Exhibit 4.1

 

 

 

ICON BRAND HOLDINGS LLC,

 

ICON DE INTERMEDIATE HOLDINGS LLC,

 

ICON DE HOLDINGS LLC and

 

ICON NY HOLDINGS LLC

 

each as Co-Issuer

 

 

and

 

 

CITIBANK, N.A.,

SERIES 2013-1 SUPPLEMENT

 

 

Dated as of  June 21, 2013

 

 

to

 

 

BASE INDENTURE

 

 

Dated as of November 29, 2012

SERIES 2013-1 SUPPLEMENT, dated as of June 21, 2013 (this “ Series 2013-1 Supplement ”), by and among ICON BRAND HOLDINGS LLC, a Delaware limited liability company (“ Brand Holdings II ”), ICON DE INTERMEDIATE HOLDINGS LLC, a Delaware limited liability company (“ Brand Holdings I ”), ICON DE HOLDINGS LLC, a Delaware limited liability company (the “ IP Holder I ”), ICON NY HOLDINGS LLC, a Delaware limited liability company (“ IP Holder II ” and, together with the Brand Holdings I, Brand Holdings II and IP Holder I, collectively, the “ Co-Issuers ” and each, a “ Co-Issuer ”), each as a Co-Issuer, and CITIBANK, N.A., a national banking association, as trustee (in such capacity, the “ Trustee ”) and as Series 2013-1 Securities Intermediary, to the Base Indenture, dated as of November 29, 2012, by and among the Co-Issuers and CITIBANK, N.A., as Trustee and as Securities Intermediary (as amended, modified or supplemented from time to time, exclusive of Series 2013-1 Supplements, the “ Base Indenture ”).

 

PRELIMINARY STATEMENT

 

WHEREAS, Sections 2.2 and 13.1 of the Base Indenture provide, among other things, that the Co-Issuers and the Trustee may at any time and from time to time enter into a Series 2013-1 Supplement to the Base Indenture for the purpose of authorizing the issuance of one or more Series of Notes (as defined in Annex A of the Base Indenture) upon satisfaction of the conditions set forth therein; and

 

WHEREAS, all such conditions have been met for the issuance of the Series of Notes authorized hereunder.

 

NOW, THEREFORE, the parties hereto agree as follows:

 

DESIGNATION

 

There is hereby created a Series of Notes to be issued pursuant to the Base Indenture and this Series 2013-1 Supplement, and such Series of Notes shall be designated the Series 2013-1 4.352% Senior Secured Notes, Class A-2 (referred to herein as, the “ Series 2013-1 Notes ”). For purposes of the Indenture, the Series 2013-1 Notes shall be deemed to be “Senior Notes.”

 

ARTICLE I

 

DEFINITIONS

 

All capitalized terms used herein (including in the preamble and the recitals hereto) shall have the meanings assigned to such terms in the Series 2013-1 Supplemental

 

Definitions List attached hereto as Annex A (the “ Series 2013-1 Supplemental Definitions List ”) as such Series 2013-1 Supplemental Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof. All capitalized terms not otherwise defined therein shall have the meanings assigned thereto in the Base Indenture Definitions List attached to the Base Indenture as Annex A thereto, as such Base Indenture Definitions List may be amended, supplemented or otherwise modified from time to time in accordance with the terms of the Base Indenture. Unless otherwise specified herein, all Article, Exhibit, Section or Subsection references herein shall refer to Articles, Exhibits, Sections or Subsections of the Base Indenture or this Series 2013-1 Supplement (as indicated herein). Unless otherwise stated herein, as the context otherwise requires or if such term is otherwise defined in the Base Indenture, each capitalized term used or defined herein shall relate only to the Series 2013-1 Notes and not to any other Series of Notes issued by the Co-Issuers.

 

ARTICLE II

 

SERIES 2013-1 ALLOCATIONS; PAYMENTS

 

With respect to the Series 2013-1 Notes only, the following shall apply:

 

Section 2.1     Allocations with Respect to the Series 2013-1 Notes .  On the Series 2013-1 Closing Date, $3,000,000 of the net proceeds from the initial sale of the Series 2013-1 Notes will be deposited into the Senior Notes Interest Reserve Account and the remainder of the net proceeds from the sale of the Series 2013-1 Notes will be paid to, or at the direction of, the Co-Issuers.

 

Section 2.2     Application of Monthly Collections on Monthly Allocation Dates to the Series 2013-1 Notes; Quarterly Payment Date Applications .  On each Monthly Allocation Date, Brand Holdings II shall instruct the Trustee in writing to allocate from the Collection Account all amounts relating to the Series 2013-1 Notes pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments, including the following:

 

(a)     Series 2013-1 Senior Notes Quarterly Interest .  On each Monthly Allocation Date, Brand Holdings II shall instruct the Trustee in writing to allocate from the Collection Account the Series 2013-1 Quarterly Interest deemed to be “Senior Notes Quarterly Interest” pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.

 

(b)     Series 2013-1 Senior Notes Interest Reserve Amount .

 

(i)     The Co-Issuers shall maintain an amount on deposit in the Senior Notes Interest Reserve Account with respect to the Series 2013-1 Notes equal to the Series 2013-1 Senior Notes Interest Reserve Amount.

 

(ii)     If on any Monthly Allocation Date there is a Series 2013-1 Senior Notes Interest Reserve Account Deficiency, Brand Holdings II shall instruct the Trustee in writing to deposit into the Senior Notes Interest Reserve Account an amount equal to the Series 2013-1 Senior Notes Interest Reserve Account Deficit Amount pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.

 

(iii)       On the Accounting Date preceding the first Quarterly Payment Date following a Series 2013-1 Interest Reserve Release Event or on which a Series 2013-1 Interest Reserve Release Event occurs, Brand Holdings II shall instruct the Trustee in writing to withdraw the Series 2013-1 Interest Reserve Release Amount, if any, from the Senior Notes Interest Reserve Account and deposit such amounts into the Collection Account in accordance with Section 5.10(a)(viii) of the Base Indenture.

 

(c)     Series 2013-1 Senior Notes Rapid Amortization Principal Amounts .  If any Monthly Allocation Date occurs during a Rapid Amortization Period, Brand Holdings II shall instruct the Trustee in writing to allocate from the Collection Account for payment of principal on the Series 2013-1 Senior Notes the amounts contemplated by the Priority of Payments for such principal.

 

(d)     Series 2013-1 Scheduled Principal Payments .  On each Monthly Allocation Date prior to the occurrence of a Rapid Amortization Event as set forth in clause (d) of Section 9.1 of the Base Indenture, Brand Holdings II shall instruct the Trustee in writing to allocate from the Collection Account the Series 2013-1 Scheduled Principal Payments Amounts deemed to be “Senior Notes Scheduled Principal Payments” pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.

 

(e)     Series 2013-1 Scheduled Principal Payment Deficiencies .  On each Monthly Allocation Date, Brand Holdings II shall instruct the Trustee in writing to allocate from the Collection Account the portion of the Senior Notes Scheduled Principal Payments Deficiency Amounts attributable to the Series 2013-1 Notes (which shall equal the Series 2013-1 Scheduled Principal Deficiency Amount) pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.

 

(f)     Series 2013-1 Senior Notes Quarterly Post-ARD Contingent Interest .  On each Monthly Allocation Date, Brand Holdings II shall instruct the Trustee in writing to allocate from the Collection Account the Series 2013-1 Post-ARD Contingent Interest deemed to be “Senior Notes Quarterly Post-ARD Contingent Interest” pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.

 

(g)     Series 2013-1 Make-Whole Prepayment Premium .  On each Monthly Allocation Date, Brand Holdings II shall instruct the Trustee in writing to allocate from the

 

Collection Account the Series 2013-1 Make-Whole Prepayment Premium deemed to be “unpaid premiums and make-whole prepayment premiums” pursuant to, and to the extent that funds are available therefor in accordance with the provisions of, the Priority of Payments.

 

(h)     Application Instructions .  The Control Party is hereby authorized (but shall not be obligated) to deliver any instruction contemplated in this Section 2.2 that is not timely delivered by or on behalf of Brand Holdings II or any other Co-Issuer.

 

Section 2.3     Certain Distributions from Series 2013-1 Distribution Account .  On each Quarterly Payment Date, based solely upon the most recent Quarterly Noteholders’ Statement, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, remit to the Series 2013-1 Noteholders from the Series 2013-1 Distribution Account, the amounts withdrawn from the Senior Notes Interest Account and Senior Notes Principal Payments Account, as applicable, pursuant to Section 5.12(a) or (g) , as applicable, of the Base Indenture, the amount deposited in the Series 2013-1 Distribution Account for the payment of interest and principal on such Quarterly Payment Date.

 

Section 2.4     Series 2013-1 Interest

 

(a)     Series 2013-1 Note Rate .  From the Series 2013-1 Closing Date until the Series 2013-1 Outstanding Principal Amount has been paid in full, the Series 2013-1 Outstanding Principal Amount (after giving effect to all payments of principal made to Noteholders as of the first day of such Interest Period and also giving effect to repurchases and cancellations of Series 2013-1 Notes during such Interest Period) will accrue interest at the Series 2013-1 Note Rate for such Interest Period. Such accrued interest will be due and payable in arrears on each Quarterly Payment Date, from amounts that are made available for payment thereof (i) on any related Monthly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, commencing on July 25, 2013; provided that in any event all accrued but unpaid interest shall be due and payable in full on the Series 2013-1 Legal Final Maturity Date, on any Series 2013-1 Prepayment Date with respect to a prepayment in full of the Series 2013-1 Notes or on any other day on which all of the Series 2013-1 Outstanding Principal Amount is required to be paid in full. To the extent any interest accruing at the Series 2013-1 Note Rate is not paid when due, such unpaid interest will accrue interest at the Series 2013-1 Note Rate. All computations of interest at the Series 2013-1 Note Rate shall be made on the basis of a year of 360 days and twelve 30-day months.

 

(b)     Series 2013-1 Post-ARD Contingent Interest .

 

(i)     Post-ARD Contingent Interest .  From and after the Series 2013-1 Anticipated Repayment Date, if the Series 2013-1 Final Payment has not been made, then additional interest will accrue on the Series 2013-1 Outstanding Principal Amount at an annual interest rate (the “ Series 2013-1 Post-ARD Contingent Interest Rate ”) equal to the greater of (A) 5% per annum and (B) a per annum rate equal to the excess, if any, by

 

which the sum of (i) the yield to maturity (adjusted to a quarterly bond-equivalent basis), on the Series 2013-1 Anticipated Repayment Date of the United States Treasury Security having a term closest to 10 years plus (ii) 5% plus (iii) 3.140% exceeds the Series 2013-1 Note Rate (such additional interest, the “ Series 2013-1 Post-ARD Contingent Interest ”).  All computations of Series 2013-1 Post-ARD Contingent Interest shall be made on the basis of a 360-day year and twelve 30-day months.

 

(ii)     Payment of Series 2013-1 Post-ARD Contingent Interest .  Any Series 2013-1 Post-ARD Contingent Interest will be due and payable on any applicable Quarterly Payment Date as and when amounts are made available for payment thereof (i) on any related Monthly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so available. The failure to pay any Series 2013-1 Post-ARD Contingent Interest in excess of such amounts (other than on the Series 2013-1 Legal Final Maturity Date) will not be an Event of Default and interest will not accrue on any unpaid portion thereof; provided that in any event all accrued but unpaid Series 2013-1 Post-ARD Contingent Interest shall be due and payable in full on the Series 2013-1 Legal Final Maturity Date, on any Series 2013-1 Prepayment Date with respect to a prepayment in full of the Series 2013-1 Notes or on any other day on which all of the Series 2013-1 Outstanding Principal Amount is required to be paid in full.

 

(c)     Series 2013-1 Initial Interest Period .  The initial Interest Period for the Series 2013-1 Notes shall commence on the Series 2013-1 Closing Date and end on (but exclude) July 25, 2013.

 

Section 2.5     Payment of Series 2013-1 Note Principal

 

(a)     Series 2013-1 Notes Principal Payment at Legal Maturity .  The Series 2013-1 Outstanding Principal Amount shall be due and payable on the Series 2013-1 Legal Final Maturity Date. The Series 2013-1 Outstanding Principal Amount is not prepayable, in whole or in part, except as set forth in this Section 2.5.

 

(b)     Series 2013-1 Anticipated Repayment .  The Series 2013-1 Final Payment is anticipated to occur on the Quarterly Payment Date occurring in January 2020 (such date, the “ Series 2013-1 Anticipated Repayment Date ”).

 

(c)     Payment of Series 2013-1 Scheduled Principal Payments .  Series 2013-1 Scheduled Principal Payments will be due and payable on each Quarterly Payment Date, as and when amounts are made available for payment thereof (i) on any related Monthly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so available, and failure to pay any Series 2013-1 Scheduled Principal Payment in excess of such amounts will not be an Event of Default.

 

(d)     Series 2013-1 Notes Mandatory Payments of Principal .

 

(i)     If a Change of Control to which the Control Party (at the direction of the Controlling Class Representative) has not provided its prior written consent occurs, the Co-Issuers shall prepay all the Series 2013-1 Notes in full by (A) depositing within ten (10) Business Days of the date on which such Change of Control occurs an amount equal to the Series 2013-1 Outstanding Principal Amount and all other amounts that are or will be due and payable with respect to the Series 2013-1 Notes under the Indenture Documents as of the applicable Series 2013-1 Prepayment Date referred to in clause (D) below (including all interest accrued to such date and any Series 2013-1 Make-Whole Prepayment Premium required to be paid in connection therewith pursuant to Section 2.5(e) of this Series 2013-1 Supplement) in the Series 2013-1 Distribution Account, (B) reimbursing the Trustee and the Servicer, as applicable, for any unreimbursed Servicing Advances (with interest thereon at the Advance Interest Rate), (C) delivering Prepayment Notices in accordance with Section 2.5(g) of this Series 2013-1 Supplement and (D) directing the Trustee to distribute such amount set forth in clause (A) to the Series 2013-1 Noteholders on the Series 2013-1 Prepayment Date specified in such Prepayment Notices.

 

(ii)     During any Rapid Amortization Period, principal payments shall be due and payable on each Quarterly Payment Date on the Series 2013-1 Notes as and when amounts are made available for payment thereof (i) on any related Monthly Allocation Date in accordance with the Priority of Payments and (ii) on such Quarterly Payment Date in accordance with Section 5.12 of the Base Indenture, in the amount so available, together with any Series 2013-1 Make-Whole Prepayment Premium required to be paid in connection therewith pursuant to Section 2.5(e) of this Series 2013-1 Supplement; provided , for avoidance of doubt, that it shall not constitute an Event of Default if any such Series 2013-1 Make-Whole Prepayment Premium is not paid because insufficient funds are available to pay such Series 2013-1 Make-Whole Prepayment Premium, in accordance with the Priority of Payments.

 

(e)     Series 2013-1 Make-Whole Prepayment Premium Payments .  In connection with any mandatory prepayment of any Series 2013-1 Notes made pursuant to Section 2.5(d)(i) , Section 2.5(d)(ii) or Section 2.5(j) of this Series 2013-1 Supplement upon a Change of Control, in connection with any Permitted Asset Disposition, or during any Rapid Amortization Period, or in connection with any optional prepayment of any Series 2013-1 Notes made pursuant to Section 2.5(f) of this Series 2013-1 Supplement (each, a “ Series 2013-1 Prepayment ”), the Co-Issuers shall pay, in the manner described herein, the Series 2013-1 Make-Whole Prepayment Premium to the Series 2013-1 Noteholders with respect to the applicable Series 2013-1 Prepayment Amount; provided that no such Series 2013-1 Make-Whole Prepayment Premium shall be payable in connection with (A) any payment that occurs after the Quarterly Payment Date in the 18 th month prior to the Series 2013-1 Anticipated Repayment Date (the “ Make-Whole End Date ”), (B) any prepayment made in connection with Indemnification Payments, (C) Series 2013-1

 

Scheduled Principal Payments or Series 2013-1 Scheduled Principal Deficiency Amounts; and (D) prepayments of principal in an aggregate amount no greater than the Remaining Par Call Amount.

 

(f)     Optional Prepayment of Series 2013-1 Notes .  Subject to Section 2.5(e) and (g) of this Series 2013-1 Supplement, the Co-Issuers shall have the option to prepay the Series 2013-1 Notes in whole on any Business Day or in part on any Quarterly Payment Date or on any date a mandatory prepayment may be made and that is specified as the Series 2013-1 Prepayment Date in the applicable Prepayment Notices; provided , that the Co-Issuers shall not make any optional prepayment in part of any Series 2013-1 Notes pursuant to this Section 2.5(f) in a principal amount for any single prepayment of less than $5,000,000 on any Quarterly Payment Date (except that any such prepayment may be in a principal amount less than such amount if effected on the same day as any partial mandatory prepayment or repayment pursuant to this Series 2013-1 Supplement); provided , further , that no such optional prepayment may be made unless (i) the amount on deposit in the Senior Notes Principal Payments Account that is allocable to the Series 2013-1 Notes to be prepaid is sufficient to pay the principal amount of the Series 2013-1 Notes to be prepaid and the Series 2013-1 Make-Whole Prepayment Premium required pursuant to Section 2.5(e) , in each case, payable on the relevant Series 2013-1 Prepayment Date; (ii) the amount on deposit in the Senior Notes Interest Account that is allocable to the Series 2013-1 Outstanding Principal Amount to be prepaid is sufficient to pay (A) the Series 2013-1 Quarterly Interest to but excluding the relevant Series 2013-1 Prepayment Date relating to the Series 2013-1 Outstanding Principal Amount to be prepaid and (B) only if such optional prepayment is a prepayment in whole, (x) the Series 2013-1 Post-ARD Contingent Interest and (y) all Securitization Operating Expenses, to the extent attributable to the Series 2013-1 Notes; and (iii) the Co-Issuers shall reimburse the Trustee and the Servicer, as applicable, for any unreimbursed Servicing Advances (with interest thereon at the Advance Interest Rate).  The Co-Issuers may prepay a Series of Notes in full at any time regardless of the number of prior optional prepayments or any minimum payment requirement.

 

(g)     Notices of Prepayments .  The Co-Issuers shall give prior written notice (each, a “ Prepayment Notice ”) at least ten (10) Business Days but not more than twenty (20) Business Days prior to any Series 2013-1 Prepayment pursuant to Section 2.5(d)(i) or Section 2.5(f) of this Series 2013-1 Supplement to each Series 2013-1 Noteholder, each of the Rating Agencies, the Servicer, the Control Party and the Trustee; provided that at the request of the Co-Issuers, such notice to the Series 2013-1 Noteholders shall be given by the Trustee in the name and at the expense of the Co-Issuers. In connection with any such Prepayment Notice, the Co-Issuers shall provide a written report to the Trustee directing the Trustee to distribute such prepayment in accordance with the applicable provisions of Section 2.5(k) of this Series 2013-1 Supplement. With respect to each such Series 2013-1 Prepayment, the related Prepayment Notice shall, in each case, specify (A) the Series 2013-1 Prepayment Date on which such prepayment will be made, which in all cases shall be a Business Day and, in the case of a mandatory prepayment upon a Change of Control, shall be no more than 10 Business Days after the occurrence of such event, (B) the aggregate principal amount of Notes to be prepaid on such date (such amount, together with all accrued and unpaid interest thereon to such date, a “ Series 2013-1 Prepayment Amount ”) and (C) the date on which the Series 2013-1 Make-Whole Prepayment Premium, if any, to be paid in connection therewith will be calculated, which calculation date

 

shall be no earlier than the fifth Business Day before such Series 2013-1 Prepayment Date (the “ Series 2013-1 Make-Whole Premium Calculation Date ”). The Co-Issuers shall have the option, by written notice to the Trustee, the Control Party, the Rating Agencies and the Series 2013-1 Noteholders, to withdraw, or amend the Series 2013-1 Prepayment Date set forth in (x) any Prepayment Notice relating to an optional prepayment at any time up to the second Business Day before the Series 2013-1 Prepayment Date set forth in such Prepayment Notice and (y) subject to the requirements of the preceding sentence, any Prepayment Notice relating to mandatory prepayment upon a Change of Control at any time up to the earlier of (I) the occurrence of such event and (II) the second Business Day before the Series 2013-1 Prepayment Date set forth in such Prepayment Notice; provided that in no event shall any Series 2013-1 Prepayment Date be amended to a date earlier than the second Business Day after such amended notice is given. Any Prepayment Notice shall become irrevocable two Business Days prior to the date specified in the Prepayment Notice as the Series 2013-1 Prepayment Date. All Prepayment Notices shall be (i) transmitted by facsimile or email to (A) each Series 2013-1 Noteholder to the extent such Series 2013-1 Noteholder has provided a facsimile number or email address to the Trustee and (B) to each of the Rating Agencies, the Servicer and the Trustee and (ii) sent by registered mail to each Series 2013-1 Noteholder.

 

(h)     Series 2013-1 Prepayments .  On each Series 2013-1 Prepayment Date with respect to any Series 2013-1 Prepayment, the Series 2013-1 Prepayment Amount and the Series 2013-1 Make-Whole Prepayment Premium, if any, shall be due and payable. The Co-Issuers shall pay the Series 2013-1 Prepayment Amount together with the applicable Series 2013-1 Make-Whole Prepayment Premium, if any, with respect to such Series 2013-1 Prepayment Amount, by, to the extent not already deposited therein pursuant to Section 2.5(d)(i) or (f) of this Series 2013-1 Supplement, depositing such amounts in the Series 2013-1 Distribution Account on or prior to the related Series 2013-1 Prepayment Date to be distributed in accordance with Section 2.5(k) of this Series 2013-1 Supplement.

 

(i)     Prepayment Premium Not Payable .  For the avoidance of doubt, there is no Series 2013-1 Make-Whole Prepayment Premium payable as a result of (i) the application of Indemnification Payments allocated to the Series 2013-1 Notes pursuant to clause (i) of the Priority of Payments, (ii) any Series 2013-1 Scheduled Principal Payments or Series 2013-1 Scheduled Principal Deficiency Amounts, (iii) any prepayment on or after the Make-Whole End Date and (iv) prepayments of principal in an aggregate amount no greater than the Remaining Par Call Amount.

 

(j)     Indemnification Payments; Release Prices .  Any Indemnification Payments or Release Prices allocated to the Senior Notes Principal Payments Account in accordance with Section 5.11(i) of the Base Indenture shall be withdrawn from the Senior Notes Principal Payments Account in accordance with Section 5.12(g) of the Base Indenture and deposited in the Series 2013-1 Distribution Account and used to prepay the Series 2013-1 Notes (based on their respective portion of the Series 2013-1 Outstanding Principal Amount) on the Quarterly Payment Date immediately succeeding such deposit.  In connection with any prepayment made with Indemnification Payments pursuant to this Section 2.5(j) , the Co-Issuers

 

shall not be obligated to pay any prepayment premium.   The Co-Issuers shall, however, be obligated to pay any applicable Series 2013-1 Make-Whole Prepayment Premium required to be paid pursuant to Section 2.5(e) of this Series 2013-1 Supplement in connection with any prepayment made with Release Prices pursuant to this Section 2.5(j) ; provided , for avoidance of doubt, that it shall not constitute an Event of Default if any such Series 2013-1 Make-Whole Prepayment Premium is not paid because insufficient funds are available to pay such Series 2013-1 Make-Whole Prepayment Premium, in accordance with the Priority of Payments.

 

(k)     Series 2013-1 Prepayment Distributions . On the Series 2013-1 Prepayment Date for each Series 2013-1 Prepayment to be made pursuant to this Section 2.5 , the Trustee shall, in accordance with Section 6.1 of the Base Indenture (except that notwithstanding anything to the contrary therein, references to the distributions being made on a Quarterly Payment Date shall be deemed to be references to distributions made on such Series 2013-1 Prepayment Date and references to the Record Date shall be deemed to be references to the Prepayment Record Date) and based solely upon the applicable written report provided to the Trustee pursuant to Section 2.5(g) of this Series 2013-1 Supplement, wire transfer to the Series 2013-1 Noteholders of record on the preceding Prepayment Record Date on a pro rata basis, based on their respective portion of the Series 2013-1 Outstanding Principal Amount, the amount deposited in the Series 2013-1 Distribution Account pursuant to this Section 2.5 , if any, in order to repay the applicable portion of the Series 2013-1 Outstanding Principal Amount and pay all accrued and unpaid interest thereon up to such Series 2013-1 Prepayment Date and any Series 2013-1 Make-Whole Prepayment Premium due to Series 2013-1 Noteholders payable on such date.

 

(l)     Series 2013-1 Notices of Final Payment .  The Co-Issuers shall notify the Trustee, the Servicer and each of the Rating Agencies on or before the Prepayment Record Date preceding the Series 2013-1 Prepayment Date that will be the Series 2013-1 Final Payment Date; provided , however , that with respect to any Series 2013-1 Final Payment that is made in connection with any mandatory or optional prepayment in full, the Co-Issuers shall not be obligated to provide any additional notice to the Trustee or the Rating Agencies of such Series 2013-1 Final Payment beyond the notice required to be given in connection with such prepayment pursuant to Section 2.5(g) of this Series 2013-1 Supplement. The Trustee shall provide any written notice required under this Section 2.5(l) to each Person in whose name a Series 2013-1 Note is registered at the close of business on such Prepayment Record Date of the Series 2013-1 Prepayment Date that will be the Series 2013-1 Final Payment Date. Such written notice to be sent to the Series 2013-1 Noteholders shall be made at the expense of the Co-Issuers and shall be mailed by the Trustee within five (5) Business Days of receipt of notice from the Co-Issuers indicating that the Series 2013-1 Final Payment will be made and shall specify that such Series 2013-1 Final Payment will be payable only upon presentation and surrender of the Series 2013-1 Notes and shall specify the place where the Series 2013-1 Notes may be presented and surrendered for such Series 2013-1 Final Payment.

 

Section 2.6     Series 2013-1 Distribution Account

 

(a)     Establishment of Series 2013-1 Distribution Account .  The Trustee has established and shall maintain in the name of the Trustee for the benefit of the Series 2013-1 Noteholders an account (the “ Series 2013-1 Distribution Account ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2013-1 Noteholders. The Series 2013-1 Distribution Account shall be an Eligible Account.  Initially, the Series 2013-1 Distribution Account will be established with the Trustee.

 

(b)     Administration of the Series 2013-1 Distribution Account .  All amounts held in the Series 2013-1 Distribution Account shall be invested in the Permitted Investments at the written direction (which may be standing directions) of Brand Holdings II; provided , however , that any such investment in the Series 2013-1 Distribution Account shall mature not later than the Business Day prior to the first Quarterly Payment Date following the date on which such funds were received or such other date on which any such funds are scheduled to be paid to the Series 2013-1 Noteholders. In the absence of written investment instructions hereunder, funds on deposit in the Series 2013-1 Distribution Account shall be invested at the direction of Brand Holdings II as fully as practicable in one or more Permitted Investments of the type described in clause (b) of the definition thereof. Brand Holdings II shall not direct (or permit) the disposal of any Permitted Investments prior to the maturity thereof if such disposal would result in a loss of any portion of the initial purchase price of such Permitted Investment.

 

(c)     Earnings from Series 2013-1 Distribution Account .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2013-1 Distribution Account shall be deemed to be available and on deposit for distribution to the Series 2013-1 Noteholders.

 

(d)     Series 2013-1 Distribution Account Constitutes Additional Collateral for Series 2013-1 Notes .  In order to secure and provide for the repayment and payment of the Obligations with respect to the Series 2013-1 Notes, the Co-Issuers hereby grant a security interest in and assign, pledge, grant, transfer and set over to the Trustee, for the benefit of the Series 2013-1 Noteholders, all of the Co-Issuers’ right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2013-1 Distribution Account, including any security entitlement with respect thereto; (ii) all funds and other property (including, without limitation, Financial Assets) on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2013-1 Distribution Account or the funds on deposit therein from time to time; (iv) all investments made at any time and from time to time with monies in the Series 2013-1 Distribution Account, whether constituting securities, instruments, general intangibles, investment property, financial assets or other property; (v) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2013-1 Distribution Account, the funds on deposit therein from time to time or the investments made with such funds; and (vi) all proceeds of any and all of the foregoing, including, without limitation, cash (the items in the foregoing clauses (i) through (vi) are referred to, collectively, as the “ Series 2013-1 Distribution Account Collateral ”).

 

 

(e)     Termination of Series 2013-1 Distribution Account .  On or after the date on which all accrued and unpaid interest on and principal of all Outstanding Series 2013-1 Notes have been paid, the Trustee, acting in accordance with the written instructions of Brand Holdings II, shall withdraw from the Series 2013-1 Distribution Account all amounts on deposit therein for distribution pursuant to the Priority of Payments.

 

Section 2.7     Trustee as Securities Intermediary

 

(a)     The Trustee or other Person holding the Series 2013-1 Distribution Account shall be the “ Series 2013-1 Securities Intermediary .” If the Series 2013-1 Securities Intermediary in respect of the Series 2013-1 Distribution Account is not the Trustee, Brand Holdings II shall obtain the express agreement of such other Person to the obligations of the Series 2013-1 Securities Intermediary set forth in this Section 2.7 .

 

(b)     The Series 2013-1 Securities Intermediary agrees that:

 

(i)     The Series 2013-1 Distribution Account is an account to which Financial Assets will or may be credited;

 

(ii)     The Series 2013-1 Distribution Account is a “securities account” within the meaning of Section 8-501 of the New York UCC and the Series 2013-1 Securities Intermediary qualifies as a “securities intermediary” under Section 8-102(a) of the New York UCC;

 

(iii)        All securities or other property (other than cash) underlying any Financial Assets credited to the Series 2013-1 Distribution Account shall be registered in the name of the Series 2013-1 Securities Intermediary, indorsed to the Series 2013-1 Securities Intermediary or in blank or credited to another securities account maintained in the name of the Series 2013-1 Securities Intermediary, and in no case will any Financial Asset credited to the Series 2013-1 Distribution Account be registered in the name of Brand Holdings II or any other Co-Issuer, payable to the order of Brand Holdings II or any other Co-Issuer or specially indorsed to Brand Holdings II or any other Co-Issuer;

 

(iv)         All property delivered to the Series 2013-1 Securities Intermediary pursuant to this Series 2013-1 Supplement will be promptly credited to the Series 2013-1 Distribution Account;

 

(v)    Each item of property (whether investment property, security, instrument or cash) credited to the Series 2013-1 Distribution Account shall be treated as a Financial Asset;

 

(vi)         If at any time the Series 2013-1 Securities Intermediary shall receive any entitlement order from the Trustee (including those directing transfer or redemption of any Financial Asset) relating to the Series 2013-1 Distribution Account, the Series 2013-1 Securities Intermediary shall comply with such entitlement order without further consent by Brand Holdings II, any other Securitization Entity or any other Person;

 

(vii)         The Series 2013-1 Distribution Account shall be governed by the laws of the State of New York, regardless of any provision of any other agreement. For purposes of all applicable UCCs, the State of New York shall be deemed to the Series 2013-1 Securities Intermediary’s jurisdiction and the Series 2013-1 Distribution Account (as well as the “security entitlements” (as defined in Section 8-102(a)(17) of the New York UCC) related thereto) shall be governed by the laws of the State of New York;

 

(viii)        The Series 2013-1 Securities Intermediary has not entered into, and until termination of this Series 2013-1 Supplement, will not enter into, any agreement with any other Person relating to the Series 2013-1 Distribution Account and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with “entitlement orders” (as defined in Section 8-102(a)(8) of the New York UCC) of such other Person, and the Series 2013-1 Securities Intermediary has not entered into, and until the termination of this Series 2013-1 Supplement will not enter into, any agreement with Brand Holdings II or any other Co-Issuer purporting to limit or condition the obligation of the Series 2013-1 Securities Intermediary to comply with entitlement orders as set forth in Section 2.7(b)(vi) of this Series 2013-1 Supplement; and

 

(ix)           Except for the claims and interest of the Trustee, the Secured Parties and the Securitization Entities in the Series 2013-1 Distribution Account, neither the Series 2013-1 Securities Intermediary nor, in the case of the Trustee, any Trust Officer knows of any claim to, or interest in, the Series 2013-1 Distribution Account or any Financial Asset credited thereto. If the Series 2013-1 Securities Intermediary or, in the case of the Trustee, a Trust Officer has actual knowledge of the assertion by any other person of any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Series 2013-1 Distribution Account or any Financial Asset carried therein, the Series 2013-1 Securities Intermediary will promptly notify the Trustee, the Manager, the Servicer and Brand Holdings II thereof.

 

(c)     At any time after the occurrence and during the continuation of an Event of Default, the Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Series 2013-1 Distribution Account and in all proceeds thereof, and shall (acting at the direction of the Control Party (at the direction of the Controlling Class Representative)) be the only Person authorized to originate entitlement orders in respect of the Series 2013-1 Distribution Account; provided , however , that at all other times Brand Holdings II shall be

 

authorized to instruct the Trustee to originate entitlement orders in respect of the Series 2013-1 Distribution Account.

 

Section 2.8     Manager .  Pursuant to the Management Agreement, the Manager has agreed to provide certain reports, notices, instructions and other services on behalf of Brand Holdings II and the other Co-Issuers. The Series 2013-1 Noteholders by their acceptance of the Series 2013-1 Notes consent to the provision of such reports and notices to the Trustee by the Manager in lieu of Brand Holdings II or any other Co-Issuer. Any such reports and notices that are required to be delivered to the Series 2013-1 Noteholders hereunder will be made available on the Trustee’s website in the manner set forth in Section 4.4 of the Base Indenture.

 

Section 2.9   Replacement of Ineligible Accounts .  If, at any time, the Series 2013-1 Distribution Account shall cease to be an Eligible Account (a “ Series 2013-1 Ineligible Account ”), Brand Holdings II or any other Co-Issuer shall (i) within five (5) Business Days of obtaining knowledge thereof, notify the Control Party thereof and (ii) within sixty (60) days of obtaining knowledge thereof, (A) establish, or cause to be established, a new account that is an Eligible Account in substitution for such Series 2013-1 Ineligible Account, (B) following the establishment of such new Eligible Account, transfer or, with respect to the Trustee Accounts maintained at the Trustee, instruct the Trustee in writing to transfer all cash and investments from such Series 2013-1 Ineligible Account into such new Eligible Account and (C) pledge, or cause to be pledged, such new Eligible Account to the Trustee for the benefit of the Secured Parties and, if such new Eligible Account is not established with the Trustee, cause such new Eligible Account to be subject to an Account Control Agreement.

 

 

ARTICLE III

 

FORM OF SERIES 2013-1 NOTES

 

Section 3.1     Issuance of Series 2013-1 Notes . The Series 2013-1 Notes in the aggregate may be offered and sold in the Series 2013-1 Initial Principal Amount on the Series 2013-1 Closing Date by the Co-Issuers pursuant to the Series 2013-1 Note Purchase Agreement. The Series 2013-1 Notes will be resold initially only to Persons who are not Competitors and (A) in the United States, who are QIBs in reliance on Rule 144A or (B) outside the United States, who are not U.S. persons (as defined in Regulation S) (a “ U.S. Person ”) in reliance on Regulation S. The Series 2013-1 Notes may thereafter be transferred to Brand Holdings I or Brand Holdings II or an Affiliate of Brand Holdings I or Brand Holdings II, in the United States in reliance on Rule 144A and/or outside of the United States in reliance on Regulation S and in accordance with the procedure described herein. The Series 2013-1 Notes will be Book-Entry Notes and DTC will be the Clearing Agency and the Depository for the Series 2013-1 Notes. The Applicable Procedures shall be applicable to transfers of beneficial interests in the Series 2013-1 Notes. The Series 2013-1 Notes shall be issued in minimum denominations of $50,000 and integral multiples of $1,000 in excess thereof.

 

(a)     Restricted Global Notes .  The Series 2013-1 Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of one or more

 

global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit A-1 hereto, registered in the name of Cede & Co. (“ Cede ”), as nominee of DTC, and deposited with the Trustee, as custodian for DTC (collectively, for purposes of this Section 3.1 and Section 3.2 , the “ Restricted Global Notes ”). The aggregate initial principal amount of the Restricted Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase in the aggregate initial principal amount of the Regulation S Global Notes or the Unrestricted Global Notes, as hereinafter provided.

 

(b)     Regulation S Global Notes and Unrestricted Global Notes .  Any Series 2013-1 Notes offered and sold on the Series 2013-1 Closing Date in reliance upon Regulation S will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibit A-2 hereto, registered in the name of Cede, as nominee of DTC, and deposited with the Trustee, as custodian for DTC, for credit to the respective accounts at DTC of the designated agents holding on behalf of Euroclear or Clearstream. Until such time as the Restricted Period shall have terminated with respect to any Series 2013-1 Note, such Series 2013-1 Notes shall be referred to herein collectively, for purposes of this Section 3.1 and Section 3.2 , as the “ Regulation S Global Notes .” After such time as the Restricted Period shall have terminated, the Regulation S Global Notes shall be exchangeable, in whole or in part, for interests in one or more permanent global notes in registered form without interest coupons, substantially in the form set forth in Exhibit A-3 hereto, as hereinafter provided (collectively, for purposes of this Section 3.1 and Section 3.2 , the “ Unrestricted Global Notes ”). The aggregate principal amount of the Regulation S Global Notes or the Unrestricted Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, in connection with a corresponding decrease or increase of aggregate principal amount of the Restricted Global Notes, as hereinafter provided.

 

(c)     Definitive Notes .  The Series 2013-1 Global Notes shall be exchangeable in their entirety for one or more definitive notes in registered form, without interest coupons (collectively, for purposes of this Section 3.1 and Section 3.2 of this Series 2013-1 Supplement, the “ Definitive Notes ”) pursuant to Section 2.13 of the Base Indenture and this Section 3.1(c) in accordance with their terms and, upon complete exchange thereof, such Series 2013-1 Global Notes shall be surrendered for cancellation at the applicable Corporate Trust Office.

 

Section 3.2     Transfer Restrictions of Series 2013-1 Notes .

 

(a)     A Series 2013-1 Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, or to a successor Depository or to a nominee of a successor Depository, and no such transfer to any such other Person may be registered; provided , however , that this Section 3.2(a) shall not prohibit any transfer of a Series 2013-1 Note that is issued in exchange for a Series 2013-1 Global Note in accordance with Section 2.8 of the Base Indenture and shall not prohibit any transfer of a beneficial interest in a Series 2013-1 Global Note effected in accordance with the other provisions of this Section 3.2 .

 

(b)     The transfer by a Series 2013-1 Note Owner holding a beneficial interest in a Series 2013-1 Note in the form of a Restricted Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note shall be made upon the deemed representation of the transferee that it is purchasing 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 QIB and not a Competitor, 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 Co-Issuers as such transferee 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 its foregoing representations in order to claim the exemption from registration provided by Rule 144A.

 

(c)     If a Series 2013-1 Note Owner holding a beneficial interest in a Series 2013-1 Note in the form of a Restricted Global Note wishes at any time to exchange its interest in such Restricted Global Note for an interest in the Regulation S Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Regulation S Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 3.2(c) . Upon receipt by the Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Regulation S Global Note, in a principal amount equal to that of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit B-1 hereto given by the Series 2013-1 Note Owner holding such beneficial interest in such Restricted Global Note, the Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Regulation S Global Note, by the principal amount of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Regulation S Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Global Note was reduced upon such exchange or transfer.

 

(d)     If a Series 2013-1 Note Owner holding a beneficial interest in a Restricted Global Note wishes at any time to exchange its interest in such Restricted Global Note for an interest in the Unrestricted Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 3.2(d) . Upon receipt by the Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the

 

Unrestricted Global Note in a principal amount equal to that of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit B-2 hereto given by the Series 2013-1 Note Owner holding such beneficial interest in such Restricted Global Note, the Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of such Restricted Global Note, and to increase the principal amount of the Unrestricted Global Note, by the principal amount of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Unrestricted Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Global Note was reduced upon such exchange or transfer.

 

(e)     If a Series 2013-1 Note Owner holding a beneficial interest in a Regulation S Global Note or an Unrestricted Global Note wishes at any time to exchange its interest in such Regulation S Global Note or such Unrestricted Global Note for an interest in the Restricted Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 3.2(e) . Upon receipt by the Registrar, at the applicable Corporate Trust Office, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Registrar to credit or cause to be credited to a specified Clearing Agency Participant’s account a beneficial interest in the Restricted Global Note in a principal amount equal to that of the beneficial interest in such Regulation S Global Note or such Unrestricted Global Note, as the case may be, to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) with respect to a transfer of a beneficial interest in such Regulation S Global Note (but not such Unrestricted Global Note), a certificate in substantially the form set forth in Exhibit B-3 hereto given by such Series 2013-1 Note Owner holding such beneficial interest in such Regulation S Global Note, the Registrar shall instruct the Trustee, as custodian of DTC, to reduce the principal amount of such Regulation S Global Note or such Unrestricted Global Note, as the case may be, and to increase the principal amount of the Restricted Global Note, by the principal amount of the beneficial interest in such Regulation S Global Note or such Unrestricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Restricted Global Note having a principal amount equal to the amount by which the principal amount of such Regulation S Global Note or such Unrestricted Global Note, as the case may be, was reduced upon such exchange or transfer.

 

(f)     In the event that a Series 2013-1 Global Note or any portion thereof is exchanged for Series 2013-1 Notes other than Series 2013-1 Global Notes, such other Series 2013-1 Notes may in turn be exchanged (upon transfer or otherwise) for Series 2013-1 Notes that are not Series 2013-1 Global Notes or for a beneficial interest in a Series 2013-1 Global Note (if any is then outstanding) only in accordance with such procedures as may be adopted from time to time by the Co-Issuers and the Registrar, which shall be substantially consistent with the provisions of Section 3.2(a) through Section 3.2(e) and Section 3.2(g) of this Series 2013-1 Supplement (including the certification requirement intended to ensure that transfers and exchanges of beneficial interests in a Series 2013-1 Global Note comply with Rule 144A or Regulation S under the Securities Act, as the case may be) and any Applicable Procedures.

 

(g)     Until the termination of the Restricted Period, interests in the Regulation S Global Notes may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream; provided that this Section 3.2(g) shall not prohibit any transfer in accordance with Section 3.2(d) of this Series 2013-1 Supplement. After the expiration of the Restricted Period, interests in the Unrestricted Global Notes may be transferred without requiring any certifications other than those set forth in this Section 3.2 .

 

(h)     The Restricted Global Notes, the Regulation S Global Notes and the Unrestricted Global Notes shall bear the following legend:

 

THE ISSUANCE AND SALE OF THIS SERIES 2013-1 NOTE HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER RELEVANT JURISDICTION.  THIS NOTE OR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO ICON DE INTERMEDIATE HOLDINGS LLC, ICON BRAND HOLDINGS LLC OR AN AFFILIATE THEREOF, (B) IN THE UNITED STATES, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), AND NOT A COMPETITOR THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) OUTSIDE THE UNITED STATES, TO A NON-U.S. PERSON WHO IS NOT A COMPETITOR IN A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT (“REGULATION S”), OR (D) TO A QIB THAT IS NOT A COMPETITOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE, IN COMPLIANCE WITH THE CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR THE UNITED STATES AND ANY OTHER RELEVANT JURISDICTION.

 

BY ITS ACQUISITION OR ACCEPTANCE HEREOF, THE HOLDER (IF NOT ICON DE INTERMEDIATE HOLDINGS LLC, ICON BRAND HOLDINGS LLC OR AN AFFILIATE THEREOF) REPRESENTS THAT (A) IT IS NOT A COMPETITOR AND IS (X) A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A OR (Y) NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, AS APPLICABLE, (B) IT IS ACTING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER PERSON WHICH IS NOT A COMPETITOR AND IS EITHER (X) A QUALIFIED INSTITUTIONAL BUYER OR (Y) NOT A U.S. PERSON, AS APPLICABLE, (C) IT AND EACH ACCOUNT FOR WHICH IT IS PURCHASING WILL HOLD AND TRANSFER AT LEAST THE MINIMUM DENOMINATION OF NOTES, (D) IT UNDERSTANDS THAT THE CO-ISSUERS MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN THEIR NOTES FROM ONE OR MORE BOOK-ENTRY DEPOSITORIES, AND (E) IT WILL PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS TO ANY SUBSEQUENT TRANSFEREES.

 

EACH INITIAL PURCHASER AND EACH SUBSEQUENT TRANSFEREE (IF NOT ICON DE INTERMEDIATE HOLDINGS LLC, ICON BRAND HOLDINGS LLC OR AN AFFILIATE THEREOF) TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE WILL BE DEEMED TO HAVE MADE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.  EACH INITIAL PURCHASER AND EACH SUBSEQUENT TRANSFEREE TAKING DELIVERY OF THIS NOTE OR AN INTEREST IN THIS NOTE IN THE FORM OF AN INTEREST IN A [REGULATION S GLOBAL NOTE] [RESTRICTED NOTE] OR [AN UNRESTRICTED NOTE] WILL BE REQUIRED TO DELIVER A TRANSFER CERTIFICATE IN THE FORM REQUIRED BY THE INDENTURE AND WILL BE REQUIRED TO MAKE THE APPLICABLE REPRESENTATIONS AND AGREEMENTS REFERRED TO IN THE INDENTURE.

 

ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT AND WILL BE VOID AB INITIO AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE INITIAL PURCHASER OR SUBSEQUENT TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE CO-ISSUERS, THE TRUSTEE OR ANY INTERMEDIARY.

 

(i)     The Regulation S Global Notes shall also bear the following legend:

 

PRIOR TO THE DATE (THE “RESTRICTED PERIOD”) THAT IS 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL SERIES 2013-1 NOTES AND THE DATE ON WHICH THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF

 

 

(j)     The Series 2013-1 Global Notes shall bear the following legend:

 

THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF.  THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE CO-ISSUERS OR THE REGISTRAR, AND ANY NOTE 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 BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.

 

(k)     The required legends set forth above shall not be removed from the applicable Series 2013-1 Notes except as provided herein. The legend required for a Series 2013-1

 

Notes Restricted Global Note may be removed from such Series 2013-1 Notes Restricted Global Note if there is delivered to the Co-Issuers and the Registrar such satisfactory evidence, which may include an Opinion of Counsel as may be reasonably required by the Co-Issuers that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Series 2013-1 Notes Restricted Global Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee at the direction of Brand Holdings II, on behalf of the Co-Issuers, shall authenticate and deliver in exchange for such Series 2013-1 Notes Restricted Global Note a Series 2013-1 Note or Series 2013-1 Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Series 2013-1 Notes Restricted Global Note has been removed from a Series 2013-1 Note as provided above, no other Series 2013-1 Note issued in exchange for all or any part of such Series 2013-1 Global Note shall bear such legend, unless the Co-Issuers have reasonable cause to believe that such other Series 2013-1 Note is a “restricted security” within the meaning of Rule 144 under the Securities Act and instructs the Trustee to cause a legend to appear thereon.

 

(l)     The purchaser understands that the legends set forth above may be modified in the future in accordance with the Indenture to facilitate compliance with applicable security laws in connection with the issuance of Additional Senior Notes.

 

Section 3.3     Note Owner Representations and Warranties .  Each Person who becomes a Note Owner of a beneficial interest in a Series 2013-1 Note pursuant to the Offering Memorandum will be deemed to represent, warrant and agree on the date such Person acquires any interest in any Series 2013-1 Note as follows:

 

(a)     With respect to any sale of Series 2013-1 Notes pursuant to Rule 144A, it is a QIB pursuant to Rule 144A, and is aware that any sale of Series 2013-1 Notes to it will be made in reliance on Rule 144A.  Its acquisition of Series 2013-1 Notes in any such sale will be for its own account or for the account of another QIB.

 

(b)     With respect to any sale of Series 2013-1 Notes pursuant to Regulation S, at the time the buy order for such Series 2013-1 Notes was originated, it was outside the United States to a Person who is not a U.S. Person, and was not purchasing for the account or benefit of a U.S. Person.

 

(c)     It will, and each account for which it is purchasing will, hold and transfer at least the minimum denomination of Series 2013-1 Notes.

 

(d)     It understands that the Co-Issuers, the Manager, the Trustee and the Servicer may receive a list of participants holding positions in the Series 2013-1 Notes from one or more book-entry depositories.

 

(e)     It understands that the Manager, the Co-Issuers and the Servicer may receive a list of Note Owners that have requested access to the Trustee’s password-protected website or that have voluntarily registered as a Note Owner with the Trustee.

 

(f)     It will provide to each person to whom it transfers Series 2013-1 Notes notices of any restrictions on transfer of such Series 2013-1 Notes.

 

(g)     It understands that (i) the Series 2013-1 Notes are being offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act, (ii) the Series 2013-1 Notes have not been registered under the Securities Act, (iii) such Series 2013-1 Notes may be offered, resold, pledged or otherwise transferred only (A) to Icon DE Intermediate Holdings LLC, Icon Brand Holdings LLC or an Affiliate thereof, (B) in the United States to a Person who the seller reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A and who is not a Competitor, (C) outside the United States to a Person who is not a U.S. Person in a transaction meeting the requirements of Regulation S and who is not a Competitor or (D) to a QIB that is not a Competitor in a transaction exempt from the registration requirements of the Securities Act and the applicable securities laws of any state of the United States and any other jurisdiction, in each such case in accordance with the Indenture and any applicable securities laws of any state of the United States and (iv) it will, and each subsequent holder of a Series 2013-1 Note is required to, notify any subsequent purchaser of a Series 2013-1 Note of the resale restrictions set forth in clause (iii) above.

 

(h)     It understands that the certificates evidencing the Restricted Global Notes will bear legends substantially similar to those set forth in Section 3.2(h) of this Series 2013-1 Supplement.

 

(i)     It understands that the certificates evidencing the Regulation S Global Notes will bear legends substantially similar to those set forth in Section 3.2(i) of this Series 2013-1 Supplement.

 

(j)     It understands that the certificates evidencing the Unrestricted Global Notes will bear legends substantially similar to those set forth in Section 3.2(j) of this Series 2013-1 Supplement.

 

(k)     Either (i) it is not acquiring or holding the Series 2013-1 Notes (or any interest therein) for or on behalf of, or with the assets of, any plan, account or other arrangement that is subject to Section 406 of ERISA, Section 4975 of the Code or provisions under any Similar Law, or (ii) its purchase and holding of the Series 2013-1 Notes or any interest therein will not constitute a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a violation of any applicable Similar Law.

 

(l)     It understands that any subsequent transfer of the Series 2013-1 Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and it agrees to be bound by, and not to resell, pledge or otherwise transfer the Series 2013-1 Notes or any interest therein except in compliance with such restrictions and conditions and the Securities Act.

 

(m)     It is not a Competitor.

 

ARTICLE IV

 

GENERAL

 

Section 4.1     Information .  On or before each Quarterly Payment Date, the Co-Issuers shall furnish, or cause to be furnished, a Quarterly Noteholders’ Statement to the Trustee, setting forth, inter alia , the following information with respect to such Quarterly Payment Date:

 

(i)     the total amount available to be distributed to Series 2013-1 Noteholders on such Quarterly Payment Date;

 

(ii)     the amount of such distribution allocable to the payment of interest on the Series 2013-1 Notes;

 

(iii)          the amount of such distribution allocable to the payment of principal of the Series 2013-1 Notes;

 

(iv)          the amount of such distribution allocable to the payment of any Series 2013-1 Make-Whole Prepayment Premium, if any, on the Series 2013-1 Notes;

 

(v)           whether, to the Actual Knowledge of the Co-Issuers, any Potential Rapid Amortization Event, Rapid Amortization Event, Default, Event of Default, Potential Manager Termination Event or Manager Termination Event has occurred and is continuing as of the related Accounting Date or any Cash Trapping Period is in effect, as of the related Accounting Date;

 

(vi)          the DSCR for such Quarterly Payment Date and the Interest-Only DSCR for such Quarterly Payment Date; and

 

(vii)         the Series 2013-1 Available Senior Notes Interest Reserve Account Amount and the amount on deposit in the Cash Trap Reserve Account, if any, in each

 

case, as of the close of business on the last Business Day of the preceding Quarterly Collection Period.

 

Any Series 2013-1 Noteholder may obtain copies of each Quarterly Noteholders’ Statement in accordance with the procedures set forth in Section 4.4 of the Base Indenture.

 

Section 4.2     Exhibits .  The annexes, exhibits and schedules attached hereto and listed on the table of contents hereto supplement the annexes, exhibits and schedules included in the Base Indenture.

 

Section 4.3     Ratification of Base Indenture .  As supplemented by this Series 2013-1 Supplement, the Base Indenture is in all respects ratified and confirmed and the Base Indenture as so supplemented by this Series 2013-1 Supplement shall be read, taken and construed as one and the same instrument.

 

Section 4.4     Certain Notices to the Rating Agencies .  The Co-Issuers shall provide to each Rating Agency a copy of each Opinion of Counsel and Officer’s Certificate delivered to the Trustee pursuant to this Series 2013-1 Supplement or any other Related Document.

 

Section 4.5     Prior Notice by Trustee to the Controlling Class Representative and Control Party .  Subject to Section 10.1 of the Base Indenture, the Trustee agrees that it shall not exercise any rights or remedies available to it as a result of the occurrence of a Rapid Amortization Event or an Event of Default until after the Trustee has given prior written notice thereof to the Controlling Class Representative and the Control Party and obtained the direction of the Control Party (subject to Section 11.4(e) of the Base Indenture, at the direction of the Controlling Class Representative).

 

Section 4.6     Counterparts .  This Series 2013-1 Supplement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.

 

Section 4.7     Governing Law .   THIS SERIES 2013-1 SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

 

Section 4.8     Amendments .  This Series 2013-1 Supplement may not be modified or amended except in accordance with the terms of the Base Indenture.

 

Section 4.9     Termination of Series 2013-1 Supplement .  This Series 2013-1 Supplement shall cease to be of further effect when (i) all Outstanding Series 2013-1 Notes theretofore authenticated and issued have been delivered (other than destroyed, lost, or stolen Series 2013-1 Notes that have been replaced or paid) to the Trustee for cancellation and (ii) the Co-Issuers have paid all sums payable hereunder.

 

Section 4.10     Entire Agreement .  This Series 2013-1 Supplement, together with the exhibits and schedules hereto and the other Indenture Documents, contains a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto.

 

 

 [Signature Pages Follow]

 

IN WITNESS WHEREOF, each of the Co-Issuers, the Trustee and the Series 2013-1 Securities Intermediary have caused this Series 2013-1 Supplement to be duly executed by its respective duly authorized officer as of the day and year first written above.

 

 

 

 

 

 

EXHIBIT A-1