Exhibit 4.4
_______________________________________________________________________________
IMPAC GROUP, INC.
TO
STATE STREET BANK AND TRUST COMPANY,
as Trustee
____________________
First Supplemental Indenture
Dated as of July 21, 1998
TO
Indenture
Dated as of March 12, 1998
____________________
$100,000,000
10 1/8% Senior Subordinated Notes Due March 15, 2008
_______________________________________________________________________________
TABLE OF CONTENTS
Page
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Parties.................................................................... 1
Recitals of the Company.................................................... 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 1.1. Definitions.................................................. 1
ARTICLE TWO
Amendments to Indenture
SECTION 2.1. Definitions.................................................. 2
SECTION 2.2. Incurrence of Indebtedness and Issuance of Preferred Stock... 4
SECTION 2.3. Additional Subsidiary Guarantees............................. 6
SECTION 2.4. Amendment Conditions......................................... 7
ARTICLE THREE
Miscellaneous
SECTION 3.1. Miscellaneous................................................ 7
TESTIMONIUM................................................................ 9
SIGNATURES AND SEALS....................................................... 9
ACKNOWLEDGMENTS............................................................ 10
____________________
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the First Supplemental Indenture.
FIRST SUPPLEMENTAL INDENTURE, dated as of July 21, 1998, between IMPAC
Group, Inc., a Delaware corporation (the "Company"), having its principal office
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at 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx, and State Street Bank and
Trust Company, a Massachusetts trust company, as Trustee (the "Trustee").
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RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of March 12, 1998 (the "Indenture"), providing for the
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issuance of the Company's 10 1/8% Senior Subordinated Notes due March 15, 2008
(herein and therein called the "Notes").
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SECTION 9.02 of the Indenture provides that, the Company, when authorized
by a resolution of its Board of Directors, and the Trustee may amend or
supplement the Indenture with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding voting as a single class.
The Company, pursuant to the foregoing authority, proposes in and by this
First Supplemental Indenture to supplement and amend certain of the provisions
of the Indenture.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, and a valid supplement to the Indenture, have been
done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Notes as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 1.1. Definitions. For all purposes of this First Supplemental
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Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this First
Supplemental
Indenture and, where so specified, to the Articles and Sections of the Indenture
as supplemented by this First Supplemental Indenture; and
(3) The terms "hereof," "herein," "hereby," "hereto," "hereunder" and
"herewith" refer to this First Supplemental Indenture.
ARTICLE TWO
Amendments to Indenture
SECTION 2.1. Definitions.
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(a) SECTION 1.01 of the Indenture is hereby amended by adding the
following defined terms in the appropriate alphabetical order:
"Bidco" means the Subsidiary formed by the Company to acquire Xxxxxxx.
"Domestic Subsidiary" means, with respect to the Company, any Restricted
Subsidiary of the Company that was formed under the laws of the United States of
America or any state or territory thereof.
"Foreign Subsidiary" means, with respect to the Company, any Restricted
Subsidiary of the Company that is not a Domestic Subsidiary.
"Guarantor Subsidiary" means any Domestic Subsidiary and any Foreign
Subsidiary if such Foreign Subsidiary no longer qualifies as a Non-Guarantor
Foreign Subsidiary.
"Loan Notes" means up to 15 million aggregate principal amount of
promissory notes of Bidco issued to shareholders of Xxxxxxx in connection with
the acquisition of Xxxxxxx by Bidco.
"Loan Notes Guarantee" means any letter of credit or guarantee issued by
Bank of America National Trust and Savings Association or its affiliates or
another financial institution guaranteeing amounts outstanding under the Loan
Notes.
"Non-Guarantor Foreign Subsidiary" means any Foreign Subsidiary which (i)
at the time of determination is not permitted under applicable law to deliver an
unlimited Guarantee of the Notes and all Senior Debt of the Company or if the
delivery of such a Guarantee is permitted by applicable law but would have
significant adverse tax or accounting effects on such Foreign Subsidiary or the
Company and its other Subsidiaries, as determined in good faith by the Board of
Directors, and (ii) does not guarantee any Indebtedness of the Company or
otherwise provide credit support directly to the holder of any Indebtedness of
the Company.
"Xxxxxxx " means Xxxxxxx Robor plc.
(b) SECTION 1.01 of the Indenture is hereby amended by amending the
following defined terms in their entirety to read as set forth below:
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (i) the Net Income (but not loss) of
any Person that is not a Restricted Subsidiary or that is accounted for by
the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the referent Person or
a Wholly Owned Restricted Subsidiary thereof that is a Guarantor or a Non-
Guarantor Foreign Subsidiary, (ii) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment
of dividends or similar distributions by that Restricted Subsidiary of that
Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) and without direct or
indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders, (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition
shall be excluded, (iv) the cumulative effect of a change in accounting
principles shall be excluded, (v) the Net Income of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the Company or
one of its Restricted Subsidiaries, and (vi) the Net Income of any
Restricted Subsidiary shall be calculated after deducting preferred stock
dividends payable by such Restricted Subsidiary to Persons other than the
Company and its other Restricted Subsidiaries.
"Guarantors" means each of (i) AGI Incorporated, Klearfold, Inc., KF-
International, Inc. and KF-Delaware, Inc. and (ii) any other
Guarantor-Subsidiary that executes a Guarantee in accordance with the
provisions of this Indenture, and their respective successors and assigns.
"Permitted Investments" means (a) any Investment in the Company or in
a Restricted Subsidiary of the Company; (b) any Investment in Cash
Equivalents; (c) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment (i) such
Person becomes a Restricted Subsidiary of the Company or (ii) such Person
is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company; (d) any Investment made
as a result of
the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.10 hereof; (e) any acquisition
of assets solely in exchange for the issuance of Equity Interests (other
than Disqualified Stock) of the Company; (f) Hedging Obligations; and (g)
other Investments in any Person having an aggregate fair market value
(measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (g) that are at the time
outstanding, not to exceed $1.0 million.
SECTION 2.2. Incurrence of Indebtedness and Issuance of Preferred Stock.
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Section 4.09 of the Indenture is hereby amended in its entirety to read as set
forth below:
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and that the
Company shall not issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least 2.0 to 1, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred, or the Disqualified Stock had been issued, as the case may
be, at the beginning of such four-quarter period.
The provisions of the first paragraph of this Section 4.09 will not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of
credit (with letters of credit being deemed to have a principal amount
equal to the stated amount thereof) and other obligations under Credit
Facilities in an aggregate principal amount that does not exceed at any one
time $40.0 million less the aggregate amount of all Net Proceeds of Asset
Sales applied to repay Indebtedness under a Credit Facility pursuant to
Section 4.10 hereof (other than temporary paydowns pending final
application of such Net Proceeds);
(ii) the incurrence by the Company and the Guarantors of the
Existing Indebtedness and letters of credit (including reimbursement
obligations with respect thereto) supporting Existing Indebtedness whether
such letters of credit are incurred under the New Credit Facility or
otherwise;
(iii) the incurrence by the Company of Indebtedness represented by
the Notes;
(iv) the incurrence by the Company or any of the Guarantors or Non-
Guarantor Foreign Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations, in each
case incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or
equipment used in the business of the Company or such Subsidiary, in an
aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any other
Indebtedness incurred pursuant to this clause (iv), not to exceed $5.0
million at any time outstanding;
(v) the incurrence by the Company or any of the Guarantors of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that is permitted by this Indenture to be
incurred under the first paragraph hereof or clauses (ii) or (iv) or (xi)
of this paragraph;
(vi) the incurrence by the Company or any of the Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any Restricted Subsidiary; provided, however, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes and (ii)(A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Subsidiary thereof and (B) any sale or
transfer of any such Indebtedness to a Person that is not either the
Company or a Restricted Subsidiary thereof shall be deemed, in each case,
to constitute an incurrence of such Indebtedness by the Company or such
Restricted Subsidiary, as the case may be, that was not permitted by this
clause (vi);
(vii) the incurrence by the Company or any of the Guarantors of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding;
(viii) the guarantee by the Company or any of its Subsidiaries or any
of the Guarantors of the Indebtedness of the Company or another Subsidiary
that was permitted to be incurred by another provision of this Section
4.09;
(ix) the incurrence by the Company's Unrestricted Subsidiaries of
Non-Recourse Debt; provided, however, that if any such Indebtedness ceases
to
be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness by a Restricted
Subsidiary of the Company that was not permitted by this clause (ix), and
the issuance of preferred stock by Unrestricted Subsidiaries;
(x) the incurrence by the Company or any of the Guarantors or Non-
Guarantor Foreign Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (x), not to exceed $5.0 million; and
(xi) the incurrence by Bidco of Indebtedness under the Loan Notes
and the incurrence by the Company of Indebtedness with respect to its
reimbursement obligation to the issuer of any Loan Notes Guarantees.
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xi) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this Section 4.09. Accrual of interest, accretion
or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional shares of
the same class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09; provided, however, in each such case, that the amount thereof is included
in Fixed Charges of the Company as accrued (to the extent not already included
in Fixed Charges).
SECTION 2.3. Additional Subsidiary Guarantees. Section 4.17 of the Indenture
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is hereby amended in its entirety to read as set forth below:
If the Company or any of its Restricted Subsidiaries shall acquire or
create another Guarantor Subsidiary after the date of this Indenture, or if any
Subsidiary of the Company becomes a Guarantor Subsidiary then such newly
acquired or created Guarantor Subsidiary shall become a Guarantor and execute a
Supplemental Indenture and deliver an Opinion of Counsel, in accordance with the
terms of this Indenture; provided, that all Subsidiaries that have properly been
designated as Unrestricted Subsidiaries in accordance with this Indenture (i)
shall not be subject to the requirements of this Section 4.17 and (ii) shall be
released from all Obligations under any Subsidiary Guarantee, in each case for
so long as they continue to constitute Unrestricted Subsidiaries. With respect
to any Foreign Subsidiary that is not permitted under applicable law to deliver
an unlimited Guarantee of the Notes
and all Senior Debt of the Company and its Subsidiaries or if the delivery of
such a Guarantee would have significant adverse tax or accounting effects on
such Foreign Subsidiary or the Company and its other Subsidiaries as determined
in good faith by the Board of Directors ("Adverse Effects"), (i) the Company
will use commercially reasonable and lawful efforts to overcome the restrictions
imposed by applicable law on the delivery of such a Guarantee or the Adverse
Effects caused by the delivery of such a Guarantee and (ii) if the delivery by a
Foreign Subsidiary of an unlimited Guarantee of the Notes and Senior Debt of the
Company and its Subsidiaries would not be permitted under applicable law or
would have Adverse Effects but the delivery of a partial Guarantee would be
permitted by applicable law and would not have Adverse Effects, the Company
will, if first consented to in writing by the agent and all appropriate lenders
under the New Credit Facility and other holders of Senior Debt under Credit
Facilities, cause such Foreign Subsidiary to deliver a partial Guarantee of the
Notes and Senior Debt of the Company and its Subsidiaries (based on percentages
of principal amount or such other methodology as the Board of Directors
determines in good faith treats the Holders and holders of Senior Debt as
similarly as practicable under the circumstances). With respect to any Foreign
Subsidiary that is or becomes a Guarantor Subsidiary, the Company shall cause
such Guarantor Subsidiary to become a Guarantor as described above as promptly
as practicable under the circumstances.
SECTION 2.4 Amendment Conditions. The amendments to the Indenture contained
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herein shall not become operative until the acquisition by the Company or one of
its Subsidiaries of at least fifty percent (50%) of the outstanding capital
stock of Xxxxxxx Robor plc.
ARTICLE THREE
Miscellaneous
SECTION 3.1. Miscellaneous.
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(a) The Trustee accepts the trusts created by the Indenture, as
supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
First Supplemental Indenture.
(b) The recitals contained herein shall be taken as statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture.
(c) All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
(d) Each of the Company and the Trustee makes and reaffirms as of the date
of execution of this First Supplemental Indenture all of its respective
representations, covenants and agreements set forth in the Indenture.
(e) All covenants and agreements in this First Supplemental Indenture by
the Company or the Trustee shall bind its respective successors and assigns,
whether so expressed or not.
(f) In case any provisions in this First 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.
(g) Nothing in this First Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto and their successors
under the Indenture and the Holders of the series of Notes created hereby, any
benefit or any legal or equitable right, remedy or claim under the Indenture.
(h) If any provisions hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act of 1939, as may be amended from time to
time, that is required under such Act to be a part of and govern this First
Supplemental Indenture, the latter provision shall control. If any provision
hereof modifies or excludes any provision of such Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this First
Supplemental Indenture as so modified or excluded, as the case may be.
(i) THIS FIRST 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.
(j) All provisions of this First Supplemental Indenture shall be deemed to
be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented by this First Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
IMPAC GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
Attest:
[Illegible]
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STATE STREET BANK AND
TRUST COMPANY,
As Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
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Name: Xxxxxx X. XxxXxxxxx
Title: Assistant Vice President
Attest:
[Illegible]
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ACKNOWLEDGEMENT OF GUARANTORS
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The undersigned Guarantors acknowledge and consent to the terms of this
First Supplemental Indenture.
AGI INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KLEARFOLD, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KF-INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KF-DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
