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EXHIBIT 4.4
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (the "Third Supple-
mental Indenture"), dated as of March 30, 2000, among Marketing Specialists
Corporation (formerly known as Xxxxxxx American Corporation), a Delaware
corporation (the "Company"), the Guarantor Subsidiaries set forth on the
signature pages hereto (the "Guarantor Subsidiaries"), and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION (formerly know as Texas Commerce Bank, National
Association), a national banking 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. ("Richmont") and
the Existing Guarantor Subsidiaries have heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of December 19, 1997,
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, pursuant to an Agreement and Plan of Merger, dated
as of April 28, 1999, by and among the Company, Richmont and the stockholders
of Richmont, Richmont merged with and into the Company and, pursuant to Section
5.01 of the Indenture, the Company executed and delivered to the Trustee a
supplemental indenture (the "First Supplemental Indenture") pursuant to which
the Company expressly assumed all the obligations of Richmont under the
Securities and the Indenture;
WHEREAS, pursuant to the Second Supplemental Indenture, dated
as of October 13, 1999, by and among Xxxx Xxxxx Associates, Inc., ("Xxxx
Xxxxx") a wholly-owned subsidiary of the Company, the Existing Guarantor
Subsidiaries (as defined therein) and the Trustee, Xxxx Xxxxx unconditionally
guaranteed all of the Company's obligations under the Securities and Indenture
on the terms and subject to the considerations set forth in Article XI and
Article XII of the Indenture;
WHEREAS, the Company desires to amend certain provisions of
the Indenture as set forth herein, and it has received the consent of the
holders of a majority in principal amount of the Securities currently
outstanding to such amendments; and
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WHEREAS, pursuant to Section 9.02 of the Indenture, the
Trustee, the Company and the Existing Guarantor Subsidiaries are authorized to
execute and deliver this Third Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, 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 Third Supplemental
Indenture, except as otherwise herein expressly provided or unless the context
otherwise requires, the words "herein," "hereof" and "hereby" and other words
of similar import used in this Third Supplemental Indenture refer to this Third
Supplemental Indenture as a whole and not to any particular section hereof.
2. Amendments to Section 1.01: Definitions. Section
1.01 of the Indenture shall be amended as follows:
(a) The definition of Credit Agreement in Section 1.01
shall be deleted in its entirety and replaced with the following new
definition:
"Credit Agreement" means (i) the Credit Agreement, dated as
of March 30, 2000, as amended, restated, waived or otherwise modified
from time to time, among the Company and certain of its subsidiaries,
as borrowers, The Chase Manhattan Bank, as agent for the lenders and
the lenders from time to time party thereto, and (ii) the Second
Amended and Restated Credit Agreement, dated as of March 30, 2000, as
amended, restated, waived or otherwise modified from time to time,
among the Company, the lenders from time to time party thereto and
First Union National Bank, as agent for the lenders (except in each
case to the extent that any such amendment, waiver or other
modification thereto would be prohibited by the terms of this
Indenture, unless otherwise agreed to by the Holders of at least a
majority in aggregate principal amount of Securities at the time
outstanding)."
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(b) The definition of Senior Credit Documents in Section
1.01 shall deleted in its entirety and replaced with the following new
definition:
"Senior Credit Documents" means the collective
reference to the Credit Agreement, the notes issued pursuant
thereto, the guaranties thereof, and any security documents
related thereto, whether executed by the Company or any
Subsidiary."
(c) The following new defined term shall be inserted in
Section 1.01 after the definition of "Asset Disposition" and before the
definition of "Attributable Debt":
"Assumed Deferred Obligations" means, with respect to any
Person acquired by the Company or any Restricted Subsidiary, any
Indebtedness of such Person issued to the employees of, stockholders
of, or the holders of an equivalent equity interest in, any other
entity previously acquired by the entity being acquired by the Company
or Restricted Subsidiary, as the case may be.
1. Amendments to Section 4.03(b): Limitation on
Indebtedness. Section 4.03(b) of the Indenture shall be amended as set forth
below:
(a) Clause (i) of Section 4.03(b) of the Indenture shall
be amended by deleting the words "$25.0 million" in the first sentence thereof
and replacing them with the words "$85.0 million" so that clause (i) reads as
follows:
"(i) Bank Indebtedness or Indebtedness Incurred
pursuant to any other revolving credit, term loan or working
capital financings in an aggregate principal amount at any
time outstanding not in excess of the greater of $85.0
million and the Borrowing Base in effect from time to time
(in each case less the aggregate amount of all repayments of
principal actually made thereunder since the Closing Date
with Net Available Cash from Asset Dispositions pursuant to
Section 4.06(a)(iii)(A));"
(b) Clause (viii) of Section 4.03(b) of the Indenture
shall be amended by deleting the words "$2.0 million" and replacing them with
the words "$18.0 million" and by deleting the word "or" at the end of such
section so that clause (viii) reads as follows:
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"(viii) Purchase Money Indebtedness, Attributable
Debt and Capitalized Lease Obligations in an aggregate
principal amount not in excess of $18.0 million at any time
outstanding;"
(c) Clause (ix) of Section 4.03(b) of the Indenture
shall be amended by adding the words "Incurred prior to March 30, 2000" after
the word "Indebtedness" in the first line thereof and adding the words "March
30, 2000" after the words "other than Indebtedness Incurred" in the fifth line
thereof, and deleting the punctuation xxxx "." and adding the punctuation xxxx
";" so that clause (b)(ix) reads as follows:
"(ix) Indebtedness Incurred prior to March 30, 2000
(other than Indebtedness permitted to be Incurred pursuant to
Section 4.03(a) or any other clause of this Section 4.03(b))
in an aggregate principal amount on the date of Incurrence
that, when added to all other Indebtedness Incurred prior to
March 30, 2000 pursuant to this clause (ix) and then
outstanding, shall not exceed $15.0 million;"
(d) A new clause (x) shall be added to Section 4.03(b)
of the Indenture as set forth below:
"(x) Indebtedness Incurred on or after March 30,
2000 (other than Indebtedness permitted to be Incurred
pursuant to Section 4.03(a) or any other clause of this
Section 4.03(b)) in an aggregate principal amount on the date
of Incurrence that, when added to all other Indebtedness
Incurred on or after March 30, 2000 pursuant to this clause
(x) and then outstanding, shall not exceed $10.0 million; or"
(e) A new clause (xi) shall be added to Section 4.03(b)
of the Indenture as set forth below:
"(xi) Indebtedness Incurred in connection with the
purchase by the Company of all of the outstanding capital
stock of Sales Force Companies, Inc. pursuant to that certain
stock purchase agreement, dated as of March 2, 2000, by and
between Marketing Specialists Sales Company and Sales Force
Companies, Inc., as such may be amended, in an amount not to
exceed $20.0 million in the aggregate."
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3. Amendments to Section 4.03(c): Limitation on
Indebtedness. Section 4.03(c) of the Indenture shall be amended by adding the
following language at the end of such Section:
"Notwithstanding the foregoing, the Company shall
not, and shall not permit any Restricted Subsidiary to, Incur
any Assumed Deferred Obligations pursuant to Section 4.03(b)
(other than pursuant to clause (xi) of Section 4.03(b))
unless such Assumed Deferred Obligations are expressly
subordinated in right of payment to the Securities. The
Company or any Restricted Subsidiary shall not Incur any
Indebtedness after March 30, 2000 pursuant to Section 4.03(b)
(other than Indebtedness Incurred pursuant to clauses (viii)
or (xi) of Section 4.03(b)) in connection with the
acquisition of any Person by the Company or any Restricted
Subsidiary unless substantially concurrent with such
Incurrence, the Company receives cash capital contributions
or cash proceeds from the sale of Capital Stock (other than
Disqualified Stock) in an amount equal to such Indebtedness."
5. Amendments to Section 4.04(a)(C)(2): Limitation of
Restricted Payments. Section 4.04(a)(C)(2) shall be deleted in its entirety and
replaced with the following:
"(2) the aggregate Net Cash Proceeds received by the Company
from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Closing Date (other
than an issuance or sale to (i) a Subsidiary of the Company
or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries, (ii)
MS Acquisition Limited of $10.0 million of common stock of
the Company pursuant to that certain Stock Purchase
Agreement, dated as of the date of the Credit Agreement, by
and between the Company and MS Acquisition Limited, and (iii)
any Person in connection with the sale of Capital Stock to
such Person pursuant to the last sentence of Section
4.03(c));"
6. Amendments to Section 4.05: Limitation on
Restrictions on Distributions from Restricted Subsidiaries. Clause (i) of
Section 4.05 shall be amended by inserting "(x)" before the words "an
agreement" in the first line thereof
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and inserting "or (y) the Senior Credit Documents" at the end of the clause so
that the clause reads as follows:
" (i) any encumbrance or restriction pursuant to (x) an
agreement in effect at or entered into on the Closing Date or
(y) the Senior Credit Documents;"
7. Effect of Supplement 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
effect. This Third 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.
8. Governing Law. THIS THIRD 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.
9. Trustee Makes No Representation. The Trustee makes
no representation as to the validity or sufficiency of this Third Supplemental
Indenture.
10. Counterparts. The parties may sign any number of
copies of this Third Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
11. Effect of Headings. The Section headings herein are
for convenience only and shall not effect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first above written.
MARKETING SPECIALISTS CORPORATION
By:
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Name:
Title:
THE GUARANTOR SUBSIDIARIES:
MARKETING SPECIALISTS SALES COMPANY
By:
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Name:
Title:
XXXX XXXXX ASSOCIATES, INC.
By:
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Name:
Title:
BROMAR, INC.
By:
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Name:
Title:
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a Trustee
By:
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Name: Xxxxx X. Xxxxx
Title: Vice President and
Trust Officer
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