Exhibit 4.2.1
XXXX-XXXXX STORES, INC.,
Issuer
and
ASTOR PRODUCTS, INC.
CRACKIN' GOOD, INC.
DEEP SOUTH PRODUCTS, INC.
XXXXX PACKERS, INC.
MONTEREY CANNING CO.
SAVE RITE GROCERY WAREHOUSE, INC.
XXXX-XXXXX XXXXXXXXX, INC.
XXXX-XXXXX LOGISTICS, INC.
XXXX-XXXXX LOUISIANA, INC.
XXXX-XXXXX XXXXXXXXXX, INC.
XXXX-XXXXX PROCUREMENT, INC.
XXXX-XXXXX XXXXXXX, INC.,
XXXX-XXXXX SUPERMARKETS, INC.
Guarantors
to
WILMINGTON TRUST COMPANY,
Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of January 10, 2002
$300,000,000
8 7/8% Senior Notes due 2008
Supplemental to Indenture dated as of December 26, 2000, as
Supplemented by First Supplemental Indenture dated as of March 29, 2001
SECOND SUPPLEMENTAL INDENTURE, dated as of January 10, 2002 (the
"Second Supplemental Indenture"), among XXXX-XXXXX STORES, INC., a Florida
corporation (hereinafter called the "Company"), each of the GUARANTORS signatory
hereto and WILMINGTON TRUST COMPANY, as trustee under the Base Indenture
referred to below (hereinafter called the "Trustee").
WHEREAS, the Company and certain of the Guarantors entered into an
Indenture dated as of December 26, 2000, and a First Supplemental Indenture
dated as of March 29, 2001 (collectively, the "Base Indenture," all capitalized
terms used in this Second Supplemental Indenture and not otherwise defined being
used as defined in the Base Indenture) (Base Indenture and Second Supplemental
Indenture are hereinafter collectively called the "Indenture") with the Trustee,
for the purposes of issuing its senior unsecured debentures, notes or other
evidences of indebtedness, unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors of the Company; and
WHEREAS, Section 1018(1) of the Base Indenture provides that the
Company will not permit any Restricted Subsidiary (which is not a Guarantor) to
guarantee any Indebtedness of the Company unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Guarantee of the Securities on the same terms as the guarantee
of such Indebtedness; and
WHEREAS, Save Rite Grocery Warehouse, Inc. and Xxxx-Xxxxx Supermarkets,
Inc., each of which is a Restricted Subsidiary, desire to guarantee certain
Indebtedness of the Company (the "Other Indebtedness") simultaneously with the
delivery of this Second Supplemental Indenture; and
WHEREAS, Section 901(13) of the Base Indenture provides that without
the consent of the Holders of the securities of any series issued under the Base
Indenture, the Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee may enter into one or more indentures supplemental
to the Base Indenture to, among other things, add new Guarantors; and
WHEREAS, the entry into this Second Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the Base
Indenture; and
WHEREAS, Save Rite Grocery Warehouse, Inc. and Xxxx-Xxxxx Supermarkets,
Inc. each has duly authorized the issuance of a guarantee of the Securities, and
to provide therefor, each of such Guarantors has duly authorized the execution
and delivery of this Second Supplemental Indenture; and
WHEREAS, all things necessary have been done to make this Second
Supplemental Indenture, when executed and delivered by the Company and the
Guarantors, including Save Rite Grocery Warehouse, Inc. and Xxxx-Xxxxx
Supermarkets, Inc., the legal, valid and binding agreement of the Company and
the Guarantors, in accordance with its terms.
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NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
SECTION 1. In accordance with the terms of the Base Indenture, by its
signature below Save Rite Grocery Warehouse, Inc. and Xxxx-Xxxxx Supermarkets,
Inc. each hereby irrevocably agrees to become a Guarantor under the Indenture,
and does hereby guarantee the Guaranteed Obligations, with the same force and
effect as if it were an original signatory to the Base Indenture as a Guarantor,
and each of the undersigned hereby agrees to be bound by and comply with all of
the terms and provisions of the Indenture applicable to it as a Guarantor. In
furtherance of, but in no way limiting, the foregoing, Save Rite Grocery
Warehouse, Inc. and Xxxx-Xxxxx Supermarkets, Inc. each:
(a) is simultaneously herewith executing and delivering the Subsidiary
Guarantee attached to this Second Supplemental Indenture;
(b) agrees to be bound by the provisions of Sections 1602 and 1603 of
the Indenture; and
(c) agrees that each reference to a "Guarantor" and/or "Guarantors" in
the Indenture shall be deemed to include it.
SECTION 2. Save Rite Grocery Warehouse, Inc. and Xxxx-Xxxxx
Supermarkets, Inc. each hereby represents and warrants:
(a) that this Second Supplemental Indenture has been duly authorized,
executed and delivered by it and that this Second Supplemental
Indenture, the Indenture and its Subsidiary Guarantee provided hereby
each constitute the legal, valid and binding obligation of each of
them, enforceable against it in accordance with its terms; and
(b) the Subsidiary Guarantees by Save Rite Grocery Warehouse, Inc. and
Xxxx-Xxxxx Supermarkets, Inc. provided by this Second Supplemental
Indenture are on the same terms as the guarantees of the Other
Indebtedness by such Persons.
SECTION 3. Each of the undersigned consents to the execution and
delivery of this Second Supplemental Indenture, agrees that the Base Indenture,
as supplemented and amended by this Second Supplemental Indenture, is in all
respects ratified and confirmed, and agrees that the Base Indenture and this
Second Supplemental Indenture shall be read, taken and construed as one and the
same instrument. Each of the undersigned agrees that all provisions included in
this Second Supplemental Indenture supersede any similar provisions included in
the Base Indenture unless not permitted by law.
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SECTION 4. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Second
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 5. All covenants and agreements in this Second Supplemental
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 6. In case any provision in this Second Supplemental Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions (or of the other series
of Securities) shall not in any way be affected or impaired thereby.
SECTION 7. Nothing in this Second Supplemental Indenture, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, and the Holders of the Securities, any benefit or any
legal or equitable right, remedy or claim under this Second Supplemental
Indenture.
SECTION 8. This Second Supplemental Indenture and each Security shall
be deemed to a contract made under the laws of the State of New York and this
Second Supplemental Indenture and each such Security shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. All terms used in this Second Supplemental Indenture not
otherwise defined herein that are defined in the Base Indenture shall have the
meanings set forth therein.
SECTION 10. This Second Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and attested, all as of the day and
year first above written.
Attest: XXXX-XXXXX STORES, INC.
as Issuer
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
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Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
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Attest: ASTOR PRODUCTS, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
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Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: CRACKIN' GOOD, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
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Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: DEEP SOUTH PRODUCTS, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
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Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXXX PACKERS, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
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Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: MONTEREY CANNING CO.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
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Attest: SAVE RITE GROCERY WAREHOUSE,
INC. as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
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Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX XXXXXXXXX, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX LOGISTICS, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX LOUISIANA, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX XXXXXXXXXX, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
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Attest: XXXX-XXXXX PROCUREMENT, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX XXXXXXX, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX SUPERMARKETS, INC.
as Guarantor
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ---------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: WILMINGTON TRUST COMPANY,
as Trustee,
/s/ Xxxxxx X. Xxxxx By: /s/ W. Xxxxxx Xxxxxx, II
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Name: (Xxxxxx X. Xxxxx) Name: (W. Xxxxxx Xxxxxx, II)
Title: Financial Services Officer Title: Financial Services Officer
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STATE OF FLORIDA )
) ss.:
COUNTY OF XXXXX )
On the 9th day of January, 2002, before me personally came /s/ X. Xxxxx
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Zahra, Jr., to me known, who, being by me duly sworn, did depose and say that he
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is Senior Vice President General Counsel of XXXX-XXXXX STORES, INC., ASTOR
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PRODUCTS, INC., CRACKIN' GOOD, INC., DEEP SOUTH PRODUCTS, INC., XXXXX PACKERS,
INC., MONTEREY CANNING CO., SAVE RITE GROCERY WAREHOUSE, INC., XXXX-XXXXX
XXXXXXXXX, INC., XXXX-XXXXX LOGISTICS, INC., XXXX-XXXXX LOUISIANA, INC.,
XXXX-XXXXX XXXXXXXXXX, INC., XXXX-XXXXX PROCUREMENT, INC., XXXX-XXXXX XXXXXXX,
INC. and XXXX-XXXXX SUPERMARKETS, INC., each of which are corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/Xxxxxx X. Xxxxx
------------------
Name:
Notary Public
State of
My Commission expires on
8
STATE OF )
) ss.:
COUNTY OF )
On the 10th day of January, 2002, before me personally came /s/ X. Xxxxxx
---- -----------
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he/she
------
is Financial Services Officer of WILMINGTON TRUST COMPANY, one of the
----------------------------
corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he/she signed his/her name
thereto by like authority.
/s/Xxxxxxxxx X. Xxxxxxxxx
-------------------------
Name:
Notary Public
State of
My Commission expires on
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SUBSIDIARY GUARANTEE
For value received, each of the Guarantors named (or deemed herein to be
named) below hereby absolutely, fully and unconditionally and irrevocably
guarantees, jointly and severally with each other Guarantor, to the Holder of
this Security the payment of principal of, and premium, if any, and interest on
this Security upon which these Subsidiary Guarantees are endorsed in the amounts
and at the time when due and payable, whether by declaration thereof, or
otherwise, and interest on the overdue principal and interest, if any, of this
Security, if lawful, and the payment or performance of all other obligations of
the Company under the Indenture or the Securities, to the Holder of this
Security and the Trustee, all in accordance with and subject to the terms and
limitations of this Security and the Indenture. This Subsidiary Guarantee will
not become effective until the Trustee duly executes the certificate of
authentication on this Security. This Subsidiary Guarantee shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law principles thereof.
IN WITNESS WHEREOF, each of the Guarantors has caused this Subsidiary
Guarantee to be duly executed.
Attest: SAVE RITE GROCERY
WAREHOUSE, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
Attest: XXXX-XXXXX SUPERMARKETS, INC.
/s/ Xxxxxx X. Xxxxx By: /s/ E. Xxxxx Xxxxx, Jr.
--------------- ------------------------
Name: (Xxxxxx X. Xxxxx) Name: (E. Xxxxx Xxxxx, Jr.)
Title: Secretary Title: Senior Vice President General Counsel
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