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Exhibit 4.1
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FLORSHEIM GROUP INC.
(formerly named The Florsheim Shoe Company),
AS ISSUER
THE FLORSHEIM SHOE STORE COMPANY - NORTHEAST
THE FLORSHEIM SHOE STORE COMPANY - WEST
FLORSHEIM OCCUPATIONAL FOOTWEAR, INC.
(formerly named Hy-Test, Inc.)
▇.▇. ▇'▇▇▇▇▇ SHOE COMPANY,
AS GUARANTORS
_________________________________________________
$85,000,000
12-3/4 % SENIOR NOTES DUE 2002
_________________________________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 19, 1997
amending and supplementing the
Indenture dated as of November 17, 1994
________________________________________
FIRST UNION NATIONAL BANK
(formerly named First Fidelity Bank, National Association)
________________________________________
as Trustee
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FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
April 19, 1997, among FLORSHEIM GROUP INC. (formerly named The Florsheim Shoe
Company), a Delaware corporation, each of THE FLORSHEIM SHOE STORE COMPANY -
NORTHEAST, a Delaware corporation, THE FLORSHEIM SHOE STORE COMPANY - WEST, a
Delaware corporation, FLORSHEIM OCCUPATIONAL FOOTWEAR, INC. (formerly named
Hy-Test, Inc.), a Missouri corporation, and ▇.▇. ▇'▇▇▇▇▇ SHOE COMPANY, a
Missouri corporation (collectively, the "Guarantors") and FIRST UNION NATIONAL
BANK (formerly named First Fidelity Bank, National Association), as trustee.
WHEREAS, there has heretofore been executed and delivered to the Trustee
an Indenture dated as of November 17, 1994 (the "Original Indenture") regarding
Florsheim's 12-3/4% Senior Notes due 2002;
WHEREAS, Florsheim has commenced a tender offer (the "Tender Offer") for
the Securities and, in connection therewith, a solicitation of consents (the
"Solicitation") from the Holders to certain amendments to the Original
Indenture as set forth in the Offer to Purchase and Consent Solicitation
Statement of Florsheim dated March 31, 1997; and
WHEREAS, pursuant to the Solicitation, the Holders of at least a majority
in aggregate principal amount of the Securities outstanding (excluding for this
purpose any Securities held by Florsheim, any Guarantor or any Affiliate of
Florsheim or any Guarantor) have consented to the amendments effected by this
Supplemental Indenture in accordance with the provisions of the Original
Indenture.
NOW THEREFORE, in consideration of the foregoing and the mutual premises
and covenants contained herein and for other good and valuable consideration,
the parties hereto agree as follows.
ARTICLE 1
DEFINITIONS; AMENDMENTS TO ORIGINAL INDENTURE; WAIVER
SECTION 1.01. DEFINITIONS.
Capitalized terms used but not defined in this Supplemental Indenture
shall have the specified meanings therefor set forth in the Original Indenture.
SECTION 1.02. AMENDMENTS TO ORIGINAL INDENTURE.
(a) The amendments set forth in this Supplemental Indenture shall become
operative on the date that Florsheim notifies First Union National Bank of
North Carolina, in its capacity as Depository in connection with the Tender
Offer, that the Securities tendered are accepted for purchase and payment
pursuant to the Tender Offer. If the Securities are not accepted for
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payment by Florsheim for any reason, the amendments set forth herein
will not become operative.
(b) Section 4.03 of the Original Indenture shall be amended and restated
so as to read in its entirety as follows:
SECTION 4.03. REPORTS.
Florsheim and the Guarantors shall file with Trustee, the
Commission and the Holders, as applicable, the reports,
information and documents required by TIA Section 314(a).
(c) Section 4.04 of the Original Indenture shall be amended and restated
so as to read in its entirety as follows:
SECTION 4.04. COMPLIANCE CERTIFICATE.
Florsheim and the Guarantors shall deliver to Trustee, within
120 days after the end of each fiscal year of Florsheim, a
certificate as required by TIA Section 314(a)(4).
(d) Sections 4.05, 4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.15, 4.16
and 5.01 and subsection 11.03(b) of the Original Indenture shall be deleted.
(e) Section 4.10 of the Original Indenture shall be amended and restated
so as to read in its entirety as follows:
SECTION 4.10. ASSET SALES.
Within 360 days after consummation of any Asset Sale,
Florsheim may elect to apply 100% of the Net Cash Proceeds thereof
to (A) repay Indebtedness outstanding pursuant to the Credit
Facility (and to permanently reduce the commitments thereunder by
a corresponding amount) or (B) make an Investment in either (i)
another business or (ii) capital expenditures or other non-current
tangible assets, in each case, which is engaged or used in a
Permitted Business. Any Net Cash Proceeds from an Asset Sale that
are not applied or invested as provided in the preceding sentence
shall constitute "Excess Proceeds." When the aggregate amount of
Excess Proceeds exceeds $5 million, Florsheim shall make an offer
to all Holders of Securities (an "Asset Sale Offer") to purchase
the maximum principal amount of Securities that may be purchased
out of the Excess Proceeds, at an offer price in cash equal to
100% of the outstanding principal amount thereof plus accrued and
unpaid interest, if any, to the date fixed for the closing of such
offer, in accordance with the procedures set forth in Section 3.09
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hereof. If the aggregate principal amount of Securities
surrendered by Holders exceeds the amount of Excess Proceeds, the
Trustee will select the Securities to be purchased on a pro rata
basis. To the extent the aggregate principal amount of Securities
tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, Florsheim may use such deficiency for general corporate
purposes and such deficiency shall no longer be deemed "Excess
Proceeds."
The Asset Sale Offer shall be made by Florsheim in compliance
with all applicable laws, including, without limitation,
Regulation 14E of the Exchange Act, to the extent applicable, and
all applicable federal and state securities laws and the rules
thereunder.
(f) Each of Section 6.01 of the Original Indenture and Section 12 of the
Securities shall be amended by deleting clauses (vi) and (vii) thereof.
(g) All references in the Original Indenture and the Securities to the
sections, subsections and clauses of the Original Indenture and the Securities
deleted by the foregoing paragraphs (d) and (f) shall be void and of no further
force and effect.
(h) All defined terms used in Section 1.01 of the Original Indenture that
are used solely in the sections, subsections and clauses deleted by the
foregoing paragraphs (d) and (f) shall be void and of no further force and
effect.
SECTION 1.03. WAIVER.
If and to the extent that any provision of the covenants set forth in the
sections and subsections of the Original Indenture deleted by Section 1.02(d)
of this Supplemental Indenture would impair Florsheim's ability to effect the
Tender Offer and the Solicitation, compliance with such provision is hereby
waived by the Trustee.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. INSTRUMENTS TO BE READ TOGETHER.
This Supplemental Indenture is an indenture supplemental to the Original
Indenture, and the Original Indenture and this Supplemental Indenture shall
henceforth be read together.
SECTION 2.02. CONFIRMATION.
The Original Indenture as amended and supplemented by this Supplemental
Indenture is in all respects confirmed and preserved.
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SECTION 2.03. HEADINGS.
The headings of the Articles and Sections of this Supplemental Indenture
have been inserted for convenience of reference only, and are not to be
considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SECTION 2.04. GOVERNING LAW.
The internal law of the State of New York shall govern and be used to
construe this Supplemental Indenture.
SECTION 2.05. COUNTERPARTS.
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 2.06. EFFECTIVENESS.
The provisions of this Supplemental Indenture will take effect immediately
upon its execution and delivery by the Trustee.
SECTION 2.07. ACCEPTANCE BY TRUSTEE.
The Trustee accepts the amendments to the Original Indenture effected by
this Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth
in the Indenture. Without limiting the generality of the foregoing, the
Trustee assumes no responsibility for the correctness of the recitals contained
herein, which shall be taken as the statements of Florsheim and the Guarantors
and except as provided in the Original Indenture the Trustee shall not be
responsible or accountable in any manner whatsoever for or with respect to the
validity or execution or sufficiency of this Supplemental Indenture, and the
Trustee makes no representation with respect thereto.
SECTION 2.08. TIA CONTROLS.
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with another provision that is required to be included in this
Supplemental Indenture by the TIA, the required provision of the TIA shall
control.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
FLORSHEIM GROUP INC.
(formerly named The Florsheim Shoe Company)
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
THE FLORSHEIM SHOE STORE COMPANY - NORTHEAST
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
THE FLORSHEIM SHOE STORE COMPANY - WEST
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
FLORSHEIM OCCUPATIONAL FOOTWEAR, INC.
(formerly named Hy-Test, Inc.)
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
▇.▇. ▇'▇▇▇▇▇ SHOE COMPANY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
FIRST UNION NATIONAL BANK, as Trustee
(formerly named First Fidelity Bank, National
Association)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President