Trustee
By: /s/
-----------------------------------
Name:
Title:
EXHIBIT A
GUARANTORS
Calazo Corporation
AG 1970, Inc.
AG 1971, Inc.
AG 1972, Inc.
Alyssum Corporation
Xxxxxxx Xxxxxxxxx Corporation
Xxx Xxxxx, Inc.
Calicahomes, Inc.
California Polaris, Inc.
Dole ABPIK, Inc.
Dole Arizona Dried Fruit and Nut Company
Dole Carrot Company
Dole Citrus
Dole DF&N, Inc.
Dole Dried Fruit and Nut Company, a California general partnership
Dole Farming, Inc.
Dole Fresh Vegetables, Inc.
Xxxx Xxxxxx, Inc.
Dole Visage, Inc.
E. T. Wall Company
Earlibest Orange Association, Inc.
Fallbrook Citrus Company, Inc.
Lindero Headquarters Company, Inc.
Lindero Property, Inc.
Oceanview Produce Company
Prairie Vista, Inc.
Royal Packing Co.
Xxxxxxx Terminal Co.
Bananera Antillana (Colombia), Inc.
Clovis Citrus Association
Delphinium Corporation
Dole Europe Company
Xxxx Foods Flight Operations, Inc.
Xxxx Fresh Flowers, Inc.
Dole Northwest, Inc.
Dole Sunfresh Express, Inc.
Standard Fruit and Steamship Company
Standard Fruit Company
Sun Country Produce, Inc.
West Foods, Inc.
Cool Advantage, Inc.
Cool Care, Inc.
A-1
Flowernet, Inc.
Saw Grass Transport, Inc.
Blue Anthurium, Inc.
Cerulean, Inc.
Dole Diversified, Inc.
Dole Land Company, Inc.
Dole Packaged Foods Corporation
La Petite d'Agen, Inc.
Malaga Company, Inc.
M K Development, Inc.
Muscat, Inc.
Oahu Transport Company, Limited
Wahiawa Water Company, Inc.
Waialua Sugar Company, Inc.
Zante Currant, Inc.
Diversified Imports Co.
Dole Assets, Inc.
Dole Fresh Fruit Company
Dole Holdings Inc.
Dole Logistics Services, Inc.
Dole Ocean Cargo Express, Inc.
Dole Ocean Liner Express, Inc.
Renaissance Capital Corporation
Sun Giant, Inc.
DNW Services Company
Pacific Coast Truck Company
Pan-Alaska Fisheries, Inc.
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