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Exhibit 4.2
SUPPLEMENTAL INDENTURE
This Supplemental Indenture, dated as of October 19, 1999 (this
"Supplemental Indenture" or "Guarantee"), among the parties listed on Exhibit A
hereto (the "Guarantors"), Day International Group, Inc., a Delaware corporation
(together with its successors and assigns, the "Company"), and The Bank of New
York, a New York banking corporation, as Trustee (the "Trustee") under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an Indenture, dated as of March 18, 1998 (as amended, supplemented,
waived or otherwise modified, the "Indenture"), providing for the issuance of an
aggregate principal amount of $115.0 million of 9 1/2% Senior Subordinated Notes
due 2008 of the Company (the "Securities");
WHEREAS, Section 4.12 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantors to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantors
shall unconditionally guarantee all of the Company's obligations under the
Securities pursuant to a Note Guarantee on the terms and conditions set forth
herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee and
the Company are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantors, the Company and the Trustee mutually covenant and agree for the
equal and ratable benefit of the holders of the Securities as follows:
ARTICLE I
Definitions
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SECTION 1.1 DEFINED TERMS. As used in this Guarantee, terms defined
in the Indenture or in the preamble or recitals hereto, are used herein as
therein defined, except that the term "Holders" in this Guarantee shall refer to
the term "Holders" as defined in the Indenture and the Trustee acting on behalf
or for the benefit of such holders. The words "herein," "hereof" and "hereby"
and other words of similar import used in this
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Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
Guarantee
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SECTION 2.1 GUARANTEE. The Guarantors hereby fully, unconditionally
and irrevocable guarantee, as primary obligors and not merely as sureties,
jointly and severally with each other Note Guarantor, to each Holder of the
Securities (a) the full and punctual payment when due, whether at Stated
Maturity, by acceleration, by redemption or otherwise, of principal of and
interest on the Securities and all other monetary obligations of the Company
under the Indenture and the Securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Company under
the Indenture and the Securities (all the foregoing being hereinafter
collectively called the "Obligations"). The Guarantors further agree (to the
extent permitted by law) that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from them, and that they will
remain bound under this Article II notwithstanding any extension or renewal of
any Obligation.
To the extent permitted by applicable law, (i) the Guarantors waive
presentation to, demand of payment from and protest to the Company of any of the
Obligations and also waive notice of protest for nonpayment, (ii) the Guarantors
waive notice of any default under the Securities or the Obligations and (iii)
the Obligations of the Guarantors hereunder shall not be affected by (a) the
failure of any Holder to assert any claim or demand or to enforce any right or
remedy against the Company or any other person under the Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of the Indenture, the Securities or any other agreement; or
(d) the failure of any Holder to exercise any right or remedy against any other
Guarantor of the Obligations.
The Guarantors further agree that their Guarantee herein constitutes
a guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and, to the extent permitted by applicable law, waive any right
to require that any resort be had by any Holder to any security held for payment
of the Obligations.
Except as otherwise provided herein or under applicable law, the
obligations of the Guarantors hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the
Obligations in full), including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason
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of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, to the extent
permitted by applicable law, the obligations of the Guarantors herein shall not
be discharged or impaired or otherwise affected by the failure of any Holder to
assert any claim or demand or to enforce any remedy under the Indenture, the
Securities or any other agreement, by any waiver or modification of any thereof,
by any default, failure or delay, willful or otherwise, in the performance of
the Obligations, or by any other act or thing or omission or delay to do any
other act or thing which may or might in any manner or to any extent vary the
risk of the Guarantors or would otherwise operate as a discharge of the
Guarantors as a matter of law or equity.
The Guarantors further agree that, subject to Section 2.2(b) hereof,
their Guarantee herein shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder has at law or in equity against the Guarantors by virtue
hereof, upon the failure of the Company to pay the principal of or interest on
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, or to perform or comply with any other
Obligation, the Guarantors hereby promise to and will, upon receipt of written
demand by the Trustee or the Holders of a majority in principal amount of the
then outstanding Securities (the "Majority Securityholders"), forthwith pay, or
cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the
unpaid principal amount of such Obligations then due and owing, (ii) accrued and
unpaid interest on such Obligations then due and owing (but only to the extent
not prohibited by law) and (iii) all other monetary Obligations of the Company
to the Holders then due and owing.
The Guarantors agree that they shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Obligations guarantied
hereby until payment in full of all Obligations. The Guarantors further agree
(to the extent permitted by applicable law) that, as between such Guarantors, on
the one hand, and the Holders, on the other hand, (x) the maturity of the
Obligations guarantied hereby may be accelerated for the purposes of such
Guarantors' Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guarantied hereby, and (y) in the event of any declaration of acceleration of
such Obligations, such Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantors for the purposes of this
Section.
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The Guarantors also agree to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or the
Holders in enforcing any rights under this Section.
SECTION 2.2 LIMITATION ON LIABILITY; TERMINATION, RELEASE AND
DISCHARGE. (a) Any term or provision of this Guarantee to the contrary
notwithstanding, the maximum aggregate amount of the Obligations guarantied
hereunder by the Guarantors shall not exceed the maximum amount that can be
hereby guarantied without rendering this Guarantee, as it relates to such
Guarantors, voidable under applicable law, including without limitation
applicable law relating to fraudulent conveyance or fraudulent transfer or
affecting the rights or remedies of creditors generally.
(b) This Guarantee shall terminate and be of no further force or
effect, and the Guarantors shall automatically and unconditionally be released
and discharged from all liabilities and obligations in respect hereof, upon (w)
payment in full of the principal amount of all outstanding Securities (whether
by payment at maturity, purchase, redemption, defeasance, retirement or other
acquisition) and all other monetary Obligations then due and owing, (x) the
merger or consolidation of any Guarantor with and into the Company or another
Note Guarantor that is the surviving Person in such merger or consolidation, or
(y) the exercise by the Company of its legal defeasance option or its covenant
defeasance option, or (z) the sale or other transfer (i) by any Guarantor of all
or substantially all of its assets or (ii) by the Company or a Restricted
Subsidiary of all of the capital stock or other equity interests in any such
Guarantor held by the Company or such Restricted Subsidiary, to a Person that is
not an Affiliate of the Company; provided however, that, in the case of this
clause (z), (1) any such sale or transfer is made in accordance with the terms
of the Indenture (including Section 4.6 thereof), and (2) all obligations of any
such Guarantor under, and all of its guarantees of, and all of its pledges of
assets or other security interests which secure, any Bank Indebtedness of the
Company shall also terminate upon such release, sale or transfer (other than
with respect to any such Indebtedness that is assumed by any Person that is not
an Affiliate of the Company). Upon notice to the Trustee that any such payment,
merger, consolidation, exercise, sale or transfer has occurred or is occurring,
the Trustee shall execute all agreements and instruments confirming and
acknowledging such termination, release and discharge as may be reasonably
requested by any Guarantor, and the Trustee shall return the original Guarantee
to any such Guarantor.
ARTICLE III
Subordination
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SECTION 3.1 SUBORDINATION. The Guarantors agree, and each
Securityholder by accepting a Security agrees, that (a) the obligations of the
Guarantors under this
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Guarantee are subordinated in right of payment to the prior payment in full
(when due) of all existing and future Guarantor Senior Indebtedness of the
Guarantors, including without limitation any Guarantee by the Guarantors of the
Bank Indebtedness or of any Senior Indebtedness of the Company or of any
Guarantor Senior Indebtedness of any other Note Guarantors, to the extent and in
the matter provided in Article 10 of the Indenture (as if the Guarantors were
the Company for purposes of such Article 10 and all defined terms used therein,
and the Guarantor Senior Indebtedness of the Guarantors were Senior
Indebtedness), and this Guarantee is made subject to such provisions (which are
hereby incorporated herein by reference), and (b) such subordination is for the
benefit of and enforceable by the holders of Guarantor Senior Indebtedness of
the Guarantors.
ARTICLE IV
Miscellaneous
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SECTION 4.1 NOTICES. All notices and other communications pertaining
to this Guarantee or any Security shall be in writing and shall be deemed to
have been duly given upon the receipt thereof. Such notices shall be delivered
by hand, or mailed, certified or registered mail with postage prepaid (a) if to
the Guarantors, at their addresses set forth below, with a copy to the Company
as provided in the Indenture for notices to the Company, and (b) if to the
Holders or the Trustee, as provided in the Indenture. Each Guarantor by notice
to the Trustee may designate additional or different addresses for subsequent
notices to or communications with such Guarantor.
SECTION 4.2 PARTIES. Nothing expressed or mentioned in this Guarantee
is intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee and the holders of any Guarantor Senior
Indebtedness, any legal or equitable right, remedy or claim under or in respect
of this Guarantee or any provision herein contained.
SECTION 4.3 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of New York, without giving effect to applicable principles of
conflicts of law to the extent that the application of the law of another
jurisdiction would be required thereby.
SECTION 4.4 SEVERABILITY CLAUSE. In case any provision in this
Guarantee 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 and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
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SECTION 4.5 WAIVERS AND REMEDIES. Neither a failure nor a delay on
the part of the Holders or the Trustee in exercising any right, power or
privilege under this Guarantee shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Holders and
the Trustee herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Guarantee or
at law, in equity, by statute or otherwise.
SECTION 4.6 SUCCESSORS AND ASSIGNS. Subject to Section 2.2(b) hereof,
(a) this Guarantee shall be binding upon and inure to the benefit of the
Guarantors, the Trustee, any other parties hereto, the Holders and their
respective successors and assigns and (b) in the event of any transfer or
assignment of rights by any Holder, the rights and privileges conferred upon
that party in this Guarantee and in the Securities shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions of this Guarantee and the Indenture.
SECTION 4.7 MODIFICATION, ETC. Subject to the provisions of, and
except as otherwise provided in, Article 9 of the Indenture (including without
limitation Section 9.1 thereof), no modification, amendment or waiver of any
provision of this Guarantee, nor the consent to any departure by the Guarantors
therefrom, shall in any event be effective unless the same shall be in writing
and consented to by the Majority Securityholders, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which it was given. No notice to or demand on the Guarantors in any case shall
entitle such Guarantors or any other guarantor to any other or further notice or
demand in the same, similar or other circumstances.
SECTION 4.8 ENTIRE AGREEMENT. This Guarantee is intended by the
parties to be a final expression of their agreement in respect of the subject
matter contained herein and, together with the Indenture, supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 4.9 RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART
OF INDENTURE. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
Trustee makes no representation or warranty as to the validity or sufficiency of
this Supplemental Indenture.
SECTION 4.10 COUNTERPARTS. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
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SECTION 4.11 Headings. The headings of the Articles and the sections
in this Guarantee are for convenience of reference only and shall not be deemed
to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
VARNCO HOLDINGS INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
▇▇▇▇ PRODUCTS CO., INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
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JV TEX REALTY CORP.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
▇▇▇▇ PRODUCTS CO., INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
▇▇▇▇ PRODUCTS CO., INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
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▇▇▇▇ AEGIS INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
GRAPH TECH, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
JV ILL REALTY CORP.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
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▇▇▇▇ ACQUISITION I, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
▇▇▇▇ ACQUISITION II, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
▇▇▇▇ ACQUISITION III, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
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▇▇▇▇ OHIO ACQUISITION, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
DAY INTERNATIONAL FINANCE, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Address:
DAY INTERNATIONAL GROUP, INC.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address:
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, AS TRUSTEE
By:
/s/ Van ▇. ▇▇▇▇▇
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Name: Van ▇. ▇▇▇▇▇
Title: Assistant Vice President
Address:
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EXHIBIT A
GUARANTORS
VARNCO HOLDINGS INC.
▇▇▇▇ PRODUCTS CO, INC.
JV TEX REALTY CORP.
▇▇▇▇ PRODUCTS COMPANY, INC.
▇▇▇▇ PRODUCTS COMPANY, INC.
▇▇▇▇ AEGIS INC.
GRAPH TECH, INC.
JV ILL REALTY CORP.
▇▇▇▇ ACQUISITION I, INC.
▇▇▇▇ ACQUISITION II, INC.
▇▇▇▇ ACQUISITION III, INC.
▇▇▇▇ OHIO ACQUISITION, INC.
DAY INTERNATIONAL FINANCE, INC.