Exhibit 4.1
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THE HOCKEY COMPANY AND SPORT MASKA INC., AS ISSUERS
AND
THE SUBSIDIARY GUARANTORS NAMED THEREIN, AS GUARANTORS
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 22, 2003
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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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FIRST SUPPLEMENTAL INDENTURE, dated as of May 22, 2003 (the "FIRST
SUPPLEMENTAL INDENTURE"), 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 defined
therein) and The Bank of New York, as trustee (the "TRUSTEE").
WHEREAS, the Issuers and Guarantors have duly authorized, executed and
delivered to the Trustee that certain Indenture, dated as of April 3, 2002 and
as supplemented from time to time (the "INDENTURE"), pursuant to which the
Issuers' 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 Subsidiary Issuer (the "SUBSIDIARY ISSUER NOTES" and, together with the
Parent Notes, the "NOTES"), were issued;
WHEREAS, in order principally to take advantage of beneficial tax
treatment for intercompany financing arrangements by having a Swedish company,
rather than a U.S. company, as the direct parent of certain of its subsidiaries,
the Company completed a reorganization as of December 31, 2002 of its European
subsidiaries whereby a Swedish holding company, named Nordic Hockey Company AB
("NORDIC HOCKEY COMPANY"), was formed and, pursuant to a series of share
transfers and contributions, became the direct parent company of each of Jofa
Holding AB and KHF Sports Oy;
WHEREAS, pursuant to Section 4.14 of the Indenture, if the Company
were to so organize another Restricted Subsidiary, then such Restricted
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which such Restricted Subsidiary unconditionally guarantees on a
senior secured basis all of the Issuers' obligations under the Notes and the
Indenture on the terms set forth in the Indenture;
AND WHEREAS, the parties wish to execute this First Supplemental
Indenture in order to so comply with Section 4.14;
NOW, THEREFORE, the Issuers and the Guarantors covenant and agree with
the Trustee, for the benefit of those who shall hold the Initial Units and
related Notes from time to time, as hereinafter set forth.
ARTICLE 1
DEFINED TERMS
In this First Supplemental Indenture and in the recitals hereto, except as
otherwise expressly provided herein or unless the context otherwise requires,
words and expressions which are defined in the Indenture shall have the
meanings, when used herein and in the recitals hereto, as are ascribed to them
in the Indenture.
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ARTICLE 2
GUARANTEE
2.1 Nordic Hockey Company, as a Guarantor, hereby irrevocably and
unconditionally, jointly and severally, guarantees (such guarantee to be
referred to under the Indenture as a "GUARANTEE"), to each of the Holders and to
the Trustee and to 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 under the Indenture or thereunder
will be promptly paid in full or performed, all in accordance with the terms of
the Indenture 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 of the
Indenture. Nordic Hockey Company, as a Guarantor, hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes, Units or the Indenture. The absence
of any action to enforce the same, any waiver or consent by any of the Holders
with respect to any provisions of the Indenture 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 Nordic Hockey Company, as a Guarantor. Nordic Hockey Company, as a
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. Nordic Hockey Company, as a Guarantor,
further agrees that, as between each Guarantor, on the one hand, and the
Holders and Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in ARTICLE SIX of the Indenture
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 First Supplemental
Indenture or ARTICLE TEN of the Indenture, the amount guaranteed by Nordic
Hockey Company, as a Guarantor incorporated in Sweden under this First
Supplemental Indenture or ARTICLE TEN of the Indenture 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.
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ARTICLE 3
MISCELLANEOUS PROVISIONS
3.1 Interpretation
This First Supplemental Indenture is a supplemental indenture executed
pursuant to Section 4.14 of the Indenture. Upon execution, delivery and
effectiveness pursuant to this First Supplemental Indenture, the Indenture shall
be modified and amended in accordance with this First Supplemental Indenture.
3.2 Successors and Assigns
All covenants and agreements in this First Supplemental Indenture by the
Issuers, Nordic Hockey Company and the other Guarantors or the Trustee shall
bind and inure to the benefit of their respective successors and assigns.
3.3 Governing Law
This First Supplemental Indenture 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 in
any action or proceeding arising out of or relating to this First Supplemental
Indenture.
3.4 Duplicate Originals
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be deemed an original, but all of them
together shall represent the same agreement.
3.5 Ratification by Trustee
Except as expressly supplemented or amended as set forth in this First
Supplemental Indenture, the Indenture is hereby ratified and confirmed, and all
the terms, provisions and conditions thereof shall be and continue in full force
and effect. The Trustee accepts the trusts created by Indenture, as amended and
supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture as amended and supplemented
by this First Supplemental Indenture.
3.6 Trustee Disclaimer
The Trustee shall not be responsible in any matter whatsoever for or in
respect of the validity or sufficiency of this First Supplemental Indenture,
except with respect to the execution hereof by the Trustee, nor shall the
Trustee be responsible for or in respect of the recitals contained herein, all
of which are made solely by the Issuers and the Guarantors.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
THE HOCKEY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer and Vice President,
Finance and Administration
SPORT MASKA INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance and Administration
SPORTS HOLDINGS CORP., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance and Administration
MASKA U.S., INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance and Administration
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SLM TRADEMARK ACQUISITION CORP., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance and Administration
WAP HOLDINGS INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance and Administration
SLM TRADEMARK ACQUISITION CANADA CORP.,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance and Administration
JOFA AB, as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
JOFA HOLDING AB, as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
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NORDIC HOCKEY COMPANY AB, as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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EXHIBIT A
FORM OF GUARANTEE
Nordic Hockey Company 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 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 and Section 2.1 of the First
Supplemental 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. Capitalize 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 Nordic Hockey Company 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 Nordic Hockey Company 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 AND SECTION 2.1 OF THE FIRST
SUPPLEMENTAL 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.
NORDIC HOCKEY COMPANY AB
By:
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
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EXHIBIT B
FORM OF GUARANTEE
Nordic Hockey Company 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 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 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 and Section 2.1 of the First
Supplemental 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. Capitalize 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 Nordic Hockey Company 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 Nordic Hockey Company 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 AND SECTION 2.1 OF THE FIRST
SUPPLEMENTAL 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.
NORDIC HOCKEY COMPANY AB
By:
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Authorized Signatory
