EXHIBIT 4.1
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Second Senior Notes
Supplemental Indenture"), dated as of September 1 , 2004, among X.X. Xxxxxxxxx
Inc., a Delaware corporation ("Donnelley"), the Guarantors signatory hereto (the
"Guarantors") and The Bank of New York, as trustee under the Indenture referred
to below (the "Trustee").
W I T N E S S E T H :
WHEREAS, Donnelley, the guarantors party thereto and the Trustee
have entered into a Supplemental Indenture, dated as of January 3, 2003 (the
"First Senior Notes Supplemental Indenture"), relating to the Indenture, dated
as of December 3, 2002 (as heretofore amended and supplemented, the "Senior
Notes Indenture"), which provided for the issuance of the 8-7/8% Senior Notes
due 2010 (the "Securities");
WHEREAS, Section 8.01(a) of the Senior Notes Indenture provides,
among other things, that Donnelley and the Trustee may modify or amend the
Senior Notes Indenture without the consent of the Holders of the outstanding
Securities to, including, without limitation, add new Guarantors;
WHEREAS, Section 4.18 of the Senior Notes Indenture prohibits
Restricted Subsidiaries (as defined in the Senior Notes Indenture) from
guaranteeing or pledging any assets to secure the payment of any Debt (as
defined in the Senior Notes Indenture) of Donnelley or another Restricted
Subsidiary unless such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture providing for the Guarantee (as defined in the
Senior Notes Indenture) of payment of the Securities by such Restricted
Subsidiary;
WHEREAS, the execution of this Second Senior Notes Supplemental
Indenture has been duly approved and authorized by the Board of Directors of
Donnelley and the Guarantors and all other necessary corporate action on the
part of Donnelley and the Guarantors; and
WHEREAS, Donnelley has furnished, or caused to be furnished, to the
Trustee, and the Trustee has received, an Officers' Certificate and Opinion of
Counsel stating, among other things, that this Second Senior Notes Supplemental
Indenture is authorized or permitted by the Senior Notes Indenture.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged,
Donnelley, the Guarantors and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders as follows:
ARTICLE 1
Agreement
Section 1.1 Definitions. Capitalized terms used but not otherwise
defined in this Second Senior Notes Supplemental Indenture have the meanings
ascribed thereto in the Senior Notes Indenture.
Section 1.2 Additional Guarantors. Each of DonTech Holdings, LLC, a
Delaware limited liability company, X.X. Xxxxxxxxx Publishing & Advertising of
Illinois Holdings, LLC, a Delaware limited liability company, DonTech II
Partnership, an Illinois general partnership, and X.X. Xxxxxxxxx Publishing &
Advertising of Illinois Partnership, an Illinois general partnership, shall be
(i) a Subsidiary Guarantor under the Senior Notes Indenture and (ii) bound by
and subject to the terms and conditions of the Senior Notes Indenture applicable
to a Subsidiary Guarantor.
Section 1.3 Trustee's Acceptance. The Trustee hereby accepts this
Second Senior Notes Supplemental Indenture and agrees to perform the same under
the terms and conditions set forth in the Senior Notes Indenture.
ARTICLE 2
Miscellaneous
Section 2.1 Effect of Supplemental Indenture. Upon the execution and
delivery of this Second Senior Notes Supplemental Indenture by Donnelley, the
Guarantors and the Trustee, the Senior Notes Indenture shall be supplemented in
accordance herewith, and this Second Senior Notes Supplemental Indenture shall
form, along with the First Senior Notes Supplemental Indenture, a part of the
Senior Notes Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered under the Senior Notes
Indenture shall be bound thereby.
Section 2.2 Senior Notes Indenture and First Senior Notes
Supplemental Indenture Remain in Full Force and Effect. Except as supplemented
hereby, all provisions in the Senior Notes Indenture and First Senior Notes
Supplemental Indenture shall remain in full force and effect.
Section 2.3 Senior Notes Indenture, First Senior Notes Supplemental
Indenture and Second Senior Notes Supplemental Indenture Construed Together.
This Second Senior Notes Supplemental Indenture is an indenture supplemental to
and in implementation of the Senior Notes Indenture and First Senior Notes
Supplemental Indenture, and the Senior Notes Indenture, the First Senior Notes
Supplemental Indenture and this Second Senior Notes Supplemental Indenture shall
henceforth be read and construed together.
Section 2.4 Confirmation and Preservation of Senior Notes Indenture.
The Senior Notes Indenture and the First Senior Notes Supplemental Indenture, as
supplemented by this Second Senior Notes Supplemental Indenture, are in all
respects confirmed and preserved.
Section 2.5 Conflict with Trust Indenture Act. If any provision of
this Second Senior Notes Supplemental Indenture limits, qualifies or conflicts
with any provision of the TIA that is required or deemed under the TIA to be
part of and govern any provision of this Second Senior Notes Supplemental
Indenture, such provision of the TIA shall control. If any provision of this
Second Senior Notes Supplemental Indenture modifies or excludes any provision of
the TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to the Senior Notes Indenture and the First Senior Notes
Supplemental Indenture as so modified or to be excluded by this Second Senior
Notes Supplemental Indenture, as the case may be.
Section 2.6 Severability. In case any provision in this Second
Senior Notes Supplemental Indenture shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 2.7 Benefits of Second Senior Notes Supplemental Indenture.
Nothing in this Second Senior Notes Supplemental Indenture or the Securities,
express or implied, shall give to any Person, other than the parties hereto and
thereto and their successors hereunder and thereunder and the Holders of the
Securities, any benefit of any legal or equitable right, remedy or claim under
the Senior Notes Indenture, the First Senior Notes Supplemental Indenture, this
Second Senior Notes Supplemental Indenture or the Securities.
Section 2.8 Successors. All agreements of Donnelley in this Second
Senior Notes Supplemental Indenture shall bind its successors. All agreements of
the Trustee in this Second Senior Notes Supplemental Indenture shall bind its
successors.
Section 2.9 Certain Duties and Responsibilities of the Trustee. In
entering into this Second Senior Notes Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Senior
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Notes Indenture, the First Senior Notes Supplemental Indenture and the
Securities relating to the conduct or affecting the liability or affording
protection to the Trustee, whether or not elsewhere herein so provided.
Section 2.10 Governing Law. This Second Senior Notes 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.
Section 2.11 Multiple Originals. The parties may sign any number of
copies of this Second Senior Notes Supplemental Indenture, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Section 2.12 Headings. The Article and Section headings herein are
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
Section 2.13 The Trustee. The Trustee shall not be responsible in
any manner for or in respect of the validity or sufficiency of this Second
Senior Notes Supplemental Indenture or for or in respect of the recitals
contained herein, all of which are made by Donnelley and the Guarantors.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Senior Notes Supplemental Indenture to be duly executed as of the date first
written above.
X.X. XXXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GET DIGITAL XXXXX.XXX INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX APIL, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX PUBLISHING
& ADVERTISING, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
DONTECH HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX PUBLISHING & ADVERTISING
OF ILLINOIS HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
DONTECH II PARTNERSHIP
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX PUBLISHING & ADVERTISING
OF ILLINOIS PARTNERSHIP
By: X.X. Xxxxxxxxx Publishing &
Advertising of Illinois Holdings,
LLC, Its Managing Partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
THE BANK OF NEW YORK,
as trustee
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
