EXHIBIT 4.2
EXECUTION COPY
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THE HOCKEY COMPANY,
as Issuer and Parent Guarantor
SPORT MASKA INC.,
as Subsidiary Issuer and Guarantor
THE BANK OF NEW YORK,
as Trustee,
AND
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Guarantors
INDENTURE
Dated as of April 3, 2002
Units consisting of
11 1/4% Senior Secured Notes of The Hockey Company due 2009
11 1/4% Senior Secured Notes of Sport Maska Inc. due 2009
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) ........................................................ 7.10
(a)(2) ........................................................ 7.10
(a)(3) ........................................................ 7.13; 7.16
(a)(4) ........................................................ N.A.
(a)(5) ........................................................ 7.10
(b) ............................................................. 7.08; 7.10; 11.02
(c) ............................................................. N.A.
311(a) ............................................................. 7.11
(b) ............................................................. 7.11
(c) ............................................................. 7.06
312(a) ............................................................. 2.05
(b) ............................................................. 11.03
(c) ............................................................. 11.03
313(a) ............................................................. 7.06
(b)(1)........................................................... N.A.
(b)(2)........................................................... 7.06
(c) ............................................................. 7.06; 11.02
(d) ............................................................. 7.06
314(a) ............................................................. 4.06; 4.07; 4.08; 11.02
(b) ............................................................. 12.03
(c)(1)........................................................... 11.04
(c)(2)........................................................... 11.04
(c)(3)........................................................... N.A.
(d) ............................................................. 12.04
(e) ............................................................. 11.05
315(a) ............................................................. 7.01(b)
(b) ............................................................. 7.05; 11.02
(c) ............................................................. 7.01(a)
(d) ............................................................. 7.01(c)
(e) ............................................................. 6.11
316(a)(last sentence).................................................. 2.09
(a)(1)(A)........................................................ 6.05
(a)(1)(B)........................................................ 6.04
(a)(2)........................................................... N.A.
(b) ............................................................. 6.07
(c) ............................................................. 9.04
317(a)(1) ............................................................. 6.08
(a)(2)........................................................... 6.09
(b) ............................................................. 2.04
318(a) ............................................................. 11.01
(c) ............................................................. 11.01
----------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the
Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...........................................................................1
SECTION 1.02. Incorporation by Reference of TIA....................................................18
SECTION 1.03. Rules of Construction................................................................19
ARTICLE TWO
THE NOTES AND UNITS
SECTION 2.01. Form and Dating......................................................................19
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.............................20
SECTION 2.03. Registrar and Paying Agent...........................................................21
SECTION 2.04. Paying Agent Assets Segregated.......................................................21
SECTION 2.05. Holder Lists.........................................................................22
SECTION 2.06. Transfer and Exchange................................................................22
SECTION 2.07. Replacement Notes and Units..........................................................23
SECTION 2.08. Outstanding Notes and Units..........................................................23
SECTION 2.09. Treasury Units; When Units are Disregarded...........................................24
SECTION 2.10. Temporary Notes or Units.............................................................24
SECTION 2.11. Cancellation.........................................................................24
SECTION 2.12. CUSIP Number.........................................................................24
SECTION 2.13. Deposit of Moneys....................................................................25
SECTION 2.14. Book-Entry Provisions for Global Units...............................................25
SECTION 2.15. Special Transfer Provisions..........................................................26
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...................................................................27
SECTION 3.02. Selection of Notes To Be Redeemed....................................................27
SECTION 3.03. Notice of Redemption.................................................................28
SECTION 3.04. Effect of Notice of Redemption.......................................................29
SECTION 3.05. Deposit of Redemption Price..........................................................29
SECTION 3.06. Notes Redeemed in Part...............................................................29
SECTION 3.07. Joint Decision.......................................................................29
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.....................................................................29
SECTION 4.02. Maintenance of Office or Agency......................................................30
SECTION 4.03. Corporate Existence..................................................................30
SECTION 4.04. Payment of Taxes and Other Claims....................................................30
SECTION 4.05. Maintenance of Properties and Insurance..............................................30
SECTION 4.06. Compliance Certificate; Notice of Default............................................31
TABLE OF CONTENTS
(CONT'D)
PAGE
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SECTION 4.07. Compliance with Laws.................................................................31
SECTION 4.08. Reports to Holders...................................................................31
SECTION 4.09. Waiver of Stay, Extension or Usury Laws..............................................32
SECTION 4.10. Limitation on Restricted Payments....................................................32
SECTION 4.11. Limitation on Transactions with Affiliates...........................................34
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness..................................34
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries........................................................................ 35
SECTION 4.14. Additional Guarantees................................................................35
SECTION 4.15. Limitation on Change of Control......................................................36
SECTION 4.16. Limitation on Asset Sales............................................................37
SECTION 4.17. Impairment of Security Interest......................................................40
SECTION 4.18. Limitation on Liens..................................................................40
SECTION 4.19. Conduct of Business..................................................................41
SECTION 4.20. Limitation on Issuances and Sales of Capital Stock of Subsidiaries...................41
SECTION 4.21. Real Estate Mortgages and Filings....................................................41
SECTION 4.22. Leasehold Mortgagee and Filings......................................................42
SECTION 4.23. Additional Amounts...................................................................42
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.............................................43
SECTION 5.02. Successor Corporation Substituted....................................................44
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default....................................................................45
SECTION 6.02. Acceleration.........................................................................46
SECTION 6.03. Other Remedies.......................................................................46
SECTION 6.04. Waiver of Past Defaults..............................................................47
SECTION 6.05. Control by Majority..................................................................47
SECTION 6.06. Limitation on Suits..................................................................47
SECTION 6.07. Rights of Holders To Receive Payment.................................................48
SECTION 6.08. Collection Suit by Trustee...........................................................48
SECTION 6.09. Trustee May File Proofs of Claim.....................................................48
SECTION 6.10. Priorities...........................................................................49
SECTION 6.11. Undertaking for Costs................................................................49
SECTION 6.12. Restoration of Rights and Remedies...................................................49
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee....................................................................49
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TABLE OF CONTENTS
(CONT'D)
PAGE
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SECTION 7.02. Rights of Trustee....................................................................50
SECTION 7.03. Individual Rights of Trustee.........................................................52
SECTION 7.04. Trustee's Disclaimer.................................................................52
SECTION 7.05. Notice of Default....................................................................52
SECTION 7.06. Reports by Trustee to Holders........................................................52
SECTION 7.07. Compensation and Indemnity...........................................................53
SECTION 7.08. Replacement of Trustee...............................................................53
SECTION 7.09. Successor Trustee by Merger, Etc.....................................................54
SECTION 7.10. Eligibility; Disqualification........................................................54
SECTION 7.11. Preferential Collection of Claims Against Issuers....................................55
SECTION 7.12. Trustee as Collateral Agent..........................................................55
SECTION 7.13. Co-trustees, co-Collateral Agent and Separate Trustees, Collateral Agent.............55
SECTION 7.14. Money Held in Trust..................................................................56
SECTION 7.15. Trustee's Application for Instructions from the Issuers..............................56
SECTION 7.16. Concerning the Trustee and the Collateral............................................57
SECTION 7.17. Limitation on Duty of Trustee in Respect of Collateral; Indemnification..............57
SECTION 7.18. Assignment of Rights, Not Assumption of Duties.......................................58
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.............................................58
SECTION 8.02. Satisfaction and Discharge...........................................................60
SECTION 8.03. Survival of Certain Obligations......................................................61
SECTION 8.04. Acknowledgment of Discharge by Trustee...............................................61
SECTION 8.05. Application of Trust Moneys..........................................................61
SECTION 8.06. Repayment to the Issuers; Unclaimed Money............................................61
SECTION 8.07. Reinstatement........................................................................62
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders...........................................................62
SECTION 9.02. With Consent of Holders..............................................................63
SECTION 9.03. Compliance with TIA..................................................................64
SECTION 9.04. Revocation and Effect of Consents....................................................64
SECTION 9.05. Notation on or Exchange of Notes.....................................................64
SECTION 9.06. Trustee To Sign Amendments, Etc......................................................65
ARTICLE TEN
GUARANTEE
SECTION 10.01. Parent Guarantee.....................................................................65
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TABLE OF CONTENTS
(CONT'D)
PAGE
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SECTION 10.02. Subsidiary Issuer Guarantee..........................................................66
SECTION 10.03. Subsidiary Guarantees................................................................66
SECTION 10.04. Release of a Guarantor...............................................................67
SECTION 10.05. Limitation of Guarantor's Liability..................................................68
SECTION 10.06. Guarantors May Consolidate, etc., on Certain Terms...................................68
SECTION 10.07. Contribution.........................................................................68
SECTION 10.08. Waiver of Subrogation................................................................69
SECTION 10.09. Evidence of Guarantee................................................................69
SECTION 10.10. Waiver of Stay, Extension or Usury Laws..............................................69
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.........................................................................69
SECTION 11.02. Notices..............................................................................70
SECTION 11.03. Communications by Holders with Other Holders.........................................70
SECTION 11.04. Certificate and Opinion as to Conditions Precedent...................................70
SECTION 11.05. Statements Required in Certificate or Opinion........................................71
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar............................................71
SECTION 11.07. Legal Holidays.......................................................................71
SECTION 11.08. Governing Law; Service of Process....................................................71
SECTION 11.09. No Adverse Interpretation of Other Agreements........................................72
SECTION 11.10. No Recourse Against Others...........................................................72
SECTION 11.11. Successors...........................................................................72
SECTION 11.12. Duplicate Originals..................................................................72
SECTION 11.13. Severability.........................................................................72
SECTION 11.14. Waiver of Jury Trial.................................................................72
SECTION 11.15. Conversion of Currency...............................................................73
SECTION 11.16. Consent to Jurisdiction..............................................................73
SECTION 11.17. Interest Calculation on the Subsidiary Issuer Notes..................................74
ARTICLE TWELVE
SECURITY
SECTION 12.01. Grant of Security Interest...........................................................74
SECTION 12.02. Intercreditor Agreement..............................................................75
SECTION 12.03. Recording and Opinions...............................................................75
SECTION 12.04. Release of Collateral................................................................76
SECTION 12.05. Specified Releases of Collateral.....................................................77
SECTION 12.06. Form and Sufficiency of Release......................................................78
SECTION 12.07. Purchaser Protected..................................................................78
SECTION 12.08. Authorization of Actions To Be Taken by the Trustee Under the
Collateral Agreements................................................................78
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TABLE OF CONTENTS
(CONT'D)
PAGE
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SECTION 12.09. Authorization of Receipt of Funds by the Trustee Under the
Collateral Agreements................................................................79
Exhibit A - Form of Initial Unit................................................................A-1
Exhibit B - Form of Exchange Unit...............................................................B-1
Exhibit C - Form of Legend for Global Units.....................................................C-1
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors.........................................D-1
Exhibit E - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S................................................E-1
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
part of the
Indenture.
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INDENTURE, dated as of April 3, 2002, by and among The
Hockey Company,
a Delaware corporation (the "COMPANY"), Sport Maska Inc., a New Brunswick
corporation ("SUBSIDIARY ISSUER" and, together with the Company, the "ISSUERS"),
the Guarantors (as herein defined), and The Bank of
New York, a
New York banking
corporation, as Trustee (the "TRUSTEE").
The Issuers have duly authorized the creation of an issue of Series A
11 1/4% Senior Secured Note Units due 2009 (the "INITIAL UNITS"), each Unit
consisting of $500 principal amount of 11 1/4% Senior Secured Notes of the
Company (the "PARENT NOTES") and $500 principal amount of 11 1/4% Senior Secured
Notes of the Subsidiary Issuer (the "SUBSIDIARY ISSUER NOTES" and, together with
the Parent Notes, the "NOTES") and Series B 11 1/4% Senior Secured Note Units
due 2009 (the "EXCHANGE UNITS" and, together with the Initial Units, the
"UNITS"), each Unit consisting of $500 principal amount of 11 1/4% Senior
Secured Notes of the Company and $500 principal amount of 11 1/4% Senior Secured
Notes of the Subsidiary Issuer. The Units will be secured by a lien and security
interest in the Collateral (as defined) pursuant to the terms of the Collateral
Agreements (as defined). The Subsidiary Issuer Notes will be guaranteed, on an
unconditional senior secured basis, by the Company and the Parent Notes will be
guaranteed, on an unconditional senior secured basis, by the Subsidiary Issuer.
All Restricted Subsidiaries (as defined) of the Company (other than KHF Sports
Oy and KHF Finland Oy) will, jointly and severally, fully and unconditionally
guarantee, on a senior secured basis, to each holder of the Notes, the Trustee
and the Collateral Agents, the payment and performance of the Issuers'
obligations under the
Indenture and the Notes. All things necessary to make the
Units and Notes, when duly issued and executed by the Issuers, and authenticated
and delivered hereunder, the valid obligations of the Issuers and the Subsidiary
Guarantors, and to make this
Indenture a valid and binding agreement of the
Issuers and the Subsidiary Guarantors, have been done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACCELERATION NOTICE" has the meaning provided in SECTION 6.02(a).
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with or into the Company or
any of its Subsidiaries or assumed in connection with the acquisition of assets
from such Person and in each case not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, and which Indebtedness is without
recourse to the Company or any of its Subsidiaries or to any of their respective
properties or assets other than the Person or the assets to which such
Indebtedness related prior to the time such Person becomes a Restricted
Subsidiary of the Company or the time of such acquisition, merger or
consolidation.
"ADDITIONAL AMOUNTS" has the meaning set forth in SECTION 4.23.
"ADDITIONAL UNITS" has the meaning provided in SECTION 2.02 and means
any Units that are not Exchange Units issued after the Issue Date from time to
time in accordance with the terms of this
Indenture including, without
limitation, the provisions of SECTIONS 2.02 and 4.12.
"AFFILIATE" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"AFFILIATE TRANSACTION" has the meaning provided in SECTION 4.11.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AGENT MEMBERS" has the meaning provided in SECTION 2.14 and means,
with respect to the Depository, Euroclear or Clearstream, a Person who has an
account with the Depository, Euroclear or Clearstream, respectively (and, with
respect to the Depository, shall include Euroclear and Clearstream).
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository, Euroclear and Clearstream that apply to such
transfer or exchange.
"ASSET ACQUISITION" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprises any division or line of business
of such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than the Company or a Wholly Owned Subsidiary of the Company
that is a Guarantor (PROVIDED that in the event the Company or its Restricted
Subsidiaries make any such transfer to Jofa Holding AB or any Subsidiary of Jofa
Holding AB, such transferee shall grant to the Collateral Agent a security
interest in such assets of: (1) any Capital Stock of any Restricted Subsidiary
of the Company; or (2) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; PROVIDED, HOWEVER, that asset sales or other dispositions shall not
include: (a) a transaction or series of related transactions for which the
Company or its Restricted Subsidiaries receive aggregate consideration of less
than $750,000; and (b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
under SECTION 5.01; and (c) any Restricted Payment permitted by SECTION 4.10 or
that constitutes a Permitted Investment.
"AUTHENTICATING AGENT" has the meaning provided in SECTION 2.02.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
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"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY" means, with respect to any specified place of payment,
a day that is not a Legal Holiday in that place of payment.
"CALCULATION PERIOD" shall have the meaning provided in SECTION 11.17.
"CANADIAN SECURITY AGREEMENTS" means the general security agreements
and securities pledge agreements, dated as of the April 3, 2002, made by the
Guarantors having assets in Canada in favor of BNY Trust Company of Canada, as
collateral agent, and the Deeds of Hypothec, as same amended or supplemented
from time to time in accordance with their respective terms.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and (ii) with
respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Group ("S&P") or Xxxxx'x
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"CHANGE OF CONTROL" means the occurrence of one or more of the
following events: (i) any Person or "Group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) (other than the Permitted Holders) is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) directly or indirectly, of 50% or more of the total outstanding
Voting Stock of the Company; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election to such
Board of Directors, or whose nomination for election by the stockholders of the
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Company, was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of such Board of Directors then in office; or
(iii) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets of the
Company and its Subsidiaries on a consolidated basis to any Person or Group,
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of the
Indenture) that are not controlled, directly or
indirectly, by the Permitted Holders; or (iv) the approval by the holders of
Capital Stock of the Company of any plan or proposal for the liquidation or
dissolution of the Company (whether or not otherwise in compliance with the
provisions of this Indenture).
"CHANGE OF CONTROL DATE" has the meaning provided in SECTION 4.15.
"CHANGE OF CONTROL OFFER" has the meaning provided in SECTION 4.15.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning provided in SECTION
4.15.
"CHANGE OF CONTROL TRIGGERING EVENT" has the meaning provided in
SECTION 4.15.
"CLEARSTREAM" means Clearstream Banking, societe anonyme.
"COLLATERAL" means Collateral as such term is defined in the Security
Agreements and all property mortgaged under the Mortgages and any other
property, whether now owned or hereafter acquired, upon which a Lien securing
the Obligations is granted or purported to be granted under any Collateral
Agreements.
"COLLATERAL AGENT" means collectively the Collateral Agent or
Collateral Agents and the Quebec Collateral Agent specified in the Collateral
Agreements.
"COLLATERAL AGREEMENTS" means, collectively, this Indenture, the
collateral agency agreements in connection therewith, the Security Agreements
and each Mortgage, in each case, as the same may be in force from time to time.
"COMMON STOCK" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of, such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"COMPANY" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"CONSOLIDATED EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby: (A) all income and
capital taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions of assets outside the ordinary course of business), (B)
Consolidated Interest Expense, amortization expense and depreciation expense,
(C) Consolidated Non-cash Charges LESS any non-cash items increasing
Consolidated Net Income for such period, all as determined on a consolidated
basis for such Person and its Restricted Subsidiaries in accordance with GAAP
and (D) management fees permitted to be paid
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pursuant to the Indenture, and (E) any non-recurring restructuring and
extraordinary charges (including executive termination costs).
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction or event giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio for which financial statements are available (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for the
period of such calculation to: (i) the incurrence or repayment of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period; and (ii) any asset sales or other dispositions or
Asset Acquisitions (including, without limitation, any Asset Acquisition giving
rise to the need to make such calculation as a result of such Person or one of
its Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of any such Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness during the Four Quarter Period
or at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date), as if such asset sale or other disposition or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness and also including any Consolidated
EBITDA associated with such Asset Acquisition) occurred on the first day of the
Four Quarter Period, and including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange Act;
provided that the Consolidated EBITDA of any Person acquired shall be included
only to the extent includible pursuant to the definition of "Consolidated Net
Income." If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes
of determining the denominator (but not the numerator) of this "Consolidated
Fixed Charge Coverage Ratio": (i) interest on outstanding Indebtedness
determined on a fluctuating basis as of the Transaction Date (including
Indebtedness actually incurred on the Transaction Date) and which will continue
to be so determined thereafter shall be deemed to have accrued at a fixed rate
per annum equal to the average rate of interest on such Indebtedness during the
Four Quarter Period ending on or prior to the Transaction Date; and (ii)
notwithstanding clause (i) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating
to Interest Swap Obligations, shall be deemed to accrue at the rate per annum
resulting after giving effect to the operation of such agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
(including amortization or write-off of deferred financing costs of such Person
and its consolidated Restricted Subsidiaries during such period and any premium
or penalty paid in connection with redeeming or retiring Indebtedness of such
Person and its consolidated Restricted Subsidiaries prior to the stated maturity
thereof pursuant to the agreements governing such Indebtedness); plus (ii) the
product of (x) the amount of all dividend payments on any series of Preferred
Stock of such Person (other than dividends paid in Qualified Capital Stock)
paid,
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accrued or scheduled to be paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current effective consolidated federal, state and local tax rate
of such Person, expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the aggregate of the interest expense of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, as determined
in accordance with GAAP, and including, without duplication, (a) all
amortization of original issue discount; (b) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries during such period; (c)
net cash costs under all Interest Swap Obligations (including amortization of
fees); (d) all capitalized interest; and (e) the interest portion of any
deferred payment obligations for such period.
"CONSOLIDATED NET INCOME" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; PROVIDED that there shall be excluded therefrom: (i) after-tax gains
and losses from Asset Sales or abandonments or reserves relating thereto; (ii)
after-tax items classified as extraordinary or nonrecurring gains; (iii) the net
income of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Restricted Subsidiary of the referent Person or
is merged or consolidated with the referent Person or any Restricted Subsidiary
of the referent Person; (iv) the net income (but not loss) of any Restricted
Subsidiary of the referent Person to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is restricted by a contract (other than, solely for purposes of calculating the
Consolidated Fixed Charge Coverage Ratio, restrictions under the Credit
Agreement as in effect on the Issue Date), operation of law or otherwise; (v)
the net income of any Person, other than a Restricted Subsidiary of the referent
Person, except to the extent of cash dividends or distributions paid to the
referent Person or to a Wholly Owned Restricted Subsidiary of the referent
Person by such Person; (vi) any restoration to income of any material
contingency reserve, except to the extent that provision for such reserve was
made out of Consolidated Net Income accrued at any time following the Issue
Date; (vii) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or not
such operations were classified as discontinued); (viii) all gains and losses
realized on or because of the purchase or other acquisition by such Person or
any of its Restricted Subsidiaries of any securities of such Person or any of
its Restricted Subsidiaries; and (ix) in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.
To the extent net income of any Person (the "EXCLUDED PERSON") is
excluded from Consolidated Net Income any other Person (the "REFERENT PERSON"),
then Interest Expense of the Excluded Person shall be excluded from Consolidated
Fixed Charges of the Referent Person up to the amount of net income so excluded.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which requires an
accrual of or a reserve for cash charges for any future period).
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"CREDIT AGREEMENT" means (i) the Credit Agreement dated as of November
19, 1998, between Maska U.S., Inc., the Company, certain other subsidiaries of
the Company, the lenders party thereto in their capacities as lenders thereunder
and General Electric Capital Corporation, as agent, together with the related
documents thereto (including, without limitation, any guarantee agreements,
security documents and cash management agreements) and (ii) the Credit Agreement
dated as of November 19, 1998, between Sport Maska Inc., the Company, certain
other subsidiaries of the Company, the lenders party thereto in their capacities
as lenders thereunder and General Electric Capital Canada Inc., as agent,
together with the related documents thereto (including, without limitation, any
guarantee agreements, security documents and cash management agreements), in
each case as such agreements and documents may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (PROVIDED that such increase in borrowings is
permitted by SECTION 4.12 or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"CREDIT FACILITIES" means the Credit Agreement and the European Credit
Agreement.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEEDS OF HYPOTHEC" means the deeds of hypothec entered into between
each of the Guarantors having assets in the Province of Quebec and the Quebec
Collateral Agent.
"DEFAULT" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"DEPOSITORY" means The Depository Trust Company, its nominees and
successors ("DTC").
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the sole option
of the holder thereof (except, in each case, upon the occurrence of a Change of
Control) on or prior to the final maturity date of the Notes for cash.
"EQUITY OFFERING" means an underwritten public offering of Qualified
Capital Stock of the Company pursuant to a registration statement filed with the
SEC in accordance with the Securities Act resulting in gross proceeds of at
least $10.0 million to the Company.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
"EUROPEAN CREDIT AGREEMENT" means (i) the Credit Agreement dated as of
July 10, 2001, between KHF Finland Oy and Nordea Bank in Finland, together with
the related documents thereto (including, without limitation, any guarantee
agreements and security documents) and (ii) the Credit
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Agreement dated as of March 18, 1999, between Jofa AB and Nordea Bank in Sweden
and the Credit Agreement dated May 22, 2000, between Jofa AB and Nordea Bank in
Sweden, together with the related documents thereto (including, without
limitation, any guarantee agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted by SECTION
4.12) or adding Restricted Subsidiaries of the Company as additional borrowers
or guarantors thereunder) all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or
any other agent, lender or group of lenders.
"EUROPEAN SUBSIDIARIES" means KHF Sports Oy, KHF Finland Oy, Jofa
Holding AB and Jofa AB.
"EVENT OF DEFAULT" has the meaning provided in SECTION 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"EXCHANGE UNITS" has the meaning provided in the preamble to this
Indenture and means the Additional Units, if any, issued under SECTION 2.02
pursuant to a registration rights agreement substantially similar to the
Registration Rights Agreement.
"EXCHANGE OFFER" means an offer by the Issuers pursuant to a
registration statement that has become effective under the Securities Act to
each Holder of the Initial Units to exchange all the Initial Units held by such
Holder for the Exchange Units in an amount equal to the amount of Initial Units
held by such Holder, all in accordance with the terms and conditions of the
Registration Rights Agreement among the Company and the Initial Purchasers,
dated as of April 3, 2002.
"EXCLUDED HOLDER" has the meaning provided in SECTION 4.23.
"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. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"GAAP" means accounting principles generally accepted 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 may be accepted by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"GLOBAL UNIT" has the meaning provided in SECTION 2.01.
"GUARANTEE" means a guarantee of the Notes by a Guarantor.
"GUARANTOR" means each of the Company's Restricted Subsidiaries that
in the future executes a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms of the Indenture as a Guarantor;
PROVIDED that any Person constituting a Guarantor as described above shall
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cease to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.
"HOLDER" means the Person in whose name a Unit is registered on the
Registrar's books.
"INCUR" has the meaning provided in SECTION 4.12.
"INDEBTEDNESS" means with respect to any Person, without duplication:
(i) all Obligations of such Person for borrowed money; (ii) all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person; (iv) all Obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90 days or
more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and any deferred purchase price represented
by earn outs consistent with the Company's past practice); (v) all Obligations
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (vi) guarantees and other contingent
obligations in respect of Indebtedness referred to in clauses (i) through (v)
above and clause (viii) below; (vii) all Obligations of any other Person of the
type referred to in clauses (i) through (vi) which are secured by any lien on
any property or asset of such Person, the amount of such Obligation being deemed
to be the lesser of the fair market value of such property or asset or the
amount of the Obligation so secured; (viii) all Obligations under currency
agreements and interest rate swap agreements of such Person; and (ix) all
Disqualified Capital Stock issued by such Person with the amount of Indebtedness
represented by such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed purchase
price, but excluding accrued dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any dated on which
Indebtedness shall be required to be determined pursuant to the Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking firm (i)
which does not, and whose directors, officers and employees or Affiliates do
not, have a direct or indirect financial interest in the Company and (ii) which,
in the judgment of the Board of Directors of the Company, is otherwise
independent and qualified to perform the task for which it is to be engaged.
"INITIAL UNITS" has the meaning provided in the preamble to this
Indenture.
"INITIAL PURCHASER" means Xxxxxxxxx & Company, Inc.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
April 3, 2002 between General Electric Capital Corporation, General Electric
Capital Canada, Inc., The Bank of New
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York, The BNY Trust Company of Canada, Sport Maska Inc., The
Hockey Company,
Sports Holdings Corp., Maska U.S., Inc., SLM Trademark Acquisition Canada
Corporation, SLM Trademark Acquisition Corp. and WAP Holdings Inc.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Notes.
"INTEREST SWAP OBLIGATIONS" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"INVESTMENT" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or a capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of SECTION 4.10, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the fair market value
of the net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; PROVIDED that no such
payment of dividends or distributions or receipt of any such other amounts shall
reduce the amount of any Investment if such payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 100% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"ISSUE DATE" means the date of original issuance of the Notes.
"LEASE" has the meaning set forth in SECTION 4.22.
"LEASED PREMISES" has the meaning set for thin SECTION 4.22.
"LEGAL HOLIDAY" has the meaning provided in SECTION 11.07.
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"LIEN" means any lien, mortgage, deed of hypothec, priority, deed of
trust, pledge, security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest).
"MATURITY" when used with respect to any Note means the date on which
the principal of that Note or an installment of principal becomes due and
payable as therein or herein provided, whether at the Maturity Date or by
declaration of acceleration, call for redemption, or otherwise.
"MATURITY DATE" means April 15, 2009.
"MORTGAGES" means the mortgages, deeds of hypothec, deeds of trust,
deeds to secure debt or other similar documents securing liens on the Premises
and/or the Leased Premises as well as the other collateral secured by and
described in the mortgages, deeds of hypothec, deeds of trust, deeds to secure
debt or other similar documents.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Issuers or any of its Restricted Subsidiaries from
such Asset Sale net of: (i) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions); (ii) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements; (iii) repayment of
Indebtedness that is secured by the property or assets that are the subject of
such Asset Sale and is required to be repaid in connection with such Asset Sale;
and (iv) appropriate amounts to be provided by the Issuers or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Issuers or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"NET PROCEEDS OFFER" has the meaning provided in SECTION 4.16.
"NET PROCEEDS OFFER AMOUNT" has the meaning provided in SECTION 4.16.
"NET PROCEEDS OFFER PAYMENT DATE" has the meaning provided in SECTION
4.16.
"NET PROCEEDS OFFER TRIGGER DATE" has the meaning provided in SECTION
4.16.
"NON-U.S. PERSON" means a Person who is not a U.S. person, as defined
in Regulation S.
"NOTES" has the meaning provided in the preamble to this Indenture and
means the Initial Notes, the Additional Notes, if any, and the Exchange Notes
treated as a single class of securities, as amended or supplemented from time to
time in accordance with the terms hereof, which are issued pursuant to this
Indenture.
"OBLIGATIONS" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other amounts
payable under the documentation governing any Indebtedness.
-11-
"OFFERING" means the offering of the Units pursuant to that certain
Purchase Agreement dated March 26, 2001, between the Issuers and the Initial
Purchaser.
"OFFERING CIRCULAR" means the Offering Circular dated March 26, 2002
pursuant to which the Initial Notes were offered, and any amendment or
supplement thereto.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of SECTIONS 11.04 and 11.05, as they relate to the making of an
Officers' Certificate.
"OFFSHORE PHYSICAL UNITS" has the meaning provided in SECTION 2.01.
"OPINION OF COUNSEL" means a written opinion from legal counsel, who
may be counsel for the Company and who is reasonably acceptable to the Trustee,
complying with the requirements of SECTIONS 11.04 and 11.05, as they relate to
the giving of an Opinion of Counsel.
"PAYING AGENT" has the meaning provided in SECTION 2.03.
"PAYOR" has the meaning provided in SECTION 4.23.
"PERMITTED HOLDERS" means WS Acquisition LLC or any entity controlled
thereby.
"PERMITTED INDEBTEDNESS" means: (i) Indebtedness under the Notes
issued in the Offering in an aggregate principal amount not to exceed $125.0
million and the related Guarantees; (ii) Indebtedness incurred pursuant to the
Credit Facilities in an aggregate principal amount at any time outstanding not
to exceed $35.0 million; PROVIDED that the Company will cause all Indebtedness
incurred pursuant to this clause to be repaid in its entirety at least once each
fiscal year; (iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date (excluding Indebtedness incurred
pursuant to clause (ii) above); (iv) Interest Swap Obligations of the Company or
any Restricted Subsidiary of the Company covering Indebtedness of the Company or
any of its Restricted Subsidiaries; PROVIDED, however, that such Interest Swap
Obligations are entered into for the purpose of fixing or hedging interest rates
with respect to any fixed or variable rate Indebtedness that is permitted by the
Indenture to be outstanding to the extent that the notional amount of any such
Interest Swap Obligation does not exceed the principal amount of Indebtedness to
which such Interest Swap Obligation relates; (v) Indebtedness under Currency
Agreements entered into in the ordinary course of business as a BONA FIDE hedge
and not for speculative purposes in order to protect the Company against
fluctuations in currency exchange rates; (vi) Indebtedness of a Wholly Owned
Subsidiary of an Issuer that is a Guarantor to an Issuer or to a Wholly Owned
Subsidiary of an Issuer that is a Guarantor for so long as such Indebtedness is
held by an Issuer or a Wholly Owned Subsidiary of the Company that is a
Guarantor, in each case subject to no Lien held by a Person other than an Issuer
or a Wholly Owned Subsidiary of an Issuer that is a Guarantor or the lenders
under the Credit Agreement and Permitted Liens; PROVIDED that if as of any date
any Person other than an Issuer, a Wholly Owned Subsidiary of an Issuer that is
a Guarantor or the lenders under the Credit Agreement owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by
the issuer of such Indebtedness; (vii) Indebtedness of an Issuer to a Restricted
Subsidiary
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of an Issuer for so long as such Indebtedness is held by a Restricted Subsidiary
of an Issuer, in each case, subject to no Lien other than Liens under the Credit
Agreement and Permitted Liens; PROVIDED that (a) any such Indebtedness is
unsecured and subordinated, pursuant to a written agreement, to the Issuers'
obligations under the Indenture and the Notes and (b) if as of any date any
Person other than a Restricted Subsidiary of an Issuer owns or holds any such
Indebtedness or any Person other than the lenders under the Credit Agreement
holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by an Issuer;
(viii) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the
case of daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; PROVIDED, HOWEVER, that such Indebtedness is extinguished
within five business days of incurrence; (ix) Indebtedness of the Company or any
of its Restricted Subsidiaries represented by letters of credit for the account
of the Company or such Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements including in connection
with license agreements, in the ordinary course of business; PROVIDED, HOWEVER,
that the face amount of such letters of credit may not exceed $10.0 million at
any one time outstanding; (x) Indebtedness represented by Capitalized Lease
Obligations and Purchase Money Indebtedness of the Company and its Restricted
Subsidiaries incurred in the ordinary course of business (including Refinancings
thereof that do not result in an increase of the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing (plus
the amount of any premium required to be paid under the terms of the agreement
or instrument governing such Indebtedness plus the amount of reasonable expenses
incurred by the Company in connection with such Refinancings)) not to exceed
$7.0 million at any one time outstanding; (xi) Refinancing Indebtedness of
Indebtedness incurred pursuant to SECTION 4.12 or clauses (i), (iii), or (xi)
hereof; and (xii) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $15.0 million less
the principal amount of Indebtedness incurred pursuant to clause (x) above at
any one time outstanding (which amount may, but need not, be incurred in whole
or in part under the Credit Facilities).
For purposes of determining compliance with SECTION 4.12, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (i) through (xii)
above or is entitled to be incurred pursuant to SECTION 4.12, the Company shall,
in its sole discretion, classify (or later reclassify) such item of Indebtedness
in any manner that complies with SECTION 4.12. Accrual of interest, accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for
purposes of SECTION 4.12.
"PERMITTED INVESTMENTS" means: (i) Investments by the Issuers or any
Restricted Subsidiary of the Company in any Person that is or will become
immediately after such Investment a Wholly Owned Subsidiary of the Company that
is a Guarantor or that will merge or consolidate into the Company or a Wholly
Owned Subsidiary of the Company that is a Guarantor, PROVIDED that in the event
the Company or its Restricted Subsidiaries make an Investment in Jofa Holding AB
or any Subsidiary of Jofa Holding AB, such Person shall grant to the Collateral
Agent a security interest by way of a floating charge in an amount equal to the
fair market value of the Investment made in such Person; (ii) Investments in the
Issuers by any Restricted Subsidiary of the Company; PROVIDED that any
Indebtedness evidencing such Investment is unsecured and subordinated, pursuant
to a written agreement, to the Issuers' obligations under the Notes and the
Indenture; (iii) Investments in cash and Cash Equivalents; (iv) loans and
advances to employees and officers of the Issuers and Restricted Subsidiaries of
the Company in the ordinary course of business for BONA FIDE business purposes
not in excess of the amount outstanding on the Issue Date plus $750,000 at any
one time outstanding; (v) Currency Agreements and
-13-
Interest Swap Obligations entered into in the ordinary course of the Issuers' or
the Company's Restricted Subsidiaries' businesses and otherwise in compliance
with the Indenture; (vi) Investments in the Notes; (vii) Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers; (viii) Investments made by the Issuers or any
Restricted Subsidiary of the Company as a result of an Asset Sale made in
compliance with SECTION 4.16; and (ix) additional Investments not to exceed $2.0
million at any one time outstanding.
"PERMITTED LIENS" means the following types of Liens: (i) Liens for
taxes, assessments or governmental charges or claims either (a) not delinquent
or (b) contested in good faith by appropriate proceedings and as to which the
Issuers or any Restricted Subsidiary of the Company shall have set aside on its
books such reserves as may be required pursuant to GAAP; (ii) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good faith,
if such reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof; (iii) Liens incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money); (iv) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired; (v) casements, rights-of-way, zoning restrictions, title
irregularities and other similar charges or encumbrances in respect of real
property not interfering in any material respect with the ordinary conduct of
the business of the Company or any of its Restricted Subsidiaries; (vi) any
interest or title of a lessor under any Capitalized Lease Obligation; PROVIDED
that such Liens do not extend to any property or assets which is not leased
property subject to such Capitalized Lease Obligation; (vii) Liens securing
Capitalized Lease Obligations and Purchase Money Indebtedness permitted pursuant
to clause (x) of the definition of "Permitted Indebtedness"; PROVIDED, HOWEVER,
that in the case of Purchase Money Indebtedness (a) the Indebtedness shall not
exceed the cost of such property or assets and shall not be secured by any
property or assets of the Issuers or any Restricted Subsidiary of the Company
other than the property and assets so acquired or constructed and (b) the Lien
securing such Indebtedness shall be created within 180 days of such acquisition
or construction or, in the case of a refinancing of any Purchase Money
Indebtedness, within 180 days of such refinancing; (viii) Liens upon specific
items of inventory or other goods and proceeds of any Person securing such
Person's obligations in respect of bankers' acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods; (ix) Liens securing reimbursement obligations
with respect to commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising, from
statutory, regulatory, contractual, or warranty requirements of the Issuers or
any Restricted Subsidiary of the Company, including rights of offset and
set-off; (xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under the
Indenture; (xii) Liens securing Indebtedness under Currency Agreements; (xiii)
Liens securing Acquired Indebtedness incurred in accordance with SECTION 4.12;
PROVIDED that: (a) such Liens secured such Acquired Indebtedness at the time of
and prior to the incurrence of such Acquired Indebtedness by the Issuers or a
Restricted Subsidiary of the Company and were not granted in connection with, or
in anticipation of, the incurrence of such Acquired Indebtedness by the Company
or a Restricted Subsidiary of the Company; and (b) such Liens do not extend to
or cover any property or assets of the Issuers or of any Restricted Subsidiary
of the Company other than the property or assets that secured the Acquired
Indebtedness prior to the time such
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Indebtedness became Acquired Indebtedness of the Company or a Restricted
Subsidiary of the Company and are no more favorable to the lienholders than
those securing the Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the Company;
(xiv) Liens upon appropriate amounts to be provided by the Issuers or any
Restricted Subsidiary of the Company, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Issuers or any Restricted Subsidiary of the Company, as the
case may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale; and (xv) Liens arising by operation of law that secure amounts
owing for Canada Pension Plan, Quebec Pension Plan, employment insurance,
workers' compensation, employee income tax withholdings and other claims of a
similar nature.
"PERSON" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
"PHYSICAL UNITS" has the meaning provided in SECTION 2.01.
"PLEDGE AGREEMENT" means the Pledge and Security Agreement, including
the Related Documents (as defined therein), dated as of the Issue Date, made by
the Company and the Guarantors in favor of The Bank of
New York, as collateral
agent, as amended or supplemented from time to time in accordance with its
terms.
"PREFERRED STOCK" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"PREMISES" has the meaning provided in SECTION 4.21.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Notes in the form set forth in EXHIBIT A.
"PROCEEDS PURCHASE DATE" has the meaning provided in SECTION 4.16.
"PRO FORMA" means, with respect to any calculation made or required to
be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act, as determined by the
Board of Directors of the Company in consultation with its independent public
accountants.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company and
its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property or equipment.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUEBEC COLLATERAL AGENT" means the holder of the power of attorney
(FONDE DE POUVOIR) of the Holders in accordance with the Civil Code of Quebec.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
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"RECORD DATE" means any of the Record Dates specified in the Notes,
whether or not a Legal Holiday.
"REDEMPTION DATE," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"REDEMPTION PRICE," when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Notes.
"REFERENCE DATE" has the meaning provided in SECTION 4.10.
"REFINANCE" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "REFINANCED" and "REFINANCING"
shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing by the Company or any
Restricted Subsidiary of the Company of Indebtedness incurred in accordance with
SECTION 4.12 or clauses (i), (iii) or (xi) of the definition of Permitted
Indebtedness, in each that does not: (i) result in an increase in the aggregate
principal amount of Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under the terms
of the instrument governing such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing); or (ii)
create Indebtedness with: (a) a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Indebtedness being Refinanced;
or (b) a final maturity earlier than the final maturity of the Indebtedness
being Refinanced; PROVIDED that (x) if such Indebtedness being Refinanced is
Indebtedness of the Issuer to which it relates, then such Refinancing
Indebtedness shall be Indebtedness solely of such Issuer and (y) if such
Indebtedness being Refinanced is subordinate or junior to the Notes, then such
Refinancing Indebtedness shall be subordinate to the Notes at least to the same
extent and in the same manner as the Indebtedness being Refinanced.
"REGISTRAR" has the meaning provided in SECTION 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the date hereof among the Issuers and the Initial
Purchasers for the benefit of themselves and the Holders, as the same may be
amended or modified from time to time in accordance with the terms thereof.
"REGULATION S" means Regulation S under the Securities Act.
"RESPONSIBLE OFFICER" means any vice president, any assistant vice
president, any assistant treasurer or any other officer associated with the
corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers, in each case
that has direct responsibility for administering this Indenture, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because such person's knowledge of and familiarity with
the particular subject.
"RESTRICTED PAYMENT" has the meaning provided in SECTION 4.10.
"RESTRICTED SECURITY" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; PROVIDED that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Note constitutes a Restricted Security.
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"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person from whom funds have
been or are to be advanced by such Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SECURITY AGREEMENTS" means the Pledge and Security Agreement,
Canadian Security Agreements and Swedish Security Agreements, as amended or
supplemented from time to time in accordance with its terms and such other
security agreements which may be entered into from time to time.
"SIGNIFICANT SUBSIDIARY", with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"SUBSIDIARY," with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances is
owned, directly or indirectly, by such Person or (ii) any other Person of which
at least a majority of the voting interest under ordinary circumstances is at
the time, directly or indirectly, owned by such Person.
"SURVIVING ENTITY" has the meaning provided in SECTION 5.01.
"SWEDISH SECURITY AGREEMENTS" means the agreements to be entered into
by Jofa Holding AB and the Swedish Collateral Agent to be named in respect of
the pledge of Patent and Trademarks and the pledge of shares and the agreement
to be entered into by Jofa AB and the Swedish Collateral Agent to be named in
respect of the pledge of floating charge.
"TAXES" shall have the meaning provided in SECTION 4.23.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in SECTION 9.03.
"TRANSACTION DOCUMENTS" means, collectively, the Notes, the Collateral
Agreements and the Registration Rights Agreement.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
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"UNRESTRICTED SUBSIDIARY" of any Person means: (i) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below; and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock 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 that: (a) the
Company certifies to the Trustee that such designation complies with the SECTION
4.10; and (b) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any of
the assets of the Company or any of its Restricted Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if: (1) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with SECTION 4.12; and (2) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. GOVERNMENT OBLIGATIONS" means non-callable direct obligations
of, and non-callable obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. PHYSICAL UNITS" has the meaning provided in SECTION 2.01.
"VOTING STOCK" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"WHOLLY OWNED SUBSIDIARY" of any Person means any Restricted
Subsidiary of such Person of which all the outstanding voting securities (other
than in the case of a foreign Subsidiary, directors' qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by such Person or any Wholly Owned Subsidiary of such
Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
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"indenture securities" means the Units and Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means an Issuer of or any other
obligor on the Notes.
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 and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE NOTES AND UNITS
SECTION 2.01. FORM AND DATING.
The aggregate principal amount of Units and Notes that may be issued
under this Indenture is unlimited. The Initial Units, the Notes forming the
Initial Units and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A hereto. The Exchange Units, the Notes
forming the Exchange Units and the Trustee's certificate of authentication shall
be substantially in the form of EXHIBIT B hereto. The Units may have notations,
legends or endorsements required by law, stock exchange rule or Depository rule
or usage. Each Unit and Note shall be dated the date of its authentication. The
Notes comprising a Unit are not separable and are transferable only as that
Unit.
The terms and provisions contained in the Units and the Notes annexed
hereto as EXHIBIT A and EXHIBIT B, shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company, the
Subsidiary Issuer, 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.
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Units offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Units in registered form
("GLOBAL UNITS"), deposited with the Trustee, as custodian for the Depository,
duly executed by the Company and the Subsidiary Issuer and authenticated by the
Trustee as hereinafter provided and shall bear the legend set forth on EXHIBIT
C. The aggregate principal amount of any Note forming a part of a Unit may from
time to time be increased or decreased by adjustments made on the records of the
Trustee as hereinafter provided.
Units offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more Global Units
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and the Subsidiary Issuer and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth on EXHIBIT C or shall
be issued in the form of certificated Units in registered form set forth in
EXHIBIT A (the "OFFSHORE PHYSICAL UNITS"). Units offered and sold in reliance on
any other exemption from registration under the Securities Act other than as
described in the preceding paragraph shall be issued, and Units offered and sold
in reliance on Rule 144A may be issued, in the form of certificated Units in
registered form in substantially the form set forth in EXHIBIT A (the "U.S.
PHYSICAL UNITS"). The Offshore Physical Units and the U.S. Physical Units are
sometimes collectively herein referred to as the "PHYSICAL UNITS".
SECTION 2.02. EXECUTION AND AUTHENTICATION; AGGREGATE PRINCIPAL
AMOUNT.
An Officer (who shall, in each case, have been duly authorized by all
requisite corporate actions) of the Company shall execute the Parent Notes for
the Company by manual or facsimile signature.
An Officer (who shall, in each case, have been duly authorized by all
requisite corporate actions) of the Subsidiary Issuer shall execute the
Subsidiary Issuer Notes for the Subsidiary Issuer by manual or facsimile
signature.
An Officer (who shall, in each case, have been duly authorized by all
requisite corporate actions) of the Company and Subsidiary Issuer shall execute
the Units by manual or facsimile signature.
If an Officer whose signature is on a Unit or a Note was an Officer at
the time of such execution but no longer holds that office or position at the
time the Trustee authenticates such Unit or Note, such Unit or Note shall
nevertheless be valid.
A Unit or a Note shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on such Unit or
Note. The signature shall be conclusive evidence that the Unit or Note has been
authenticated under this Indenture.
The Trustee shall authenticate (i) 125,000 Initial Units, each Unit
consisting of (a) $500 principal amount of Parent Notes (being an aggregate
principal amount of $62,500,000 of Parent Notes) and (b) $500 principal amount
of Subsidiary Issuer Notes (being an aggregate principal amount of $62,500,000
of Subsidiary Issuer Notes), for original issue, (ii) Exchange Units, consisting
of (a) $500 principal amount of Parent Notes and (b) $500 principal amount of
Subsidiary Issuer Notes, from time to time for issue only in exchange for
Initial Units, and (iii) subject to compliance with SECTION 4.12, one or more
series of Units or Notes for original issue after the Issue Date in an unlimited
amount ("ADDITIONAL UNITS") in each case upon written orders of such Issuers in
the form of an Officers' Certificate, which Officers' Certificate shall, in the
case of any issuance of Additional Units, certify that such issuance is in
compliance with SECTION 4.12. In addition, each Officers' Certificate shall
specify the amount of Units and Notes to be authenticated and the date on which
the Units are to be authenticated, and shall specify the amount of such Units to
be issued as the Global Units, Offshore Physical Units or U.S. Physical Units.
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All Units issued under this Indenture shall vote and consent together on all
matters as one class and no series of Units will have the right to vote or
consent as a separate class on any matter. No Notes will have the right to vote
or consent separate from the Unit to which they relate.
The Trustee may appoint an authenticating agent (the "AUTHENTICATING
AGENT") at the Company's expense reasonably acceptable to the Company to
authenticate Units and Notes. Unless otherwise provided in the appointment, an
Authenticating Agent may authenticate Units and Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such Authenticating Agent. An Authenticating Agent
has the same rights as an Agent to deal with the Company, the Subsidiary Issuer,
and Affiliates of the Company.
The Notes and Units shall be issuable only in registered form without
coupons and only in denominations of (i) $500 for the Parent Notes, (ii) $500
for the Subsidiary Issuer Notes and (iii) $1,000 for the Units; or in each case,
any integral multiple thereof.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company and the Subsidiary Issuer shall each maintain an office or
agency (which shall be located in the Borough of Manhattan in the City of
New
York, State of
New York), which shall initially be the offices of the Trustee
where (a) Units may be presented or surrendered for registration of transfer or
for exchange ("REGISTRAR"), (b) Units may be presented or surrendered for
payment ("PAYING AGENT") and (c) notices and demands to or upon the Company and
Subsidiary Issuer in respect of the Units and this Indenture may be served. The
Registrar shall keep a register of the Units and of their transfer and exchange.
The Company and Subsidiary Issuer, upon prior written notice to the Trustee, may
have one or more co-Registrars and one or more additional Paying Agents
reasonably acceptable to the Trustee. The term "Paying Agent" includes any
additional Paying Agent. Neither the Issuers nor any Affiliate of the Issuers
may act as Paying Agent.
The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Issuers fail to maintain a Registrar or Paying
Agent, or fail to give the foregoing notice, the Trustee may act as such.
The Company and Subsidiary Issuer initially appoint the Trustee as
Registrar, Paying Agent and agent for service of demands and notices in
connection with the Units. The Paying Agent, Registrar or such agent for service
of demands and notices may resign upon 30 days' notice to the Company.
SECTION 2.04. PAYING AGENT ASSETS SEGREGATED.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold separate and apart from, and
not commingle with any other properties, for the benefit of the Holders and the
Trustee, all assets held by the Paying Agent for the payment of principal of, or
interest on, the Units (whether such assets have been distributed to it by the
Issuers or any other obligor on the Units), and the Issuers and the Paying Agent
shall notify the Trustee of any Default by the Issuers (or any other obligor on
the Notes) in making any such payment. The Issuers at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been
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delivered by the Issuers to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
SECTION 2.05. 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
the Holders and shall otherwise comply with TIA SECTION 312(a). If the Trustee
is not the Registrar, the Company and the Subsidiary Issuer shall furnish or
cause the Registrar to furnish to the Trustee within 10 days after each Record
Date and at such other times as the Trustee may request in writing a list as of
that Record Date or the date specified by the Trustee and in such form as the
Trustee may reasonably require of the names and addresses of the Holders, which
list may be conclusively relied upon by the Trustee.
SECTION 2.06. TRANSFER AND EXCHANGE.
Subject to the provisions of SECTIONS 2.14 and 2.15, when Units are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Units or to exchange such Units for an equal amount of like
Units of other authorized denominations, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested; PROVIDED, HOWEVER, that
the Units presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company, the Subsidiary Issuer and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfer and exchanges, the
Issuers shall execute and the Trustee shall authenticate, Units at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Issuers may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to SECTION
2.10, 3.06, 4.15, 4.16 or 9.05, in which event the Issuers shall be responsible
for the payment of such taxes).
The Registrar or co-Registrar shall not be required to register the
transfer or exchange of any Unit (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Units and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to ARTICLE THREE, except the unredeemed
portion of any Unit being redeemed in part.
Any Holder of a Global Unit shall, by acceptance of such Global Unit,
agree that transfers of beneficial interests in such Global Unit may be effected
only through the Depository, in accordance with this Indenture and the
Applicable Procedures.
Each Holder agrees to indemnify the Issuers and the Trustee against
any liability that may result from the transfer, exchange or assignment of such
Holder's Units in violation of any provision of this Indenture and/or applicable
United States Federal or state or foreign securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Units (including any transfers between or among participants in the
Depository or beneficial owners of interests in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
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SECTION 2.07. REPLACEMENT NOTES AND UNITS.
If a mutilated Parent Note is surrendered to the Trustee or if the
Holder of a Unit claims that a Parent Note has been lost, destroyed or
wrongfully taken, in the absence of notice to the Company or the Trustee that
such Note has been acquired by a protected purchaser, the Company shall issue
and the Trustee shall authenticate a replacement Parent Note if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an affidavit of lost certificate and an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Parent Note is replaced. The Company may charge such Holder for
its reasonable out-of-pocket expenses in replacing a Parent Note, including
reasonable fees and expenses of their counsel and of the Trustee and its
counsel. Every replacement Parent Note shall constitute an additional obligation
of the Company.
If a mutilated Subsidiary Issuer Note is surrendered to the Trustee or
if the Holder of a Unit claims that a Subsidiary Issuer Note has been lost,
destroyed or wrongfully taken, in the absence of notice to the Subsidiary Issuer
or the Trustee that such Note has been acquired by a protected purchaser, the
Subsidiary Issuer shall issue and the Trustee shall authenticate a replacement
Subsidiary Issuer Note if the Trustee's requirements are met. If required by the
Trustee or the Subsidiary Issuer, such Holder must provide an affidavit of lost
certificate and an indemnity bond or other indemnity, sufficient in the judgment
of both the Subsidiary Issuer and the Trustee, to protect the Subsidiary Issuer,
the Trustee or any Agent from any loss which any of them may suffer if a
Subsidiary Issuer Note is replaced. The Subsidiary Issuer may charge such Holder
for its reasonable out-of-pocket expenses in replacing a Subsidiary Issuer Note,
including reasonable fees and expenses of its counsel and of the Trustee and its
counsel. Every replacement Subsidiary Issuer Note shall constitute an additional
obligation of the Subsidiary Issuer.
If a mutilated Unit is surrendered to the Trustee or if the Holder of
a Unit claims that the Unit has been lost, destroyed or wrongfully taken, in the
absence of notice to the Issuers or the Trustee that such Unit has been acquired
by a protected purchaser, the Issuers shall issue and the Trustee shall
authenticate a replacement Unit if the Trustee's requirements are met. If
required by the Trustee or such Issuers, such Holder must provide an affidavit
of lost certificate and an indemnity bond or other indemnity, sufficient in the
judgment of the Issuers and the Trustee, to protect the Issuers, the Trustee or
any Agent from any loss which any of them may suffer if a Unit is replaced. The
Issuers may charge such Holder for their reasonable out-of-pocket expenses in
replacing such Unit, including reasonable fees and expenses of their counsel and
of the Trustee and its counsel. Every replacement Unit shall constitute an
additional obligation of the Issuers.
SECTION 2.08. OUTSTANDING NOTES AND UNITS.
Notes or Units outstanding at any time are all the Notes or Units that
have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to the provisions of SECTION 2.09, a Note or Unit does not
cease to be outstanding because the Company, the Subsidiary Issuer or any of
their Affiliates holds the Note or Unit.
If a Note or Unit is replaced pursuant to SECTION 2.07 (other than a
mutilated Note or Unit surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note or
Unit is held by a protected purchaser. A mutilated Note or Unit ceases to be
outstanding upon surrender of such Note or Unit and replacement thereof pursuant
to SECTION 2.07.
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If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes (and the Units of
which they comprise) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. TREASURY UNITS; WHEN UNITS ARE DISREGARDED.
In determining whether the Holders of the required amount of Units
have concurred in any direction, waiver, consent or notice, Units owned by the
Issuers or any of their Affiliates shall be considered as though they are not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Units which a Responsible Officer of the Trustee actually knows are so owned
shall be so considered. The Issuers shall notify the Trustee, in writing (which
notice shall constitute actual notice for purposes of the foregoing sentence),
when the Issuers, or any of their respective Affiliates repurchases or otherwise
acquires Units, of the aggregate principal amount of such Notes underlying the
Units so repurchased or otherwise acquired.
SECTION 2.10. TEMPORARY NOTES OR UNITS.
Until definitive Notes or Units are ready for delivery, the Issuers
may prepare and the Trustee shall authenticate temporary Notes or Units upon
receipt of a written order of the Issuers in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of temporary
Notes or Units to be authenticated and the date on which the temporary Notes or
Units are to be authenticated. Temporary Notes or Units shall be substantially
in the form of definitive Notes or Units but may have variations that the
Company and the Subsidiary Issuer consider appropriate for temporary Notes or
Units. Without unreasonable delay, the Issuers shall prepare and the Trustee
shall authenticate upon receipt of a written order of the Company and the
Subsidiary Issuer pursuant to SECTION 2.02 definitive Notes or Units in exchange
for temporary Notes or Units.
SECTION 2.11. CANCELLATION.
The Issuers at any time may deliver Units and Notes represented
thereby to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Units and Notes represented thereby surrendered
to them for transfer, exchange or payment. The Trustee, or at the direction of
the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel
all Units and Notes represented thereby surrendered for transfer, exchange,
payment or cancellation. Subject to SECTION 2.07, the Issuers may not issue new
Units and Notes represented thereby to replace Units and Notes that they have
paid or delivered to the Trustee for cancellation. If the Issuers shall acquire
any of the Units and Notes represented thereby, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Units and Notes unless and until the same are surrendered to the Trustee for
cancellation pursuant to this SECTION 2.11. The Trustee shall dispose of all
cancelled Notes and Units in accordance with its customary procedures or, at the
written request of the Issuers shall return the same to the Issuers.
SECTION 2.12. CUSIP NUMBER.
A "CUSIP" number will be printed on Units, and the Trustee shall use
the CUSIP number in notices of redemption, purchase or exchange as a convenience
to Holders; PROVIDED that any such notice may state that no representation is
made as to the correctness or accuracy of the CUSIP number printed in the notice
or on the Notes or Units and that reliance may be placed only on the other
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identification numbers printed on the Notes or Units. The Issuers will promptly
notify the Trustee of any change in the CUSIP numbers.
SECTION 2.13. DEPOSIT OF MONEYS.
Prior to 10:00 a.m.
New York City time on each Interest Payment Date
and Maturity, the Issuers shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity, as the case may be, in a timely
manner which permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date or Maturity, as the case may be.
SECTION 2.14. BOOK-ENTRY PROVISIONS FOR GLOBAL UNITS.
(a) The Global Units initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
EXHIBIT C.
Members of, or participants in, the Depository ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Unit held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Unit, and the Depository may be treated by the Company, the Subsidiary
Issuer, the Trustee and any agent of the Company, the Subsidiary Issuer or the
Trustee as the absolute owner of the Global Unit for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Subsidiary Issuer, the Trustee or any agent of the Company, the Subsidiary
Issuer or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Unit.
(b) Transfers of the Global Units shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Units may be transferred
or exchanged in accordance with the Applicable Procedures of the Depository and
the provisions of SECTION 2.15. In addition, Physical Units shall be transferred
to all beneficial owners in exchange for their beneficial interests in the
Global Units if (i) the Depository notifies the Company and the Subsidiary
Issuer that it is unwilling or unable to continue as Depository for the Global
Units and a successor Depository is not appointed by the Issuers within 90 days
of such notice or (ii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depository to issue Physical
Units.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Unit to beneficial owners pursuant to
PARAGRAPH (b), the Registrar shall (if one or more Physical Units are to be
issued) reflect on its books and records the date and a decrease in the amount
of the Global Unit (and principal amount of the Notes comprising the Global
Unit) in an amount equal to the amount of the beneficial interest in the Global
Unit (and principal amount of the Notes comprising the Global Unit) to be
transferred, and the Company and Subsidiary Issuer shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Units of like tenor
and aggregate principal amount.
(d) In connection with the transfer of the entire Global Unit to
beneficial owners pursuant to PARAGRAPH (b), the Global Unit shall be deemed to
be surrendered to the Trustee for cancellation, and the Company and Subsidiary
Issuer shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Unit, an equal aggregate principal amount of Physical
Units of authorized denominations.
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(e) Any Physical Unit constituting a Restricted Security delivered
in exchange for an interest in the Global Unit pursuant to PARAGRAPH (b) or (c)
shall, except as otherwise provided by PARAGRAPHS (a)(i)(x) and (c) of SECTION
2.15, bear the legend regarding transfer restrictions applicable to the Physical
Units set forth in EXHIBIT A.
(f) The Holder of the Global Unit may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Units.
SECTION 2.15. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS AND
NON-U.S. PERSONS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Unit constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Unit
constituting a Restricted Security, whether or not such Unit bears the
Private Placement Legend, if (x) the requested transfer is after March 26,
2004 and the Trustee has received an Opinion of Counsel to the effect that
Rule 144(k) is available for such Unit or (y) (1) in the case of a transfer
to an Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons), the proposed transferee has delivered to the Registrar a
certificate substantially in the form of EXHIBIT D hereto or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
EXHIBIT E hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Unit, upon receipt by the Registrar of
(x) the certificate, if any, required by PARAGRAPH (i) above and (y)
instructions given in accordance with the Applicable Procedures and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Units) a
decrease in the amount of the Global Unit (and principal amount of the Notes
comprising the Global Unit) in an amount equal to the amount of the beneficial
interest in the Global Unit (and principal amount of the Notes comprising the
Global Unit) to be transferred, and (b) the Company and Subsidiary Issuer shall
execute and the Trustee shall authenticate and deliver one or more Physical
Units of like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Unit constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Unit stating, or has otherwise advised the Company, the
Subsidiary Issuer and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Unit stating, or has
otherwise advised the Company, the Subsidiary Issuer and the Registrar in
writing, that it is purchasing the Unit for its own account or an account
with respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
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information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Units to
be transferred consist of Physical Units which after transfer are to be
evidenced by an interest in the Global Unit, upon compliance by the
transferor and transferee with the requirements of clause (i) above, the
Registrar shall reflect on its books and records the date and an increase
in the amount of the Global Unit (and, if applicable, principal amount of
the Notes comprising the Global Unit) in an amount equal to the amount of
the Physical Units (and, if applicable, principal amount of the Notes
comprising the Global Unit) to be transferred, and the Trustee shall cancel
the Physical Units so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Units not bearing the Private Placement Legend, the Registrar
shall deliver Units that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Units bearing the Private Placement Legend,
the Registrar shall deliver only Units that bear the Private Placement Legend
unless (i) the circumstance contemplated by PARAGRAPH (a)(i)(x) of this SECTION
2.15 exist or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company, the Subsidiary Issuer and the Trustee to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.
(d) GENERAL. By its acceptance of any Unit bearing the Private
Placement Legend, each Holder of such a Unit acknowledges the restrictions on
transfer of such Unit set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Unit only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to SECTION 2.14 or this SECTION 2.15.
The Company and the Subsidiary Issuer shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company and the Subsidiary Issuer jointly elect to redeem their
respective Notes, as Units, pursuant to Paragraph 6 of the Notes, they shall
notify the Trustee and the Paying Agent in writing of the Redemption Date and
the principal amount of the Notes to be redeemed.
The Company and the Subsidiary Issuer shall give each notice provided
for in this SECTION 3.01 at least 60 days before the Redemption Date (unless a
shorter notice period shall be satisfactory to the Trustee, as evidenced in a
writing signed on behalf of the Trustee), together with an Officers' Certificate
stating that such redemption shall comply with the conditions contained herein
and in the Notes.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If fewer than all of the Notes, as Units, are to be redeemed, the
Trustee shall select the Notes, as Units, to be redeemed in compliance with the
requirements of the principal national securities
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exchange, if any, on which such Units are listed or, if such Units are not then
listed on a national securities exchange, on a PRO RATA basis, by lot or in such
other fair and reasonable manner chosen at the discretion of the Trustee;
PROVIDED, HOWEVER, that if a partial redemption is made with the proceeds of an
Equity Offering, selection of the Notes, as Units, or portions thereof for
redemption shall be made by the Trustee only on a PRO RATA basis or on as nearly
a PRO RATA basis as is practicable (subject to the procedures of the
Depository), unless such method is prohibited. The Trustee shall make the
selection from the Notes outstanding and not previously called for redemption
and shall promptly notify the Company and Subsidiary Issuer in writing of the
Units selected for redemption and, in the case of any Unit selected for partial
redemption, the principal amount thereof, to be redeemed. Units in denominations
of $1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Units that have denominations larger than $1,000. Provisions of this Indenture
that apply to Units called for redemption also apply to portions of Units called
for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company and the Subsidiary Issuer shall mail or cause to be mailed a notice
of redemption by first class mail, postage prepaid, to each Holder whose Units
are to be redeemed at its registered address, with a copy to the Trustee and any
Paying Agent. At the Issuers' written request, the Trustee shall give the notice
of redemption in the Issuers' name and at the Issuers' expense.
Each notice of redemption shall identify the Units to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) the CUSIP number;
(5) the subparagraph of the Notes pursuant to which such redemption
is being made;
(6) that Units called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if any;
(7) that, unless the Issuers fail to deposit with the Paying Agent
funds in satisfaction of the applicable redemption price, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date,
and the only remaining right of the Holders of such Units is to receive
payment of the Redemption Price plus accrued interest, if any, upon
surrender to the Paying Agent of the Units redeemed;
(8) if any Unit is being redeemed in part, the portion of the
principal amount of such Unit to be redeemed and that, after the Redemption
Date, and upon surrender of such Unit, a new Unit or Units in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
and
(9) if fewer than all the Notes are to be redeemed, as Units, the
identification of the particular Units (or portion thereof) to be redeemed,
as well as the aggregate principal Notes to be
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redeemed and the aggregate amount of Units and aggregate principal amount
of the Notes comprising the Units to be outstanding after such partial
redemption.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with SECTION 3.03,
Notes called for redemption, as Units, become due and payable on the Redemption
Date and at the Redemption Price plus accrued interest, if any. Upon surrender
to the Trustee or Paying Agent, such Notes, as Units, called for redemption
shall be paid as Units at the Redemption Price (which shall include accrued
interest thereon to the Redemption Date), but installments of interest on the
Notes, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant record
dates referred to in the Notes.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
Not later than 10:00 a.m., local time in the place of payment on the
Redemption Date, the Issuers shall deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Redemption Price plus accrued interest, if any, of
all Notes to be redeemed as Units on that date. The Paying Agent shall promptly
return to the Issuers any U.S. Legal Tender so deposited which is not required
for that purpose, except with respect to monies owed as obligations to the
Trustee pursuant to ARTICLE SEVEN.
If the Company or Subsidiary Issuer complies with the preceding
paragraph, then, unless the Company or Subsidiary Issuer defaults in the payment
of such Redemption Price plus accrued interest, if any, interest on the Notes to
be redeemed as Units will cease to accrue on and after the applicable Redemption
Date, whether or not such Notes, as Units, are presented for payment.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is to be redeemed as a Unit in part, the
Trustee shall authenticate for the Holder a new Unit or Units consisting of
Notes equal in principal amount to the unredeemed portion of the Unit
surrendered.
SECTION 3.07. JOINT DECISION.
To the extent that the Notes or Indenture provide for any discretion
or action on behalf of either or both Issuers or any direct or indirect
Subsidiary of either Issuer, and such action or discretion could result in the
repayment, redemption or offer to purchase of the portion of the Notes, as
Units, not otherwise then due by reason of a default or Maturity of the Notes,
then such action or discretion shall not be taken or exercised without the
express agreement of both Issuers.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Parent
Notes on the dates and in the manner provided in the Parent Notes and in this
Indenture. The Subsidiary Issuer shall pay the principal of and interest on the
Subsidiary Issuer Notes on the dates and in the manner provided in the
Subsidiary Issuer Notes. An installment of principal of or interest on the Notes
shall be considered paid on the date it is due if the Trustee or Paying Agent
(other than the Company, the Subsidiary Issuer or an
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Affiliate of the Company) holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment in full and is not prohibited from paying
such money to the Holders pursuant to the terms of this Indenture.
Notwithstanding anything to the contrary contained in this Indenture,
the Company and the Subsidiary Issuer may, to the extent it is required to do so
by law, deduct or withhold income or other similar taxes imposed by the United
States of America from principal or interest payments hereunder.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company and Subsidiary Issuer shall maintain the office or agency
required under SECTION 2.03. The Company and the Subsidiary Issuer shall give
prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company and the
Subsidiary Issuer shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in SECTION 11.02 and each Issuer hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 4.03. CORPORATE EXISTENCE.
Except as otherwise permitted by ARTICLE FIVE, each of the Company and
the Subsidiary Issuer shall do or cause to be done, at their cost and expense,
all things necessary to preserve and keep in full force and effect their
corporate existence and the corporate existence of their Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the material rights (charter and statutory) and franchises of the Company,
the Subsidiary Issuer and each such Subsidiary; PROVIDED, HOWEVER, that the
neither Company nor the Subsidiary Issuer shall be required to preserve, with
respect to itself, any material right or franchise and, with respect to any of
its Subsidiaries, any such existence, material right or franchise, if its Board
of Directors shall determine in good faith that the preservation thereof is no
longer desirable in the conduct of its business and the business of its
Subsidiaries, taken as a whole.
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company and the Subsidiary Issuer shall pay or discharge or cause
to be paid or discharged, before the same shall be come delinquent, (i) all
material taxes, assessments and governmental charges (including withholding
taxes and any penalties, interest and additions to taxes) levied or imposed upon
them or any of their own Subsidiaries or their properties or any of their own
Subsidiaries' properties and (ii) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon their
own properties or any of their own Subsidiaries' properties; PROVIDED, HOWEVER,
that the Company and the Subsidiary Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being or shall be contested in
good faith by appropriate proceedings properly instituted and diligently
conducted for which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.05. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company and the Subsidiary Issuer shall, and shall cause
each of their Subsidiaries to, maintain their properties in good working order
and condition in all material respects (subject to ordinary wear and tear) and
make all necessary repairs, renewals, replacements, additions, betterments and
improvements thereto and actively conduct and carry on their business; PROVIDED,
HOWEVER, that nothing in this SECTION 4.05 shall prevent the Company, the
Subsidiary Issuer or any of
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their Subsidiaries from discontinuing the operation and maintenance of any of
their properties if such discontinuance is, in the good faith judgment of the
Board of Directors or other governing body of the Company, the Subsidiary Issuer
or the Subsidiary concerned, as the case may be, desirable in the conduct of
their business and is not disadvantageous in any material respect to the
Holders.
(b) The Company and the Subsidiary Issuer shall maintain insurance
(including appropriate self-insurance) against loss or damage of the kinds that,
in the good faith judgment of the Company and the Subsidiary Issuer, are
adequate and appropriate for the conduct of the business of the Company, the
Subsidiary Issuer and their Subsidiaries in a prudent manner, with reputable
insurers or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the good faith judgment of the Company and the
Subsidiary Issuer, for companies similarly situated in the industry.
SECTION 4.06. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company and the Subsidiary Issuer shall each deliver to the
Trustee, within 90 days after the end of the Company's fiscal year, an Officers'
Certificate stating that a review of activities during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company and Subsidiary Issuer, as the case may be, have
kept, observed, performed and fulfilled their obligations under this Indenture
and further stating, as to each such Officer signing such certificate, that to
the best of such Officer's actual knowledge during such preceding fiscal year
such Issuer has kept, observed, performed and fulfilled each and every such
covenant and no Default or Event of Default occurred during such year and at the
date of such certificate there is no Default or Event of Default that has
occurred and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe the Default or Event of Default and
its status with particularity. The Officers' Certificate shall also notify the
Trustee should an Issuer elect to change the manner in which it fixes its fiscal
year end.
(b) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Issuers
shall deliver to the Trustee, at its address set forth in SECTION 11.02, by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five (5) Business Days of
their becoming aware of such occurrence.
SECTION 4.07. COMPLIANCE WITH LAWS.
The Issuers shall, and shall cause each of their Subsidiaries to,
comply with all applicable statutes, rules, regulations, orders and restrictions
of the United States of America, all states and municipalities thereof, and of
any governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of their
businesses and the ownership of their properties, except for such noncompliances
as are not in the aggregate reasonably likely to have a material adverse effect
on the financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.08. REPORTS TO HOLDERS.
Whether or not required by the rules and regulations of the SEC, so
long as any Units are outstanding, the Company shall furnish the Holders of
Units:
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(a) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of the Company and its
consolidated Subsidiaries (showing in reasonable detail, either on the face of
the financial statements or in the footnotes thereto and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
financial condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Company, if any) and, with respect to the
annual information only, a report thereon by the Company's certified independent
accountants; and
(b) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports, in each case
within the time periods specified in the SEC's rules and regulations.
In addition, following the consummation of the Exchange Offer, whether
or not required by the rules and regulations of the SEC, the Company shall file
a copy of all such information and reports with the SEC for public availability
within the time periods specified in the SEC'S rules and regulations (unless the
SEC will not accept such a filing). In addition, for so long as any Notes remain
outstanding, the Company shall furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.09. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company and Subsidiary Issuer covenant (to the extent that they
may lawfully do so) that they will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive such
Issuer from paying all or any portion of the principal of or interest on the
Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) the Company and Subsidiary Issuer
hereby expressly waive all benefit or advantage of any such law, and covenant
that they will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of Capital
Stock of the Company to holders of such Capital Stock, (b) purchase, redeem or
otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, (c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company or any Guarantor that is subordinate or junior
in right of payment to the Notes or a Guarantee or (d) make any Investment
(other than Permitted Investments) (each of the foregoing actions set forth in
CLAUSES (a), (b), (c) and (d) being referred to as a "RESTRICTED PAYMENT"), if
at the time of such Restricted Payment or immediately after giving effect
thereto, (i) a Default or an Event of Default shall have occurred and be
continuing or (ii) the Company is not able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with SECTION 4.12
or (iii) the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made subsequent to the Issue Date (the amount
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expended for such purposes, if other than in cash, being the fair market value
of such property as determined in good faith by the Board of Directors of the
Company) shall exceed the sum of: (w) 50% of the cumulative Consolidated Net
Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of the Company earned subsequent to the Issue Date and ending on the
last day of the Company's last fiscal quarter ending prior to the date the
Restricted Payment occurs for which financial statements are available (the
"REFERENCE DATE") (treating such period as a single accounting period); plus (x)
100% of the aggregate net cash proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale subsequent
to the Issue Date and on or prior to the Reference Date of Qualified Capital
Stock of the Company; or warrants, options or other rights to acquire Qualified
Capital Stock of the Company or from the issuance of debt securities of the
Company that have been converted into or exchanged for Qualified Capital Stock
subsequent to the Issue Date and on or prior to the Reference Date; plus (y)
without duplication of any amounts included in CLAUSE (iii)(x) above, 100% of
the aggregate net cash proceeds of any equity contribution received by the
Company from a holder of the Company's Capital Stock subsequent to the Issue
Date and on or prior to the Reference Date; plus (z) to the extent not included
in Consolidated Net Income, an amount equal to the net reduction (received by
the Company or any Restricted Subsidiary in cash or Cash Equivalents) in
Investments (other than Permitted Investments) since the Issue Date (including
reductions resulting from return of equity capital, repayments of the principal
of loans or advances, the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary or other dispositions of Investments), not to exceed, in
the case of any Investment, the amount of Investments (other than Permitted
Investments) made by the Company and its Restricted Subsidiaries in such Person
since the Issue Date (excluding, in the case of CLAUSES (iii)(x) and (y), any
net cash proceeds from issuances and sales of Qualified Capital Stock of the
Company financed directly or indirectly using funds borrowed from the Company or
any Subsidiary of the Company, until and to the extent such borrowing is
repaid).
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
within 60 days after the date of declaration of such dividend if the dividend
would have been permitted on the date of declaration; (2) if no Default or Event
of Default shall have occurred and be continuing, the acquisition of any shares
of Capital Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of shares of Qualified Capital Stock of the Company; (3) if no
Default or Event of Default shall have occurred and be continuing, the
acquisition of any Indebtedness of the Company or the Guarantors that is
subordinate or junior in right of payment to the Notes and Guarantees either (i)
solely in exchange for shares of Qualified Capital Stock of the Company, or (ii)
through the application of net proceeds of a substantially concurrent sale for
cash (other than to a Subsidiary of the Company) of (A) shares of Qualified
Capital Stock of the Company or (B) Refinancing Indebtedness; (4) if no Default
or Event of Default shall have occurred and be continuing, an Investment through
the application of the net proceeds of a substantially concurrent sale for cash
(other than to a Subsidiary of the Company) of shares of Qualified Capital Stock
of the Company; (5) if no Default or Event of Default shall have occurred and be
continuing, repurchases by the Company of Common Stock of the Company from an
employee of the Company or any of its Subsidiaries upon the death, disability or
termination of employment of such employee, in an aggregate amount not to exceed
$500,000 in any fiscal year; and (6) if no Default or Event of Default shall
have occurred and be continuing, the payment of management fees in an amount not
to exceed $200,000 in any fiscal year. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date in accordance with clause
(iii) of the immediately preceding paragraph, amounts expended pursuant to
CLAUSES (1), (2)(ii),(3)(ii)(a), (4) and (5) shall be included in such
calculation.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and
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setting forth in reasonable detail the basis upon which the required
calculations were computed, which calculations may be based upon the Company's
latest available internal quarterly financial statements.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "AFFILIATE TRANSACTION"), other than (x) Affiliate Transactions
permitted under PARAGRAPH (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary.
(b) All Affiliate Transactions (and each series of related
Affiliate Transactions which are similar or part of a common plan) involving
aggregate payments or other property with a fair market value in excess of
$2,000,000 shall be approved by a majority of the disinterested members of the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $5,000,000, the Company or such Restricted Subsidiary, as the case may be,
shall, prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the Company or
the relevant Restricted Subsidiary, as the case may be, from a financial point
of view, from an Independent Financial Advisor and file the same with the
Trustee.
(c) The restrictions set forth in paragraph (a) shall not apply to:
(i) reasonable fees and compensation paid to, advances made in the ordinary
course of business to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Restricted Subsidiary of the
Company as determined in good faith by the Company's Board of Directors or
senior management; (ii) transactions exclusively between or among the Company
and any of its Wholly Owned Restricted Subsidiaries or exclusively between or
among such Wholly Owned Restricted Subsidiaries, PROVIDED such transactions are
not otherwise prohibited by this Indenture; (iii) any agreement as in effect as
of the Issue Date or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement agreement is not
more disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Issue Date; and (iv) Restricted Payments and
Permitted Investments permitted by this Indenture.
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "INCUR") any Indebtedness
(other than Permitted Indebtedness); PROVIDED, HOWEVER, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Issuers or any of
their Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and any Restricted Subsidiary of the Company that is not or will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness,
in each case if on the date of the incurrence of such Indebtedness, after giving
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effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio
of the Company is greater than 2.00 to 1.00.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or pay any Indebtedness or other obligation owed to the Company or any
other Restricted Subsidiary of the Company; or (c) transfer any of its property
or assets to the Company or any other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of: (1)
applicable law; (2) this Indenture; (3) customary non-assignment provisions of
any contract or any lease governing a leasehold interest of any Restricted
Subsidiary of the Company; (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the properties or
assets of the Person so acquired; (5) agreements existing on the Issue Date to
the extent and in the manner such agreements are in effect on the Issue Date,
including the Credit Facilities; (6) an agreement governing Indebtedness
incurred to Refinance the Indebtedness issued, assumed or incurred pursuant to
an agreement referred to in CLAUSE (2), (4) or (5) above; PROVIDED, HOWEVER,
that the provisions relating to such encumbrance or restriction contained in any
such Indebtedness are no less favorable to the Company in any material respect
as determined by the Board of Directors of the Company in their reasonable and
good faith judgment than the provisions relating to such encumbrance or
restriction contained in agreements referred to in such CLAUSE (2), (4) or (5).
SECTION 4.14. ADDITIONAL GUARANTEES.
If the Company or any of its Restricted Subsidiaries transfers or
causes to be transferred, in one transaction or a series of related
transactions, any property to any Restricted Subsidiary that is not a Guarantor,
or if the Company or any of its Restricted Subsidiaries shall organize, acquire
or otherwise invest in another Restricted Subsidiary, then such transferee or
acquired or other Restricted Subsidiary shall:
(1) execute and deliver to the Trustee a supplemental indenture in
form satisfactory to the Trustee pursuant to which such Restricted
Subsidiary shall unconditionally guarantee on a senior secured basis all of
the Issuers' obligations under the Notes and this Indenture on the terms
set forth in this Indenture; and
(2) (a) execute and deliver to the Collateral Agent and the Trustee
such amendments to the Collateral Agreements as the Collateral Agent deems
necessary or advisable in order to grant to Collateral Agent, for the
benefit of the Holders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary and a perfected security interest in
the debt securities of such new Subsidiary, subject to the liens under the
Credit Agreement and Permitted Liens, which are owned by the Company or any
Subsidiary and required to be pledged pursuant to the Security Agreement,
(b) deliver to Collateral Agent the certificates representing such Capital
Stock and debt securities, together with (i) in the case of such Capital
Stock, undated stock powers endorsed in blank, and (ii) in the case of such
debt securities, endorsed in blank, in each case executed and delivered by
an Officer of the Company or such Subsidiary, as the case may be;
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(3) cause such new Subsidiary to take such actions necessary or
advisable to grant to the Collateral Agent for the benefit of the Holders
and the Trustee a perfected first priority security interest in the
collateral described in the Security Agreements with respect to such new
Subsidiary, including the filing of Uniform Commercial Code financing
statements in such jurisdictions as may be required by the Security
Agreements or by law or as may be reasonably requested by the Collateral
Agent;
(4) take further action and execute and deliver such other
documents specified in this Indenture or otherwise reasonably requested by
the Trustee or the Collateral Agent to effectuate the foregoing; and
(5) deliver to the Trustee an Opinion of Counsel that such
supplemental indenture and any other documents required to be delivered
have been duly authorized, executed and delivered by such Restricted
Subsidiary and constitutes a legal, valid, binding and enforceable
obligation of such Restricted Subsidiary.
(6) Thereafter, such Restricted Subsidiary shall be a Guarantor for
all purposes of this Indenture.
Notwithstanding the foregoing, neither KHF Sports Oy nor KHF Finland
Oy shall be required to comply with the foregoing for so long as a guarantee by
it shall be a violation of the Finnish Companies Act.
SECTION 4.15. LIMITATION ON CHANGE OF CONTROL.
(a) In the event of a Change of Control, which event shall
constitute a triggering event (hereafter referred to as a "CHANGE OF CONTROL
TRIGGERING EVENT") and thus an event of failure under the terms of the Indenture
within the meaning of subparagraph 212(1)(b)(vii) of the Income Tax Act
(Canada), the Issuers shall make a joint offer to purchase all of their
respective outstanding Notes, as Units, from each Holder pursuant to the offer
described in PARAGRAPH (b) below (the "CHANGE OF CONTROL OFFER") at a purchase
price equal to 101% of the principal amount thereof plus accrued interest, if
any, to the date of purchase.
(b) Within 30 days following the date upon which the Change of
Control Triggering Event occurred (the "CHANGE OF CONTROL DATE"), the Issuers
shall send, by first class mail, a joint offer to each Holder, with a copy to
the Trustee, which offer shall govern the terms of the Change of Control Offer.
The offer to the Holders describing the Change of Control Offer shall contain
all instructions and materials necessary to enable such Holders to tender Notes,
as Units, pursuant to the Change of Control Offer. Such offer shall state:
(1) that the Change of Control Offer is being made pursuant to this
SECTION 4.15 and that all Notes tendered as Units, in whole or in part,
will be accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 60 days from the date such notice is mailed, other than as may be
required by law) (the "CHANGE OF CONTROL PAYMENT DATE");
(3) that any Note not tendered will continue to accrue interest;
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(4) that, unless the Issuers default in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have Notes, as Units, purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, as Units, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Unit completed, to the Paying Agent at the
address specified in the offer describing the Change of Control Offer prior
to the close of business on the third Business Day prior to the Change of
Control Payment Date;
(6) that Holders whose Notes, as Units, are purchased only in part
will be issued new Notes, as Units, in a principal amount equal to the
unpurchased portion of the Notes, as Units, surrendered; PROVIDED that the
Notes comprising each Unit purchased and each new Unit issued shall be in
an original principal amount of $1,000 or integral multiples thereof; and
(7) the circumstances and relevant facts regarding such Change of
Control.
The Issuers will comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of the
Notes, as Units, pursuant to a Change of Control Offer. To the extent that any
provisions of any securities laws or regulations conflict with the provisions in
this SECTION 4.15, the Issuers shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached their obligations under
this SECTION 4.15 by virtue thereof.
Not later than 10:00 a.m., local time in the place of payment, on the
Change of Control Payment Date, the Issuers shall (i) accept for payment Notes,
as Units, or portions thereof tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes, as Units, so
tendered and (iii) deliver to the Trustee Notes, as Units, so accepted together
with an Officers' Certificate stating the Notes, as Units, or portions thereof
being purchased by the Issuers. The Paying Agent shall promptly mail to the
Holders of Units so accepted payment in an amount equal to the purchase price
plus accrued interest, if any, and the Trustee shall promptly authenticate and
mail to such Holders new Units comprising Notes equal in principal amount to any
unpurchased portion of the Notes comprising the Units surrendered. Any Units not
so accepted shall be promptly mailed by the Issuers to the Holders thereof.
Any amounts remaining after the purchase of Units pursuant to a Change
of Control Offer shall be returned by the Trustee to the Issuers and may be used
for any corporate purpose permitted by the Indenture.
The Company and the Subsidiary Issuer shall not be required to make a
Change of Control Offer upon a Change of Control Triggering Event if a third
party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements of this SECTION 4.15 and purchases
all Notes, as Units, validly tendered and not withdrawn under such Change of
Control Offer.
SECTION 4.16. LIMITATION ON ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless: (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors);
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(ii) at least 80% of the consideration received by the Company or the Restricted
Subsidiary, as the case may be, from such Asset Sale shall be in the form of
cash or Cash Equivalents (provided that the amount of any liabilities (as shown
on the most recent applicable balance sheet) of the Company or any such
Restricted Subsidiary (other than liabilities that are by their terms
subordinated to the Notes) that are assumed by the transferee of any such assets
shall be deemed to be cash for purposes of this provision so long as there is no
further recourse to the Company and its Restricted Subsidiaries with respect to
such liabilities) and is received at the time of such disposition; and (iii)
upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset
Sale within 180 days of receipt thereof to make an investment in properties and
assets that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the business of the
Company and its Restricted Subsidiaries as existing on the Issue Date or in
businesses reasonably related thereto ("REPLACEMENT ASSETS") or to repay in full
or in part any Indebtedness (other than the Notes) incurred within 180 days
prior to such Asset Sale and used to acquire Replacement Assets in contemplation
of such Asset Sale.
Subject to the following paragraph, if on the 181st day after an Asset
Sale there remains Net Cash Proceeds which have not been applied as permitted in
clause (iii) of the preceding paragraph or if on an earlier date the Issuers
jointly determine not to apply the Net Cash Proceeds relating to such Asset Sale
as set forth in clause (iii) of the preceding paragraph, then each such event
shall constitute a "NET PROCEEDS OFFER TRIGGER DATE" (and an event of failure
under the terms of the Indenture within the meaning of subparagraph
212(1)(b)(vii) of the Income Tax Act (Canada)), and in the event of a Net
Proceeds Trigger Date then the aggregate amount of such Net Cash Proceeds which
have not been applied on or before such Net Proceeds Offer Trigger Date as
permitted in clause (iii) of the preceding paragraph (each a "NET PROCEEDS OFFER
AMOUNT") shall be applied by the Issuers to make a joint offer to purchase (the
"NET PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT DATE") not less
than 30 nor more than 60 days following the applicable Net Proceeds Offer
Trigger Date, from all Holders on a PRO RATA basis, that amount of their
respective Notes, as Units, equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Notes to be purchased, as Units,
plus accrued and unpaid interest thereon, if any, to the date of purchase;
PROVIDED, HOWEVER, that if at any time any non-cash consideration received by
the Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section.
The Issuers may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of
$10,000,000 resulting from one or more Asset Sales in which case the
accumulation of such amount shall constitute a Net Proceeds Offer Trigger Date
(at which time, the entire unutilized Net Proceeds Offer Amount, and not just
the amount in excess of $10,000,000, shall be applied as required pursuant to
this Section).
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under SECTION 5.01, which
transaction does not constitute a Change of Control, the Surviving Entity shall
be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this Section, and
shall comply with the provisions of this Section with respect to such deemed
sale as if it were an Asset Sale. In addition, the fair market value of such
properties and assets of the Company or its Restricted Subsidiaries deemed to be
sold shall be deemed to be Net Cash Proceeds for purposes of this SECTION 4.16.
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Notwithstanding the immediately preceding paragraphs, the Company and
its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent that (i) at least 80% of
the consideration for such Asset Sale constitutes Replacement Assets; and (ii)
such Asset Sale is for fair market value; PROVIDED that any cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries in
connection with any Asset Sale permitted to be consummated under this paragraph
shall constitute Net Cash Proceeds subject to the provisions of the immediately
preceding paragraphs.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date
contained in subsection (a) above, each offer describing the Net Proceeds Offer
pursuant to this SECTION 4.16 shall be mailed, by first class mail, by the
Issuers not more than 25 days after the Net Proceeds Offer Trigger Date to all
Holders at their last registered addresses as of a date within 15 days of the
mailing of such offer, with a copy to the Trustee. The offer shall contain all
instructions and materials necessary to enable such Holders to tender Notes, as
Units, pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this
SECTION 4.16 and that all Notes tendered as Units, in whole or in part,
will be accepted for payment; PROVIDED, HOWEVER, that if the aggregate
principal amount of Notes tendered as Units in a Net Proceeds Offer plus
accrued interest at the expiration of such offer exceeds the Net Proceeds
Offer Amount, the Issuers shall jointly select the Notes, as Units, to be
purchased on a PRO RATA basis based on amounts tendered (with such
adjustments as may be deemed appropriate by the Company so that only Units
in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as
required by law) (the "PROCEEDS PURCHASE DATE");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Issuers default in making payment therefor,
Notes, as Units, accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have Notes purchased, as Units
pursuant to a Net Proceeds Offer will be required to surrender the Notes,
as Units, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Unit completed, to the Paying Agent at the address
specified in the notice describing the Net Proceeds Offer prior to the
close of business on the third Business Day prior to the Proceeds Purchase
Date; and
(6) that Holders whose Notes, as Units, are purchased only in part
will be issued new Notes, as Units, in a principal amount equal to the
unpurchased portion of the Notes, as Units, surrendered; PROVIDED that the
Notes comprising each Unit purchased and each new Unit issued shall be in
an original principal amount of $1,000 or integral multiples thereof.
Not later than 10:00 a.m., local time in the place of payment, on the
Proceeds Purchase Date, the Issuers shall (i) accept for payment Notes, as
Units, or portions thereof tendered pursuant to the Net Proceeds Offer which are
to be purchased in accordance with ITEM (b)(1) above, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued
interest, if any, of all Notes to be purchased and (iii) deliver to the Trustee
Units so accepted together with an Officers' Certificate stating the Units or
portions thereof being purchased by the Issuers. The Paying Agent shall
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promptly mail to the Holders of Units so accepted payment in an amount equal to
the purchase price plus accrued interest, if any. For purposes of this SECTION
4.16, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Issuers and may be used
for any corporate purpose permitted by this Indenture.
The Issuers shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this SECTION
4.16, the Issuers shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
SECTION 4.16 by virtue thereof.
SECTION 4.17. IMPAIRMENT OF SECURITY INTEREST. Neither the Company nor
any of its Restricted Subsidiaries will take or omit to take any action which
would adversely affect or impair the Liens in favor of the Collateral Agent, on
behalf of itself, the Trustee and the holders of the Notes, with respect to the
Collateral. Neither the Company nor any of its Restricted Subsidiaries shall
grant to any Person, or permit any Person to retain (other than the Collateral
Agent), any interest whatsoever in the Collateral other than Permitted Liens or
the Liens permitted under SECTION 4.18. Neither the Company nor any of its
Restricted Subsidiaries will enter into any agreement that requires the proceeds
received from any sale of Collateral to be applied to repay, redeem, defease or
otherwise acquire or retire any Indebtedness of any Person, other than as
permitted by the Indenture, the Notes, the Intercreditor Agreement and the
Collateral Agreements. The Company shall, and shall cause each Guarantor to, at
their sole cost and expense, execute and deliver all such agreements and
instruments as the Collateral Agent or the Trustee shall reasonably request to
more fully or accurately describe the property intended to be Collateral or the
obligations intended to be secured by the Collateral Agreements. The Company
shall, and shall cause each Restricted Subsidiary to, at their sole cost and
expense, file any such notice filings or other agreements or instruments as may
be reasonably necessary or desirable under applicable law to perfect the Liens
created by the Collateral Agreements at such times and at such places as the
Collateral Agent or the Trustee may reasonably request.
The Company shall take all necessary action to grant to the Collateral
Agent a perfected security interest in and to the Collateral located in Sweden
as soon as practicable. In the event that the Company fails to comply with the
foregoing provision, then additional interest shall accrue on the Notes at a
rate 0.50% per annum if such action has not been completed within 30 business
days after the Issue Date, increasing by an additional 0.25% per annum if such
action has not been completed within 60 business days after the Issue Date and
by an additional 0.25% per annum (for a total increase of 1.00% per annum) if
such action has not been completed within 90 business days after the Issue Date.
All such additional interest shall cease to accrue upon completion of all
necessary action.
SECTION 4.18. LIMITATION ON LIENS.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless: (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the Notes are secured by
a Lien on such property, assets or proceeds that is senior in priority to such
Liens and (ii) in all other cases, the Notes are equally and ratably secured,
except for (A) Liens existing as of the Issue Date to the extent and in the
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manner such Liens are in effect on the Issue Date; (B) Liens securing the Notes
and the Guarantees; (C) Liens securing borrowings under the Credit Facilities,
(whether incurred pursuant to CLAUSE (ii) of the definition of "Permitted
Indebtedness" or any other clause thereof or pursuant to the provisions of
SECTION 4.12) and all additional Obligations thereunder (which Liens may extend
only to or cover the types of collateral securing the Credit Facilities on the
Issue Date); (D) Liens of the Company or a Wholly Owned Restricted Subsidiary of
the Company on assets of any Restricted Subsidiary of the Company; (E) Liens
securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this SECTION 4.18
and which Indebtedness has been incurred in accordance with the provisions of
SECTION 4.12; PROVIDED, HOWEVER, that such Liens (x) are no less favorable to
the Holders and are not more favorable to the lienholders with respect to such
Liens than the Liens in respect of the Indebtedness being Refinanced and (y) do
not extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries not securing the Indebtedness so Refinanced; (F)
Permitted Liens; and (G) Liens incurred with respect to obligations that do not
exceed $2,000,000 at any one time outstanding.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon the intellectual
property of the European Subsidiaries other than the Collateral Agent on behalf
of the holders of the Notes.
SECTION 4.19. CONDUCT OF BUSINESS.
The Company and its Restricted Subsidiaries will not engage in any
businesses other than any business in the sporting goods industry or any
business reasonably related thereto. KHF Sports Oy and Jofa Holding AB shall not
incur any Indebtedness or engage in any business other than the business of
owning their respective intellectual property and the Capital Stock and
Indebtedness of Restricted Subsidiaries. The Company will vote its shares as to
not permit CCM Holdings to incur any indebtedness or engage in any business
other than the business of owning its intellectual property.
SECTION 4.20. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF
SUBSIDIARIES.
The Issuers will not permit or cause any of its Subsidiaries to issue
or sell any Capital Stock (other than director's qualifying shares and other
than to the Issuers or a Wholly-Owned Subsidiary of the Issuers) or permit any
Person (other than the Issuers or a Wholly-Owned Subsidiary of the Issuers) to
own or hold any Capital Stock of any Subsidiary of the Issuers or any Lien or
security interest therein other than the lenders under the Credit Agreement;
PROVIDED, HOWEVER, that this provision shall not prohibit the sale of all of the
Capital Stock of a Restricted Subsidiary in compliance with the provisions of
SECTION 4.16.
SECTION 4.21. REAL ESTATE MORTGAGES AND FILINGS.
With respect to any real property (individually and collectively, the
"PREMISES") with a purchase price of greater than $1,000,000 intended to be
owned by the Issuers or any Restricted Subsidiary subsequent to the Issue Date
to the extent permitted by applicable law:
(1) with respect to properties located outside the Province of
Quebec, the Issuers shall deliver to the Collateral Agent, as mortgagee,
fully-executed counterparts of Mortgages, each dated as of the date of
acquisition of such property, duly executed by the Issuers or the
applicable Subsidiary, together with (i) evidence of the completion (or
satisfactory arrangements for the completion), of all recordings and
filings of such Mortgage as may be necessary or, in the reasonable opinion
of the Collateral Agent desirable, to create a valid, perfected Lien,
subject to
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Permitted Liens and the Liens permitted under SECTION 4.18, against the
properties purported to be covered thereby;
(2) with respect to properties located outside the Province of
Quebec, the Collateral Agent shall have received the mortgagee's title
insurance policies in favor of the Collateral Agent, as mortgagee for the
ratable benefit of the Collateral Agent, the Trustee and the Holders in
amounts and in form and substance and issued by insurers, with respect to
the property purported to be covered by such Mortgage, insuring that title
to such property is marketable and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear of all defects
and encumbrances other than Permitted Liens and the Liens permitted under
SECTION 4.18, and such policies shall also include, to the extent
available, a revolving credit endorsement and such other endorsements as
the Collateral Agent shall reasonably request and shall be accompanied by
evidence of the payment in full of all premiums thereon;
(3) the Issuers shall deliver to the Collateral Agent, with respect
to each of the covered Premises, filings, surveys, local counsel opinions
and fixture filings, along with such other documents, instruments,
certificates and agreements as the Collateral Agent and its counsel shall
reasonably request; and
(4) with respect to properties located in the Province of Quebec,
the Issuers shall deliver to the Quebec Collateral Agent evidence of
registration against such Premises of the notice or summary required under
applicable law to register the applicable Deed of Hypothec, subject to
Permitted Liens and the Liens permitted under Section 4.18, against such
Premises.
SECTION 4.22. LEASEHOLD MORTGAGEE AND FILINGS.
With respect to properties located outside the Province of Quebec, the
Issuers and each of its Restricted Subsidiaries shall deliver Mortgages with
respect to the Issuers' leasehold interests in the premises (the "LEASED
PREMISES") occupied by the Issuers pursuant to leases entered into after the
Issue Date (collectively, the "LEASES", and individually, a "LEASE").
Prior to the effective date of any Lease, the Issuers and such
Subsidiaries shall provide to the Trustee with respect to properties located
outside the Province of Quebec all of the items described in clauses (2) and (3)
of SECTION 4.21 and in addition shall use its reasonable commercial efforts to
obtain an agreement executed by the lessor of the Lease, whereby the lessor
consents to the Mortgage or the Deed of Hypothec, as applicable, and waives or
subordinates its landlord Lien (whether granted by the instrument creating the
leasehold estate or by applicable law), if any, and which shall be entered into
by the Collateral Agent.
SECTION 4.23. ADDITIONAL AMOUNTS.
(a) All payments made by an Issuer, any Guarantor or a Surviving
Entity as well as all payments made by a trustee pursuant to the provisions
hereof under ARTICLE 8 (each a "PAYOR") under or with respect to the Notes will
be made free and clear of and without withholding or deduction for or on account
of any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed or levied by or on behalf of Canada or any
subdivision thereof or by any authority or agency therein or thereof having
power to tax (hereinafter "TAXES") unless such Payor is required to withhold or
deduct Taxes by law or by the interpretation or administration thereof. If a
Payor is so required to withhold or deduct any amount of interest for or on
account of Taxes from any payment made under or with respect to the Notes such
Payor will pay such additional amounts of interest ("ADDITIONAL AMOUNTS") as may
be necessary such that the net amount received in respect of such payment by
each Holder
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(including Additional Amounts) after such withholding or deduction will not be
less than the amount the Holder would have received if such Taxes had not been
required to be so withheld or deducted; PROVIDED that no Additional Amounts will
be payable with respect to a payment made to Holder (an "EXCLUDED HOLDER") (i)
with which the Payor or Sport Maska Inc. does not deal at arm's length (within
the meaning of the Income Tax Act (Canada)) at the time of making such payment
or (ii) which is subject to such Taxes by reason of any connection between such
Holder and Canada or any province or territory thereof (other than the mere
holding of Units or the receipt of payments thereunder) including, without
limitation, a Holder who is a resident of Canada within the meaning of the
Income Tax Act (Canada) or a non-resident insurer which carries on an insurance
business in Canada and in a country other than Canada. Each Payor will also (i)
make such withholding or deduction and (ii) remit the full amount deducted or
withheld to the relevant authority in accordance with applicable law. The Payor
will furnish to the Holders of the Units, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law, certified copies of tax
receipts evidencing such payment by such Payor. The Issuers will indemnify and
hold harmless each Holder (other than all Excluded Holders) for the amount of
(i) any Taxes not withheld or deducted by a Payor and levied or imposed and paid
by such Holder as a result of payments made under or with respect to the Notes,
(ii) any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, and (iii)( any Taxes imposed with respect to
any reimbursement under clauses (i) or (ii) above.
(b) At least 30 days prior to each date on which any payment under
or with respect to the Notes is due and payable, if a Payor is aware that it
will be obligated to pay Additional Amounts with respect to such payment, such
Payor will deliver to the Trustee an Officers' Certificate stating the fact that
such Additional Amounts will be payable, the amounts so payable and will set
forth such other information necessary to enable the Trustee to pay such
Additional Amounts to Holders on the payment date. Whenever in this Indenture
there is mentioned, in any context, the payment of principal (and premium, if
any), interest or any other amount payable under or with respect to any Note,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION AND SALE OF ASSETS.
(a) Each Issuer shall not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Issuers to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of such Issuer's assets
(determined, in the case of the Company, on a consolidated basis for the Company
and the Company's Restricted Subsidiaries) whether as an entirely or
substantially as an entirety to any Person unless:
(i) either (A) such Issuer shall be the surviving or continuing
corporation or (B) the Person (if other than such Issuer) formed by such
consolidation or into which such Issuer is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of such Issuer and of its Restricted
Subsidiaries substantially as an entirety (the "SURVIVING ENTITY"): (x)
shall be a corporation organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia (or, in the
case of a merger, amalgamation, continuation, consolidation or sale
involving Sport Maska Inc., Canada or any Political subdivision thereof);
and (y) shall expressly assume, by supplemental indenture (in form and
substance satisfactory to the Trustee), executed and delivered to the
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Trustee, the due and punctual payment (as primary obligor or as guarantor,
as the case may be) of the principal of, and premium, if any, and interest
on all of the Notes and the performance of every covenant of the Notes,
this Indenture and the Registration Rights Agreement on the part of such
Issuer or the Subsidiary Issuer, as the case may be, to be performed or
observed;
(ii) immediately after giving effect to such transaction and the
assumption contemplated by CLAUSE (a)(i)(b)(y) of this SECTION 5.01
(including giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred in connection with or in respect of
such transaction), (a) such Issuer or such Surviving Entity, as the case
may be, shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of such Issuer immediately prior to such transaction
and (b) the Company shall be able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with SECTION
4.12;
(iii) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by CLAUSE (a)(i)(b)(y) of this
SECTION 5.01 (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing; and
(iv) such Issuer or the Surviving Entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition complies with the applicable provisions of
this Indenture and that all conditions precedent in this Indenture relating
to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of an Issuer, the Capital Stock of which
constitutes all or substantially all of the properties and assets of that
Issuer, shall be deemed to be the transfer of all or substantially all of the
properties and assets of that Issuer.
Notwithstanding anything in this SECTION 5.01 to the contrary, such
Issuer may merge with an Affiliate that has no material assets or liabilities
and that is incorporated or organized solely for the purpose of reincorporating
or reorganizing such Issuer in another state of the United States or the
District of Columbia, in the case of the Company, or in Canada, or any political
subdivision thereof, in the case of the Subsidiary Issuer, without complying
with CLAUSE (a)(ii) of this SECTION 5.01.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of an Issuer in accordance with SECTION 5.01
in which such Issuer is not the continuing corporation, the successor Person
formed by such consolidation or into which that Issuer is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, that Issuer under this
Indenture, the Notes and the Units with the same effect as if such surviving
entity had been named as such, and that Issuer shall be released from the
obligations under the Notes, the Units and this Indenture.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(1) the Company or Subsidiary Issuer fails to pay interest on any
Notes included in a Unit when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company or Subsidiary Issuer fails to pay the principal on
any Notes included in a Unit, when such principal becomes due and payable,
at maturity, upon redemption or otherwise (including the failure to make a
payment to purchase Units tendered pursuant to a Change of Control Offer or
a Net Proceeds Offer);
(3) a default in the observance or performance of any covenant or
agreement of an Issuer contained in this Indenture which default continues
for a period of 30 days after the Company receives written notice
specifying the default (and demanding that such default be remedied) from
the Trustee or the Holders of at least 25% of the outstanding principal
amount of the Units (except in the case of a default with respect to
SECTION 5.01, which will constitute an Event of Default with such notice
requirement but without such passage of time requirement);
(4) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise
cured within 20 days of receipt by the Company or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal
amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated (in each case with respect to which
the 20-day period described above has elapsed), aggregates $2,000,000 or
more at any time;
(5) one or more judgments in an aggregate amount in excess of
$2,000,000 (other than judgments as to which an insurance company rated A-
or better by AM Best and having minimum assets of $250 million has accepted
full liability, subject only to customary deductibles) shall have been
rendered against the Company or any of its Restricted Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and non-appealable;
(6) the Company, the Subsidiary Issuer or any Significant
Subsidiary (A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (C) consents to the appointment of a
Custodian of it or for substantially all of its property, (D) consents to
or acquiesces in the institution of a bankruptcy or an insolvency
proceeding against it, (E) makes a general assignment for the benefit of
its creditors, or (F) takes any corporate action to authorize or effect any
of the foregoing;
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company, the Subsidiary Issuer or any
Significant Subsidiary in an involuntary case or proceeding under any
Bankruptcy Law, which shall (A) approve as properly filed a
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petition seeking reorganization, arrangement, adjustment or composition in
respect of the Company, the Subsidiary Issuer or any Significant
Subsidiary, (B) appoint a Custodian of the Company, the Subsidiary Issuer
or any Significant Subsidiary or for substantially all of its property or
(C) order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period of 60
consecutive days;
(8) any Collateral Agreement at any time for any reason shall cease
to be in full force and effect, or ceases to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby,
superior to and prior to the rights of all third Persons other than the
holders of Permitted Liens and subject to no other Liens except as
expressly permitted by the Indenture, or any judgment creditor having a
Lien against any Collateral commences legal action to foreclose such Lien
or otherwise exercise its remedies against any Collateral and the value of
the claim of such creditor is greater than $1.5 million; or
(9) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect or any Guarantee of a Significant Subsidiary is declared
to be null and void and unenforceable or any Guarantee of a Significant
Subsidiary is found to be invalid or any Guarantor that is a Significant
Subsidiary denies its liability under its Guarantee (other than by reason
of release of a Guarantor in accordance with the terms of this Indenture).
SECTION 6.02. ACCELERATION.
(a) If an Event of Default (other than an Event of Default
specified in SECTION 6.01(6) or (7) with respect to an Issuer) occurs and is
continuing and has not been waived pursuant to SECTION 6.04, then the Trustee or
the Holders of at least 25% in principal amount of outstanding Units may declare
the principal of and accrued interest on all the Units to be due and payable by
notice in writing to the Company and the Trustee specifying the respective Event
of Default and that it is a "notice of acceleration" (the "ACCELERATION
NOTICE"), and the same shall become immediately due and payable.
(b) If an Event of Default specified in SECTION 6.01(6) or (7) with
respect to an Issuer occurs and is continuing, then all unpaid principal of, and
premium, if any, and accrued and unpaid interest on all of the outstanding Units
shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
(c) At any time after a declaration of acceleration with respect to
the Units in accordance with this SECTION 6.02, the Holders of a majority in
principal amount of the Units may rescind and cancel such declaration and its
consequences (i) if the rescission would not conflict with any judgment or
decree; (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration; (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid;
(iv) if the Issuers have paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances; and (v) in
the event of the cure or waiver of an Event of Default of the type described in
SECTION 6.01(6) and (7), the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default of the type described in SECTION 6.01(1) or (2)
occurs, the Issuer of those Notes will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Notes, the
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whole amount then due and payable on such Notes for principal and any premium
and interest, at the rate or rates prescribed therefor in such Notes, and, in
addition thereto, such further amount as will be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to SECTIONS 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of or interest on any Note as specified in CLAUSES (1)
and (2) of SECTION 6.01. When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 6.05. CONTROL BY MAJORITY.
Subject to SECTION 2.09, the Holders of a majority in aggregate
principal amount of the outstanding Units may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, including, without
limitation, any remedies provided for in SECTION 6.03. Subject to SECTION 7.01
however, the Trustee may refuse to follow any direction that the Trustee
reasonably believes conflicts with any law or this Indenture, which the Trustee
determines may be unduly prejudicial to the rights of another Holder, or which
may involve the Trustee in personal liability; PROVIDED that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may not institute any proceeding with respect to this
Indenture unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the outstanding
Units make a written request to the Trustee to institute proceedings in
respect of that Event of Default;
(3) such Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Units do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
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The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal and premium, if any, or
interest on any Note on or after the respective due dates set forth in such Note
(including upon acceleration thereof) or the institution of any proceeding with
respect to this Indenture or any remedy hereunder, including without limitation
acceleration, by the Holders of a majority in principal amount of outstanding
Notes; PROVIDED that upon institution of any proceeding or exercise of any
remedy, such Holders provide the Trustee with prompt notice thereof.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest specified
in CLAUSE (1) or (2) of SECTION 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company, the Subsidiary Issuer or any other obligor on the Notes for the whole
amount of principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest at the rate set forth in
SECTION 4.01 and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company, the
Subsidiary Issuer or any other obligor upon the Notes, any of their respective
creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same, and any Custodian in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, taxes, disbursements
and advances of the Trustee, its agent and counsel, and any other amounts due
the Trustee under SECTION 7.07. The Issuers' payment obligations under this
SECTION 6.09 shall be secured in accordance with the provisions of SECTION 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this ARTICLE
SIX, it shall pay out the money in the following order:
First: to the Trustee for amounts due under SECTION 7.07;
Second: if the Holders are forced to proceed against the Issuers
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Fourth: to the Issuers or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this SECTION 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This SECTION 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to SECTION 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Issuer, the
Trustee, and the Holders will be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders will continue as though no such proceeding has been instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
The duties and responsibilities of the Trustee shall be as provided by
the TIA and as set forth herein.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its
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exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are specifically
set forth in this Indenture, and no covenants or obligations shall be
implied in this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; PROVIDED,
HOWEVER, that in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but
shall need not verify the contents thereof.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of PARAGRAPH (b) of
this SECTION 7.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to SECTION 6.02, 6.04 or 6.05 of this Indenture.
(d) No provision of this Indenture or the Collateral Agreements
shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this SECTION 7.01
and SECTION 7.02 of this Indenture.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to SECTION 7.01:
(a) The Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any document whether in its original or
facsimile form reasonably believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
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(b) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering, or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officer's Certificate.
(c) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel will be full and complete
authorization and protection in respect of any action taken, suffered, or
omitted by it hereunder in good faith and in reliance thereon.
(d) The Trustee may act through its attorneys, agents or
independent contractors shall not be responsible for the misconduct or
negligence of any of them.
(e) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers under this Indenture.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, upon reasonable notice to the Company, to
examine the books, records, and premises of the Company, personally or by agent
or attorney and to consult with the officers and representatives of the Company,
including the Company's accountants and attorneys at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request, order or direction.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) Any permissive right or power available to the Trustee under
this Indenture shall not be construed to be a mandatory duty or obligation.
(j) Delivery of reports, information and documents to the Trustee
under SECTION 4.08 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Issuers' compliance with any of the covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(k) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(l) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
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(m) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent (including any Collateral Agent
appointed pursuant to any Security Agreement), custodian and other Person
employed to act hereunder.
(n) The Trustee may request that each of the Issuers deliver an
Officer's Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person authorized to
sign an Officer's Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
(o) The Trustee shall not be liable to any person, for special,
indirect, consequential or punitive damages or for any lost profits.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
(a) The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Subsidiary of the Company, or their respective Affiliates, with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with SECTIONS 7.10 and 7.11 of this
Indenture, and the Trustee is subject to TIA SECTIONS 310(b) and 311.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
(a) The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Units or the Notes, and it shall not be
accountable for the Issuers' use of the proceeds from the Units, and it shall
not be responsible for any statement of the Issuers in this Indenture, the Units
or the Notes other than the Trustee's certificate of authentication or any
document used in connection with the offer or sale of the Notes.
SECTION 7.05. NOTICE OF DEFAULT.
(a) If a Default or an Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to the Issuers and
each Holder in the manner and to the extent provided in TIA SECTION 313(c)
notice of the Default or Event of Default within 45 days after such Default or
Event of Default occurs, unless such Default or Event of Default has been cured.
Except in the case of a Default or an Event of Default in payment of principal
of, or interest on, any Note, including the failure to make payment on the
Change of Control Payment Date pursuant to a Change of Control Offer, the
Trustee may withhold the notice of a Default or an Event of Default if and so
long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or officers charged with such
responsibility in good faith determines that withholding the notice is in the
interest of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each April 1 beginning with April 1, 2003, the
Trustee shall, to the extent that any of the events described in SECTION 313(a)
of the TIA occurred within the previous twelve months, but not otherwise, mail
to each Holder a brief report dated as of such date that complies with SECTION
313(a) of the TIA. The Trustee also shall comply with SECTIONS 313(b) and (c) of
the TIA.
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuers and filed with the SEC and each stock exchange or market,
if any, on which the Units are listed or quoted.
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The Issuers shall promptly notify the Trustee if the Notes become
listed or quoted on any stock exchange or market and the Trustee shall comply
with SECTION 313(d) of the TIA.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Issuers shall pay to the Trustee from time to time compensation
for its services in its role as Trustee and Collateral Agent as may be agreed
upon. The Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Issuers shall reimburse the Trustee upon
request for all reasonable expenses, reimbursements and advances incurred or
made by it in connection with the performance of its duties under this
Indenture, except any such expense as may arise from its negligence, bad faith
or willful misconduct. Such expenses shall include but not be limited to the
reasonable fees and expenses of the Trustee's agents and counsel. The
obligations under this SECTION 7.07 are joint and several obligations of the
Issuers and the Subsidiary Guarantors.
The Issuers, jointly and severally, shall indemnify each of the
Trustee (or any predecessor Trustee), for, and hold them harmless against, any
loss, liability, damage, claim or expense (including reasonable fees and
expenses of counsel), including taxes (other than taxes based on the income of
the Trustee) incurred by them except to the extent caused by any negligence, bad
faith or willful misconduct on their part, arising out of or in connection with
the acceptance or administration of this trust including the costs and expenses
of enforcing this Indenture against the Issuers (including this SECTION 7.07)
and defending themselves against any claim (whether asserted by any Holder, any
Issuer or any Subsidiary Guarantor) or liability in connection with the exercise
or performance of any of their rights, powers or duties hereunder.
To secure the Issuers' payment obligations in this SECTION 7.07, the
Trustee shall have a lien prior to the Units on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Units.
When the Trustee incurs expenses or renders services after an Event of
Default specified in SECTION 6.01(f) or (g) of this Indenture occurs, such
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligations of the Issuers under this SECTION 7.07 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment, as provided in this SECTION 7.08.
The Trustee may resign at any time by so notifying the Issuers. The
Holders of a majority in principal amount of the outstanding Units may remove
the Trustee by so notifying the Issuers and the Trustee and may appoint a
successor Trustee. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with SECTION 7.10 after written
request by the Issuers that it do so;
(b) the Trustee is adjudged bankrupt or insolvent;
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(c) a receiver or other public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the outstanding Notes comprising the Units may appoint a successor
Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in SECTION 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The Issuers and the successor Trustee shall mail notice of the
successor Trustee's succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee is no longer eligible under or otherwise fails to
comply with SECTION 7.10, any Holder who satisfies the requirements of TIA
SECTION 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
The Issuers shall give notice of any resignation and any removal of
the Trustee and each appointment of a successor Trustee to all Holders. Each
notice shall include the name of the successor Trustee and the address of its
corporate trust office.
Notwithstanding any resignation or replacement of the Trustee pursuant
to this SECTION 7.08, the Issuer's obligations under SECTION 7.07 of this
Indenture shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
Person the resulting, surviving or transferee Person without any further act
shall, if such resulting, surviving or transferee Person is otherwise eligible
hereunder, be the successor Trustee; PROVIDED, HOWEVER, that such Person shall
be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
(a) This Indenture shall always have a Trustee who satisfies the
requirements of TIA SECTIONS 310(a)(1), (2), (3) and (5). The Trustee (or, in
the case of a corporation included in a bank holding company system, the related
bank holding company) shall have combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA SECTION 310(a)(2). The Trustee shall
comply with TIA SECTION 310(b); PROVIDED, HOWEVER, that there shall be excluded
from the operation of
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TIA SECTION 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of the Issuers
are outstanding, if the requirements for such exclusion set forth in TIA SECTION
310(b)(1) are met. The provisions of TIA SECTION 310 shall apply to the Company
and its Subsidiaries, as obligor of the Notes.
(b) If the Trustee has or acquires a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee will either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUERS.
The Trustee shall comply with TIA SECTION 311(a), excluding any
creditor relationship listed in TIA SECTION 311(b). A Trustee who has resigned
or been removed shall be subject to TIA SECTION 311(a) to the extent indicated
therein. The provisions of TIA SECTION 311(a) shall apply to the Issuers and
their Subsidiaries, as obligor on the Notes.
SECTION 7.12. TRUSTEE AS COLLATERAL AGENT.
References to the Trustee IN SECTIONS 7.01(f), 7.02, 7.03, 7.04, and
7.07 shall include the Trustee in its role as Collateral Agent.
SECTION 7.13. CO-TRUSTEES, CO-COLLATERAL AGENT AND SEPARATE TRUSTEES,
COLLATERAL AGENT.
At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Collateral may at the time
be located, the Issuers and the Trustee shall have power to appoint, and, upon
the written request of the Trustee or of the Holders of at least 25% in
principal amount of the Units outstanding, the Issuers shall for such purpose
join with the Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the Trustee,
of all or any part of the Collateral, to act as co-Collateral Agent, jointly
with the Collateral Agent, or to act as separate trustees or Collateral Agent of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Issuers do not join in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default has occurred and is continuing, the Trustee alone
shall have power to make such appointment.
Should any written instrument from the Issuers be required by any
co-trustee, co-Collateral Agent or separate trustee or separate Collateral Agent
so appointed for more fully confirming to such co-trustee or separate trustee
such property, title, right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Issuers.
Every co-trustee, co-collateral agent or separate trustee or separate
collateral agent shall, to the extent permitted by law, but to such extent only,
be appointed subject to the following terms, namely:
(a) The Notes and Units shall be authenticated and delivered, and
all rights, powers, duties and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely, by
the Trustee.
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(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Trustee or
by the Trustee and such co-trustee or separate trustee jointly, or by the
Collateral Agent and such co-Collateral Agent or separate Collateral Agent,
jointly as shall be provided in the instrument appointing such co-trustee or
separate trustee, Collateral Agent or co-Collateral Agent, except to the extent
that under any law of any jurisdiction in which any particular act is to be
performed, the Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee, Collateral Agent or
co-Collateral Agent.
(c) The Trustee at any time, by an instrument in writing executed
by it, with the concurrence of the Issuers evidenced by a Board Resolution, may
accept the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case an Event of Default has occurred and is
continuing, the Trustee shall have power to accept the resignation of, or
remove, any such co-trustee, co-collateral agent or separate trustee, separate
collateral agent without the concurrence of the Issuers. Upon the written
request of the Trustee, the Issuers shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A successor to any
co-trustee, co-collateral agent or separate trustee, separate collateral agent
so resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee, co-collateral agent, separate trustee or
separate collateral agent hereunder shall be personally liable by reason of any
act or omission of the Trustee, or any, other such trustee hereunder.
(e) Any act of Holders delivered to the Trustee or Collateral Agent
shall be deemed to have been delivered to each such co-trustee, co-collateral
agent, separate trustee and separate collateral agent.
SECTION 7.14. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required herein or by law. The Trustee
will be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Issuers.
SECTION 7.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE ISSUERS.
Any application by the Trustee for written instructions from the
Issuers may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Issuers actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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SECTION 7.16. CONCERNING THE TRUSTEE AND THE COLLATERAL.
The Trustee is hereby authorized to enter into, or cause any
Collateral Agent to enter into, any Related Document (as defined in the Pledge
and Security Agreement) or any other document necessary or appropriate in
connection with any such Related Document.
The Trustee shall have no duty to act outside of the United States in
respect of any Collateral located in any jurisdiction other than the United
States ("Foreign Collateral") but shall to the extent required to create Liens
on the Foreign Collateral, or on part thereof, for the benefit of the Holders
and at the specific request of a majority in aggregate principal amount of the
Units, or the Issuers appoint for and on behalf of the Holders one of more
Collateral Agents to act on behalf of the Holders with respect to such Foreign
Collateral. The duties and responsibilities of the Trustee with respect to any
Collateral Agent and any Collateral are limited to those set forth in this
Article Seven.
Both before and after an Event of Default, the Trustee shall have no
duty to supervise or monitor such Collateral Agent or its performance, and no
liability for any acts or omissions of such Collateral Agent; PROVIDED that (x)
if a Responsible Officer has actual knowledge of willful misconduct or
negligence of such Collateral Agent, the Trustee may replace such Collateral
Agent with a successor Collateral Agent which it may appoint and (y) the Trustee
shall satisfy itself that any instructions given by the Trustee to such
Collateral Agent have been carried out; (i) the Trustee shall give to such
Collateral Agent such instructions to make effective the Liens granted by the
Collateral Agreements as shall be stated to be necessary in the Opinions of
Counsel furnished pursuant to SECTION 12.03 of this Indenture with respect to
the Foreign Collateral with respect to which any such Collateral Agent is acting
and the Liens granted therein; (ii) the Trustee shall give notice to such
Collateral Agent of any Event of Default of which a Responsible Officer has
actual knowledge; (iii) the Trustee may, but has no obligation to, request
information from such Collateral Agent with respect to realization on Foreign
Collateral.
SECTION 7.17. LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF COLLATERAL;
INDEMNIFICATION.
(a) Beyond the exercise of reasonable care in the custody thereof,
the Trustee shall have no duty as to any Collateral in its possession or control
or in the possession or control of any agent or bailee or any income thereon or
as to preservation of rights against prior parties or any other rights
pertaining thereto and the Trustee shall not be responsible for filing any
financing or continuation statements or recording any documents or instruments
in any public office at any time or times or otherwise perfecting or maintaining
the perfection of any security interest in the Collateral. The Trustee shall be
deemed to have exercised reasonable care in the custody of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which it accords its own property and shall not be liable or responsible for any
loss or diminution in the value of any of the Collateral, by reason of the act
or omission of any carrier, forwarding agency or other agent or bailee selected
by the Trustee in good faith.
(b) The Trustee shall 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 of any action or omission to
act on its part hereunder, except to the extent such action or omission
constitutes negligence, bad faith or willful misconduct on the part of the
Trustee, for the validity or sufficiency of the Collateral or any agreement or
assignment contained therein, for the validity of the title of the Issuers to
the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral.
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SECTION 7.18. ASSIGNMENT OF RIGHTS, NOT ASSUMPTION OF DUTIES.
Anything herein contained to the contrary notwithstanding, (a) the
Issuers shall remain liable under each of the Transaction Documents to which
they are a party to the extent set forth therein to perform all of their duties
and obligations thereunder to the same extent as if this Indenture had not been
executed, (b) the exercise by the Trustee, the Collateral Agents or the Holders
of any of their rights, remedies or powers hereunder shall not release the
Issuers from any of their duties or obligations under each of the Transaction
Documents to which they are a party and (c) neither the Holders, the Collateral
Agents nor the Trustee shall have any obligation or liability under any of the
Transaction Documents to which the Issuers are a party by reason of or arising
out of this Indenture, nor shall the Holders, the Collateral Agents or the
Trustee be obligated to perform any of the obligations or duties of the Issuers
thereunder or, except as expressly provided herein with respect to the Trustee,
to take any action to collect or enforce any claim for payment assigned
hereunder or otherwise.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Issuers may, at their joint option and at any time, elect
to have either PARAGRAPH (b) or PARAGRAPH (c) below be applied to the
outstanding Units upon compliance with the applicable conditions set forth in
PARAGRAPH (d).
(b) Upon the Issuers' exercise under PARAGRAPH (a) of the option
applicable to this PARAGRAPH (b), the Issuers and the Guarantors shall be deemed
to have been released and discharged from their obligations with respect to the
outstanding Units on the date the applicable conditions set forth below are
satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal
Defeasance means that the Issuers shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of the Sections
and matters under this Indenture referred to in (i) and (ii) below, and to have
satisfied all their other obligations under such Notes and this Indenture
insofar as such Notes are concerned, except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
PARAGRAPH (d) below and as more fully set forth in such paragraph payments in
respect of the principal of and interest on such Notes when such payments are
due and (ii) obligations listed in SECTION 8.03, subject to compliance with this
SECTION 8.01. The Issuers may jointly exercise their option under this paragraph
(b) notwithstanding the prior exercise of their option under PARAGRAPH (c) below
with respect to the Notes.
(c) Upon the Issuers' exercise under PARAGRAPH (a) of the option
applicable to this PARAGRAPH (c), the Issuers shall be released and discharged
from their obligations under any covenant contained in ARTICLE FIVE, SECTIONS
4.05 and 4.08, and SECTIONS 4.10 through 4.20 with respect to the outstanding
Notes on and after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed
to be not "outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Notes, the Issuers may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in
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any other document and such omission to comply shall not constitute a Default or
an Event of Default under SECTION 6.01(3) or 6.01(4), but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Issuers' exercise under PARAGRAPH (a) hereof of
the option applicable to this PARAGRAPH (C), subject to the satisfaction of the
conditions set forth in SECTION 8.03, SECTIONS 6.01(3), 6.01(4), 6.01(5) and
6.01(6) shall not constitute EVENTS OF DEFAULT.
(d) The following shall be the conditions to application of either
PARAGRAPH (b) or PARAGRAPH (c) above to the outstanding Notes:
(1) The Issuers shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in form
and substance reasonably satisfactory to the Trustee, U.S. Legal Tender or
U.S. Government Obligations or a combination thereof in such amounts and at
such times as are sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of and
interest on the outstanding Notes to maturity or redemption, in each case
not later than one day before the due date of any payment; PROVIDED,
HOWEVER, that the Trustee (or other qualifying trustee) shall have received
an irrevocable written order from the Issuers instructing the Trustee (or
other qualifying trustee) to apply such U.S. Legal Tender or the proceeds
of such U.S. Government Obligations to said payments with respect to the
Notes to maturity or redemption;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default from
bankruptcy or insolvency events are concerned at any time in the period
ending on the 91st day after the date of deposit (other than a Default or
Event of Default resulting from the Incurrence of Indebtedness, all or a
portion of which will be used to defease the Notes concurrently with such
Incurrence);
(3) Such Legal Defeasance or Covenant Defeasance shall not result
in a Default under this Indenture or a breach or violation of, or
constitute a default under, this Indenture or any other material instrument
or agreement to which the Issuers or any of their Subsidiaries is a party
or by which the Issuers or their property is bound;
(4) (i) In the event the Issuers elect PARAGRAPH (b) hereof, the
Issuers shall have jointly delivered to the Trustee an Opinion of Counsel
in the United States, reasonably satisfactory to the Trustee, confirming
that (A) the Issuers have received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the Issue Date, there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall state
that, Holders of the Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and the defeasance
contemplated hereby and will be subject to federal income tax in the same
amounts and in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred or (ii) in the event the
Issuers elect PARAGRAPH (c) hereof, the Issuers shall deliver to the
Trustee an Opinion of Counsel in the United States, in form and substance
reasonably satisfactory to the Trustee, to the effect that Holders of the
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and the defeasance contemplated hereby
and will be subject to federal income tax in the same amounts and in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(5) The Issuers shall have jointly delivered to the Trustee an
Officers' Certificate stating that the deposit under CLAUSE (1) was not
made by the Issuers with the intent of preferring
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the Holders over any other creditors of the Issuers or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Issuers or others;
(6) The Issuers shall have jointly delivered to the Trustee an
Opinion of Counsel, reasonably satisfactory to the Trustee, to the effect
that (A) the trust funds will not be subject to the rights of holders of
Indebtedness of the Issuers other than the Notes and (B) assuming no
intervening bankruptcy of the Issuers between the date of deposit and the
91st day following the date of deposit and that no Holder of Notes is an
insider of the Issuers, after the 91st day following the date of deposit,
the trust funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar law affecting creditors' rights
generally; and
(7) The Issuers have jointly delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by this
SECTION 8.01 have been complied with.
Notwithstanding the foregoing, the Opinion of Counsel required by SECTION
8.01(d)(4)(i) above with respect to a Legal Defeasance need not be delivered if
all Notes, as Units, not theretofore delivered to the Trustee for cancellation
(1) have become due and payable or (2) will become due and payable on the
maturity date within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Issuers.
In the event all or any portion of the Notes, as Units, are to be
redeemed through such irrevocable trust, the Issuers must make arrangements
reasonably satisfactory to the Trustee, at the time of such deposit, for the
giving of the notice of such redemption or redemptions by the Trustee in the
name and at the expense of the Issuers.
SECTION 8.02. SATISFACTION AND DISCHARGE.
In addition to the Issuers' rights under SECTION 8.01, the Issuers may
terminate all of their obligations under this Indenture (subject to SECTION
8.03), when:
(1) either:
(a) all Units and Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Units and Notes which have been
replaced or paid as provided in SECTION 2.07 and Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Issuers and thereafter repaid to the Issuers or discharged from such trust) have
been delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (ii) will become due and payable
at their stated maturity within one year or (iii) are to be called for
redemption within one year under arrangement satisfactory to the Trustee, and
the Issuers have jointly irrevocably deposited or caused to be deposited with
the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest and additional
interest, if any, on the Notes to the date of deposit together with irrevocable
joint instructions from the Issuers directing the Trustee to apply such funds to
the payment thereof at maturity or redemption, as the case may be;
(2) the Issuers have paid or caused to be paid all other sums
payable hereunder by the Issuers; and
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(3) the Issuers have jointly delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 8.03. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the satisfaction and discharge of this Indenture and
of the Notes referred to in SECTION 8.01 or 8.02, the respective obligations of
the Issuers and the Trustee under SECTIONS 2.02, 2.03, 2.04, 2.05, 2.06, 2.07,
2.10, 2.13, 4.01, 4.02 and 6.07, ARTICLE SEVEN and SECTIONS 8.05, 8.06 and 8.07
shall survive until the Notes are no longer outstanding, and thereafter the
obligations of the Issuers and the Trustee under SECTIONS 7.07, 8.05, 8.06 and
8.07 shall survive. Nothing contained in this ARTICLE EIGHT shall abrogate any
of the obligations or duties of the Trustee under this Indenture.
SECTION 8.04. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
Subject to SECTION 8.07, after (i) the conditions of SECTION 8.01 or
8.02 have been satisfied, (ii) the Issuers have paid or caused to be paid all
other sums payable hereunder by the Issuers and (iii) the Issuers have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent referred to in CLAUSE (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Issuers' obligations under this Indenture except for those surviving obligations
specified in SECTION 8.03.
SECTION 8.05. APPLICATION OF TRUST MONEYS.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
SECTION 8.01. The Trustee shall apply the deposited U.S. Legal Tender or the
U.S. Government obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to SECTION 8.01, to the payment of principal of
and interest on the Notes. Anything in this ARTICLE EIGHT to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuers from time to
time upon the Issuers' request any U.S. Legal Tender or U.S. Government
Obligations held by it as provided in SECTION 8.01(d) which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO THE ISSUERS; UNCLAIMED MONEY.
Subject to SECTIONS 7.07, 8.01 and 8.02, the Trustee and the Paying
Agent shall promptly pay to the Issuers upon request any excess U.S. Legal
Tender or U.S. Government Obligations held by them at any time. The Trustee and
the Paying Agent will pay to the Issuers upon receipt by the Trustee or the
Paying Agent, as the case may be, of a written request from the Issuers any
money held by it for the payment of principal or interest that remains unclaimed
for two years after payment to the Holders is required; PROVIDED, HOWEVER, that
the Trustee and the Paying Agent before being required to make any payment may,
but need not, at the expense of the Issuers cause to be published once in a
newspaper of general circulation in the City of
New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Issuers. After payment to the Issuers, Holders entitled to
money must look solely to the
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Issuers for payment as general creditors unless an applicable abandoned property
law designated another Person, and all liability of the Trustee or Paying Agent
with respect to such money shall thereupon cease.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with SECTION 8.01 or 8.02 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuers' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
SECTION 8.01 or 8.02 until such time as the Trustee or Paying Agent is permitted
to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with SECTION 8.01 or 8.02; PROVIDED, HOWEVER, that if the Issuers have made any
payment of interest on or principal of any Notes because of the reinstatement of
its obligations, the Issuers shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Issuers and the Guarantors, when authorized by a Board Resolution,
and the Trustee, together, may amend or supplement this Indenture, the Notes,
the Parent Guarantee or the Guarantees without notice to or consent of any
Holder:
(1) to cure any ambiguity, defect or inconsistency; PROVIDED that
such amendment or supplement does not adversely affect the rights of any
Holder in any material respect;
(2) to comply with ARTICLE FIVE;
(3) to provide for uncertificated Units, Notes or Guarantees in
addition to or in place of certificated Notes or Guarantees;
(4) to comply with any requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder;
(6) to provide for issuance of the Exchange Units, which will have
terms substantially identical in all material respects to the Initial Units
(except that the transfer restrictions contained in the Initial Notes will
be modified or eliminated, as appropriate), and which will be treated
together with any outstanding Initial Units as a single issue of
securities; or
(7) to make any other change that does not adversely affect in any
material respect the rights of any Holders hereunder;
PROVIDED that the Issuers have delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate stating that such amendment or supplement complies
with the provisions of this SECTION 9.01.
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SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to SECTION 6.07, the Issuers and the Guarantors, when
authorized by a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal
amount of the outstanding Notes comprising the outstanding Units, may amend or
supplement this Indenture, the Notes or the Guarantees without notice to any
other Holders. Subject to SECTION 6.07, the Holder or Holders of a majority in
aggregate principal amount of the outstanding Notes comprising the outstanding
Units may waive compliance by the Issuers with any provision of this Indenture
or the Notes without notice to any other Holder. However, no amendment,
supplement or waiver, including a waiver pursuant to SECTION 6.04, shall without
the consent of each Holder of each Note affected thereby:
(1) reduce the amount of Units whose Holders must consent to an
amendment, supplement or waiver of any provision of this Indenture or the
Notes;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which any
Notes may be subject to redemption or reduce the redemption price therefor;
(4) make any Notes payable in money other than that stated in the
Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce such
payment, or permitting Holders of a majority in principal amount of Notes
to waive Defaults or Events of Default;
(6) after the Issuers' obligation to offer to purchase Notes arises
thereunder, amend, change or modify in any material respect the obligation
of the Issuers to make and consummate a Change of Control Offer in the
event of a Change of Control Triggering Event or make and consummate a Net
Proceeds Offer following a Net Proceeds Offer Trigger Date or, after such
Change of Control Triggering Event or Net Proceeds Offer Trigger Date has
occurred, modify any of the provisions or definitions with respect thereto;
(7) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or any Guarantee in a manner
which adversely affects the Holders;
(8) release any Guarantor that is a Significant Subsidiary from any
of its obligations under its Guarantee or this Indenture otherwise than in
accordance with the terms of this Indenture;
(9) release all or substantially all of the Collateral.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
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After an amendment, supplement or waiver under this SECTION 9.02
becomes effective, the Issuers shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture, the Units,
the Notes, the Parent Guarantee or the Guarantees shall comply with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Unit or portion of a Unit that evidences the same debt as the
consenting Holder's Unit, even if notation of the consent is not made on any
Unit. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Unit or portion of such Unit by
notice to the Trustee or the Issuers received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes comprising the Units have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent or the date of the most recent list furnished
to the Trustee under SECTION 2.05. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of CLAUSES (1)
through (9) of SECTION 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Unit who has consented to it and every
subsequent Holder of a Unit or portion of a Unit that evidences the same debt as
the consenting Holder's Unit; PROVIDED that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest
on a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver the Note to the Trustee.
The Trustee at the written direction of the Company and/or Subsidiary Issuer, as
applicable, may place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company and/or
Subsidiary Issuer, as applicable, or the Trustee so determines, the Company
and/or Subsidiary Issuer, as applicable, in exchange for the Note shall issue
and the Trustee shall authenticate a new Note that reflects the changed terms.
Any such notation or exchange shall be made at the sole cost and expense of the
Company and/or Subsidiary Issuer, as applicable.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this ARTICLE NINE; PROVIDED that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this ARTICLE NINE is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE TEN
GUARANTEE
SECTION 10.01. PARENT GUARANTEE.
The Company hereby fully, irrevocably and unconditionally guarantees
(such guarantee to be referred to herein as the "PARENT GUARANTEE"), to each of
the Holders and to the Trustee and their respective successors and assigns that
(i) the principal of and interest on the Subsidiary Issuer Notes will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise, and interest on the overdue
principal, if any, and interest on any interest, if any, to the extent lawful,
of the Subsidiary Issuer Notes and all other obligations of the Subsidiary
Issuer to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (ii) in case of any extension of time of payment or renewal of any of the
Subsidiary Issuer Notes or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration or otherwise, subject, however, in the case of CLAUSES
(i) and (ii) above, to the limitations set forth in SECTION 10.05. The Company
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Subsidiary
Issuer Notes or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any of the Holders with respect to any provisions
hereof or thereof, the recovery of any judgment against the Subsidiary Issuer,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the Company with respect
to the Parent Guarantee. The Company hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Subsidiary Issuer, any right to require a proceeding first
against the Subsidiary Issuer, protest, notice and all demands whatsoever and
covenants that this Parent Guarantee will not be discharged except by complete
performance of the obligations contained in the Subsidiary Issuer Notes, this
Agreement and in this Parent Guarantee. If any Holder or the Trustee is required
by any court or otherwise to return to the Subsidiary Issuer, the Parent
Guarantor, Subsidiary Issuer Guarantor, the Guarantors, or any custodian,
trustee, liquidator or other similar official acting in relation to the
Subsidiary Issuer, the Company, or the Guarantors, any amount paid by the Parent
Guarantor, Subsidiary Issuer, the Company or any Guarantor to the Trustee or
such Holder, this Parent Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. The Company further agrees that, as
between the Parent Guarantor, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in ARTICLE SIX for the purposes of this Parent
Guarantee, and (y) in the event of any acceleration of such obligations as
provided in ARTICLE SIX, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Company for the purpose of this Parent
Guarantee.
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SECTION 10.02. SUBSIDIARY ISSUER GUARANTEE.
The Subsidiary Issuer hereby fully, irrevocably and unconditionally
guarantees (such guarantee to be referred to herein as the "SUBSIDIARY ISSUER
GUARANTEE"), to each of the Holders and to the Trustee and their respective
successors and assigns that (i) the principal of and interest on the Parent
Notes will be promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise, and interest on the
overdue principal, if any, and interest on any interest, if any, to the extent
lawful, of the Parent Notes and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any of the Parent Notes or of
any such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise, subject, however, in the case of CLAUSES (i) and (ii) above, to the
limitations set forth in SECTION 10.05. The Subsidiary Issuer hereby agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Parent Notes or this Indenture, the absence
of any action to enforce the same, any waiver or consent by any of the Holders
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Subsidiary Issuer, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Subsidiary Issuer with respect to the Subsidiary Issuer
Guarantee. The Subsidiary Issuer hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Subsidiary Issuer, any right to require a proceeding first against the
Subsidiary Issuer, protest, notice and all demands whatsoever and covenants that
this Subsidiary Issuer Guarantee will not be discharged except by complete
performance of the obligations contained in the Parent Notes, this Agreement and
in this Subsidiary Issuer Guarantee. If any Holder or the Trustee is required by
any court or otherwise to return to the Subsidiary Issuer, the Subsidiary Issuer
Guarantor, the Guarantors, or any custodian, trustee, liquidator or other
similar official acting in relation to the Subsidiary Issuer, the Subsidiary
Issuer Guarantor, or the Guarantors, any amount paid by the Subsidiary Issuer,
the Subsidiary Issuer Guarantor or any Guarantor to the Trustee or such Holder,
this Subsidiary Issuer Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Subsidiary Issuer further agrees that,
as between the Subsidiary Issuer Guarantor, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in ARTICLE SIX for the purposes of this
Subsidiary Issuer Guarantee, and (y) in the event of any acceleration of such
obligations as provided in ARTICLE SIX, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Company for the purpose
of this Subsidiary Issuer Guarantee.
SECTION 10.03. SUBSIDIARY GUARANTEES.
Each Guarantor hereby irrevocably and unconditionally, jointly and
severally, guarantees (such guarantee to be referred to herein as the
"GUARANTEE"), to each of the Holders and to the Trustee and their respective
successors and assigns that (i) the principal of and interest on the Notes will
be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise, and interest on the overdue
principal, if any, and interest on any interest, if any, to the extent lawful,
of the Notes and all other obligations of the Issuers to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any of the Notes or of any such other
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of CLAUSES (i) and (ii) above, to the limitations set forth
in SECTION 10.04. Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, Units, or this
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Indenture, the absence of any action to enforce the same, any waiver or consent
by any of the Holders with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuers, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding first
against the Issuers, protest, notice and all demands whatsoever and covenants
that this Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Agreement and in this Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to the
Issuers, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Issuers or any Guarantor, any amount paid by
the Issuers or any Guarantor to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between each Guarantor, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in ARTICLE SIX for
the purposes of this Guarantee, and (y) in the event of any acceleration of such
obligations as provided in ARTICLE SIX, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of this Guarantee.
Notwithstanding any other provision of this Article 10, the amount
guaranteed by any Guarantor incorporated in Sweden under this Article 10 shall
be limited if, and only if, required by an application of the provisions of the
Swedish Companies Act (Sw. Aktiebolagslagen 1975:1385) in force from time to
time regulating the distribution of assets (including profits/dividends) and
limiting the amount of the guarantee to unrestricted equity in such Guarantor.
SECTION 10.04. RELEASE OF A GUARANTOR.
In the event all of the Capital Stock of a Guarantor is sold by the
Company and the sale complies with SECTION 4.16, or in the event of the
designation of any Guarantor as an Unrestricted Subsidiary in accordance with
this Indenture, the Guarantor's Guarantee will be released.
The Trustee shall promptly deliver an appropriate instrument
evidencing such release upon receipt of a request by the Issuers accompanied by
an Officers' Certificate certifying as to the compliance with this SECTION
10.04. Any Guarantor not so released remains liable for the full amount of
principal of and interest on the Notes as provided in this ARTICLE TEN.
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SECTION 10.05. LIMITATION OF GUARANTOR'S LIABILITY.
Each of the Company, the Subsidiary Issuer and each Guarantor and by
its acceptance hereof each of the Holders hereby confirm that it is the
intention of all such parties that the guarantee by the Company, the Subsidiary
Issuer or Guarantor, as applicable, pursuant to its guarantee not constitute a
fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders, the Company and each such Guarantor hereby irrevocably agree that the
obligations of the Parent Guarantor and each such Guarantor under the Parent
Guarantee and Guarantee, as applicable, shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of
the Parent Guarantor and each such Guarantor (including, but not limited to, the
Guarantor Senior Debt of such Guarantor) and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to SECTION 10.07, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.06. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
No Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any sale of such Guarantor in a transaction complying with
SECTION 4.16) will, and the Company will not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than the Company or any
other Guarantor that is a Wholly Owned Restricted Subsidiary unless:
(1) the entity formed by or surviving any such consolidation or
merger (if other than the Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any State
thereof or the District of Columbia (or, in the case of a Guarantor
organized outside of the United States, Canada or any member state of the
European Union or any political subdivision thereof);
(2) such entity assumes by supplemental indenture all of the
obligations of the Guarantor on the Guarantee;
(3) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to such transaction and the use
of any net proceeds therefrom on a pro forma basis, the Issuers could
satisfy the provisions of SECTION 5.01(a)(ii).
Any merger or consolidation of a Guarantor with and into either of the
Issuers (with such Issuer being the surviving entity) or another Guarantor that
is a Wholly Owned Restricted Subsidiary of the Company need only comply with
SECTION 5.01(a)(iv).
SECTION 10.07. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that each Guarantor that makes a
payment or distribution under a Guarantee shall be entitled to a PRO RATA
contribution from each other Guarantor hereunder based on the net assets of each
other Guarantor. The preceding sentence shall in no way affect the rights of the
Holders of Notes to the benefits of this Indenture, the Notes or the Guarantees.
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SECTION 10.08. WAIVER OF SUBROGATION.
Each of the Company, the Subsidiary Issuer and each Guarantor agrees
that it shall not be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby.
SECTION 10.09. EVIDENCE OF GUARANTEE.
To evidence their guarantees to the Holders set forth in this ARTICLE
TEN, the Company, the Subsidiary Issuer, and each of the Guarantors hereby agree
to execute the notation of guarantee in substantially the form included in the
Notes attached as EXHIBITS A and B. Each such notation of guarantee shall be
signed on behalf of Company, the Subsidiary Issuer, and each Guarantor by an
Officer or an assistant Secretary. An Officer (who shall, in each case, have
been duly authorized by all requisite corporate actions) of the Company, the
Subsidiary Issuer and each of the Guarantors shall execute the Guarantees by
manual or facsimile signature.
If an Officer whose signature is on a Unit or a Note was an Officer at
the time of such execution but no longer holds that office or position at the
time the Trustee authenticates such Unit or Note, such Unit or Note shall
nevertheless be valid.
Each of the Company, the Subsidiary Issuer and each Guarantor hereby
agrees that its guarantee set forth in SECTIONS 10.01, 10.01 AND 10.03,
respectively, shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such guarantee.
If an Officer or assistant Secretary whose signature is on this
Indenture or on the Parent Guarantee, Subsidiary Issuer Guarantee or Guarantee
no longer holds that office at the time the Trustee authenticates the Note on
which any such guarantee is endorsed, such guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Parent Guarantee,
Subsidiary Issuer Guarantee and Guarantee set forth in this Indenture on behalf
of the Company, the Subsidiary Issuer, and Guarantors.
SECTION 10.10. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company, the Subsidiary Issuer and each Guarantor
covenants that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive such guarantor from
performing its guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Agreement; and the Company, the Subsidiary Issuer and each Guarantor hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Issuers:
The
Hockey Company
0000 xxxxxxxxx xx Xxxxxxxxxxx Xxxxx 000
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
if to the Trustee:
The Bank of
New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Administration--Global Finance Unit
Each of the Issuers, Guarantors and the Trustee by written notice to
each other may designate additional or different addresses for notices. Any
notice or communication to the Issuers, Guarantors or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
faxed; and five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address or a
notice sent by mail to the Trustee shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to such
Holder by first class mail or other equivalent means at such Holder's address as
it appears on the registration books of the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
SECTION 11.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA SECTION 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and any other Person shall have the
protection of TIA SECTION 312(c).
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SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent relating to the proposed action have
been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by SECTION 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
Each of the Trustee, the Paying Agent and the Registrar may make
reasonable rules for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in
New York, New
York or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 11.08. GOVERNING LAW; SERVICE OF PROCESS.
THIS INDENTURE, THE UNITS, THE NOTES AND THE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN THE STATE OF
NEW YORK (THE "SPECIFIED COURTS") IN ANY
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ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE. EACH OF THE
ISSUERS AND GUARANTORS FURTHER AGREES THAT SERVICE OF ANY PROCESS, SUMMONS,
NOTICE OR DOCUMENT BY MAIL TO THE ISSUERS' ADDRESS SET FORTH IN SECTION 11.02
SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION OR PROCEEDING BROUGHT IN
ANY SPECIFIED COURT. EACH ISSUER IRREVOCABLY WAIVES ANY OBJECTION TO THE LAYING
OF VENUE OF ANY ACTION OR PROCEEDING IN ANY SPECIFIED COURT AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH OF THE ISSUERS AND THE GUARANTORS HEREBY APPOINT
CT CORPORATION SYSTEM, 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS ITS AGENT FOR
SERVICE OF PROCESS IN CONNECTION WITH ANY ACTION OR PROCEEDING THAT MAY BE
INSTITUTED IN AN SPECIFIED COURT. SO LONG AS ANY NOTES REMAIN OUTSTANDING AND
FOR THREE YEARS THEREAFTER, EACH OF THE ISSUERS AND GUARANTORS SHALL MAINTAIN AN
AGENT FOR SERVICE OF PROCESS IN THE STATE OF NEW YORK AND SHALL NOTIFY THE
TRUSTEE OF ANY CHANGE IN THE IDENTITY OR ADDRESS OF THAT AGENT.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Issuers or any of their Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Issuers or of the Trustee shall not have any
liability for any obligations of the Issuers under the Units, the Notes, the
Parent Guarantees, the Subsidiary Issuer Guarantees and the Guarantees, as
applicable, or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a Unit
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Units.
SECTION 11.11. SUCCESSORS.
All agreements of the Issuers and the Guarantors in this Indenture,
the Units, the Notes, the Parent Guarantees, the Subsidiary Issuer Guarantees
and the Guarantees shall bind their successors. All agreements of the Trustee in
this Indenture shall bind its successors.
SECTION 11.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 11.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture, the
Units, the Notes, the Parent Guarantees, the Subsidiary Issuer Guarantees or in
the Guarantees shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SECTION 11.14. WAIVER OF JURY TRIAL.
EACH OF THE ISSUERS AND GUARANTORS HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED BY THIS INDENTURE.
SECTION 11.15. CONVERSION OF CURRENCY
The Issuers and the Guarantors covenant and agree that the following
provisions shall apply to conversion of currency in the case of the Units and
this Indenture:
(a) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into any
other currency (the "JUDGMENT CURRENCY") an amount due in U.S. dollars, then the
conversion shall be made at the rate of exchange prevailing on the Business Day
before the day on which the judgment is given or the order of enforcement is
made, as the case may be (unless a court shall otherwise determine).
(b) The term "rate(s) of exchange" shall mean the rate at which the
Holder or the Trustee, as the case may be, is able or would have been able on
the relevant date to purchase at The Bank of New York (or if The Bank of New
York is no longer engaged in currency exchange, such other money center bank
located in The City of New York as the Issuers and the Trustee shall agree) U.S.
dollars with the judgment currency other than U.S. dollars referred to in
subsections (a) above and includes any premiums and costs of exchange payable.
(c) This is an international financing transaction in which the
specification of Dollars and payment in New York, New York, is of the essence,
and Dollars shall be the currency of account in all events. The obligation of
the Issuers and Guarantors in respect of any sum due from them to any Holder
hereunder or under a Note held by such Holder shall, notwithstanding any
judgment in a currency other than Dollars, be discharged only to the extent that
on the Business Day following receipt by such Holder of any sum adjudged to be
so due in such other currency such Holder purchase Dollars with such other
currency; if the Dollars so purchased are less than the sum originally due to
such Holder in Dollars, the Issuers and Guarantors agree, as a separate
obligation and notwithstanding any such judgment, to indemnify such Holder
against such loss, and if the Dollars so purchased exceed the sum originally due
to any Holder in Dollars, such Holder agrees to remit to the Issuers such
excess.
SECTION 11.16. CONSENT TO JURISDICTION
Each of the parties hereto and (by their acceptance of the Units) the
Holders irrevocably consents to the jurisdiction of any court of the State of
New York or any United States federal court sitting in the Borough of Xxxxxxxxx,
Xxx Xxxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx, and any appellate court from any thereof
and each of the parties hereto submits to the jurisdiction of their respective
corporate domiciles only in respect of any actions or proceedings brought
against them hereunder, and waives any immunity from the jurisdiction of such
courts over any suit, action or proceeding that may be brought in connection
with this Indenture or the Units. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, any objection to any suit,
action, or proceeding that may be brought in connection with this Indenture or
the Units in such courts whether on the grounds of venue, residence or domicile
or on the ground that any such suit, action or proceeding has been brought in an
inconvenient forum. Additionally, each of the parties hereby waives the right to
trial by jury and to assert counterclaim in any such proceedings. Each of the
parties hereto hereby agrees that final judgment in any such suit, action or
proceeding brought in such court shall be conclusive and binding upon such party
and may be
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enforced in any court of the jurisdiction to which the Issuers or such judgment
Guarantor, as the case may be, is subject by a suit upon such judgment; PROVIDED
that service of process is effected upon such party in the manner provided by
this Indenture.
SECTION 11.17. INTEREST CALCULATION ON THE SUBSIDIARY ISSUER NOTES.
For the purposes of the Interest Act (Canada), the yearly rate of
interest to which the rate payable on the Subsidiary Issuer Notes for any period
in the calendar year (the "CALCULATION PERIOD") is equal to the rate payable for
the calculation period multiplied by a fraction the numerator of which is the
actual number of days in such calendar year and the denominator of which is the
actual number of days in the calculation period.
ARTICLE TWELVE
SECURITY
SECTION 12.01. GRANT OF SECURITY INTEREST.
(a) To secure the due and punctual payment of the principal of,
premium, if any, and interest (including Additional Interest, if any) on the
Notes when and as the same shall be due and payable, whether on an Interest
Payment Date, at maturity, by acceleration, purchase, repurchase, redemption or
otherwise, and interest on the overdue principal of, premium, if any, and
interest (to the extent permitted by law), if any, on the Notes and the
performance of all other Obligations of the Issuers to the Holders or the
Trustee under this Indenture and the Notes and the Units, the Issuers hereby
covenant to cause the Collateral Agreements to be executed and delivered
concurrently with this Indenture. Subject to the Intercreditor Agreement, the
Collateral Agreements shall grant to the Collateral Agent Security Interests in
the Collateral.
(b) Each Holder, by its acceptance of a Unit, consents and agrees
to the terms of each Collateral Agreement, as the same may be in effect or may
be amended from time to time in accordance with its terms, and authorizes and
directs each of the Trustee and the Collateral Agent to enter into the
Collateral Agreements and to perform its obligations and exercise its rights
thereunder in accordance therewith. Each of the Issuers shall, and shall cause
each of its Subsidiaries to, do or cause to be done all such actions and things
as may be necessary or proper, or as may be required by the provisions of the
Collateral Agreements, to assure and confirm to the Trustee and the Collateral
Agent the Security Interests in the Collateral contemplated hereby and by the
Collateral Agreements, as from time to time constituted, so as to render the
same available for the security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purpose herein and therein
expressed. Each of the Issuers shall, and shall cause each of its Subsidiaries
to, take any and all actions required or as may be requested by the Trustee or
the Collateral Agents to cause the Collateral Agreements to create and maintain,
as security for the Obligations contained in this Indenture and the Notes, valid
and enforceable, perfected (except as expressly provided herein, therein or in
the Intercreditor Agreement) security interests in and on all the Collateral, in
favor of the Trustee, superior to and prior to the rights of all third Persons,
and subject to no other Liens, in each case, except as expressly provided
herein, therein, or in the Intercreditor Agreement.
(c) The Trustee for and on behalf of the Holders hereby appoints
and constitutes BNY Trust Company of Canada as the holder of an irrevocable
power of attorney (FONDE DE POUVOIR) (within the meaning of Section 2692 of the
CIVIL CODE OF QUEBEC) for all present and future Holders for purposes of holding
any hypothec or other security granted by the Company or any of the Guarantors
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pursuant to the laws of the Province of Quebec to secure, INTER ALIA, the
repayment of the Notes. Each Holder, by its acceptance of a Unit, confirms and
ratifies the appointment and constitution of BNY Trust Company of Canada, or any
other person appointed and constituted by the Trustee from time to time, as the
holder of an irrevocable power of attorney (FONDE DE POUVOIR) of all present and
future Holders for such purposes.
SECTION 12.02. INTERCREDITOR AGREEMENT.
This Article 12 of this Indenture is subject to the terms, limitations
and conditions set forth in the Intercreditor Agreement. Each Holder of a Note,
by its acceptance thereof, is deemed to have authorized and instructed the
Trustee to enter into the Intercreditor Agreement on its behalf.
SECTION 12.03. RECORDING AND OPINIONS.
(a) The Issuers shall take or cause to be taken all action required
to perfect, maintain, preserve and protect the security interests in the
Collateral granted by the Collateral Agreements, including, without limitation,
(i) the filing of financing statements, continuation statements, collateral
assignments and any instruments of further assurance, in such manner and in such
places as may be required by law to preserve and protect fully the rights of the
Holders, the Trustee and the Collateral Agent under this Indenture and the
Collateral Agreements to all property comprising the Collateral, and (ii) the
delivery of the certificates evidencing the securities pledged under the
Security Agreements, duly endorsed in blank, it being understood that
concurrently with the execution of this Indenture the Issuers have delivered
financing statements for filing by the Initial Purchaser or its agents. The
Issuers shall from time to time promptly pay all financing and continuation
statement recording and/or filing fees, charges and taxes relating to this
Indenture, the Collateral Agreements, the Intercreditor Agreement and any
amendments hereto or thereto and any other instruments of further assurance
required pursuant hereto or thereto.
(b) The Issuers shall furnish to the Trustee and the Collateral
Agent (if other than the Trustee), on the Closing Date, at such time as required
by TIA SECTION 314(b), and promptly after the execution and delivery of any
other instrument of further assurance or amendment granting, perfecting,
protecting, preserving or making effective a security interest pursuant to any
Collateral Agreement, an Opinion of Counsel either (i) stating that, in the
opinion of such counsel, this Indenture and the Collateral Agreements, financing
statements and fixture filings then executed and delivered, as applicable, and
all other instruments of further assurance or amendment then executed and
delivered have been properly recorded, registered and filed, and all
certificates evidencing Pledged Securities pledged to the Trustee and the
Holders under the Pledge and Security Agreement have been delivered and duly
endorsed in blank, to the extent necessary to perfect the Security Interests
created by this Indenture and the Collateral Agreements and reciting the details
of such action or referring to prior Opinions of Counsel in which such details
are given, and stating that as to such Collateral Agreements and such other
instruments, such recording, registering, filing and delivery are the only
recordings, registerings, filings and deliveries necessary to perfect such
security interest and that no re-recordings, re-registerings, re-filings or
re-deliveries are necessary to maintain such perfection, and further stating
that all financing statements and continuation statements have been executed and
filed, and all such certificates have been delivered, that are necessary fully
to preserve and protect the rights of and perfect such security interests of the
Holders, the Trustee and the Collateral Agent hereunder and under the Collateral
Agreements or (ii) stating that, in the Opinion of such Counsel, no such action
is necessary to perfect any Security Interest created under this Indenture, the
Notes or any of the Collateral Agreements as intended by this Indenture, the
Notes and such Collateral Agreements.
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(c) Annually, within 30 days after March 1 and beginning with the
year 2003, the Issuers shall furnish to the Trustee and the Collateral Agent (if
other than the Trustee), an Opinion of Counsel, dated as of such date, either
(i) stating that: (A) in the opinion of such counsel, action has been taken with
respect to the registering, recording, filing, re-recording, re-registering and
refiling of this Indenture, and all supplemental indentures, financing
statements, continuation statements and other documents, and delivery of all
certificates, as are then necessary to perfect or continue the perfection of the
Security Interests created by the Collateral Agreements and reciting the details
of such action or referring to prior Opinions of Counsel in which such details
are given; and (B) based on relevant laws as in effect on the date of such
Opinion of Counsel, all financing statements, continuation statements and other
documents have been executed and filed that are necessary as of such date and
during the succeeding 24 months fully to maintain, perfect or continue the
perfection of such Security Interests under the Collateral Agreements with
respect to the Collateral and to maintain, preserve, and protect the rights of
the Holders and the Trustee hereunder and under the Collateral Agreements or
(ii) stating that, in the opinion of such counsel, no such action is then
necessary to perfect or continue the perfection of such Security Interests.
SECTION 12.04. RELEASE OF COLLATERAL.
(a) Subject to the Intercreditor Agreement, neither the Collateral
Agent nor the Trustee, in its capacity as Collateral Agent under the Collateral
Agreements, shall at any time release Collateral from the security interests
created by this Indenture and the Collateral Agreements unless such release is
in accordance with the provisions of this Indenture, the Intercreditor Agreement
and the applicable Collateral Agreements.
(b) Subject to the Intercreditor Agreement, at any time when a
Default or an Event of Default shall have occurred and be continuing, no release
of Collateral pursuant to the provisions of this Indenture and the Collateral
Agreements shall be effective as against the Holders.
(c) The release of any Collateral from the terms of the Collateral
Agreements shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Collateral Agreements or pursuant to
the Intercreditor Agreement. To the extent applicable, the Issuers shall cause
TIA SECTION 314(d) relating to the release of property from the Security
Interests created by this Indenture and the Collateral Agreements to be complied
with. Any certificate or opinion required by TIA 314(d) may be made by an
Officer of the relevant Issuer, except in cases where TIA SECTION 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee in the exercise of reasonable care. A Person
is "independent" if such Person (a) is in fact independent, (b) does not have
any direct financial interest or any material indirect financial interest in the
Issuers or in any Affiliate of the Issuers and (c) is not an officer, employee,
promoter, underwriter, trustee, partner or director or person performing similar
functions to any of the foregoing for the Issuers. The Trustee shall be entitled
to receive and rely upon a certificate provided by any such Person confirming
that such Person is independent within the foregoing definition.
(d) Notwithstanding any provision to the contrary in this
Indenture, Collateral comprised of accounts receivable, inventory or (prior to
an Event of Default) the proceeds of the foregoing shall be subject to release
upon sales of such inventory and collection of the proceeds of such receivables
in the ordinary course of business. If requested in writing by the Issuers or
any other Pledgor, the Trustee shall instruct the Collateral Agent to execute
and deliver such documents, instruments or statements and to take such other
action as the Issuers or such other Pledgor may request to evidence or confirm
that the Collateral falling under this SECTION 12.04 has been released from the
Lien of each of the
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Security Documents. The Collateral Agent shall execute and deliver such
documents, instruments and statements and shall take all such actions promptly
upon receipt of such instructions from the Trustee.
SECTION 12.05. SPECIFIED RELEASES OF COLLATERAL.
(a) The Issuers shall be entitled to obtain a full release of items
of Collateral (the "RELEASED INTERESTS") from the Security Interests created by
this Indenture, the Notes and the Collateral Agreements upon compliance with the
conditions precedent set forth in SECTIONS 4.16, 8.01 OR 8.02 of this Indenture,
the applicable Collateral Agreements and to the extent applicable, the
Intercreditor Agreement. So long as no Default or Event of Default exists, upon
the request of the Issuers and the furnishing of each of the items required by
SECTION 12.05(b), the Collateral Agent upon the direction of the Trustee (or the
Trustee if acting as Collateral Agent) shall forthwith take such action (at the
request of and the expense of the Issuers, without recourse or warranty and
without any representation of any kind), including the execution of appropriate
UCC-3 termination statements, to release and reconvey to the Issuers all of the
Released Interests, and shall deliver such Released Interests in its possession
to the Issuers and their applicable Subsidiary Guarantors.
(b) So long as no Default or Event of Default exists, the Issuers
shall be entitled to obtain a release of, and the Collateral Agent and the
Trustee shall release, the Released Interests upon compliance with the condition
precedent that the Issuers shall have satisfied all applicable conditions
precedent to any such release set forth in this Indenture, the applicable
Collateral Agreements and to the extent applicable, the Intercreditor Agreement
as set forth in an Officers' Certificate and an Opinion of Counsel delivered to
the Trustee and shall have delivered to the Trustee and the Collateral Agent the
following, as applicable:
(i) in connection with release of Collateral resulting from an
Asset Sale under SECTION 4.15, notice from the Issuers requesting the
release of Released Interests: (A) describing the proposed Released
Interests; (B) specifying the value of such Released Interests on a date
within 60 days of such notice (the "VALUATION DATE"); (C) stating that the
purchase price received is at least equal to the fair market value of the
Released Interests; (D) stating that the release of such Released Interests
will not be expected to interfere with the Trustee's or Collateral Agent's
ability to realize the value of the remaining Collateral and will not
impair the maintenance and operation of the remaining Collateral; and (E)
certifying that such Asset Sale complies with the terms and conditions of
this Indenture and the applicable Collateral Agreements with respect
thereto;
(ii) in connection with release of Collateral resulting from an
Asset Sale under SECTION 4.15, an Officers' Certificate of the Issuers
stating that (A) such Asset Sale covers only the Released Interests and
complies with the terms and conditions of this Indenture with respect to
Asset Sales; (B) all Net Cash Proceeds from the sale of any of the Released
Interests will be applied pursuant to the provisions of this Indenture in
respect of Asset Sales; (C) there is no Default or Event of Default in
effect or continuing on the date thereof, the Valuation Date or the date of
such Asset Sale; (D) the release of the Collateral will not result in a
Default or Event of Default under this Indenture; and (E) all conditions
precedent in this Indenture relating to the release in question have been
or will be complied with;
(iii) in connection with release of Collateral resulting from an
Asset Sale under SECTION 4.15, the Net Cash Proceeds and other non-cash
consideration from the Asset Sale required to be delivered to the
Collateral Agent pursuant to this Indenture;
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(iv) to the extent required by the TIA, an Officers' Certificate of
the Issuers and an Opinion of Counsel certifying that all conditions
precedent to the release of the Released Interests have been met and that
such release complies with the terms and conditions of this Indenture, the
applicable Collateral Agreements and to the extent applicable, the
Intercreditor Agreement; and
(v) all applicable certificates, opinions and other documentation
required by the TIA or this Indenture, if any.
Upon compliance by the Issuers with the conditions precedent set forth
above, the Trustee shall cause to be released and reconveyed, without recourse
and without representation or warranty of any kind, to the Issuers, the Released
Interests.
SECTION 12.06. FORM AND SUFFICIENCY OF RELEASE.
In the event that the Issuers have sold, exchanged, or otherwise
disposed of or proposes to sell, exchange or otherwise dispose of any portion of
the Collateral that may be sold, exchanged or otherwise disposed of by the
Issuers, and the Issuers request the Trustee or the Collateral Agent to furnish
a written disclaimer, release or quit-claim of any interest in such property
under this Indenture and the Collateral Agreements, the Collateral Agent and the
Trustee, as applicable, shall execute, acknowledge and deliver to the Issuers
(in proper form) such an instrument promptly after satisfaction of the
conditions set forth herein for delivery of any such release. Notwithstanding
the preceding sentence, all purchasers and grantees of any property or rights
purporting to be released herefrom shall be entitled to rely upon any release
executed by the Trustee hereunder as sufficient for the purpose of this
Indenture and as constituting a good and valid release of the property therein
described from the Lien of this Indenture or of the Collateral Agreements.
SECTION 12.07. PURCHASER PROTECTED.
No purchaser or grantee of any property or rights purporting to be
released herefrom shall be bound to ascertain the authority of the Trustee or
the Collateral Agent to execute the release or to inquire as to the existence of
any conditions herein prescribed for the exercise of such authority; nor shall
any purchaser or grantee of any property or rights permitted by this Indenture
to be sold or otherwise disposed of by the Issuers be under any obligation to
ascertain or inquire into the authority of the Issuers to make such sale or
other disposition.
SECTION 12.08. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE COLLATERAL AGREEMENTS.
Subject to the provisions of the applicable Collateral Agreements and
the Intercreditor Agreement, (a) the Trustee and the Collateral Agent may, in
their sole discretion and without the consent of the Holders, take all actions
they deem necessary or appropriate in order to (i) enforce any of the terms of
the Collateral Agreements and (ii) collect and receive any and all amounts
payable in respect of the Obligations of the Issuers hereunder, and (b) the
Trustee and the Collateral Agent shall have power to institute and to maintain
such suits and proceedings as they may deem expedient to prevent any impairment
of the Collateral by any act that may be unlawful or in violation of the
Collateral Agreements or this Indenture, and suits and proceedings as the
Trustee and the Collateral Agent may deem expedient to preserve or protect their
interests and the interests of the Holders in the Collateral (including the
power to institute and maintain suits or proceedings to restrain the enforcement
of or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interest thereunder or be prejudicial to the interests of the Holders, the
Trustee or the Collateral Agent).
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Notwithstanding the foregoing, the Trustee may, at the expense of the Issuers,
request the direction of the Holders with respect to any such actions and upon
receipt of the written consent of the Holders of at least a majority in
aggregate principal amount of the Outstanding Notes, shall take such actions.
SECTION 12.09. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE COLLATERAL AGREEMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Collateral Agreements, and to make further
distributions of such funds to the Holders in accordance with the provisions of
SECTION 6.10 and the other provisions of this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
THE
HOCKEY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
and Vice President,
Finance and Administration
SPORT MASKA INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
SPORTS HOLDINGS CORP.,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
MASKA U.S., INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
SLM TRADEMARK ACQUISITION CORP., as a
Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
WAP HOLDINGS INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
SLM TRADEMARK ACQUISITION CANADA
CORP., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
JOFA AB, as a Guarantor
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: President and Chief
Executive Officer
JOFA HOLDING AB, as a Guarantor
By: /s/ Xxxxxxx X. X'Xxxxx
-------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: President and Chief
Executive Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
EXHIBIT A
[FORM OF UNIT]
NEITHER THIS UNIT NOR ANY INTEREST IN THIS UNIT MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE RESTRICTIVE
LEGEND APPEARING ON EACH NOTE INCLUDED IN THIS UNIT.
THIS UNIT IS A GLOBAL UNIT WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
THEREOF. THIS UNIT MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT
REGISTERED, AND NO TRANSFER OF THIS UNIT IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE CASE OF A TRANSFER OF AN INTEREST TO A
PERSON THAT IS REQUIRED UNDER THE INDENTURE TO HOLD PHYSICAL UNITS AND
EXCEPT IN THE OTHER LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), TO THE
HOCKEY COMPANY AND THE SUBSIDIARY
ISSUER OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE
HOCKEY COMPANY AND SPORT MASKA INC.
Units Consisting of
$500 principal amount 11 1/4% Senior Secured Notes of The
Hockey Company
due 2009 and $500 principal amount 11 1/4% Senior Secured Notes of
Sport Maska Inc. due 2009
No. ___
CUSIP No. _________ Certificate for _______ Units
Each of The
Hockey Company, a Delaware corporation (the "COMPANY"),
which term includes any successor corporation, and Sport Maska Inc., a New
Brunswick corporation (the "SUBSIDIARY ISSUER"), which term includes any
successor corporation, hereby certifies that is the
owner of Units as described above, transferable only
on the books of the Company and the Subsidiary Issuer by the holder thereof in
person or by his or her duly authorized attorney on surrender of this
Certificate properly endorsed. Each Unit consists of $500 principal amount of
11 1/4% Senior Secured Notes due 2009 of the Company and $500 principal amount
of 11 1/4% Senior Secured Notes due 2009 of the Subsidiary Issuer (together, the
"NOTES"). This Unit is issued pursuant to the Indenture, dated as of April 3,
2002 among the Company, the Subsidiary Issuer, the Guarantors and The Bank of
New York, as Trustee, (the "INDENTURE") and is subject to the terms and
provisions contained therein, to all of which terms and provisions the holder of
this Unit Certificate consents by acceptance hereof. The terms of the Notes, the
Parent Guarantee, the Subsidiary Issuer Guarantee and the other Guarantees are
governed by the Indenture, and are subject to the terms and provisions contained
therein, to all of which terms and provisions the holder of this Unit
Certificate consents by acceptance hereof.
Reference is made to the further provisions of this Unit Certificate
contained herein, which will for all purposes have the same effect as if set
forth at this place. Copies of the Indenture are on file at the office of the
Company and the Subsidiary Issuer and are available to any holder on written
request and without cost.
The Notes, Parent Guarantee, the Subsidiary Issuer Guarantee and
Guarantees represented by this Unit Certificate shall not be detachable or
separately transferable at any time.
If at any time, (i) the Depositary notifies the Company and the
Subsidiary Issuer that it is unwilling or unable to continue as Depositary or if
at any time the Depositary shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and a successor Depositary is not appointed by the Company
and the Subsidiary Issuer within 90 days after the Company and the Subsidiary
Issuer receive such notice or become aware of such condition, as the case may
be, or (ii) an Event of Default has occurred and is continuing and the Registrar
has received a request from the Depository to issue Physical Units, then in such
event the Company and the Subsidiary Issuer will execute, and the Trustee will
authenticate and deliver, Units in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of
A-2
this Global Security in exchange for this Global Security. Such Units in
definitive registered form shall be registered in such names and issued in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Units to the Persons in whose names such Global
Securities are so registered.
The Indenture and this Unit shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Unit which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Dated:
THE HOCKEY COMPANY
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
SPORT MASKA INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Units referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By:
------------------------------
Authorized Signatory
A-4
ASSIGNMENT FORM
If you the Holder want to assign this Unit, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Unit to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this Unit on the books of the Company and the Subsidiary
Issuer. The agent may substitute another to act for him.
Dated: Signed:
------------- ----------------------------
(Sign exactly as your name
appears on the other side of
this Unit)
Signature Guarantee:
--------------------------
In connection with any transfer of this Unit occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), covering resales of this Unit (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) April 3, 2004, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Unit is being transferred:
[CHECK ONE]
(1) ______ to the Company or a subsidiary thereof; or
(2) ______ pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) ______ to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which
letter can be obtained from the Trustee); or
(4) ______ outside the United States to a person other than a "U.S. person" in
compliance with Rule 904 of Regulation S under the Securities Act;
or
A-5
(5) ______ pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) ______ pursuant to an effective registration statement under the
Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Units evidenced by this certificate in the name of any person other than the
registered Holder thereof; PROVIDED that if box (3), (4) or (5) is checked, the
Company, the Subsidiary Issuer or the Trustee may require, prior to registering
any such transfer of the Units, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee, the Subsidiary Issuer or the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Unit in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in SECTION 2.15 of the Indenture shall have
been satisfied.
Dated: Signed:
------------- ----------------------------
(Sign exactly as your name
appears on the other side of
this Unit)
Signature Guarantee:
--------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Unit for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company and the
Subsidiary Issuer as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
------------- ------------------------------------
NOTICE: To be executed by an executive
officer
A-6
[FORM OF PARENT NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, NEITHER THIS NOTE NOR ANY
INTEREST IN IT MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE OR THE LAST DATE ON WHICH THIS
UNIT OR ANY INTEREST THEREIN WAS HELD BY THE COMPANY, THE SUBSIDIARY ISSUER OR
ANY AFFILIATE OF EITHER EXCEPT (A) TO THE HOCKEY COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3),
OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, THE HOLDER OF THIS NOTE AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST IN IT IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
A-7
THE HOCKEY COMPANY
11 1/4% SENIOR SECURED NOTE DUE 2009
No. $
The Hockey Company, a Delaware corporation (the "COMPANY," which term
includes any successor entity), for value received promises to pay to
or registered assigns the principal sum of Five Hundred Dollars (or such
principal amount as may be set forth in the records of the Trustee hereinafter
referred to in accordance with the Indenture) on April 15, 2009, and to pay
interest thereon as hereinafter set forth.
Interest Rate: 11 1/4%
Interest Payment Dates: October 15 and April 15, beginning October 15,
2002
Record Dates: October 1 and April 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
The Hockey Company
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Dated: Title:
A-8
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Secured Notes due 2009 referred to
in the within-mentionED Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By:
------------------------------
Authorized Signatory
A-9
(REVERSE OF SECURITY)
11 1/4% Senior Secured Note due 2009
1. NOT SEPARABLE. This Parent Note, together with the 11 1/4% Senior
Secured Note due 2009 of Sport Maska Inc. (the "SUBSIDIARY ISSUER"), comprise a
unit (each a "UNIT"). The Parent Notes and Subsidiary Issuer Notes are
collectively referred to as the "NOTES." This Parent Note is not separable and
not transferable except as a Unit.
2. INTEREST. The Hockey Company, a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Parent Note
at the rate per annum shown above. Interest on the Parent Notes will accrue from
the most recent date on which interest has been paid or, if no interest has been
paid, from April 3, 2002. The Company will pay interest semi-annually in arrears
on each Interest Payment Date, commencing October 15, 2002. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
3. METHOD OF PAYMENT. The Company shall pay interest on the Parent
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Parent Notes are cancelled on registration of transfer
or registration of exchange after such Record Date. Holders must surrender
Parent Notes to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. LEGAL
TENDER"). However, the Company may pay principal and interest by check payable
in such U.S. Legal Tender. The Company may deliver any such interest payment to
the Paying Agent or to a Holder at the Holder's registered address.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"TRUSTEE") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
5. INDENTURE. The Notes, Parent Guarantee, Subsidiary Issuer
Guarantee and the other Guarantees were issued under an Indenture, dated as of
April 3, 2002 (the "INDENTURE"), between the Company, the Subsidiary Issuer, the
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Parent Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Parent Notes are subject to all such terms, and Holders of
Units are referred to the Indenture and the TIA for a statement of them. The
Parent Notes are senior secured obligations of the Company. Each Holder, by
accepting a Parent Note, agrees to be bound by all of the terms and provisions
of the Indenture, as the same may be amended from time to time.
A-10
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, as Units, at
the joint option of the Company and the Subsidiary Issuer, in whole or in part
at any time or from time to time, on and after April 15, 2006, upon not less
than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on April 15 of the year set forth below,
plus, in each case, accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
2006...................................... 105.625%
2007...................................... 102.813%
2008 and thereafter....................... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or
from time to time, on or prior to April 15, 2005, the Company and the Subsidiary
Issuer may, at their joint option, use an amount equal to the net cash proceeds
of one or more Equity Offerings (as defined in the Indenture) to redeem up to
33 1/3% of the principal amount of their respective Notes, as Units, at a
redemption price equal to 111.25% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of redemption; PROVIDED that at
least 66 1/3% of the aggregate principal amount of Notes issued under the
Indenture remains outstanding immediately after any such redemption. In order to
effect the foregoing redemption with the proceeds of any Equity Offering, the
Company and the Subsidiary Issuer shall make such redemption not more than 120
days after the consummation of any such Equity Offering.
(c) TAX REDEMPTION. The Notes will be subject to redemption, as
Units, at the joint option of the Issuers, as a whole but not in part, at any
time upon not fewer than 30 nor more than 60 days' notice mailed to each Holder
at the addresses appearing in the register at a redemption price equal to 100%
of the principal amount of the Notes plus accrued interest to but excluding the
Redemption Date if an Issuer has become or would become obligated to pay on the
next date on which any amount would be payable under or with respect to the
Notes, any Additional Amounts as a result of any change or amendment to the laws
(or regulations promulgated thereunder) of Canada (or any subdivision thereof or
by any authority or agency therein or thereof having power to tax), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Units to be redeemed at such Holder's registered address. Units in
denominations larger than $1,000 may be redeemed in part.
8. OFFERS TO PURCHASE. SECTIONS 4.15 and 4.16 of the Indenture
provide that after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations contained therein, the Company
and the Subsidiary Issuer will jointly make an offer to purchase
A-11
certain amounts of the Notes, as Units, in accordance with the procedures set
forth in the Indenture.
9. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement among the Company, the Subsidiary Issuer, the Guarantors and the
Holders of the Initial Units, the Company and the Subsidiary Issuer will be
obligated to consummate an exchange offer. Upon such exchange offering made, the
Holder of a Unit shall have the right, subject to compliance with applicable
securities laws, to exchange such Unit for Series B 11 1/4% Senior Secured Notes
due 2009 (the "EXCHANGE UNITS"), which have been registered under the Securities
Act, in like principal amount and having terms identical to the Initial Units as
substitute evidence of indebtedness originally evidenced by the Initial Units.
The Holders of the Initial Units shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
10. DENOMINATIONS; TRANSFER; EXCHANGE. The Parent Notes are in
registered form, without coupons, in denominations of $500 and integral
multiples thereof.
11. PERSONS DEEMED OWNERS. The registered Holder of a Unit shall be
treated as the owner of it and the Notes of which it is composed for all
purposes.
12. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent may
pay the money back to the Company and the Subsidiary Issuer. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
13. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company and the
Subsidiary Issuer at any time deposit with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
14. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes or the Guarantees to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes or Guarantees in addition to or in place of certificated
Notes or Guarantees, comply with the TIA, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company, the Subsidiary Issuer and their Restricted
Subsidiaries to, among other
A-12
things, incur additional Indebtedness or Liens, make payments in respect of
their Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company and the Subsidiary
Issuer must annually report to the Trustee on compliance with such limitations.
16. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
17. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the Notes
unless it has received indemnity satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a majority in
aggregate principal amount of the Notes then outstanding to direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or the Guarantors shall have any liability for any obligation of the
Company under the Notes, the Guarantees or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder of a Note by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
20. GUARANTEES. Payment of principal and interest (including interest
on overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
21. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
22. GOVERNING LAW. The laws of the State of New York shall govern
this Note, the Guarantees and the Indenture, without regard to principles of
conflict of laws.
23. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common),
A-13
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of a Parent Note upon written
request and without charge a copy of the Indenture. Requests may be made to: The
Hockey Company, 0000 Xxxxxxxxx xx Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx,
Xxxxxx X0X 0X0, Attn: Chief Executive Officer.
A-14
FORM OF GUARANTEE
[Name of Guarantor] and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of [name of Guarantor] shall have any personal
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and Guarantees.
This Guarantee shall be binding upon [name of Guarantor] and its successors and
assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
[NAME OF GUARANTOR]
By:
------------------------------
Name:
Title:
A-15
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, check the appropriate
box:
SECTION 4.15 [ ]
SECTION 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, state the
amount you elect to have purchased:
$
-----------------------
Dated:
------------- ------------------------------------
NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
---------------
A-16
[FORM OF SUBSIDIARY ISSUER NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, WITHIN THIS NOTE NOR ANY
INTEREST IN IT MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE OR THE LAST DATE ON WHICH THIS
UNIT OR ANY INTEREST THEREIN WAS HELD BY THE COMPANY, THE SUBSIDIARY ISSUER OR
ANY AFFILIATE OF EITHER EXCEPT (A) TO SPORT MASKA INC. OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3),
OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, THE HOLDER OF THIS NOTE AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST IN IT IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
A-17
SPORT MASKA INC.
11 1/4% SENIOR SECURED NOTE DUE 2009
No. $
Sport Maska Inc., a New Brunswick corporation (the "COMPANY," which
term includes any successor entity), for value received promises to pay to or
registered assigns the principal sum of Five Hundred Dollars (or such principal
amount as may be set forth in the records of the Trustee hereinafter referred to
in accordance with the Indenture) on April 15, 2009.
Interest Rate: 11 1/4%
Interest Payment Dates: October 15 and April 15, beginning on
October 15, 2002
Record Dates: October 1 and April 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Sport Maska Inc.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Dated: Title:
A-18
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Secured Notes due 2009 referred to
in the within-mentionED Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By:
-------------------------------
Authorized Signatory
A-19
(REVERSE OF SECURITY)
11 1/4% Senior Secured Note due 2009
1. NOT SEPARABLE. This Subsidiary Issuer Note, together with the
11 1/4% Senior Secured Note due 2009 of The Hockey Company (the "COMPANY"),
comprise a unit (each a "UNIT"). The Subsidiary Issuer Notes and Parent Notes
are collectively referred to as the "Notes." This Subsidiary Issuer Note is not
separable and not transferable except as a Unit.
2. INTEREST. Sport Maska Inc., a New Brunswick corporation (the
"SPORT MASKA"), promises to pay interest on the principal amount of this
Subsidiary Issuer Note at the rate per annum shown above. Interest on the
Subsidiary Issuer Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from April 3, 2002. Sport Maska
will pay interest semi-annually in arrears on each Interest Payment Date,
commencing October 15, 2002. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
3. METHOD OF PAYMENT. Sport Maska shall pay interest on the
Subsidiary Issuer Notes (except defaulted interest) to the Persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Subsidiary Issuer Notes are
cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Subsidiary Issuer Notes to a Paying Agent to
collect principal payments. Sport Maska shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. LEGAL TENDER"). However, Sport Maska
may pay principal and interest by its check payable in such U.S. Legal Tender.
Sport Maska may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"TRUSTEE") will act as Paying Agent and Registrar. Parent and Sport Maska may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders.
5. INDENTURE. The Notes, Parent Guarantees and Guarantees were
issued under an Indenture, dated as of April 3, 2002 (the "INDENTURE"), between
the Company, the Subsidiary Issuer, the Guarantors and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Subsidiary Issuer Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Subsidiary Issuer Notes are subject to all such terms, and Holders
of Units are referred to the Indenture and the TIA for a statement of them. The
Subsidiary Issuer Notes are senior secured obligations of the Sport Maska Inc..
Each Holder, by accepting a Subsidiary Issuer Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
A-20
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, as Units, at
the joint option of the Company and Sport Maska, in whole or in part at any time
or from time to time, on and after April 15, 2006, upon not less than 30 nor
more than 60 days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on April 15 of the year set forth below, plus, in each case,
accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
2006...................................... 105.625%
2007...................................... 102.813%
2008 and thereafter....................... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to April 15, 2005, the Company and the Sport Maska
may, at their joint option, use an amount equal to the net cash proceeds of one
or more Equity Offerings (as defined in the Indenture) to redeem up to 33 1/3%
of the principal amount of their respective Notes, as Units, at a redemption
price equal to 111.25% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED that at least
66 2/3% of the aggregate principal amount of Notes issued under the Indenture
remains outstanding immediately after any such redemption. In order to effect
the foregoing redemption with the proceeds of any Equity Offering, the Company
and Sport Maska shall make such redemption not more than 120 days after the
consummation of any such Equity Offering.
(c) TAX REDEMPTION. The Notes will be subject to redemption, as
Units, at the joint option of the Issuers, as a whole but not in part, at any
time upon not fewer than 30 nor more than 60 days' notice mailed to each Holder
at the addresses appearing in the register at a redemption price equal to 100%
of the principal amount of the Notes plus accrued interest to but excluding the
Redemption Date if an Issuer has become or would become obligated to pay on the
next date on which any amount would be payable under or with respect to the
Notes, any Additional Amounts as a result of any change or amendment to the laws
(or regulations promulgated thereunder) of Canada (or any subdivision thereof or
by any authority or agency therein or thereof having power to tax), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Units to be redeemed at such Holder's registered address. Units in
denominations larger than $1,000 may be redeemed in part.
8. OFFERS TO PURCHASE. SECTIONS 4.15 and 4.16 of the Indenture
provide that after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations
A-21
contained therein, Sport Maska and the Company will jointly make an offer to
purchase certain amounts of the Notes, as Units, in accordance with the
procedures set forth in the Indenture.
9. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement among the Company, Sport Maska, the Guarantors and the Holders of the
Initial Units, the Company and Sport Maska will be obligated to consummate an
exchange offer. Upon such exchange offer being made, the Holder of a Unit shall
have the right, subject to compliance with applicable securities laws, to
exchange such Unit for Series B 11 1/4% Senior Secured Notes due 2009 (the
"EXCHANGE UNITS"), which have been registered under the Securities Act, in like
principal amount and having terms identical to the Initial Units as substitute
evidence of indebtedness originally evidenced by the Initial Units. The Holders
of the Initial Units shall be entitled to receive certain additional interest
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
10. DENOMINATIONS; TRANSFER; EXCHANGE. The Subsidiary Issuer Notes
are in registered form, without coupons, in denominations of $500 and integral
multiples thereof.
11. PERSONS DEEMED OWNERS. The registered Holder of a Unit shall be
treated as the owner of it for all purposes.
12. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to Sport Maska. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
13. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company and
Sport Maska at any time deposit with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, Sport Maska will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
14. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes or the Guarantees to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes or Guarantees in addition to or in place of certificated
Notes or Guarantees, comply with the TIA, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company, the Subsidiary Issuer and their Restricted
Subsidiaries to, among other
A-22
things, incur additional Indebtedness or Liens, make payments in respect of
their Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company and the Subsidiary
Issuer must annually report to the Trustee on compliance with such limitations.
16. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
17. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or the Guarantors shall have any liability for any obligation of the
Company under the Notes, the Guarantees or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder of a Note by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
20. GUARANTEES. Payment of principal and interest (including interest
on overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
21. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
22. GOVERNING LAW. The laws of the State of New York shall govern
this Note, the Guarantees and the Indenture, without regard to principles of
conflict of laws.
23. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common),
A-23
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of a Subsidiary Issuer Note
upon written request and without charge a copy of the Indenture. Requests may be
made to: Sport Maska Inc., 0000 Xxxxxxxxx xx Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxx, Xxxxxx X0X 0X0, Attn: Chief Executive Officer.
A-24
FORM OF GUARANTEE
[Name of Guarantor] and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of [name of Guarantor] shall have any personal
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Subsidiary Issuer
Notes and Guarantees. This Guarantee shall be binding upon [name of Guarantor]
and its successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
[NAME OF GUARANTOR]
By:
-------------------------------
Name:
Title:
A-25
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, check the appropriate
box:
SECTION 4.15 [ ]
SECTION 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, state the
amount you elect to have purchased:
$
------------------------
Dated:
------------- ------------------------------------
NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
--------------
A-26
EXHIBIT B
[FORM OF UNIT]
THIS UNIT IS A GLOBAL UNIT WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
THEREOF. THIS UNIT MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT
REGISTERED, AND NO TRANSFER OF THIS UNIT IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), TO THE HOCKEY COMPANY AND THE SUBSIDIARY
ISSUER OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOCKEY COMPANY AND SPORT MASKA INC.
Units Consisting of
$500 principal amount 11 1/4% Senior Secured Notes of The Hockey Company
due 2009 and $500 principal amount 11 1/4% Senior Secured Notes of
Sport Maska Inc. due 2009
No. ___
CUSIP No. _________ Certificate for _______ Units
Each of The Hockey Company, a Delaware corporation (the "COMPANY"),
which term includes any successor corporation, and Sport Maska Inc., a New
Brunswick corporation (the "SUBSIDIARY ISSUER"), which term includes any
successor corporation, hereby certifies that is the owner of
Units as described above, transferable only on the books of the
Company and the Subsidiary Issuer by the holder thereof in person or by his or
her duly authorized attorney on surrender of this Certificate properly endorsed.
Each Unit consists of $500 principal amount of 11 1/4% Senior Secured Notes due
2009 of the Company and $500 principal amount of 11 1/4% Senior Secured Notes
due 2009 of the Subsidiary Issuer (together, the "NOTES"). This Unit is issued
pursuant to the Indenture, dated as of April 3, 2002 among the Company, the
Subsidiary Issuer, the Guarantors and The Bank of New York, as Trustee, (the
"INDENTURE") and is subject to the terms and provisions contained therein, to
all of which terms and provisions the holder of this Unit Certificate consents
by acceptance hereof. The terms of the Notes, the Parent Guarantee, the
Subsidiary Issuer Guarantee and the other Guarantees are governed by the
Indenture, and are subject to the terms and provisions contained therein, to all
of which terms and provisions the holder of this Unit Certificate consents by
acceptance hereof.
Reference is made to the further provisions of this Unit Certificate
contained herein, which will for all purposes have the same effect as if set
forth at this place. Copies of the Indenture are on file at the office of the
Company and the Subsidiary Issuer and are available to any holder on written
request and without cost.
The Notes, Parent Guarantee, the Subsidiary Issuer Guarantee and
Guarantees represented by this Unit Certificate shall not be detachable or
separately transferable at any time.
If at any time, (i) the Depositary notifies the Company and the
Subsidiary Issuer that it is unwilling or unable to continue as Depositary or if
at any time the Depositary shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and a successor Depositary is not appointed by the Company
and the Subsidiary Issuer within 90 days after the Company and the Subsidiary
Issuer receive such notice or become aware of such condition, as the case may
be, or (ii) an Event of Default has occurred and is continuing and the Registrar
has received a request from the Depository to issue Physical Units, then in such
event the Company and the Subsidiary Issuer will execute, and the Trustee will
authenticate and deliver, Units in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of
B-2
this Global Security in exchange for this Global Security. Such Units in
definitive registered form shall be registered in such names and issued in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Units to the Persons in whose names such Global
Securities are so registered.
The Indenture and this Unit shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Unit which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Dated:
THE HOCKEY COMPANY
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
SPORT MASKA INC.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
B-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Units referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By:
--------------------------
Authorized Signatory
B-4
ASSIGNMENT FORM
If you the Holder want to assign this Unit, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Unit to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this Unit on the books of the Company and the Subsidiary
Issuer. The agent may substitute another to act for him.
Dated: Signed:
------------ -------------------------------------
(Sign exactly as your name appears on
the other side of this Unit)
Signature Guarantee:
-----------------------------
B-5
THE HOCKEY COMPANY
11 1/4% SENIOR SECURED NOTE DUE 2009
No. $
The Hockey Company, a Delaware corporation (the "Company," which term
includes any successor entity), for value received promises to pay to
or registered assigns the principal sum of Five Hundred Dollars (or such
principal amount as may be set forth in the records of the Trustee hereinafter
referred to in accordance with the Indenture) on April 15, 2009.
Interest Rate: 11 1/4%
Interest Payment Dates: October 15 and April 15, beginning on October
15, 2002
Record Dates: October 1 and April 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
The Hockey Company
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Dated: Title:
B-6
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Secured Notes due 2009 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By:
-----------------------------------
Authorized Signatory
B-7
(REVERSE OF SECURITY)
11 1/4% Senior Secured Note due 2009
1. NOT SEPARABLE. This Parent Note, together with the 11 1/4% Senior
Secured Note due 2009 of Sport Maska Inc. (the "SUBSIDIARY ISSUER"), comprise a
unit (each a "UNIT"). The Parent Notes and Subsidiary Issuer Notes are
collectively referred to as the "Notes." This Parent Note is not separable and
not transferable except as a Unit.
2. INTEREST. The Hockey Company, a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Parent Note
at the rate per annum shown above. Interest on the Parent Notes will accrue from
the most recent date on which interest has been paid or, if no interest has been
paid, from April 3, 2002. The Company will pay interest semi-annually in arrears
on each Interest Payment Date, commencing October 15, 2002. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
3. METHOD OF PAYMENT. The Company shall pay interest on the Parent
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Parent Notes are cancelled on registration of transfer
or registration of exchange after such Record Date. Holders must surrender
Parent Notes to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. LEGAL
TENDER"). However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"TRUSTEE") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
5. INDENTURE. The Notes, Parent Guarantees and Guarantees were
issued under an Indenture, dated as of April 3, 2002 (the "INDENTURE"), between
the Company, the Subsidiary Issuer, the Guarantors and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Parent Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Parent Notes are
subject to all such terms, and Holders of Units are referred to the Indenture
and the TIA for a statement of them. The Parent Notes are senior secured
obligations of the Company. Each Holder, by accepting a Parent Note, agrees to
be bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
B-8
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, as Units, at
the joint option of the Company and the Subsidiary Issuer, in whole or in part
at any time or from time to time, on and after April 15, 2006, upon not less
than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on April 15 of the year set forth below,
plus, in each case, accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
2006..................................... 105.625%
2007..................................... 102.813%
2008 and thereafter...................... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to April 15, 2005, the Company and the Subsidiary
Issuer may, at their joint option, use an amount equal to the net cash proceeds
of one or more Equity Offerings (as defined in the Indenture) to redeem up to
33 1/3% of the principal amount of their respective Notes, as Units, at a
redemption price equal to 111.25% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of redemption; PROVIDED that at
least 66 2/3% of the aggregate principal amount of Notes issued under the
Indenture remains outstanding immediately after any such redemption. In order to
effect the foregoing redemption with the proceeds of any Equity Offering, the
Company and the Subsidiary Issuer shall make such redemption not more than 120
days after the consummation of any such Equity Offering.
(c) TAX REDEMPTION. The Notes will be subject to redemption, as
Units, at the joint option of the Issuers, as a whole but not in part, at any
time upon not fewer than 30 nor more than 60 days' notice mailed to each Holder
at the addresses appearing in the register at a redemption price equal to 100%
of the principal amount of the Notes plus accrued interest to but excluding the
Redemption Date if an Issuer has become or would become obligated to pay on the
next date on which any amount would be payable under or with respect to the
Notes, any Additional Amounts as a result of any change or amendment to the laws
(or regulations promulgated thereunder) of Canada (or any subdivision thereof or
by any authority or agency therein or thereof having power to tax), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Units to be redeemed at such Holder's registered address. Units in
denominations larger than $1,000 may be redeemed in part.
8. OFFERS TO PURCHASE. SECTIONS 4.15 and 4.16 of the Indenture
provide that after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations contained therein, the Company
and the Subsidiary Issuer will jointly make an offer to purchase
B-9
certain amounts of the Notes, as Units, in accordance with the procedures set
forth in the Indenture.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Parent Notes are in
registered form, without coupons, in denominations of $500 and integral
multiples thereof.
10. PERSONS DEEMED OWNERS. The registered Holder of a Unit shall be
treated as the owner of it for all purposes.
11. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company and the Subsidiary Issuer. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
12. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company and the
Subsidiary Issuer at any time deposit with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
13. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes or the Guarantees to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes or Guarantees in addition to or in place of certificated
Notes or Guarantees, comply with the TIA, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company, the Subsidiary Issuer and their Restricted
Subsidiaries to, among other things, incur additional Indebtedness or Liens,
make payments in respect of their Capital Stock or certain Indebtedness, enter
into transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries, merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets or adopt a plan of liquidation. Such limitations are subject to a
number of important qualifications and exceptions. The Company and the
Subsidiary Issuer must annually report to the Trustee on compliance with such
limitations.
15. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
B-10
16. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or the Guarantors shall have any liability for any obligation of the
Company under the Notes, the Guarantees or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder of a Note by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
19. GUARANTEES. Payment of principal and interest (including interest
on overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
20. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
21. GOVERNING LAW. The laws of the State of New York shall govern
this Note, the Guarantees and the Indenture, without regard to principles of
conflict of laws.
22. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST
(Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of a Parent Note upon written
request and without charge a copy of the Indenture. Requests may be made to: The
Hockey Company, 0000 Xxxxxxxxx xx Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx,
Xxxxxx X0X 0X0, Attn: Chief Executive Officer.
B-11
FORM OF GUARANTEE
[Name of Guarantor] and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of [name of Guarantor] shall have any personal
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and Guarantees.
This Guarantee shall be binding upon [name of Guarantor] and its successors and
assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
[NAME OF GUARANTOR]
By:
-----------------------------------
Name:
Title:
B-12
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, check the appropriate
box:
SECTION 4.15 [ ]
SECTION 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, state the
amount you elect to have purchased:
$
-----------------------
Dated: ------------------------------------
-------------- NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
------------
B-13
SPORT MASKA INC.
11 1/4% SENIOR SECURED NOTE DUE 2009
No. $
Sport Maska Inc., a New Brunswick corporation (the "COMPANY," which
term includes any successor entity), for value received promises to pay to
or registered assigns the principal sum of Five Hundred Dollars (or
such principal amount as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture) on April 15, 2009.
Interest: 11 1/4%
Interest Payment Dates: October 15 and April 15, beginning on October
15, 2002
Record Dates: October 1 and April 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Sport Maska Inc.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Dated: Title:
B-14
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Secured Notes due 2009 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By:
-----------------------------------
Authorized Signatory
B-15
(REVERSE OF SECURITY)
11 1/4% Senior Secured Note due 2009
1. NOT SEPARABLE. This Subsidiary Issuer Note, together with the 11
1/4% Senior Secured Note due 2009 of The Hockey Company (the "COMPANY"),
comprise a unit (each a "UNIT"). The Subsidiary Issuer Notes and Parent Notes
are collectively referred to as the "NOTES." This Subsidiary Issuer Note is not
separable and not transferable except as a Unit.
2. INTEREST. Sport Maska Inc., a New Brunswick corporation (the
"SPORT MASKA"), promises to pay interest on the principal amount of this
Subsidiary Issuer Note at the rate per annum shown above. Interest on the
Subsidiary Issuer Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from April 3, 2002. Sport Maska
will pay interest semi-annually in arrears on each Interest Payment Date,
commencing October 15, 2002. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
3. METHOD OF PAYMENT. Sport Maska shall pay interest on the
Subsidiary Issuer Notes (except defaulted interest) to the Persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Subsidiary Issuer Notes are
cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Subsidiary Issuer Notes to a Paying Agent to
collect principal payments. Sport Maska shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. LEGAL TENDER"). However, Sport Maska
may pay principal and interest by its check payable in such U.S. Legal Tender.
Sport Maska may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"TRUSTEE") will act as Paying Agent and Registrar. Parent and Sport Maska may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders.
5. INDENTURE. The Notes, Parent Guarantees and Guarantees were
issued under an Indenture, dated as of April 3, 2002 (the "INDENTURE"), between
the Company, the Subsidiary Issuer, the Guarantors and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Subsidiary Issuer Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Subsidiary Issuer Notes are subject to all such terms, and Holders
of Units are referred to the Indenture and the TIA for a statement of them. The
Subsidiary Issuer Notes are senior secured obligations of the Sport Maska Inc..
Each Holder, by accepting a Subsidiary Issuer Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
B-16
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, as Units, at
the joint option of the Company and Sport Maska, in whole or in part at any time
or from time to time, on and after April 15, 2006, upon not less than 30 nor
more than 60 days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on April 15 of the year set forth below, plus, in each case,
accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
2006................................... 105.625%
2007................................... 102.813%
2008 and thereafter.................... 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to April 15, 2005, the Company and the Sport Maska
may, at their joint option, use an amount equal to the net cash proceeds of one
or more Equity Offerings (as defined in the Indenture) to redeem up to 33 1/3%
of the principal amount of their respective Notes, as Units, at a redemption
price equal to 111.25% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED that at least
66 2/3% of the aggregate principal amount of Notes issued under the Indenture
remains outstanding immediately after any such redemption. In order to effect
the foregoing redemption with the proceeds of any Equity Offering, the Company
and Sport Maska shall make such redemption not more than 120 days after the
consummation of any such Equity Offering.
(c) TAX REDEMPTION. The Notes will be subject to redemption, as
Units, at the joint option of the Issuers, as a whole but not in part, at any
time upon not fewer than 30 nor more than 60 days' notice mailed to each Holder
at the addresses appearing in the register at a redemption price equal to 100%
of the principal amount of the Notes plus accrued interest to but excluding the
Redemption Date if an Issuer has become or would become obligated to pay on the
next date on which any amount would be payable under or with respect to the
Notes, any Additional Amounts as a result of any change or amendment to the laws
(or regulations promulgated thereunder) of Canada (or any subdivision thereof or
by any authority or agency therein or thereof having power to tax), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Units to be redeemed at such Holder's registered address. Units in
denominations larger than $1,000 may be redeemed in part.
8. OFFERS TO PURCHASE. SECTIONS 4.15 and 4.16 of the Indenture
provide that after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations
B-17
contained therein, Sport Maska and the Company will jointly make an offer to
purchase certain amounts of the Notes, as Units, in accordance with the
procedures set forth in the Indenture.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Subsidiary Issuer Notes
are in registered form, without coupons, in denominations of $500 and integral
multiples thereof.
10. PERSONS DEEMED OWNERS. The registered Holder of a Unit shall be
treated as the owner of it for all purposes.
11. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to Sport Maska. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
12. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company and
Sport Maska at any time deposit with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, Sport Maska will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
13. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes or the Guarantees to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes or Guarantees in addition to or in place of certificated
Notes or Guarantees, comply with the TIA, or comply with Article Five of the
Indenture or make any other change that does not adversely affect in any
material respect the rights of any Holder of a Note.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company, the Subsidiary Issuer and their Restricted
Subsidiaries to, among other things, incur additional Indebtedness or Liens,
make payments in respect of their Capital Stock or certain Indebtedness, enter
into transactions with Affiliates, create dividend or other payment restrictions
affecting Subsidiaries, merge or consolidate with any other Person, sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its assets or adopt a plan of liquidation. Such limitations are subject to a
number of important qualifications and exceptions. The Company and the
Subsidiary Issuer must annually report to the Trustee on compliance with such
limitations.
15. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
B-18
16. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or the Guarantors shall have any liability for any obligation of the
Company under the Notes, the Guarantees or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder of a Note by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
19. GUARANTEES. Payment of principal and interest (including interest
on overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
20. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
21. GOVERNING LAW. The laws of the State of New York shall govern
this Note, the Guarantees and the Indenture, without regard to principles of
conflict of laws.
22. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST
(Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of a Subsidiary Issuer Note
upon written request and without charge a copy of the Indenture. Requests may be
made to: Sport Maska Inc., 0000 Xxxxxxxxx xx Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxx, Xxxxxx X0X 0X0, Attn: Chief Executive Officer.
B-19
FORM OF GUARANTEE
The Hockey Company and its successors under the Indenture, hereby
irrevocably and unconditionally guarantees, on a senior secured basis, (i) the
due and punctual payment of the principal of, premium, if any, and interest on
the Subsidiary Issuer Notes, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal of and
interest, if any, on the Subsidiary Issuer Notes, to the extent lawful, and the
due and punctual performance of all other obligations of Sport Maska Inc. (the
"COMPANY") to the Holders or the Trustee all in accordance with the terms set
forth in Article Ten of the Indenture, (ii) in case of any extension of time of
payment or renewal of any Subsidiary Issuer Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of The Hockey Company shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Subsidiary Issuer Notes and
Guarantees. This Guarantee shall be binding upon The Hockey Company and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
THE HOCKEY COMPANY
By:
-----------------------------------
Name:
Title:
B-20
FORM OF GUARANTEE
[Name of Guarantor] and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of [name of Guarantor] shall have any personal
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Subsidiary Issuer
Notes and Guarantees. This Guarantee shall be binding upon [name of Guarantor]
and its successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
[NAME OF GUARANTOR]
By:
-----------------------------------
Name:
Title:
B-21
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, check the appropriate
box:
SECTION 4.15 [ ]
SECTION 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, state the
amount you elect to have purchased:
$
------------------------
Dated: -----------------------------------
-------------- NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
--------------
B-22
EXHIBIT C
FORM OF LEGEND FOR GLOBAL NOTES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
C-1
EXHIBIT D
Form of Certificate To Be
Delivered in Connection with
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
___________, ____
The Bank of New York
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, XX 00000
Re: The Hockey Company and Sport Maska Inc. (the "Companies")
11 1/4% SENIOR SECURED NOTE UNITS DUE 2009 (THE "UNITS")
Ladies and Gentlemen:
In connection with our proposed purchase of $_____ aggregate principal
amount of the Units, we confirm that:
1. We have received a copy of the Offering Circular (the "OFFERING
CIRCULAR"), dated March 26, 2002, relating to the Units and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated in the section
entitled "Transfer Restrictions" of the Offering Memorandum.
2. We understand that any subsequent transfer of the Units is
subject to certain restrictions and conditions set forth in the Indenture dated
as of April 3, 2002 relating to the Units (the "INDENTURE") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Units
except in compliance with, such restrictions and conditions and the Securities
Act of 1933, as amended (the "SECURITIES ACT").
3. We understand that the offer and sale of the Units have not been
registered under the Securities Act, and that the Units may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell or otherwise transfer any Units prior to the date which
is within two years after the original issuance of the Units or the last date on
which the Unit is owned by either of the Companies or any affiliate of the
Companies, we will do so only (i) to the Companies or any of its subsidiaries,
(ii) inside the United States in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act), (iii) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you a signed letter
containing certain representations and agreements
D-1
relating to the restrictions on transfer of the Units, substantially in the form
of this letter, (iv) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(vi) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing any of the Units from
us a notice advising such purchaser that resales of the Units are restricted as
stated herein.
4. We are not acquiring the Units for or on behalf of, and will not
transfer the Units to, any pension or welfare plan (as defined in SECTION 3 of
the Employee Retirement Income Security Act of 1974), except as permitted in the
section entitled "Transfer Restrictions" of the Offering Memorandum.
5. We understand that, on any proposed resale of any Units, we will
be required to furnish to you and the Companies such certification, legal
opinions and other information as you and the Companies may reasonably require
to confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Units purchased by us will bear a legend to the
foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Units, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or their investment, as the case may be.
7. We are acquiring the Units purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Companies are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby, and we agree to notify you promptly if
any of our representations or warranties herein cease to be accurate and
complete.
This letter shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflicts of
laws.
Very truly yours,
[Name of Transferee]
By:
--------------------------------
Authorized Signature
D-2
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
TRANSFERS PURSUANT TO REGULATION S
The Bank of New York
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, XX 00000
Re: The Hockey Company and Sport Maska Inc. (the "COMPANIES")
11 1/4% SENIOR SECURED NOTE UNITS DUE 2009 (THE "UNITS")
Ladies and Gentlemen:
In connection with our proposed sale of $____ aggregate principal
amount of the Units, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "SECURITIES ACT"), and, accordingly, we represent that:
1. the offer of the Units was not made to a person in the United
States;
2. either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
3. no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable;
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
5. we have advised the transferee of the transfer restrictions
applicable to the Units.
E-1
You and the Companies are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:
---------------------------------
Authorized Signature
E-2
NEITHER THIS UNIT NOR ANY INTEREST IN THIS UNIT MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
RESTRICTIVE LEGEND APPEARING ON EACH NOTE INCLUDED IN THIS UNIT.
THIS UNIT IS A GLOBAL UNIT WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. THIS UNIT MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A UNIT REGISTERED, AND NO TRANSFER OF THIS UNIT IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE CASE OF A TRANSFER OF
AN INTEREST TO A PERSON THAT IS REQUIRED UNDER THE INDENTURE TO HOLD
PHYSICAL UNITS AND EXCEPT IN THE OTHER LIMITED CIRCUMSTANCES SET FORTH
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY ("DTC"), TO THE HOCKEY COMPANY AND THE
SUBSIDIARY ISSUER OR THEIR AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOCKEY COMPANY AND SPORT MASKA INC.
Units Consisting of
$500 principal amount 11 1/4% Senior Secured Notes of
The Hockey Company due 2009 and $500 principal amount 11 1/4% Senior Secured
Notes of Sport Maska Inc. due 2009
Xx. 0
XXXXX Xx. 000000XX0 Certificate for 124,895 Units
Each of The Hockey Company, a Delaware corporation (the "COMPANY"),
which term includes any successor corporation, and Sport Maska Inc., a New
Brunswick corporation (the "SUBSIDIARY ISSUER"), which term includes any
successor corporation, hereby certifies that Cede & Co. is the owner of One
Hundred Twenty-Four Thousand Eight Hundred Ninety-Five (124,895) Units as
described above, transferable only on the books of the Company and the
Subsidiary Issuer by the holder thereof in person or by his or her duly
authorized attorney on surrender of this Certificate properly endorsed. Each
Unit consists of $500 principal amount of 11 1/4% Senior Secured Notes due 2009
of the Company and $500 principal amount of 11 1/4% Senior Secured Notes due
2009 of the Subsidiary Issuer (together, the "NOTES"). This Unit is issued
pursuant to the Indenture, dated as of April 3, 2002 among the Company, the
Subsidiary Issuer, the Guarantors and The Bank of New York, as Trustee, (the
"INDENTURE") and is subject to the terms and provisions contained therein, to
all of which terms and provisions the holder of this Unit Certificate consents
by acceptance hereof. The terms of the Notes, the Parent Guarantee, the
Subsidiary Issuer Guarantee and the other Guarantees are governed by the
Indenture, and are subject to the terms and provisions contained therein, to all
of which terms and provisions the holder of this Unit Certificate consents by
acceptance hereof.
Reference is made to the further provisions of this Unit Certificate
contained herein, which will for all purposes have the same effect as if set
forth at this place. Copies of the Indenture are on file at the office of the
Company and the Subsidiary Issuer and are available to any holder on written
request and without cost.
The Notes, the Parent Guarantee, the Subsidiary Issuer Guarantee and
Guarantees represented by this Unit Certificate shall not be detachable or
separately transferable at any time.
If at any time, (i) the Depositary notifies the Company and the
Subsidiary Issuer that it is unwilling or unable to continue as Depositary or if
at any time the Depositary shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and a successor Depositary is not appointed by the Company
and the Subsidiary Issuer within 90 days after the Company and the Subsidiary
Issuer receive such notice or become aware of such condition, as the case may
be, or (ii) an Event of Default has occurred and is continuing and the Registrar
has received a request from the Depository to issue Physical Units, then in such
event the Company and the Subsidiary Issuer will execute, and the Trustee will
authenticate and deliver, Units in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of this Global Security in exchange for this Global Security. Such Units
in definitive registered form shall be registered in such names and issued in
such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Units to
the Persons in whose names such Global Securities are so registered.
The Indenture and this Unit shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Unit which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Dated: April 3, 2002
THE HOCKEY COMPANY
By:
------------------------------
Name:
Title:
SPORT MASKA INC.
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Units referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: April 3, 2002 By:
--------------------------------
Authorized Signatory
ASSIGNMENT FORM
If you the Holder want to assign this Unit, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Unit to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Unit on the books of the Company and the Subsidiary
Issuer. The agent may substitute another to act for him.
Dated: Signed:
-------------------- -------------------------------
(Sign exactly as your name
appears on the other side of
this Unit)
Signature Guarantee:
------------------------------
In connection with any transfer of this Unit occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), covering resales of this Unit (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) April 3, 2004, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Unit is being transferred:
[CHECK ONE]
(1)_____ to the Company or a subsidiary thereof; or
(2)_____ pursuant to and in compliance with Rule 144A under the
Securities Act; or
(3)_____ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4)_____ outside the United States to a person other than a "U.S. person" in
compliance with Rule 904 of Regulation S under the Securities Act; or
(5)_____ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(6)_____ pursuant to an effective registration statement under the Securities
Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Units evidenced by this certificate in the name of any person other than the
registered Holder thereof; PROVIDED that if box (3), (4) or (5) is checked, the
Company, the Subsidiary Issuer or the Trustee may require, prior to registering
any such transfer of the Units, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee, the Subsidiary Issuer or the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Unit in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in SECTION 2.15 of the Indenture shall have
been satisfied.
Dated: Signed:
-------------------- -------------------------------
(Sign exactly as your name
appears on the other side of
this Unit)
Signature Guarantee:
------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Unit for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company and the
Subsidiary Issuer as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:
-------------------- --------------------------------------
NOTICE: To be executed by an
executive officer
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, NEITHER THIS NOTE NOR ANY
INTEREST IN IT MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE OR THE LAST DATE ON WHICH THIS
UNIT OR ANY INTEREST THEREIN WAS HELD BY THE COMPANY, THE SUBSIDIARY ISSUER OR
ANY AFFILIATE OF EITHER EXCEPT (A) TO THE HOCKEY COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3),
OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, THE HOLDER OF THIS NOTE AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST IN IT IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
THE HOCKEY COMPANY
11 1/4% SENIOR SECURED NOTE DUE 2009
No. 1 $62,447,500.00
The Hockey Company, a Delaware corporation (the "COMPANY," which term
includes any successor entity), for value received promises to pay to CEDE & CO.
or registered assigns the principal sum of SIXTY-TWO MILLION FOUR HUNDRED
FORTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS AND 00/100 ($62,447,500.00) (or such
principal amount as may be set forth in the records of the Trustee hereinafter
referred to in accordance with the Indenture) on April 15, 2009, and to pay
interest thereon as hereinafter set forth.
Interest Rate: 11 1/4%
Interest Payment Dates: October 15 and April 15, beginning October 15,
2002
Record Dates: October 1 and April 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
The Hockey Company
By:
-------------------------------
Name:
Title:
Dated: April 3, 2002
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Secured Notes due 2009 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: April 3, 2002 By:
-------------------------------
Authorized Signatory
(REVERSE OF SECURITY)
11 1/4% Senior Secured Note due 2009
1. NOT SEPARABLE. This Parent Note, together with the 11 1/4% Senior
Secured Note due 2009 of Sport Maska Inc. (the "SUBSIDIARY ISSUER"), comprise a
unit (each a "UNIT"). The Parent Notes and Subsidiary Issuer Notes are
collectively referred to as the "NOTES." This Parent Note is not separable and
not transferable except as a Unit.
2. INTEREST. The Hockey Company, a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Parent Note
at the rate per annum shown above. Interest on the Parent Notes will accrue from
the most recent date on which interest has been paid or, if no interest has been
paid, from April 3, 2002. The Company will pay interest semi-annually in arrears
on each Interest Payment Date, commencing October 15, 2002. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
3. METHOD OF PAYMENT. The Company shall pay interest on the Parent
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date even if the Parent Notes are cancelled on registration of transfer
or registration of exchange after such Record Date. Holders must surrender
Parent Notes to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts ("U.S. LEGAL
TENDER"). However, the Company may pay principal and interest by check payable
in such U.S. Legal Tender. The Company may deliver any such interest payment to
the Paying Agent or to a Holder at the Holder's registered address.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"TRUSTEE") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
5. INDENTURE. The Notes, Parent Guarantee, Subsidiary Issuer
Guarantee and the other Guarantees were issued under an Indenture, dated as of
April 3, 2002 (the "INDENTURE"), between the Company, the Subsidiary Issuer, the
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Parent Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Parent Notes are subject to all such terms, and Holders of
Units are referred to the Indenture and the TIA for a statement of them. The
Parent Notes are senior secured obligations of the Company. Each Holder, by
accepting a Parent Note, agrees to be bound by all of the terms and provisions
of the Indenture, as the same may be amended from time to time.
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, as Units, at
the joint option of the Company and the Subsidiary Issuer, in whole or in part
at any time or from time to time, on and after April 15, 2006, upon not less
than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on April 15 of the year set forth below,
plus, in each case, accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
2006............................................... 105.625%
2007............................................... 102.813%
2008 and thereafter................................ 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to April 15, 2005, the Company and the Subsidiary
Issuer may, at their joint option, use an amount equal to the net cash proceeds
of one or more Equity Offerings (as defined in the Indenture) to redeem up to
33 1/3% of their respective outstanding Notes, as Units, at a redemption price
equal to 111.25% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED that at least
66 2/3% of the aggregate principal amount of Notes issued under the Indenture
remains outstanding immediately after any such redemption. In order to effect
the foregoing redemption with the proceeds of any Equity Offering, the Company
and the Subsidiary Issuer shall make such redemption not more than 120 days
after the consummation of any such Equity Offering.
(c) TAX REDEMPTION. The Notes will be subject to redemption, as
Units, at the joint option of the Issuers, as a whole but not in part, at any
time upon not fewer than 30 nor more than 60 days' notice mailed to each Holder
at the addresses appearing in the register at a redemption price equal to 100%
of the principal amount of the Notes plus accrued interest to but excluding the
Redemption Date if an Issuer has become or would become obligated to pay on the
next date on which any amount would be payable under or with respect to the
Notes, any Additional Amounts as a result of any change or amendment to the laws
(or regulations promulgated thereunder) of Canada (or any subdivision thereof or
by any authority or agency therein or thereof having power to tax), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Units to be redeemed at such Holder's registered address. Units in
denominations larger than $1,000 may be redeemed in part.
8. OFFERS TO PURCHASE. SECTIONS 4.15 and 4.16 of the Indenture
provide that after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations contained therein, the Company
and the Subsidiary Issuer will jointly make an offer to purchase
certain amounts of the Notes, as Units, in accordance with the procedures set
forth in the Indenture.
9. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement among the Company, the Subsidiary Issuer, the Guarantors and the
Holders of the Initial Units, the Company and the Subsidiary Issuer will be
obligated to consummate an exchange offer. Upon such exchange offering being
made, the Holder of a Unit shall have the right, subject to compliance with
applicable Canadian securities laws, to exchange such Unit for Series B 11 1/4%
Senior Secured Notes due 2009 (the "EXCHANGE UNITS"), which have been registered
under the Securities Act, in like principal amount and having terms identical to
the Initial Units as substitute evidence of indebtedness originally evidenced by
the Initial Units. The Holders of the Initial Units shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.
10. DENOMINATIONS; TRANSFER; EXCHANGE. The Parent Notes are in
registered form, without coupons, in denominations of $500 and integral
multiples thereof.
11. PERSONS DEEMED OWNERS. The registered Holder of a Unit shall be
treated as the owner of it and the Notes of which it is composed for all
purposes.
12. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent may
pay the money back to the Company and the Subsidiary Issuer. After that, all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
13. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company and the
Subsidiary Issuer at any time deposit with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
14. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes or the Guarantees to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes or Guarantees in addition to or in place of certificated
Notes or Guarantees, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material respect the rights
of any Holder of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company, the Subsidiary Issuer and their Restricted
Subsidiaries to, among other
things, incur additional Indebtedness or Liens, make payments in respect of
their Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company and the Subsidiary
Issuer must annually report to the Trustee on compliance with such limitations.
16. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
17. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the Notes
unless it has received indemnity satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a majority in
aggregate principal amount of the Notes then outstanding to direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of
Notes notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or the Guarantors shall have any liability for any obligation of the
Company under the Notes, the Guarantees or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder of a Note by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
20. GUARANTEES. Payment of principal and interest (including interest
on overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
21. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
22. GOVERNING LAW. The laws of the State of New York shall govern
this Note, the Guarantees and the Indenture, without regard to principles of
conflict of laws.
23. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as:
TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of a Parent Note upon written
request and without charge a copy of the Indenture. Requests may be made to: The
Hockey Company, 0000 Xxxxxxxxx xx Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx,
Xxxxxx X0X 0X0, Attn: Chief Executive Officer.
GUARANTEE
Sport Maska Inc. and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Sport Maska Inc. shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and Guarantees. This
Guarantee shall be binding upon Sport Maska Inc. and its successors and assigns
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SPORT MASKA INC.
By:
-------------------------------
Name:
Title:
GUARANTEE
Sports Holdings Corp. and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Sports Holdings Corp. shall have any personal
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and Guarantees.
This Guarantee shall be binding upon Sports Holdings Corp. and its successors
and assigns and shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred
upon that party shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SPORTS HOLDINGS CORP.,
By:
-------------------------------
Name:
Title:
GUARANTEE
Maska U.S., Inc. and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Maska U.S., Inc. shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and Guarantees. This
Guarantee shall be binding upon Maska U.S., Inc. and its successors and assigns
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
MASKA U.S., INC.
By:
-------------------------------
Name:
Title:
GUARANTEE
SLM Trademark Acquisition, Corp. and its successors under the
Indenture, jointly and severally with any other Guarantors, hereby irrevocably
and unconditionally guarantees, on an unsecured senior basis, (i) the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on the
Notes, to the extent lawful, and the due and punctual performance of all other
obligations of The Hockey Company (the "COMPANY") to the Holders or the Trustee
all in accordance with the terms set forth in Article Ten of the Indenture, (ii)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise and (iii) has agreed to pay any
and all costs and expenses (including reasonable attorneys' fees) incurred by
the Trustee or any Holder in enforcing any rights under this Guarantee.
Capitalized terms used herein have the meanings assigned to them in the
Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of SLM Trademark Acquisition, Corp. shall have any
personal liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and Guarantees.
This Guarantee shall be binding upon SLM Trademark Acquisition, Corp. and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SLM TRADEMARK ACQUISITION, CORP.
By:
-------------------------------
Name:
Title:
GUARANTEE
WAP Holdings Inc. and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of WAP Holdings Inc. shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and Guarantees. This
Guarantee shall be binding upon WAP Holdings Inc. and its successors and assigns
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
WAP HOLDINGS INC.
By:
-------------------------------
Name:
Title:
GUARANTEE
SLM Trademark Acquisition Canada Corp. and its successors under the
Indenture, jointly and severally with any other Guarantors, hereby irrevocably
and unconditionally guarantees, on an unsecured senior basis, (i) the due and
punctual payment of the principal of, premium, if any, and interest on the
Notes, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on the
Notes, to the extent lawful, and the due and punctual performance of all other
obligations of The Hockey Company (the "COMPANY") to the Holders or the Trustee
all in accordance with the terms set forth in Article Ten of the Indenture, (ii)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise and (iii) has agreed to pay any
and all costs and expenses (including reasonable attorneys' fees) incurred by
the Trustee or any Holder in enforcing any rights under this Guarantee.
Capitalized terms used herein have the meanings assigned to them in the
Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of SLM Trademark Acquisition Canada Corp. shall have
any personal liability under this Guarantee by reason of his or its status as
such stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and Guarantees.
This Guarantee shall be binding upon SLM Trademark Acquisition Canada Corp. and
its successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SLM TRADEMARK ACQUISITION CANADA CORP.
By:
-------------------------------
Name:
Title:
GUARANTEE
Jofa AB and its successors under the Indenture, jointly and severally
with any other Guarantors, hereby irrevocably and unconditionally guarantees, on
an unsecured senior basis, (i) the due and punctual payment of the principal of,
premium, if any, and interest on the Notes, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the overdue principal
of and interest, if any, on the Notes, to the extent lawful, and the due and
punctual performance of all other obligations of The Hockey Company (the
"COMPANY") to the Holders or the Trustee all in accordance with the terms set
forth in Article Ten of the Indenture, (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise and (iii) has agreed to pay any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder in enforcing
any rights under this Guarantee. Capitalized terms used herein have the meanings
assigned to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Jofa AB shall have any personal liability under this
Guarantee by reason of his or its status as such stockholder, employee, officer,
director or incorporator. Each Holder by accepting this Guarantee waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and Guarantees. This Guarantee shall be
binding upon Jofa AB and its successors and assigns and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
JOFA AB
By:
-------------------------------
Name:
Title:
GUARANTEE
Jofa Holding AB and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on an unsecured senior basis, (i) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of The
Hockey Company (the "COMPANY") to the Holders or the Trustee all in accordance
with the terms set forth in Article Ten of the Indenture, (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Jofa Holding AB shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and Guarantees. This
Guarantee shall be binding upon Jofa Holding AB and its successors and assigns
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
JOFA HOLDING AB
By:
-------------------------------
Name:
Title:
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, check the appropriate
box:
SECTION 4.15 [ ]
SECTION 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, state the
amount you elect to have purchased:
$
------------------------
Dated:
-------------- -----------------------------------
NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
--------------
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, WITHIN THIS NOTE NOR ANY
INTEREST IN IT MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE OR THE LAST DATE ON WHICH THIS
UNIT OR ANY INTEREST THEREIN WAS HELD BY THE COMPANY, THE SUBSIDIARY ISSUER OR
ANY AFFILIATE OF EITHER EXCEPT (A) TO SPORT MASKA INC. OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3),
OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR")) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, THE HOLDER OF THIS NOTE AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST IN IT IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS NOTE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
SPORT MASKA INC.
11 1/4% SENIOR SECURED NOTE DUE 2009
No. 1 $62,447,500.00
Sport Maska Inc., a New Brunswick corporation (the "COMPANY," which
term includes any successor entity), for value received promises to pay to CEDE
& CO. or registered assigns the principal sum of SIXTY-TWO MILLION FOUR HUNDRED
FORTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS AND 00/100 ($62,447,500.00) (or such
principal amount as may be set forth in the records of the Trustee hereinafter
referred to in accordance with the Indenture) on April 15, 2009.
Interest Rate: 11 1/4%
Interest Payment Dates: October 15 and April 15, beginning on October
15, 2002
Record Dates: October 1 and April 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Sport Maska Inc.
By:
-------------------------------
Name:
Title:
Dated: April 3, 2002
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 11 1/4% Senior Secured Notes due 2009 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: April 3, 2002 By:
-------------------------------
Authorized Signatory
(REVERSE OF SECURITY)
11 1/4% Senior Secured Note due 2009
1. NOT SEPARABLE. This Subsidiary Issuer Note, together with the 11
1/4% Senior Secured Note due 2009 of The Hockey Company (the "COMPANY"),
comprise a unit (each a "UNIT"). The Subsidiary Issuer Notes and Parent Notes
are collectively referred to as the "Notes." This Subsidiary Issuer Note is not
separable and not transferable except as a Unit.
2. INTEREST. Sport Maska Inc., a New Brunswick corporation (the
"SPORT MASKA"), promises to pay interest on the principal amount of this
Subsidiary Issuer Note at the rate per annum shown above. Interest on the
Subsidiary Issuer Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from April 3, 2002. Sport Maska
will pay interest semi-annually in arrears on each Interest Payment Date,
commencing October 15, 2002. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
3. METHOD OF PAYMENT. Sport Maska shall pay interest on the
Subsidiary Issuer Notes (except defaulted interest) to the Persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Subsidiary Issuer Notes are
cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Subsidiary Issuer Notes to a Paying Agent to
collect principal payments. Sport Maska shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. LEGAL TENDER"). However, Sport Maska
may pay principal and interest by its check payable in such U.S. Legal Tender.
Sport Maska may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
4. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York (the
"TRUSTEE") will act as Paying Agent and Registrar. Parent and Sport Maska may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders.
5. INDENTURE. The Notes, Parent Guarantees and Guarantees were
issued under an Indenture, dated as of April 3, 2002 (the "INDENTURE"), between
the Company, the Subsidiary Issuer, the Guarantors and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Subsidiary Issuer Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Subsidiary Issuer Notes are subject to all such terms, and Holders
of Units are referred to the Indenture and the TIA for a statement of them. The
Subsidiary Issuer Notes are senior secured obligations of the Sport Maska Inc..
Each Holder, by accepting a Subsidiary Issuer Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
6. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Notes will be redeemable, as Units, at
the joint option of the Company and Sport Maska, in whole or in part at any time
or from time to time, on and after April 15, 2006, upon not less than 30 nor
more than 60 days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the twelve-month
period commencing on April 15 of the year set forth below, plus, in each case,
accrued interest thereon to the date of redemption:
Year Percentage
---- ----------
2006............................................... 105.625%
2007............................................... 102.813%
2008 and thereafter................................ 100.000%
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time, or from
time to time, on or prior to April 15, 2005, the Company and the Sport Maska
may, at their joint option, use an amount equal to the net cash proceeds of one
or more Equity Offerings (as defined in the Indenture) to redeem up to 33 1/3%
of their respective outstanding Notes, as Units, at a redemption price equal to
111.25% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date of redemption; PROVIDED that at least 66 2/3% of
the aggregate principal amount of Notes issued under the Indenture remains
outstanding immediately after any such redemption. In order to effect the
foregoing redemption with the proceeds of any Equity Offering, the Company and
Sport Maska shall make such redemption not more than 120 days after the
consummation of any such Equity Offering.
(c) TAX REDEMPTION. The Notes will be subject to redemption, as
Units, at the joint option of the Issuers, as a whole but not in part, at any
time upon not fewer than 30 nor more than 60 days' notice mailed to each Holder
at the addresses appearing in the register at a redemption price equal to 100%
of the principal amount of the Notes plus accrued interest to but excluding the
Redemption Date if an Issuer has become or would become obligated to pay on the
next date on which any amount would be payable under or with respect to the
Notes, any Additional Amounts as a result of any change or amendment to the laws
(or regulations promulgated thereunder) of Canada (or any subdivision thereof or
by any authority or agency therein or thereof having power to tax), or any
change in or amendment to any official position or administration or assessing
practices regarding the application or interpretation of such laws or
regulations, which change or amendment is announced or becomes effective on or
after the Issue Date.
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Units to be redeemed at such Holder's registered address. Units in
denominations larger than $1,000 may be redeemed in part.
8. OFFERS TO PURCHASE. SECTIONS 4.15 and 4.16 of the Indenture
provide that after certain Asset Sales (as defined in the Indenture) and upon
the occurrence of a Change of Control Triggering Event (as defined in the
Indenture), and subject to further limitations
contained therein, Sport Maska and the Company will jointly make an offer to
purchase certain amounts of the Notes, as Units, in accordance with the
procedures set forth in the Indenture.
9. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement among the Company, Sport Maska, the Guarantors and the Holders of the
Initial Units, the Company and Sport Maska will be obligated to consummate an
exchange offer. Upon such exchange offer being made, the Holder of a Unit shall
have the right, subject to compliance with applicable Canadian securities laws,
to exchange such Unit for Series B 11 1/4% Senior Secured Notes due 2009 (the
"EXCHANGE UNITS"), which have been registered under the Securities Act, in like
principal amount and having terms identical to the Initial Units as substitute
evidence of indebtedness originally evidenced by the Initial Units. The Holders
of the Initial Units shall be entitled to receive certain additional interest
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
10. DENOMINATIONS; TRANSFER; EXCHANGE. The Subsidiary Issuer Notes
are in registered form, without coupons, in denominations of $500 and integral
multiples thereof.
11. PERSONS DEEMED OWNERS. The registered Holder of a Unit shall be
treated as the owner of it for all purposes.
12. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to Sport Maska. After that, all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
13. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company and
Sport Maska at any time deposit with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and comply with the other provisions of the
Indenture relating thereto, Sport Maska will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
14. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions, the
Indenture, the Notes or the Guarantees may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Notes or the Guarantees to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes or Guarantees in addition to or in place of certificated
Notes or Guarantees, or comply with Article Five of the Indenture or make any
other change that does not adversely affect in any material respect the rights
of any Holder of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company, the Subsidiary Issuer and their Restricted
Subsidiaries to, among other
things, incur additional Indebtedness or Liens, make payments in respect of
their Capital Stock or certain Indebtedness, enter into transactions with
Affiliates, create dividend or other payment restrictions affecting
Subsidiaries, merge or consolidate with any other Person, sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
assets or adopt a plan of liquidation. Such limitations are subject to a number
of important qualifications and exceptions. The Company and the Subsidiary
Issuer must annually report to the Trustee on compliance with such limitations.
16. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes, the
Guarantees and the Indenture, the predecessor will be released from those
obligations.
17. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity reasonably satisfactory to it. The
Indenture permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding to direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company or the Guarantors shall have any liability for any obligation of the
Company under the Notes, the Guarantees or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder of a Note by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
20. GUARANTEES. Payment of principal and interest (including interest
on overdue principal and overdue interest, if lawful) is unconditionally
guaranteed, jointly and severally, by each of the Guarantors.
21. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
22. GOVERNING LAW. The laws of the State of New York shall govern
this Note, the Guarantees and the Indenture, without regard to principles of
conflict of laws.
23. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as:
TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (Custodian), and*
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Holder of a Subsidiary Issuer Note
upon written request and without charge a copy of the Indenture. Requests may be
made to: Sport Maska Inc., 0000 Xxxxxxxxx xx Xxxxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxx, Xxxxxx X0X 0X0, Attn: Chief Executive Officer.
GUARANTEE
The Hockey Company and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of The Hockey Company shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Subsidiary Issuer Notes and
Guarantees. This Guarantee shall be binding upon The Hockey Company and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
THE HOCKEY COMPANY
By:
-------------------------------
Name:
Title:
GUARANTEE
Sports Holdings Corp. and its successors under the Indenture, jointly
and severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Sports Holdings Corp. shall have any personal
liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Subsidiary Issuer
Notes and Guarantees. This Guarantee shall be binding upon Sports Holdings Corp.
and its successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SPORTS HOLDINGS CORP.
By:
-------------------------------
Name:
Title:
GUARANTEE
Maska U.S., Inc. and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Maska U.S., Inc. shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Subsidiary Issuer Notes and
Guarantees. This Guarantee shall be binding upon Maska U.S., Inc. and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
MASKA U.S., INC.
By:
-------------------------------
Name:
Title:
GUARANTEE
SLM Trademark Acquisition, Corp. and its successors under the
Indenture, jointly and severally with any other Guarantors, hereby irrevocably
and unconditionally guarantees, on a senior secured basis, (i) the due and
punctual payment of the principal of, premium, if any, and interest on the
Subsidiary Issuer Notes, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal of and interest,
if any, on the Subsidiary Issuer Notes, to the extent lawful, and the due and
punctual performance of all other obligations of Sport Maska Inc. (the
"COMPANY") to the Holders or the Trustee all in accordance with the terms set
forth in Article Ten of the Indenture, (ii) in case of any extension of time of
payment or renewal of any Subsidiary Issuer Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of SLM Trademark Acquisition, Corp. shall have any
personal liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Subsidiary Issuer
Notes and Guarantees. This Guarantee shall be binding upon SLM Trademark
Acquisition, Corp. and its successors and assigns and shall inure to the benefit
of the successors and assigns of the Trustee and the Holders and, in the event
of any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges herein conferred upon that party shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SLM TRADEMARK ACQUISITION CORP.
By:
-------------------------------
Name:
Title:
GUARANTEE
WAP Holdings Inc. and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of WAP Holdings Inc. shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Subsidiary Issuer Notes and
Guarantees. This Guarantee shall be binding upon WAP Holdings Inc. and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
WAP HOLDINGS INC.
By:
-------------------------------
Name:
Title:
GUARANTEE
SLM Tradmark Acquisition Canada Corp. and its successors under the
Indenture, jointly and severally with any other Guarantors, hereby irrevocably
and unconditionally guarantees, on a senior secured basis, (i) the due and
punctual payment of the principal of, premium, if any, and interest on the
Subsidiary Issuer Notes, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on the overdue principal of and interest,
if any, on the Subsidiary Issuer Notes, to the extent lawful, and the due and
punctual performance of all other obligations of Sport Maska Inc. (the
"COMPANY") to the Holders or the Trustee all in accordance with the terms set
forth in Article Ten of the Indenture, (ii) in case of any extension of time of
payment or renewal of any Subsidiary Issuer Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise and (iii) has agreed to pay any and all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under this Guarantee. Capitalized
terms used herein have the meanings assigned to them in the Indenture unless
otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of SLM Tradmark Acquisition Canada Corp. shall have any
personal liability under this Guarantee by reason of his or its status as such
stockholder, employee, officer, director or incorporator. Each Holder by
accepting this Guarantee waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Subsidiary Issuer
Notes and Guarantees. This Guarantee shall be binding upon SLM Tradmark
Acquisition Canada Corp. and its successors and assigns and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
SLM TRADEMARK ACQUISITION CANADA CORP.
By:
-------------------------------
Name:
Title:
GUARANTEE
Jofa AB and its successors under the Indenture, jointly and severally
with any other Guarantors, hereby irrevocably and unconditionally guarantees, on
a senior secured basis, (i) the due and punctual payment of the principal of,
premium, if any, and interest on the Subsidiary Issuer Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Subsidiary Issuer
Notes, to the extent lawful, and the due and punctual performance of all other
obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the Trustee
all in accordance with the terms set forth in Article Ten of the Indenture, (ii)
in case of any extension of time of payment or renewal of any Subsidiary Issuer
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise and (iii) has
agreed to pay any and all costs and expenses (including reasonable attorneys'
fees) incurred by the Trustee or any Holder in enforcing any rights under this
Guarantee. Capitalized terms used herein have the meanings assigned to them in
the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Jofa AB shall have any personal liability under this
Guarantee by reason of his or its status as such stockholder, employee, officer,
director or incorporator. Each Holder by accepting this Guarantee waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Subsidiary Issuer Notes and Guarantees. This
Guarantee shall be binding upon Jofa AB and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
JOFA AB
By:
-------------------------------
Name:
Title:
GUARANTEE
Jofa Holding AB and its successors under the Indenture, jointly and
severally with any other Guarantors, hereby irrevocably and unconditionally
guarantees, on a senior secured basis, (i) the due and punctual payment of the
principal of, premium, if any, and interest on the Subsidiary Issuer Notes,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest, if any, on the Subsidiary
Issuer Notes, to the extent lawful, and the due and punctual performance of all
other obligations of Sport Maska Inc. (the "COMPANY") to the Holders or the
Trustee all in accordance with the terms set forth in Article Ten of the
Indenture, (ii) in case of any extension of time of payment or renewal of any
Subsidiary Issuer Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
and (iii) has agreed to pay any and all costs and expenses (including reasonable
attorneys' fees) incurred by the Trustee or any Holder in enforcing any rights
under this Guarantee. Capitalized terms used herein have the meanings assigned
to them in the Indenture unless otherwise indicated.
No stockholder, employee, officer, director or incorporator, as such,
past, present or future, of Jofa Holding AB shall have any personal liability
under this Guarantee by reason of his or its status as such stockholder,
employee, officer, director or incorporator. Each Holder by accepting this
Guarantee waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Subsidiary Issuer Notes and
Guarantees. This Guarantee shall be binding upon Jofa Holding AB and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Subsidiary Issuer Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
THE TERMS OF ARTICLE TEN OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
JOFA HOLDING AB
By:
-------------------------------
Name:
Title:
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, check the appropriate
box:
SECTION 4.15 [ ]
SECTION 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to SECTION 4.15 or SECTION 4.16 of the Indenture, state the
amount you elect to have purchased:
$
------------------------
Dated:
-------------- -----------------------------------
NOTICE: The signature on this
assignment must correspond
with the name as it appears
upon the face of the within
Note in every particular
without alteration or
enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or
broker.
Signature Guarantee:
---------------
