Exhibit 10.40
================================================================================
FIRST SUPPLEMENTAL
TRUST INDENTURE
BETWEEN
CASTLE BRANDS (USA) CORP.
AS ISSUER
AND
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION
AS INDENTURE TRUSTEE
DATED AS OF AUGUST 15 , 2005
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS, EXHIBITS AND GENERAL PROVISIONS
Section 1.1 Definitions Generally...................................... 2
ARTICLE TWO
AMENDMENTS TO ORIGINAL INDENTURE AND ORIGINAL NOTES
Section 2.1 Amendment and Restatement of the Indenture................. 2
Section 2.2 Amendment and Restatement of Original Notes................ 2
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.1 Severability............................................... 2
Section 3.2 Counterparts............................................... 3
-1
FIRST SUPPLEMENTAL TRUST INDENTURE
This FIRST SUPPLEMENTAL TRUST INDENTURE (the "First Supplemental
Indenture") is made and entered into as of August 15, 2005, by and between
CASTLE BRANDS (USA) CORP., a corporation duly organized and existing under the
laws of the State of Delaware (the "Issuer"), and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, a national banking association, authorized to accept and execute
trusts of the character herein set out, with a payment office in Dallas, Texas
(the "Trustee") and is joined in by MHW, LTD., a New York corporation serving as
the Collateral Agent under the Security Documents (as defined herein).
WITNESSETH
WHEREAS:
A. The Issuer and the Trustee, joined by the Collateral Agent, have
heretofore entered into a Trust Indenture dated as June 1, 2004 (the "Original
Indenture") authorizing the issuance of up to Five Million Dollars ($5,000,000)
of the Issuer's 8% Senior Secured Notes, Series 2004, due May 31, 2007 (the
"Original Notes").
B. The Issuer has heretofore issued Four Million Six Hundred Sixty Thousand
Dollars ($4,660,000) of Original Notes.
C. The Issuer desires to amend the terms of the Original Notes (i) to
extend the maturity date from May 31, 2007 to May 31, 2009, and (ii) to increase
the interest rate payable on the Original Notes from eight percent (8%) to nine
percent (9%) (hereinafter referred to as the "Amended Notes").
D. The Issuer desires to amend the terms of the Original Indenture (i) to
authorize a maximum of Ten Million Dollars ($10,000,000) of Amended Notes to be
issued thereunder (inclusive of the $4,660,000 of outstanding Original Notes
being amended hereby) and (ii) to amend and restate the Original Indenture to
conform to the terms of the Amended Notes.
E. The Issuer and the Trustee, joined by the Collateral Agent, are
permitted by Section 11.2 of the Original Indenture to make such amendments to
the Original Notes and Original Indenture with the consent of two-thirds or more
of the beneficial owners of the Original Notes, referred to in the Original
Indenture as a "Supermajority of Owners."
F. The Issuer and the Trustee, joined in by the Collateral Agent and having
obtained the consent of a Supermajority of Owners, now wish to enter into this
First Supplemental Indenture to amend and restate the Original Indenture and the
Original Notes.
NOW THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
-1-
ARTICLE ONE
DEFINITIONS, EXHIBITS AND GENERAL PROVISIONS
Section 1.1 Definitions Generally.
All terms capitalized but not otherwise defined in this First Supplemental
Indenture shall have the meanings assigned to such terms in the First Amended
and Restated Indenture. In this First Supplemental Indenture, the following
terms have the following meanings unless the context hereof clearly requires
otherwise:
"AMENDED NOTES" mean as defined in Recital C.
"FIRST AMENDED AND RESTATED INDENTURE" means the First Amended and Restated
Indenture of Trust originally dated as of June 1, 2004, and as amended and
restated as of August 15, 2005, in substantially the form attached hereto as
Exhibit A, as executed by the Trustee and the Issuer with the joinder of the
Collateral Agent.
"FIRST SUPPLEMENTAL INDENTURE" means as defined in the introductory
paragraph hereto.
"ORIGINAL INDENTURE" means as defined in Recital A.
"ORIGINAL NOTES" mean as defined in Recital A.
ARTICLE TWO
AMENDMENTS TO ORIGINAL INDENTURE AND ORIGINAL NOTES
Section 2.1 Amendment and Restatement of the Indenture.
The Original Indenture is hereby amended and restated as set forth in the
First Amended and Restated Indenture attached hereto as EXHIBIT A, and all
references to "Indenture" contained in the Amended Notes, any subsequent
supplemental indenture, in the Parent Guaranty, in the Security Documents or in
any related documents, shall for all purposes refer to the First Amended and
Restated Indenture.
Section 2.2 Amendment and Restatement of Original Notes.
The Original Notes are hereby amended and restated as set forth on Exhibit
"A" to the First Amended and Restated Indenture.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.1 Severability.
If any provision of this First Supplemental Indenture shall be held or
deemed to be or shall, in fact, be inoperative or unenforceable as applied in
any particular case in any jurisdiction or jurisdictions or in all jurisdictions
or in all cases because it conflicts with any other provisions of any
constitution or statute or rule of public policy, or for any other reason, such
circumstances shall not
-2-
have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provisions herein contained invalid, inoperative of unenforceable to any extent
whatever.
Section 3.2 Counterparts.
This First Supplemental Indenture may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed and attested by their respective officers
thereunto duly authorized, all as of the day and year first written above.
Attest: CASTLE BRANDS (USA) CORP.
/s/ Xxxxxx Xxxx By: /s/ Xxxx X. Xxxxxxx
------------------------------------- ------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman & CEO
Attest: JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Trustee
/s/ Xxxx Xxxx Xxxxxx By: /s/ Xxxxx Xxxxx
------------------------------------- ------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Joined in by MHW, LTD.,
as Collateral Agent:
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
-4-
