Exhibit 4.1
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CENVEO CORPORATION
(f/k/a MAIL-WELL I CORPORATION)
the GUARANTORS named in Schedule A hereto
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Supplementing the Indenture of
March 13, 2002
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Dated as of June 1, 2006
9 5/8% SENIOR NOTES DUE 2012
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of June 1, 2006 is
between Cenveo Corporation, a Delaware corporation f/k/a Mail-Well I
Corporation (the "COMPANY"), the Guarantors (as defined herein) listed on
Schedule A hereto (each a "GUARANTOR" and collectively the "GUARANTORS"),
and U.S. Bank National Association, as trustee (the "TRUSTEE").
WHEREAS, in connection with the issuance by the Company of its 9?%
Senior Notes due 2012, (the "NOTES"), in the aggregate principal amount of
$350,000,000, the Company and the Trustee entered into an indenture dated as
of March 13, 2002 (as supplemented by the First Supplemental Indenture dated
as of December 27, 2002, the "INDENTURE"); and
WHEREAS, Section 9.02 of the Indenture provides that the Company,
the Guarantors and the Trustee may amend or supplement the Indenture and the
Notes with the consent of the holders of at least a majority in principal
amount of the outstanding Notes; and
WHEREAS, the Company has offered to purchase any and all of the
outstanding Notes for cash, upon the terms and subject to the conditions set
forth in that certain Offer to Purchase and Consent Solicitation Statement
dated May 18, 2006 and the accompanying Letter of Transmittal and Consent
(collectively, with the ancillary documents associated therewith, the "OFFER
TO PURCHASE"); and
WHEREAS, under the terms of the Offer to Purchase, holders that
tender Notes in accordance with the terms of the Offer to Purchase are
deemed to consent to certain amendments to the Indenture which would
permanently delete or amend certain financial covenants, events of default
and other provisions of the Indenture and the Notes (the "PROPOSED
AMENDMENTS"); and
WHEREAS, in accordance with the terms of the Indenture, holders of
at least a majority in principal amount of the outstanding Notes have
consented to the Proposed Amendments to be effected by this Second
Supplemental Indenture; and
WHEREAS, the Company has authorized the execution and delivery of
this Second Supplemental Indenture; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Company, the Guarantors and the Trustee
have been done.
NOW THEREFORE, WITNESSETH, that, for and in consideration of the
premises, and in order to comply with the terms of Article Nine of the
Indenture, the Company agrees with the Guarantors and the Trustee as
follows:
ARTICLE 1.
AMENDMENT TO INDENTURE
SECTION 1.01. AMENDMENT
Effective as of the Operative Date (as hereinafter defined), the
Indenture is hereby amended as follows:
(a) To delete Sections 3.09, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.09, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and 4.19 in their
entirety. The text of each of the foregoing sections is hereby replaced by
the phrase, "[Intentionally Omitted]" and the surrounding sections are not
renumbered.
(b) To amend Section 1.01 by deleting the definition of
"Unrestricted Subsidiary" in its entirety and replace it with the following:
"Unrestricted Subsidiary" means any Subsidiary of
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the Company that is designated by the Board of Directors
as an Unrestricted Subsidiary pursuant to a board
resolution.
Any designation of a Subsidiary of the Company as
an Unrestricted Subsidiary shall be evidenced to the
Trustee by filing with the Trustee a certified copy of the
board resolution giving effect to such designation. The
Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted
Subsidiary.
(c) To delete Section 3.08 in its entirety and replace it with
the following:
SECTION 3.08. MANDATORY REDEMPTION.
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The Company shall not be required to make
mandatory redemption payments with respect to the Notes.
(d) To delete Section 5.01 in its entirety and replace it with
the following:
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
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The Company may not, directly or indirectly: (i)
consolidate or merge with or into another Person (whether
or not the Company is the surviving corporation); or (ii)
sell, assign, transfer, convey or otherwise dispose of all
or substantially all of its properties or assets, in one
or more related transactions, to another Person; unless:
(a) either: (i) the Company is the surviving
corporation; or (ii) the Person formed by or surviving any
such consolidation or merger (if other than the Company)
or to which such sale, assignment, transfer, conveyance or
other disposition shall have been made is a corporation
organized or existing under the laws of the United States,
any state thereof or the District of Columbia;
(b) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the
Person to which such sale, assignment, transfer,
conveyance or other disposition shall have been made,
expressly assumes all the
obligations of the Company under the Notes and this
Indenture pursuant to agreements reasonably satisfactory
to the Trustee;
(c) immediately after such transaction no Default
or Event of Default exists; and
(d) [intentionally omitted]
In addition, the Company may not, directly or
indirectly, lease all or substantially all of its
properties or assets, in one or more related transactions,
to any other Person. This Section 5.01 shall not apply to
a merger, consolidation, sale, assignment, transfer,
conveyance or other disposition of assets between or among
the Company and any of its Wholly Owned Subsidiaries. For
the avoidance of doubt, this covenant also will not apply
to sales of the assets or stocks of Subsidiaries that the
Company currently is holding for sale as part of its
strategic plan. The assets or stocks that are part of the
strategic plan are specified as discontinued operations or
assets held for sale on the Parent Company's December 31,
2001 balance sheet.
(e) To delete Section 6.01 in its entirety and replace it with
the following:
SECTION 6.01. EVENTS OF DEFAULT.
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Each of the following is an "Event of Default":
(a) default for 30 days in the payment when due
of interest on, or Liquidated Damages with respect to, the
Notes;
(b) default in payment when due of the principal
of or premium, if any, on the Notes;
(c) [intentionally omitted];
(d) failure by the Company or any of its
Restricted Subsidiaries to comply with any of the other
agreements in this Indenture for 60 days after notice to
the Company by the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then
outstanding;
(e) [intentionally omitted]
(f) [intentionally omitted]
(g) except as permitted by this Indenture, any
Note Guarantee shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Note Guarantee;
(h) the Company or any of the Company's
Restricted Subsidiaries that are Significant Subsidiaries
or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary pursuant
to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order
for relief against it in an involuntary case,
(iii) consents to the appointment of a
custodian of it or for all or substantially all of its
property,
(iv) makes a general assignment for the
benefit of its creditors, or
(v) generally is not paying its debts
as they become due; or
(i) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(i) is for relief against the Company
or any of the Company's Restricted Subsidiaries that are
Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Company
or any of the Company's Restricted Subsidiaries that are
Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary or for all or substantially all of
the property of the Company or any of the Company's
Restricted Subsidiaries that are Significant Subsidiaries
or any group of Restricted Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the
Company or any of the Company's Restricted Subsidiaries
that are Significant Subsidiaries or any group of
Restricted
Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in
effect for 60 consecutive days.
(f) To delete Section 10.01 in its entirety and replace it with
the following:
SECTION 10.01. NOTE GUARANTEES.
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Subject to the provisions of this Article 10,
each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the
Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of, premium and
Liquidated Damages, if any, and interest on the Notes
shall be promptly paid in full when due, whether at the
maturity or interest payment or mandatory redemption date,
by acceleration, redemption or otherwise, and interest on
the overdue principal of, premium and Liquidated Damages,
if any, and interest on the Notes, if any, if lawful, and
all other obligations of the Company to the Holders or the
Trustee under this Indenture and the Notes shall be
promptly paid in full or performed, all in accordance with
the terms of this Indenture and the Notes; and (b) in case
of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, 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. The Guarantors hereby agree that
their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability
of the Notes or this 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 of this
Indenture and the Notes, 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.
Each Guarantor hereby waives 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 and covenant
that the Guarantees shall not be
discharged except by complete performance of the
obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any
court or otherwise to return to the Company or Guarantors,
or any Custodian, Trustee, liquidator or other similar
official acting in relation to either the Company or
Guarantors, any amount paid by either to the Trustee or
such Holder, these Guarantees, to the extent theretofore
discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it 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.
Each Guarantor further agrees that, 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 hereof for the purposes of these
Guarantees, 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 hereof, such obligations (whether or
not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of these
Guarantees. 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 these Guarantees.
(g) All definitions set forth in Section 1.01 that relate to
defined terms used solely in sections deleted hereby are deleted in their
entirety.
ARTICLE 2.
MISCELLANEOUS
SECTION 2.01. OPERATIVE DATE
This Second Supplemental Indenture is effective when executed. The
Proposed Amendments made hereby shall only become operative on the Initial
Payment Date (as defined in the Offer to Purchase) (the "OPERATIVE DATE").
In the event the Initial Payment Date does not occur, this Second
Supplemental Indenture shall become null and void.
SECTION 2.02. WAIVER
Subject to the last sentence of the fourth paragraph of Section
9.02 of the Indenture, limiting the effect of certain waivers without the
consent of each Holder (as defined in the Indenture), if applicable, all
Defaults and Events of Default (as defined in the Indenture) that may exist
under the Indenture at the Operative Date are hereby waived.
SECTION 2.03. COUNTERPART ORIGINALS
The parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of
them together shall constitute the same agreement.
SECTION 2.04. GOVERNING LAW
This Second Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to its conflicts of laws principles.
SECTION 2.05. TRUSTEE'S DISCLAIMER
The recitals contained herein shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date and year
first written above.
CENVEO CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
CENVEO, INC. (f/k/a MAIL-WELL, INC.)
DISCOUNT LABELS, INC.
CENVEO GOVERNMENT PRINTING, INC.
(f/k/a MAIL-WELL COMMERCIAL
PRINTING, INC.)
CENVEO SERVICES, L.L.C. (f/k/a MAIL-
WELL SERVICES, INC.)
CENVEO COMMERCIAL OHIO, L.L.C
CENVEO RESALE OHIO, L.L.C.
MMTP HOLDINGS, INC.
GRAPHIC ARTS CENTER DE MEXICO
COLORHOUSE CHINA, INC.
CENVEO ALBERTA FINANCE, LP (f/k/a
MAIL-WELL ALBERTA FINANCE, LP)
XXXXXXX XXXXXX & XXXX COMPANY
MM&T PACKAGING COMPANY
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: V.P., Corporate Trust Services
SCHEDULE A
SCHEDULE OF GUARANTORS
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CENVEO, INC. (f/k/a MAIL-WELL, INC.)
DISCOUNT LABELS, INC.
CENVEO GOVERNMENT PRINTING, INC. (f/k/a MAIL-WELL COMMERCIAL PRINTING, INC.)
CENVEO SERVICES, L.L.C. (f/k/a MAIL-WELL SERVICES, INC.)
CENVEO COMMERCIAL OHIO, L.L.C
CENVEO RESALE OHIO, L.L.C.
MMTP HOLDINGS, INC.
GRAPHIC ARTS CENTER DE MEXICO
COLORHOUSE CHINA, INC.
CENVEO ALBERTA FINANCE, LP (f/k/a MAIL-WELL ALBERTA FINANCE, LP)
XXXXXXX XXXXXX & XXXX COMPANY
MM&T PACKAGING COMPANY
