SUPPLEMENTAL INDENTURE
Exhibit 4.4
EXECUTION VERSION
THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March 9, 2012, is among Deep South Products, Inc., a Florida corporation, Xxxxx Spirits, Inc., a Mississippi corporation, Xxxxx Spirits Florida, LLC, a Florida limited liability company, Xxxx-Xxxxx Logistics, Inc., a Florida corporation, Xxxx-Xxxxx Xxxxxxxxxx, LLC, a Florida limited liability company, Xxxx-Xxxxx Xxxxxxxxxx Leasing, LLC, a Florida limited liability company, Xxxx-Xxxxx Procurement, Inc., a Florida corporation, Xxxx-Xxxxx Properties, LLC, a Florida limited liability company, Xxxx-Xxxxx Xxxxxxx, Inc., a Florida corporation, Xxxx-Xxxxx Xxxxxxx Leasing, LLC, a Florida limited liability company, Xxxx-Xxxxx Stores, Inc., a Florida corporation, Xxxx-Xxxxx Stores Leasing, LLC, a Florida limited liability company, Xxxx-Xxxxx Supermarkets, Inc., a Florida corporation, Xxxx-Xxxxx Warehouse Leasing, LLC, a Florida limited liability company, and Opal Holdings, LLC, a Delaware limited liability company (the “Guaranteeing Subsidiaries”), each a direct or indirect subsidiary of BI-LO, LLC (or its permitted successor), a Delaware limited liability company (the “Company”), the Company, BI-LO Finance Corp., a Delaware corporation (“BI-LO Finance Corp.” and, together with the Company, the “Issuers”), the other Guarantors (as defined in the Indenture referred to below) and Xxxxx Fargo Bank, National Association, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of February 3, 2011, providing for the issuance of 9.25% Senior Secured Notes due 2019 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers’ Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Guarantee”); and
WHEREAS, pursuant to Section 9.01(5) of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuers, each Guaranteeing Subsidiary, the existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of any Guaranteeing Subsidiary, as such, shall have any liability for any obligations of any Guaranteeing Subsidiary under the Notes, its Guarantee, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
4. NEW YORK LAW TO GOVERN. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Issuers.
[Signature pages follow.]
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| GUARANTEEING SUBSIDIARIES:
XXXX-XXXXX STORES, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| DEEP SOUTH PRODUCTS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXXX SPIRITS, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | President | |
| XXXXX SPIRITS FLORIDA, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
[Signature page to Supplemental Indenture]
| XXXX-XXXXX LOGISTICS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX XXXXXXXXXX, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX XXXXXXXXXX LEASING, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX PROCUREMENT, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX PROPERTIES, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
[Signature page to Supplemental Indenture]
| XXXX-XXXXX XXXXXXX, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX XXXXXXX LEASING, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX STORES LEASING, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX SUPERMARKETS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| XXXX-XXXXX WAREHOUSE LEASING, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
[Signature page to Supplemental Indenture]
| OPAL HOLDINGS, LLC | ||
| By: BI-LO, LLC, its sole member | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer and Executive Vice President | |
[Signature page to Supplemental Indenture]
| ISSUERS: | ||
| BI-LO, LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer and Executive Vice President | |
| BI-LO FINANCE CORP. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer and Executive Vice President | |
| EXISTING GUARANTORS: | ||
| BI-LO HOLDING, LLC | ||
| BG CARDS, LLC ARP XXXXXXXXXX LLC | ||
| XXX XXXXX ISLAND LLC | ||
| ARP MOONVILLE LLC | ||
| ARP CHICKAMAUGA LLC | ||
| ARP MORGANTON LLC | ||
| ARP HARTSVILLE LLC | ||
| XXX XXXXXXX SALEM LLC | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Chief Financial Officer and Executive Vice President | |
[Signature page to Supplemental Indenture]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Xxxxxxx Xxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Vice President | |
[Signature page to Supplemental Indenture]
