SUPPLEMENTAL INDENTURE
dated as of March 15, 2005
to that certain
INDENTURE dated as of June 22, 2004
between
KELLWOOD COMPANY
as Issuer,
and
UNION BANK OF CALIFORNIA, N.A.
as Trustee
relating to the Issuer's
3.50% Convertible Senior Debentures due 2034
THIS SUPPLEMENTAL INDENTURE dated as of March 15, 2005 (this
"SUPPLEMENT"), between Kellwood Company, a Delaware corporation (the "COMPANY"),
having its principal office at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx
00000, and Union Bank of California, N.A., as Trustee (the "TRUSTEE").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture (as hereinafter defined).
WITNESSETH
WHEREAS, the Company and the Trustee are parties to that certain
Indenture dated as of June 22, 2004, between the Company and the Trustee (the
"INDENTURE") pursuant to which the Company has issued its 3.50% Convertible
Senior Debentures due 2034 (the "DEBENTURES");
WHEREAS, each Guarantor is, directly or indirectly, a material domestic
Subsidiary of the Company and materially benefits from the Debentures issued
under the Indenture;
WHEREAS, the Company has entered into a Credit Agreement dated as of
October 20, 2004 (herein, as the same may be amended, supplemented or modified
from time to time called the "Credit Agreement") among the Company, various
lenders party thereto (the "Lenders"), Bank of America, N.A., as Trustee, and
Banc of America Securities LLC, as sole lead arranger and sole book manager;
WHEREAS, the Credit Agreement requires that the Guarantors (as defined
in the Guaranty Agreement referred to below) execute and deliver a guaranty
agreement as more fully provided for therein (herein as the same may be amended,
supplemented or modified from time to time called the "Credit Agreement
Guaranty") with respect to the Company's obligations under the Credit Agreement
and related documents;
WHEREAS, the Guarantors have deemed it advisable and in the best
interest of the Guarantors to voluntarily execute and deliver to the Trustee for
the benefit of the Debentureholders, a Guaranty Agreement in substantially the
form of the Guaranty Agreement attached hereto as Exhibit A (such Guaranty
Agreement, as the same may be amended, supplemented or modified from time to
time, called the "Guaranty Agreement"), it being understood that pursuant to its
terms the Guaranty Agreement shall automatically terminate concurrent with any
release or termination of the Credit Agreement Guaranty;
WHEREAS, Section 11.01 (i) of the Indenture permits the Company and the
Trustee (without consent of Debentureholders) to make changes to the terms of
the Indenture that do not individually or in the aggregate have a material
adverse effect on the interests of the Debentureholders;
WHEREAS, this Supplement is intended to amend the Indenture to provide
for the Guaranty Agreement, and is permitted pursuant to Section 11.01 of the
Indenture;
WHEREAS, the Board of Directors of the Company has authorized the
execution and delivery by the Company of this Supplement;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplement and the Guaranty Agreement; and
WHEREAS, all other acts and things necessary to constitute a valid and
binding supplemental indenture, enforceable in accordance with its terms, have
been done and performed, and the execution of this Supplement has in all
respects been duly authorized.
NOW, THEREFORE, the Company and the Trustee, for and in consideration
of the premises and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and for the equal and
proportionate benefit of all Debentureholders, hereby join in the execution and
delivery of this Supplement in order to supplement the Indenture as follows:
ARTICLE I
AMENDMENT
SECTION 1.1 Article 1 (Definitions) of the Indenture is hereby amended to add
the following definition in Section 1.01 Definitions in alphabetical order:
"Guarantor" has the meaning assigned thereto in the Guaranty Agreement.
"Guaranty Agreement" - has the meaning specified in Section 16.15.
SECTION 1.2 Article 16 (Miscellaneous) of the Indenture is hereby
amended by adding Section 16.15 as follows:
"Section 16.15. Guaranty Agreement. The Debentures shall be guaranteed
by the Guarantors pursuant and subject to the terms and provisions of the
Guaranty Agreement (it being understood that the Guaranty Agreement is subject
to the termination provisions of Section 22 thereof). In addition to all other
rights and remedies available to the Trustee under the Indenture or at law or in
equity, the Trustee is authorized to enforce the Guaranty Agreement pursuant to
the terms and provisions thereof."
ARTICLE II
ACKNOWLEDGEMENT OF THE TRUSTEE
SECTION 2.1 TRUSTEE ACKNOWLEDGMENT.
The Company hereby requests that the Trustee (a) execute and deliver
this Supplement and the Guaranty Agreement and (b) accept and hold the Guaranty
Agreement for the benefit of the Debentureholders. The Trustee acknowledges
receipt of a counterpart of the Guaranty Agreement executed by the Guarantors
and the Trustee, together with (i) the documents provided for in Section 11.05
of the Indenture, and (ii) resolutions of the board of directors (or equivalent
governing body) of each of the Guarantors as certified by the Secretary or
Assistant Secretary of each of such Guarantors. The Trustee agrees to be bound
by the termination and release provisions of Section 22 of the Guaranty
Agreement.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 EFFECTIVENESS AND EFFECT.
Upon execution hereof by the Company and the Trustee, this Supplement
shall become effective. The provisions set forth in this Supplemental shall be
deemed to be, and shall be construed as part of, the Indenture. All references
to the Indenture in the Indenture or in any other agreement, document or
instrument delivered in connection therewith or pursuant thereto shall be deemed
to refer to the Indenture as amended by this Supplement. The Indenture shall
remain in full force and effect as modified by this Supplement.
SECTION 3.2 COUNTERPARTS.
This Supplement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all of which shall
together constitute one and the same instrument.
SECTION 3.3 GOVERNING LAW.
This Supplement shall be governed by and construed in accordance with
the laws of the state of New York, as applied to contracts made and performed
within the state of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed by their respective officers thereunto duly authorized as of
the date first written above.
KELLWOOD COMPANY
By: /s/ W. Xxx Xxxxx, III
Name: W. Xxx Xxxxx, III
Title: Executive Vice President
Finance and Chief
Financial Officer
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
EXHIBIT A
GUARANTY AGREEMENT
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(Attached.)
