FACE OF NOTE]
Exhibit 4.1
[FACE OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND AGREED THAT (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD
THIS SECURITY CONSTITUTES THE ASSETS OF ANY PERSON THAT IS OR WILL BE AN EMPLOYEE
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BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE UNITES STATES EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT
THAT IS SUBJECT TO SECTION 4975 OF THE UNITES STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON- UNITES STATES OR OTHER LAWS OR
REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN
ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT, OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE OR INVOLVE A
NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A
SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
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No. 1
|
Principal Amount $349,950,000 | |
| CUSIP NO. 00000XXX0 |
XXXXXX-XXXX SPORTS, INC.
9.750% Senior Secured Note due 2016
Xxxxxx-Xxxx Sports, Inc., a Delaware corporation, promises to pay to Cede & Co., or its
registered assigns, the principal sum of Three Hundred Forty Nine Million Nine Hundred Fifty
Thousand Dollars ($349,950,000), as revised by the Schedule of Increases and Decreases in Global
Note attached hereto, on December 1, 2016.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Additional provisions of this Note are set forth on the other side of this Note.
3
| XXXXXX-XXXX SPORTS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
4
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By: |
||||
| Date: , 2009 |
5
[REVERSE SIDE OF NOTE]
XXXXXX-XXXX SPORTS, INC.
9.750% Senior Secured Note due 2016
1. Interest
Xxxxxx-Xxxx Sports, Inc., a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually on June 1 and December 1 of each year commencing
June 1, 2010. Interest on the Notes will accrue from the most recent date to which interest has
been paid on the Notes or, if no interest has been paid, from December 3, 2009. The Company shall
pay interest on overdue principal, and on overdue premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Notes to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
If an exchange offer (the “Exchange Offer”) registered under the Securities Act is not
consummated or a shelf registration statement (the “Shelf Registration Statement”) under
the Securities Act with respect to resales of the Notes is not declared effective by the SEC on or
before the date that is 310 days after the Issue Date (the “Target Registration Date”) in
accordance with the terms of the Registration Rights Agreement, dated as of December 3, 2009 (the
“Registration Rights Agreement”), among the Company, the Guarantors and the initial
purchasers named therein, the annual interest rate borne by the Notes shall be increased from the
rate shown above by 0.25% per annum for the first 90-day period immediately following the Target
Registration Date and by an additional 0.25% per annum with respect to each subsequent 90-day
period, up to a maximum additional rate of 1.00% per annum, until the Exchange Offer is completed
or the Shelf Registration Statement is declared effective, as described in the Registration Rights
Agreement. The Holder of this Note is entitled to the benefits of such Registration Rights
Agreement. Special Interest shall be paid to the same Persons, in the same manner and at the same
times as regular interest.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Company shall irrevocably deposit
with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any,
and/or interest (including Special Interest). The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of business on the May 15
or November 15 next preceding the interest payment date even if Notes are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Company will pay principal, premium, if
any, and interest in money of the United States that
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at the time of payment is legal tender for payment of public and private debts. Payments in
respect of Notes represented by a Global Note (including principal, premium, if any, and interest)
will be made by the transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depository. The Company will make all payments in respect
of a Definitive Note (including principal, premium, if any, and interest) by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on the Notes may also
be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, U.S. Bank National Association (the “Trustee”) will act as Trustee, Paying
Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company or any of its domestically organized,
wholly owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Notes under an Indenture dated as of December 3, 2009 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Company, the Guarantors and the Trustee. The terms of the 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.C. §§ 77aaa-77bbbb) as in effect on the date of the
Indenture (the “Act”). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the Act for a statement of those
terms.
The Notes are secured senior obligations of the Company. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited, provided that at
least the net cash proceeds from any issuance of Additional Notes are invested in Additional Assets
in accordance with the Indenture. This Note is one of the 9.750% Senior Secured Notes due 2016
referred to in the Indenture. The Notes include (i) $350,000,000 aggregate principal amount of the
Company’s 9.750% Senior Secured Notes due 2016 issued under the Indenture on December 3, 2009
(herein called “Initial Notes”), (ii) if and when issued, additional 9.750% Senior Secured
Notes due 2016 of the Company that may be issued from time to time under the Indenture subsequent
to December 3, 2009 (herein called “Additional Notes”) as provided in Section
2.1(a) of the Indenture and (iii) if and when issued, the Company’s 9.750% Senior Secured Notes
due 2016 that may be issued from time to time under the Indenture in exchange for Initial Notes or
Additional Notes in an offer registered under the Securities Act, as provided in the Registration
Rights Agreement (herein called “Exchange Notes”). The Initial Notes, Additional Notes and
Exchange Notes are treated as a single class of securities under the Indenture and shall be secured
by first and second priority Liens and security interests, subject to Permitted Liens, in the
Collateral. The Indenture imposes certain limitations on the incurrence of
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indebtedness, the making of restricted payments, the sale of assets, the incurrence of certain
liens, sale-leaseback transactions, transaction with affiliates, the making of payments for
consents, business activities, designation of restricted and unrestricted subsidiaries, the
entering into of agreements that restrict distributions from restricted subsidiaries and the
consummation of mergers and consolidations. The Indenture also imposes requirements with respect
to the provision of financial information and the provision of guarantees of the Notes by certain
subsidiaries.
To guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Notes and all other amounts payable by the
Company under the Indenture, the Notes, the Registration Rights Agreement, the Collateral Documents
and the Intercreditor Agreement when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors
have unconditionally guaranteed (and future guarantors, together with the Guarantors, will
unconditionally guarantee), jointly and severally, such obligations on a senior, secured basis
pursuant to the terms of the Indenture.
5. Redemption and prepayment; Springing Maturity
Except as described below, the Notes will not be redeemable at the Company’s option prior to
December 1, 2012.
At any time prior to December 1, 2012 the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price
of 109.750% of the principal amount, plus accrued and unpaid interest and Special Interest, if any,
to the redemption date, with the net cash proceeds of one or more Equity Offerings of the Company
(or of any Parent, to the extent such proceeds are contributed to the Company’s common equity
capital); provided that:
(1) at least 65% of the aggregate principal amount of Notes originally issued under the
Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering or contribution.
At any time prior to December 1, 2012 the Company may also redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
holder’s registered address, at a redemption price equal to 100% of the principal amount of Notes
redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Special Interest,
if any, to the date of redemption (the “Redemption Date”), subject to the rights of holders of
Notes on the relevant record date to receive interest due on the relevant interest payment date.
At any time prior to December 1, 2012, during any twelve month period commencing on the Issue
Date the Company may redeem up to 10% of aggregate principal amount of the Notes at a redemption
price equal to 103% of their principal amount, plus accrued and unpaid interest.
8
On or after December 1, 2012 the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on
the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period
beginning on December 1 of the years indicated below, subject to the rights of holders of Notes on
the relevant record date to receive interest on the relevant interest payment date:
| Year | Percentage | |||
2012 |
107.313 | % | ||
2013 |
104.875 | % | ||
2014 |
102.438 | % | ||
2015 and thereafter |
100.000 | % | ||
Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
“Applicable Premium” means, with respect to any Note on any redemption date, the
greater of:
(1) 1.0% of the principal amount of the Note; or
(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of
the Note at December 1, 2012 (such redemption price being set forth in the table
appearing above) plus (ii) all required interest payments due on the Note through
December 1, 2012 (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over
(b) the principal amount of the Note, if greater.
“Treasury Rate” means, as of any redemption date, the yield to maturity as of such
redemption date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two business days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the redemption date to December 1, 2012; provided, however, that if the
period from the redemption date to December 1, 2012 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year
will be used.
Prior to the mailing of any notice of redemption of the Notes, the Company shall deliver to
the Trustee an Officers’ Certificate stating that the conditions precedent to the right of
9
redemption have occurred. Any such notice to the Trustee may be cancelled at any time prior
to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect.
The Company will be bound to redeem the Notes on the date fixed for redemption.
The Company may acquire Notes by means other than a redemption, whether by tender offer, open
market purchases, negotiated transactions or otherwise, in accordance with applicable securities
laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
Except as set forth in the next succeeding paragraph, the Company is not required to make any
mandatory redemption payments or sinking fund payments with respect to the Notes.
The Notes will become due and payable on October 1, 2015 unless on or prior to August 28,
2015, the Indebtedness under the New Holdco Credit Facility has been either (i) repaid and
discharged, provided that any Indebtedness incurred in connection with any such repayment and
discharge shall comply with clause (ii) of this sentence or (ii) extended, replaced or refinanced
with Indebtedness constituting a New Holdco Credit Facility with a Stated Maturity that is at least
91 days after the final Stated Maturity of the Notes.
6. Change of Control Repurchase Provisions
If a Change of Control occurs, unless the Company has exercised its right to redeem all of the
Notes as described under paragraph 5 of the Notes, each Holder will have the right to require the
Company to repurchase from each Holder all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the date of purchase (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.
7. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of principal amount of
$2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay a sum sufficient to cover any taxes and
fees required by law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange of any Note (A) for a period beginning (1) 15 days before the mailing of a notice of
an offer to repurchase or redeem Notes and ending at the close of business on the day of such
mailing or (2) 15 days before an interest payment date and ending on such interest payment date or
(B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
8. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
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9. Unclaimed Money
If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years after such principal, premium, if any, or interest has become due and payable, the Trustee or
Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company for payment as general creditors unless an abandoned property law designates
another person and not to the Trustee for payment.
10. Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Company at any
time may terminate some or all of its obligations under the Notes, the Indenture, the Collateral
Documents and the Intercreditor Agreement if the Company deposits with the Trustee money or
Government Securities for the payment of principal, premium, if any, and interest on the Notes to
redemption or maturity, as the case may be.
11. Amendment, Supplement, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes, the
Note Guarantees, the Collateral Documents or the Intercreditor Agreement may be amended or
supplemented by the Company, Guarantors and Trustee with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and (ii) any default (other
than with respect to nonpayment or in respect of a provision that cannot be amended without the
consent of each Holder affected or, in certain cases described in the Indenture, the Collateral
Documents and the Intercreditor Agreement, the consent of Holders of 75% in aggregate principal
amount of the Notes) or noncompliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the
Trustee and, other than with respect to clause (8) below, the Guarantors may amend or supplement
the Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor
Agreement (1) to cure any ambiguity, defect or inconsistency; (2) to provide for uncertificated
Notes in addition to or in place of certificated Notes; (3) to provide for the assumption of the
Company’s or a Guarantor’s obligations to Holders of Notes and Note Guarantees by a successor to
the Company or such Guarantor pursuant to Article IV or X of the Indenture; (4) to
make any change that would provide any additional rights or benefits to the Holders of Notes or
that does not adversely affect the legal rights hereunder or under the Notes, the Note Guarantees,
the Collateral Documents and the Intercreditor Agreement of any such Holder; (5) to comply with
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act; (6) to conform the text of the Indenture, Note Guarantees or the Notes to any
provision of the “Description of Notes” section of the Offering Memorandum, to the extent that such
provision in that “Description of Notes” section was intended to be a verbatim recitation of a
provision of the Indenture, the Notes or the Note Guarantees; (7) to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture as of the date
hereof; (8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the
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Notes; (9) to add additional Collateral to secure the Notes; or (10) to release Liens in favor
of the Collateral Agent in the Collateral as provided in Section 11.6 of the Indenture.
12. Defaults and Remedies
Each of the following is an “Event of Default”:
(1) default for 30 days in the payment when due of interest on, or Special Interest, if
any, with respect to, the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described in Section 3.5, 3.10 or 4.1 of the Indenture;
(4) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the trustee or the holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in the Indenture, the Notes, the Collateral Documents or the Intercreditor
Agreement;
(5) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, if that default:
(a) is caused by a failure to pay any such Indebtedness at its stated final
maturity (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its stated final
maturity,
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0 million
or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $10.0
million (net of any amount covered by insurance issued by a national insurance company that
has not contested coverage), which judgments are not paid, discharged or stayed for a period
of 60 days;
(7) any (x) Note Guarantee, (y) Collateral Document governing a security interest with
respect to any Collateral having a fair market value in excess of $10.0 million or (z)
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obligation under the Intercreditor Agreement, in each case, of a Significant Subsidiary
or group of Restricted Subsidiaries that taken together as of the date of the latest audited
consolidated financial statements for the Company and its Restricted Subsidiaries would
constitute a Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms of the Indenture and the Note Guarantees) or is declared null and
void in a judicial proceeding or any Guarantor that is a Significant Subsidiary or group of
Guarantors that taken together as of the date of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries would constitute a Significant
Subsidiary denies or disaffirms its obligations under the Indenture;
(8) certain events of bankruptcy, insolvency or reorganization described in the
Indenture with respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; and
(9) with respect to any Collateral having a fair market value in excess of $10.0
million, individually or in the aggregate, (A) the failure of the security interest with
respect to such Collateral under the Collateral Documents, at any time, to be in full force
and effect for any reason other than in accordance with their terms and the terms of the
Indenture and other than the satisfaction in full of all obligations under the Indenture and
discharge of the Indenture if such Default continues for 60 days, (B) the declaration that
the security interest with respect to such Collateral created under the Collateral Documents
or under the Indenture is invalid or unenforceable, if such Default continues for 60 days or
(C) the assertion by the Company or any Guarantor, in any pleading in any court of competent
jurisdiction, that any such security interest is invalid or unenforceable.
If an Event of Default (other than an Event of Default described in clause (8) above) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the outstanding Notes by notice to the Company and the Trustee, may,
and the Trustee at the request of such Holders shall, declare the principal of, premium, if any,
and accrued and unpaid interest (including Special Interest), if any, on all the Notes to be due
and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest
shall be due and payable immediately.
In the case of an Event of Default specified in clause (8) above, with respect to the Company,
any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately without further action or
notice.
The Holders of a majority in aggregate principal amount of the outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.
The trustee may withhold from holders of the Notes notice of any continuing Default or Event
of Default if it determines that withholding notice is in their interest, except a
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Default or Event of Default relating to the payment of principal, interest or premium or
Special Interest, if any.
Subject to the provisions of the Indenture relating to the duties of the trustee or the
collateral agent, in case an Event of Default occurs and is continuing, the trustee or the
collateral agent will be under no obligation to exercise any of the rights or powers under the
Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreement
at the request or direction of any holders of Notes unless such holders have offered to the trustee
or the collateral agent reasonable indemnity or security against any loss, liability or expense.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, 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 or its Affiliates with the same rights it would have if it were not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee or stockholder of each of the Company or any
Guarantor, solely by reason of this status, shall not have any liability for any obligations of the
Company or any Guarantor under the Notes, the Indenture, the Collateral Documents, the
Intercreditor Agreement or the Note Guarantees or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder waives and releases
all such liability. The waiver and release are a part of the consideration for the issuance of the
Notes.
15. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent acting on its behalf) manually signs the certificate of authentication on the other side of
this Note.
16. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=
tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
(= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
17. CUSIP, Common Code and ISIN Numbers
The Company has caused CUSIP, Common Code and ISIN numbers, if applicable, to be printed on
the Notes and has directed the Trustee to use CUSIP, Common Code and ISIN numbers, if applicable,
in notices of redemption or purchase as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the
14
Notes or as contained in any notice of redemption or purchase and reliance may be placed only
on the other identification numbers placed thereon.
18. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.
The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture, which has in it the text of this Note in larger type. Requests may be made
to:
Xxxxxx-Xxxx Sports, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
19. USA Patriot Act
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the
Trustee is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to the
Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
15
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date:
|
Your Signature: |
Signature Guarantee: |
||
| (Signature must be guaranteed) |
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
The undersigned hereby certifies that it o is / o is not an Affiliate of the Company and that, to
its knowledge, the proposed transferee o is / o is not an Affiliate of the Company.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
| (1 | ) | o | acquired for the undersigned’s own account, without transfer; or | |||||
| (2 | ) | o | transferred to the Company; or | |||||
| (3 | ) | o | transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or | |||||
| (4 | ) | o | transferred pursuant to an effective registration statement under the Securities Act; or |
16
| (5 | ) | o | transferred pursuant to and in compliance with Regulation S under the Securities Act (provided that the transferee has furnished to the Trustee a signed letter containing certain representations and agreements, the form of which letter appears as Section 2.9 of the Indenture); or | |||||
| (6 | ) | o | transferred 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 appears as Section 2.8 of the Indenture); or | |||||
| (7 | ) | o | transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof; provided,
however, that if box (5), (6) or (7) is checked, the Company may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other
information as the Company may reasonably request 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
| Signature | ||
Signature Guarantee: |
||
(Signature must be guaranteed)
|
Signature |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note 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 of 1933, as amended, 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 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:
17
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Note have been made:
| Principal Amount of this Global | Signature of authorized | |||||||
| Date of | Amount of decrease in Principal | Amount of increase in Principal | Note following such decrease or | signatory of Trustee or Notes | ||||
| Exchange | Amount of this Global Note | Amount of this Global Note | increase | Custodian | ||||
18
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.10 of the
Indenture, check either box:
| o | o | |
| 3.5 | 3.10 |
If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 3.5 or Section 3.10 of the Indenture, state the amount in principal amount (must be in
denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$ and specify the denomination or denominations (which shall not be less
than the minimum authorized denomination) of the Notes to be issued to the Holder for the portion
of the within Note not being repurchased (in the absence of any such specification, one such Note
will be issued for the portion not being repurchased): .
Date: Your Signature |
||
| (Sign exactly as your name appears on the other side of the Note) |
Signature Guarantee: |
||
| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
19
NOTE GUARANTEE
Pursuant to the Indenture (the “Indenture”) dated as of December 3, 2009 among
Xxxxxx-Xxxx Sports, Inc., the Guarantors party thereto (each a “Guarantor” and collectively
the “Guarantors”) and U.S. Bank National Association, as trustee (the “Trustee”),
each Guarantor, subject to the provisions of Article X of the Indenture, hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly
and severally with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the
Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of, premium, if any, and interest (including Special Interest) on
the Notes and all other obligations and liabilities of the Company under the Indenture (including
without limitation interest (including Special Interest) accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating
to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding and the obligations under Section 7.7 of the Indenture), the
Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”).
Each Note Guarantee will be secured on a first-priority basis by the First Priority Collateral
owned by such Guarantor and on a second-priority basis by the ABL Collateral owned by such
Guarantor. Such Guarantors will also agree to pay any and all costs and expenses (including
reasonable counsel fees and expenses) incurred by the Trustee, the Collateral Agent or the Holders
in enforcing any rights under the Note Guarantees. The obligations of the Guarantors under the Note
Guarantees will rank equally in right of payment with other Indebtedness of such Guarantors, except
to the extent such other Indebtedness is expressly subordinated to the obligations arising under
the Note Guarantees, in which case the obligations of the Guarantors under the Note Guarantees will
rank senior in right of payment to such other Indebtedness.
Each Guarantor agrees (to the extent permitted by law) that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from it, and that it
will remain bound under Article X of the Indenture notwithstanding any extension or renewal
of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Company of
any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Notes or the Guaranteed Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and waives any right to require that any
resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2 of the Indenture, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than payment of the Guaranteed Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
20
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to
enforce any right or remedy against the Company or any other person under the Indenture, the Notes
or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture,
the Notes or any other agreement; (d) the release of any security held by any Holder or the
Collateral Agent for the Guaranteed Obligations or any of them; (e) the failure of any Holder to
exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the
Company; (g) any default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or (h) any other act or thing or omission or delay to do any other act or
thing which may or might in any manner or to any extent vary the risk of any Guarantor or would
otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee under the Indenture shall remain in full force
and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released
from its Note Guarantee in compliance with Section 10.2 or Article VIII of the
Indenture. Each Guarantor further agrees that its Note Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or
must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay
any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or
the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such
Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest (including Special
Interest) on such Guaranteed Obligations then due and owing (but only to the extent not prohibited
by law).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as
provided in the Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations and (y) in the event of any such declaration of acceleration of such Guaranteed
Obligations, such Obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purposes of this Note Guarantee.
Each Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section.
21
| XXXXXXX SPORTS GROUP, INC. XXXXXXX, INC. MACMARK CORPORATION RIDMARK CORPORATION ALL AMERICAN SPORTS CORPORATION EQUILINK LICENSING, LLC BELL SPORTS CORP. BELL SPORTS, INC. BELL CHINA INVESTMENTS, INC. BELL RACING COMPANY EASTON SPORTS, INC. EASTON SPORTS ASIA, INC. CDT NEVADA, INC. as Guarantors |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
22
[FACE OF NOTE]
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD APPLICABLE
HERETO, BENEFICIAL INTERESTS HEREIN MAY NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON
OR (2) A U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). BENEFICIAL INTERESTS HEREIN
ARE NOT EXCHANGEABLE FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE WITH THE
TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED IN REGULATION S UNDER THE SECURITIES
ACT.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
1
TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. BY ITS ACQUISITION
HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE
ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT. BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE
HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND AGREED THAT (I) NO PORTION OF THE ASSETS USED
BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF ANY PERSON THAT IS OR
WILL BE AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE UNITES STATES EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE UNITES STATES INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE “CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON-
UNITES STATES OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE
(“SIMILAR LAWS”), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS”
OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT, OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL
NOT CONSTITUTE OR INVOLVE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
2
No. 2
|
Principal Amount $50,000 | |
| CUSIP NO. X00000XX0 |
XXXXXX-XXXX SPORTS, INC.
9.750% Senior Secured Note due 2016
Xxxxxx-Xxxx Sports, Inc., a Delaware corporation, promises to pay to Cede & Co., or its
registered assigns, the principal sum of Fifty Thousand Dollars ($50,000), as revised by the
Schedule of Increases and Decreases in Global Note attached hereto, on December 1, 2016.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Record Dates: May 15 and November 15
Additional provisions of this Note are set forth on the other side of this Note.
3
| XXXXXX-XXXX SPORTS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
4
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By: |
||||
| Authorized Officer | Date: , 2009 |
5
[REVERSE SIDE OF NOTE]
XXXXXX-XXXX SPORTS, INC.
9.750% Senior Secured Note due 2016
20. Interest
Xxxxxx-Xxxx Sports, Inc., a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually on June 1 and December 1 of each year commencing
June 1, 2010. Interest on the Notes will accrue from the most recent date to which interest has
been paid on the Notes or, if no interest has been paid, from December 3, 2009. The Company shall
pay interest on overdue principal, and on overdue premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Notes to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
If an exchange offer (the “Exchange Offer”) registered under the Securities Act is not
consummated or a shelf registration statement (the “Shelf Registration Statement”) under
the Securities Act with respect to resales of the Notes is not declared effective by the SEC on or
before the date that is 310 days after the Issue Date (the “Target Registration Date”) in
accordance with the terms of the Registration Rights Agreement, dated as of December 3, 2009 (the
“Registration Rights Agreement”), among the Company, the Guarantors and the initial
purchasers named therein, the annual interest rate borne by the Notes shall be increased from the
rate shown above by 0.25% per annum for the first 90-day period immediately following the Target
Registration Date and by an additional 0.25% per annum with respect to each subsequent 90-day
period, up to a maximum additional rate of 1.00% per annum, until the Exchange Offer is completed
or the Shelf Registration Statement is declared effective, as described in the Registration Rights
Agreement. The Holder of this Note is entitled to the benefits of such Registration Rights
Agreement. Special Interest shall be paid to the same Persons, in the same manner and at the same
times as regular interest.
21. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Company shall irrevocably deposit
with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any,
and/or interest (including Special Interest). The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of business on the May 15
or November 15 next preceding the interest payment date even if Notes are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date. Holders must surrender
Notes to a Paying Agent to collect principal payments.
6
The Company will pay principal, premium, if any, and interest in money of the United States
that at the time of payment is legal tender for payment of public and private debts. Payments in
respect of Notes represented by a Global Note (including principal, premium, if any, and interest)
will be made by the transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depository. The Company will make all payments in respect
of a Definitive Note (including principal, premium, if any, and interest) by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on the Notes may also
be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in its discretion).
22. Paying Agent and Registrar
Initially, U.S. Bank National Association (the “Trustee”) will act as Trustee, Paying
Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company or any of its domestically organized,
wholly owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
23. Indenture
The Company issued the Notes under an Indenture dated as of December 3, 2009 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Company, the Guarantors and the Trustee. The terms of the 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.C. §§ 77aaa-77bbbb) as in effect on the date of the
Indenture (the “Act”). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the Act for a statement of those
terms.
The Notes are secured senior obligations of the Company. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited, provided that at
least the net cash proceeds from any issuance of Additional Notes are invested in Additional Assets
in accordance with the Indenture. This Note is one of the 9.750% Senior Secured Notes due 2016
referred to in the Indenture. The Notes include (i) $350,000,000 aggregate principal amount of the
Company’s 9.750% Senior Secured Notes due 2016 issued under the Indenture on December 3, 2009
(herein called “Initial Notes”), (ii) if and when issued, additional 9.750% Senior Secured
Notes due 2016 of the Company that may be issued from time to time under the Indenture subsequent
to December 3, 2009 (herein called “Additional Notes”) as provided in Section
2.1(a) of the Indenture and (iii) if and when issued, the Company’s 9.750% Senior Secured Notes
due 2016 that may be issued from time to time under the Indenture in exchange for Initial Notes or
Additional Notes in an offer registered under the Securities Act, as provided in the Registration
Rights Agreement (herein called “Exchange Notes”). The Initial Notes, Additional Notes and
Exchange Notes are treated as a single class of securities under the Indenture and shall be secured
by first and second priority Liens and security interests, subject to
7
Permitted Liens, in the Collateral. The Indenture imposes certain limitations on the
incurrence of indebtedness, the making of restricted payments, the sale of assets, the incurrence
of certain liens, sale-leaseback transactions, transaction with affiliates, the making of payments
for consents, business activities, designation of restricted and unrestricted subsidiaries, the
entering into of agreements that restrict distributions from restricted subsidiaries and the
consummation of mergers and consolidations. The Indenture also imposes requirements with respect
to the provision of financial information and the provision of guarantees of the Notes by certain
subsidiaries.
To guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Notes and all other amounts payable by the
Company under the Indenture, the Notes, the Registration Rights Agreement, the Collateral Documents
and the Intercreditor Agreement when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors
have unconditionally guaranteed (and future guarantors, together with the Guarantors, will
unconditionally guarantee), jointly and severally, such obligations on a senior, secured basis
pursuant to the terms of the Indenture.
24. Redemption and prepayment; Springing Maturity
Except as described below, the Notes will not be redeemable at the Company’s option prior to
December 1, 2012.
At any time prior to December 1, 2012 the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price
of 109.750% of the principal amount, plus accrued and unpaid interest and Special Interest, if any,
to the redemption date, with the net cash proceeds of one or more Equity Offerings of the Company
(or of any Parent, to the extent such proceeds are contributed to the Company’s common equity
capital); provided that:
(1) at least 65% of the aggregate principal amount of Notes originally issued under the
Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering or contribution.
At any time prior to December 1, 2012 the Company may also redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
holder’s registered address, at a redemption price equal to 100% of the principal amount of Notes
redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Special Interest,
if any, to the date of redemption (the “Redemption Date”), subject to the rights of holders of
Notes on the relevant record date to receive interest due on the relevant interest payment date.
At any time prior to December 1, 2012, during any twelve month period commencing on the Issue
Date the Company may redeem up to 10% of aggregate principal amount of the Notes at a redemption
price equal to 103% of their principal amount, plus accrued and unpaid interest.
8
On or after December 1, 2012 the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on
the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period
beginning on December 1 of the years indicated below, subject to the rights of holders of Notes on
the relevant record date to receive interest on the relevant interest payment date:
| Year | Percentage | |||
2012 |
107.313 | % | ||
2013 |
104.875 | % | ||
2014 |
102.438 | % | ||
2015 and thereafter |
100.000 | % | ||
Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
“Applicable Premium” means, with respect to any Note on any redemption date, the
greater of:
(1) 1.0% of the principal amount of the Note; or
(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of
the Note at December 1, 2012 (such redemption price being set forth in the table
appearing above) plus (ii) all required interest payments due on the Note through
December 1, 2012 (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over
(b) the principal amount of the Note, if greater.
“Treasury Rate” means, as of any redemption date, the yield to maturity as of such
redemption date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two business days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the redemption date to December 1, 2012; provided, however, that if the
period from the redemption date to December 1, 2012 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year
will be used.
Prior to the mailing of any notice of redemption of the Notes, the Company shall deliver to
the Trustee an Officers’ Certificate stating that the conditions precedent to the right of
9
redemption have occurred. Any such notice to the Trustee may be cancelled at any time prior
to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect.
The Company will be bound to redeem the Notes on the date fixed for redemption.
The Company may acquire Notes by means other than a redemption, whether by tender offer, open
market purchases, negotiated transactions or otherwise, in accordance with applicable securities
laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
Except as set forth in the next succeeding paragraph, the Company is not required to make any
mandatory redemption payments or sinking fund payments with respect to the Notes.
The Notes will become due and payable on October 1, 2015 unless on or prior to August 28,
2015, the Indebtedness under the New Holdco Credit Facility has been either (i) repaid and
discharged, provided that any Indebtedness incurred in connection with any such repayment and
discharge shall comply with clause (ii) of this sentence or (ii) extended, replaced or refinanced
with Indebtedness constituting a New Holdco Credit Facility with a Stated Maturity that is at least
91 days after the final Stated Maturity of the Notes.
25. Change of Control Repurchase Provisions
If a Change of Control occurs, unless the Company has exercised its right to redeem all of the
Notes as described under paragraph 5 of the Notes, each Holder will have the right to require the
Company to repurchase from each Holder all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the date of purchase (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.
26. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of principal amount of
$2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay a sum sufficient to cover any taxes and
fees required by law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange of any Note (A) for a period beginning (1) 15 days before the mailing of a notice of
an offer to repurchase or redeem Notes and ending at the close of business on the day of such
mailing or (2) 15 days before an interest payment date and ending on such interest payment date or
(B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
27. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
10
28. Unclaimed Money
If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years after such principal, premium, if any, or interest has become due and payable, the Trustee or
Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company for payment as general creditors unless an abandoned property law designates
another person and not to the Trustee for payment.
29. Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Company at any
time may terminate some or all of its obligations under the Notes, the Indenture, the Collateral
Documents and the Intercreditor Agreement if the Company deposits with the Trustee money or
Government Securities for the payment of principal, premium, if any, and interest on the Notes to
redemption or maturity, as the case may be.
30. Amendment, Supplement, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes, the
Note Guarantees, the Collateral Documents or the Intercreditor Agreement may be amended or
supplemented by the Company, Guarantors and Trustee with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and (ii) any default (other
than with respect to nonpayment or in respect of a provision that cannot be amended without the
consent of each Holder affected or, in certain cases described in the Indenture, the Collateral
Documents and the Intercreditor Agreement, the consent of Holders of 75% in aggregate principal
amount of the Notes) or noncompliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the
Trustee and, other than with respect to clause (8) below, the Guarantors may amend or supplement
the Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor
Agreement (1) to cure any ambiguity, defect or inconsistency; (2) to provide for uncertificated
Notes in addition to or in place of certificated Notes; (3) to provide for the assumption of the
Company’s or a Guarantor’s obligations to Holders of Notes and Note Guarantees by a successor to
the Company or such Guarantor pursuant to Article IV or X of the Indenture; (4) to
make any change that would provide any additional rights or benefits to the Holders of Notes or
that does not adversely affect the legal rights hereunder or under the Notes, the Note Guarantees,
the Collateral Documents and the Intercreditor Agreement of any such Holder; (5) to comply with
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act; (6) to conform the text of the Indenture, Note Guarantees or the Notes to any
provision of the “Description of Notes” section of the Offering Memorandum, to the extent that such
provision in that “Description of Notes” section was intended to be a verbatim recitation of a
provision of the Indenture, the Notes or the Note Guarantees; (7) to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture as of the date
hereof; (8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the
11
Notes; (9) to add additional Collateral to secure the Notes; or (10) to release Liens in favor
of the Collateral Agent in the Collateral as provided in Section 11.6 of the Indenture.
31. Defaults and Remedies
Each of the following is an “Event of Default”:
(1) default for 30 days in the payment when due of interest on, or Special Interest, if
any, with respect to, the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described in Section 3.5, 3.10 or 4.1 of the Indenture;
(4) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the trustee or the holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in the Indenture, the Notes, the Collateral Documents or the Intercreditor
Agreement;
(5) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, if that default:
(a) is caused by a failure to pay any such Indebtedness at its stated final
maturity (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its stated final
maturity,
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0 million
or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $10.0
million (net of any amount covered by insurance issued by a national insurance company that
has not contested coverage), which judgments are not paid, discharged or stayed for a period
of 60 days;
(7) any (x) Note Guarantee, (y) Collateral Document governing a security interest with
respect to any Collateral having a fair market value in excess of $10.0 million or (z)
12
obligation under the Intercreditor Agreement, in each case, of a Significant Subsidiary
or group of Restricted Subsidiaries that taken together as of the date of the latest audited
consolidated financial statements for the Company and its Restricted Subsidiaries would
constitute a Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms of the Indenture and the Note Guarantees) or is declared null and
void in a judicial proceeding or any Guarantor that is a Significant Subsidiary or group of
Guarantors that taken together as of the date of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries would constitute a Significant
Subsidiary denies or disaffirms its obligations under the Indenture;
(8) certain events of bankruptcy, insolvency or reorganization described in the
Indenture with respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; and
(9) with respect to any Collateral having a fair market value in excess of $10.0
million, individually or in the aggregate, (A) the failure of the security interest with
respect to such Collateral under the Collateral Documents, at any time, to be in full force
and effect for any reason other than in accordance with their terms and the terms of the
Indenture and other than the satisfaction in full of all obligations under the Indenture and
discharge of the Indenture if such Default continues for 60 days, (B) the declaration that
the security interest with respect to such Collateral created under the Collateral Documents
or under the Indenture is invalid or unenforceable, if such Default continues for 60 days or
(C) the assertion by the Company or any Guarantor, in any pleading in any court of competent
jurisdiction, that any such security interest is invalid or unenforceable.
If an Event of Default (other than an Event of Default described in clause (8) above) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the outstanding Notes by notice to the Company and the Trustee, may,
and the Trustee at the request of such Holders shall, declare the principal of, premium, if any,
and accrued and unpaid interest (including Special Interest), if any, on all the Notes to be due
and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest
shall be due and payable immediately.
In the case of an Event of Default specified in clause (8) above, with respect to the Company,
any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately without further action or
notice.
The Holders of a majority in aggregate principal amount of the outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.
The trustee may withhold from holders of the Notes notice of any continuing Default or Event
of Default if it determines that withholding notice is in their interest, except a
13
Default or Event of Default relating to the payment of principal, interest or premium or
Special Interest, if any.
Subject to the provisions of the Indenture relating to the duties of the trustee or the
collateral agent, in case an Event of Default occurs and is continuing, the trustee or the
collateral agent will be under no obligation to exercise any of the rights or powers under the
Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreement
at the request or direction of any holders of Notes unless such holders have offered to the trustee
or the collateral agent reasonable indemnity or security against any loss, liability or expense.
32. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, 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 or its Affiliates with the same rights it would have if it were not Trustee.
33. No Recourse Against Others
An incorporator, director, officer, employee or stockholder of each of the Company or any
Guarantor, solely by reason of this status, shall not have any liability for any obligations of the
Company or any Guarantor under the Notes, the Indenture, the Collateral Documents, the
Intercreditor Agreement or the Note Guarantees or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder waives and releases
all such liability. The waiver and release are a part of the consideration for the issuance of the
Notes.
34. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent acting on its behalf) manually signs the certificate of authentication on the other side of
this Note.
35. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=
tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
(= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
36. CUSIP, Common Code and ISIN Numbers
The Company has caused CUSIP, Common Code and ISIN numbers, if applicable, to be printed on
the Notes and has directed the Trustee to use CUSIP, Common Code and ISIN numbers, if applicable,
in notices of redemption or purchase as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the
14
Notes or as contained in any notice of redemption or purchase and reliance may be placed only
on the other identification numbers placed thereon.
37. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.
The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture, which has in it the text of this Note in larger type. Requests may be made
to:
Xxxxxx-Xxxx Sports, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
38. USA Patriot Act
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the
Trustee is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to the
Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
15
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date:
|
Your Signature: | |||||||
Signature Guarantee:
|
||
| (Signature must be guaranteed) | ||
| Sign exactly as your name appears on the other side of this Note. | ||
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
The undersigned hereby certifies that it o is / o is not an Affiliate of the Company and that, to
its knowledge, the proposed transferee o is / o is not an Affiliate of the Company.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
| (1 | ) | o | acquired for the undersigned’s own account, without transfer; or | |||||
| (2 | ) | o | transferred to the Company; or | |||||
| (3 | ) | o | transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or | |||||
| (4 | ) | o | transferred pursuant to an effective registration statement under the Securities Act; or |
16
| (5 | ) | o | transferred pursuant to and in compliance with Regulation S under the Securities Act (provided that the transferee has furnished to the Trustee a signed letter containing certain representations and agreements, the form of which letter appears as Section 2.9 of the Indenture); or | |||||
| (6 | ) | o | transferred 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 appears as Section 2.8 of the Indenture); or | |||||
| (7 | ) | o | transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof; provided,
however, that if box (5), (6) or (7) is checked, the Company may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other
information as the Company may reasonably request 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
| Signature | ||
Signature Guarantee: |
||
(Signature must be guaranteed)
|
Signature |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note 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 of 1933, as amended, 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 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: |
17
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Note have been made:
| Principal Amount of this Global | Signature of authorized | |||||||||||||||||
| Date of | Amount of decrease in Principal | Amount of increase in Principal | Note following such decrease or | signatory of Trustee or Notes | ||||||||||||||
| Exchange | Amount of this Global Note | Amount of this Global Note | increase | Custodian | ||||||||||||||
18
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.10 of the
Indenture, check either box:
o |
o | |
3.5 |
3.10 |
If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 3.5 or Section 3.10 of the Indenture, state the amount in principal amount (must be in
denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$ and specify the denomination or denominations (which
shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder
for the portion of the within Note not being repurchased (in the absence of any such specification,
one such Note will be issued for the portion not being repurchased): .
Date:
|
Your Signature | |||||
| (Sign exactly as your name appears on the other side of the Note) |
Signature Guarantee:
|
||
| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
19
NOTE GUARANTEE
Pursuant to the Indenture (the “Indenture”) dated as of December 3, 2009 among
Xxxxxx-Xxxx Sports, Inc., the Guarantors party thereto (each a “Guarantor” and collectively
the “Guarantors”) and U.S. Bank National Association, as trustee (the “Trustee”),
each Guarantor, subject to the provisions of Article X of the Indenture, hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly
and severally with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the
Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of, premium, if any, and interest (including Special Interest) on
the Notes and all other obligations and liabilities of the Company under the Indenture (including
without limitation interest (including Special Interest) accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating
to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding and the obligations under Section 7.7 of the Indenture), the
Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”).
Each Note Guarantee will be secured on a first-priority basis by the First Priority Collateral
owned by such Guarantor and on a second-priority basis by the ABL Collateral owned by such
Guarantor. Such Guarantors will also agree to pay any and all costs and expenses (including
reasonable counsel fees and expenses) incurred by the Trustee, the Collateral Agent or the Holders
in enforcing any rights under the Note Guarantees. The obligations of the Guarantors under the Note
Guarantees will rank equally in right of payment with other Indebtedness of such Guarantors, except
to the extent such other Indebtedness is expressly subordinated to the obligations arising under
the Note Guarantees, in which case the obligations of the Guarantors under the Note Guarantees will
rank senior in right of payment to such other Indebtedness.
Each Guarantor agrees (to the extent permitted by law) that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from it, and that it
will remain bound under Article X of the Indenture notwithstanding any extension or renewal
of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Company of
any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Notes or the Guaranteed Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and waives any right to require that any
resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2 of the Indenture, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than payment of the Guaranteed Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
20
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to
enforce any right or remedy against the Company or any other person under the Indenture, the Notes
or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture,
the Notes or any other agreement; (d) the release of any security held by any Holder or the
Collateral Agent for the Guaranteed Obligations or any of them; (e) the failure of any Holder to
exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the
Company; (g) any default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or (h) any other act or thing or omission or delay to do any other act or
thing which may or might in any manner or to any extent vary the risk of any Guarantor or would
otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee under the Indenture shall remain in full force
and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released
from its Note Guarantee in compliance with Section 10.2 or Article VIII of the
Indenture. Each Guarantor further agrees that its Note Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or
must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay
any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or
the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such
Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest (including Special
Interest) on such Guaranteed Obligations then due and owing (but only to the extent not prohibited
by law).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as
provided in the Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations and (y) in the event of any such declaration of acceleration of such Guaranteed
Obligations, such Obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purposes of this Note Guarantee.
Each Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section.
21
| XXXXXXX SPORTS GROUP, INC. XXXXXXX, INC. MACMARK CORPORATION RIDMARK CORPORATION ALL AMERICAN SPORTS CORPORATION EQUILINK LICENSING, LLC BELL SPORTS CORP. BELL SPORTS, INC. BELL CHINA INVESTMENTS, INC. BELL RACING COMPANY EASTON SPORTS, INC. EASTON SPORTS ASIA, INC. CDT NEVADA, INC. as Guarantors |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
22
[FACE OF NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL
BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM
PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED AND AGREED THAT (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD
THIS SECURITY CONSTITUTES THE ASSETS OF ANY PERSON THAT IS OR WILL BE AN EMPLOYEE
1
BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE UNITES STATES EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT
THAT IS SUBJECT TO SECTION 4975 OF THE UNITES STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) OR PROVISIONS UNDER ANY OTHER FEDERAL, STATE, LOCAL, NON- UNITES STATES OR OTHER LAWS OR
REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (“SIMILAR LAWS”), OR OF AN
ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR
ARRANGEMENT, OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE OR INVOLVE A
NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A
SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
2
No. 3
|
Principal Amount $0 | |
| CUSIP NO. 00000XXX0 |
XXXXXX-XXXX SPORTS, INC.
9.750% Senior Secured Note due 2016
Xxxxxx-Xxxx Sports, Inc., a Delaware corporation, promises to pay to Cede & Co., or its
registered assigns, the principal sum of $0, as revised by the Schedule of Increases and Decreases
in Global Note attached hereto, on December 1, 2016.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Record Dates: May 15 and November 15
Additional provisions of this Note are set forth on the other side of this Note.
3
| XXXXXX-XXXX SPORTS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
4
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By: |
||||||
| Authorized Officer | Date: , 2009 |
5
[REVERSE SIDE OF NOTE]
XXXXXX-XXXX SPORTS, INC.
9.750% Senior Secured Note due 2016
39. Interest
Xxxxxx-Xxxx Sports, Inc., a Delaware corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to, being herein called the “Company”),
promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually on June 1 and December 1 of each year commencing
June 1, 2010. Interest on the Notes will accrue from the most recent date to which interest has
been paid on the Notes or, if no interest has been paid, from December 3, 2009. The Company shall
pay interest on overdue principal, and on overdue premium, if any (plus interest on such interest
to the extent lawful), at the rate borne by the Notes to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
If an exchange offer (the “Exchange Offer”) registered under the Securities Act is not
consummated or a shelf registration statement (the “Shelf Registration Statement”) under
the Securities Act with respect to resales of the Notes is not declared effective by the SEC on or
before the date that is 310 days after the Issue Date (the “Target Registration Date”) in
accordance with the terms of the Registration Rights Agreement, dated as of December 3, 2009 (the
“Registration Rights Agreement”), among the Company, the Guarantors and the initial
purchasers named therein, the annual interest rate borne by the Notes shall be increased from the
rate shown above by 0.25% per annum for the first 90-day period immediately following the Target
Registration Date and by an additional 0.25% per annum with respect to each subsequent 90-day
period, up to a maximum additional rate of 1.00% per annum, until the Exchange Offer is completed
or the Shelf Registration Statement is declared effective, as described in the Registration Rights
Agreement. The Holder of this Note is entitled to the benefits of such Registration Rights
Agreement. Special Interest shall be paid to the same Persons, in the same manner and at the same
times as regular interest.
40. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date on which any principal of,
premium, if any, or interest on any Note is due and payable, the Company shall irrevocably deposit
with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any,
and/or interest (including Special Interest). The Company will pay interest (except Defaulted
Interest) to the Persons who are registered Holders of Notes at the close of business on the May 15
or November 15 next preceding the interest payment date even if Notes are cancelled, repurchased or
redeemed after the record date and on or before the interest payment date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Company will pay principal, premium, if
any, and interest in money of the United States that
6
at the time of payment is legal tender for payment of public and private debts. Payments in
respect of Notes represented by a Global Note (including principal, premium, if any, and interest)
will be made by the transfer of immediately available funds to the accounts specified by The
Depository Trust Company or any successor depository. The Company will make all payments in respect
of a Definitive Note (including principal, premium, if any, and interest) by mailing a check to the
registered address of each Holder thereof; provided, however, that payments on the Notes may also
be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by
wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in its discretion).
41. Paying Agent and Registrar
Initially, U.S. Bank National Association (the “Trustee”) will act as Trustee, Paying
Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice to any Holder. The Company or any of its domestically organized,
wholly owned Subsidiaries may act as Paying Agent, Registrar or co-registrar.
42. Indenture
The Company issued the Notes under an Indenture dated as of December 3, 2009 (as it may be
amended or supplemented from time to time in accordance with the terms thereof, the
“Indenture”), among the Company, the Guarantors and the Trustee. The terms of the 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.C. §§ 77aaa-77bbbb) as in effect on the date of the
Indenture (the “Act”). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of
the Indenture, and Holders are referred to the Indenture and the Act for a statement of those
terms.
The Notes are secured senior obligations of the Company. The aggregate principal amount of
Notes that may be authenticated and delivered under the Indenture is unlimited, provided that at
least the net cash proceeds from any issuance of Additional Notes are invested in Additional Assets
in accordance with the Indenture. This Note is one of the 9.750% Senior Secured Notes due 2016
referred to in the Indenture. The Notes include (i) $350,000,000 aggregate principal amount of the
Company’s 9.750% Senior Secured Notes due 2016 issued under the Indenture on December 3, 2009
(herein called “Initial Notes”), (ii) if and when issued, additional 9.750% Senior Secured
Notes due 2016 of the Company that may be issued from time to time under the Indenture subsequent
to December 3, 2009 (herein called “Additional Notes”) as provided in Section
2.1(a) of the Indenture and (iii) if and when issued, the Company’s 9.750% Senior Secured Notes
due 2016 that may be issued from time to time under the Indenture in exchange for Initial Notes or
Additional Notes in an offer registered under the Securities Act, as provided in the Registration
Rights Agreement (herein called “Exchange Notes”). The Initial Notes, Additional Notes and
Exchange Notes are treated as a single class of securities under the Indenture and shall be secured
by first and second priority Liens and security interests, subject to Permitted Liens, in the
Collateral. The Indenture imposes certain limitations on the incurrence of
7
indebtedness, the making of restricted payments, the sale of assets, the incurrence of certain
liens, sale-leaseback transactions, transaction with affiliates, the making of payments for
consents, business activities, designation of restricted and unrestricted subsidiaries, the
entering into of agreements that restrict distributions from restricted subsidiaries and the
consummation of mergers and consolidations. The Indenture also imposes requirements with respect
to the provision of financial information and the provision of guarantees of the Notes by certain
subsidiaries.
To guarantee the due and punctual payment of the principal, premium, if any, and interest
(including post-filing or post-petition interest) on the Notes and all other amounts payable by the
Company under the Indenture, the Notes, the Registration Rights Agreement, the Collateral Documents
and the Intercreditor Agreement when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantors
have unconditionally guaranteed (and future guarantors, together with the Guarantors, will
unconditionally guarantee), jointly and severally, such obligations on a senior, secured basis
pursuant to the terms of the Indenture.
43. Redemption and prepayment; Springing Maturity
Except as described below, the Notes will not be redeemable at the Company’s option prior to
December 1, 2012.
At any time prior to December 1, 2012 the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price
of 109.750% of the principal amount, plus accrued and unpaid interest and Special Interest, if any,
to the redemption date, with the net cash proceeds of one or more Equity Offerings of the Company
(or of any Parent, to the extent such proceeds are contributed to the Company’s common equity
capital); provided that:
(1) at least 65% of the aggregate principal amount of Notes originally issued under the
Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing of such Equity
Offering or contribution.
At any time prior to December 1, 2012 the Company may also redeem all or a part of the Notes,
upon not less than 30 nor more than 60 days’ prior notice mailed by first-class mail to each
holder’s registered address, at a redemption price equal to 100% of the principal amount of Notes
redeemed plus the Applicable Premium as of, and accrued and unpaid interest and Special Interest,
if any, to the date of redemption (the “Redemption Date”), subject to the rights of holders of
Notes on the relevant record date to receive interest due on the relevant interest payment date.
At any time prior to December 1, 2012, during any twelve month period commencing on the Issue
Date the Company may redeem up to 10% of aggregate principal amount of the Notes at a redemption
price equal to 103% of their principal amount, plus accrued and unpaid interest.
8
On or after December 1, 2012 the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days’ notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on
the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period
beginning on December 1 of the years indicated below, subject to the rights of holders of Notes on
the relevant record date to receive interest on the relevant interest payment date:
| Year | Percentage | |||
2012 |
107.313 | % | ||
2013 |
104.875 | % | ||
2014 |
102.438 | % | ||
2015 and thereafter |
100.000 | % | ||
Unless the Company defaults in the payment of the redemption price, interest will cease to
accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
“Applicable Premium” means, with respect to any Note on any redemption date, the
greater of:
(1) 1.0% of the principal amount of the Note; or
(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of
the Note at December 1, 2012 (such redemption price being set forth in the table
appearing above) plus (ii) all required interest payments due on the Note through
December 1, 2012 (excluding accrued but unpaid interest to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption date
plus 50 basis points; over
(b) the principal amount of the Note, if greater.
“Treasury Rate” means, as of any redemption date, the yield to maturity as of such
redemption date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two business days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source of similar market data)) most nearly
equal to the period from the redemption date to December 1, 2012; provided, however, that if the
period from the redemption date to December 1, 2012 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant maturity of one year
will be used.
Prior to the mailing of any notice of redemption of the Notes, the Company shall deliver to
the Trustee an Officers’ Certificate stating that the conditions precedent to the right of
9
redemption have occurred. Any such notice to the Trustee may be cancelled at any time prior
to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect.
The Company will be bound to redeem the Notes on the date fixed for redemption.
The Company may acquire Notes by means other than a redemption, whether by tender offer, open
market purchases, negotiated transactions or otherwise, in accordance with applicable securities
laws, so long as such acquisition does not otherwise violate the terms of the Indenture.
Except as set forth in the next succeeding paragraph, the Company is not required to make any
mandatory redemption payments or sinking fund payments with respect to the Notes.
The Notes will become due and payable on October 1, 2015 unless on or prior to August 28,
2015, the Indebtedness under the New Holdco Credit Facility has been either (i) repaid and
discharged, provided that any Indebtedness incurred in connection with any such repayment and
discharge shall comply with clause (ii) of this sentence or (ii) extended, replaced or refinanced
with Indebtedness constituting a New Holdco Credit Facility with a Stated Maturity that is at least
91 days after the final Stated Maturity of the Notes.
44. Change of Control Repurchase Provisions
If a Change of Control occurs, unless the Company has exercised its right to redeem all of the
Notes as described under paragraph 5 of the Notes, each Holder will have the right to require the
Company to repurchase from each Holder all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of such Holder’s Notes at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest and Special Interest, if any,
to the date of purchase (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) as provided in, and subject to the
terms of, the Indenture.
45. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of principal amount of
$2,000 and whole multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay a sum sufficient to cover any taxes and
fees required by law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange of any Note (A) for a period beginning (1) 15 days before the mailing of a notice of
an offer to repurchase or redeem Notes and ending at the close of business on the day of such
mailing or (2) 15 days before an interest payment date and ending on such interest payment date or
(B) called for redemption, except the unredeemed portion of any Note being redeemed in part.
46. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
10
47. Unclaimed Money
If money for the payment of principal, premium, if any, or interest remains unclaimed for two
years after such principal, premium, if any, or interest has become due and payable, the Trustee or
Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company for payment as general creditors unless an abandoned property law designates
another person and not to the Trustee for payment.
48. Defeasance
Subject to certain exceptions and conditions set forth in the Indenture, the Company at any
time may terminate some or all of its obligations under the Notes, the Indenture, the Collateral
Documents and the Intercreditor Agreement if the Company deposits with the Trustee money or
Government Securities for the payment of principal, premium, if any, and interest on the Notes to
redemption or maturity, as the case may be.
49. Amendment, Supplement, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture, the Notes, the
Note Guarantees, the Collateral Documents or the Intercreditor Agreement may be amended or
supplemented by the Company, Guarantors and Trustee with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and (ii) any default (other
than with respect to nonpayment or in respect of a provision that cannot be amended without the
consent of each Holder affected or, in certain cases described in the Indenture, the Collateral
Documents and the Intercreditor Agreement, the consent of Holders of 75% in aggregate principal
amount of the Notes) or noncompliance with any provision may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any Holder, the Company, the
Trustee, and, other than with respect to clause (8) below, the Guarantors may amend or supplement
the Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor
Agreement (1) to cure any ambiguity, defect or inconsistency; (2) to provide for uncertificated
Notes in addition to or in place of certificated Notes; (3) to provide for the assumption of the
Company’s or a Guarantor’s obligations to Holders of Notes and Note Guarantees by a successor to
the Company or such Guarantor pursuant to Article IV or X of the Indenture; (4) to
make any change that would provide any additional rights or benefits to the Holders of Notes or
that does not adversely affect the legal rights hereunder or under the Notes, the Note Guarantees,
the Collateral Documents and the Intercreditor Agreement of any such Holder; (5) to comply with
requirements of the SEC in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act; (6) to conform the text of the Indenture, Note Guarantees or the Notes to any
provision of the “Description of Notes” section of the Offering Memorandum, to the extent that such
provision in that “Description of Notes” section was intended to be a verbatim recitation of a
provision of the Indenture, the Notes or the Note Guarantees; (7) to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture as of the date
hereof; (8) to allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the
11
Notes; (9) to add additional Collateral to secure the Notes; or (10) to release Liens in favor
of the Collateral Agent in the Collateral as provided in Section 11.6 of the Indenture.
50. Defaults and Remedies
Each of the following is an “Event of Default”:
(1) default for 30 days in the payment when due of interest on, or Special Interest, if
any, with respect to, the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions described in Section 3.5, 3.10 or 4.1 of the Indenture;
(4) failure by the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the trustee or the holders of at least 25% in aggregate principal
amount of the Notes then outstanding voting as a single class to comply with any of the
other agreements in the Indenture, the Notes, the Collateral Documents or the Intercreditor
Agreement;
(5) default under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of the Indenture, if that default:
(a) is caused by a failure to pay any such Indebtedness at its stated final
maturity (a “Payment Default”); or
(b) results in the acceleration of such Indebtedness prior to its stated final
maturity,
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0 million
or more;
(6) failure by the Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in excess of $10.0
million (net of any amount covered by insurance issued by a national insurance company that
has not contested coverage), which judgments are not paid, discharged or stayed for a period
of 60 days;
(7) any (x) Note Guarantee, (y) Collateral Document governing a security interest with
respect to any Collateral having a fair market value in excess of $10.0 million or (z)
12
obligation under the Intercreditor Agreement, in each case, of a Significant Subsidiary
or group of Restricted Subsidiaries that taken together as of the date of the latest audited
consolidated financial statements for the Company and its Restricted Subsidiaries would
constitute a Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms of the Indenture and the Note Guarantees) or is declared null and
void in a judicial proceeding or any Guarantor that is a Significant Subsidiary or group of
Guarantors that taken together as of the date of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries would constitute a Significant
Subsidiary denies or disaffirms its obligations under the Indenture;
(8) certain events of bankruptcy, insolvency or reorganization described in the
Indenture with respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; and
(9) with respect to any Collateral having a fair market value in excess of $10.0
million, individually or in the aggregate, (A) the failure of the security interest with
respect to such Collateral under the Collateral Documents, at any time, to be in full force
and effect for any reason other than in accordance with their terms and the terms of the
Indenture and other than the satisfaction in full of all obligations under the Indenture and
discharge of the Indenture if such Default continues for 60 days, (B) the declaration that
the security interest with respect to such Collateral created under the Collateral Documents
or under the Indenture is invalid or unenforceable, if such Default continues for 60 days or
(C) the assertion by the Company or any Guarantor, in any pleading in any court of competent
jurisdiction, that any such security interest is invalid or unenforceable.
If an Event of Default (other than an Event of Default described in clause (8) above) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the outstanding Notes by notice to the Company and the Trustee, may,
and the Trustee at the request of such Holders shall, declare the principal of, premium, if any,
and accrued and unpaid interest (including Special Interest), if any, on all the Notes to be due
and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest
shall be due and payable immediately.
In the case of an Event of Default specified in clause (8) above, with respect to the Company,
any Restricted Subsidiary of the Company that is a Significant Subsidiary or any group of
Restricted Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately without further action or
notice.
The Holders of a majority in aggregate principal amount of the outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee.
The trustee may withhold from holders of the Notes notice of any continuing Default or Event
of Default if it determines that withholding notice is in their interest, except a
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Default or Event of Default relating to the payment of principal, interest or premium or
Special Interest, if any.
Subject to the provisions of the Indenture relating to the duties of the trustee or the
collateral agent, in case an Event of Default occurs and is continuing, the trustee or the
collateral agent will be under no obligation to exercise any of the rights or powers under the
Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreement
at the request or direction of any holders of Notes unless such holders have offered to the trustee
or the collateral agent reasonable indemnity or security against any loss, liability or expense.
51. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, 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 or its Affiliates with the same rights it would have if it were not Trustee.
52. No Recourse Against Others
An incorporator, director, officer, employee or stockholder of each of the Company or any
Guarantor, solely by reason of this status, shall not have any liability for any obligations of the
Company or any Guarantor under the Notes, the Indenture, the Collateral Documents, the
Intercreditor Agreement or the Note Guarantees or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each Holder waives and releases
all such liability. The waiver and release are a part of the consideration for the issuance of the
Notes.
53. Authentication
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating
agent acting on its behalf) manually signs the certificate of authentication on the other side of
this Note.
54. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=
tenants in common), TEN ENT
(= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
(= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).
55. CUSIP, Common Code and ISIN Numbers
The Company has caused CUSIP, Common Code and ISIN numbers, if applicable, to be printed on
the Notes and has directed the Trustee to use CUSIP, Common Code and ISIN numbers, if applicable,
in notices of redemption or purchase as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the
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Notes or as contained in any notice of redemption or purchase and reliance may be placed only
on the other identification numbers placed thereon.
56. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New
York.
The Company will furnish to any Holder upon written request and without charge to the Holder a
copy of the Indenture, which has in it the text of this Note in larger type. Requests may be made
to:
Xxxxxx-Xxxx Sports, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
57. USA Patriot Act
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the
Trustee is required to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with the Trustee. The parties to the
Indenture agree that they will provide the Trustee with such information as it may request in order
for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
15
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date:
|
Your Signature: | |||||||
Signature Guarantee:
|
||
| (Signature must be guaranteed) | ||
| Sign exactly as your name appears on the other side of this Note. | ||
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
The undersigned hereby certifies that it o is / o is not an Affiliate of the Company and that, to
its knowledge, the proposed transferee o is / o is not an Affiliate of the Company.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate
occurring prior to the date that is one year after the later of the date of original issuance of
such Notes and the last date, if any, on which such Notes were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
| (1 | ) | o | acquired for the undersigned’s own account, without transfer; or | |||||
| (2 | ) | o | transferred to the Company; or | |||||
| (3 | ) | o | transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or | |||||
| (4 | ) | o | transferred pursuant to an effective registration statement under the Securities Act; or |
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| (5 | ) | o | transferred pursuant to and in compliance with Regulation S under the Securities Act (provided that the transferee has furnished to the Trustee a signed letter containing certain representations and agreements, the form of which letter appears as Section 2.9 of the Indenture); or | |||||
| (6 | ) | o | transferred 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 appears as Section 2.8 of the Indenture); or | |||||
| (7 | ) | o | transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933, as amended. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any person other than the registered Holder thereof; provided,
however, that if box (5), (6) or (7) is checked, the Company may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal opinions, certifications and other
information as the Company may reasonably request 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 of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
| Signature | ||
Signature Guarantee: |
||
(Signature must be guaranteed)
|
Signature | |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF BOX (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note 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 of 1933, as amended, 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 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: |
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Note have been made:
| Principal Amount of this Global | Signature of authorized | |||||||||||||||||
| Amount of decrease in Principal | Amount of increase in Principal | Note following such decrease or | signatory of Trustee or Notes | |||||||||||||||
| Date of Exchange | Amount of this Global Note | Amount of this Global Note | increase | Custodian | ||||||||||||||
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OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to Section 3.5 or 3.10 of the
Indenture, check either box:
o |
o | |
3.5 |
3.10 |
If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 3.5 or Section 3.10 of the Indenture, state the amount in principal amount (must be in
denominations of $2,000 or an integral multiple of $1,000 in excess thereof):
$ and specify the denomination or denominations (which
shall not be less than the minimum authorized denomination) of the Notes to be issued to the Holder
for the portion of the within Note not being repurchased (in the absence of any such specification,
one such Note will be issued for the portion not being repurchased): .
Date:
|
Your Signature | |||||
| (Sign exactly as your name appears on the other side of the Note) |
Signature Guarantee:
|
||
| (Signature must be guaranteed) |
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17Ad-15.
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NOTE GUARANTEE
Pursuant to the Indenture (the “Indenture”) dated as of December 3, 2009 among
Xxxxxx-Xxxx Sports, Inc., the Guarantors party thereto (each a “Guarantor” and collectively
the “Guarantors”) and U.S. Bank National Association, as trustee (the “Trustee”),
each Guarantor, subject to the provisions of Article X of the Indenture, hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, jointly
and severally with each other Guarantor, to each Holder of the Notes, to the extent lawful, and the
Trustee the full and punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of, premium, if any, and interest (including Special Interest) on
the Notes and all other obligations and liabilities of the Company under the Indenture (including
without limitation interest (including Special Interest) accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating
to the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding and the obligations under Section 7.7 of the Indenture), the
Registration Rights Agreement, the Collateral Documents and the Intercreditor Agreement (all the
foregoing being hereinafter collectively called the “Guaranteed Obligations”).
Each Note Guarantee will be secured on a first-priority basis by the First Priority Collateral
owned by such Guarantor and on a second-priority basis by the ABL Collateral owned by such
Guarantor. Such Guarantors will also agree to pay any and all costs and expenses (including
reasonable counsel fees and expenses) incurred by the Trustee, the Collateral Agent or the Holders
in enforcing any rights under the Note Guarantees. The obligations of the Guarantors under the Note
Guarantees will rank equally in right of payment with other Indebtedness of such Guarantors, except
to the extent such other Indebtedness is expressly subordinated to the obligations arising under
the Note Guarantees, in which case the obligations of the Guarantors under the Note Guarantees will
rank senior in right of payment to such other Indebtedness.
Each Guarantor agrees (to the extent permitted by law) that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from it, and that it
will remain bound under Article X of the Indenture notwithstanding any extension or renewal
of any Guaranteed Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Company of
any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor
waives notice of any default under the Notes or the Guaranteed Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a Guarantee of
payment when due (and not a Guarantee of collection) and waives any right to require that any
resort be had by any Holder to any security held for payment of the Guaranteed Obligations.
Except as set forth in Section 10.2 of the Indenture, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason (other than payment of the Guaranteed Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of
20
setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to
enforce any right or remedy against the Company or any other person under the Indenture, the Notes
or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture,
the Notes or any other agreement; (d) the release of any security held by any Holder or the
Collateral Agent for the Guaranteed Obligations or any of them; (e) the failure of any Holder to
exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the
Company; (g) any default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or (h) any other act or thing or omission or delay to do any other act or
thing which may or might in any manner or to any extent vary the risk of any Guarantor or would
otherwise operate as a discharge of such Guarantor as a matter of law or equity.
Each Guarantor agrees that its Note Guarantee under the Indenture shall remain in full force
and effect until payment in full of all the Guaranteed Obligations or such Guarantor is released
from its Note Guarantee in compliance with Section 10.2 or Article VIII of the
Indenture. Each Guarantor further agrees that its Note Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
principal of, premium, if any, or interest on any of the Guaranteed Obligations is rescinded or
must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to pay
any of the Guaranteed Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Guarantor hereby promises to and will, upon receipt
of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Trustee or
the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such
Guaranteed Obligations then due and owing and (ii) accrued and unpaid interest (including Special
Interest) on such Guaranteed Obligations then due and owing (but only to the extent not prohibited
by law).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the
Holders, on the other hand, (x) the maturity of the Guaranteed Obligations may be accelerated as
provided in the Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the Guaranteed
Obligations and (y) in the event of any such declaration of acceleration of such Guaranteed
Obligations, such Obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantor for the purposes of this Note Guarantee.
Each Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under
this Section.
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| XXXXXXX SPORTS GROUP, INC. XXXXXXX, INC. MACMARK CORPORATION RIDMARK CORPORATION ALL AMERICAN SPORTS CORPORATION EQUILINK LICENSING, LLC BELL SPORTS CORP. BELL SPORTS, INC. BELL CHINA INVESTMENTS, INC. BELL RACING COMPANY EASTON SPORTS, INC. EASTON SPORTS ASIA, INC. CDT NEVADA, INC. as Guarantors |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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