Exhibit 4.4
EXECUTION VERSION
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE dated as of July 13, 2004 among The
Hockey Company, a Delaware corporation (the "COMPANY"), Sport Maska Inc., a New
Brunswick corporation (the "SUBSIDIARY ISSUER", and together with the Company,
the "Issuers"), the Guarantors (as defined in the Indenture referred to herein),
and The Bank of New York, as trustee under the Indenture referred to below (the
"TRUSTEE").
WHEREAS, the Issuers and certain of the Guarantors have heretofore executed
and delivered to the Trustee an indenture dated as of April 3, 2002 (as such
indenture has been supplemented and amended to date, the "EXISTING INDENTURE",
and the Existing Indenture, as it may from time to time be supplemented or
amended by one or more additional indentures supplemental thereto entered into
pursuant to the applicable provisions thereof, being hereinafter called the
"INDENTURE"), providing for the issuance of 11 1/4% Senior Secured Note Units
due 2009 (the "INITIAL UNITS"), each Unit consisting of $500 principal amount of
11 1/4% Senior Secured Notes of the Company (the "PARENT NOTES") and $500
principal amount of 11 1/4% Senior Secured Notes of the Subsidiary Issuer (the
"SUBSIDIARY ISSUER NOTES" and, together with the Parent Notes, the "NOTES");
WHEREAS, the Issuers and certain of the Guarantors have heretofore executed
and delivered to the Trustee supplemental indentures dated as of May 22, 2003
providing for the unconditional guarantee all of the Company's Obligations under
the Notes and the Indenture on the terms and conditions set forth therein and to
clarify the defined term "Change of Control";
WHEREAS, the Issuers and the Guarantors propose to amend the Existing
Indenture and the Notes (the "PROPOSED AMENDMENTS"), as contemplated hereby;
WHEREAS, the Issuers have obtained the consent of the Holders of the Notes
pursuant to the Offer to Purchase and Consent Solicitation Statement dated June
25, 2004, as amended, supplemented or modified (the "CONSENT SOLICITATION
STATEMENT"), to the Proposed Amendments upon the terms and subject to the
conditions set forth therein;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuers and the
Guarantors may amend or supplement the Indenture and the Notes as contemplated
hereby provided that the Holders of at least a majority in aggregate principal
amount of Notes then outstanding have consented;
WHEREAS, the Issuers have received and delivered to the Trustee the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
to the Proposed Amendments;
WHEREAS, each of the Issuers and each Guarantor has been authorized by a
resolution of its respective board of directors to enter into this Third
Supplemental Indenture;
WHEREAS, all other acts and proceedings required by law, by the Existing
Indenture and by the respective certificate of incorporation and by-laws of the
Issuers and the Guarantors to make this Third Supplemental Indenture a valid and
binding agreement for the purposes expressed herein, in accordance with its
terms, have been duly done and performed;
WHEREAS, pursuant to Section 9.06, the Trustee is authorized to execute and
deliver this Third Supplemental Indenture;
WHEREAS, the terms of this Third Supplemental Indenture will become
operative (the "OPERATIVE DATE") on the Initial Payment Date (as defined in the
Consent Solicitation Statement) (the "TENDER OFFER CONDITION"); and
WHEREAS, the terms of this Third Supplemental Indenture shall be null and
void if the Tender Offer Condition does not occur.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH:
That, for and in consideration of the premises herein contained and in
order to effect the proposed amendments contained in the Consent Solicitation
Statement, pursuant to Sections 9.02 and 9.06 of the Existing Indenture, the
Issuers and the Guarantors agree with the Trustee as follows:
ARTICLE 1
AMENDMENT OF EXISTING INDENTURE AND NOTES
1.1. AMENDMENT OF EXISTING INDENTURE. Effective as of the Operative
Date, this Third Supplemental Indenture amends the Existing Indenture as
provided for herein. If the Operative Date does not occur, then the terms of
this Third Supplemental Indenture shall be null and void and the Existing
Indenture shall continue in full force and effect without any modification
hereby.
1.2. AMENDMENT OF SECTION 1.01. Pursuant to Section 9.02 of the Existing
Indenture, Section 1.01 of the Existing Indenture is hereby amended by deleting
in their entirety the definitions of "Acquired Indebtedness," "Affiliate
Transaction," "Asset Acquisition," "Asset Sale," "Capitalized Lease Obligation,"
"Cash Equivalents," "Consolidated EBITDA," "Consolidated Fixed Charge Coverage
Ratio," "Consolidated Fixed Charges," "Consolidated Interest Expense,"
"Consolidated Net Income," "Consolidated Net Worth," "Consolidated Non-cash
Charges," "Credit Agreement," "Credit Facilities," "Currency Agreement,"
"European Credit Agreement," "Incur," "Independent Financial Advisor," "Interest
Swap Obligations," "Investment," "Net Cash Proceeds," "Net Proceeds Offer," "Net
Proceeds Offer Amount," "Net Proceeds Offer Payment Date," "Net Proceeds Offer
Trigger Date," "Permitted Indebtedness," "Permitted Investments," "Permitted
Liens," "Proceeds Purchase Date," "Purchase Money Indebtedness," "Reference
Date," "Refinance," "Refinancing Indebtedness,"
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"Restricted Payment," "Sale and Leaseback Transaction," "Surviving Entity," and
"Weighted Average Life to Maturity" contained in the Existing Indenture.
1.3. AMENDMENT OF SECTION 4.03. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.02 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.03. [INTENTIONALLY OMITTED].
1.4. AMENDMENT OF SECTION 4.04. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.04 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.04. [INTENTIONALLY OMITTED].
1.5. AMENDMENT OF SECTION 4.05. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.05 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.05. [INTENTIONALLY OMITTED].
1.6. AMENDMENT OF SECTION 4.06. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.06 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.06. [INTENTIONALLY OMITTED].
1.7. AMENDMENT OF SECTION 4.07. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.06 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.07. [INTENTIONALLY OMITTED].
1.8. AMENDMENT OF SECTION 4.08. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.08 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.08. [INTENTIONALLY OMITTED].
1.9. AMENDMENT OF SECTION 4.09. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.09 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.09. [INTENTIONALLY OMITTED].
1.10. AMENDMENT OF SECTION 4.10. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.10 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
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SECTION 4.10. [INTENTIONALLY OMITTED].
1.11. AMENDMENT OF SECTION 4.11. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.11 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.11. [INTENTIONALLY OMITTED].
1.12. AMENDMENT OF SECTION 4.12. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.12 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.12. [INTENTIONALLY OMITTED].
1.13. AMENDMENT OF SECTION 4.13. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.13 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.13. [INTENTIONALLY OMITTED].
1.14. AMENDMENT OF SECTION 4.16. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.16 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.16. [INTENTIONALLY OMITTED].
1.15. AMENDMENT OF SECTION 4.18. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.18 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.18 [INTENTIONALLY OMITTED].
1.16. AMENDMENT OF SECTION 4.19. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.19 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.19. [INTENTIONALLY OMITTED].
1.17. AMENDMENT OF SECTION 4.20. Pursuant to Section 9.02 of the Existing
Indenture, Section 4.20 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 4.20. [INTENTIONALLY OMITTED].
1.18. AMENDMENT OF SECTION 5.01. Pursuant to Section 9.02 of the Existing
Indenture, Section 5.01 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
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SECTION 5.01. [INTENTIONALLY OMITTED].
1.19. AMENDMENT OF SECTION 5.02. Pursuant to Section 9.02 of the Existing
Indenture, Section 5.02 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, combination or merger or any transfer of all or
substantially all of the assets of an Issuer, the successor Person formed by
such consolidation or into which that Issuer is merged or to which such
conveyance, lease or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, that Issuer under this Indenture, the
Notes and the Units with the same effect as if such surviving entity had been
named as such.
1.20. AMENDMENT OF SECTION 6.01. Pursuant to Section 9.02 of the Existing
Indenture, Section 6.01 of the Existing Indenture is hereby amended and restated
in its entirety to read as follows:
SECTION 6.01. EVENTS OF DEFAULT
Each of the following constitutes an "EVENT OF DEFAULT":
(1) the Company or Subsidiary Issuer fails to pay interest on any
Notes included in a Unit when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company or Subsidiary Issuer fails to pay the principal
on any Notes included in a Unit, when such principal becomes due and
payable, at maturity, upon redemption or otherwise;
(3) [INTENTIONALLY OMITTED];
(4) [INTENTIONALLY OMITTED];
(5) [INTENTIONALLY OMITTED];
(6) the Company, the Subsidiary Issuer or any Significant
Subsidiary (A) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (B) consents to the entry of a
judgment, decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (C) consents to the appointment of a
Custodian of it or for substantially all of its property, (D) consents to
or acquiesces in the institution of a bankruptcy or an insolvency
proceeding against it, (E) makes a general assignment for the benefit of
its creditors, or (F) takes any corporate action to authorize or effect any
of the foregoing;
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(7) a court of competent jurisdiction enters a judgment, decree
or order for relief in respect of the Company, the Subsidiary Issuer or any
Significant Subsidiary in an involuntary case or proceeding under any
Bankruptcy Law, which shall (A) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or composition in respect
of the Company, the Subsidiary Issuer or any Significant Subsidiary, (B)
appoint a Custodian of the Company, the Subsidiary Issuer or any
Significant Subsidiary or for substantially all of its property or (C)
order the winding-up or liquidation of its affairs; and such judgment,
decree or order shall remain unstayed and in effect for a period of 60
consecutive days;
(8) any Collateral Agreement at any time for any reason shall
cease to be in full force and effect, or ceases to give the Collateral
Agent the Liens, rights, powers and privileges purported to be created
thereby, superior to and prior to the rights of all third Persons other
than the holders of Permitted Liens and subject to no other Liens except as
expressly permitted by the Indenture, or any judgment creditor having a
Lien against any Collateral commences legal action to foreclose such Lien
or otherwise exercise its remedies against any Collateral and the value of
the claim of such creditor is greater than $1.5 million; or
(9) any Guarantee of a Significant Subsidiary ceases to be in
full force and effect or any Guarantee of a Significant Subsidiary is
declared to be null and void and unenforceable or any Guarantee of a
Significant Subsidiary is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other than
by reason of release of a Guarantor in accordance with the terms of this
Indenture).
1.21. AMENDMENT OF SECTION 8.01(d). Pursuant to Section 9.02 of the
Existing Indenture, Section 8.01(d) of the Existing Indenture is hereby amended
and restated in its entirety to read as follows:
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(1) The Issuers shall have irrevocably deposited in trust with
the Trustee, pursuant to an irrevocable trust and security agreement in
form and substance reasonably satisfactory to the Trustee, U.S. Legal
Tender or U.S. Government Obligations or a combination thereof in such
amounts and at such times as are sufficient, in the opinion of any
Officer of the Issuers, as set out in an Officers' Certificate, to pay
the principal of and interest on the outstanding Notes to maturity or
redemption, in each case not later than one day before the due date of
any payment; provided, however, that the Trustee (or other qualifying
trustee) shall have received an irrevocable written order from the
Issuers instructing the Trustee (or other qualifying trustee) to apply
such U.S. Legal Tender or the proceeds of such U.S. Government
Obligations to said payments with respect to the Notes to maturity or
redemption;
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(2) [INTENTIONALLY OMITTED];
(3) Such Legal Defeasance or Covenant Defeasance shall not result
in a Default under this Indenture or a breach or violation of, or
constitute a default under, this Indenture;
(4) [INTENTIONALLY OMITTED];
(5) [INTENTIONALLY OMITTED];
(6) [INTENTIONALLY OMITTED];
(7) The Issuers have jointly delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent specified herein relating to the defeasance
contemplated by this Section 8.01 have been complied with.
In the event all or any portion of the Notes, as Units, are to be
redeemed through such irrevocable trust, the Issuers must make
arrangements reasonably satisfactory to the Trustee, at the time of such
deposit, for the giving of the notice of such redemption or redemptions
by the Trustee in the name and at the expense of the Issuers.
1.22. AMENDMENT OF SECTION 12.05. Pursuant to Section 9.02 of the
Existing Indenture, Section 12.05 of the Existing Indenture is hereby amended
and restated in its entirety to read as follows:
SECTION 12.05. SPECIFIED RELEASES OF COLLATERAL.
(a) The Issuers shall be entitled to obtain a full release of items of
Collateral (the "Released Interests") from the Security Interests created by
this Indenture, the Notes and the Collateral Agreements upon compliance with the
conditions precedent set forth in Sections 8.01 or 8.02 of this Indenture, the
applicable Collateral Agreements and to the extent applicable, the Intercreditor
Agreement. So long as no Default or Event of Default exists, upon the request of
the Issuers and the furnishing of each of the items required by Section
12.05(b), the Collateral Agent upon the direction of the Trustee (or the Trustee
if acting as Collateral Agent) shall forthwith take such action (at the request
of and the expense of the Issuers, without recourse or warranty and without any
representation of any kind), including the execution of appropriate UCC-3
termination statements, to release and reconvey to the Issuers all of the
Released Interests, and shall deliver such Released Interests in its possession
to the Issuers and their applicable Subsidiary Guarantors.
(b) So long as no Default or Event of Default exists, the Issuers shall
be entitled to obtain a release of, and the Collateral Agent and the Trustee
shall release, the Released Interests upon compliance with the condition
precedent that the Issuers shall have satisfied all applicable conditions
precedent to any such release set forth in this Indenture, the applicable
Collateral Agreements and to the extent applicable, the
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Intercreditor Agreement as set forth in an Officers' Certificate and an Opinion
of Counsel delivered to the Trustee and shall have delivered to the Trustee and
the Collateral Agent the following, as applicable:
(i) [INTENTIONALLY DELETED];
(ii) [INTENTIONALLY DELETED];
(iii) [INTENTIONALLY DELETED];
(iv) to the extent required by the TLA, an Officers' Certificate
of the Issuers and an Opinion of Counsel certifying that all
conditions precedent to the release of the Released Interests have
been met and that such release complies with the terms and
conditions of this Indenture, the applicable Collateral Agreements
and to the extent applicable, the Intercreditor Agreement; and
(v) all applicable certificates, opinions and other documentation
required by the TIA or this Indenture, if any.
Upon compliance by the Issuers with the conditions precedent set forth
above, the Trustee shall cause to be released and reconveyed, without recourse
and without representation or warranty of any kind, to the Issuers, the Released
Interests.
1.23. AMENDMENT TO THE NOTES. Pursuant to Section 9.02 of the Existing
Indenture, Section 15 of the Notes is hereby deleted in its entirety.
ARTICLE 2
THE TRUSTEE
2.1. PRIVILEGES AND IMMUNITIES OF TRUSTEE. The Trustee accepts the
amendment of the Indenture and the Notes effected by this Third Supplemental
Indenture but only upon the terms and conditions set forth in the Indenture,
including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall in like manner
define and limit its liabilities and responsibilities in the performance of the
trust created by the Indenture as hereby amended. The Trustee shall not be
responsible for the adequacy or sufficiency of the Third Supplemental Indenture,
for the due execution thereof by the Company and the Guarantors or for the
recitals contained herein, which are the Company's and the Guarantors'
responsibilities.
ARTICLE 3
MISCELLANEOUS PROVISIONS
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3.1. INSTRUMENTS TO BE READ TOGETHER. This Third Supplemental Indenture
is an indenture supplemental to and in implementation of the Existing Indenture,
and said Existing Indenture and this Third Supplemental Indenture shall
henceforth be read together.
3.2. CONFIRMATION. The Existing Indenture as amended and supplemented by
this Third Supplemental Indenture is in all respects confirmed and preserved.
3.3. TERMS DEFINED. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Existing Indenture.
3.4. COUNTERPARTS. This Third Supplemental Indenture may be signed in
any number of counterparts each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
3.5. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
3.6. EFFECTIVENESS. The provisions of this Third Supplemental Indenture
will take effect immediately upon execution thereof by the parties hereto on the
Operative Date of this Third Supplemental Indenture. If the Tender Offer
Condition does not occur, the terms of this Third Supplemental Indenture shall
be null and void.
3.7. GOVERNING LAW. The internal law of the State of New York shall
govern and be used to construe this Third Supplemental Indenture without giving
effect to applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required thereby. This
Third Supplemental Indenture is subject to the provisions of the Trust Indenture
Act that are required to be part of the Indenture and shall, to the extent
applicable, be governed by such provisions.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed as of the date first above written.
THE HOCKEY COMPANY
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
SPORT MASKA INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
SPORTS HOLDINGS CORP.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
MASKA U.S., INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
SLM TRADEMARK ACQUISITION CORP.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
WAP HOLDINGS INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
SLM TRADEMARK ACQUISITION
CANADA CORP.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
JOFA AB
By: /s/ M.A. ▇'▇▇▇▇▇
-----------------------------
Name:
Title:
JOFA HOLDING AB
By: /s/ M.A. ▇'▇▇▇▇▇
-----------------------------
Name:
Title:
NORDIC HOCKEY COMPANY AB
By: /s/ M.A. ▇'▇▇▇▇▇
-----------------------------
Name:
Title:
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: ASSISTANT VICE PRESIDENT