Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Third Senior Notes Supplemental
Indenture"), dated as of December 6, 2005, among ▇.▇. ▇▇▇▇▇▇▇▇▇ 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 :
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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"), and a Second Supplemental Indenture,
dated as of September 1, 2004 (the "Second 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, Donnelley desires and has requested the Trustee to join with
Donnelley and the Guarantors in the execution and delivery of this Third Senior
Notes Supplemental Indenture for the purpose of amending the Senior Notes
Indenture in order to eliminate certain covenants and Events of Default;
WHEREAS, Section 8.02 of the Senior Notes Indenture provides that a
supplemental indenture may be entered into by Donnelley, the Guarantors and the
Trustee to change certain provisions of the Senior Notes Indenture or modify
certain rights of the Holders with the consent of registered Holders at least a
majority in aggregate principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for Notes) and with the authorization by a resolution of the Board of Directors
of Donnelley;
WHEREAS, pursuant to a solicitation by Donnelley, consents to the
amendments to the Senior Notes Indenture, which will eliminate certain covenants
and Events of Default pursuant to this Third Senior Notes Supplemental
Indenture, of Holders of at least a majority in aggregate principal amount of
the Securities then outstanding have been received;
WHEREAS, the execution of this Third 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 Third 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
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Section 1.1 Definitions. Capitalized terms used but not otherwise
defined in this Third Senior Notes Supplemental Indenture have the meanings
ascribed thereto in the Senior Notes Indenture.
Section 1.2 Amendments to the Senior Notes Indenture.
(a) SECTION 4.03 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(b) SECTION 4.04 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(c) SECTION 4.06 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(d) SECTION 4.07 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(e) SECTION 4.08 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(f) SECTION 4.09 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(g) SECTION 4.10 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(h) SECTION 4.11 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(i) SECTION 4.12 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(j) SECTION 4.13 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(k) SECTION 4.14 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(l) SECTION 4.15 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(m) SECTION 4.16 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(n) SECTION 4.17 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(o) SECTION 4.18 of ARTICLE FOUR of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(p) SECTION 5.01 of ARTICLE FIVE of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
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(q) SECTION 5.02 of ARTICLE FIVE of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(r) Subsection (3) of SECTION 6.01 of ARTICLE SIX of the Senior Notes
Indenture is amended by deleting the subsection in its entirety, together with
any references thereto in the Senior Notes Indenture, and replacing it with the
following: "Intentionally omitted."
(s) Subsection (5) of SECTION 6.01 of ARTICLE SIX of the Senior Notes
Indenture is amended by deleting the subsection in its entirety, together with
any references thereto in the Senior Notes Indenture, and replacing it with the
following: "Intentionally omitted."
(t) Subsection (8) of SECTION 6.01 of ARTICLE SIX of the Senior Notes
Indenture is amended by deleting the subsection in its entirety, together with
any references thereto in the Senior Notes Indenture, and replacing it with the
following: "Intentionally omitted."
(u) SECTION 9.02 of ARTICLE NINE of the Senior Notes Indenture is
amended by deleting the section in its entirety, together with any references
thereto in the Senior Notes Indenture, and replacing it with the following:
"Intentionally omitted."
(v) Any defined terms present in the Senior Notes Indenture, but no
longer used as a result of the amendments made by this Third Senior Notes
Supplemental Indenture are hereby eliminated. The definition of any defined term
used in the Senior Notes Indenture, where such definition is set forth in any of
the sections or subsections that are eliminated by this Third Senior Notes
Supplemental Indenture and the term it defines is still used in the Senior Notes
Indenture after the amendments hereby become effective, shall be deemed to
become part of, and defined in, Section 1.01 of the Senior Notes Indenture. Such
defined terms are to be in alphanumeric order within Section 1.01 of the Senior
Notes Indenture.
ARTICLE 2
Miscellaneous
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Section 2.1 Effect and Operation of Third Senior Notes Supplemental
Indenture. This Third Senior Notes Supplemental Indenture shall be effective and
binding immediately upon its execution and thereupon this Third Senior Notes
Supplemental Indenture shall form a part of the Senior Notes Indenture for all
purposes, and every Security heretofore or hereafter authenticated and delivered
under the Senior Notes Indenture shall be bound hereby, but, notwithstanding
anything in the Senior Notes Indenture or this Third Senior Notes Supplemental
Indenture to the contrary, this Third Senior Notes Supplemental Indenture shall
not be operative until Donnelley has accepted for payment all of the Securities
validly tendered pursuant to the Offer (as defined in Donnelley's Offer to
Purchase and Consent Solicitation Statement, dated November 21, 2005 (the
"Statement")). If the Offer is terminated or withdrawn, or the Securities are
not accepted for payment for any reason, this Third Senior Notes Supplemental
Indenture will not become operative. Except as modified and amended by this
Third Senior Notes Supplemental Indenture, all provisions of the Senior Notes
Indenture shall remain in full force and effect.
Section 2.2 Senior Notes Indenture, First Senior Notes Supplemental
Indenture and Second Senior Notes Supplemental Indenture Remain in Full Force
and Effect. Except as supplemented hereby, all provisions in the Senior Notes
Indenture, the First Senior Notes Supplemental Indenture and the Second Senior
Notes Supplemental Indenture shall remain in full force and effect.
Section 2.3 Senior Notes Indenture, First Senior Notes Supplemental
Indenture, Second Senior Notes Supplemental Indenture and Third Senior Notes
Supplemental Indenture Construed Together. This Third Senior Notes Supplemental
Indenture is an indenture supplemental to and in implementation of the Senior
Notes Indenture, the First Senior Notes Supplemental Indenture and the Second
Senior Notes Supplemental Indenture, and the Senior Notes Indenture, the First
Senior Notes Supplemental Indenture, the Second Senior Notes Supplemental
Indenture and this Third Senior Notes Supplemental Indenture shall henceforth be
read and construed together.
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Section 2.4 Confirmation and Preservation of Senior Notes Indenture.
The Senior Notes Indenture, the First Senior Notes Supplemental Indenture and
the Second Senior Notes Supplemental Indenture, as supplemented by this Third
Senior Notes Supplemental Indenture, are in all respects confirmed and
preserved.
Section 2.5 Conflict with Trust Indenture Act. If any provision of this
Third 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 Third Senior Notes Supplemental Indenture, such
provision of the TIA shall control. If any provision of this Third 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, the First Senior Notes Supplemental Indenture and
the Second Senior Notes Supplemental Indenture as so modified or to be excluded
by this Third Senior Notes Supplemental Indenture, as the case may be.
Section 2.6 Severability. In case any provision in this Third 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 Third Senior Notes Supplemental Indenture.
Nothing in this Third 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, the
Second Senior Notes Supplemental Indenture, this Third Senior Notes Supplemental
Indenture or the Securities.
Section 2.8 Successors. All agreements of Donnelley in this Third
Senior Notes Supplemental Indenture shall bind its successors. All agreements of
the Trustee in this Third Senior Notes Supplemental Indenture shall bind its
successors.
Section 2.9 Certain Duties and Responsibilities of the Trustee. In
entering into this Third Senior Notes Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Senior Notes Indenture, the
First Senior Notes Supplemental Indenture, the Second 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 Third 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 Third 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 Third Senior
Notes Supplemental Indenture or for or in respect of the recitals contained
herein, all of which are made by Donnelley and the Guarantors.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Third Senior Notes
Supplemental Indenture to be duly executed as of the date first written above.
▇.▇. ▇▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
GET DIGITAL ▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇▇▇▇ APIL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇▇▇▇ PUBLISHING &
ADVERTISING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
DONTECH HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
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▇.▇. ▇▇▇▇▇▇▇▇▇ PUBLISHING & ADVERTISING
OF ILLINOIS HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
DONTECH II PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇▇▇▇ PUBLISHING & ADVERTISING
OF ILLINOIS PARTNERSHIP
By: ▇.▇. ▇▇▇▇▇▇▇▇▇ Publishing &
Advertising of Illinois Holdings,
LLC, Its Managing Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
as trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
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