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EXHIBIT 4(m)
XXXXX SUPERMARKETS, INC., as Issuer,
XXXXX DRUGS, INC.,
XXXXX VILLAGE PANTRIES, INC.
XXXXX REALTY, INC.,
MAR PROPERTIES, INC.,
MARLEASE, INC.,
XXXXX INTERNATIONAL, INC.,
XXXXX CULTURAL GROUP, INC.,
LIMITED HOLDINGS, INC.,
CONVENIENCE STORE DISTRIBUTING COMPANY,
XXXXX P.Q., INC.,
TEMPORARY SERVICES, INC.,
NORTH XXXXXX DEVELOPMENT CORPORATION,
CONTRACT TRANSPORT, INC.,
PANTRY PROPERTY, LLC,
MS PROPERTY, LLC,
CF PROPERTY, LLC,
BF PROPERTY, LLC,
XxXXXXXX, LLC,
CRYSTAL FOOD SERVICES, LLC,
LOBILL FOODS, LLC,
CONTRACT TRANSPORT, LLC,
XXXXX SUPERMARKETS, LLC,
VILLAGE PANTRY, LLC,
XXXXX DRUGS, LLC,
TRADEMARK HOLDINGS, INC.,
XXXXX CLEARING HOUSE, LLC,
CONVENIENCE STORE DISTRIBUTING COMPANY, LLC,
CONVENIENCE STORE TRANSPORTATION COMPANY, LLC,
CRYSTAL FOOD MANAGEMENT SERVICES, LLC,
XXXXXXXXXXX FOODS, LLC,
MD PROPERTY, LLC,
LB PROPERTY, LLC,
MCN PROPERTY, LLC,
CSD PROPERTY, LLC and
FLORAL PROPERTY, LLC,
as Existing Guarantors,
X. X. XXXX & SONS, INC.,
as an Additional Guarantor, and
STATE STREET BANK AND TRUST COMPANY, as Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of June 22, 2000
$150,000,000
8-7/8% Senior Subordinated Notes due 2007
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THIRD SUPPLEMENTAL INDENTURE, dated as of June 22, 2000, among Xxxxx
Supermarkets, Inc., an Indiana corporation (the "Company"), Xxxxx Drugs, Inc.,
an Indiana corporation, Xxxxx Village Pantries, Inc., an Indiana corporation,
Xxxxx Realty, Inc., an Indiana corporation, Mar Properties, Inc., an Indiana
corporation, Marlease, Inc., an Indiana corporation, Xxxxx International, Inc.,
an Indiana corporation, Xxxxx Cultural Group, Inc., an Indiana corporation,
Limited Holdings, Inc., an Indiana corporation, Convenience Store Distributing
Company, an Ohio partnership, Xxxxx P.Q., Inc., an Indiana corporation,
Temporary Services, Inc.,, an Indiana corporation, North Xxxxxx Development
Corporation, an Indiana corporation, Contract Transport, Inc., an Indiana
corporation, Crystal Food Services, LLC, an Indiana limited liability company,
LoBill Foods, LLC, an Indiana limited liability company, Contract Transport,
LLC, an Indiana limited liability company, Xxxxx Supermarkets, LLC, an Indiana
limited liability company, Village Pantry, LLC, an Indiana limited liability
company, Xxxxx Drugs, LLC, an Indiana limited liability company, Trademark
Holdings, Inc., a Delaware corporation, and Xxxxx Clearing House, LLC, an
Indiana limited liability company, Convenience Store Distributing Company, LLC,
an Indiana limited liability company, Convenience Store Transportation Company,
LLC, an Indiana limited liability company, Crystal Food Management Services,
LLC, an Indiana limited liability company and Xxxxxxxxxxx Foods, LLC, an Indiana
limited liability company, Pantry Property, LLC, an Indiana limited liability
company, MS Property, LLC, an Indiana limited liability company, CF Property,
LLC, an Indiana limited liability company, MD Property, LLC, an Indiana limited
liability company, LB Property, LLC, an Indiana limited liability company,
XxXxxxxx, LLC, an Indiana limited liability company, MCN Property, LLC, an
Indiana limited liability company, BF Property, LLC, an Indiana limited
liability company, CSD Property, LLC, an Indiana limited liability company, and
Floral Property, LLC, an Indiana limited liability company (collectively, the
"Existing Guarantors"); X. X. Xxxx & Sons, Inc. (the "Additional Guarantor", and
with the "Existing Guarantors", the "Guarantors"), and State Street Bank and
Trust Company, a Massachusetts trust company, as trustee (the "Trustee").
WHEREAS, the Company and the certain guarantors executed and delivered
to the Trustee the Indenture dated August 5, 1997 (the "Original Indenture")
among the Company, the Guarantors named therein and the Trustee; and
WHEREAS, the Company and certain guarantors executed and delivered to
the Trustee the First Supplemental Indenture dated December 31, 1997 (the "First
Supplemental Indenture");
WHEREAS, the Company and the Existing Guarantors executed and delivered
to the Trustee the Second Supplemental Indenture dated January 29, 2000 (the
"Second Supplemental Indenture"; the Original Indenture as amended by the First
Supplemental Indenture and the Second Supplemental Indenure, the "Indenture");
each capitalized terms used herein which is not defined in this Third
Supplemental Indenture shall have the meanings given to them in the Indenture);
WHEREAS, the Additional Guarantor has become a Restricted Subsidiary
since the date of the Indenture as supplemented;
WHEREAS, the Additional Guarantor desires to become a Guarantor under
the Indenture, as amended and supplemented hereby;
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WHEREAS, the addition of the Additional Guarantor under the Indenture
will not adversely affect the interest of the Holders;
WHEREAS, the provisions of Section 1014 of the Indenture is ambiguous
and unclear and the Company and the Guarantors desire to correct such ambiguity;
WHEREAS, the provisions of Section 901 of the Indenture permit the
Indenture to be amended without the consent of the holders of the Securities
under certain circumstances, including the curing of an ambiguity;
WHEREAS, neither the addition of aditional guarantors nor the correction
of the ambiguity in Section 1014 will adversely affect the interest of the
Holders;
WHEREAS, all things necessary to make this Third Supplemental Indenture
a valid agreement of the Company, the Existing Guarantors, the Additional
Guarantor and the Trustee have been done;
NOW THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH, that, for
and in consideration of the premises, the Company, the Existing Guarantors and
the Additional Guarantor agree with the Trustee as follows:
ARTICLE ONE
AMENDMENT TO INDENTURE
Section 101. Amendment of Section 1014.
Section 1014(b) is deleted in its entirety and replaced with a new
Section 1014(b) as follows:
(b) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to guarantee, assume or in any other manner
become liable with respect to any Indebtedness of the Company unless (i)
such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to the Indenture providing for a Guarantee of the
Securities, on the same terms as the guarantee of such Indebtedness or
(ii) such Restricted Subsidiary has theretofore delivered such a
Guarantee, except that (A) such guarantee need not be secured unless
required pursuant to Section 1011 hereof, (B) if such Indebtedness is by
its terms Senior Indebtedness, any such assumption, guarantee or other
liability of such Restricted Subsidiary with respect to such
Indebtedness shall be senior to such Restricted Subsidiary's Guarantee
of the Securities to the same extent as such Senior Indebtedness is
senior to the Securities and (C) if such Indebtedness is by its terms
expressly subordinated to the Securities any such assumption, guarantee
or other liability of such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated to such Restricted Subsidiary's
Guarantee of the Securities at least to the same extent as such
Indebtedness is subordinated to the Securities.
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ARTICLE TWO
ADDITIONAL COVENANTS
Section 201. Additional Covenants.
In addition to, and not in substitution of, the covenants currently in
the Indenture, each of the Guarantors covenants to the Trustee for the benefit
of the Holders as follows:
(a) At any time after all or any part of the Indenture Obligations have
become due and payable (by acceleration or otherwise), the Trustee and each
Holder may, without notice to the Guarantors and regardless of the acceptance of
any security or collateral for the payment hereof, appropriate and apply toward
the payment of all or any part of the Indenture Obligations (a) any indebtedness
due or to become due from from such Holder or Trustee, as the case may be, to
any of the Guarantors, and (b) any moneys, credits or other property belonging
to any of the Guarantors held by or coming into the possession of such Holder or
the Trustee.
(b) Each Guarantor agrees that any and all claims of such Guarantor
against the Company, or against any of its properties, shall be subordinate and
subject in right of payment to the prior payment of the Indenture Obligations.
Notwithstanding any right of a Guarantor to ask, demand, xxx for, take or
receive any payment from the Company, all rights, liens and security interests
of such Guarantor, whether now or hereafter arising and howsoever existing, in
any assets of the Company shall be and hereby are subordinated to the rights of
the Holders and the Trustee in those assets. No Guarantor shall have any right
to possession of any such asset or to foreclose any such lien or security
interest, whether by judicial action or otherwise, unless and until all of the
Indenture Obligations shall have been fully paid and satisfied. If all or any
part of the assets of the Company, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of the Company, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding, or if the business of the
Company is dissolved, or if substantially all of the assets of the Company are
sold, then, and in any such event, any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be payable
or deliverable upon or with respect to any indebtedness of the Company to any
Guarantor shall be paid or delivered directly to the Trustee for application on
the Indenture Obligations due or to become due until such shall have first been
fully paid and satisfied. Each Guarantor irrevocably authorizes and empowers the
Trustee to demand, xxx for, collect and receive every such payment or
distribution and give acquittance therefor and to make and present for and on
behalf of such Guarantor such proofs of claim and take such other action, in the
Trustee's own name or in the name of such Guarantor or otherwise, as the Trustee
may deem necessary or advisable for the enforcement of the Guarantee. The
Trustee may vote such proofs of claim in any such proceeding, receive and
collect any and all dividends or other payments or disbursements made thereon in
whatever form the same may be paid or issued and apply the same on account of
any of the Indenture Obligations. Should any payment, distribution, security or
instrument or proceeds thereof be received by a Guarantor upon or with respect
to any Indebtedness of the Company to such Guarantor prior to the satisfaction
of all of the Indenture Obligations, such Guarantor shall receive and hold the
same in trust, as trustee, for the benefit of the Holders and shall forthwith
deliver the same to the Trustee, for the benefit of the Holders, in precisely
the form received (except for the endorsement or assignment or such Guarantor
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where necessary), for application to any of the Indenture Obligations, and until
so delivered, the same shall be held in trust by such Guarantor as the property
of the Holders. If a Guarantor fails to make any such endorsement or assignment
to the Trustee, the Trustee is hereby irrevocably authorized to make the same.
Each Guarantor agrees that until the Indenture Obligations have been paid in
full and satisfied, such Guarantor will not assign or transfer to any Person any
claim that such Guarantor has or may have against the Company.
ARTICLE THREE
DELIVERY OF ADDITIONAL GUARANTEE
Section 301. Execution of Guaranty.
Simultaneously with the execution and delivery of this Third
Supplemental Indenture, the Additional Guarantor shall execute and deliver to
the Trustee a Guarantee in the form described in Section 205 of the Indenture.
Section 302. Additional Guarantor is Guarantor Under Indenture and Securities.
The Additional Guarantor hereby expressly assumes each of the
obligations of a Guarantor, and upon execution of the Guarantee described above
and this Third Supplemental Indenture, the defined term "Guarantor" in the
Indenture shall include the Additional Guarantor and the defined term
"Guarantee" in the Indenture shall include the guarantee executed pursuant to
Section 301 of this Third Supplemental Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Counterpart Originals.
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.
Section 402. Governing Law.
THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
Section 403. Effectiveness.
The provisions of this Third Supplemental Indenture will take effect
immediately upon its execution and delivery to the Trustee.
[remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the date and year first
written above.
XXXXX SUPERMARKETS, INC.
XXXXX DRUGS, INC.
XXXXX REALTY, INC.
MAR PROPERTIES, INC.
MARLEASE, INC.
XXXXX INTERNATIONAL, INC.
XXXXX CULTURAL GROUP, INC.
LIMITED HOLDINGS, INC.
XXXXX P.Q., INC.
TEMPORARY SERVICES, INC.
NORTH XXXXXX DEVELOPMENT
CORPORATION
CONTRACT TRANSPORT, INC.
TRADEMARK HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
CRYSTAL FOOD SERVICES, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
LOBILL FOODS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
CONTRACT TRANSPORT, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
XXXXX SUPERMARKETS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
VILLAGE PANTRY, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
XXXXX DRUGS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
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XXXXX CLEARINGHOUSE, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
CONVENIENCE STORE DISTRIBUTING COMPANY, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
CONVENIENCE STORE TRANSPORTATION
COMPANY, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
CRYSTAL FOOD MANAGEMENT SERVICES, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
XxXXXXXX, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
XXXXXXXXXXX FOODS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President
PANTRY PROPERTY, LLC
By: VILLAGE PANTRY, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
MS PROPERTY, LLC
By: XXXXX SUPERMARKETS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
CF PROPERTY, LLC
By: CRYSTAL FOOD SERVICES, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
MD PROPERTY, LLC
By: XXXXX DRUGS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
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LB PROPERTY, LLC
By: LOBILL FOODS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
MCN PROPERTY, LLC
By: XxXXXXXX, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
BF PROPERTY, LLC
By: XXXXXXXXXXX FOODS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
CSD PROPERTY, LLC
By: CONVENIENCE STORE DISTRIBUTING
COMPANY, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
FLORAL PROPERTY, LLC
By: XXXXX SUPERMARKETS, LLC
By: Xxxxx Supermarkets, Inc., its
Chief Operating Officer
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
XXXXX VILLAGE PANTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
CONVENIENCE STORE DISTRIBUTING COMPANY
By: Xxxxx Village Pantries, Inc., its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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Attest: /s/ X. Xxxxxxxx Butt
--------------------------------
X. Xxxxxxxx Butt, Secretary
Xxxxx Supermarkets, Inc.
Xxxxx Drugs, Inc.
Xxxxx Village Pantries, Inc.
Xxxxx Realty, Inc.
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Mar Properties, Inc.
Marlease, Inc.
Xxxxx International, Inc.
Xxxxx Cultural Group, Inc.
Limited Holdings, Inc.
Xxxxx Village Pantries, Inc., as
general partner of Convenience
Store Distributing Company
Xxxxx P.Q., Inc.
Temporary Services, Inc.
North Xxxxxx Development Corporation
Contract Transport, Inc.
Xxxxx Supermarkets, Inc.,
as Chief Operating Officer of
Crystal Food Services, LLC
LoBill Foods, LLC
Contract Transport, LLC
Xxxxx Supermarkets, LLC
Village Pantry, LLC
Xxxxx Drugs, LLC
Xxxxx Clearing House, LLC
Convenience Store Distributing Company, LLC
Convenience Store Transportation Company, LLC
Crystal Food Management Services, LLC
Xxxxxxxxxxx Foods, LLC
XxXxxxxx, LLC
Attest: /s/ X. Xxxxxxxx Butt
--------------------------------------
X. Xxxxxxxx Butt, Assistant Secretary
Trademark Holdings, Inc.
X. X. XXXX & SONS, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx, President
Chief Executive Officer
Attest: /s/ Xxxxx X. Xxxx
--------------------------------------
Xxxxx X. Xxxx, Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
