SUPPLEMENTAL INDENTURE
Exhibit 4.1
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of July 1, 2005, among Saks Incorporated, a corporation incorporated under the laws of the State of Tennessee (the “Company”), as issuer, the Subsidiary Guarantors listed on the signature pages hereto (the “Guarantors”), as guarantors, and The Bank of New York Trust Company, N.A. (the “Trustee”), as trustee.
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee have heretofore entered into an Indenture, dated as of March 23, 2004, relating to the Company’s outstanding 2.00% Convertible Senior Notes due March 15, 2024 (the “Notes”), as amended and supplemented prior to the date hereof (the “Original Indenture”);
WHEREAS, the Company has solicited consents from Holders of the Notes to, among other things, certain amendments (the “Amendments”) to the Original Indenture which are set forth in this Supplemental Indenture;
WHEREAS, the Company has received the written consent to the Amendments from Holders of a majority in aggregate principal amount of the Outstanding Notes; and
WHEREAS, pursuant to Section 14.2 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 parties hereto mutually covenant and agree for the equal and ratable benefit of Holders of the Notes as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
The Original Indenture together with this Supplemental Indenture are hereinafter sometimes collectively referred to as the “Indenture.” For the avoidance of doubt, references to any “Section” of the “Indenture” refer to such Section of the Original Indenture as supplemented and amended by this Supplemental Indenture. All capitalized terms which are used herein and not otherwise defined herein are defined in the Original Indenture and are used herein with the same meanings as in the Original Indenture. If a capitalized term is defined in the Original Indenture and this Supplemental Indenture, the definition in this Supplemental Indenture shall apply to the Indenture and the Notes.
Section 1.1 of the Original Indenture shall be amended to insert alphabetically therein the following defined terms:
“Compliance Certificate” has the meaning set forth in Section 3.8.
“Consent Fee” means the payment defined as such with respect to the Notes in the Solicitation Documents.
“Covenant Reversion Date” means, 5:30 p.m., New York City time, on the earlier of (i) the Business Day following the Company’s failure to pay the Consent Fee, if due, for the Notes in accordance with the Solicitation Documents and (ii) October 31, 2005.
“Solicitation Documents” means the Consent Solicitation Statement dated as of June 20, 2005 and the related Consent Form, each as may be amended and supplemented from time to time.
ARTICLE II
COVENANTS
Section 2.1. SEC Reports.
Section 3.7 of the Original Indenture shall be deleted in its entirety and replaced with the following:
SECTION 3.7. SEC Reports. The Company will, except as otherwise provided in this Section 3.7, file with the Commission (so long as the Commission will accept any such filings) and the Trustee the annual reports, quarterly reports and other documents required to be filed with the Commission pursuant to Sections 13 and 15 of the Exchange Act, whether or not the Company has a class of securities registered under the Exchange Act. The Company will also comply with the other provisions of Section 314(a) of the Trust Indenture Act. Notwithstanding any other provision of this Section 3.7 or this Indenture, the documents and reports referred to in this Section 3.7 that the Company would have been required to file with the Commission or the Trustee on any date on or before the Covenant Reversion Date (but for this sentence) will not be required to be filed by the Company until the Covenant Reversion Date.
Section 2.2. Compliance Certificates.
Section 3.8 of the Original Indenture shall be deleted in its entirety and replaced with the following:
SECTION 3.8. Compliance Certificates. The Company and the Guarantors will, except as otherwise provided in this Section 3.8, deliver to the Trustee, within 120 days after the end of each of their fiscal years ending after the date hereof, a written statement (such written statement, a “Compliance Certificate”) signed by the chairman or a chief executive officer, the principal financial officer, principal accounting officer or Treasurer
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of the Company or such Guarantor (as applicable), stating (i) that a review of the activities of the Company or such Guarantor (as applicable) during the preceding fiscal year has been made under the supervision of the signing officer with a view to determining whether the Company or such Guarantor (as applicable) has kept, observed, performed and fulfilled its obligations under this Indenture and (ii) that, to the knowledge of each officer signing such certificate, the Company or such Guarantor (as applicable) has kept, observed, performed and fulfilled each and every covenant and condition contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, conditions and covenants hereof (or, if a Default shall have occurred, describing all such Defaults of which such officers may have knowledge, their status and what action the Company or such Guarantor (as applicable) is taking or proposes to take with respect thereto). When any Default has occurred and is continuing, or if the Trustee or any Holder or the trustee for or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed default (other than with respect to Indebtedness (other than Indebtedness evidenced by the Notes) in the principal amount of less than $50,000,000), the Company will, except as otherwise provided in this Section 3.8, promptly deliver to the Trustee by registered or certified mail or by telegram, or facsimile transmission followed by hard copy by registered or certified mail an Officer’s Certificate specifying such event, notice or other action no later than five Business Days after the Company becomes aware of such occurrence and what action the Company is taking or proposes to take with respect thereto. Notwithstanding any other provision of this Section 3.8 or this Indenture, (i) the Compliance Certificate referred to in this Section 3.8 that the Company and the Guarantors would have been required to deliver to the Trustee on any date before the Covenant Reversion Date (but for this sentence) will not be required to be delivered until the Covenant Reversion Date, and (ii) the Company and the Guarantors will have no obligation to deliver an Officer’s Certificate, as referred to in the preceding sentence, relating to the breach of a covenant contained in Section 3.7, 3.8 or 3.11 of this Indenture that occurred prior to the Covenant Reversion Date.
Section 2.3. Notice of Default.
Section 3.11 of the Original Indenture shall be deleted in its entirety and replaced with the following:
SECTION 3.11. Notice of Default. In the event that any Default that could mature into an Event of Default under Section 10.1(c) hereof shall occur, the Company or any of the Guarantors shall give written notice of such Default to the Trustee no later than five Business Days after the Company becomes aware of the occurrence of such Default; provided, however, that the Company and the Guarantors will have no obligation to deliver a written notice relating to the breach of a covenant contained in Section 3.7, 3.8 or 3.11 of this Indenture that occurred prior to the Covenant Reversion Date.
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ARTICLE III
DEFAULTS AND REMEDIES
Section 3.1. Events of Default.
Section 10.1 of the Original Indenture shall be deleted in its entirety and replaced with the following:
SECTION 10.1. Events of Default. “Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest and Liquidated Damages, if any, due and payable on the Notes, continued for 30 days or more; or
(b) default in payment of all or any part of principal of the Notes at the Maturity Date, upon redemption or repurchase or following a Fundamental Change when the same becomes due and payable; or
(c) except as otherwise provided in this Section 10.1, default in the performance of or breach of any other covenant or warranty of the Company contained in the Notes, any Guarantee or this Indenture (other than a default specified in (a) or (b) above) that continues for a period of 60 days after written notice of such failure requiring the Company to remedy the same and stating that such notice is a “Notice of Default” hereunder shall have been given (x) to the Company by the Trustee or (y) to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes then Outstanding; or
(d) acceleration of any Indebtedness, having an aggregate minimum principal amount of $50 million, for money borrowed by the Company or a Subsidiary under the terms of the instrument under which such Indebtedness is issued or secured, if such acceleration is not discharged within 10 days after written notice of such acceleration; or
(e) any Guarantee ceases to be in full force and effect or is declared null and void or any Guarantor denies that it has any further liability under any Guarantee, or gives notice to such effect (other than by reason of the termination of this Indenture or the release of any such Guarantee in accordance with Section 12.4 hereof) and such condition shall have continued for a period of 30 days after written notice of such condition requiring the same to be remedied and stating that such notice is a “Notice of Default” hereunder shall have been given (x) to the Company by the Trustee or (y) to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Notes then outstanding; or
(f) the Company or any Subsidiary of the Company pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
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(ii) consents to the making of a Bankruptcy Order in an involuntary case or proceeding or the commencement of any case against it;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) files an answer or consent seeking reorganization or relief;
(vi) admits in writing its inability to pay its debts generally; or
(vii) consents to the filing of a petition in bankruptcy; or
(g) a court of competent jurisdiction in any involuntary case or proceeding enters a Bankruptcy Order against the Company or any Subsidiary, and such Bankruptcy Order remains unstayed and in effect for 60 consecutive days;
(h) a Custodian shall be appointed out of court with respect to the Company or any Subsidiary or with respect to all or any substantial part of the assets or properties of the Company or any Subsidiary;
(i) default on the part of the Company in its obligation to convert the Notes upon exercise of a Holder’s conversion right in accordance with the terms of the Notes and Article IX hereof and such conversion Default is not cured or such conversion is not rescinded within five days after written notice of Default is given by registered mail to the Company by the Trustee or to the Company and the Trustee by the Holder of such Note;
(j) default on the part of the Company in its obligation to give notice to Holders of their right to require the Company to repurchase Notes following the occurrence of a Fundamental Change within the time required to give such notice; or
(k) default in the payment of principal, interest or premium when due under any Indebtedness, having an aggregate minimum principal amount of $50 million, by the Company or any Subsidiaries under the terms of the instrument under which such Indebtedness is issued or secured, if such default continues in effect for more than 30 days after the expiration of any grace period or extension of time for payment applicable thereto.
If an Event of Default with respect to the Notes then outstanding occurs and is continuing (other than an Event of Default specified in Section 10.1(f), Section 10.1(g) or Section 10.1(h)), then and in each and every such case, unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the
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principal of all the Notes and the interest accrued thereon and Liquidated Damages, if any, thereon to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Notes contained to the contrary notwithstanding. This provision, however, is subject to the condition that if at any time after the principal (or such specified amount) of the Notes shall have been so declared due and payable and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company or any Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest and Liquidated Damages, if any, upon all of the Notes and the principal of any and all Notes, which shall have become due otherwise than by acceleration (with interest on overdue installments of interest, if any, to the extent that payment of such interest is enforceable under applicable law and on such principal at the rate borne by the Notes to the date of such payment or deposit) and shall pay the reasonable compensation, disbursements, expenses and advances of the Trustee, and any and all Defaults under this Indenture, other than the nonpayment of principal of and accrued interest, if any, and Liquidated Damages, if any, on the Notes, which shall have become due solely by reason of the acceleration, shall have been cured or shall have been waived in accordance with this Indenture, then and in every such case the declaration of acceleration shall be automatically annulled and rescinded; but no such rescission and annulment shall extend to or shall affect any subsequent Default, or shall impair any right consequent thereon. If any Event of Default with respect to the Company specified in Section 10.1(f), Section 10.1(g) or Section 10.1(h) occurs, all unpaid principal and accrued interest and Liquidated Damages, if any, on all Notes then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act by the Trustee or any Holder.
If the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Trustee and the Holders shall continue as though no such proceeding had been taken.
In determining whether the Holders of the requisite aggregate principal amount of the Notes outstanding have given any request, demand, authorization or consent under this Indenture, the principal amount of Notes that will be deemed to be outstanding will be the amount of the principal of the Notes that would be due and payable as of the date of the determination upon a declaration of acceleration of the maturity of the Notes.
Notwithstanding any of the foregoing, the failure of the Company to comply with Section 3.7, 3.8 or 3.11 of this Xxxxxxxxx, xx §000 of the Trust Indenture Act, before 5:30 p.m., New York City time on the Covenant Reversion Date shall not constitute a Default under clause (c) above.
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ARTICLE IV
MISCELLANEOUS
Section 4.1. Effect of Supplemental Indenture; Effectiveness and Operation.
(a) This Supplemental Indenture shall be effective upon execution hereof by the Company, the Guarantors and the Trustee. From and after such date, the Amendments set forth herein shall be deemed to have modified the applicable sections, or portions thereof, or clauses of the Original Indenture. However, this Supplemental Indenture shall cease to have any effect if the Company shall fail to pay to Holders of the Notes the Consent Fee described in the Solicitation Documents (as defined in Section 1.1 of this Supplemental Indenture).
(b) This Supplemental Indenture is a supplemental indenture within the meaning of Section 14.2 of the Original Indenture, and the Original Indenture shall be read together with this Supplemental Indenture and shall have the same effect over the Notes in the same manner as if the provisions of the Original Indenture and this Supplemental Indenture were contained in the same instrument.
(c) In all other respects, the Original Indenture is confirmed by the parties hereto as supplemented by the terms of this Supplemental Indenture.
(d) Subject to 4.2 of this Supplemental Indenture, in the event that there is a conflict or inconsistency between the Original Indenture and this Supplemental Indenture, the provisions of this Supplemental Indenture shall control.
(e) The Company hereby covenants to notify the Trustee if the Covenant Reversion Date shall occur on any date prior to October 31, 2005 within 24 hours after such occurrence.
(f) Nothing contained in this Supplemental Indenture shall affect any statutory obligation of the Company or the Guarantors under the Exchange Act or the TIA.
Section 4.2. Trust Indenture Act Controls.
If any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this Supplemental Indenture by the TIA, the required provision shall control. If any provision of this Supplemental Indenture modifies any TIA provision that may be so modified, such TIA provision shall be deemed to apply to this Supplemental Indenture as so modified. If any provision of this Supplemental Indenture excludes any TIA provision that may be so excluded, such TIA provision shall be excluded from this Supplemental Indenture.
Section 4.3. Governing Law.
This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
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Section 4.4. 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.
Section 4.5. Successors.
All agreements of the Company and the Guarantors in this Supplemental Indenture shall bind their respective successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
Section 4.6. Severability.
In case any provision in this 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.
Section 4.7. Effect of Headings.
The headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 4.8. 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 Company and the Guarantors.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| SAKS INCORPORATED | ||
| By: |
/s/ C. Xxx Xxxxxx, Xx. | |
| C. Xxx Xxxxxx, Xx. | ||
| Senior Vice President and Treasurer | ||
| GUARANTORS: | ||
| XXXXXX XXXXX HOLDINGS, INC. | ||
| HERBERGER’S DEPARTMENT STORES, LLC | ||
| XXXXXXX LEASING LLC | ||
| XXXXX’X OF ALABAMA, INC. | ||
| XXXXX’X STORES SERVICES, INC. | ||
| XXXXX’X, INC. | ||
| MCRIL, LLC | ||
| MERCHANDISE CREDIT, LLC | ||
| NEW YORK CITY SAKS, LLC | ||
| PARISIAN, INC. | ||
| SAKS & COMPANY | ||
| SAKS DIRECT, INC. | ||
| SAKS DISTRIBUTION CENTERS, INC. | ||
| SAKS FIFTH AVENUE DISTRIBUTION COMPANY | ||
| SAKS FIFTH AVENUE OF TEXAS, INC. | ||
| SAKS FIFTH AVENUE TEXAS, L.P. | ||
| SAKS FIFTH AVENUE, INC. | ||
| SAKS HOLDINGS, INC. | ||
| SAKS WHOLESALERS, INC. | ||
| SCCA, LLC | ||
| SCCA STORE HOLDINGS, INC. | ||
| SCIL, LLC | ||
| SCIL STORE HOLDINGS, INC. | ||
| SFAILA, LLC | ||
| TEX SFA, INC. | ||
| By: |
/s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx | ||
| Executive Vice President | ||
| XXXXX’X STORES PARTNERSHIP | ||
| By: | XxXxx’x, Inc., its Managing General Partner | |
| By: |
/s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx | ||
| Executive Vice President | ||
| PMIN GENERAL PARTNERSHIP | ||
| By: | Parisian, Inc., its Managing Partner | |
| By: |
/s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx | ||
| Executive Vice President | ||
| THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee | ||
| By: |
/s/ Xxxxxxxxx X. Xxxxxx | |
| Name: |
Xxxxxxxxx X. Xxxxxx | |
| Title: |
Vice President | |
