Third Supplemental Indenture to 8-7/8% Senior Subordinated Notes Due 2007 by Marsh Supermarkets, Inc. and State Street Bank and Trust Company

Summary

This agreement is a Third Supplemental Indenture dated June 22, 2000, between Marsh Supermarkets, Inc., its subsidiaries, A. L. Ross & Sons, Inc. (as an additional guarantor), and State Street Bank and Trust Company (as trustee). It amends the original indenture for $150 million in 8-7/8% Senior Subordinated Notes due 2007. The amendment adds a new guarantor, clarifies certain provisions, and updates covenants to protect noteholders. The changes do not adversely affect the interests of the noteholders and are made in accordance with the terms of the original indenture.

EX-4.M 3 ex4-m.txt THIRD SUPPLEMENTAL INDENTURE 1 EXHIBIT 4(m) MARSH SUPERMARKETS, INC., as Issuer, MARSH DRUGS, INC., MARSH VILLAGE PANTRIES, INC. MUNDY REALTY, INC., MAR PROPERTIES, INC., MARLEASE, INC., MARSH INTERNATIONAL, INC., MARSH CULTURAL GROUP, INC., LIMITED HOLDINGS, INC., CONVENIENCE STORE DISTRIBUTING COMPANY, MARSH P.Q., INC., TEMPORARY SERVICES, INC., NORTH MARION DEVELOPMENT CORPORATION, CONTRACT TRANSPORT, INC., PANTRY PROPERTY, LLC, MS PROPERTY, LLC, CF PROPERTY, LLC, BF PROPERTY, LLC, McNAMARA, LLC, CRYSTAL FOOD SERVICES, LLC, LOBILL FOODS, LLC, CONTRACT TRANSPORT, LLC, MARSH SUPERMARKETS, LLC, VILLAGE PANTRY, LLC, MARSH DRUGS, LLC, TRADEMARK HOLDINGS, INC., MARSH CLEARING HOUSE, LLC, CONVENIENCE STORE DISTRIBUTING COMPANY, LLC, CONVENIENCE STORE TRANSPORTATION COMPANY, LLC, CRYSTAL FOOD MANAGEMENT SERVICES, LLC, BUTTERFIELD FOODS, LLC, MD PROPERTY, LLC, LB PROPERTY, LLC, MCN PROPERTY, LLC, CSD PROPERTY, LLC and FLORAL PROPERTY, LLC, as Existing Guarantors, A. L. ROSS & SONS, INC., as an Additional Guarantor, and STATE STREET BANK AND TRUST COMPANY, as Trustee ---------- THIRD SUPPLEMENTAL INDENTURE Dated as of June 22, 2000 $150,000,000 8-7/8% Senior Subordinated Notes due 2007 2 THIRD SUPPLEMENTAL INDENTURE, dated as of June 22, 2000, among Marsh Supermarkets, Inc., an Indiana corporation (the "Company"), Marsh Drugs, Inc., an Indiana corporation, Marsh Village Pantries, Inc., an Indiana corporation, Mundy Realty, Inc., an Indiana corporation, Mar Properties, Inc., an Indiana corporation, Marlease, Inc., an Indiana corporation, Marsh International, Inc., an Indiana corporation, Marsh Cultural Group, Inc., an Indiana corporation, Limited Holdings, Inc., an Indiana corporation, Convenience Store Distributing Company, an Ohio partnership, Marsh P.Q., Inc., an Indiana corporation, Temporary Services, Inc.,, an Indiana corporation, North Marion Development Corporation, an Indiana corporation, Contract Transport, Inc., an Indiana corporation, Crystal Food Services, LLC, an Indiana limited liability company, LoBill Foods, LLC, an Indiana limited liability company, Contract Transport, LLC, an Indiana limited liability company, Marsh Supermarkets, LLC, an Indiana limited liability company, Village Pantry, LLC, an Indiana limited liability company, Marsh Drugs, LLC, an Indiana limited liability company, Trademark Holdings, Inc., a Delaware corporation, and Marsh Clearing House, LLC, an Indiana limited liability company, Convenience Store Distributing Company, LLC, an Indiana limited liability company, Convenience Store Transportation Company, LLC, an Indiana limited liability company, Crystal Food Management Services, LLC, an Indiana limited liability company and Butterfield Foods, LLC, an Indiana limited liability company, Pantry Property, LLC, an Indiana limited liability company, MS Property, LLC, an Indiana limited liability company, CF Property, LLC, an Indiana limited liability company, MD Property, LLC, an Indiana limited liability company, LB Property, LLC, an Indiana limited liability company, McNamara, LLC, an Indiana limited liability company, MCN Property, LLC, an Indiana limited liability company, BF Property, LLC, an Indiana limited liability company, CSD Property, LLC, an Indiana limited liability company, and Floral Property, LLC, an Indiana limited liability company (collectively, the "Existing Guarantors"); A. L. Ross & Sons, Inc. (the "Additional Guarantor", and with the "Existing Guarantors", the "Guarantors"), and State Street Bank and Trust Company, a Massachusetts trust company, as trustee (the "Trustee"). WHEREAS, the Company and the certain guarantors executed and delivered to the Trustee the Indenture dated August 5, 1997 (the "Original Indenture") among the Company, the Guarantors named therein and the Trustee; and WHEREAS, the Company and certain guarantors executed and delivered to the Trustee the First Supplemental Indenture dated December 31, 1997 (the "First Supplemental Indenture"); WHEREAS, the Company and the Existing Guarantors executed and delivered to the Trustee the Second Supplemental Indenture dated January 29, 2000 (the "Second Supplemental Indenture"; the Original Indenture as amended by the First Supplemental Indenture and the Second Supplemental Indenure, the "Indenture"); each capitalized terms used herein which is not defined in this Third Supplemental Indenture shall have the meanings given to them in the Indenture); WHEREAS, the Additional Guarantor has become a Restricted Subsidiary since the date of the Indenture as supplemented; WHEREAS, the Additional Guarantor desires to become a Guarantor under the Indenture, as amended and supplemented hereby; 3 WHEREAS, the addition of the Additional Guarantor under the Indenture will not adversely affect the interest of the Holders; WHEREAS, the provisions of Section 1014 of the Indenture is ambiguous and unclear and the Company and the Guarantors desire to correct such ambiguity; WHEREAS, the provisions of Section 901 of the Indenture permit the Indenture to be amended without the consent of the holders of the Securities under certain circumstances, including the curing of an ambiguity; WHEREAS, neither the addition of aditional guarantors nor the correction of the ambiguity in Section 1014 will adversely affect the interest of the Holders; WHEREAS, all things necessary to make this Third Supplemental Indenture a valid agreement of the Company, the Existing Guarantors, the Additional Guarantor and the Trustee have been done; NOW THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH, that, for and in consideration of the premises, the Company, the Existing Guarantors and the Additional Guarantor agree with the Trustee as follows: ARTICLE ONE AMENDMENT TO INDENTURE Section 101. Amendment of Section 1014. Section 1014(b) is deleted in its entirety and replaced with a new Section 1014(b) as follows: (b) The Company will not permit any Restricted Subsidiary, directly or indirectly, to guarantee, assume or in any other manner become liable with respect to any Indebtedness of the Company unless (i) such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture providing for a Guarantee of the Securities, on the same terms as the guarantee of such Indebtedness or (ii) such Restricted Subsidiary has theretofore delivered such a Guarantee, except that (A) such guarantee need not be secured unless required pursuant to Section 1011 hereof, (B) if such Indebtedness is by its terms Senior Indebtedness, any such assumption, guarantee or other liability of such Restricted Subsidiary with respect to such Indebtedness shall be senior to such Restricted Subsidiary's Guarantee of the Securities to the same extent as such Senior Indebtedness is senior to the Securities and (C) if such Indebtedness is by its terms expressly subordinated to the Securities any such assumption, guarantee or other liability of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated to such Restricted Subsidiary's Guarantee of the Securities at least to the same extent as such Indebtedness is subordinated to the Securities. 4 ARTICLE TWO ADDITIONAL COVENANTS Section 201. Additional Covenants. In addition to, and not in substitution of, the covenants currently in the Indenture, each of the Guarantors covenants to the Trustee for the benefit of the Holders as follows: (a) At any time after all or any part of the Indenture Obligations have become due and payable (by acceleration or otherwise), the Trustee and each Holder may, without notice to the Guarantors and regardless of the acceptance of any security or collateral for the payment hereof, appropriate and apply toward the payment of all or any part of the Indenture Obligations (a) any indebtedness due or to become due from from such Holder or Trustee, as the case may be, to any of the Guarantors, and (b) any moneys, credits or other property belonging to any of the Guarantors held by or coming into the possession of such Holder or the Trustee. (b) Each Guarantor agrees that any and all claims of such Guarantor against the Company, or against any of its properties, shall be subordinate and subject in right of payment to the prior payment of the Indenture Obligations. Notwithstanding any right of a Guarantor to ask, demand, sue for, take or receive any payment from the Company, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of the Company shall be and hereby are subordinated to the rights of the Holders and the Trustee in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose any such lien or security interest, whether by judicial action or otherwise, unless and until all of the Indenture Obligations shall have been fully paid and satisfied. If all or any part of the assets of the Company, or the proceeds thereof, are subject to any distribution, division or application to the creditors of the Company, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of the Company is dissolved, or if substantially all of the assets of the Company are sold, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of the Company to any Guarantor shall be paid or delivered directly to the Trustee for application on the Indenture Obligations due or to become due until such shall have first been fully paid and satisfied. Each Guarantor irrevocably authorizes and empowers the Trustee to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to make and present for and on behalf of such Guarantor such proofs of claim and take such other action, in the Trustee's own name or in the name of such Guarantor or otherwise, as the Trustee may deem necessary or advisable for the enforcement of the Guarantee. The Trustee may vote such proofs of claim in any such proceeding, receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and apply the same on account of any of the Indenture Obligations. Should any payment, distribution, security or instrument or proceeds thereof be received by a Guarantor upon or with respect to any Indebtedness of the Company to such Guarantor prior to the satisfaction of all of the Indenture Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Holders and shall forthwith deliver the same to the Trustee, for the benefit of the Holders, in precisely the form received (except for the endorsement or assignment or such Guarantor 5 where necessary), for application to any of the Indenture Obligations, and until so delivered, the same shall be held in trust by such Guarantor as the property of the Holders. If a Guarantor fails to make any such endorsement or assignment to the Trustee, the Trustee is hereby irrevocably authorized to make the same. Each Guarantor agrees that until the Indenture Obligations have been paid in full and satisfied, such Guarantor will not assign or transfer to any Person any claim that such Guarantor has or may have against the Company. ARTICLE THREE DELIVERY OF ADDITIONAL GUARANTEE Section 301. Execution of Guaranty. Simultaneously with the execution and delivery of this Third Supplemental Indenture, the Additional Guarantor shall execute and deliver to the Trustee a Guarantee in the form described in Section 205 of the Indenture. Section 302. Additional Guarantor is Guarantor Under Indenture and Securities. The Additional Guarantor hereby expressly assumes each of the obligations of a Guarantor, and upon execution of the Guarantee described above and this Third Supplemental Indenture, the defined term "Guarantor" in the Indenture shall include the Additional Guarantor and the defined term "Guarantee" in the Indenture shall include the guarantee executed pursuant to Section 301 of this Third Supplemental Indenture. ARTICLE FOUR MISCELLANEOUS Section 401. Counterpart Originals. 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. Section 402. Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. Section 403. Effectiveness. The provisions of this Third Supplemental Indenture will take effect immediately upon its execution and delivery to the Trustee. [remainder of page intentionally left blank; signature pages follow] 6 IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, all as of the date and year first written above. MARSH SUPERMARKETS, INC. MARSH DRUGS, INC. MUNDY REALTY, INC. MAR PROPERTIES, INC. MARLEASE, INC. MARSH INTERNATIONAL, INC. MARSH CULTURAL GROUP, INC. LIMITED HOLDINGS, INC. MARSH P.Q., INC. TEMPORARY SERVICES, INC. NORTH MARION DEVELOPMENT CORPORATION CONTRACT TRANSPORT, INC. TRADEMARK HOLDINGS, INC. By: /s/ Douglas W. Dougherty ---------------------------------------- Name: Douglas W. Dougherty Title: Senior Vice President CRYSTAL FOOD SERVICES, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer LOBILL FOODS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer CONTRACT TRANSPORT, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer MARSH SUPERMARKETS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer VILLAGE PANTRY, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer MARSH DRUGS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer 7 MARSH CLEARINGHOUSE, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer CONVENIENCE STORE DISTRIBUTING COMPANY, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer CONVENIENCE STORE TRANSPORTATION COMPANY, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer CRYSTAL FOOD MANAGEMENT SERVICES, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer McNAMARA, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer BUTTERFIELD FOODS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer By: /s/ Douglas W. Dougherty ------------------------------------ Douglas W. Dougherty Senior Vice President PANTRY PROPERTY, LLC By: VILLAGE PANTRY, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer MS PROPERTY, LLC By: MARSH SUPERMARKETS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer CF PROPERTY, LLC By: CRYSTAL FOOD SERVICES, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer MD PROPERTY, LLC By: MARSH DRUGS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer 8 LB PROPERTY, LLC By: LOBILL FOODS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer MCN PROPERTY, LLC By: McNAMARA, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer BF PROPERTY, LLC By: BUTTERFIELD FOODS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer CSD PROPERTY, LLC By: CONVENIENCE STORE DISTRIBUTING COMPANY, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer FLORAL PROPERTY, LLC By: MARSH SUPERMARKETS, LLC By: Marsh Supermarkets, Inc., its Chief Operating Officer By: /s/ Douglas W. Dougherty -------------------------------- Name: Douglas W. Dougherty Title: Senior Vice President MARSH VILLAGE PANTRIES, INC. By: /s/ Douglas W. Dougherty ---------------------------------------- Name: Douglas W. Dougherty Title: Senior Vice President CONVENIENCE STORE DISTRIBUTING COMPANY By: Marsh Village Pantries, Inc., its General Partner By: /s/ Douglas W. Dougherty ------------------------------------ Name: Douglas W. Dougherty Title: Senior Vice President 9 Attest: /s/ P. Lawrence Butt -------------------------------- P. Lawrence Butt, Secretary Marsh Supermarkets, Inc. Marsh Drugs, Inc. Marsh Village Pantries, Inc. Mundy Realty, Inc. 10 Mar Properties, Inc. Marlease, Inc. Marsh International, Inc. Marsh Cultural Group, Inc. Limited Holdings, Inc. Marsh Village Pantries, Inc., as general partner of Convenience Store Distributing Company Marsh P.Q., Inc. Temporary Services, Inc. North Marion Development Corporation Contract Transport, Inc. Marsh Supermarkets, Inc., as Chief Operating Officer of Crystal Food Services, LLC LoBill Foods, LLC Contract Transport, LLC Marsh Supermarkets, LLC Village Pantry, LLC Marsh Drugs, LLC Marsh Clearing House, LLC Convenience Store Distributing Company, LLC Convenience Store Transportation Company, LLC Crystal Food Management Services, LLC Butterfield Foods, LLC McNamara, LLC Attest: /s/ P. Lawrence Butt -------------------------------------- P. Lawrence Butt, Assistant Secretary Trademark Holdings, Inc. A. L. ROSS & SONS, INC. By: /s/ Donald A. Ross ------------------------------- Donald A. Ross, President Chief Executive Officer Attest: /s/ Trula A. Ross -------------------------------------- Trula A. Ross, Secretary STATE STREET BANK AND TRUST COMPANY, as Trustee By: /s/ Dennis Fisher ------------------------------------------- Name: Dennis Fisher Title: Assistant Vice President