EXHIBIT 10.7
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS
AND ACCORDINGLY MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR LAWS OR PURSUANT TO AN EXEMPTION
THEREFROM. THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY
ARE SUBORDINATE, IN THE MANNER AND TO THE EXTENT SET FORTH
IN THAT INTERCREDITOR AND SUBORDINATION AGREEMENT (AS
AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME, THE "SUBORDINATION AGREEMENT") DATED AS OF JUNE 22,
1999 BETWEEN AND AMONG ▇▇▇▇▇ & ▇▇▇▇▇▇ SHOE CO., AS THE
COMPANY, MISSISSIPPI VALLEY CAPITAL COMPANY, AS THE
SUBORDINATED CREDITOR, AND THE SENIOR LENDER NAMED THEREIN,
TO ALL INDEBTEDNESS OWED BY THE MAKER OF THIS NOTE TO THE
SENIOR LENDER, AND THE HOLDER OF THIS NOTE, BY ITS
ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE
SUBORDINATION AGREEMENT.
▇▇▇▇▇ AND ▇▇▇▇▇▇ SHOE CO.
SUBORDINATED NOTE
$500,000 St. Louis, Missouri
June 22, 1999
FOR VALUE RECEIVED, the undersigned, ▇▇▇▇▇ and ▇▇▇▇▇▇ Shoe
Co., a Missouri corporation (the "Company"), hereby promises to pay to the order
of Mississippi Valley Capital Company, a Missouri corporation (the "Holder"), at
the Holder's office at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such
other place as shall be designated in writing by the Holder, the aggregate
principal amount of Five Hundred Thousand Dollars ($500,000) on January 31, 2003
(the "Maturity Date"). Attached hereto and made a part hereof is a warrant (the
"Warrant") to purchase shares of Class A Common Stock of the Company. Such
Warrant is not detachable or separately transferable from this Note, except as
set forth in Section 1(e) of the Warrant. Certain capitalized terms used in this
Note are defined in Section 5.
Section 1. Payment
1.1 Interest. The outstanding principal amount of this Note
shall bear interest (computed on the basis of a 365 or 366 day year, as the
case may be) at a rate equal to six percent (6%) per annum from the date hereof
to (and including) the Maturity Date. Following the occurrence of any Event of
Default, the outstanding principal amount of this Note shall bear
interest payable on demand at a default rate per annum equal to sixteen percent
(16%). Accrued interest shall be paid on the last day of each calendar quarter
("Payment Dates").
1.2 Redemption Payments. On the Maturity Date, the Company
shall pay an aggregate redemption price (the "Redemption Price") equal to the
redemption amount for the Note (the "Note Redemption Price") plus the redemption
amount for the Warrant (the "Warrant Redemption Price"), provided however, in
the event of the prior exercise of the Warrant, no Warrant Redemption Price
shall be payable. The Note Redemption Price shall be the then outstanding
principal amount of the Note together with the accrued unpaid interest thereon.
The Warrant Redemption Price shall be equal to the greater of (i) Seven Hundred
Thousand Dollars ($700,000) and (ii) an amount equal to: (5 x the average EBITDA
for the two fiscal years prior to payment of the Company x .032) - $500,000. In
the event the Warrant is exercised pursuant to Section 1(e) of the Warrant, the
Redemption Price shall be equal to the Note Redemption Price.
1.3 Business Days. Whenever payment on this Note shall be due
on a date that is not a Business Day, the date for payment thereof shall be the
next succeeding Business Day and interest due on the unpaid principal and any
other Amounts Payable hereunder shall accrue during such extension and shall be
payable on such succeeding Business Day.
1.4 Additional Agreements of the Company.
(a) All agreements and proceedings in connection
with the Closing under the Asset Purchase
Agreement with Edison Stores, Inc. shall
have been completed;
(b) While this Note or the Warrant remains
outstanding, ▇▇▇▇▇ ▇▇▇▇▇▇ shall remain as
the Chief Executive Officer of the Company
unless a successor reasonably satisfactory
to the Holder is appointed within thirty
(30) days of ▇▇. ▇▇▇▇▇▇'▇ cessation of such
duties;
(c) Company shall deliver to the Holder:
(i) Within ninety (90) days after the
end of each fiscal year of the
Company beginning with the fiscal
year ending December 31, 1999, an
annual income statement for such
fiscal year, a balance sheet for
the Company as of the end of such
year and a statement of cash flows
for such year, together with such
notes thereto as are appropriate,
prepared in accordance with
generally accepted accounting
principles consistently applied and
setting forth in each case in
comparative form the figures for
the previous year, in reasonable
detail and audited by an
independent public accountant;
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(ii) Within thirty (30) days after the
end of each fiscal quarter, an
unaudited income statement and cash
flow statement for the Company for
such quarter and the current fiscal
year to date and an unaudited
balance sheet as of the end of such
fiscal quarter setting forth in
comparative form the correspondent
figures for the prior fiscal
quarter in such reasonable detail
as shall be requested by the
Holder;
(iii) From time to time upon Holder's
request, such other information
regarding the business, affairs and
prospects and financial condition
of the Company as the Holder shall
reasonably request.
Section 2. Prepayment.
2.1 Prepayment. This Note may not be prepaid and the Warrant
may not be redeemed prior to the Maturity Date without the written consent of
the Holder and the consent of the holders of outstanding Senior Indebtedness.
Section 3. Defaults
3.1 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Company shall fail to pay within five (5)
Business Days of the due date thereof any principal of this Note or
shall fail to pay within five (5) Business Days of the due date thereof
any interest or any other Amounts Payable hereunder and the same shall
not have been cured within ten (10) days after written notice thereof
has been given by the Holder to the Company;
(b) the Company shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar
official, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors;
(c) an involuntary case or other proceeding shall be
commenced against the Company seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of sixty (60) days; or an
order for relief shall be entered against the Company under the Federal
bankruptcy laws as now or hereafter in effect.
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(d) if the Company shall fail in any material
respect to perform or preserve any covenant, agreement or provision set
forth in this Note or any covenant, agreement or provision to be
performed by it under the Warrant, and such failure shall not be cured
to the Holder's satisfaction within thirty (30) days after written
notice from the Holder to the Company, or
(e) The occurrence of any default under or pursuant
to the Senior Indebtedness;
then, and in every such event, subject to the provisions of Section 4, the
Holder may, by notice to the Company and to the holders of Senior Indebtedness,
declare the principal amount of this Note together with accrued interest
thereon, and the Warrant Redemption Price (provided the Warrant has not been
exercised pursuant to its terms), to be, and such portions of the principal
amount of this Note (and accrued interest thereon) and the Warrant Redemption
Price shall thereupon become, due and payable without presentment, demand,
protest or further notice of any kind, all of which are hereby waived by the
Company.
Section 4. Subordination
4.1 Note Subordinated to Senior Indebtedness. The Holder
acknowledges and agrees that all of its right, title and interest in and to this
Note, including but not limited to its right to receive payments in respect of
principal and interest as provided herein, shall be subordinate to any and all
Senior Indebtedness of the Company. The Holder agrees to execute any and all
agreements, including but not limited to an intercreditor and subordination
agreement, which the holder of Senior Indebtedness may require. The Holder
covenants and agrees for the benefit of the holders of Senior Indebtedness that
it will not take any security interest, lien or other encumbrance on the assets
of the Company as collateral security for the Company's obligations under this
Note without such holders' prior written consent. The Holder acknowledges that
the Company shall not make, and the Holder shall not accept any payments of
principal or interest on this Note after the Holder's receipt of written notice
of the occurrence of and during the continuation of a default under any Senior
Indebtedness agreement. If the Holder shall at any time receive any payment
which is prohibited by any Senior Indebtedness agreement, and receive notice of
same from any holder of Senior Indebtedness, the Holder will hold such payment
in trust and immediately turn it (or an amount of money equal to it) over to the
holder of Senior Indebtedness for application in payment of the outstanding
Senior Indebtedness.
Section 5. Definitions
For purposes of this Note, the following terms have the meanings set
forth below.
"Amounts Payable" means all principal of, interest on, premium, if
any, fees, costs, expenses, indemnities, Warrant Redemption Price, or any other
amounts due from the Company under this Note, and all claims against or
liabilities of the Company in respect of this Note and the attached Warrant.
"Business Day" means any day except a Saturday, Sunday or other days
on which commercial banks in St. Louis, Missouri or New York City are required
or authorized by law to close.
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"Default" means any condition or event that constitutes an Event of
Default or that with notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"EBITDA" means the Company's earnings before income taxes, depreciation
and amortization determined in accordance with generally accepted accounting
principles, consistently applied.
"Indebtedness" means any indebtedness (including, without limitation,
Senior Indebtedness), whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures, guarantees or similar instruments or
letters of credit (or reimbursement agreements in respect thereof) or
representing the deferred and unpaid balance of the purchase price of any
property (including pursuant to capital leases), and any financial hedging
obligations, if and to the extent such indebtedness (other than a financial
hedging obligation) would appear as a liability upon a balance sheet of such
person prepared on a consolidated basis in accordance with generally accepted
accounting principles, other than a trade payable or accrued expense.
"Maturity Date" means January 31, 2003.
"Note" means this Non-Negotiable Subordinated Note due on the Maturity
Date.
"Senior Indebtedness" shall mean the principal, interest (including any
interest accruing subsequent to an event specified in Sections 3.1(b) and
3.1(c)), premium, if any, fees (including, without limitation, any commitment,
agency, facility, structuring, restructuring or other fee), costs, expenses,
indemnities, and other amounts due on or in connection with any Indebtedness of
the Company to Foothill Capital Corporation individually or as an Agent for
itself for other lenders, now or herewith incurred, or any documents executed
under or in connection therewith, and any amendments, modifications, deferrals,
renewals or extensions of such Indebtedness, and any amounts owed in respect of
any Indebtedness incurred in refinancing, replacing or refunding the foregoing
(including any refinancing, replacing or refunding with new lenders), unless the
terms of such Indebtedness expressly provide that such Indebtedness is not
Senior Indebtedness with respect to this Note. Nothing in this Note shall
restrict an Affiliate of the Company from being a holder of Senior Indebtedness.
Indebtedness owed to Affiliates of the Company will be Senior Indebtedness for
purposes of this Note. Notwithstanding anything herein to the contrary, Senior
Indebtedness shall include any payables, accrued expenses, fees or other amounts
due to an Affiliate of the Company.
Section 6. Miscellaneous
6.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid, and shall be deemed given when so delivered personally, or sent
by facsimile transmission, or if mailed or sent by overnight courier, upon
receipt thereof, as follows:
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If to the Company to:
▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇ and ▇▇▇▇▇▇ Shoe Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holder, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Mississippi Valley Capital Company
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Each party may, by notice given in accordance with this Section to the other
party, designate another address or person for receipt of notices hereunder.
6.2 No Waivers. No failure or delay by the Holder in
exercising any right, power or privilege hereunder or under this Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law. No
notice to or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in related or similar circumstances requiring
such notice.
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6.3 Amendments and Waivers. Any provision of this Note may be
amended or waived if, but only if, such amendment or waiver is in writing,
signed by the Company and the Holder.
6.4 Successors and Assigns. The provisions of this Note and
the attached Warrant shall be binding upon and inure to the benefit of the
Holder and its respective successors and permitted assigns. If requested by a
holder of Senior Indebtedness as part of any consent, the assignee or transferee
of the Holder shall agree in writing to be bound by all of the terms of this
Note and the attached Warrant. The Holder hereof hereby waives proof of reliance
hereon by the holders of Senior Indebtedness.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the chief executive office of the
Company duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of this Note or its attorney duly authorized
in writing. Payment of or on account of principal and interest on this Note
shall be made only to or upon the order in writing of the registered holder.
6.5 LITIGATION. THIS NOTE SHALL BE GOVERNED BY, CONSTRUED,
APPLIED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
MISSOURI, AND NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER
THAN THAT OF MISSOURI, AND NO DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR
ALLOWED BY THE LAWS OF ANY OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE
ENACTMENT, MODIFICATION OR REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE OF
ANY FOREIGN JURISDICTION, BE INTERPOSED IN ANY ACTION HEREON. THE PARTIES AGREE
THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS NOTE MAY BE
COMMENCED IN THE STATE COURTS, OR IN THE UNITED STATES DISTRICT COURTS IN ST
LOUIS, MISSOURI. THE PARTIES CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL
BE PROPER IN SUCH COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON
CONVENIENS. THE CHOICE OF FORUM SET FORTH IN THIS SECTION 6.5 SHALL NOT BE
DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY ACTION UNDER THIS AGREEMENT IN ANY
OTHER JURISDICTION.
If any amounts due pursuant to this Note are not paid when
due, and this Note is placed in the hands of an attorney or attorneys for
collection (whether or not litigation is commenced) or for representation of the
Holder hereof in connection with bankruptcy or insolvency proceedings, the
undersigned promises to pay, in addition to all other amounts due hereon, the
reasonable costs and expenses of such collection representation, including
reasonable attorney's fees and expenses.
▇▇▇▇▇ AND ▇▇▇▇▇▇ SHOE CO.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, President
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