EXHIBIT 10.21.4
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THIRD SUPPLEMENTAL INDENTURE
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This THIRD SUPPLEMENTAL INDENTURE dated as of February 10, 1998 (this
"Supplemental Indenture") is between XXXXXX-XXXXXX, INC., a Delaware corporation
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(the "Company"), and NORWEST BANK MINNESOTA, N.A., as trustee under the
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Indenture referred to below (in such capacity, the "Trustee").
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WITNESSETH:
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WHEREAS, the Trustee and Xxxxxx-Xxxxxx, Inc., a Delaware corporation
and the Company's predecessor in interest (the "Predecessor"), were parties to
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the Indenture dated as of November 1, 1993 (as supplemented, the "Indenture"),
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pursuant to which the Predecessor issued its 8 7/8% Senior Subordinated Notes
due 2003 (the "Securities");
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WHEREAS, in connection with the Agreement and Plan of Merger dated as
of June 30, 1997, as amended, among the Predecessor, JP Foodservice, Inc., a
Delaware corporation ("JP Foodservice"), and the Company, the Predecessor merged
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with and into the Company, with the Company being the surviving entity of such
merger (the "Merger");
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WHEREAS, in accordance with Section 5.1(a)(1) of the Indenture, the
Company, as the surviving entity of the Merger, has assumed all obligations of
the Predecessor under the Securities and the Indenture;
WHEREAS, Section 4.8(a) of the Indenture requires the Company, whether
or not it is subject to Section 13(a) or 15(a) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), to file certain reports and other
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documents with the Securities and Exchange Commission (the "Commission") and to
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provide copies of such reports and other documents to the Trustee and the
registered holders of the Securities (the "Holders") (the "Commission Reporting
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Requirement");
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WHEREAS, the Company is a wholly-owned subsidiary of JP Foodservice
and is not subject to Section 13(a) or 15(d) of the Exchange Act;
WHEREAS, JP Foodservice is subject to Section 13(a) or 15(d) of the
Exchange Act and in accordance therewith files reports and other documents with
the Commission (the "JP Foodservice Commission Reports");
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WHEREAS, the Company has requested the Trustee to enter into this
Supplemental Indenture to authorize the Company, subject to certain conditions
provided herein, to satisfy the Commission Reporting Requirement by providing
the Trustee and the Holders with copies of the JP Foodservice Commission
Reports;
WHEREAS, Section 9.1(7) of the Indenture permits the Company, when
authorized by a Board Resolution, and the Trustee to supplement the Indenture
without the consent of any Holder for the purpose of making provisions with
respect to matters or questions arising under the Indenture, provided, that,
such action shall not adversely affect the interests of any of the Holders in
any respect; and
WHEREAS, in the opinion of the Board of Directors as evidenced by a
Board Resolution delivered to the Trustee on the date hereof, the provisions in
the Third Supplemental Indenture with respect to the Commission Reporting
Requirement will not adversely affect the interests of any of the Holders in any
respect;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Indenture.
ARTICLE II
EFFECTIVENESS
This Supplemental Indenture shall be effective as of the date first
above written.
ARTICLE III
AMENDMENT OF SECTION 4.8(a)
Section 4.8(a) of the Indenture is hereby amended by adding the
following sentence after the penultimate sentence of such Section 4.8(a):
Notwithstanding the foregoing, if and for so long as the Company is
not subject to Section 13(a) or 15(d) of the Exchange Act, the Company
shall be deemed to have complied with the
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requirements of the first two sentences of this Section 4.8(a) if it
provides to the Holders and the Trustee, within 15 days of each
Required Filing Date, copies of the annual reports, quarterly reports
and other documents (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe)
which JP Foodservice, Inc. is required to file with the Commission
pursuant to such Section 13(a) or 15(d); provided, that, (i) JP
Foodservice, Inc. is subject to Section 13(a) or 15(d) of the Exchange
Act and files the reports and other documents with the Commission
required to be filed in accordance therewith, (ii) JP Foodservice,
Inc. owns, directly or indirectly, all the outstanding Capital Stock
(other than directors' qualifying shares) of the Company and (iii) the
Company complies with the provisions of Section 4.8(b).
ARTICLE IV
MISCELLANEOUS
Section 4.1. 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 4.2 Governing Law.
This Supplemental Indenture shall be governed and construed in
accordance with the laws of the State of New York.
Section 4.3 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.
IN WITNESS WHEREOF, the Company and the Trustee have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
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XXXXXX-XXXXXX, INC.
By: /s/ Xxxxx Xxx, III
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Xxxxx Xxx, III
Title: Vice President
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Corporate Trust Officer
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