10.625% Senior Secured Notes due 2015

EXHIBIT 4.1

EXECUTION COPY

 

 

 

 

 

 

 

ACCO BRANDS CORPORATION

 

 

 

as Issuer,

and the Guarantors named herein

 

10.625% Senior Secured Notes due 2015

 

_______________________

 

INDENTURE

 

Dated as of September 30, 2009

 

_______________________

 

 

U.S. Bank National Association,

 

as Trustee

 

 

 

 

 

 

 

 

 

 

CROSS-REFERENCE TABLE*

 

 

_______________

 

 

TABLE OF CONTENTS

                                                                                               

Page  

ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE

 

Section 1.01	Definitions	1
Section 1.02	Other Definitions	41
Section 1.03	Incorporation by Reference of Trust Indenture Act	42
Section 1.04	Rules of Construction	42

 

ARTICLE TWO

THE NOTES

 

Section 2.01	Amount of Notes; Additional Notes	44
Section 2.02	Form and Dating	45
Section 2.03	Execution and Authentication	45
Section 2.04	Registrar and Paying Agent	46
Section 2.05	Paying Agent to Hold Money in Trust	46
Section 2.06	Holder Lists	47
Section 2.07	Transfer and Exchange	47
Section 2.08	Replacement Notes	48
Section 2.09	Outstanding Notes	48
Section 2.10	Temporary Notes	49
Section 2.11	Cancellation	49
Section 2.12	Defaulted Interest	49
Section 2.13	CUSIP Numbers, ISINs, etc	49
Section 2.14	Calculation of Principal Amount of Notes Outstanding	50
Section 2.15	Methods of Receiving Payments on the Notes	50
Section 2.16	Payments in Respect of Global Notes	50

 

ARTICLE THREE

REDEMPTION

 

Section 3.01	Optional Redemption	51
Section 3.02	Applicability of Article	51
Section 3.03	Notices to Trustee	51
Section 3.04	Selection of Notes to Be Redeemed	52
Section 3.05	Notice of Optional Redemption	52
Section 3.06	Effect of Notice of Redemption	53
Section 3.07	Deposit of Redemption Price	54
Section 3.08	Notes Redeemed in Part	54
Section 3.09	Repurchase Offers	54

 

 

ARTICLE FOUR

COVENANTS

 

Section 4.01	Payment of Notes	56
Section 4.02	Reports	57
Section 4.03	Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock	58
Section 4.04	Limitation on Restricted Payments	63
Section 4.05	Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries	69
Section 4.06	Asset Sales	71
Section 4.07	Transactions with Affiliates	75
Section 4.08	Change of Control	77
Section 4.09	Compliance Certificate	78
Section 4.10	Further Instruments and Acts	79
Section 4.11	Note Guarantees	79
Section 4.12	Maintenance of Intercompany Receivables	80
Section 4.13	Liens	80
Section 4.14	Maintenance of Office or Agency	80
Section 4.15	Limitation on Business Activities	80
Section 4.16	Further Assurances; Insurance	80
Section 4.17	Taxes	83

 

ARTICLE FIVE

SUCCESSORS

 

Section 5.01	Merger, Consolidation or Sale of Assets	83
Section 5.02	Successor Corporation Substituted	84

 

ARTICLE SIX

DEFAULTS AND REMEDIES

 

Section 6.01	Events of Default	84
Section 6.02	Acceleration	87
Section 6.03	Other Remedies	87
Section 6.04	Waiver of Past Defaults	88
Section 6.05	Control by Majority	88
Section 6.06	Limitation on Suits	88
Section 6.07	Rights of the Holders to Receive Payment	89
Section 6.08	Collection Suit by Trustee	89
Section 6.09	Trustee May File Proofs of Claim	89
Section 6.10	Priorities	89
Section 6.11	Undertaking for Costs	90
Section 6.12	Waiver of Stay, Extension and Usury Laws	90
Section 6.13	Delay or Omission Not Waiver	90

 

 

ARTICLE SEVEN

TRUSTEE

 

Section 7.01	Duties of Trustee	90
Section 7.02	Rights of Trustee	91
Section 7.03	Individual Rights of Trustee	93
Section 7.04	Trustee’s Disclaimer	93
Section 7.05	Notice of Defaults	93
Section 7.06	Reports by Trustee to the Holders	93
Section 7.07	Compensation and Indemnity	94
Section 7.08	Replacement of Trustee	95
Section 7.09	Successor Trustee by Merger	96
Section 7.10	Eligibility; Disqualification	96
Section 7.11	Preferential Collection of Claims Against the Company	96
Section 7.12	Appointment of Co-Trustee	96

 

ARTICLE EIGHT

DEFEASANCE

 

Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance	97
Section 8.02	Legal Defeasance and Discharge	98
Section 8.03	Covenant Defeasance	98
Section 8.04	Conditions to Legal or Covenant Defeasance	99
Section 8.05	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions	100
Section 8.06	Repayment to Company	100
Section 8.07	Reinstatement	101

 

ARTICLE NINE

AMENDMENTS, SUPPLEMENTS AND WAIVERS

 

Section 9.01	Without Consent of the Holders	101
Section 9.02	With Consent of the Holders	102
Section 9.03	Compliance with Trust Indenture Act	105
Section 9.04	Revocation and Effect of Consents and Waivers	105
Section 9.05	Notation on or Exchange of Notes	105
Section 9.06	Trustee to Sign Amendments	105
Section 9.07	Additional Voting Terms; Calculation of Principal Amount	106

 

ARTICLE TEN

SATISFACTION AND DISCHARGE

 

Section 10.01	Satisfaction and Discharge	106
Section 10.02	Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions	107
Section 10.03	Repayment to the Company	107

 

 

 

ARTICLE ELEVEN

COLLATERAL AND SECURITY

 

Section 11.01	Security Documents	107
Section 11.02	Collateral Trust Agreement and Intercreditor Agreement	108
Section 11.03	Collateral Trustee	108
Section 11.04	Authorization of Actions to Be Taken	109
Section 11.05	Equal and Ratable Sharing of Collateral by Holders of Priority Lien Debt	110
Section 11.06	Ranking of Priority Liens	111
Section 11.07	Relative Rights	111
Section 11.08	Release of Liens	112
Section 11.09	Filing, Recording and Opinions	112

 

ARTICLE TWELVE

NOTE GUARANTEES

 

Section 12.01	Guarantees	113
Section 12.02	Limitation on Guarantor Liability	115
Section 12.03	Successors and Assigns	116
Section 12.04	No Waiver	116
Section 12.05	Modification	116
Section 12.06	Execution and Delivery of Note Guarantees and Supplemental Indentures	116
Section 12.07	Merger and Consolidation of Guarantors	117
Section 12.08	Release of Guarantor	118

 

ARTICLE THIRTEEN

MISCELLANEOUS

 

Section 13.01	Trust Indenture Act Controls	118
Section 13.02	Notices	119
Section 13.03	Communication by the Holders with Other Holders	120
Section 13.04	Certificate and Opinion as to Conditions Precedent	120
Section 13.05	Statements Required in Certificate or Opinion	120
Section 13.06	Treasury Notes Disregarded	121
Section 13.07	Rules by Trustee, Paying Agent and Registrar	121
Section 13.08	Legal Holidays	121
Section 13.09	GOVERNING LAW	121
Section 13.10	Consent to Jurisdiction	121
Section 13.11	No Recourse Against Others	121
Section 13.12	Successors	122
Section 13.13	Multiple Originals	122
Section 13.14	Table of Contents; Headings	122
Section 13.15	Indenture Controls	122
Section 13.16	Severability	122
Section 13.17	Benefit of Indenture	122
Section 13.18	Acts of Holders	122
Section 13.19	No Adverse Interpretation of Other Agreements	123

 

 

 

 

 

 

 

EXHIBIT INDEX

 

 

 

 

 

 

 

 

 

 

INDENTURE dated as of September 30, 2009 among ACCO BRANDS CORPORATION, a Delaware corporation (“ ACCO ” or the “ Company ”), the Guarantors (as defined herein) and U.S. Bank National Association, a national banking association, as trustee (the “ Trustee ”).

 

Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of (a) $460,000,000 aggregate principal amount of the Company’s 10.625% Senior Secured Notes due 2015 issued on the date hereof in the form of Exhibit A (the “ Original Notes ”), (b) any Additional Notes (as defined herein) that may be issued after the date hereof in the form of Exhibit A (all such securities in clauses (a) and (b) being referred to collectively as the “ Initial Notes ”) and (c) if and when issued as provided in the Registration Rights Agreement (as defined in Appendix A hereto (the “ Appendix ”)) or otherwise registered under the Securities Act and issued, $460,000,000 aggregate principal amount of the Company’s 10.625% Senior Secured Notes due 2015 (the “ Exchange Notes ”) issued in a Registered Exchange Offer (as defined in the Appendix) in exchange for any Initial Notes or otherwise registered under the Securities Act and issued in the form of Exhibit B . The Initial Notes and the Exchange Notes are referred to collectively as the “ Notes ” (and constitute a single series hereunder).

 

 

ARTICLE ONE

DEFINITIONS AND INCORPORATION

BY REFERENCE

 

Section 1.01     Definitions .

 

“ ABL Collateral ” means all of ACCO’s and the Guarantors’ now owned or hereafter acquired right, title and interest in:

 

 

 

 

 

 

 

 

 

 

 

except to the extent that any item of property included in clauses (a) through (g) of this definition constitutes an Excluded Asset and provided that in no case shall any item included in clause (a) through (g) include any identifiable cash proceeds in respect of Notes Collateral or any Net Proceeds from a Sale of Notes Collateral to the extent that any such item includes identifiable cash proceeds in respect of Notes Collateral or any Net Proceeds from a sale of Notes Collateral that have been (or should have been) deposited in the Collateral Proceeds Account in accordance with Section 4.06 until such time as such Net Proceeds are released therefrom in accordance with the terms of this Indenture.

 

 

 

“ ABL Collateral Agent ” means Deutsche Bank AG New York Branch, as co-collateral agent under the ABL Credit Facility, together with any other collateral agent, collateral trustee or other representative of lenders or holders of ABL Debt Obligations that becomes party to the Intercreditor Agreement upon the refinancing or replacement of the ABL Credit Facility, or any successor representative acting in such capacity.

 

“ ABL Credit Facility ” means that certain Syndicated Facility Agreement—ABL Revolving Facility, dated as of September 30, 2009, by and among the Company and the other Restricted Subsidiaries party thereto, as borrowers, Deutsche Bank AG New York Branch, as administrative agent and the other agents and lenders named therein, and any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, modified, renewed, refunded, replaced, restated, restructured, increased, supplemented or refinanced in whole or in part from time to time, regardless of whether such amendment, modification, renewal, refunding, replacement, restatement, restructuring, increase, supplement or refinancing is with the same financial institutions (whether as agents or lenders) or otherwise.

 

“ ABL Debt ” means

 

 

 

 

 

 

 

“ ABL Debt Documents ” means the ABL Credit Facility, any additional credit agreement, indenture or other agreement pursuant to which any ABL Debt Obligations are incurred and the security or other loan documents, notes, Guarantees, instruments and agreements related thereto (other than any such documents that do not secure ABL Debt Obligations).

 

“ ABL Debt Obligations ” means ABL Debt and all other Obligations in connection with the ABL Credit Facility, including:

 

 

 

“ ABL Lien Cap ” means, as of any date of determination, the sum of (1) $225.0 million and (y) to the extent the ABL Credit Facility outstanding on the Issue Date is amended, modified, renewed, refunded, replaced, restated, restructured, or refinanced after the Issue Date, the fees and transaction costs in connection therewith.

 

“ ACCO ” has the meaning assigned to it in the preamble to this Indenture, until a successor replaces it pursuant to a transaction permitted by Section 5.01 and thereafter means the successor.

 

“ Acquired Indebtedness ” means, with respect to any specified Person:

 

 

 

“ Account ” shall mean, without duplication, (i) an “account” as such term is defined in Article 9 of the New York Uniform Commercial Code, as applicable, (ii) any and all supporting obligations in respect thereof and (iii) any right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, or (b) for services rendered or to be rendered.

 

“ Act of Required Debtholders ” means, as to any matter at any time:

 

 

 

 

 

 

For purposes of this definition, (a) Secured Debt registered in the name of, or beneficially owned by, ACCO or any Affiliate of ACCO will be deemed not to be outstanding, and (b) votes will be determined in accordance with Section 7.2 of the Collateral Trust Agreement.

 

“ Additional Interest ” has the meaning set forth in the Registration Rights Agreement.

 

“ Additional Notes ” means an unlimited maximum aggregate principal amount of Notes (other than the Initial Notes) issued under this Indenture in accordance with Section 2.01 as part of the same series as the Initial Notes.

 

“ Affiliate ” of any specified Person means (1) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person or (2) any executive officer or director of such specified Person.  For purposes of this definition, “control,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.  For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” shall have correlative meanings.

 

“ Applicable Procedures ” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary, in each case to the extent applicable to such transaction and as in effect from time to time.

 

“ Asset Sale ” means:

 

 

 

 

 

in each case other than:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ Bankruptcy Code ” means Title 11 of the United States Code.

 

 

 

“ Bankruptcy Law ” means the Bankruptcy Code or any similar U.S. federal or state law for the relief of debtors.

 

“ beneficial owner ” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” shall be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition.  The terms “ beneficially owns ” and “ beneficially owned ” shall have a corresponding meaning.

 

“ Board of Directors ” means:

 

 

 

 

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors of the Company and to be in full force and effect on the date of such certification.

 

“ Business Day ” means any day other than a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed.

 

“ Calculation Date ” has the meaning set forth below in the definition of “Fixed Charge Coverage Ratio.”

 

“ Capital Lease Obligation ” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.

 

“ Capital Stock ” means:

 

 

 

 

 

 

 

“ Cash Equivalents ” means:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ Change of Control ” means the occurrence of any of the following:

 

 

 

 

“ Class ” means (1) in the case of Subordinated Lien Debt, every Series of Subordinated Lien Debt, taken together, and (2) in the case of Priority Lien Debt, every Series of Priority Lien Debt, taken together

 

“ Clearstream ”  means Clearstream Banking S.A. and any successor thereto.

 

“ Collateral ” means the Notes Collateral and the ABL Collateral.

 

 

 

“ Collateral Trust Agreement ” means the Collateral Trust Agreement, dated as of the date of this Indenture, among the Company, the Guarantors from time to time party thereto, the Trustee, the other Secured Debt Representatives from time to time party thereto and the Collateral Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time.

 

“ Collateral Trustee ” means U.S. Bank National Association, in its capacity as Collateral Trustee under the Collateral Trust Agreement, together with its successors in such capacity.

 

“ Company ” has the meaning assigned to it in the preamble to this Indenture, until a successor replaces it pursuant to a transaction permitted by Section 5.01 and thereafter means the successor.

 

“ Consolidated Depreciation and Amortization Expense ” means with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP. ›

 

“ Consolidated Interest Expense ” means, with respect to any Person for any period, the sum, without duplication, of:

 

 

 

 

 

“ Consolidated Net Income ” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis; provided , however , that:

 

 

 

 

 

 

 

 

 

 

“ Consolidated Taxes ” means provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes taken into account in calculating Consolidated Net Income.

 

“ Contingent Obligations ” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent:

 

 

 

 

 

 

 

“ Credit Facilities ” means one or more debt facilities (including, without limitation, the ABL Credit Facility), commercial paper facilities, note purchase agreements or indentures, in each case with banks, other lenders or trustees, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit, notes or other borrowings, in each case, as amended, restated, modified, renewed, refunded, restated, restructured, increased, supplemented, replaced or refinanced in whole or in part from time to time.

 

“ Default ” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

 

“ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.04(a) as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture.

 

“ Discharge of Priority Lien Obligations ” means the occurrence of all of the following:

 

 

 

 

 

 

 

“ Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:

 

 

 

 

 

“ Domestic Subsidiary ” means any Restricted Subsidiary of ACCO other than a Restricted Subsidiary that is (1) a “controlled foreign corporation” under Section 957 of the Internal Revenue Code or (2) a Subsidiary of any such controlled foreign corporation.

 

“ DTC ” means the Depository Trust Company, its nominees and their respective successors.

 

“ EBITDA ” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication, to the extent the same was deducted in calculating Consolidated Net Income:

 

(1)           Consolidated Taxes; plus

 

 

 

(2)           Consolidated Interest Expense; plus

 

(3)           Consolidated Depreciation and Amortization Expense.

 

“ equally and ratably ” means, in reference to sharing of Liens or proceeds thereof as between holders of Secured Obligations within the same Class, that such Liens or proceeds:

 

 

 

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

 

“ Equity Offering ” means any public or private sale of Capital Stock of the Company or any direct or indirect parent of the Company, as applicable, other than Disqualified Stock, and other than public offerings with respect to the Company’s or such direct or indirect parent company’s common stock registered on Form S-8.

 

“ Euroclear ” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system, and any successor thereto.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ Exchange Offer Registration Statement ” has the meaning set forth in the Registration Rights Agreement.

 

“ Excluded Assets ” means each of the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ Excluded Subsidiary ” means:

 

 

 

“ Existing Indebtedness ” means the aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries (other than Indebtedness under the ABL Credit Facility) outstanding on the date of this Indenture, until such amounts are repaid.

 

“ Fair Market Value ” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.

 

 “ Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period.  In the event that the Company or any of its Restricted Subsidiaries Incurs, repays, repurchases or redeems any Indebtedness (other than in the case of revolving credit borrowings or revolving advances under any Qualified Receivables Financing, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) or issues, repurchases or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.

 

 

 

For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business that the Company or any of its Restricted Subsidiaries has both determined to make and made after the Issue Date and during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for purposes of this definition, a “ pro forma event ”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations or discontinued operations (and the change of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or discontinued operation, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger or consolidation had occurred at the beginning of the applicable four-quarter period.

 

For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of the Company, to reflect (1) operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable pro forma event and (2) all adjustments of the nature used in connection with the calculation of “Adjusted EBITDA” as described under “Summary Historical Consolidated Financial Data” under “Summary” in the Offering Circular to the extent such adjustments, without duplication, continue to be applicable to such four-quarter period; provided that any such adjustment (x) in excess of $5.0 million shall be set forth in an Officers’ Certificate and (y) in excess of $30.0 million shall be set forth in a resolution approved by at least a majority of the Board of Directors of the Company.

 

If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of twelve months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.

 

 

 

“ Fixed Charges ” means, with respect to any specified Person for any period, the sum of:

 

 

 

 “ Foreign Subsidiary ” means any Restricted Subsidiary of ACCO other than a Domestic Subsidiary.

 

“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession which are in effect on the Issue Date. For the purposes of this Indenture, the term “consolidated” with respect to any Person shall mean such Person consolidated with its Restricted Subsidiaries, and shall not include any Unrestricted Subsidiary, but the interest of such Person in an Unrestricted Subsidiary will be accounted for as an Investment.

 

“ Global Notes Legend ” means the legend set forth in Section 2.2(g)(iii) of the Appendix, which is required to be placed on all Global Notes issued under this Indenture.

 

“ Global Notes ” means, individually and collectively, Notes sold to QIBs in reliance on Rule 144A (the “ Rule 144A Global Note ”) or Notes sold in offshore transactions in reliance on Regulation S (the “ Regulation S Global Note ”), deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A and that bear the Global Note Legend.

 

“ Government Securities ” means securities that are:

 

 

 

 

 

 

 

“ Guarantee ” means, as to any Person, a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another Person.

 

“ Guarantors ” means:

 

 

 

 

“ Hedging Obligations ” means, with respect to any Person, the obligations of such Person under:

 

 

 

“ Holder ” means a Person in whose name a Note is registered on the Registrar’s books.

 

“ Incur ” means issue, assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary.

 

“ Indebtedness ” means, with respect to any specified Person, without duplication:

 

 

 

 

 

 

provided , however , that notwithstanding the foregoing, Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of business and not in respect of borrowed money or (2) Obligations under or in respect of Qualified Receivables Financing.

 

“ Indenture ” means this Indenture, as amended or supplemented from time to time.

 

“ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant, including through Clearstream and Euroclear.

 

 

 

“ Initial Purchasers ” means, collectively, Credit Suisse Securities (USA) LLC, Banc of America Securities LLC, BMO Capital Markets Corp., Deutsche Bank Securities Inc.,  SunTrust Robinson Humphrey, Inc., Barrington Research Associates, Inc., Barclays Capital Inc. and CJS Securities Inc.

 

“ Insolvency or Liquidation Proceeding ” means:

 

 

 

 

 

 

“ Intercreditor Agreement ” means the Intercreditor Agreement, dated as of the date of this Indenture, among the Company, the grantors from time to time party thereto, the ABL Collateral Agent and the Collateral Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time.

 

“ Investment Grade Securities ” means:

 

 

 

 

 

“ Investments ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including Guarantees), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers and commission, payroll, travel and similar advances to officers, employees and consultants made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. For purposes of the definition of “Unrestricted Subsidiary” and Section 4.04 :

 

 

 

 

 

“ Issue Date ” means the date the Original Notes were originally issued under this Indenture.

 

“ Letter of Transmittal ” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Registered Exchange Offer.

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction); provided that in no event shall an operating lease be deemed to constitute a Lien.

 

“ Lien Sharing and Priority Confirmation ” means:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ Moody’s ” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

 

“ Mortgage ” a mortgage, deed of trust, leasehold mortgages or leasehold deed of trust, as applicable, substantially in the form and substance as provided to the Collateral Trustee on the date hereof, encumbering the applicable Mortgaged Property or New Mortgaged Property.

 

 “ Mortgaged Property ” means each real property owned or leased by the Company or a Guarantor and set forth on Schedule A .

 

“ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

 

“ Net Proceeds ” means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding the assumption by the acquiring Person of Indebtedness relating to the disposed assets or other consideration received in any other non-cash form), net of the direct costs relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees, and brokerage and sales commissions), and any relocation expenses Incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements related thereto), amounts required to be applied to the repayment of principal, premium (if any), Additional Interest (if any) and interest on Indebtedness required (other than pursuant to Section 4.06(b) ) to be paid as a result of such transaction, and any deduction of appropriate amounts to be provided by the Company as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Company after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.

 

“ New York Uniform Commercial Code ” means the Uniform Commercial Code as in effect from time to time in the State of New York.

 

 “ Note Documents ” means the Indenture, the Notes and the Security Documents.

 

 

 

“ Note Guarantee ” means a Guarantee of the Notes pursuant to this Indenture.

 

“ Notes Collateral ” means all of the tangible and intangible properties and assets at any time owned or acquired by ACCO or any Guarantor, except:

 

 

 

“ Notes Obligations ” means all Obligations in respect of the Notes, the Note Guarantees and this Indenture.

 

“ Obligations ” means any principal, interest, penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities (including all interest accruing after the commencement of any Insolvency or Liquidation Proceeding, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding) under the documentation governing any Indebtedness.

 

“ Offering Circular ” means the final offering circular, dated September 21, 2009, relating to the offering of the Initial Notes.

 

“ Officer ” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Senior Vice President, any Vice President or any Assistant Vice President of such Person.

 

“ Officers ’ Certificate ” means a certificate signed on behalf of ACCO by at least two Officers of ACCO, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of ACCO that meets the requirements of this Indenture.

 

“ Opinion of Counsel ” means an opinion from legal counsel who is reasonably acceptable to the Trustee (who may be counsel to or an employee of ACCO) that meets the requirements of this Indenture.

 

“ Participant ” means, with respect to the Depositary, a Person who has an account with the Depositary (and, with respect to DTC, shall include Euroclear and Clearstream).

 

“ Permitted Asset Swap ” means any transfer of properties or assets by the Company or any of its Restricted Subsidiaries in which the consideration received by the transferor consists primarily of properties or assets to be used in a Similar Business; provided that (1) the Fair Market Value (determined in good faith by the Board of Directors of the Company if such amount is reasonably likely to exceed $50.0 million) of properties or assets received by the Company or any such Restricted Subsidiary in connection with such Permitted Asset Swap is at least equal to the Fair Market Value (determined in good faith by the Board of Directors of the Company if such amount is reasonably likely to exceed $50.0 million) of properties or assets transferred by the Company or such Restricted Subsidiary in connection with such Permitted Asset Swap and (2) the aggregate Fair Market Value of assets transferred by the Company and its Restricted Subsidiaries

 

 

 

in connection with all transactions that the Company designates as Permitted Asset Swaps after the Issue Date does not exceed 15% of Total Assets.

 

“ Permitted Investments ” means:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ Permitted Liens ” means:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

“ Permitted Prior Liens ” means:

 

 

 

“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.

 

“ Pledge Agreement ” means the Pledge Agreement, dated as of the date of this Indenture, among the Company, the Guarantors from time to time party thereto and the Collateral Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time.

 

 

 

“ Preferred Stock ” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or winding up.

 

“ Priority Lien ” means a Lien granted by a Security Document to the Collateral Trustee, at any time, upon any property of the Company or any Guarantor to secure Priority Lien Obligations.

 

“ Priority Lien Cap ” means, as of any date of determination, $495.0 million.

 

“ Priority Lien Debt ” means:

 

 

 

 

 

 

“ Priority Lien Documents ” means this Indenture and any additional indenture, credit facility or other agreement pursuant to which any Priority Lien Debt is Incurred and the Security Documents related thereto (other than any Security Documents that do not secure Priority Lien Obligations).

 

 

 

“ Priority Lien Obligations ” means Priority Lien Debt and all other Obligations in respect thereof.

 

“ Priority Lien Representative ” means (1) the Collateral Trustee, in the case of the Notes, or (2) in the case of any other Series of Priority Lien Debt, the trustee, agent or representative of the holders of such Series of Priority Lien Debt who maintains the transfer register for such Series of Priority Lien Debt and is appointed as a representative of such Series of Priority Lien Debt (for purposes related to the administration of the Security Documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Priority Lien Debt.

 

“ Purchase Money Note ” means a promissory note of a Receivables Subsidiary evidencing a line of credit, which may be irrevocable, from the Company or any Subsidiary of the Company to a Receivables Subsidiary in connection with a Qualified Receivables Financing, which note is intended to finance that portion of the purchase price that is not paid by cash or a contribution of equity.

 

“ QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

“ Qualified Receivables Financing ” means any Receivables Financing of a Receivables Subsidiary that meets the following conditions:

 

 

 

 

The grant of a security interest in any accounts receivable of the Company or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to secure ABL Obligations, Priority Lien Obligations or Subordinated Lien Obligations shall not be deemed a Qualified Receivables Financing

 

“ Receivables Financing ” means any transaction or series of transactions that may be entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by the Company or any of its Subsidiaries); and (b) any other Person (in the case of a transfer by a Receivables Subsidiary), or may grant a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization

 

 

 

transactions involving accounts receivable and any Hedging Obligations entered into by the Company or any such Subsidiary in connection with such accounts receivable.

 

“ Receivables Repurchase Obligation ” means any obligation of a seller of receivables in a Qualified Receivables Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.

 

“ Receivables Subsidiary ” means a Wholly Owned Restricted Subsidiary of the Company (or another Person formed for the purposes of engaging in Qualified Receivables Financing with the Company in which the Company or any Subsidiary of the Company makes an Investment and to which the Company or any Subsidiary of the Company transfers accounts receivable and related assets) which engages in no activities other than in connection with the financing of accounts receivable of the Company and its Subsidiaries, all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Company (as provided below) as a Receivables Subsidiary and:

 

 

 

 

Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing conditions.

 

 

 

“ Refinancing Transactions ” means, collectively, the offer and sale of the Notes, the entry into the ABL Credit Facility and the use of the proceeds from the sale of the Notes, together with initial borrowings under the ABL Credit Facility, to (i) repay all amounts outstanding under the Company’s senior secured credit agreement, dated as of August 17, 2005, as amended, and under the Company’s receivables sale and contribution agreement and receivables purchase agreement, each dated January 9, 2008; (ii) pay settlement costs upon termination of the Company’s five-year cross currency swap entered into as of September 22, 2005; (iii) repurchase a portion of the Senior Subordinated Notes pursuant to Section4.04(b)(xviii) of this Indenture; and (iv) pay the fees, expenses and other costs relating to the foregoing transactions.

 

“ Registered Exchange Offer ” has the meaning set forth in the Registration Rights Agreement.

 

“ Required Subordinated Lien Debtholders ” means, at any time, the holders of a majority in aggregate principal amount of all Subordinated Lien Debt then outstanding, calculated in accordance with Section 7.2 of the Collateral Trust Agreement.  For purposes of this definition, Subordinated Lien Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding.

 

“ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“ Restricted Investment ” means an Investment other than a Permitted Investment.

 

“ Restricted Subsidiary ” means, with respect to any Person, any Subsidiary of such Person other than an Unrestricted Subsidiary of such Person.  Unless otherwise indicated in this Indenture, all references to Restricted Subsidiaries shall mean Restricted Subsidiaries of the Company.

 

“ Rule 144 ” means Rule 144 promulgated under the Securities Act.

 

“ Rule 144A ” means Rule 144A promulgated under the Securities Act.

 

“ Rule 903 ” means Rule 903 promulgated under the Securities Act.

 

“ Rule 904 ” means Rule 904 promulgated under the Securities Act.

 

“ Rule 144A Global Notes ” means one or more global notes substantially in the form of Exhibit A bearing the Global Note Legend and the Restricted Note Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee, that collectively shall be issued in a total aggregate denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.

 

 

 

“ Sale and Leaseback Transaction ” means an arrangement relating to property now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary leases it from such Person, other than leases between the Company and a Restricted Subsidiary of the Company or between Restricted Subsidiaries of the Company.

 

“ Sale of a Guarantor ” means (1) any Asset Sale involving a sale, lease, conveyance or other disposition of the Capital Stock of a Guarantor or (2) the issuance of Equity Interests by a Guarantor, other than (a) an issuance of Equity Interests by a Guarantor to the Company or another Restricted Subsidiary of the Company, and (b) directors’ qualifying shares.

 

“ Sale of Notes Collateral ” means any Asset Sale involving a sale, lease, conveyance or other disposition of Notes Collateral.

 

“ S&P ” means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.

 

“ SEC ” means the United States Securities and Exchange Commission.

 

“ Secured Debt ” means Priority Lien Debt and Subordinated Lien Debt.

 

“ Secured Debt Documents ” means the Priority Lien Documents and the Subordinated Lien Documents.

 

“ Secured Debt Representative ” means each Priority Lien Representative, collateral agent or other representative in respect of any ABL Debt Obligations and Subordinated Lien Representative.

 

“ Secured Obligations ” means, collectively, the Priority Lien Obligations and the Subordinated Lien Obligations.

 

“ Securities Act ” means the Securities Act of 1933, as amended.

 

“ Security Agreement ” means the Security Agreement, dated as of the date of this Indenture, among the Company, the Guarantors from time to time party thereto and the Collateral Trustee, as amended, restated, adjusted, waived, renewed, extended, supplemented or otherwise modified from time to time.

 

“ Security Documents ” means the Collateral Trust Agreement, the Intercreditor Agreement, the Security Agreement, the Pledge Agreement, each Lien Sharing and Priority Confirmation, and all security agreements, pledge agreements, collateral assignments, collateral agency agreements, debentures, control agreements or other grants or transfers for security executed and delivered by ACCO or any Guarantor creating (or purporting to create) a Lien upon Collateral in favor of the Collateral Trustee for the benefit of the holders of the Secured Obligations, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and Section 7.1 of the Collateral Trust Agreement.

 

 

 

“ Senior Secured Debt Ratio ” means, as of any date of determination, the ratio of (1) ABL Debt, plus (2) Priority Lien Debt of the Company and its Restricted Subsidiaries as of that date to the Company’s EBITDA for the most recently ended four fiscal quarters for which internal financial statements are available immediately preceding the date of determination, with such adjustments to the amount of ABL Debt, Priority Lien Debt and EBITDA as are consistent with the adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”

 

“ Senior Subordinated Notes ” means the senior subordinated notes due 2015 of the Company issued under an indenture dated August 5, 2005 in an original aggregate principal amount of $350,000,000.

 

“ Series of ABL Debt ” means, severally, the ABL Credit Facility and any Credit Facility and other Indebtedness that constitutes ABL Debt Obligations.

 

“ Series of Priority Lien Debt ” means, severally, the Notes, any Credit Facility (other than the ABL Credit Facility) and other Indebtedness that constitutes Priority Lien Debt.

 

“ Series of Secured Debt ” means each Series of Subordinated Lien Debt and each Series of Senior Debt.

 

“ Series of Senior Debt ” means each Series of ABL Debt and each Series of Priority Lien Debt.

 

“ Series of Subordinated Lien Debt ” means, severally, each issue or series of Subordinated Lien Debt for which a single transfer register is maintained.

 

“ Shelf Registration Statement ” means the Shelf Registration Statement as defined in the Registration Rights Agreement.

 

“ Significant Subsidiary ” means any Subsidiary that would constitute a “significant subsidiary” within the meaning of Article 1 of Regulation S-X under the Securities Act.

 

“ Similar Business ” means a business, the majority of whose revenues are derived from the type of activities conducted by the Company and its Subsidiaries as of the Issue Date, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto.

 

“ Standard Securitization Undertakings ” means representations, warranties, covenants, indemnities and guarantees of performance entered into by the Company or any Subsidiary of the Company which the Company has determined in good faith to be customary in a Receivables Financing including, without limitation, those relating to the servicing of the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.

 

“ Stated Maturity ” means, with respect to any security, the date specified in such security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision

 

 

providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the Company unless such contingency has occurred).

 

“ Subordinated Lien ” means a Lien granted by a Security Document to the Collateral Trustee, at any time, upon any Collateral of the Company or any Guarantor to secure Subordinated Lien Obligations.

 

“ Subordinated Lien Cap ” means, as of any date of determination, the amount of Subordinated Lien Debt that may be incurred by the Company or any Guarantor such that, after giving pro forma effect to such incurrence and the application of the net proceeds therefrom the Subordinated Lien Debt Ratio would not exceed 2.0 to 1.0.

 

“ Subordinated Lien Debt ” means any Indebtedness (including letters of credit and reimbursement obligations with respect thereto) of the Company or any Guarantor that is secured on a subordinated basis to the Priority Lien Debt by a Subordinated Lien that was permitted to be Incurred and so secured under each applicable Secured Debt Document; provided that:

 

 

 

 

“ Subordinated Lien Debt Ratio ” means, as of any date of determination, the ratio of (1) Priority Lien Debt, plus (2) Subordinated Lien Debt of the Company and its Restricted Subsidiaries as of that date to the Company’s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of determination, with such adjustments to the amount of Priority Lien Debt, the amount of Subordinated Lien Debt and EBITDA as are consistent with the adjustment provisions set forth in the definition of “Fixed Charge Coverage Ratio.”

 

 “ Subordinated Lien Documents ” means, collectively, any indenture, credit agreement or other agreement governing each Series of Subordinated Lien Debt and the Security Documents related thereto (other than any Security Documents that do not secure Subordinated Lien Obligations).

 

 

 

“ Subordinated Lien Obligations ” means Subordinated Lien Debt and all other Obligations in respect thereof.

 

“ Subordinated Lien Representative ” means, in the case of any future Series of Subordinated Lien Debt, the trustee, agent or representative of the holders of such Series of Subordinated Lien Debt who maintains the transfer register for such Series of Subordinated Lien Debt and (1) is appointed as a Subordinated Lien Representative (for purposes related to the administration of the Security Documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Subordinated Lien Debt, together with its successors in such capacity, and (2) has become a party to the Collateral Trust Agreement by executing a joinder in the form required under the Collateral Trust Agreement.

 

“ Subsidiary ” means, with respect to any specified Person:

 

 

 

“ TIA ” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this Indenture.

 

“ Total Assets ” means the total consolidated assets of the Company and its Restricted Subsidiaries, as shown on the most recent balance sheet of the Company.

 

“ Trustee ” means U.S. Bank National Association, a nationally chartered banking association, as trustee hereunder, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving as trustee hereunder.

 

“ Uniform Commercial Code ” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.

 

“ Unrestricted Subsidiary ” means

 

 

 

 

 

The Board of Directors of the Company may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests of, or owns or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided , however , that the Subsidiary to be so designated and its Subsidiaries do not at the time of designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has recourse to any assets of the Company or any of its Restricted Subsidiaries; provided , further , however , that either:

 

(a)           the Subsidiary to be so designated has total consolidated assets of $1,000 or less; or

 

(b)           if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under the covenant described in Section 4.03 .

 

The Board of Directors of the Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that immediately after giving effect to such designation:

 

 

 

Any such designation by the Board of Directors of the Company shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.

 

“ Voting Equity Interests ” of any Person as of any date means the Equity Interests of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness or Disqualified Stock, as the case may be, at any date, the quotient obtained by dividing:

 

 

 

 

 

“ Wholly Owned Restricted Subsidiary ” means any Wholly Owned Subsidiary that is a Restricted Subsidiary.

 

“ Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.

 

 

Section 1.02       Other Definitions .

 

Section 1.03       Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.  The following TIA terms have the following meanings:

 

“ Commission ” means the SEC;

 

“ indenture securities ” means the Notes and the Note Guarantees;

 

“ indenture security holder ” means a Holder;

 

“ indenture to be qualified ” means this Indenture;

 

“ indenture trustee ” or “ institutional trustee ” means the Trustee; and

 

“ obligor ” on the indenture securities means the Company, the Guarantors and any other successor obligor on the indenture securities.

 

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

 

 

Section 1.04       Rules of Construction . Unless the context otherwise requires:

 

(a)         a term has the meaning assigned to it;

 

(b)         an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

 

 

 

(c)         “or” is not exclusive;

 

(d)         “including” means including without limitation;

 

(e)         words in the singular include the plural and words in the plural include the singular;

 

(f)         no Indebtedness of any Person will be deemed to be contractually subordinated in right of payment to any other Indebtedness of such Person solely by virtue of being unsecured or by virtue of being secured on a junior priority basis.

 

(g)         “herein,” “hereof” and other word of similar import refer to this Indenture as a whole and not to any particular Section, Article or other subdivision;

 

(h)         the principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP;

 

(i)         the principal amount of any Preferred Stock shall be (i) the maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory redemption or mandatory repurchase price with respect to such Preferred Stock, whichever is greater;

 

(j)         unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP;

 

(k)         “$” and “U.S. Dollars” each refer to United States dollars, or such other money of the United States of America that at the time of payment is legal tender for payment of public and private debts;

 

(l)         “will” shall be interpreted to express a command;

 

(m)           references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time.

 

(n)         all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of, or to, this Indenture unless otherwise indicated; and

 

(o)         whenever in this Indenture or the Notes there is mentioned, in any context, principal, interest or any other amount payable under or with respect to any Notes, such mention shall be deemed to include mention of the payment of Additional Interest, to the extent that, in such context, Additional Interest is, was or would be payable in respect thereof.

 

 

 

ARTICLE TWO

THE NOTES

 

Section 2.01       Amount of Notes; Additional Notes . The aggregate principal amount of Original Notes which may be authenticated and delivered under this Indenture on the Issue Date is $460,000,000. All Notes shall be substantially identical except as to denomination.

 

The Company may from time to time after the Issue Date issue Additional Notes under this Indenture in an unlimited principal amount, so long as (i) the Incurrence of the Indebtedness represented by such Additional Notes is at such time permitted by Section 4.03 and Section 4.13 and (ii) such Additional Notes are issued in compliance with the other applicable provisions of this Indenture.  The Notes, including any Additional Notes and Exchange Notes, subsequently issued shall be treated as a single Series of Priority Lien Debt and as a single class for all purposes under this Indenture.

 

With respect to any Additional Notes issued after the Issue Date (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.07 , Section 2.08 , Section 2.10 , Section 3.08 , Section 3.09(d) , Section 4.06(h) and Section 4.08(c) or the Appendix), there shall be (a) established in or pursuant to a resolution of the Board of Directors and (b) set forth or determined in the manner provided in an Officers’ Certificate or established in one or more indentures supplemental hereto, prior to the issuance of such Additional Notes:

 

 

 

 

 

If any of the terms of any Additional Notes are established by action taken pursuant to a resolution of the Board of Directors, a copy of an appropriate record of such action shall be certified by the Secretary or any Assistant Secretary of the Company and delivered to the Trustee at the time of or prior to the delivery of the Officers’ Certificate or the indenture supplemental hereto setting forth the terms of the Additional Notes.

 

 

 

Section 2.02       Form and Dating . Provisions relating to the Notes are set forth in the Appendix, which is hereby incorporated in and expressly made a part of this Indenture. The Initial Notes (including any Additional Notes if issued as Restricted Notes) and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture. The Exchange Notes (and any Additional Notes issued other than as Restricted Notes) and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit B hereto, which is hereby incorporated in and expressly made a part of this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule, agreements to which the Company or any Guarantor is subject, if any, or usage. Each Note shall be dated the date of its authentication. The Notes shall be issuable only in registered, global form without interest coupons and in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. Notes will be issued at the closing of the offering described in the Offering Circular only against payment in immediately available funds.

 

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.

 

 

Section 2.03       Execution and Authentication . The Trustee shall authenticate and make available for delivery upon a written order of the Company signed by one Officer (a) Original Notes for original issue on the date hereof in an aggregate principal amount of $460,000,000, (b) subject to the terms of this Indenture, Additional Notes in an aggregate principal amount to be determined at the time of issuance and specified therein and (c) the Exchange Notes for issue in a Registered Exchange Offer pursuant to the Registration Rights Agreement for a like principal amount of Initial Notes exchanged pursuant thereto or otherwise pursuant to an effective registration statement under the Securities Act. Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes or Exchange Notes.

 

At least one Officer shall sign the Notes for the Company by manual or facsimile signature.

 

If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

 

A Note shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.

 

The Trustee may appoint one or more authenticating agents reasonably acceptable to the Company to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Responsible Officer, a copy of which shall be furnished to the Company. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee

 

 

includes authentication by such agent. An authenticating agent has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.  The Trustee is hereby authorized to enter into a letter of representations with the Depositary in the form provided by the Company and to act in accordance with such letter.

 

 

Section 2.04       Registrar and Paying Agent . (a)  The Company shall maintain (i) an office or agency where Notes may be presented for registration of transfer or for exchange (the “ Registrar ”) and (ii) an office or agency where Notes may be presented for payment (the “ Paying Agent ”). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term “ Registrar ” includes any co-registrars. The term “ Paying Agent ” includes the Paying Agent and any additional paying agents. The Company initially appoints (i) the Trustee as Registrar, Paying Agent and the Notes Custodian with respect to the Global Notes and (ii) DTC to act as Depositary with respect to the Global Notes. The Company may change the Paying Agent or Registrar without prior notice to any Holder.

 

(b)         The Company may enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.07 . The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

 

(c)         The Company may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided , however , that no such removal shall become effective until (i) if applicable, acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (ii) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until the appointment of a successor in accordance with clause (i) above. The Registrar or Paying Agent may resign at any time upon written notice to the Company and the Trustee; provided , however , that the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns as Trustee in accordance with Section 7.08 .

 

Section 2.05       Paying Agent to Hold Money in Trust . Prior to each due date of the principal of, premium (if any), interest and Additional Interest (if any) on any Note, the Company shall deposit with each Paying Agent (or if the Company or a Wholly Owned Subsidiary of the Company is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such amounts when so becoming due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium (if any), interest and Additional Interest (if any) on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. If the Company or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it in trust for the benefit of Holders.

 

 

The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section, a Paying Agent (if other than the Company or one of its Wholly Owned Subsidiaries) shall have no further liability for the money delivered to the Trustee. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

 

Section 2.06       Holder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at least five Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form as the Trustee may reasonably require of the names and addresses of Holders as of such date.

 

Section 2.07       Transfer and Exchange . The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with the Appendix. When a Note is presented to the Registrar with a request to register a transfer, the Registrar shall register the transfer as requested if its requirements therefor are met. When Notes are presented to the Registrar with a request to exchange them for an equal principal amount of Notes of other authorized denominations, the Registrar shall make the exchange as requested if the same requirements are met. To permit registration of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Notes at the Registrar’s request. The Company shall not be required to make, and the Registrar need not register, transfers or exchanges of Notes (i) selected for redemption (except, in the case of Notes to be redeemed in part, the portion thereof not to be redeemed) or of any Notes for a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption and ending at the close of business on the day of selection or (ii) tendered and not withdrawn in connection with a Change of Control Offer or an Asset Sale Offer.

 

Prior to the due presentation for registration of transfer of any Note, the Company, the Guarantors, the Trustee, the Paying Agent and the Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of, premium (if any), interest and Additional Interest (if any) on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, any Guarantor, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.

 

Any Holder of a beneficial interest in a Global Note shall, by acceptance of such beneficial interest, agree that transfers of beneficial interests in such Global Note may be effected only through a book-entry system maintained by (a) the Holder of such Global Note (or its agent) or (b) any Holder of a beneficial interest in such Global Note, and that ownership of a beneficial interest in such Global Note shall be required to be reflected in a book entry.

 

All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.

 

 

 

No service charge shall be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, stamp or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments, stamp or similar governmental charge payable upon exchanges pursuant to Section 2.10 , Section 3.08 , Section 3.09 , Section 4.06 , Section 4.08 and Section 9.05 of this Indenture).

 

Section 2.08       Replacement Notes . If a mutilated Note is surrendered to the Registrar or the Trustee or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and, upon a written order of the Company signed by at least one Officer, the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met, such that the Holder (a) satisfies the Company or the Trustee within a reasonable time after such Holder has notice of such loss, destruction or wrongful taking and the Registrar does not register a transfer prior to receiving such notification, (b) makes such request to the Company or the Trustee prior to the Note being acquired by a protected purchaser as defined in Section 8-303 of the Uniform Commercial Code (a “ protected purchaser ”) and (c) and the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the Company, such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee to protect the Trustee, a Paying Agent and the Registrar, and sufficient in the judgment of the Company to protect the Company, from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee may charge the Holder for their expenses in replacing a Note (including without limitation, attorneys’ fees and disbursements in replacing such Note). In the event any such mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Company in its discretion may pay such Note instead of issuing a new Note in replacement thereof.

 

Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder.

 

The provisions of this Section 2.08 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.

 

Section 2.09       Outstanding Notes . Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those described in this Section as not outstanding. Subject to Section 13.06 , a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for the purposes of Section 3.01(b) .

 

If a Note is replaced pursuant to Section 2.08 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a protected purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.08 .

 

 

 

If a Paying Agent (other than the Company, a Wholly Owned Subsidiary of the Company or an Affiliate of any of the foregoing) segregates and holds in trust, in accordance with this Indenture, on a redemption date or maturity date, money sufficient to pay all amounts due and payable on that date with respect to the Notes (or portions thereof) to be redeemed or maturing, as the case may be, and no Paying Agent is prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) shall be deemed to be no longer outstanding and shall cease to accrue interest. If the principal amount of any Note is considered paid under Section 4.01 , it ceases to be outstanding and interest on it ceases to accrue.

 

Section 2.10       Temporary Notes . In the event that Definitive Notes are to be issued under the terms of this Indenture, until such Definitive Notes are ready for delivery, the Company may prepare and, upon a written order of the Company signed by an Officer, the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare, and upon a written order of the Company signed by an Officer, the Trustee shall authenticate Definitive Notes and make them available for delivery in exchange for temporary Notes upon surrender of such temporary Notes at the office or agency of the Company, without charge to the Holder. Until such exchange, temporary Notes shall be entitled to the same rights, benefits and privileges as Definitive Notes.

 

Section 2.11       Cancellation . The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and each Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment or cancellation and shall dispose of canceled Notes in accordance with its customary procedures. The Company may not issue new Notes to replace Notes it has redeemed, paid or delivered to the Trustee for cancellation. Certification of the disposition of all canceled Notes shall be delivered to the Company. The Trustee shall not authenticate Notes in place of canceled Notes other than pursuant to the terms of this Indenture.

 

Section 2.12       Defaulted Interest . If the Company defaults in a payment of interest on the Notes, the Company shall pay the defaulted interest then borne by the Notes (plus interest on such defaulted interest to the extent lawful) in any lawful manner to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 . The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment.  The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to each affected Holder a notice stating the special record date, the related payment date and the amount of such interest to be paid.

 

Section 2.13       CUSIP Numbers, ISINs, etc . The Company in issuing the Notes may use CUSIP numbers, ISINs and “Common Code” numbers (if then generally in use) and, if so, the Trustee shall use CUSIP numbers, ISINs and “Common Code” numbers in notices of

 

 

redemption as a convenience to Holders; provided , however , that any such notice may state that (x) no representation is made as to the correctness of such numbers, either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes and (y) any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall advise the Trustee of any change in the CUSIP numbers, ISINs and “Common Code” numbers.

 

Section 2.14       Calculation of Principal Amount of Notes Outstanding . With respect to any matter requiring consent, waiver, approval or other action of the Holders of a specified percentage of the principal amount of all the Notes, such percentage shall be calculated, on the relevant date of determination, by dividing (a) the principal amount, as of such date of determination, of Notes, the Holders of which have so consented, by (b) the aggregate principal amount, as of such date of determination, of the Notes then outstanding, in each case, as determined in accordance with the preceding sentence, Section 2.09 and Section 13.06 of this Indenture. Any such calculation made pursuant to this Section 2.14 shall be made by the Company and delivered to the Trustee pursuant to an Officers’ Certificate.

 

Section 2.15       Methods of Receiving Payments on the Notes . The Company and the Trustee will treat the Persons in whose names the Notes, including the Global Notes, are registered as the owners of the Notes for the purpose of receiving payments and for all other purposes.  The Company will make payments in respect of the Notes represented by the Global Notes, including principal, premium, if any, and interest (including Additional Interest, if any), by wire transfer of immediately available funds to the accounts specified by the Depositary, as registered Holder of the Global Notes under this Indenture. The Company will make all payments of principal, interest (including Additional Interest, if any) and premium, if any, with respect to Definitive Notes by wire transfer of immediately available funds to the accounts specified by the Holders of the Definitive Notes or, if no such account is specified, by mailing a check to each such Holder’s registered address. All other payments on Notes shall be made at the office or agency of the Paying Agent and Registrar within the City and State of New York unless the Company elects to make interest payments by check mailed to the Holders at their addresses set forth in the register of Holders.  The Company shall inform each Paying Agent of such election.

 

Section 2.16       Payments in Respect of Global Notes . Upon receipt by the Depositary of any payment of principal of, premium on, if any, and interest (including Additional Interest, if any) on any Global Note, the Depositary will immediately credit, on its book-entry registration and transfer system, the accounts of Participants with payments in amounts proportionate to their respective beneficial interests in the principal or face amount of such Global Note as shown on the records of the Depositary. Payments by Participants and Indirect Participants to owners of beneficial interests in a Global Note held through such Participants or Indirect Participants will be (i) governed by standing instructions and customary practices as is now the case with securities held for customer accounts registered in “street name” and (ii) the sole responsibility of the Participants or the Indirect Participants and not the responsibility of the Depositary, the Trustee or the Company.  Neither the Company nor the Trustee will be liable for any delay by the Depositary or any of the Participants or the Indirect Participants in identifying the owners of beneficial interests in the Notes, and the Company and the Trustee may conclusively rely on and will be protected in relying on instructions from the Depositary or its nominee for all purposes.

 

 

ARTICLE THREE

REDEMPTION

 

Section 3.01       Optional Redemption .

 

(a)         Except as set forth in paragraph (b) of this Section 3.01 , the Company shall not have the option to redeem the Notes pursuant to this Section prior to September 15, 2012.  On or after September 15, 2012, the Company may redeem the Notes, in whole at any time or in part from time to time, upon not less than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest and Additional Interest (if any) thereon, to the applicable redemption date, if redeemed during the 12-month period beginning on September 15 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant interest payment date:

 

Year	Percentage
September 15, 2012	105.313%
September 15, 2013	102.657%
September 15, 2014 and thereafter	100.000%

 

(b)         At any time and from time to time on or prior to September 15, 2012, the Company may redeem in the aggregate up to 35% of the aggregate principal amount of the Notes issued under this Indenture (calculated after giving effect to any issuance of Additional Notes) with the net cash proceeds of one or more Equity Offerings (1) by the Company or (2) by any direct or indirect parent of the Company to the extent the net cash proceeds of such Equity Offering by such direct or indirect parent of the Company are contributed to the common equity capital of the Company or used to purchase Capital Stock (other than Disqualified Stock) of the Company from it, at a redemption price (expressed as a percentage of principal amount thereof) of 110.625%, plus accrued and unpaid interest and Additional Interest, if any, on the Notes redeemed to the redemption date; provided , however , that (i) at least 65% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) remains outstanding after each such redemption; and (ii) any such redemption shall occur within 90 days after the date on which any such Equity Offering is consummated and otherwise in accordance with the procedures set forth in this Indenture.

 

Section 3.02       Applicability of Article . Redemption of Notes at the election of the Company or otherwise, as permitted or required by any provision of this Indenture, shall be made in accordance with such provision and this ARTICLE Three .

 

Section 3.03       Notices to Trustee . If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.01 , the Company shall furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date (unless a shorter period is acceptable to the Trustee in its discretion), a notice in writing setting forth (a) the clause of this Indenture pursuant to which the redemption shall occur; (b) the redemption date; (c) the principal amount of Notes to be redeemed; and (d) the redemption price.  Such notice shall be accompanied

 

 

by an Officers’ Certificate and Opinion of Counsel from the Company to the effect that such redemption will comply with the conditions herein. If fewer than all the Notes are to be redeemed, the record date relating to such redemption shall be selected by the Company and given to the Trustee, which record date shall be not fewer than 15 days after the date of notice to the Trustee. Any such notice may be canceled at any time prior to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect.

 

Section 3.04       Selection of Notes to Be Redeemed .

 

(a)           If less than all of the Notes are to be redeemed at any time, the Trustee shall select Notes for redemption on a pro rata basis (or, in the case of Global Notes, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate) unless otherwise required by law or applicable stock exchange or depositary requirements.  The Trustee shall make the selection from outstanding Notes not previously called for redemption.

 

(b)         The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed.  Notes and portions of Notes selected will be in amounts of $2,000 or integral multiples of $1,000 in excess thereof, and no Notes of $2,000 or less shall be redeemed in part; provided that if all of the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed.  Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

Section 3.05       Notice of Optional Redemption .  (a)  At least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed by first class mail a notice of redemption to each Holder whose Notes are to be redeemed at such Holder’s registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture.

 

Any such notice shall identify the Notes to be redeemed and shall state:

 

 

 

 

 

 

 

 

 

 

 

 

 

(b)         At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense. In such event, the Company shall provide the Trustee with the information required by this Section at least five Business Days prior to the date of giving such notice of redemption. The notice, if mailed in the manner provided herein shall be presumed to have been given, whether or not the Holder receives such notice.  If any of the Notes are in the form of a Global Note, then the Company, or the Trustee at the Company’s request, shall modify the notice to be given pursuant to Section 3.05 and the method of delivery of such notice to the extent necessary to accord with the Applicable Procedures that apply to the redemption of Global Notes and beneficial interests in Global Notes.

 

(c)         Notice of any redemption upon any Equity Offering described in Section 3.01(b) may be given prior to the completion thereof, and any redemption of Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent including, but not limited to, completion of the related Equity Offering.

 

Section 3.06       Effect of Notice of Redemption . Once notice of redemption is mailed in accordance with Section 3.05 , Notes called for redemption become due on the date fixed for redemption, unless any conditions precedent have not been satisfied or waived.  On and after the redemption date, unless the Company defaults in the payment of the redemption price or any Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest ceases to accrue on Notes or portions of them called for redemption. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption price stated in the notice, plus accrued and unpaid interest, to the redemption date; provided , however , that if the redemption date is after a regular record date and on or prior to the interest payment date, the accrued interest shall be

 

 

payable to the Holder of the redeemed Notes registered on the relevant record date. Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder.

 

Section 3.07       Deposit of Redemption Price .

 

(a)           With respect to any Notes, on or prior to 10:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent (or, if the Company or a Wholly Owned Subsidiary of the Company is the Paying Agent, shall segregate and hold in trust) in immediately available funds money sufficient to pay the redemption price of, and accrued and unpaid interest and Additional Interest (if any) on, all Notes or portions thereof to be redeemed on that date other than Notes or portions of Notes called for redemption that have been delivered by the Company to the Trustee for cancellation. The Paying Agent shall promptly return to the Company any money deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed.

 

(b)         If the Company complies with the provisions of Section 3.07(a) , on and after the redemption date, intere