EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE dated as of the 3rd day of August, 1999,
between XxXxxxxxxx Apparel Group Inc. (formerly known as Norton XxXxxxxxxx,
Inc.), a Delaware corporation (the "Company"), and Norton XxXxxxxxxx of Xxxxxx,
Inc., a New York corporation, Miss Xxxxx, Inc., a Delaware corporation, Xxxx-Xx
Knitwear, Inc. (formerly known as JJ Acquisition Corp.), a Delaware corporation,
and Norty's, Inc., a Delaware corporation (each a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors") and United States Trust Company of
New York, a New York banking corporation, as Trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee have entered
into an Indenture dated as of June 18, 1998 (the "Indenture"), pursuant to which
the Company issued $125,000,000 aggregate principal amount of 12 1/2% Senior
Notes Due 2005 (the "Securities").
Section 9.2 of the Indenture provides that the Company, the Subsidiary
Guarantors and the Trustee may amend or supplement the Indenture with the
written consent of the Holder or Holders of at least a majority in aggregate
principal amount of the outstanding Securities.
All acts and things prescribed by the Indenture, by law and by the
Certificate of Incorporation and the bylaws of the Company, of the Subsidiary
Guarantors and of the Trustee necessary to make this First Supplemental
Indenture a valid instrument legally binding on the Company, the Subsidiary
Guarantors and the Trustee, in accordance with its terms, have been duly done
and performed.
The written consents to the amendments or supplements to the Indenture
have been obtained from not less than a majority of the Holders in the aggregate
principal amount of the outstanding Securities.
All conditions precedent to amend or supplement the Indenture have
been met.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Securities (as each such term is defined in the Indenture).
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SECTION I
1.1 The definition of "Existing Cash Earn-out Obligation" set forth
in Section 1.1 of the Indenture is hereby amended to read in its entirety as
follows:
"Existing Cash Earn-out Obligation" means the amount of the Company's
and the applicable Subsidiary Guarantor's obligations to make an Earn-out
Payment in cash (i) under the Agreement of Purchase and Sale dated as of October
29, 1997, as amended, by and among the Company, Miss Xxxxx, Inc., f/k/a ME
Acquisition Corp., Old ME Corp., f/k/a Miss Xxxxx, Inc. and the stockholders of
Old Miss Xxxxx Corp., after giving effect to the Amendment to the Agreement of
Purchase and Sale dated as of June 30, 1999, and (ii) under the Agreement of
Purchase and Sale dated as of April 15, 1998, as amended, by and among the
Company, JJ Acquisition Corp., Xxxx-Xx Knitwear Inc., Xxxxx Xxxxx, Inc., and the
stockholders of Xxxxx Xxxxx, Inc. as in effect on the Closing Date (the "Xxxx-Xx
Agreement"), provided that the amount that the Company and the applicable
Subsidiary Guarantor may pay in cash shall not exceed 75% of the Earn-out
Payment payable under the Xxxx-Xx Agreement.
1.2 Section 1.2 The Indenture is hereby amended mutandis mutadis to
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reflect the amendment of the definitional term set forth in the Indenture
pursuant to Section 1.1 hereof.
SECTION II
Section 4.4 (vi) of the Indenture is hereby amended to read in its
entirety as follows:
(vi) the payment of (1) any Existing Cash Earn-out Obligation; and (2)
any other Earn-out Payment in connection with the Miss Xxxxx Acquisition
provided that the aggregate amount of such other Earn-out Payment does not
exceed $10.0 million in the aggregate and at the time of such other Earn-out
Payment it would be permitted under clause (b) of the preceding paragraph.
SECTION III
Except as amended and supplemented hereby, the Indenture is hereby
ratified and confirmed in all respects and shall remain in full force and
effect.
SECTION IV
This Supplemental Indenture shall be governed by and construed in
accordance with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
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SECTION V
The parties may sign any number of copies of this Supplemental
Indenture and may sign such in counterparts. Each signed counterpart copy shall
be an original, but all of them together represent the signed agreement. One
signed copy is enough to prove this Supplemental Indenture.
* * *
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the dated first above written.
XXXXXXXXXX APPAREL GROUP INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
NORTON XXXXXXXXXX OF XXXXXX, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
MISS XXXXX, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice Chairman of the Board
XXXX-XX KNITWEAR, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice Chairman of the Board
NORTY'S, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
