EXECUTION COPY
EXHIBIT 4.16
SECOND SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated
as of October 22, 2003, among The Lehigh Press, Inc. (the "GUARANTEEING
SUBSIDIARY"), a subsidiary of Xxx Xxxxxxxx Corporation (or its permitted
successor), a Delaware corporation (the "COMPANY"), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank
National Association, as trustee under the indenture referred to below (the
"TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an indenture (the "INDENTURE"), dated as of March 26, 2002 providing
for the issuance of 10 1/4% Senior Notes due 2009 (the "NOTES") and any
Additional Notes (as defined in the Indenture);
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "NOTE
GUARANTEE");
WHEREAS, the Company is issuing an aggregate principal amount
of $60,000,000 of Additional Notes pursuant to the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is 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 parties hereto mutually covenant and agree for the equal and ratable benefit
of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Guarantors named in the Indenture,
to jointly and severally guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns that:
(i) the principal of, and premium and Liquidated
Damages, if any, and interest on the Notes will be promptly
paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other payment obligations of
the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that
same will be promptly paid in full
when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of
the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense
of a Guarantor.
(c) The following is hereby waived: diligence,
presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company,
protest, notice and all demands whatsoever.
(d) The Note Guarantee shall not be discharged except
by complete performance of the obligations contained in the
Notes and the Indenture, and the Guaranteeing Subsidiary
accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any
court or otherwise to return to the Company, the Guarantors,
or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled
to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the
purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Indenture, such
obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of
this Note Guarantee.
(h) The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the
Holders under the Note Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after
giving effect to any maximum amount and all other contingent
and fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and
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after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other
Guarantor under Article 10 of the Indenture, this new Note
Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Guarantor under this Note
Guarantee will not constitute a fraudulent transfer or
conveyance.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees
that the Note Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Note Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS.
(a) The Guaranteeing Subsidiary may not sell or
otherwise dispose of all substantially all of its assets to,
or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person, other than
the Company or another Guarantor unless:
(i) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(ii) either (A) subject to Sections 10.04 and 10.05
of the Indenture, the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any
such consolidation or merger unconditionally assumes all the
obligations of that Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note Guarantee
on the terms set forth herein or therein; or (B) the Net
Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture,
including without limitation, Section 4.10 thereof.
(b) In case of any such consolidation, merger, sale
or conveyance and upon the assumption by the successor Person,
by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a
Guarantor. Such successor Person thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon
all of the Notes issuable under the Indenture which
theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued
shall in all respects have the same legal rank and benefit
under the Indenture as the Note Guarantees theretofore and
thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been
issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 and
Section 10.05 of Article 10 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the Indenture or in any of the Notes shall prevent any
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consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another
Guarantor.
5. RELEASES.
(a) In the event of any sale or other disposition of
all or substantially all of the assets of any Guarantor, by
way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor, in
each case to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of
the Company, then such Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or
otherwise, of all of the capital stock of such Guarantor) or
the corporation acquiring the property (in the event of a sale
or other disposition of all or substantially all of the assets
of such Guarantor) will be released and relieved of any
obligations under its Note Guarantee; PROVIDED that the Net
Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture,
including without limitation Section 4.10 of the Indenture.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including
without limitation Section 4.10 of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations
under its Note Guarantee.
(b) Any Guarantor not released from its obligations
under its Note Guarantee shall remain liable for the full
amount of principal of and interest on the Notes and for the
other obligations of any Guarantor under the Indenture as
provided in Article 10 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.
8. 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.
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9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: October 22, 2003
XXX XXXXXXX CORPORATION
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
THE LEHIGH PRESS, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
XXX XXXXXXX HOLDINGS INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
H&S GRAPHICS, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
PREFACE, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
PRECISION OFFSET PRINTING COMPANY, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer and Treasurer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ AUTHORIZED SIGNATORY
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Authorized Signatory
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