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EXHIBIT 4.3
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MARKETING SPECIALISTS CORPORATION,
a Delaware corporation,
as Issuer,
Each Subsidiary of the
Issuer listed on the
signatory pages hereto,
as Guarantor Subsidiaries,
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 13, 1999
to
INDENTURE
Dated as of December 19, 1997
10 1/8% Senior Subordinated Notes due 2007
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of October 13, 1999, among XXXX XXXXX ASSOCIATES, INC., a Michigan corporation
(the "NEW GUARANTOR SUBSIDIARY"), a wholly-owned subsidiary of Marketing
Specialists Corporation, a Delaware corporation (formerly known as Xxxxxxx
American Corporation, a Delaware corporation) (the "COMPANY"), the existing
Guarantor Subsidiaries (the "EXISTING GUARANTOR SUBSIDIARIES") under the
indenture referred to below, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
successor-in-interest to TEXAS COMMERCE BANK NATIONAL ASSOCIATION, as trustee
under the indenture referred to below (the "TRUSTEE").
W I T N E S S E T H:
WHEREAS Richmont Marketing Specialists Inc., a Delaware corporation
("RMSI"), and the Existing Guarantor Subsidiaries (or their predecessors) and
the Trustee, as trustee, are parties to that certain Indenture (the
"INDENTURE"), dated as of December 19, 1997, as supplemented by the First
Supplemental Indenture thereto, dated as of August 18, 1999, among the Company,
as successor by merger to RMSI, the Existing Guarantor Subsidiaries, as trustee,
and the Trustee, as trustee (as so supplemented the "INDENTURE") providing for
the issuance of an aggregate principal amount of up to $150,000,000 of 10 1/8%
Senior Subordinated Notes due 2007 (the "SECURITIES");
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Company is required to cause the New Guarantor Subsidiary to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Guarantor Subsidiary shall unconditionally guarantee all of the
Company's obligations under the Securities and the Indenture pursuant to a
Subsidiary Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Guarantor Subsidiaries are 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 New
Guarantor Subsidiary, the Company, the Existing Guarantor Subsidiaries and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
1. DEFINITIONS. (a) Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
(b) 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.
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2. AGREEMENT TO GUARANTEE. The New Guarantor Subsidiary hereby agrees, jointly
and severally with all other Guarantor Subsidiaries, to guarantee the Company's
obligations under the Securities and the Indenture on the terms and subject to
the considerations set forth in Article XI and Article XII of the Indenture and
to be bound by all other applicable provisions of the Indenture. 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 in effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
3. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
4. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to
the validity or sufficiency of 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 effect the construction thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
XXXX XXXXX ASSOCIATES, INC.
By:
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Name: Xxxx X. Xxxxxx
Title: Vice President
MARKETING SPECIALISTS CORPORATION
By:
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Name:
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Title:
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MARKETING SPECIALISTS SALES COMPANY
By:
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Name:
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Title:
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BROMAR, INC.
(successor by merger to
Brokerage Services, Inc.)
By:
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Name: Xxxx X. Xxxxxx
Title: Vice President
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ATLAS MARKETING COMPANY, INC.
(successor by merger to Meatmaster
Brokerage, Inc., Century Food
Brokers of Hickory, Inc., East
Coast Food Brokerage, Inc.,
Ultimate Food Sales, Inc. and
Cumberland Food Brokers, Inc.)
By:
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Name:
------------------------------
Title:
-----------------------------
MARKETING SPECIALISTS CO., INC.
(formerly known as Xxxxxxx American
Co., Inc.)
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President & Chief
Executive Officer
BUCKEYE SALES & MARKETING, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President
UNITED BROKERAGE COMPANY, INC.
By:
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Name: Xxxxxx X. Xxxxxxx
Title: President
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
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Name: Xxxxx X. Xxxxx
Title: Vice President and Trust
Officer
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