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EXHIBIT 4.1
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GANTOS, INC.
AND
STATE STREET BANK AND TRUST COMPANY
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SUPPLEMENTAL INDENTURE NO. 3 TO INDENTURE
DATED AS OF APRIL 1, 1995
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SERIES A PROMISSORY NOTES
SERIES B PROMISSORY NOTES
DATED AS OF JUNE 23, 1999
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SUPPLEMENTAL INDENTURE NO. 3
Supplemental Indenture No. 3 (the "Supplemental Indenture"), dated as
of June 23, 1999, between Gantos, Inc., a Michigan corporation (the "Company"),
and State Street Bank and Trust Company, a Massachusetts trust company and
successor to Fleet Bank N.A. (successor to Shawmut Bank Connecticut, National
Association, a national banking association) (the "Trustee").
RECITALS
A. The Company and the Trustee are the parties to the Indenture, dated
as of April 1, 1995 between Company and Trustee, as successor trustee, as
amended by Supplemental Indenture No. 1, dated as of December 15, 1997
("Supplemental Indenture No. 1") and Restated Supplemental Indenture No. 2,
dated as of June 30, 1998 ("Supplemental Indenture No. 2" and, together with
Supplemental Indenture No. 1 and the initial Indenture, the "Indenture").
B. The Company has entered into letter agreements dated April 30, 1999
with Xxxxxxx Associates, L.P., Gordian Group, L.P., Cardinal Capital Management,
LLC (on behalf of Cardinal Recovery Partners and Argyle, L.T.D.) and NBD Bank
f/k/a NBD Bank, N.A., who collectively own approximately 97% of the outstanding
Notes (collectively, the "Restructuring Holders"), pursuant to which each
Restructuring Holder agreed to restructure its payments (the "Restructuring").
C. The Trustee has received signed letters from substantially all of
the Holders of the outstanding Notes consenting to the Restructuring by the
Restructuring Holders.
D. This Supplemental Indenture memorializes the terms of the
Restructuring with respect to the Restructuring Holders.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in
consideration of the premises, it is mutually agreed and consented, for the
equal and proportionate benefit of the respective Holders from time to time of
the Notes as follows:
1. Capitalized Terms. Capitalized terms used in this Supplemental
Indenture and not defined in this Supplemental Indenture have the meanings given
them in the Indenture.
2. Amendment of Section 2.01(c). Effective on the Effective Date of
this Supplemental Indenture, the second paragraph of Section 2.01(c) of the
Indenture is amended to read as follows:
The Notes shall mature on April 1, 2001, unless earlier called
for redemption, provided that the Notes held by the Restructuring
Holders shall mature on July 1, 2001, unless earlier called for
redemption.
To the extent any of the Notes held by the Restructuring Holders are transferred
to a third party, the new Notes shall reflect the new maturity date.
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3. Amendment of Section 3.01(b). Effective on the Effective Date of
this Supplemental Indenture, Section 3.01(b) of the Indenture is amended to read
as follows, with the effect that the Holders of Notes, other than the
Restructuring Holders and their successors and assigns, shall be entitled to the
same amounts on the same dates as they were entitled prior to the execution of
this Supplemental Indenture:
(b) (1) With respect to Notes held by Holders other than the
Restructuring Holders, the Notes shall be subject to mandatory sinking
fund redemption on the following redemption dates at the Redemption
Price and in an amount for each Series of Notes equal to its Pro-Rata
share of the principal amount set forth below:
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DATE AMOUNT
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July 1, 1997 - April 1, 1999 Previously Paid
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July 1, 1999 $774,725.87
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October 1, 1999 774,725.87
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January 1, 2000 774,725.87
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April 1, 2000 774,725.87
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July 1, 2000 774,725.87
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October 1, 2000 774,725.87
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January 1, 2001 774,725.87
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April 1, 2001 774,725.87
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(2) With respect to the Notes held by the
Restructuring Holders, the Notes shall be subject to mandatory sinking
fund redemption on the following redemption dates at the Redemption
Price and in an amount for each Note held by a Restructuring Holder
equal to its pro-rata share (defined for this purpose only as the
amount determined by multiplying the applicable amount set forth below
by a fraction, the numerator of which is the aggregate Outstanding
Notes held by that Restructuring Holder and the denominator of which is
the aggregate of the Outstanding Notes held by all Restructuring
Holders) of the principal amount set forth below:
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DATE AMOUNT
---- ------
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July 1, 1997 - April 1, 1999* Previously Paid
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July 1, 1999 $223,874.00
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October 1, 1999 223,874.00
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January 1, 2000 671,621.00
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April 1, 2000 671,621.00
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July 1, 2000 335,811.00
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October 1, 2000 335,811.00
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January 1, 2001 746,246.00
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April 1, 2001 671,621.00
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July 1, 2001 444,577.00
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*Except for original July 1, 1998 payment, a portion of which was deferred to
June 1, 1999 and which deferred portion is being incorporated into this payment
table.
4. Representations and Warranties. The Company hereby represents and
warrants (which representations and warranties shall survive the execution and
delivery of this Supplemental Indenture) as of the date hereof that:
(a) All representations and warranties contained in the
Indenture are true and correct in all material respects as of the date
of this Supplemental Indenture with the same force and effect as if
made on such date (except to the extent that any such representation or
warranty relates expressly to an earlier date).
(b) The Company has the corporate power and authority to
execute, deliver and carry out the terms and provisions of this
Supplemental Indenture and has taken all necessary corporate action to
authorize the execution, delivery and performance of this Supplemental
Indenture.
(c) This Supplemental Indenture has been duly executed and
delivered and constitutes the legal, valid and binding obligation of
the Company, and is enforceable in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general equity
principles.
(d) No registration or filing with, consent or approval of, or
other action by, any Federal, State or other governmental agency,
authority or regulatory body is or will be required on behalf of the
Company in connection with the execution, delivery, performance,
validity or enforcement of this Supplemental Indenture, other than any
such registration or filing which has been made or any such consent,
approval or other action which has been
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obtained and remains in full force and effect and other than the filing
of Form 10-Q or a Form 10-K with the Securities and Exchange
Commission.
(e) The execution, delivery and performance of this
Supplemental Indenture by the Company will not violate any provision of
the certificate or articles of incorporation or bylaws of the Company
(before or immediately after the Effective Date) or any of its
subsidiaries or any law, statute, rule or regulation, or any order or
decree of any court or governmental instrumentality applicable to the
Company or any of its subsidiaries, or, after the Effective Date,
violate, result in the breach of or constitute a default under any
indenture, agreement or other instrument to which the Company or any of
its subsidiaries or any of their respective properties or assets are or
may be bound.
(f) After giving effect to this Supplemental Indenture after
the Effective Date, the Company is in compliance with all of the
various covenants and agreements applicable to it set forth in the
Indenture.
(g) After giving effect to this Supplemental Indenture after
the Effective Date, no event has occurred and is continuing which
constitutes or would constitute, with the giving of notice or the lapse
of time or both, an Event of Default under the Indenture.
(h) The Company has no defense to or setoff, counterclaim or
claim against payment of the Notes or enforcement of the Indenture or
the Notes based upon a fact or circumstance existing or occurring on or
prior to the date of this Supplemental Indenture.
5. Conditions Precedent. Notwithstanding any term or provision of this
Supplemental Indenture to the contrary, no amendment set forth in this
Supplemental Indenture shall become effective until the Trustee shall have
determined that each of the following conditions precedent shall have been
satisfied, such determination to be conclusively evidenced by the Trustee's
execution and delivery of this Supplemental Indenture:
(a) The Company shall have delivered to the Trustee a copy of
the resolution of the Company, certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of
such certification, that this Supplemental Indenture has been
authorized by the Company. The Company shall have also delivered to the
Trustee a certification of an officer of the Company that all of the
conditions precedent to the effectiveness of this Supplemental
Indenture shall have been met as of the date of such certificate and
that the representations and warranties set forth in Section 4 of this
Supplemental Indenture are true as of the Effective Date.
(b) The Trustee shall have received an Opinion of Counsel
stating that the execution of this Supplemental Indenture is authorized
or permitted by the Indenture.
(c) Counterparts of this Supplemental Indenture shall have
been duly executed and delivered on behalf of the Company and the
Trustee.
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(d) The Company shall have received the consent of the
Revolving Credit Lender for the Restructuring.
6. Effective Date. The Effective Date of this Supplemental Indenture
shall be June 1, 1999.
7. Additional Event of Default. It shall constitute an Event of Default
under the Indenture if any of the representations and warranties of the Company
under this Supplemental Indenture shall prove to have been incorrect in any
material respect when made.
8. No Other Change. Except as modified by this Supplemental Indenture,
the Indenture shall continue in full force according to its terms and is hereby
ratified.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
GANTOS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Its: President/CEO
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Attest:
/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: CFO
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STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
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Its: Vice President
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STATE OF CONNECTICUT )
) ss.:
COUNTY OF FAIRFIELD )
Before me, a Notary Public, in and for said State and County,
duly commissioned and qualified, personally appeared XXXXXX XXXXX, with whom I
am personally acquainted and who, upon oath, acknowledged him/herself to be the
PRESIDENT of GANTOS, INC., and that as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by him/herself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand on this 23rd
day of JUNE ____, 1999.
/s/ Xxxx Xxx Xxxxx
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Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
) ss.:
COUNTY OF HARTFORD )
Before me, a Notary Public, in and for said State and County,
duly commissioned and qualified, personally appeared XXXXX X. XXXXXX, with whom
I am personally acquainted and who, upon oath, acknowledged him/herself to be
the VICE PRESIDENT of STATE STREET BANK AND TRUST CO., and that such officer,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing the name of the corporation by him/herself as such
officer.
IN WITNESS WHEREOF, I have hereunto set my hand on this _____ day of
_____, 199 .
/s/ Xxxx X. Xxxxxx
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Notary Public
My Commission Expires:
XXXX X. XXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES MAY 31, 2002
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