EXHIBIT 4.1.2
SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE dated as of May 17, 1996 (this
"Supplemental Indenture") is among XXXXXX-XXXXXX, INC., a Delaware corporation
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(the "Company"), the guarantors listed on the signature pages hereof
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(individually a "Guarantor" and collectively the "Guarantors") and NORWEST BANK
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MINNESOTA, N.A., as trustee under the Indenture referred to below (in such
capacity, the "Trustee").
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WITNESSETH:
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WHEREAS, the Company and the Trustee are parties to the Indenture
dated as of November 1, 1993 (the "Indenture"), pursuant to which the Company
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issued its 8 7/8% Senior Subordinated Notes due 2003 (the "Securities");
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WHEREAS, the Company is acquiring all of the issued and outstanding
capital stock of US Foodservice Inc.;
WHEREAS, in connection with such acquisition, the Company is entering
into the Credit Agreement dated as of May 17, 1996 (such agreement, as it may be
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amended, waived or otherwise modified from time to time, hereinafter called the
"Credit Agreement") among the Company, the financial institutions parties
thereto, and Bank of America National Trust and Savings Association, as
Administrative Agent, The Chase Manhattan Bank, N.A., as Documentation Agent,
and BA Securities, Inc. and Chase Securities, Inc. as Co-Arrangers;
WHEREAS, the terms of the Credit Agreement require the Guarantors to
guarantee the Company's obligations under the Credit Agreement and to grant
security interests in substantially all of their assets to secure such
guarantees;
WHEREAS, in connection with the guarantees and grants of security
interests by the Guarantors pursuant to the Credit Agreement, Section 4.15 of
the Indenture requires the Guarantors to guarantee the Securities on terms at
least as favorable to the Holders of the Securities as the Indenture Guarantee;
and
WHEREAS, the Company, the Guarantors, and the Trustee are entering
into this Supplemental Indenture to provide for such Guarantee by the
Guarantors;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein and not otherwise defined have the
meanings assigned such terms in the Indenture.
ARTICLE II
GUARANTEE
For value received, each Guarantor hereby unconditionally guarantees to
the Holders of the Securities the due and punctual payment, subject to the
subordination provisions set forth in Article III, of the principal of, premium,
if any, and interest on the Securities when and as the same shall become due and
payable according to the terms of the Securities and the Indenture. The
obligations of each Guarantor under this Article II are hereinafter collectively
called the "Guarantee."
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ARTICLE III
SUBORDINATION; WAIVER OF SUBROGATION
Section 3.1 Guarantee Subordinated to Senior Indebtedness.
Each Guarantor, for itself and its successors, and each Holder, by his
acceptance of the benefits of the Guarantee, agrees that the guarantee of the
payment of principal of and interest on the Securities provided by the Guarantee
is subordinated in right of payment, to the extent and in the manner provided in
this Article Three, to the prior payment in full, in cash, cash equivalents
acceptable to the holders of such Senior Indebtedness or in any other form
acceptable to the holders of such Senior Indebtedness, of all Senior
Indebtedness and that these subordination provisions are for the benefit of the
holders of Senior Indebtedness.
This Article Three shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
Section 3.2 No Payment on Guarantee in Certain Circumstances.
(a) No direct or indirect payments or distributions by or on
behalf of any Guarantor on or with respect to the Guarantee (other than any such
payment or
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distribution (a "Reorganization Distribution") authorized by an order or decree
of a court of competent jurisdiction in a reorganization proceeding under any
Bankruptcy Law) shall be made if, at the time of such payment or distribution,
there exists a default (a "Payment Default") in payment of all or any portion of
any Senior Indebtedness (other than a payment default to the extent it relates
solely to penalties, fees, premiums, expense reimbursements, indemnity
obligations and other monetary obligations other than the payment of principal
or interest), and such Payment Default shall not have been cured or waived or
the benefits of this Section 3.2(a) waived in writing by or on behalf of the
holders of such Senior Indebtedness.
(b) During the continuance of any event of default with respect
to Specified Senior Debt that would permit the acceleration of the maturity of
such Specified Senior Debt, other than a Payment Default, no direct or indirect
payments or distributions (other than a Reorganization Distribution) by or on
behalf of any Guarantor on or with respect to the Guarantee may be made for a
period (the "Payment Blockage Period") commencing on the date of receipt by the
Trustee of notice of such event of default under any Specified Senior Debt from
an agent for the lenders under the Bank Credit Facility (the "Bank Agent") or
the trustee or other similar representative for the holders of other Specified
Senior Debt (or the holders of at least 25% of the principal amount of such
other Specified Senior Debt), or, if such event of default results from the
acceleration of the Securities, on the earlier of the date of receipt of such
notice by the Trustee or the date of such acceleration, and ending on the
earliest of (a) the 179th day thereafter, (b) the date on or as of which (1)
such event of default has been cured or waived, (2) the Company has delivered to
the Trustee an Officers' Certificate to such effect and (3) the Bank Agent or
the trustee or other similar representative for the holders of other Specified
Senior Debt (as applicable) shall have endorsed on such Officers' Certificate
that it does not object to the form or substance of such Officers' Certificate,
and (c) the date on or as of which the Bank Agent or the trustee or other
similar representative for the holders of other Specified Senior Debt (as
applicable) shall have consented in writing to the termination of such Payment
Blockage Period. Upon the termination of any Payment Blockage Period, each
Guarantor may promptly resume making any and all required payments in respect of
the Guarantee including any payments that were previously not made pursuant to
the foregoing payment blockage provisions. Not more than one Payment Blockage
Period may be commenced during any period of 360 consecutive days by or on
behalf of Specified Senior Debt other than Bank Senior Indebtedness.
Notwithstanding the foregoing, in no event may the total number of days during
which any period of 360 consecutive days exceed 179 days (whether or not
consecutive). No event of default which existed or was continuing on the date of
the commencement of any Payment Blockage Period shall be, or be made, the basis
for the commencement of a second Payment Blockage Period by the Bank Agent or
the trustee, representative or holders of such Specified Senior Debt, whether or
not within a period of 360 consecutive days, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
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(c) In the event that, notwithstanding the foregoing provisions
of this Section 3.2, any payment or distribution of assets of any Guarantor,
whether in cash, property or securities (other than a Reorganization
Distribution), shall be received by the Trustee or the Holders on account of
such Guarantor's liability under the Guarantee before all Senior Indebtedness is
paid in full or such payment duly is provided for, such payment or distribution
(subject to the provisions of Section 3.6 and 3.7) shall be held in trust for
the benefit of the holders of Senior Indebtedness, and shall be paid or
delivered by the Trustee or such holders, as the case may be, to the holders of
the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment in full of
all Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness, but only to the extent
that as to any holder of such Senior Indebtedness, as promptly as practical
following notice from the Trustee to the holders of Senior Indebtedness that
such prohibited payments has been received by the Trustee or Holder(s), such
holder (or a representative thereof) notifies the Trustee of the amounts then
due and owing on the Senior Indebtedness, if any, held by such holder and only
the amounts specified in such notices to the Trustee shall be paid to the
holders of Senior Indebtedness.
Each Guarantor shall give prompt written notice to the Trustee of any
default or event of default, and any cure or waiver thereof, or any acceleration
under any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued.
Section 3.3 Guarantee Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Guarantors.
In the event of any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or its assets, or
any liquidation, dissolution or other winding up of any Guarantor, whether
voluntary or involuntary, or any assignment for the benefit of creditors or
other marshaling of assets or liabilities of any Guarantor:
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full, cash equivalents acceptable to the holders
of such Senior Indebtedness or in any other form acceptable to the holders of
such Senior Indebtedness (or to have such payment duly provided for in cash or
as acceptable to the holders of such Senior Indebtedness), of the principal of
and interest payment in respect thereof, before the Holders are entitled to
receive any payment (excluding a Reorganization Distribution) on account of the
principal of and interest on the Securities;
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(b) any payment or distribution of assets of any Guarantor of any
kind or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled except for the
provisions of this Article Three, shall be paid by the liquidating trustee or
agent or other person making such a payment or distribution, directly to the
holders of Senior Indebtedness, ratably according to the respective amounts of
Senior Indebtedness held by each, to the extent necessary to make payment in
full (or have such payment duly provided for) of all Senior Indebtedness
remaining unpaid after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of any Guarantor, whether in cash, property or
securities, shall be received by the Trustee or the Holders on account of
principal of or interest on the Securities before all Senior Indebtedness is
paid in full or such payment is duly provided for, such payment or distribution
(subject to the provisions of Sections 3.6 and 3.7) shall be held in trust by
the Trustee or such Holders for the benefit of the holders of the Senior
Indebtedness, or their respective representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full (except as such payment otherwise shall
have been provided for) of all Senior Indebtedness remaining unpaid after giving
effect to all concurrent payments and distributions and all provisions therefor
to the holders of such Senior Indebtedness, as promptly as practical following
notice from the Trustee to the holders of Senior Indebtedness that such
prohibited payment has been received by the Trustee or Holder(s), such holder
(or a representative therefor) notifies the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders of
Senior Indebtedness.
Each Guarantor shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of such Guarantor or
assignment for the benefit of creditors by such Guarantor.
Section 3.4 Securityholders to Be Subrogated to Rights of Holders of
Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness in cash,
cash equivalents acceptable to the holders of such Senior Indebtedness or in any
other form acceptable to the holders of such Senior Indebtedness (or to have
such payment duly provided for in cash or as acceptable to the holders of such
Senior Indebtedness), the Holders of Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of each Guarantor applicable to the Senior Indebtedness
until all amounts owing on the Securities shall be paid in full, and for the
purpose of such subrogation no such payments or distributions to the holders of
Senior Indebtedness by or on behalf of any Guarantor, or by or on behalf of the
Holders by virtue of this Article Three, which otherwise would have been made to
the Holders shall, as between such Guarantor and the Holders, be deemed to be
payment by
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such Guarantor to or on account of the Senior Indebtedness, it being understood
that the provisions of this Article Three are and are intended solely for the
purpose of defining the relative rights of the Holders, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article Three shall have been
applied, pursuant to the provisions of this Article Three, to the payment of
amounts payable under Senior Indebtedness, then the Holders shall be entitled to
receive from the holders of such Senior Indebtedness any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of the Senior
Indebtedness in full in cash, cash equivalents acceptable to the holders of such
Senior Indebtedness or in any other form acceptable to the holders of such
Senior Indebtedness.
Section 3.5 Obligations of Guarantors Unconditional.
Nothing contained in this Article Three or elsewhere in this
Supplemental Indenture is intended to or shall impair, as between the Guarantors
and the Holders, the obligation of each Guarantor, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities in accordance with the terms of the Guarantee, or is intended to or
shall affect the relative rights of the Holders and creditors of such Guarantor
other than the holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under the Guarantee, subject to the
rights, if any under this Article Three, of the holders of Senior Indebtedness
in respect of cash, property or securities of such Guarantor received upon the
exercise of any such remedy. Notwithstanding anything to the contrary in this
Article Three or in the Guarantee, upon any distribution of assets of the
Company referred to in this Article Three, the Trustee, subject to the
provisions of Section 7.1 and 7.2 of the Indenture, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of any Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Three. Nothing in this Section 3.5 shall apply to the claims of,
or payments to, the Trustee under or pursuant to Section 7.7 of the Indenture.
Section 3.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the
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Trustee unless and until a Trust Officer of the Trustee shall have received, no
later than three Business Days prior to such payment, written notice thereof
from the Company or from one or more holders of Senior Indebtedness or from any
representative therefor and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Sections 7.1 and 7.2 of the Indenture,
shall be entitled in all respects conclusively to assume that no such fact
exists.
Section 3.7 Application by Trustee of Assets Deposited with It.
U.S. Legal Tender or U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 8.4 of the Indenture
shall be for the sole benefit of Securityholders and, to the extent (i) the
making of such deposit by any Guarantor shall not have been in contravention of
any term or provision of any agreement creating or evidencing Senior
Indebtedness and (ii) allocated for the payment of Securities, shall not be
subject to the subordination provisions of this Article Three. Otherwise, any
deposit of assets by any Guarantor with the Trustee or any Paying Agent (whether
or not in trust) for the payment of principal of or interest on any Securities
shall be subject to the provisions of Sections 3.1, 3.2, 3.3 and 3.4; provided,
that, if prior to the second Business Day preceding the date on which by the
terms of the Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either principal of or interest on
any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 3.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
Section 3.8 Subordination Rights Not Impaired by Acts or Omissions of
Guarantors or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article Three shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of any Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by any Guarantor with the terms of the
Guarantee, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may extend, renew,
restate, supplement, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise deal
freely with any Guarantor all without affecting the liabilities and obligations
of the parties to this Supplemental Indenture or the Holders.
Section 3.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities.
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Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action in accordance
with the terms of this Supplemental Indenture as may be necessary or appropriate
to effectuate the subordination provisions contained in this Article Three and
to protect the rights of the Holders pursuant to this Supplemental Indenture,
and appoints the Trustee his attorney-in-fact for such purpose, including, in
the event of any dissolution, winding up, liquidation or reorganization of any
Guarantor (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors or any other marshalling of assets
and liabilities of such Guarantor) tending towards liquidation of the business
and assets of such Guarantor, the immediate filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative are or is hereby authorized to have
the right to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Securities. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Indebtedness
or their representative to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 3.10 Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Three in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Supplemental Indenture shall be construed to deprive the Trustee of any of its
rights as such bolder.
Section 3.11 Article Three Not to Prevent Events of Default
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of this Article Three shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 6.1 of the Indenture or in any way preventing the Holders from
exercising any right hereunder other than the right to receive payment on the
Securities.
Section 3.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of Securities or any Guarantor
or any other person, cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by
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virtue of this Article Three or otherwise. Nothing in this Section 3.12 shall
affect the obligation of any other such person to hold such payment for the
benefit of, and to pay such payment over to, the holders of Senior Indebtedness
or their representative.
Section 3.13 Waiver of Subrogation.
Each Guarantor hereby waives and agrees that it will not in any manner
whatsoever claim or take the benefit or advantage of any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Subsidiary of the Company as a result of any payment by such
Subsidiary under the Guarantee.
ARTICLE IV
RELEASE OF GUARANTEE
Notwithstanding any other provision of this Supplemental Indenture,
the Guarantee of each Guarantor provided for herein shall be automatically and
unconditionally released and discharged upon the occurrence of either of the
events described in clauses (i) or (ii) of Section 4.15(c) of the Indenture.
ARTICLE V
MISCELLANEOUS
Section 5.1 Ratification of Indenture.
This Supplemental Indenture shall be construed as supplemental to the
Indenture and shall form a part thereof, and the Indenture is hereby
incorporated by reference herein and, as supplemented, modified and restated
hereby, is ratified, approved and confirmed.
Section 5.2 Governing Law.
This Supplemental Indenture shall be governed and construed in
accordance with the laws of the State of New York.
Section 5.3 Counterparts.
This Supplemental Indenture may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement
Indenture to be duly executed as of the date first written above.
Company:
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XXXXXX-XXXXXX, INC.
By /s/ Xxxxxxx X. Xxxxxx
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Title
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Guarantors:
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US FOODSERVICE INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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XXXX XXXXXX & CO.
By /s/ Xxxxxxx X. Xxxxxx
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Title
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WS HOLDINGS CORPORATION
By /s/ Xxxxx X. XxXxxxxx
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Title
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USFTM, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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BRB HOLDINGS, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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WHITE SWAN, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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MOM'S PRODUCE AND FOODS, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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XXXXXXX BROTHERS, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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KING'S FOODSERVICE, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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US FOODSERVICE OF ATLANTA, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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ROANOKE RESTAURANT SERVICE, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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X.X. XXXXXXXX & COMPANY, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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US FOODSERVICE OF FLORIDA, INC.
By /s/ Xxxxx X. XxXxxxxx
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Title
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DUKE ASSOCIATES
By: XXXXXX-XXXXXX, INC.
Its: General Partner
By /s/ Xxxxxxx X. Xxxxxx
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Title
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By: XXXX XXXXXX & CO.
Its: General Partner
By /s/ Xxxxxxx X. Xxxxxx
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Title
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Trustee:
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NORWEST BANK MINNESOTA, N.A., as Trustee
By /s/ Xxxxxx Xxxxxxxxx
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Title Corporate Trust Officer
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