EX-10.40 Second Supplemental Indenture



 





EXHIBIT 10.40




SECOND SUPPLEMENTAL INDENTURE




     THIS SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”) is dated as of March
14, 2008, and has been entered into by and between American Color Graphics, Inc., a New York
corporation (the “Company”), ACG Holdings, Inc., a Delaware corporation (“Holdings” or the
“Guarantor”), and The Bank of New York Trust Company, N.A., a national banking association as
Successor to the Bank of New York, as trustee (the “Trustee”).



RECITALS




     WHEREAS, the Company, the Guarantor and the Trustee previously entered into that certain
Amended and Restated Indenture dated as of November 14, 2007 (the “Amended and Restated
Indenture”), providing for the issuance from time to time of the Company’s 10% Senior Second
Secured Notes Due 2010 (the “2010 Notes”) and the Company’s Senior Second Secured Notes due March
15, 2008 (the “2008 Notes” and, together with the 2010 Notes, the “Notes”);



     WHEREAS, the Company, the Guarantor and the Trustee previously entered into that certain First
Supplemental Indenture dated as of March 3, 2008 (the “First Supplemental Indenture” and
collectively with the Amended and Restated Indenture, the “Indenture”) in accordance with Section
9.02 of the Indenture and agreed to amend certain terms and provisions of the Indenture as fully
set forth therein;



     WHEREAS, Section 9.02 of the Indenture provides that the Company (when authorized by a Board
Resolution (as defined in the Indenture)), the Guarantor and the Trustee may, with the consent of
the Holders (as defined in the Indenture) of not less than a majority in aggregate principal amount
of the outstanding Notes voting as a single class, amend or supplement the Indenture, subject to
certain limitations set forth in the Indenture;



     WHEREAS, the Company desires to amend certain terms and provisions of the Indenture, as set
forth in Article I of this Second Supplemental Indenture (the “Proposed Amendments”);



     WHEREAS, the consent of not less than a majority in aggregate principal amount of the
outstanding 2010 Notes is sufficient to effect the Proposed Amendments, the Company has received
and delivered to the Trustee the requisite consents to effect the Proposed Amendments under the
Indenture; and



     WHEREAS, the Company has been authorized by Board Resolution to enter into this Second
Supplemental Indenture.



AGREEMENT




     NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, and for other good and valuable consideration the receipt of which is hereby acknowledged,
and for the equal and proportionate benefit of the Holders of the Notes, the Company, the Guarantor
and the Trustee hereby agree as follows:



ARTICLE I




AMENDMENTS TO INDENTURE




     Section 1.01 Amendment to Section 4.03. Section 4.03 of the Indenture captioned “Limitation
on Indebtedness” is hereby amended by deleting the existing second paragraph in (c) in its entirety
and replacing it with the following text:



	 	 	 
	“(c)

	 	The Company will not Incur any Indebtedness if such Indebtedness is
subordinate in right of payment to any other Indebtedness, unless such
Indebtedness is also subordinate in right of payment to the Notes to the same
extent; provided, however, that the Bridge Facility and the
2008 Notes are expressly permitted under this Indenture. The Company






 









 






will not permit any Subsidiary Guarantor to Incur any Indebtedness, if such
Indebtedness is subordinate in right of payment to any other Indebtedness,
unless such Indebtedness is also subordinate in right of payment to the
Note Guarantee of such Subsidiary Guarantor to the same extent;
provided, however, that the Bridge Facility and the 2008
Notes are expressly permitted under this Indenture.”



     Section 1.02 Amendment to Section 6.10. Section 6.10 of the Indenture captioned “Priorities”
is hereby amended by deleting the paragraph in its entirety and replacing it with the following
text:




     “If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:




     First: to the Trustee for all amounts due under Section 7.07;




     Second: to Holders of the 2008 Notes and the Amended 2008 Notes for
amounts then due and unpaid for principal of, premium, if any, and interest
on the 2008 Notes and the Amended 2008 Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Notes for principal, premium, if any, and interest, respectively; and




     Third: to Holders of the 2010 Notes for amounts then due and unpaid for
principal of, premium, if any, and interest on the 2010 Notes in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Notes for principal, premium, if any, and interest,
respectively; and




     Fourth: to the Company or as a court of competent jurisdiction may
direct.



The Trustee, upon prior written notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.”



     Section 1.03 Amendment to Section 11.01. Section 11.01 of the Indenture captioned
“Collateral and Security Documents” is hereby amended by deleting the existing paragraph (a) in its
entirety and replacing it with the following text:



	 	 	 
	“(a)

	 	In order to secure the due and punctual payment of (i) the Notes, the
Company and Holdings have entered into the Security Agreement and the other
Security Documents to create the Junior Liens on the Collateral in accordance
with the terms thereof (ii) the Bridge Facility, the Company and the Guarantors
have entered into the Bridge Facility Security Agreement and the other Bridge
Lender Documents to create the Bridge Facility Liens on the Bridge Facility
Collateral in accordance with the terms thereof.






Pursuant to the provisions of the Security Agreement, the other Security
Documents and this Indenture, (i) the rights and remedies of the Trustee and
the Holders of the Notes in the Collateral shall be subordinate and subject
to the rights and remedies of the holders of the Senior Liens and (ii)
subject to clause (i) immediately above, the rights and remedies of the
Trustee and the Holders of the 2010 Notes in the Collateral shall be
subordinate and subject to the rights and remedies of the Holders of the
2008 Notes with respect to the Junior Liens. Notwithstanding anything in
the Security Agreement, the other Security Documents and this Indenture to
the contrary and pursuant to the provisions of the Acknowledgement Agreement
and this Indenture, the rights and remedies of the Trustee and the Holders
of the Notes in the Collateral, to the extent constituting Bridge Facility
Collateral, shall be subordinate and subject to the rights and remedies of
the holders of the Bridge Facility Liens in accordance with the terms of the



 









 








Acknowledgment Agreement and this Indenture. The terms “Senior Lender
Claims” and “Noteholder Claims” as used in this Indenture shall have the
meanings given to them in the Intercreditor Agreement. The terms “Bridge
Lender Documents” and “Bridge Lenders” as used in this Indenture shall have
the meaning given to them in the Bridge Facility Intercreditor Agreement.”



ARTICLE II




MISCELLANEOUS




     Section 2.01 Instruments To Be Read Together. This Second Supplemental Indenture is executed
as and shall constitute an indenture supplemental to and in implementation of the Indenture, and
said Indenture and this Second Supplemental Indenture shall henceforth be read together.



     Section 2.02 Confirmation. The Indenture as amended and supplemented by this Second
Supplemental Indenture is in all respects confirmed and preserved.



     Section 2.03 Terms Defined. Capitalized terms used in this Second Supplemental Indenture and
not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.



     Section 2.04 Trust Indenture Act Controls. If any provision of this Second Supplemental
Indenture limits, qualifies or conflicts with another provision that is required to be included in
this Second Supplemental Indenture or the Indenture by the Trust Indenture Act of 1939, as amended,
as in force at the date that this Second Supplemental Indenture is executed, the provisions
required by said Act shall control.



     Section 2.05 Headings. The headings of the Articles and Sections of this Second Supplemental
Indenture have been inserted for convenience of reference only, and are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions hereof.



     Section 2.06 Governing Law. The internal law of the State of New York shall govern this
Second Supplemental Indenture 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 2.07 Counterparts. This Second Supplemental Indenture 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.



     Section 2.08 Severability. In case any provision in this Second 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 2.09 Effectiveness; Termination. The provisions of this Second Supplemental
Indenture will become effective immediately upon its execution by the Trustee in accordance with
the provisions of Sections 9.02 and 9.05 of the Indenture; provided, that the amendments to the
Indenture set forth in Sections 1.01, 1.02 and 1.03 of this Second Supplemental Indenture shall
become operative (without further act by any Person) only upon the issuance of the Amended 2008
Notes by the Company.



     Section 2.10 Acceptance by Trustee. The Trustee accepts the amendments to the Indenture
effected by this Second Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture.



     Section 2.11 Responsibility of Trustee. The recitals contained herein shall be taken as the
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 Second Supplemental
Indenture.



[Signature page follows]




 









 








     IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed, all as of the date first written above.



	 	 	 	 	 
	 	AMERICAN COLOR GRAPHICS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Patrick W. Kellick 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	ACG HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	Patrick W. Kellick 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	THE BANK OF NEW YORK TRUST
COMPANY , N.A., A NATIONAL ASSOCIATION AS SUCCESSOR TO THE BANK OF NEW YORK

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO SECOND SUPPLEMENTAL INDENTURE]