FIRST SUPPLEMENTAL INDENTURE OF TRUST
among
XXXX-XXXXX COMPANY,
as Issuer,
THE SUBSIDIARY GUARANTORS,
named therein as Guarantors,
XXXXXXXX'X DIVERSIFIED CORPORATION,
as an Additional Guarantor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
Dated as of June 10, 1999
Relating to:
$165,000,000
8 1/2% Senior Subordinated Notes due 2008, Series A
8 1/2% Senior Subordinated Notes due 2008, Series B
THIS FIRST SUPPLEMENTAL INDENTURE OF TRUST is made and entered into as
of June 10, 1999 among Xxxx-Xxxxx Company, a Delaware corporation (the
"COMPANY"), the Subsidiary Guarantors named herein (the "GUARANTORS"), as
guarantors, Xxxxxxxx'x Diversified Corporation, a Wisconsin corporation (the
"ADDITIONAL GUARANTOR"), and U.S. Bank Trust National Association, as trustee
(the "TRUSTEE").
RECITALS
The Company, the Guarantors and the Trustee are parties to the certain
Indenture dated as of April 24, 1998 (the "ORIGINAL INDENTURE").
The Company has acquired all of the outstanding capital stock of the
Additional Guarantor.
Pursuant to Section 10.18 and 12.04 of the Original Indenture, and
pursuant to this First Supplemental Indenture, the Additional Guarantor has
executed this First Supplemental Indenture and a Guarantee substantially in the
form entered into by the Guarantors, as set forth in Exhibit A hereto (the
"GUARANTEE").
The Company, the Guarantors and the Additional Guarantor have duly
executed this First Supplemental Indenture, and in the case of the Additional
Guarantor, its Guarantee.
All things necessary have been done to constitute this First
Supplemental Indenture, when executed by the Company, the Guarantors and the
Additional Guarantor, and the Guarantee when executed by the Additional
Guarantor, the respective valid obligations of each of them.
NOW THEREFORE, the parties hereto intending to be legally bound hereby
and in consideration of the premises, do hereby agree, for the mutual and
proportionate benefit of all Holders (as defined in the Indenture) of the Notes
(as defined in the Indenture) as follows:
Section 1. DEFINITIONS. All terms capitalized but not otherwise defined
in this First supplemental Indenture shall have the meanings assigned to such
terms in the Original Indenture.
Section 2. EFFECT OF THIS FIRST SUPPLEMENTAL INDENTURE.
(A) Except as expressly supplemented or amended hereby, all of the
terms and provisions of the Original Indenture shall remain in full force and
effect.
(B) To the extent of any inconsistency between the terms and provisions
of this First Supplemental Indenture and the terms and provisions of the
Original Indenture, this First Supplemental Indenture shall control.
(C) This First Supplemental Indenture shall take effect as of June 10,
1999.
(D) The rules of construction stated in Section 1.03 of the Original
Indenture shall apply to this First Supplemental Indenture.
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Section 3. GUARANTEE OF ADDITIONAL GUARANTOR. The Additional Guarantor
agrees to make and deliver to the Trustee a Guarantee in the form of Exhibit A
hereto. Effective upon the effective date of such Guarantee, the Additional
Guarantor shall be a Guarantor (as defined in the Original Indenture) for all
purposes, and shall be subject to the provisions (including the representation
and warranties) of the Original Indenture as a Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be executed as of the day and year first above
written.
COMPANY: XXXX-XXXXX COMPANY
By:
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Title:
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GUARANTORS: XXXX-XXXXXX COMPANY
By:
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Title:
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X.X. XXXXXX COMPANY
By:
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Title:
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SUPER FOOD SERVICES, INC.
By:
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Title:
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XXXXXXX TRANSPORTATION
SERVICES, INC.
By:
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Title:
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GTL TRUCK LINES, INC.
By:
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Title:
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PIGGLY WIGGLY NORTHLAND
CORPORATION
By:
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Title:
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XXXXXXXX DAIRY OF THE BLACK
HILLS, INC.
By:
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Title:
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NEBRASKA DAIRIES, INC.
By:
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Title:
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ADDITIONAL GUARANTOR: XXXXXXXX'X DIVERSIFIED
CORPORATION
By:
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Title:
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TRUSTEE: U.S. BANK TRUST NATIONAL
ASSOCIATION
By:
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Title:
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EXHIBIT A
GUARANTEE
For value received, the undersigned hereby fully and unconditionally
guarantees to the Holder of each Note the cash payments in United States dollars
of principal of, premium, if any, and interest on such Note in the amounts and
at the time when due and interest on the overdue principal, premium, if any, and
interest, if any, on such Note, if lawful, and the payment or performance of all
other obligations of the Company under the Indenture or the Notes, to the Holder
of any such Note and the Trustee, all in accordance with and subject to the
terms and limitations of such Note, Article Twelve of the Indenture and this
Guarantee. This Guarantee will become effective as of the date hereof in
accordance with Article Twelve of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of this Guarantee shall not be affected
by the fact that it is not affixed to any particular Note. Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of April 24, 1998, by and among, INTER ALIA, Xxxx Xxxxx
Company, the undersigned and U.S. Bank Trust National Association, as Trustee,
as amended or supplemented (including as amended and supplemented by that First
Supplemental Indenture dated as of June 10, 1999) (the "INDENTURE").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Twelve of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW. THE GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THE INDENTURE, THE NOTES OR THIS NOTE GUARANTEE.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
IN WITNESS WHEREOF, the undersigned Guarantor has caused this Guarantee
to be duly executed.
Dated: June 10, 1999
XXXXXXXX'X DIVERSIFIED CORPORATION
By:
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Title:
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