EXHIBIT 4.13
FOURTH SUPPLEMENTAL INDENTURE
Fourth Supplemental Indenture, dated as of December 9, 1996, by and
among Brylane, L.P., a Delaware limited partnership ("Brylane"), Brylane Capital
Corp., a Delaware corporation ("Finance Corp." and, together with Brylane, the
"Issuers"), C.O.B. Management Services, Inc., a Delaware corporation and a
wholly-owned subsidiary of Brylane ("C.O.B. Management"), Xxxxxxxx'x Tradename
Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Brylane
("Tradename Sub"), and United States Trust Company of New York, as trustee (the
"Trustee"), under the Indenture, dated as of August 30, 1993, as amended by that
First Supplemental Indenture dated as of November 22, 1993, that Second
Supplemental Indenture dated as of January 28, 1994, and that Third Supplemental
Indenture dated as of October 16, 1995 (as so supplemented, the "Indenture"),
among the Issuers, the Guarantors named on the signature pages thereto, and the
Trustee, pursuant to which the Issuers' 10% Senior Subordinated Notes due 2003
(the "Notes") were issued. All capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Indenture.
WHEREAS, the Board of Representatives of Brylane has determined that
it is in the best interests of Brylane to form C.O.B. Management, a wholly-owned
subsidiary of Brylane;
WHEREAS, the Board of Representatives of Brylane has determined that
it is in the best interests of Brylane to form Tradename Sub, a wholly-owned
subsidiary of Brylane;
WHEREAS, the Board of Representatives of Brylane and the Boards of
Directors of Finance Corp., C.O.B. Management and Tradename Sub have determined
that it is in the best interests of the Issuers, C.O.B. Management and Tradename
Sub to authorize and approve an amendment to the Indenture, in accordance with
subparagraph (e) of Section 901 of the Indenture, in order to add each of C.O.B.
Management and Tradename Sub as a Guarantor pursuant to the requirements of
Section 1013 of the Indenture;
WHEREAS, Sections 901 and 903 of the Indenture provide, among other
things, that the Issuers and the Trustee may amend the Indenture as provided
herein without the consent of any Holder so long as such amendment does not
adversely affect the interests of any such Holder, or the rights, duties or
immunities of the Trustee, under the Indenture, any Guarantee or otherwise;
WHEREAS, Section 906 of the Indenture provides, among other things,
that Securities authenticated and delivered after the execution of any
supplemental indenture may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture;
WHEREAS, the Issuers have furnished the Trustee with (i) an Officers'
Certificate and an Opinion of Counsel stating that the execution of this Fourth
Supplemental Indenture is authorized or permitted by the Indenture, that the
Fourth Supplemental Indenture conforms to the requirements of the Trust
Indenture Act of 1939, as amended and currently in effect, and that the Fourth
Supplemental Indenture does not adversely affect the rights of any Holders, or
the rights, duties or immunities of the Trustee, under the Indenture, any
Guarantee or otherwise, and (ii) resolutions of the Issuers, C.O.B. Management
and Tradename Sub authorizing the execution of this Fourth Supplemental
Indenture;
WHEREAS, pursuant to the terms of that certain Release of Guarantee,
dated as of July 5, 1996, KingSize Catalog Sales, Inc., a Delaware corporation
and a wholly-owned subsidiary of Brylane ("KingSize Inc."), and KingSize Catalog
Sales, L.P., an Indiana limited partnership and an indirect wholly-owned entity
of Brylane ("KingSize Partnership"), were released from their respective
guarantees of the Issuers' obligations under the Indenture and the Securities
due to the fact that KingSize Partnership and KingSize Inc. were merged with and
into Brylane effective as of July 6, 1996; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid supplement of the Indenture have been satisfied.
NOW, THEREFORE, each party hereto, for the equal and proportionate
benefit of the other parties hereto and the Holders, are executing and
delivering this Fourth Supplemental Indenture.
Section 1. Guarantee by C.O.B. Management For value received, and
------------------------------
subject to the provisions of Section 1013(c) of the Indenture, C.O.B. Management
---------------
hereby agrees to become a party to the Indenture as a Guarantor under and
pursuant to Article Fourteen of the Indenture and to unconditionally guarantee
to the Holders of the Securities the payment of principal of, premium, if any,
and interest on the Securities in the amounts and at the times when due and
interest on the overdue principal and interest, if any, of the Securities, if
lawful, and the payment or performance of all other obligations of the Issuers
under the Indenture or the Securities, to the respective Holders of the
Securities and the Trustee, all in accordance with and subject to the terms and
limitations of the Securities and Article Fourteen of the Indenture, and to be
bound in all respects as a Guarantor under the Indenture, and further agrees to
waive and not in any manner whatsoever claim or take the benefit or advantage of
any rights of reimbursement, indemnity or subrogation or any other rights
against Brylane or any other Subsidiary as a result of any payment by such
Subsidiary under its Guarantee.
Section 2. Guarantee by Tradename Sub. For value received, and
--------------------------
subject to the provisions of Section 1013(c) of the Indenture, Tradename Sub
---------------
hereby agrees to become a party to the Indenture as a Guarantor under and
pursuant to Article Fourteen of the Indenture
2
and to unconditionally guarantee to the Holders of the Securities the payment of
principal of, premium, if any, and interest on the Securities in the amounts and
at the times when due and interest on the overdue principal and interest, if
any, of the Securities, if lawful, and the payment or performance of all other
obligations of the Issuers under the Indenture or the Securities, to the
respective Holders of the Securities and the Trustee, all in accordance with and
subject to the terms and limitations of the Securities and Article Fourteen of
the Indenture, and to be bound in all respects as a Guarantor under the
Indenture, and further agrees to waive and not in any manner whatsoever claim or
take the benefit or advantage of any rights of reimbursement, indemnity or
subrogation or any other rights against Brylane or any other Subsidiary as a
result of any payment by such Subsidiary under its Guarantee.
Section 3. Amendment of Page 12 of the Indenture. The definition of
-------------------------------------
Guarantor at page 12 of the Indenture is hereby amended to read in its entirety
as follows:
"Guarantor" means X.X. Management Services, Inc., X.X. Catalog
Distribution, Inc., X.X. Management Services Partnership, X.X. Catalog
Distribution Partnership, B.N.Y. Service Corp., C.O.B. Management
Services, Inc., Xxxxxxxx'x Tradename Sub, Inc., K.S. Management
Services, Inc., and any other guarantor of the Indenture Obligations.
Section 4. Endorsement of Securities. Securities authenticated and
-------------------------
delivered after the execution and delivery of this Fourth Supplemental Indenture
shall bear a notation evidencing the Guarantee by each of C.O.B. Management and
Tradename Sub as described in Section 1 and Section 2 of this Fourth
Supplemental Indenture, as well as the Guarantee of each of the other
Guarantors, substantially in the form attached as Exhibit A hereto.
---------
Section 5. Ratification of Indenture. As amended by this Fourth
-------------------------
Supplemental Indenture, the Indenture is in all respects ratified and confirmed
and, as so supplemented by this Fourth Supplemental Indenture, shall be read,
taken and construed as one and the same instrument.
Section 6. The Trustee. The Trustee shall not be responsible in any
-----------
manner whatsoever for the recitals of fact herein, all of which are made by the
Issuers, C.O.B. Management and Tradename Sub, and the Trustee shall not be
responsible or accountable in any manner whatsoever for or with respect to the
validity, execution or sufficiency of this Fourth Supplemental Indenture.
Section 7. The Effective Date. This Fourth Supplemental Indenture
------------------
shall become a legally effective and binding instrument upon the execution and
delivery hereof by all parties hereto.
3
Section 8. Counterparts. This Fourth Supplemental Indenture may be
------------
executed in any number of counterparts and by the parties hereto in separate
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 9. Governing Law. This Fourth Supplemental Indenture shall
-------------
be governed in accordance with the laws of the State of New York, as applied to
contracts made and performed within the State of New York, without regard to
principles of conflicts of law.
4
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be signed and acknowledged by their respective
officers, thereunto duly authorized and attested, all as of the day and year
first above written.
Dated as of December 9, 1996 BRYLANE, L.P.,
a Delaware limited partnership
Attest:
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ---------------------------
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx,
Authorized Representative Authorized Representative
Dated as of December 9, 1996 BRYLANE CAPITAL CORP.,
a Delaware corporation
Attest:
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ---------------------------
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx,
President and Chief Executive Vice President,
Executive Officer Chief Financial Officer,
Secretary and Treasurer
Dated as of December 9, 1996 C.O.B. MANAGEMENT SERVICES,
INC., a Delaware corporation
Attest:
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ---------------------------
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx,
President and Chief Executive Vice President,
Executive Officer Chief Financial Officer,
Secretary and Treasurer
[Signatures continued on following page]
5
[Signatures continued from previous page]
Dated as of December 9, 1996 XXXXXXXX'X TRADENAME SUB, INC.
a Delaware corporation
Attest:
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------- ---------------------------
Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx,
President and Chief Executive Vice President,
Executive Officer Chief Financial Officer,
Secretary and Treasurer
Dated as of December 9, 0000 XXXXXX XXXXXX TRUST COMPANY
OF NEW YORK, as Trustee
Attest:
/s/ Xxxxxx X. Xxx By: /s/ Xxxxxxxx X. Xxxxxxxxxxxx
-------------------------------- -----------------------------
Name: Xxxxxx X. Xxx Name: Xxxxxxxx X. Xxxxxxxxxxxx
--------------------------- -----------------------------
Title: Assistant Secretary Title: Assistant Vice President
-------------------------- ----------------------------
(SEAL)
6
EXHIBIT A
FORM OF ENDORSEMENT TO BE PLACED ON SECURITIES
AUTHENTICATED AND DELIVERED AFTER EXECUTION
OF THE FOURTH SUPPLEMENTAL INDENTURE
----------------------------------------------------
"Pursuant to the terms of that Fourth Supplemental Indenture, dated as
of December 9, 1996, by and among Brylane, L.P., Brylane Capital Corp., C.O.B.
Management Services, Inc., a newly-formed Delaware corporation and a wholly-
owned subsidiary of Brylane, L.P. ("C.O.B. Management"), Xxxxxxxx'x Tradename
Sub, Inc., a newly-formed Delaware corporation and a wholly-owned subsidiary of
Brylane L.P. ("Tradename Sub"), and United States Trust Company of New York, as
Trustee, C.O.B. Management and Tradename Sub have each become a party to the
Indenture as a Guarantor under and pursuant to Article Fourteen of the
Indenture, and each, as well as each of the other Guarantors (as defined in the
Indenture, as supplemented), subject to the provisions of Section 1013(c) of the
---------------
Indenture, hereby unconditionally guarantees to the Holders of the Securities
the payment of principal of, premium, if any, and interest on the Securities in
the amounts and at the times when due and interest on the overdue principal and
interest, if any, of the Securities, if lawful, and the payment or performance
of all other obligations of the Issuers under the Indenture or the Securities,
to the respective Holders of the Securities and the Trustee, all in accordance
with and subject to the terms and limitations of the Securities and Article
Fourteen of the Indenture, and to be bound in all respects as a Guarantor under
the Indenture, and further agrees to waive and not in any manner whatsoever
claim or take the benefit or advantage of any rights of reimbursement, indemnity
or subrogation or any other rights against Brylane or any other Subsidiary as a
result of any payment by such Subsidiary under its Guarantee. This Guarantee
will not become effective until the Trustee duly executes the certificate of
authentication on this Security."
A-1
