Exhibit 4.5
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture (this "Supplemental Indenture"), dated
as of January 31, 1999, among the companies identified on the signature pages
hereto as the "Guaranteeing Subsidiaries" (the "Guaranteeing Subsidiaries"),
each a Subsidiary (as defined in the Indenture referred to herein) of IMPAC
Group, Inc., a Delaware corporation (the "Company"), the Company, the other
Guarantors (as defined in the Indenture referred to herein), and State Street
Bank and Trust Company, 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 12, 1998, as amended
by the First Supplemental Indenture, dated as of July 21, 1998, providing for
the issuance of an aggregate principal amount of up to $100.0 million of 10-1/8%
Senior Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances each
of the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each of the Guaranteeing Subsidiaries
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantees"); 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, each of
the Guaranteeing Subsidiaries and the Trustee 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. Each of the Guaranteeing Subsidiaries
hereby agree 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, irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
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redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful,
and all other 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, 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) Each of these Subsidiary Guarantees shall not be discharged
except by complete performance of the obligations contained in
the Notes and 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, each of these
Subsidiary Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) Each of the Guaranteeing Subsidiaries 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.
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(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 each of these
Subsidiary 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 of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the
Guarantors for the purpose of each of these Subsidiary
Guarantees.
(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 Guarantee.
(i) The obligations hereunder shall be subject to the subordination
provisions set forth in Article 10 of the Indenture.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that
the Subsidiary Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) Each of the Guaranteeing Subsidiaries may not consolidate with or
merge with or into (whether or not such Guarantor is the
surviving Person) another corporation, Person or entity whether
or not affiliated with such Guarantor unless:
(i) subject to Section 11.05 and 11.06 of the Indenture, the
Person formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the
Notes, the Indenture and the Subsidiary Guarantee on the
terms set forth therein or therein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(iii)except in the case of a merger of a Guarantor with or into
another Guarantor or a merger of a Guarantor with or into
the Company, the Company would be permitted by virtue of the
Company's pro forma Fixed Charge Coverage Ratio, immediately
after giving effect to such transaction, to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed
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Charge Coverage Ratio test set forth in Section 4.09 of the
Indenture.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Subsidiary 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 corporation 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 corporation
thereupon may cause to be signed any or all of the Subsidiary
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 Subsidiary
Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of
the Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in
the Indenture or in any of the Notes shall prevent any
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.
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(a) In the event of a sale or other disposition of all of the assets
of any Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all to the Capital Stock of any
Guarantor (other than to the Company or another Guarantor), 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 (other than to the Company or another
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 Subsidiary Guarantee and any such
acquiring corporation will not be required to assume any
obligations of such Guarantor under the applicable Subsidiary
Guarantee; provided that such sale or other disposition complies
with all applicable provisions of the Indenture including,
without limitation, Section 4.10 thereof. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion
of
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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 Subsidiary Guarantee.
(b) Any Guarantor not released from its obligations under its
Subsidiary 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 11 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of each of the
Guaranteeing Subsidiaries, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary
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.
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 each of the Guaranteeing Subsidiaries 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.
SIGNATURES
COMPANY:
IMPAC GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
EXISTING GUARANTORS:
KLEARFOLD, INC., as Guarantor
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
AGI INCORPORATED, as Guarantor
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KF-INTERNATIONAL, INC., as
Guarantor
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
KF-DELAWARE, INC., as Guarantor
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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TRUSTEE:
State Street Bank And Trust
Company, as Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
-----------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
GUARANTEEING SUBSIDIARIES:
XXXXXXX ROBOR LIMITED, as
Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
XXXXX XXXXX LIMITED, as
Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
XXXXXXX ROBOR AUDIO AND COMPUTER SERVICES
LIMITED, as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
XXXXXXX ROBOR LABELS
LIMITED, as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
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XXXXXXX ROBOR SALES LIMITED,
as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
SONICON LIMITED, as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
TOPHURST PROPERTIES LIMITED,
as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxxxx Xxxxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxxxx Xxxxxxxx
Title: Secretary Director
XXXXXXX ROBOR (OVERSEAS)
LIMITED, as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxxxx Xxxxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxxxx Xxxxxxxx
Title: Secretary Director
PINEPOINT LIMITED, as Guarantor
By:
-----------------------------
Name:
Title:
PRINTING RESOURCES LIMITED, as Guarantor
By: Xxxxx Xxxxxxx
-----------------------------
Name:
Title: General Manager/Director
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IMPAC EUROPE LIMITED, as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
LEVELPROMPT LIMITED, as Guarantor
By: /s/ Xxxxxxx Xxxx Xxxxx /s/ Xxx Xxxxxx
----------------------- -------------------
Name: Xxxxxxx Xxxx Xxxxx Xxx Xxxxxx
Title: Secretary Director
