SUPPLEMENTAL INDENTURE
Exhibit
0.xx
Supplemental
Indenture (this “Supplemental
Indenture”), dated as of October 24, 2007, between XXXXX.XXX, INC., a
Delaware corporation (the “Guaranteeing Subsidiary”), a
subsidiary of Xxxxx Shoe Company, Inc., a New York corporation (the “Company”), the Company and U.S
Bank National Association, a national banking association, as successor to
SunTrust Bank, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E
S S E T H
WHEREAS,
the Company and the other Guarantors party thereto have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”), dated as of April
22, 2005 providing for the issuance of the Company’s 8.75% Senior Notes due 2012
(the “Notes”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall, subject to Article Ten of
the Indenture, unconditionally guarantee the Notes on the terms and conditions
set forth therein (the “Note
Guarantee”); and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
Guarantors, the Guaranteeing Subsidiary and the Trustee agree as follows for the
equal and ratable benefit of the Holders of the Notes:
1. Capitalized
Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
2. Agreement to
Guarantee.
(a) Subject
to Article Ten of the Indenture, the Guaranteeing Subsidiary fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the
principal of, premium, if any, and interest and Additional Interest, if any, on
the Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of,
premium, if any, and interest and Additional Interest, if any, on the Notes, if
lawful (subject in all cases to any applicable grace period provided herein),
and all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full, all in accordance with the terms
hereof and thereof; and
(ii) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. The Guaranteeing Subsidiary
agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) The
Guaranteeing Subsidiary hereby agrees that, to the maximum extent permitted
under applicable law, its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.
(c) The
Guaranteeing Subsidiary, subject to Section 6.06 of the Indenture, hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Note Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture.
(d) If
any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to any of the Company or the Guarantors, any amount
paid by any of them to the Trustee or such Holder, this Note Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and
effect.
(e) The
Guaranteeing Subsidiary agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
(f) The
Guaranteeing Subsidiary agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six of
the Indenture for the purposes of the Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article Six of the Indenture,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of the Note Guarantee.
(g) The
Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Note Guarantee.
(h) The
Guaranteeing Subsidiary confirms, pursuant to Section 10.02 of the Indenture,
that it is the intention of such Guaranteeing Subsidiary that the Note Guarantee
not constitute (i) a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to the
Note Guarantee or (ii) an unlawful distribution under any applicable state law
prohibiting shareholder distributions by an insolvent subsidiary to the extent
applicable to the Note Guarantee. To effectuate the foregoing
intention, the Guaranteeing Subsidiary and the Trustee hereby irrevocably agree
that the obligations of the Guaranteeing Subsidiary will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guaranteeing Subsidiary that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article Ten of the Indenture, result
in the obligations of the Guaranteeing Subsidiary under the Note Guarantee not
constituting a fraudulent transfer or conveyance or such an unlawful shareholder
distribution.
3. Execution and
Delivery. The Guaranteeing Subsidiary agrees that the Note
Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of the Note Guarantee.
4. Guaranteeing Subsidiary May
Consolidate, Etc., on Certain Terms. The Guaranteeing
Subsidiary may not sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into, any Person other than as
set forth in Section 10.04 of the Indenture.
5. Release. The
Guaranteeing Subsidiary’s Note Guarantee shall be released as set forth in
Section 10.05 of the Indenture.
6. No Recourse Against
Others. Pursuant to Section 12.07 of the Indenture, no
director, officer, employee, incorporator or stockholder of the Guaranteeing
Subsidiary shall have any liability for any obligations of the Guaranteeing
Subsidiary under the Notes, the Indenture, this Supplemental Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. This waiver and release are part of
the consideration for the Note Guarantee.
7. NEW YORK LAW TO
GOVERN. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. Counterparts. The
parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of
Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
10. Trustee. The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture or for or in respect
of the recitals contained herein, all of which recitals are made solely by the
Guaranteeing Subsidiary and the Company.
[SIGNATURE PAGE
FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above
written.
XXXXX.XXX,
INC.
By: /s/ Xxxx X.
Xxxx
Name:
Xxxx X. Xxxx
Title: Senior
Vice President and Chief
Financial
Officer
XXXXX
SHOE COMPANY, INC.
By: /s/ Xxxx X.
Xxxx
Name:
Xxxx X. Xxxx
Title: Senior
Vice President and Chief
Financial
Officer
U.S. BANK
NATIONAL ASSOCIATION,
AS
TRUSTEE
By: /s/
Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Vice President
