This Collateral Trust Agreement (this “Agreement”) is dated as of September 30, 2009, and is by and among ACCO Brands Corporation, a Delaware corporation (the “Issuer”), the Guarantors from time to time party hereto, U.S. Bank National Association, as trustee (in such capacity and together with its successors in such capacity, the “Trustee”), the other Secured Debt Representatives from time to time party hereto, and U.S. Bank National Association, as Collateral Trustee (in such capacity and together with its successors in such capacity, the “Collateral Trustee”).
Capitalized terms used in this Agreement have the meanings assigned to them above or in Article 1 below.
AGREEMENT
(a) Accounts and “payment intangibles,” including tax refunds but excluding “payment intangibles” that constitute identifiable proceeds of Notes Collateral;
(b) “inventory” and all Indebtedness owed to the Issuer or any of its Subsidiaries that arises from cash advances to enable the obligor thereof to acquire “inventory”;
(c) “deposit accounts,” “commodity accounts,” “securities accounts” and all lock-boxes at any “bank,” including all “money,” “certificated securities,” “uncertificated securities,” “securities entitlements” and “investment property” or other assets credited thereto or deposited therein (including all cash, Cash Equivalents, marketable securities and other funds held in or on deposit in any such deposit account, commodity account or securities account, but excluding all equity interests owned by the Issuer or the Guarantors); “instruments,” including intercompany notes (subject to the proviso in clause (e) below); “chattel paper”; and all cash and cash equivalents, including cash and cash equivalents securing letters of credit or other ABL Debt Obligations;
(d) “general intangibles,” “chattel paper” or “instruments” pertaining to the other items of property included within clauses (a), (b), (c), (e), (f) and (g) of this definition;
(e) all indebtedness of the Issuer and each Subsidiary of the Issuer that is owing to the Issuer or any Guarantor; provided that ABL Collateral shall not include intercompany indebtedness from Foreign Subsidiaries owed to the Issuer or any Guarantor up to an aggregate amount of $30.0 million;
(f) books and “records,” “documents” and related “letters of credit” and “commercial tort claims” or other claims and causes of action, in each case, to the extent related primarily to any of the foregoing; and
(g) all substitutions, replacements, accessions, products, “supporting obligations” and “proceeds” (including, without limitation, insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) of all or any of the foregoing;
except to the extent that any item of property included in clauses (a) through (g) constitutes an Excluded Asset; provided, that in no case shall any item in clauses (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 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 the terms of the Indenture until such time as such Net Proceeds are released therefrom in accordance with the terms of the Indenture.
“ABL Collateral Agent” means Deutsche Bank AG New York Branch, as administrative agent under the ABL Credit Facility (and together with its successors in such capacity), together with any other agent, 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 Issuer and the 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, in accordance with the terms of the Intercreditor Agreement.
(1) Indebtedness outstanding under the ABL Credit Facility on the date of the Indenture or incurred from time to time after the date of the Indenture under the ABL Credit Facility; and
(2) additional Indebtedness (including letters of credit and reimbursement obligations with respect thereto) of the Issuer or any Restricted Subsidiary secured by senior Liens on ABL Collateral and junior Liens on Notes Collateral (or, with respect to Foreign Subsidiaries, secured by Liens on assets of such Foreign Subsidiaries that would constitute ABL Collateral if owned by the Issuer or any Guarantor); provided, in the case of any additional Indebtedness referred to in this clause (2), that:
(a) on or before the date on which such additional Indebtedness is incurred by the Issuer or such Restricted Subsidiary, as applicable, such additional Indebtedness is designated by the Issuer, in an Officers’ Certificate delivered to the Collateral Trustee, as “ABL Debt” for purposes of the Secured Debt Documents; provided that such Indebtedness may not be designated as both ABL Debt and Priority Lien Debt, or designated as both ABL Debt and Subordinated Lien Debt; and
(b) the collateral agent or other representative with respect to such Indebtedness, the ABL Collateral Agent, the Collateral Trustee, the Issuer and each applicable Guarantor have duly executed and delivered the Intercreditor Agreement (or a joinder to the Intercreditor Agreement or a new intercreditor agreement substantially similar to the Intercreditor Agreement, as in effect on the date of the Indenture, and in a form reasonably acceptable to each of the parties thereto).
Notwithstanding the foregoing, if the aggregate principal amount of Indebtedness (excluding Indebtedness representing Hedging Obligations and Indebtedness in respect of cash management services and treasury management services) constituting principal outstanding under the ABL Credit Facility and the other ABL Debt Documents (as of the date of incurrence of any such Indebtedness and after giving pro forma effect to the application of the net proceeds therefrom and with letters of credit or bankers’ acceptances issued under the ABL Credit Facility and the other ABL Debt Documents being deemed to have a principal amount equal to the face amount thereof) exceeds the ABL Lien Cap, then only that portion of such Indebtedness and such aggregate face amount of letters of credit and bankers’ acceptances equal to the ABL Lien Cap shall be included in ABL Debt and interest, fees, expenses and indemnification obligations with
respect to such Indebtedness and letters of credit and bankers’ acceptances shall only constitute ABL Debt Obligations to the extent related to Indebtedness and the face amounts of letters of credit and bankers’ acceptances included in ABL Debt.
“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) in accordance with the terms of the Intercreditor Agreement.
“ABL Debt Obligations” means ABL Debt and all other Obligations in connection with the ABL Credit Facility, including:
(1) additional Obligations of the Issuer or any Restricted Subsidiary relating to any cash management services or treasury management services provided to the Issuer or any Restricted Subsidiary by any agent or lender or Affiliate thereof even if the respective lender subsequently ceases to be a lender under the ABL Credit Facility (together with successors and assigns); and
(2) Hedging Obligations of the Issuer or any Restricted Subsidiary relating to hedging agreements with any agent or lender or Affiliate thereof even if the respective lender subsequently ceases to be a lender under the ABL Credit Facility (together with successors and assigns).
“ABL Lien Cap” means, as of any date of determination, the sum of (1) $225.0 million and (2) 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.
“Accounts” means, without duplication, (i) an “account,” (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.
“Additional Secured Debt Designation” means a notice in substantially the form of Exhibit A.
“Asset Sale” has the meaning set forth in the Indenture.
“Bankruptcy Code” means Title 11 of the United States Code.
(6) investment funds investing at least 95% of their assets in securities of the types described in clauses (1) through (5) above;
(7) readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P, in each case with maturities not exceeding two years from the date of acquisition;
(8) Indebtedness issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s, in each case with maturities not exceeding two years from the date of acquisition; and
(9) in the case of any Foreign Subsidiary:
(a) direct obligations of the sovereign nation, or any agency thereof, in which such Foreign Subsidiary is organized and is conducting business or
obligations fully and unconditionally guaranteed by such sovereign nation, or any agency thereof;
(b) investments of the type and maturity described in clauses (1) through (8) above of foreign obligors, which investments or obligors, or the direct or indirect parents of such obligors, have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies; or
(c) investments of the type and maturity described in clauses (1) through (8) above of foreign obligors, or the direct or indirect parents of such obligors, which investments or obligors, or the direct or indirect parents of such obligors, are not rated as provided in such clauses or in clause (b) above but which are, in the reasonable judgment of the Issuer, comparable in investment quality to such investments and obligors, or the direct or indirect parent of such obligors.
“Collateral Proceeds Account” means one or more deposit accounts or securities accounts established or maintained by the Collateral Trustee, its agent or the Issuer (if subject to a control agreement in favor of the Collateral Trustee) for the sole purpose of holding the Net Proceeds from a Sale of Notes Collateral or other disposition of any Notes Collateral that are required to be held in trust in such account or accounts pursuant to the terms of the Indenture as in effect on the date hereof (or as modified from time to time) or pursuant to the terms of any other Priority Lien Document that contains comparable provisions.
“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:
(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
(2) to advance or supply funds:
(a) for the purchase or payment of any such primary obligation; or
(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
“Covenant Defeasance” has the meaning set forth in the Indenture.
“Credit Facility” 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.
“Discharge of ABL Debt Obligations” means the occurrence of all of the following:
(1) termination or expiration of all commitments to extend credit that would constitute ABL Debt;
(2) payment in full in cash of the principal of, and interest, fees and premium, if any, on all ABL Debt (other than any undrawn letters of credit), other than from the proceeds of an incurrence of ABL Debt;
(3) (i) cash collateralization (at the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable ABL Debt Document) or other discharge satisfactory to the issuing lender thereof of all outstanding letters of credit constituting ABL Debt Obligations and (ii) the termination or expiration of all commitments to issue letters of credit that would constitute ABL Debt Obligations; and
(4) payment in full in cash of all other ABL Debt Obligations that are outstanding and unpaid at the time the ABL Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).
“Discharge of Senior Obligations” means the Discharge of ABL Debt Obligations and the Discharge of Priority Lien Obligations.
“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: (1) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (2) is convertible or exchangeable for Indebtedness or Disqualified Stock of such Person, or (3) is redeemable at the option of the holder thereof, in whole or in part, in each case prior to 91 days after the maturity date of the Notes; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided further, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability; provided further, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the issuer to repurchase such Capital Stock upon the occurrence of a Change of Control or an Asset Sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the issuer may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with all outstanding Secured Debt Documents.
“Domestic Subsidiary” means any Restricted Subsidiary of the Issuer 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.
“EBITDA” has the meaning set forth in the Indenture.
“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).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
(1) all interests in real property other than (i) fee interests if the greater of the cost or the book value of such fee interest is more than $2,000,000 and (ii) leasehold interests in real property contemplated to be used by the Issuer or the applicable Guarantor for any material manufacturing operations, in each case, as designated as such by the Issuer or the applicable Guarantor to the Collateral Trustee in writing (except in cases where the Issuer or the applicable Guarantor has been unable to obtain the consent of the landlord of such leased property to the granting of a Lien on such leasehold interests after using commercially reasonable efforts to do so);
(2) any property or asset to the extent that the grant of a Lien under the Security Documents in such property or asset is prohibited by applicable law or requires any consent of any governmental authority not obtained pursuant to applicable law; provided that such property or asset will be an Excluded Asset only to the extent and for so long as the consequences specified above will result and will cease to be an Excluded
Asset and will become subject to the Lien granted under the Security Documents, immediately and automatically, at such time as such consequences will no longer result;
(3) any lease, license, contract, property right or agreement to which the Issuer or any Guarantor is a party or any of its rights or interests thereunder only to the extent and only for so long as the grant of a Lien under the Security Documents will constitute or result in a breach, termination or default under or requires any consent not obtained under any such lease, license, contract, agreement or property right (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity); provided that such lease, license, contract, property right or agreement will be an Excluded Asset only to the extent and for so long as the consequences specified above will result and will cease to be an Excluded Asset and will become subject to the Lien granted under the Security Documents, immediately and automatically, at such time as such consequences will no longer result;
(4) Equity Interests in ACCO Brands Receivables Funding LLC, so long as such entity is a Receivables Subsidiary;
(5) Equity Interests or other securities of any Subsidiary of the Issuer (other than ACCO Brands Europe Holding LP) to the extent the pledge of such Equity Interests or other securities would require the Issuer to file separate financial statements with the SEC with respect to such Subsidiary pursuant to Rule 3-16 of Regulation S-X under the Securities Act, as in effect from time to time; provided that in the event that Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) all of such Subsidiary’s Equity Interests or other securities to be pledged to secure the Priority Lien Obligations without the filing with the SEC of separate financial statements of such Subsidiary, then all of the Equity Interests and other securities of such Subsidiary shall automatically be deemed to be part of the Notes Collateral (and the Security Documents shall be amended to reflect such inclusion in the Notes Collateral);
(6) any amount of Voting Equity Interests of any Foreign Subsidiary exceeding, and only to the extent that such Voting Equity Interests exceed, 65% of the total Equity Interests of such Foreign Subsidiary held by the Issuer or any Guarantor; and
(7) the Equity Interests of any Foreign Subsidiary other than (A) ACCO Mexicana S.A. de C.V., ACCO Brands Canada Inc. and ACCO Brands Europe Holding LP; and (B) any Foreign Subsidiary directly owned by the Issuer or any Guarantor if the product of that Foreign Subsidiary’s EBITDA for the preceding fiscal year times 7.0 exceeds $42.5 million, such determination to be made annually at the conclusion of the audit of the Issuer’s annual financial statements, in each case subject to clauses (5) and (6) above.
“Excluded Subsidiary” means:
(1) ACCO Brands Receivables Funding LLC; and
(2) any Foreign Subsidiary.
“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.
“Foreign Subsidiary” means any Restricted Subsidiary of the Issuer other than a Domestic Subsidiary.
“GAAP” means generally accepted accounting principles in the United States as 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 the Indenture and the other Priority Lien Documents, 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.
“Guarantors” means (1) each direct or indirect Domestic Subsidiary of the Issuer on the date of the Indenture (other than any Excluded Subsidiary); (2) any other Restricted Subsidiary of the Issuer that executes a Note Guarantee from time to time in accordance with the provisions of the Indenture and a Collateral Trust Joinder; and (3) their respective successors and assigns until released from their obligations under their Note Guarantees and the Indenture in accordance with the terms of the Indenture.
(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements, and currency exchange, interest rate or commodity collar agreements; and
(2) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates, interest rates and/or commodity prices.
(1) any indebtedness of such Person, without duplication, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof), excluding letters of credit securing obligations other than obligations described in subclauses (a), (b), (e) and (f) of this clause (1) and entered into in the ordinary course of business of such Person, to the extent such letters of credit are not drawn upon, or, if drawn upon, to the extent such drawing is reimbursed no later than the fifth (5th) Business Day following receipt by such Person of a demand for reimbursement, (c) in respect of bankers’ acceptances, (d) representing the deferred balance and unpaid purchase price of any property, except any such balance that constitutes an accrued expense or trade payable or similar obligation to a trade creditor and excluding any such balance or unpaid purchase price to the extent that it is either required to be or at the option of such Person may be satisfied solely through the issuance of Equity Interests of the Issuer that are not Disqualified Stock, (e) in respect of Capital Lease Obligations, or (f) representing any Hedging Obligations, other than Hedging Obligations that are incurred in the normal course of business and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder, if and to the extent that any of the foregoing indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(8) to the extent not otherwise included, with respect to the Issuer and its Restricted Subsidiaries, the amount then outstanding (i.e., advanced, and received by, and available for use by, the Issuer or any of its Restricted Subsidiaries) under any Receivables Financing (as set forth in the books and records of the Issuer or any Restricted Subsidiary and confirmed by the agent, trustee or other representative of the institution or group providing such Receivables Financing);
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.
“Indemnified Liabilities” means any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, taxes, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, performance, administration or enforcement of this Agreement or any of the other Security Documents, including any of the foregoing relating to the use of proceeds of any Secured Debt or the violation of, noncompliance with or liability under, any law applicable to or enforceable against the Issuer, any Guarantor or any of their Subsidiaries or any of the Collateral and all reasonable costs and expenses (including reasonable fees and expenses of legal counsel selected by the Indemnitee) incurred by any Indemnitee in connection with any claim, action, investigation or proceeding in any respect relating to any of the foregoing, whether or not suit is brought.
(3) any proceeding seeking the appointment of a trustee, receiver, liquidator, custodian or other insolvency official with respect to the Issuer or any Guarantor or any of their assets;
(5) any analogous procedure or step in any jurisdiction.
“Intercreditor Agreement” means an intercreditor agreement entered into by and among the Collateral Trustee, the ABL Collateral Agent, the Issuer and the Guarantors, in substantially the form attached as Exhibit D, as amended, supplemented, restated, modified, renewed or replaced (whether upon or after termination or otherwise), in whole or in part from time to time, or any other successor agreement and whether among the same or any other parties.
“Investment” has the meaning set forth in the Indenture.
“Issue Date” has the meaning set forth in the Indenture.
“Issuer” has the meaning set forth in the preamble.
“Legal Defeasance” has the meaning set forth in the Indenture.
“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 UCC (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:
(1) as to any Series of Priority Lien Debt, the written agreement of the holders of such Series of Priority Lien Debt, as set forth in the indenture, credit agreement or other agreement governing such Series of Priority Lien Debt, for the enforceable benefit of all holders of Secured Debt and each existing and future Secured Debt Representative:
(a) that all Priority Lien Obligations will be and are secured Equally and Ratably by all Priority Liens at any time granted by the Issuer or any Guarantor to secure any Obligations in respect of such Series of Priority Lien Debt, whether or not upon property otherwise constituting Collateral, and that all such Priority Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Priority Lien Obligations Equally and Ratably;
(b) that the holders of Obligations in respect of such Series of Priority Lien Debt are bound by the provisions of this Agreement, including the provisions relating to the ranking of Priority Liens and the order of application of proceeds from enforcement of Priority Liens; and
(c) consenting to the terms of this Agreement and the Intercreditor Agreement and the Collateral Trustee’s performance of, and directing the Collateral Trustee to perform, its obligations under this Agreement, the Intercreditor Agreement and the other Security Documents;
(2) as to any Series of ABL Debt, the written agreement of the holders of such Series of ABL Debt, as set forth in the credit agreement, indenture or other agreement governing such Series of ABL Debt, for the enforceable benefit of all holders of Secured Debt and each Secured Debt Representative, that the holders of Obligations in respect of such Series of ABL Debt are bound by the provisions of the Intercreditor Agreement (or a joinder to the Intercreditor Agreement or a new intercreditor agreement substantially similar to the Intercreditor Agreement, as in effect on the date of the Indenture, and in a form reasonably acceptable to each of the parties thereto); and
(3) as to any Series of Subordinated Lien Debt, the written agreement of the holders of such Series of Subordinated Lien Debt, as set forth in the indenture, credit agreement or other
agreement governing such Series of Subordinated Lien Debt, for the enforceable benefit of all holders of Secured Debt and each existing and future Secured Debt Representative:
(a) that all Subordinated Lien Obligations will be and are secured Equally and Ratably by all Subordinated Liens at any time granted by the Issuer or any Guarantor to secure any Obligations in respect of such Series of Subordinated Lien Debt, whether or not upon property otherwise constituting Collateral, and that all such Subordinated Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Subordinated Lien Obligations Equally and Ratably;
(b) that the holders of Obligations in respect of such Series of Subordinated Lien Debt are bound by the provisions of this Agreement and the Intercreditor Agreement, including the provisions relating to the ranking of Subordinated Liens and the order of application of proceeds from the enforcement of Subordinated Liens; and
(c) consenting to the terms of this Agreement and the Intercreditor Agreement and the Collateral Trustee’s performance of, and directing the Collateral Trustee to perform, its obligations under this Agreement, the Intercreditor Agreement and the other Security Documents.
“Note Guarantee” means a Guarantee of the Notes pursuant to the Indenture.
“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.
“Pledge Agreement” means the Pledge Agreement, dated as of September 30, 2009, among the Issuer, the Guarantors and the Collateral Trustee, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time.
(c) such additional notes or such Indebtedness is governed by an indenture or a credit agreement, as applicable, or other agreement that includes a Lien Sharing and Priority Confirmation; and
Notwithstanding the foregoing, if the aggregate principal amount of Indebtedness constituting principal outstanding under the Priority Lien Documents (as of the date of incurrence of any such Indebtedness and after giving pro forma effect to the application of the net proceeds therefrom) exceeds the Priority Lien Cap, then only that portion of such Indebtedness equal to the Priority Lien Cap shall be included in Priority Lien Debt and interest, fees, expenses and indemnification obligations with respect to such Indebtedness shall only constitute Priority Lien Obligations to the extent related to Indebtedness included in the Priority Lien Debt.
“Receivables Financing” has the meaning set forth in the Indenture.
“Receivables Subsidiary” has the meaning set forth in the Indenture.
“Required Priority Lien Debtholders” means, at any time, the holders of a majority in aggregate principal amount of all Priority Lien Debt then outstanding, calculated in accordance with the provisions of Section 7.2. For purposes of this definition, Priority Lien Debt registered in the name of, or beneficially owned by, the Issuer, any Guarantor or any Affiliate of the Issuer or any Guarantor will be deemed not to be outstanding.
“Restricted Subsidiary” means, with respect to any Person, any Subsidiary of such Person other than an Unrestricted Subsidiary of such Person. Unless otherwise indicated herein, all references to Restricted Subsidiaries shall mean Restricted Subsidiaries of the Issuer.
“SEC” means the United States Securities and Exchange Commission.
“Security Agreement” means the Security Agreement, dated as of September 30, 2009, among the Issuer, the Guarantors and the Collateral Trustee, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time.
“Security Documents” means this Agreement, the Intercreditor Agreement, each Lien Sharing and Priority Confirmation, each Collateral Trust Joinder, the Security Agreement, the Pledge Agreement and all security agreements, pledge agreements, collateral assignments, collateral agency agreements, debentures, control agreements, mortgages, deeds of trust or other grants or transfers for security executed and delivered by the Issuer or any Guarantor creating (or purporting to create) a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of the Secured Parties, 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.
“Series of ABL Debt” means, severally, the ABL Credit Facility and any Credit Facility and other Indebtedness that constitutes ABL Debt Obligations.
(3) such Indebtedness is governed by an indenture, credit agreement or other agreement that includes a Lien Sharing and Priority Confirmation; and
“Subordinated Trust” has the meaning set forth in Section 2.2.
“Voting Equity Interests” means, for any Person as of any date, 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.
(e) Notwithstanding anything to the contrary in this Agreement, any references contained herein to any section, clause, paragraph, definition or other provision of the Indenture (including any definition contained therein) shall be deemed to be a reference to such section, clause, paragraph, definition or other provision as in effect on the date of this Agreement; provided, that any reference to any such section, clause, paragraph or other provision shall refer to such section, clause, paragraph or other provision of the Indenture (including any definition contained therein) as amended or modified from time to time if such amendment or modification has been (1) made in accordance with the Indenture and (2) approved by an Act of the Required Debtholders in a writing delivered to the applicable Secured Debt Representative
and the Collateral Trustee. Notwithstanding the foregoing, whenever any term used in this Agreement is defined or otherwise incorporated by reference to the Indenture, such reference shall be deemed to have the same effect as if such definition or term had been set forth herein in full and such term shall continue to have the meaning established pursuant to the Indenture notwithstanding the termination or expiration of the Indenture or redemption of all Obligations evidenced thereby.
(g) In the event of any conflict between any terms and provisions set forth in this Agreement and those set forth in any other Security Document (other than the Intercreditor Agreement), the terms and provisions of this Agreement shall supersede and control the terms and provisions of such other Security Document (other than the Intercreditor Agreement). In the event of any conflict between any terms and provisions set forth in this Agreement and those set forth in the Intercreditor Agreement, the terms and provisions of the Intercreditor Agreement shall supersede and control the terms and provisions of this Agreement.
To secure the payment of the Priority Lien Obligations and in consideration of the mutual agreements set forth in this Agreement, the Issuer and each Guarantor hereby grants to the Collateral Trustee, and the Collateral Trustee hereby accepts and agrees to hold, in trust under this Agreement for the benefit of all current and future holders of Priority Lien Obligations, all of the Issuer’s or such Guarantor’s right, title and interest in, to and under all Collateral granted to the Collateral Trustee under any Security Document for the benefit of the holders of Priority Lien Obligations, together with all of the Collateral Trustee’s right, title and interest in, to and under the Security Documents, and all interests, rights, powers and remedies of the Collateral Trustee thereunder or in respect thereof and all cash and non-cash proceeds thereof (collectively, the “Senior Trust Estate”).
SECTION 2.2 Declaration of Subordinated Trust. To secure the payment of the Subordinated Lien Obligations and in consideration of the premises and the mutual agreements set forth herein, the Issuer and each of the Guarantors hereby grants to the Collateral Trustee, and the Collateral Trustee hereby accepts and agrees to hold, in trust under this Agreement for the benefit of all current and future holders of Subordinated Lien Obligations, all of the Issuer’s or such Guarantor’s right, title and interest in, to and under all Collateral granted to the Collateral Trustee under any Security Document for the benefit of the holders of Subordinated Lien Obligations, together with all of the Collateral Trustee’s right, title and interest in, to and under the Security Documents, and all interests, rights, powers and remedies of the Collateral Trustee thereunder or in respect thereof and all cash and non-cash proceeds thereof (collectively, the “Subordinated Trust Estate” and, together with the Senior Trust Estate, the “Trust Estates”).
(a) Until the Discharge of Senior Obligations, the holders of the Notes and the holders of other future Priority Lien Obligations will have, subject to the provision of reasonable security, pre-funding or indemnity satisfactory to the Collateral Trustee by such holders of the Notes against any costs, loss, liability or expense, and subject also to the Intercreditor Agreement and the exceptions set forth below in clauses (1) through (4), and subject to the rights of the holders of Permitted Prior Liens, the exclusive right to authorize and direct the Collateral Trustee with respect to the Collateral (including, without limitation, the exclusive right to authorize or direct the Collateral Trustee to enforce, collect or realize on any Collateral or exercise any other
(e) All proceeds of ABL Collateral received by the Collateral Trustee, any Subordinated Lien Representative or any holder of Subordinated Lien Obligations in violation of Section 2.3(d) will be held by such Person for the account of (1) prior to the Discharge of ABL Debt Obligations, the ABL Collateral Agent or such other representative with respect to any ABL Debt Obligations and remitted to the ABL Collateral Agent or other representative upon demand, and (2) thereafter, the holders of Priority Liens and remitted to any Priority Lien Representative upon demand by such Priority Lien Representative.
then, the holders of Subordinated Lien Obligations and the Subordinated Lien Representatives, in their capacity as holders or representatives of secured claims, will not oppose or otherwise contest the entry of such order, so long as none of the holders of Priority Lien Obligations, any Priority Lien Representative, the holders of ABL Debt Obligations or the ABL Collateral Agent or other representative with respect to any ABL Debt Obligations in any respect opposes or otherwise contests any request made by the holders of Subordinated Lien Obligations or a Subordinated Lien Representative for the grant to the Collateral Trustee, for the benefit of the holders of Subordinated Lien Obligations and the Subordinated Lien Representatives, of a junior Lien upon any property on which a Lien is (or is to be) granted under such order to secure the Priority Lien Obligations or ABL Debt Obligations, co-extensive in all respects with, but subordinated (as set forth in Section 2.3) to, such Lien and all Priority Liens and Liens securing ABL Debt Obligations on such property.
(1) accept, enter into, hold, maintain, administer and, where directed following a Secured Debt Default, enforce all Security Documents, including all Collateral subject thereto, and all Liens created thereunder, perform its obligations under the Security Documents and protect, exercise and enforce the interests, rights, powers and remedies granted or available to it under, pursuant to or in connection with the Security Documents;
(d) Notwithstanding anything to the contrary contained in this Agreement: (1) neither the Issuer nor any of its Affiliates may act as Collateral Trustee; and (2) no Secured Debt Representative may serve as Collateral Trustee, provided that the Trustee may serve as the Collateral Trustee if the Notes are the only Priority Lien Obligations or Subordinated Lien Obligations outstanding (other than Hedging Obligations).
(e) for the subordination of the Liens on the ABL Collateral securing the Secured Debt Obligations to the Liens on the ABL Collateral securing the ABL Debt Obligations to the extent required by the Intercreditor Agreement.
SECTION 3.3 Enforcement of Liens. If the Collateral Trustee at any time receives written notice stating that any event has occurred that constitutes a default under any Secured Debt Document entitling the Collateral Trustee to foreclose upon, collect or otherwise enforce its Liens thereunder, the Collateral Trustee will promptly deliver written notice thereof to each Secured Debt Representative. Thereafter, the Collateral Trustee may await direction by an Act of Required Debtholders and will act, or decline to act, as directed by an Act of Required Debtholders, in the exercise and enforcement of the Collateral Trustee’s interests, rights, powers and remedies in respect of the Collateral or under the Security Documents or applicable law and, following the initiation of such exercise of remedies, the Collateral Trustee will act, or decline to act, with respect to the manner of such exercise of remedies as directed by an Act of Required Debtholders, subject to the limitations set forth in the Intercreditor Agreement with respect to the rights of the Collateral Trustee in the ABL Collateral. Unless it has been directed to the contrary by an Act of Required Debtholders, the Collateral Trustee in any event may (but will not be obligated to) take or refrain from taking such action with respect to any default under any Secured Debt Document as it may deem advisable and in the best interest of the holders of Secured Debt Obligations, subject in all cases to the limitations in the Intercreditor Agreement.
FOURTH, to the ABL Collateral Agent or other representative with respect to any ABL Debt Obligations for application to the payment of all outstanding ABL Debt Obligations that are then due and payable in an amount sufficient to pay in full in cash all outstanding ABL Debt and all other ABL Debt Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the ABL Debt Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable ABL Debt Documents) of all outstanding letters of credit constituting ABL Debt);
realization thereon or from enforcement thereof solely and exclusively pursuant to the provisions of Section 3.4.
The Security Documents creating or evidencing the Priority Lien Collateral and the Subordinated Lien Collateral and Guarantees for the Priority Lien Obligations and the Subordinated Lien Obligations shall be in all material respects the same forms of documents other than with respect to the first lien, second lien or third lien nature of the Obligations thereunder.
(6) if and to the extent required by Section 2.05(a) of the Intercreditor Agreement;
SECTION 4.4 Release of Liens in Respect of Notes. The Collateral Trustee’s Lien will no longer secure the Notes outstanding under the Indenture or any other Obligations under the Indenture, and the right of the holders of the Notes and such Obligations to the benefits and proceeds of the Collateral Trustee’s Lien on the Collateral will terminate and be discharged:
(1) upon satisfaction and discharge of the Indenture as set forth under Article 10 of the Indenture;
(2) upon a Legal Defeasance or Covenant Defeasance of the Notes as set forth under Article 8 of the Indenture;
(3) upon payment in full and discharge of all Notes outstanding under the Indenture and all Obligations that are outstanding, due and payable under the Indenture at the time the Notes are paid in full and discharged;
(4) in whole or in part, with the consent of the holders of the requisite percentage of Notes in accordance with Article 9 of the Indenture; or
(5) if and to the extent required by Section 2.05(a) of the Intercreditor Agreement.
of a court of competent jurisdiction, as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement or the other Security Documents.
SECTION 5.7 Entitled to Rely. The Collateral Trustee may seek and rely upon, and shall be fully protected in relying upon, any judicial order or judgment, upon any advice, opinion or statement of legal counsel, independent consultants and other experts selected by it in good faith and upon any certification, instruction, notice or other writing delivered to it by the Issuer or any Guarantor in compliance with the provisions of this Agreement or delivered to it by any Secured Debt Representative as to the holders of Secured Debt Obligations for whom it acts, without being required to determine the authenticity thereof or the correctness of any fact stated therein or the propriety or validity of service thereof. The Collateral Trustee may act in reliance upon any instrument comporting with the provisions of this Agreement or any signature reasonably believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof or the other Security Documents has been duly authorized to do so. To the extent an Officers’ Certificate or opinion of counsel is required or permitted under this Agreement to be delivered to the Collateral Trustee in respect of any matter, the Collateral Trustee may rely conclusively on an Officers’ Certificate or opinion of counsel as to such matter and such Officers’ Certificate or opinion of counsel shall be full warranty and protection to the Collateral Trustee for any action taken, suffered or omitted by it under the provisions of this Agreement and the other Security Documents.
(b) The Collateral Trustee will not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuer or any Guarantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or
SECTION 5.14 No Liability for Clean Up of Hazardous Materials. In the event that the Collateral Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Trustee’s sole discretion may cause the Collateral Trustee to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Trustee to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Trustee reserves the right, instead of taking such action, either to resign as Collateral Trustee or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Trustee will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.
Solely for purposes of perfecting the Liens of the Collateral Trustee in its capacity as agent of the holders of Subordinated Lien Obligations and the Subordinated Lien Representatives in any portion of the Subordinated Trust Estate in the possession or control of the Collateral Trustee (or its agents or bailees) as part of the Senior Trust Estate including, without limitation, any instruments, goods, negotiable documents, tangible chattel paper, electronic chattel paper, certificated securities, money, deposit accounts and securities accounts, the Collateral Trustee, the holders of Priority Lien Obligations and the Priority Lien Representatives hereby acknowledge that the Collateral Trustee also holds such property as agent for the benefit of the Collateral Trustee for the benefit of the holders of Subordinated Lien Obligations and the Subordinated Lien Representatives.
IN WITNESS WHEREOF, the Issuer has caused this Additional Secured Debt Designation to be duly executed by the undersigned officer as of ___________________, 20____.
The undersigned, the duly appointed Collateral Trustee under the Collateral Trust Agreement, hereby acknowledges receipt of an executed copy of this Additional Secured Debt Designation.
(a) that all Priority Lien Obligations will be and are secured Equally and Ratably by all Priority Liens at any time granted by the Issuer or any Guarantor to secure any Obligations in respect of such Series of Priority Lien Debt, whether or not upon property otherwise constituting Collateral, and that all such Priority Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Priority Lien Obligations Equally and Ratably;
(b) that the New Representative and each holder of Obligations in respect of the Series of Priority Lien Debt for which the undersigned is acting as Priority Lien Representative are bound by the provisions of the Collateral Trust
Agreement, including the provisions relating to the ranking of Priority Liens and the order of application of proceeds from the enforcement of Priority Liens; and
(a) that all Subordinated Lien Obligations will be and are secured Equally and Ratably by all Subordinated Liens at any time granted by the Issuer or any Guarantor to secure any Obligations in respect of such Series of Subordinated Lien Debt, whether or not upon property otherwise constituting Collateral, and that all such Subordinated Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Subordinated Lien Obligations Equally and Ratably;
(b) that the New Representative and each holder of Obligations in respect of the Series of Subordinated Lien Debt for which the undersigned is acting as Subordinated Lien Representative are bound by the provisions of the Collateral Trust Agreement, including the provisions relating to the ranking of Subordinated Liens and the order of application of proceeds from the enforcement of Subordinated Liens; and
(c) to the terms of the Collateral Trust Agreement and the Intercreditor Agreement and the Collateral Trustee’s performance of, and directing the Collateral Trustee to perform, its obligations under the Collateral Trust Agreement and the Intercreditor Agreement.
The Collateral Trustee hereby acknowledges receipt of this Collateral Trust Joinder and agrees to act as Collateral Trustee for the New Representative and the holders of the Obligations represented thereby:
IN WITNESS WHEREOF, the parties hereto have caused this Collateral Trust Joinder to be executed by their respective officers or representatives as of ___________________, 20____.
