ex4_2.htm












Exhibit 4.2





SUPPLEMENTAL INDENTURE


 


This Supplemental Indenture (this “Supplemental Indenture”), dated as of January 13, 2012 among 99¢ Only Stores, a California corporation (the “Issuer”), 99 Cents Only Stores Texas, Inc., a Delaware corporation and 99 Cents Only Stores, a Nevada corporation (together, the “Guarantors”) and Wilmington Trust, National Association, as trustee (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, Number Merger Sub, Inc. (“Merger Sub”) has heretofore executed and delivered to the Trustee the Indenture (the “Indenture”), dated as of December 29, 2011, providing for the issuance of an unlimited aggregate principal amount of 11% Senior Notes due 2019 (the “Notes”);


 


WHEREAS, the Notes were issued and sold in connection with the merger of Merger Sub with and into the Issuer (the “Merger”), whereby, upon consummation of the Merger, the Issuer will continue as the surviving corporation.


 


WHEREAS, the Merger has been consummated and the Issuer is the surviving corporation.


 


WHEREAS, pursuant to this Supplemental Indenture, the Issuer will succeed to all of the rights and Obligations of Merger Sub under the Notes and the Indenture, and each of the Guarantors will unconditionally guarantee all of Merger Sub’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “Guarantee”).


 


WHEREAS, pursuant to Section 9.01 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 parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:


 


(a)           Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.


 


(b)           Agreement. The Issuer and each Guarantor hereby agree as follows:


 


(1)           Each of the Issuer and the Guarantors acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture (except Sections 3.10 and 4.17 thereof), as of the date hereof, as if made by, and with respect to, each signatory hereto; and (iii) perform all Obligations and duties required of the Issuer or a Guarantor, as the case may be, pursuant to the Indenture;


 


(2)           Each of the undersigned hereby represents and warrants to and agrees with the Trustee that it has all the requisite corporate, limited liability company or other power and authority to execute, deliver and perform its obligations under this Supplemental Indenture, that this Supplemental Indenture has been duly authorized, executed and delivered and that the consummation of the transactions contemplated by Section (b)(1) has been duly and validly authorized; and


 




  





  











  






 


(3)           Each of the Issuer and the Guarantors will deliver to the Trustee an Officer’s Certificate and the Issuer will deliver to the Trustee an Opinion of Counsel, each stating that all conditions precedent provided for in the Indenture relating to the transactions contemplated by Section (b)(1) have been complied with.


 


(c)           Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


(d)           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. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


 


(e)           Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.


 


(f)           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 Issuer and the Guarantors.


 


(g)           Benefits Acknowledged. Upon consummation of the Merger and execution and delivery of this Supplemental Indenture, the Issuer and each of the Guarantors will be subject to the terms and conditions set forth in the Indenture. Each of the Issuer and the Guarantors acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the obligations of each as a result of this Supplemental Indenture are knowingly made in contemplation of such benefits.


 


(h)           Successors. All agreements of each of the Issuer and the Guarantors in this Supplemental Indenture shall bind its successors, except as otherwise provided in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.


 




  





  











  






 


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, as of the date first above written


 




	 	
99¢ ONLY STORES,


	 	as Issuer
	 	 	 
	
 

	
By: 

	/s/ Eric Schiffer 
	 	 	Name:   Eric Schiffer
	 	 	Title:     Chief Executive Officer
	 	 	 
	 	99 CENTS ONLY STORES TEXAS, INC.,
	 	as Guarantor
	 	 	 
	 	By: 	/s/ Eric Schiffer
	 	 	Name:   Eric Schiffer
	 	 	Title:     Senior Vice President and Secretary
	 	 	 
	 	99 CENTS ONLY STORES,
	 	as Guarantor
	 	 	 
	 	By:  	/s/ Eric Schiffer 
	 	 	Name:   Eric Schiffer
	 	 	Title:     Secretary and Treasurer







 



[Supplemental Indenture]




 




  





  











  






 




	 	WILMINGTON TRUST, NATIONAL
	 	ASSOCIATION, as Trustee
	 	 
	
 

	
By: 

	 /s/ Jane Schweiger 
	 	 	Name:   Jane Schweiger
	 	 	Title:     Vice President







 



[Supplemental Indenture]