Exhibit T3C-2
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this "SUPPLEMENTAL
INDENTURE"), dated as of _____________, 200_, among Xxxxxxxxx Xxxxx, Inc.
(formerly known as French Fragrances, Inc.), a Florida corporation (the
"COMPANY"), Xxxxxxxxx Xxxxx International Holding, Inc. (formerly known as FFI
International, Inc.), a Delaware corporation, FD Management, Inc., a Delaware
corporation, DF Enterprises, Inc., a Delaware corporation (collectively, the
"U.S. Guarantors"), Xxxxxxxxx Xxxxx (Zug) GmbH (formerly known as FFI GmbH) (the
"NON U.S. GUARANTOR," and together with the U.S. Guarantors, collectively the
"GUARANTORS") each a wholly owned subsidiary of the Company, and HSBC Bank USA,
as trustee under the indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an indenture (the "INDENTURE"), dated as of January 23, 2001,
providing for the issuance of an aggregate principal amount of $160,000,000 of
11 3/4% Senior Secured Notes due 2011 (the "NOTES");
WHEREAS, Section 9.02 of the Indenture provides, among
other things, that (i) the Company and the Trustee may amend the Indenture or
the Notes with the written consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (the "MAJORITY
HOLDERS"), without notice to any other Holders and (ii) with the consent of the
Holders of at least 85% in aggregate principal amount of the then outstanding
Notes (the "SUPERMAJORITY HOLDERS," and together with the Majority Holders, the
"REQUISITE HOLDERS") may amend or waive any of the provisions of the Indenture
or the Notes relating to the Collateral (as defined in the Indenture);
WHEREAS, consents have been solicited from the Requisite
Holders relating to the amendment and elimination of certain covenants, the
release of collateral securing the Notes and other matters set forth in this
Supplement (the "PROPOSED AMENDMENTS");
WHEREAS, the Requisite Holders have consented to the
Proposed Amendments;
WHEREAS, the execution and delivery of this Supplement has
been duly authorized and all conditions and requirements necessary to make this
Supplement a valid and binding agreement of the Company have been duly performed
and complied with; and
WHEREAS, pursuant to Section 9.06 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company, the Guarantors and the Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Notes as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
Section 1.01. AMENDMENT OF ARTICLE 4. The following
sections of Article 4 of the Indenture and any corresponding provisions in the
Notes are hereby deleted in their entirety and replaced with "Intentionally
Omitted" (except as otherwise noted) and all references made thereto throughout
the Indenture and the Notes are hereby deleted in their entirety (other than
Sections 4.03 and 4.04, modified and provided herein):
(a) 4.03 Reports (the text of which shall be deleted in its
entirety and replaced with "The Company shall comply with the provisions of
Section 314(a) of the TIA");
(b) 4.04 Compliance Certificate (the text of which shall be
deleted in its entirely and replaced with "The Company shall comply with the
provisions of Section 314(a) of the TIA");
(c) 4.05 Taxes;
(d) 4.06 Stay extension;
(e) 4.07 Restricted Payments;
(f) 4.08 Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries;
(g) 4.09 Incurrence of Indebtedness and Issuance of
Disqualified Stock;
(h) 4.10 Change of Control;
(i) 4.11 Asset Sales;
(j) 4.12 Liens;
(k) 4.13 Transactions with Affiliates;
(l) 4.14 Business Activities;
(m) 4.16 Limitations on Preferred Stock or Preferred Equity
Interests of Restricted Subsidiaries;
(n) 4.17 Payments for Consents; and
(o) 4.18 Additional Note Guarantees.
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Section 1.02. AMENDMENT OF ARTICLE 5. Section 5.01 (iii) and
Section 5.01 (iv) of the Indenture, and any corresponding provisions in the
Notes, are hereby deleted in their entirety and all references made thereto
throughout the Indenture and the Notes are hereby deleted in their entirety.
Section 1.03. AMENDMENT OF ARTICLE 6. The following
subsections of Article 6, Section 6.01 of the Indenture and any corresponding
provisions in the Notes, with respect to Events of Default are hereby deleted in
their entirety and replaced with "Intentionally Omitted," and all references
made thereto throughout the Indenture in their entirety:
(a) Section 6.01(iii);
(b) Section 6.01(v);
(c) Section 6.01(vi);
(d) Section 6.01(viii); and
Section 6.01 (iv) of the Indenture shall be renumbered as
Section 6.01 (iii) and shall be amended in its entirety to read as follows:
"failure by the Applicant or any of its Subsidiaries to
observe or perform in all material respects any covenant or
agreement on the part of the Company or such Subsidiary
contained in the Notes and the Indenture if that failure is
not remedied within 30 days after written notice is given
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate
principal amount of the New Notes then outstanding,
specifying such default, requiring that it be remedied and
stating that such notice is a "Notice of Default;"
Section 1.04. AMENDMENT OF ARTICLE 10. Article 10 of the
Indenture, and any corresponding provisions in the Notes, are hereby deleted in
their entirety and replaced with "Intentionally Omitted," and all references
made thereto throughout the Indenture and the Notes are hereby deleted in their
entirety.
Section 1.05. DEFINITIONS. Definitions defined in Article 1
of the Indenture shall be deemed deleted when reference to such definitions
would be eliminated as a result of the foregoing amendments.
Section 1.06. NAME OF SECURITIES. All references in the
Indenture and Notes to "Senior Secured Notes" shall be deleted and replaced with
"Senior Notes."
Section 1.07. SECTION AND OTHER REFERENCES. To the extent
any amendments result in the renumbering of sections or clauses, any references
thereto shall be deemed amended so as to refer to the amended section or clause.
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ARTICLE II
Conditions; Effectiveness
Section 2.01. CONDITIONS AND EFFECTIVENESS. This Supplement
shall become effective upon execution and delivery to the Trustee. This
Supplement shall become operative upon satisfaction or waiver of the conditions
set forth in the applicable solicitation of consents in accordance with the
Indenture.
ARTICLE III
Miscellaneous
Section 3.01. INDENTURE RATIFIED. Except as otherwise
provided herein, the Indenture is in all respects ratified and confirmed, and
all of the terms, provisions and conditions thereof shall be and remain in full
force and effect.
Section 3.02. COUNTERPARTS. This Supplement may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 3.03. TRUSTEE NOT RESPONSIBLE. The recitals
contained herein shall be taken as the statements of the Company and the Trustee
assumes no responsibility for their correctness.
Section 3.04. GOVERNING LAW. The internal law of the State
of New York shall govern and be used to construe the Supplement 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.
Section 3.05. SUCCESSORS. All covenants and agreements in
this Supplement by the Company or the Trustee shall bind their respective
successors and assigns, whether so expressed or not.
Section 3.06. SEVERABILITY. In case any provisions in this
Supplement shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed and attested, all as of the
date first above written.
Xxxxxxxxx Xxxxx, Inc.
By: ____________________________
Name:
Title:
Xxxxxxxxx Xxxxx International Holding, Inc.
By: ____________________________
Name:
Title:
FD Management, Inc.
By: ____________________________
Name:
Title:
DF Enterprises, Inc.
By: ____________________________
Name:
Title:
Xxxxxxxxx Xxxxx (Zug) GmbH
By: ____________________________
Name:
Title:
HSBC Bank USA, as Trustee
By: ____________________________
Name:
Title:
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