Exhibit 4.1
-----------
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of August 17, 2005 among ACCO Brands
Corporation, a Delaware corporation ("ACCO"), the Guarantors signatory hereto
(the "Guarantors") and Wachovia Bank, National Association, as trustee under
the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, ACCO Finance I, Inc. ("ACCO Finance") and the Trustee
heretofore executed and delivered an Indenture, dated as of August 5, 2005 (as
heretofore amended and supplemented, the "Indenture"), providing for the
issuance of the 7?% Senior Subordinated Notes due 2015 of ACCO Finance (the
"Securities") (capitalized terms used herein but not otherwise defined have the
meanings ascribed thereto in the Indenture);
WHEREAS, Article 5 of the Indenture provides that upon the execution
and delivery by ACCO to the Trustee of this Supplemental Indenture, ACCO shall
be the successor issuer of the Notes under the Indenture and the Securities and
shall succeed to, and be substituted for, and may exercise every right and
power of, ACCO Finance under the Indenture and the Securities and ACCO Finance
shall be discharged from all obligations and covenants under the Indenture and
the Securities;
WHEREAS, Section 9.01 of the Indenture provides that ACCO Finance and
the Trustee may amend the Indenture and the Securities without notice to or
consent of any Holders of the Securities by entering into a supplemental
indenture in order to provide for the assumption by ACCO of its obligations
under the Indenture; and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of each of ACCO and the Guarantors.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, ACCO,
the Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders as follows:
ARTICLE I
Assumption by Successor Company
-------------------------------
Section 1.1. Assumption of the Securities. ACCO hereby expressly
assumes and agrees promptly to pay, perform and discharge when due each and
every debt (including accrued original issue discount on such debts, if any),
obligation, covenant and agreement incurred, made or to be paid, performed or
discharged by ACCO Finance under the Indenture and the Securities.
ACCO hereby agrees to be bound by all the terms, provisions and
conditions of the Indenture and the Securities and that is shall be the
successor issuer of the Notes and shall succeed to, and be substituted for, and
may exercise every right and power of, ACCO Finance, as the predecessor issuer
of the Notes, under the Indenture and the Securities, all to the extent
provided in and in accordance with the terms and conditions of, the Indenture.
Section 1.2 Discharge of ACCO Finance. ACCO Finance is hereby
expressly discharged from all debts, obligations, covenants and agreements
under or relating to the Indenture and the Securities.
Section 1.3 Trustee's Acceptance. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the indenture.
ARTICLE II
Additional Guarantors
---------------------
Section 2.1. Agreement to Guarantee. The Guarantors hereby agree,
jointly and severally, to unconditionally guarantee the Company's obligations
under the Notes on the terms and subject to the conditions set forth in
Articles 11 and 12 of the Indenture and to be bound by all other applicable
provisions of the Indenture and the Notes and to perform all of the obligations
and agreements of a Guarantor under the Indenture.
ARTICLE III
Miscellaneous
-------------
Section 3.1. Effect of Supplemental Indenture. Upon the execution and
delivery of this Supplemental Indenture by ACCO, ACCO Finance, the Guarantors
and the Trustee, the Indenture shall be supplemented in accordance herewith,
and this Supplemental Indenture for all purposes, and every Holder of
Securities heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby.
Section 3.2. Ratification of Indenture; Supplemental Indentures Part
of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of
Securities heretofore or hereafter authenticated and delivered shall be bound
hereby.
Section 3.3. Indenture and Supplemental Indenture Construed Together.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 3.4. Confirmation and Preservation of Indenture. The Indenture
as supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
Section 3.5. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision
of the TIA that is required or deemed under the TIA to be part of and govern
any provision of the Supplemental Indenture, such provision of the TIA shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the TIA that may be so modified or excluded, the provision of
the TIA shall be deemed to apply to the Indenture as so modified or to be
excluded by this Supplemental Indenture, as the case may be.
Section 3.6 Notices. All notices or other communications to the New
Guarantor shall be given as provided in Section 13.02 of the Indenture.
Section 3.7. Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 3.8. Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture or the Securities, express of implied, shall give to any
Person, other than the parties hereto and thereto and their successors
hereunder and thereunder and the Holders of the Securities, any benefit of any
legal or equitable right, remedy or claim under the Indenture, this
Supplemental Indenture or the Securities.
Section 3.9 Successors. All agreements of ACCO in this Supplemental
Indenture shall bind its successors. All agreements of the Trustee in this
Supplemental Indenture shall bind its successors.
Section 3.10 Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture and the Securities relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not the elsewhere herein so provided.
Section 3.11 Governing Law. THIS SUPPLEMENTAL SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE
PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL
INDENTURE. EACH OF ACCO AND THE GUARANTORS AGREES THAT ANY SUIT, ACTION OR
PROCEEDING AGAINST ACCO OR A GUARANTORS BROUGHT BY THE TRUSTEE OR HOLDERS
ARISING OUT OF OR BASED UPON THIS SUPPLEMENTAL INDENTURE MAY BE INSTITUTED IN
ANY STATE OR U.S. FEDERAL COURT IN THE CITY OF NEW YORK AND COUNTY OF NEW YORK,
AND WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH PROCEEDING, AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF SUCH COURTS IN ANY SUIT, ACTION OR PROCEEDING.
Section 3.12. Multiple Originals. The parties may sign any number of
copies of this Supplemental Indenture, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 3.13. Headings. The Article and Section headings herein are
inserted for convenience or reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms of provisions
hereof.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed as of the date first written above.
ACCO BRANDS CORPORATION
By: /s/ David D. Campbell
----------------------------------
Name: David D. Campbell
Title: shief Executive Officer
ACCO BRANDS USA LLC
BOONE INTERNATIONAL, INC.
DAY-TIMERS, INC.
POLYBLEND CORPORATION
SWINGLINE INC.
ACCO BRANDS INTERNATIONAL, INC.
ACCO EUROPE FINANCE HOLDINGS, LLC
ACCO EUROPE INTERNATIONAL HOLDINGS, LLC
ACCO INTERNATIONAL HOLDINGS, INC.
GENERAL BINDING CORPORATION
GBC INTERNATIONAL, INC.
VELOBIND, INCORPORATED
as Guarantors
By: /s/ Steven Rubin
----------------------------------
Name: Steven Rubin
Title: Secretary
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Paul Anatrella
----------------------------------
Name: Paul Anatrella
Title: Vice President & Manager