EXHIBIT
4.3
THIS SUBORDINATED PROMISSORY NOTE IS
SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED AS OF
AUGUST 11, 2008 (THE “INTERCREDITOR AND SUBORDINATION
AGREEMENT”) AMONG THE SUBORDINATED LENDERS PARTY THERETO,
MODEL REORG ACQUISITION, LLC AND GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT AND COLLATERAL AGENT FOR CERTAIN
LENDERS. BY ITS ACCEPTANCE OF THIS SUBORDINATED PROMISSORY
NOTE, THE HOLDER HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF
SUCH INTERCREDITOR AND SUBORDINATION AGREEMENT TO THE SAME EXTENT
THAT THE SUBORDINATED LENDERS (AS DEFINED THEREIN) ARE
BOUND.
MODEL REORG ACQUISITION,
LLC
SUBORDINATED PROMISSORY
NOTE
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$7,388,212.15
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August 11,
2008
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FOR VALUE RECEIVED
, MODEL REORG ACQUISITION, LLC, a
Delaware limited liability company and successor by merger to Model
Reorg, Inc., a New York corporation (the “Company”),
hereby unconditionally promises to pay to the order of Stephen
Nussdorf 10 year Grantor Retained Annuity Trust dated 11/1/98 (the
“Holder”), in immediately available funds, the
principal amount of Seven Million Three Hundred Eighty-Eight
Thousand Two Hundred Twelve and 15/100 Dollars ($7,388,212.15), and
to pay interest on the unpaid principal amount hereof at the rate
set forth in Section 3. All amounts owed hereunder shall be
paid in lawful money of the United States of America.
This Note is subject to the
following terms and conditions:
1. Payment of
Principal . The principal amount hereof shall be payable in
full on February 11, 2012 (the “Maturity
Date”).
2. Prepayment . The
outstanding principal balance of this Note may be prepaid by the
Company at any time and from time to time, without premium or
penalty of any kind or nature whatsoever. Prepayments shall be
applied to accrued and unpaid interest due hereunder and then to
the installments due hereunder in order of maturity.
3. Payments of
Interest . The Company shall pay or cause to be paid to
Holder interest on the unpaid principal amount hereof from time to
time outstanding at a rate per annum equal to the then current
Senior Debt Rate plus two percent (2%) per annum in
arrears on the last day of each January, April,
July and October commencing on January 31, 2009 and on the
Maturity Date until this Note shall be paid in full. Each change in
any interest rate provided for in this Note based upon the Senior
Debt Rate shall take effect at the time of such change in the
Senior Debt Rate. Interest shall be calculated on the basis a 360
day year based on the actual number of days elapsed.
As used herein:
“Senior Debt Rate” shall
mean, as of any date, the interest rate applicable to the Revolving
Credit Advances, as defined in and determined in accordance with
that certain Credit Agreement dated as August 11, 2008 among
the Company, certain affiliates of the Company, the Lenders
signatory thereto, General Electric Capital Corporation, as Agent,
Collateral Agent and Lender, GE Capital Markets, Inc., as Joint
Lead Arranger and Book Runner, and Wachovia Capital Markets, as
Joint Lead Arranger (as amended, the “Senior Credit
Agreement”); provided that , if all of the Commitments
(as defined in the Senior Credit Agreement) shall have been
terminated in accordance with the terms of the Senior Credit
Agreement, the “Senior Debt Rate”, as of any date,
shall be a rate per annum equal to (i) the rate published as
of such date (or, if The Wall Street Journal shall not be
published on such date, the date on which its was last published)
by The Wall Street Journal as the “prime rate”
(or, if The Wall Street Journal ceases publishing a prime
rate, the highest per annum rate of interest published by the
Federal Reserve Board in Federal Reserve statistical release H.15
(519) entitled “Selected Interest Rates” as the
Bank prime loan rate or its equivalent) plus (ii) one
percent (1%).
4. Payments . Any
payment hereunder which is stated to be due on a day which is not a
Business Day shall be made on the next succeeding Business Day (and
interest shall accrue for such extension of time). “Business
Day” shall mean any day other than a Saturday or Sunday or a
day on which banks in New York are authorized or required by law to
be closed.
5. Default . The
occurrence of any one or more of the following events shall
constitute an event of default (each an “Event of
Default”) hereunder:
(i) if the Company becomes insolvent
or makes an assignment for the benefit of creditors;
(ii) if there shall be filed by or
against the Company any petition for any relief under the
bankruptcy laws of the United States now or hereafter in effect or
any proceeding shall be commenced with respect to the Company under
any insolvency, readjustment of debt, reorganization, dissolution,
liquidation or similar law or statute of any jurisdiction now or
hereafter in effect (whether at law or in equity), provided that in
the case of any involuntary filing or the commencement of any
involuntary proceeding against the Company such proceeding or
petition shall have continued undismissed and unvacated for ninety
(90) days; or
(iii) if any petition or application
to any court or tribunal, at law or in equity, shall be filed by or
against the Company for the appointment of any receiver for the
Company or any material part of the property of the Company;
provided that in the case of any involuntary filing against the
Company, such proceeding or appointment shall have continued
undismissed and unvacated for ninety (90) days; or
(iv) if the Company shall fail for
any reason to make any payment of principal and/or interest
hereunder within ten (10) Business Days after such payment is
due; or
(v) if the Company shall fail for
any reason to make any payment of principal and interest under the
Senior Credit Agreement or any senior credit facility to which this
Note shall be subordinated, within thirty (30) days after such
payment is due.
6. Remedies Upon Default;
Default Interest .
(i) If any Event of Default shall
occur for any reason, then and in any such event, in addition to
all rights and remedies of the Holder under applicable law or
otherwise, all such rights and remedies being cumulative, not
exclusive and enforceable alternatively, succe
