Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE, dated as of January 4, 1999
(the "Supplemental Indenture") between DIMAC Corporation, a corporation
organized under the laws of the State of Delaware (the "Company"), DMW
Worldwide, a Missouri corporation ("DMW" or "Additional Guarantor") and
Wilmington Trust Company (the "Trustee"), as Trustee under the Indenture (as
defined below). Capitalized terms used and not defined herein shall have the
same meanings given in the Indenture unless otherwise indicated.
WHEREAS, the Company, the Subsidiary Guarantors listed therein
and the Trustee are parties to that certain Indenture, dated as of October 15,
1998 (the "Indenture"), pursuant to which the Company issued its 12 1/2% Senior
Subordinated Notes due 2008 (the "Notes") and the Subsidiary Guarantors
guaranteed the obligations of the Company under the Indenture and the Notes;
WHEREAS, pursuant to Section 4.10 of the Indenture, if the
Company acquires or creates an additional subsidiary which is a domestic
Restricted Subsidiary that Incurs any Senior Indebtedness, such subsidiary shall
execute and deliver a supplemental indenture pursuant to which such subsidiary
shall unconditionally guaranty the Company's obligations under the Notes;
WHEREAS, the Additional Guarantor is a domestic Restricted
Subsidiary of the Company that Incurs certain Senior Indebtedness;
WHEREAS, the Company and the Trustee desire to have the
Additional Guarantor enter into this Supplemental Indenture pursuant to which
the Additional Guarantor will guaranty the obligations of the Company under the
Indenture and the Notes and the Additional Guarantor desires to enter into the
Supplemental Indenture pursuant to which it will guaranty the obligations of the
Company under the Indenture and the Notes as of such date;
WHEREAS, Section 9.01 of the Indenture provides that the
Company and the Trustee may, without the written consent of the holders of the
outstanding Notes, amend the Indenture as provided herein;
WHEREAS, by entering into this Supplemental Indenture, the
Company and the Trustee have consented to amend the Indenture in accordance with
the terms and conditions herein; and
WHEREAS, all acts and things prescribed by the Articles of
Incorporation and the By-laws (each as now in effect) of the Additional
Guarantor necessary to make this Supplemental Indenture a valid instrument
legally binding on the Additional Guarantor for the purposes herein expressed,
in accordance with its terms, have been duly done and performed.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company, the Additional Guarantor and the Trustee hereby agree
for the benefit of each other and the equal and ratable benefit of the holders
of the Notes as follows:
1. ADDITIONAL GUARANTOR AS SUBSIDIARY GUARANTOR. As of the
date hereof and pursuant to this Supplemental Indenture, the Additional
Guarantor shall become a Subsidiary Guarantor in accordance with the terms and
conditions of the Indenture and shall assume all rights and obligations of a
Subsidiary Guarantor thereunder.
2. COMPLIANCE WITH AND FULFILLMENT OF CONDITION OF SECTION
4.10. The execution and delivery of this Supplemental Indenture by the
Additional Guarantor (along with such documentation relating thereto as the
Trustee shall require, including, without limitation, an Opinion of Counsel as
to the enforceability of the Supplemental Indenture and an Officers'
Certificate) fulfills the obligations of the Company under Section 4.10 of the
Indenture.
3. CONSTRUCTION. For all purposes of this Supplemental
Indenture, except as otherwise herein expressly provided or unless the context
otherwise requires: (i) the terms and expressions used herein shall have the
same meanings as corresponding terms and expressions used in the Indenture; and
(ii) the words "herein," "hereof" and "hereby" and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a
whole and not to any particular Section hereof.
4. TRUSTEE ACCEPTANCE. The Trustee accepts the amendment of
the Indenture effected by this Supplemental Indenture, as hereby amended, but
only upon the terms and conditions set forth in the Indenture, as hereby
amended, including the terms and provisions defining and limiting the
liabilities and responsibilities of the Trustee in the performance of its duties
and obligations under the Indenture, as hereby amended. Without limiting the
generality of the foregoing, the Trustee has no responsibility for the
correctness of the recitals of fact herein contained which shall be taken as the
statements of each of the Company and the Additional Guarantor, respectively,
and makes no representations as to the validity or enforceability against any of
the Company or the Additional Guarantor.
5. INDENTURE RATIFIED. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.
6. HOLDERS BOUND. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of the Notes heretofore
or hereafter authenticated and delivered shall be bound hereby.
7. SUCCESSORS AND ASSIGNS. This Supplemental Indenture shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
8. COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original, and all of such counterparts shall together constitute one and
the same instrument.
9. GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York without giving effect to principles of conflicts of laws.
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IN WITNESS WHEREOF, the Company, the Additional Guarantor and
the Trustee have caused this Supplemental Indenture to be duly executed as of
the date first above written.
COMPANY:
DIMAC CORPORATION
By:/s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ADDITIONAL GUARANTOR:
DMW WORLDWIDE, INC.
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Secretary
TRUSTEE:
WILMINGTON TRUST COMPANY
By:/s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
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