EXHIBIT 4(b)
This FIRST SUPPLEMENTAL INDENTURE, dated as of January 9,
1997, between BROWN GROUP, INC., a corporation incorporated under
the laws of the State of New York, (the "Company"), BROWN GROUP
INTERNATIONAL, INC. a Delaware corporation, BROWN GROUP RETAIL,
INC. a Pennsylvania corporation, PAGODA TRADING COMPANY, INC. a
Missouri corporation and SIDNEY RICH ASSOCIATES, INC. a Missouri
corporation, (each a "Guarantor" and collectively, the
"Guarantors") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts Trust Company, as trustee.
WHEREAS, the Company has heretofore executed and
delivered to the Trustee an Indenture dated as of October 1, 1996
(as amended, modified or supplemented from time to time, the
"Indenture"); and
WHEREAS, pursuant to Section 4.17 of the Indenture, the
Company covenanted to not permit any Subsidiary, directly or
indirectly to assume, guarantee or in any other manner become
liable with respect to any other Indebtedness of the Company unless
such Subsidiary simultaneously executes and delivers a supplemental
indenture to the Trustee providing for the guarantee of payment of
the Securities by such Subsidiary on the same terms as such
Subsidiary's assumption or guarantee of such other Indebtedness;
and
WHEREAS, the Company is entering into that certain Credit
Agreement dated of even date herewith (the "Credit Agreement")
among the Company, as borrower, the lenders listed on the signature
pages thereof, and certain of the Company's Subsidiaries, as
guarantors of the Company's indebtedness under the Credit
Agreement;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Company, the Guarantors and the Trustee hereby agree as follows:
Section 1. Definitions. Except as otherwise
expressly provided herein, all capitalized words and terms used
herein shall have the meanings ascribed thereto in the Indenture.
Section 2. Guaranty.
Section 2.1. Guaranty of Guaranteed Obligations. Each
of the Guarantors hereby jointly and severally guarantees to the
Trustee the prompt payment of the principal of and interest on the
Securities (the "Guaranteed Obligations"), in full when due
(whether at stated maturity, by acceleration or otherwise) strictly
in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Guaranteed Obligations are not
paid in full when due (whether at stated maturity, by acceleration
or otherwise), the Guarantors will, jointly and severally, promptly
pay the same without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full
when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or
renewal.
Notwithstanding any provision to the contrary contained
herein or in the Securities or the Indenture, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each
Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
Section 2.2. Obligations Unconditional. The
obligations of the Guarantors under Section 2.1 hereof are joint
and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of the
Indenture or the Securities or any other agreement or instrument
referred to therein, or any substitution, release or exchange of
any other guarantee of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of
a surety or guarantor, it being the intent of this Section 2.2 that
the obligations of the Guarantors hereunder shall be absolute and
unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Company or any
other Guarantor of the Guaranteed Obligations for amounts paid
under this Guaranty until such time as the Holders have been paid
in full and no person or governmental authority shall have any
right to request any return or reimbursement of funds from the
Holders in connection with monies received under the Securities or
the Indenture. Without limiting the generality of the foregoing, it
is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with
any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of the Indenture or the Securities shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under the Indenture or the Securities shall be waived or any other
guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with;
(iv) any lien granted to, or in favor of, the Trustee as
security for any of the Guaranteed Obligations shall fail to attach
or be perfected; or
(v) any of the Guaranteed Obligations shall be
determined to be void or voidable (including, without limitation,
for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any person (including, without
limitation. any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Trustee
exhaust any right, power or remedy or proceed against the Company
or against any other person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
Section 2.3. Reinstatement. The obligations of the
Guarantors under this Section 2 shall be automatically reinstated
if and to the extent that for any reason any payment by or on
behalf of any person in respect of the Guaranteed Obligations is
rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Trustee and the Holders on demand
for all reasonable costs and expenses (including, without
limitation, fees and expenses of counsel) incurred by the Trustee
or the Holders in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
Section 2.4. Remedies. The Guarantors agree that, to
the fullest extent permitted by law, as between the Guarantors, on
the one hand, and the Trustee and the Holders on the other hand,
the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 6.02 of the Indenture (and shall be
deemed to have become automatically due and payable in the
circumstances provided in said Section 6.02) for purposes of
Section 2.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the
Guaranteed Obligations from becoming automatically due and payable)
as against any other person and that, in the event of such
declaration (or the Guaranteed Obligations being deemed to have
become automatically due and payable), the Guaranteed Obligations
(whether or not due and payable by any other person) shall
forthwith become due and payable by the Guarantors for purposes of
said Section 2.1.
Section 2.5. Rights of Contribution. The Guarantors
hereby agree, as among themselves, that if any Guarantor shall
become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but
subject to the succeeding provisions of this Section 2.5), pay to
such Excess Funding Guarantor an amount equal to such Guarantor's
Pro Rata Share (as defined below and determined, for this purpose,
without reference to the properties, assets, liabilities and debts
of such Excess Funding Guarantor) of such Excess Payment (as
defined below). The payment obligation of any Guarantor to any
Excess Funding Guarantor under this Section 2.5 shall be
subordinate and subject in right of payment to the prior payment in
full of the obligations of such Guarantor under the other
provisions of this Section 2, and such Excess Funding Guarantor
shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations.
For purposes hereof, (i) "Excess Funding Guarantor" shall mean, in
respect of any obligations arising under the other provisions of
this Section 2 (hereafter, the Guarantied Obligations"), a
Guarantor that has paid an amount in excess of its Pro Rata Share
of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an Excess
Funding Guarantor in excess of its Pro Rata Share of such
Guarantied Obligations; and (iii) "Pro Rata Share", for the
purposes of this Section 2.5, shall mean, for any Guarantor, the
ratio (expressed as a percentage) of (a) the amount by which the
aggregate present fair saleable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (b) the amount by which the aggregate
present fair saleable value of all assets and other properties of
the Company and all of the Guarantors exceeds the amount of all of
the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the
obligations of the Company and the Guarantors hereunder) of the
Company and all of the Guarantors, all as of the date of this First
Supplemental Indenture (the "Closing Date") (if any person becomes
a Guarantor hereunder subsequent to the Closing Date, then for the
purposes of this Section 2.5 such subsequent Guarantor shall be
deemed to have been a Guarantor as of the Closing Date and the
information pertaining to, and only pertaining to, such Guarantor
as of the date such Guarantor became a Guarantor shall be deemed
true as of the Closing Date).
Section 2.6. Continuing Guarantee. The guarantee in
this Section 2 is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
Section 3. Construction with Indenture. All of the
covenants, agreements and provisions of this First Supplemental
Indenture shall be deemed to be and construed as part of the
Indenture to the same extent as if fully set forth therein and
shall be fully enforceable in the manner provided in the Indenture.
Except as provided in this First Supplemental Indenture, the
Indenture shall remain in full force and effect and the terms and
conditions thereof are hereby confirmed.
Section 4. Conflict with Trust Indenture Act. If any
provision of this First Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that is required under
such Act to be part of and govern the Indenture or this First
Supplemental Indenture, the latter provision shall control. If any
provision hereof modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this First Supplemental
Indenture as so modified or excluded, as the case may be.
Section 5. Notices. Any notice or communication
shall be sufficiently given if given in accordance with the terms
of the Indenture and:
If to Brown Group International, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
If to Brown Group Retail, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
If to Pagoda Trading Company, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
If to Sidney Rich Associates, Inc. to:
8300 Maryland Avenue
St. Louis, Missouri 63105
Attention: Secretary
In each case, with a copy to:
Bryan Cave llp
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102
Attention: James L. Nouss, Jr., Esq.
Section 6. Separability. In case any provision in
this First Supplemental Indenture, shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
Section 7. Counterparts. This First Supplemental
Indenture may be executed in multiple counterparts and on separate
counterparts, and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 8. Governing Law. The laws of the State of
New York shall govern this First Supplemental Indenture without
regard to principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all
as of the day and year first above written.
BROWN GROUP, INC.
By:
Harry E. Rich
Executive Vice President and
Chief Financial Officer
BROWN GROUP INTERNATIONAL, INC.
By:
Harry E. Rich
Vice President
BROWN GROUP RETAIL, INC.
By:
Harry E. Rich
Vice President
PAGODA TRADING ASSOCIATES, INC.
By:
Harry E. Rich
Vice President
SIDNEY RICH ASSOCIATES, INC.
By:
Harry E. Rich
Vice President
STATE STREET BANK AND TRUST COMPANY
By:
Name: Susan James
Title: