EXHIBIT 4.5
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE (this "Series A-2 Supplemental
Indenture"), dated as of January 31, 2006, is between X.X. Xxxxxxxxx
Corporation, a Delaware corporation ("Donnelley"), and The Bank of New York, as
trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, X.X. Xxxxxxxxx Finance Corporation III, a Delaware
corporation ("Finance Corp."), and the Trustee heretofore executed and delivered
an Indenture, dated as of January 27, 2006 (the "Series A-2 Indenture"),
providing for the issuance of $660,000,000 aggregate principal amount at
maturity ($600,474,600 gross proceeds) of 6.875% Series A-2 Senior Discount
Notes due 2013 of Finance Corp. (the "Series A-2 Notes"; capitalized terms used
herein but not otherwise defined have the meanings ascribed thereto in the
Series A-2 Indenture);
WHEREAS, as a result of the merger of Finance Corp. with and into
Donnelley as contemplated in the Series A-2 Indenture, Donnelley will assume the
obligations of Finance Corp. under the Series A-2 Indenture and the Series A-2
Notes;
WHEREAS, Section 5.01 of the Series A-2 Indenture instructs the
Trustee and Donnelley to enter into this Series A-2 Supplemental Indenture; and
WHEREAS, this Series A-2 Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of each of Donnelley
and the Trustee.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged,
Donnelley and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders as follows:
ARTICLE I
Assumption by the Surviving Person
Section 1.1. Assumption of the Series A-2 Notes. Donnelley hereby
expressly assumes the due and punctual payment of the principal amount at
maturity (or Accreted Value, as the case may be) of the Series A-2 Notes, any
accrued and unpaid interest on such principal amount at maturity, according to
their tenure, and the due and punctual performance and observance of all the
covenants and conditions under the Series A-2 Indenture to be performed by
Finance Corp.
Section 1.2. Trustee's Acceptance. The Trustee hereby accepts this
Series A-2 Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Series A-2 Indenture.
ARTICLE II
Effect of Supplemental Indenture
Section 2.1. Effect of this Series A-2 Supplemental Indenture. Upon
the execution and delivery of the Series A-2 Supplemental Indenture by Donnelley
and acceptance by the Trustee, the Series A-2 Indenture shall be supplemented in
accordance herewith, and this Series A-2 Supplemental Indenture shall form a
part of the Series A-2 Indenture for all purposes, and every Holder of Series
A-2 Notes heretofore or hereafter authenticated and delivered under the Series
A-2 Indenture shall be bound thereby.
Section 2.2. Series A-2 Indenture Remains in Full Force and Effect.
Except as supplemented hereby, all provisions in the Series A-2 Indenture shall
remain in full force and effect.
Section 2.3. Series A-2 Indenture and this Series A-2 Supplemental
Indenture Construed Together. This Series A-2 Supplemental Indenture is an
indenture supplemental to and in implementation of the Series A-2 Indenture, and
the Series A-2 Indenture and this Series A-2 Supplemental Indenture shall
henceforth be read and construed together.
Section 2.4. Confirmation and Preservation of the Series A-2
Indenture. The Series A-2 Indenture as supplemented by this Series A-2
Supplemental Indenture is in all respects confirmed and preserved.
Section 2.5. Trust Indenture Act Controls. If any provision of this
Series A-2 Supplemental Indenture limits, qualifies or conflicts with another
provision that is required to be included in this Series A-2 Supplemental
Indenture by the TIA, the required provision shall control. If any provision of
this Series A-2 Supplemental Indenture modifies any TIA provision that may be so
modified, such TIA provision shall be deemed only to apply to this Series A-2
Supplemental Indenture as modified. If any provision of this Series A-2
Supplemental Indenture excludes any TIA provision that may be excluded, such TIA
provision shall be excluded from this Series A-2 Supplemental Indenture.
Section 2.6. Severability. In case any provision in this Series A-2
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 Series A-2 Supplemental Indenture. Nothing in
this Series A-2 Supplemental Indenture or the Series A-2 Notes, 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 Series A-2
Notes, any benefit of any legal or equitable right, remedy or claim under the
Series A-2 Indenture, this Series A-2 Supplemental Indenture or the Series A-2
Notes.
ARTICLE III
Miscellaneous
Section 3.1. Successors. All agreements of Donnelley in this Series
A-2 Supplemental Indenture shall bind its successors. All agreements of the
Trustee in this Series A-2 Supplemental Indenture shall bind its successors.
Section 3.2. Certain Duties and Responsibilities of the Trustee. In
entering into this Series A-2 Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Series A-2 Indenture and the
Series A-2 Notes relating to the conduct or affecting the liability or affording
protection to the Trustee, whether or not elsewhere herein so provided.
Section 3.3. Governing Law. This Series A-2 Supplemental Indenture
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Section 3.4. Multiple Originals. The parties hereto may sign multiple
counterparts to this Series A-2 Supplemental Indenture. Each signed counterpart
shall be deemed an original, but all of them together shall constitute one and
the same instrument.
Section 3.5. Headings. The Article and Section headings herein are
inserted for convenience of reference only, are not to be considered a part
hereof, and shall not modify or restrict any of the terms or provisions hereof.
Section 3.6. The Trustee. The Trustee shall not be responsible in any
manner for or in respect of the validity or sufficiency of this Series A-2
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made by Donnelley.
[SIGNATURES ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties hereto have caused this Series A-2
Supplemental Indenture to be duly executed as of the date first written above.
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President, General Counsel
and Corporate Secretary
THE BANK OF NEW YORK, as trustee
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
