SUPPLEMENTAL INDENTURE
dated as of March 15, 2005
to that certain
INDENTURE dated as of September 30, 1997
between
KELLWOOD COMPANY
as Issuer,
and
JPMORGAN CHASE BANK f/k/a THE CHASE MANHATTAN BANK
as Trustee
relating to the Issuers
7 7/8% Senior Notes due July 15, 2009
and
7 5/8% Debentures due October 15, 2017
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 JPMorgan Chase Bank f/k/a The Chase Manhattan Bank, a New York
banking corporation, 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 September 30, 1997, between the Company and the Trustee
(the "Indenture") pursuant to which the Company has issued on (i) October 27,
1997 One Hundred Fifty Million Dollars ($150,000,000) of 7 5/8% Debentures due
October 15, 2017, and (ii) July 26, 1999 One Hundred Fifty Million Dollars
($150,000,000) of 7 7/8% Senior Notes due July 15, 2009 (collectively, the
"Securities");
WHEREAS, each Guarantor (as defined in the Guaranty Agreement referred
to below) is, directly or indirectly, a material domestic Subsidiary of the
Company and materially benefits from the Securities 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 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 Securityholders, 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, Sections 9.1(5) and 9.1(8) of the Indenture permit the Company
and the Trustee (without prior notice to or the consent of any Securityholder)
to enter into one or more supplemental indentures to amend the Indenture to make
any change that does not materially adversely affect the legal rights of any
Securityholder, and to add to the covenants and agreements of the Company;
WHEREAS, this Supplement is intended to amend the Indenture to provide
for the Guaranty Agreement, and is permitted pursuant to Sections 9.1(5) and
9.1(8) 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 Securityholder, 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 I (Definitions) of the Indenture is hereby amended
to add the following definition in alphabetical order:
"Guarantor" has the meaning assigned thereto in the Guaranty Agreement.
"Guaranty Agreement" - shall have the meaning set forth in Section
13.16.
SECTION 1.2 Article XIII (Miscellaneous) of the Indenture is hereby
amended by adding Section 13.16 as follows:
"Section 13.16. The Securities 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
Securityholders. 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 9.6 and 13.4 of the Indenture, and (ii)
resolutions of the board of directors (or equivalent governing body) of each of
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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.
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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 above written.
KELLWOOD COMPANY
By: /s/ W. Xxx Xxxxx, III
-------------------------
Name: W. Xxx Xxxxx, III
Title: Executive Vice President
Finance and Chief
Financial Officer
JPMORGAN CHASE BANK
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxx
Title: Trust Officer
EXHIBIT A
GUARANTY AGREEMENT
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(Attached.)
