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THIRD SUPPLEMENTAL INDENTURE OF TRUST
among
XXXX-XXXXX COMPANY,
as Issuer,
THE SUBSIDIARY GUARANTORS,
named therein as Guarantors,
U SAVE FOODS, INC.,
as an Additional Guarantor,
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
Dated as of August 13, 2001
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
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THIS THIRD SUPPLEMENTAL INDENTURE OF TRUST is made and entered into as of
August 13, 2001 among Xxxx-Xxxxx Company, a Delaware corporation (the
"COMPANY"), the Subsidiary Guarantors named herein (the "GUARANTORS"), as
guarantors, U Save Foods, Inc., a Nebraska 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, the Guarantors, the Trustee and Xxxxxxxx'x Diversified
Corporation, a Wisconsin corporation ("XXXXXXXX'X") are parties to that certain
First Supplemental Indenture of Trust dated as of June 10, 1999 (the "FIRST
SUPPLEMENT"), pursuant to which Xxxxxxxx'x became a Guarantor.
The Company, the Guarantors, the Trustee and Hinky Dinky Supermarkets,
Inc., a Nebraska corporation ("HINKY") are parties to that certain Second
Supplemental Indenture of Trust dated as of January 31, 2000 (the "SECOND
SUPPLEMENT"), pursuant to which Hinky became a Guarantor.
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 Third Supplemental Indenture, the Additional Guarantor has executed this
Third 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 Third Supplemental Indenture, and in the case of the Additional Guarantor,
its Guarantee.
All things necessary have been done to constitute this Third 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 Original Indenture) of
the Notes (as defined in the Original Indenture) as follows:
Section 1. DEFINITIONS. All terms capitalized but not otherwise defined in
this Third Supplemental Indenture shall have the meanings assigned to such terms
in the Original Indenture.
Section 2. EFFECT OF THIS THIRD SUPPLEMENTAL INDENTURE.
(A) Except as expressly supplemented or amended hereby and the First
Supplement and Second Supplement, 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 Third Supplemental Indenture and the terms and provisions of the Original
Indenture, as amended by the First Supplement and as amended by the Second
Supplement, this Third Supplemental Indenture shall control.
(C) This Third Supplemental Indenture shall take effect as of August 13,
2001.
(D) The rules of construction stated in Section 1.03 of the Original
Indenture shall apply to this Third Supplemental Indenture.
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 Third Supplemental
Indenture to be executed as of the day and year first above written.
COMPANY: XXXX-XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Title: Sr. VP & Chief Financial Officer
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GUARANTORS: X.X. XXXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Title: Asst. Treasurer
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SUPER FOOD SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Asst. Treasurer
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GTL TRUCK LINES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Asst. Treasurer
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PIGGLY WIGGLY NORTHLAND
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Title: Asst. Treasurer
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XXXXXXXX'X DIVERSIFIED
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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HINKY DINKY SUPERMARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President
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ADDITIONAL GUARANTOR: U SAVE FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: Treasurer
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TRUSTEE: U.S. BANK TRUST NATIONAL
ASSOCIATION
By: /S/ Xxxx-Xxxx Xxxxxxxxx
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Title: Assistant Vice President
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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 Third
Supplemental Indenture dated as of August 13, 2001) (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: August 13, 2001
U SAVE FOODS, INC.
By:
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Title:
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