__________________________________________________________________
SUPPLEMENTAL INDENTURE
Dated as of September 17, 1998
Between
SAKS HOLDINGS, INC., as Issuer
and
BANKERS TRUST COMPANY, as Trustee
__________________________________________________________________
SUPPLEMENTAL INDENTURE
This Supplemental Indenture (this "Supplemental Indenture") is
dated as of September 17, 1998 between SAKS HOLDINGS, INC., a
corporation duly organized and existing under the laws of the State
of Delaware (the "Company"), and BANKERS TRUST COMPANY, as trustee
(the "Trustee"). All capitalized terms used herein but not defined
shall have the meanings set forth in the Indenture (as defined
herein).
RECITALS
The Company has issued its 5 1/2% Convertible Subordinated Notes
due September 15, 2006 (the "Securities") under the Indenture dated
as of September 25, 1996 (as amended, supplemented or otherwise
modified through the date hereof, the "Indenture") between the
Company and the Trustee.
Pursuant to the Agreement and Plan of Merger dated as of July
4, 1998 (as amended, supplemented or otherwise modified from time
to time, the "Merger Agreement") among the Company, Saks
Incorporated, a Tennessee corporation ("Saks Incorporated"), and
Fifth Merger Corporation, a Delaware corporation and a wholly owned
subsidiary of Saks Incorporated (the "Merger Sub"), the Merger Sub
merged with and into the Company, with the Company being the
surviving corporation (the "Merger").
As a consequence of the Merger, each share of the Company's
common stock, par value $0.01 per share ("Company Common Stock"),
issued and outstanding immediately prior to the Effective Time (as
defined in the Merger Agreement), was converted into 0.82 shares of
common stock, par value $0.10 per share, of Saks Incorporated
("Saks Common Stock") as of the Effective Time.
Following the consummation of the Merger, the Company became,
and continues to be, a wholly owned subsidiary of Saks
Incorporated.
Section 901 of the Indenture provides that, without the
consent of any Holders, the Company and the Trustee may enter into
one or more indentures supplemental to the Indenture to, among
other things, make provision with respect to the conversion rights
of Holders pursuant to the requirements of Section 1311 of the
Indenture and the repurchase obligations of the Company pursuant to
the requirements of Section 1405 of the Indenture.
The Company has requested that the Trustee join in the
execution and delivery of this Supplemental Indenture to comply
with Sections 1311 and 1405 of the Indenture.
All actions on the part of the Company and the Trustee
necessary to authorize the execution, delivery and performance of
this Supplemental Indenture and the Indenture, as supplemented
hereby, have been duly taken.
In consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is mutually covenanted and agreed for the
equal and ratable benefit of all Holders of the Securities as
follows:
ARTICLE ONE
AMENDMENTS OF THE INDENTURE
SECTION 1.1 Amendments of the Indenture Generally and
Article One. (a) The Indenture is hereby amended from and after
the Effective Time by replacing each reference in the Indenture to
"Company's Common Stock" and "Common Stock of the Company" with a
reference to "Common Stock."
(b) Article One of the Indenture is hereby amended as
follows:
(i) The definition of "Board of Directors" is amended by
adding the following at the end thereof:
"From and after the Effective Time, for purposes of Articles
One, Thirteen and Fourteen hereof, the term Company in this
definition shall be deemed to mean Saks Incorporated."
(ii) The definition of "Board Resolution" is amended by
adding the following at the end thereof:
"From and after the Effective Time, for purposes of Articles
One, Thirteen and Fourteen hereof, the term Company in this
definition shall be deemed to mean Saks Incorporated."
(iii) The definition of "Common Stock" is amended by
adding the following at the end thereof:
"From and after the Effective Time, 'Common Stock' means the
common stock, par value $0.10 per share, of Saks Incorporated
authorized at the Effective Time. Subject to the provisions
of Section 1311, shares issuable on conversion or repurchase
of Securities shall include only shares of Common Stock or
shares of any class or classes of common stock resulting from
any reclassification or reclassifications thereof; provided,
however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of
Securities shall include shares of all such classes, and the
shares of each such class then so issuable shall be
substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes
resulting from all such reclassifications."
(iv) The definition of "Subsidiary" is amended by adding
the following new sentence at the end thereof:
"From and after the Effective Time, for purposes of Articles
One, Thirteen and Fourteen hereof, the term Company in this
definition shall be deemed to mean Saks Incorporated."
(v) The following definitions shall be added to Section
101 of the Indenture in appropriate alphabetical order:
"'Effective Time' shall have the meaning set forth in the
Merger Agreement."
"'Fifth Merger Corporation' shall mean Fifth Merger
Corporation, a Delaware corporation and a wholly-owned
subsidiary of Saks Incorporated."
"'Merger Agreement' shall mean the Agreement and Plan of
Merger dated as of July 4, 1998 among the Company, Fifth
Merger Corporation and Saks Incorporated (formerly known as
Xxxxxxxx'x, Inc.), pursuant to which Fifth Merger Corporation
merged with and into the Company, with the Company being the
surviving corporation, as such Agreement and Plan of Merger
may be amended, supplemented or otherwise modified from time
to time."
"'Saks Incorporated' shall mean Saks Incorporated, a
Tennessee corporation, and its successors."
ARTICLE TWO
SECTION 2.2 Amendments of Article Two. Section 2.03 of the
Indenture is hereby amended by replacing the phrase "at an initial
Conversion Rate of 24.0601 shares of Common Stock for each $1,000
principal amount of Securities (or at the then current adjusted
Conversion Rate if an adjustment has been made as provided in the
Indenture)" in the first proviso of the second paragraph thereof
with the following:
"at an initial Conversion Rate of 24.0601 shares of common
stock of the Company for each $1,000 principal amount of
Securities (or, subject to adjustments for events subsequent
to the Effective Time (which adjustments shall be as nearly
equivalent as practicable to the adjustments set forth in
Article Thirteen of the Indenture), the Holder of each
Security Outstanding following the Effective Time shall have
the right, during the period such Security shall be
convertible as specified in Section 1301 of the Indenture, to
convert such Security only into the number of shares of Common
Stock receivable upon the Effective Time by a holder of the
number of shares of the Company's common stock into which such
Security might have been converted immediately prior to the
Effective Time."
SECTION 2.3 Amendment and Restatement of Article Thirteen.
Article Thirteen of the Indenture shall be deleted in its entirety,
and the following shall be inserted in lieu thereof:
ARTICLE THIRTEEN
Conversion of Securities
SECTION 1301. Conversion Privilege and Conversion Rate.
Subject to and upon compliance with the
provisions of this Article Thirteen, at the option of
the Holder thereof, any Security may be converted at
any time into fully paid and non-assessable shares
(calculated as to each conversion to the nearest
1/100th of a share) of Common Stock at the Conversion
Rate, determined as hereinafter provided, in effect at
the time of conversion. Such conversion right shall
expire at the close of business on September 15, 2006,
subject, in the case of conversion of any Global
Security, to any Applicable Procedures. In case a
Security or portion thereof is called for redemption
at the election of the Company or the Holder thereof
exercises his right to require the Company to
repurchase a Security or portion thereof, such
conversion right in respect of such Security, shall
expire (a) at the close of business on the Redemption
Date, in the case of a Security called for redemption,
and (b) at the close of business on the Repurchase
Date, in the case of a Security tendered for
repurchase, in each case unless the Company defaults
in making the payment due upon redemption or
repurchase, as the case may be, and in each case
subject as aforesaid to any Applicable Procedures with
respect to any Global Security.
Prior to the Effective Time the rate at which
shares of Common Stock would have been delivered upon
conversion was initially 24.0601 shares of Common
Stock for each $1,000 principal amount of Securities
(subject to adjustment as provided in Article Thirteen
to the Indenture, as it existed prior to the Effective
Time). From and after the Effective Time, the holder
of each Outstanding Security shall have the right
during the period such Security shall be convertible
as specified in the preceding paragraph of this
Section 1301, to convert such Security into the number
of shares of Common Stock that a holder of shares of
the Company's common stock would have received in
connection with the Merger if such holder held the
number of shares of the Company's common stock into
which such Security was convertible immediately prior
to the Effective Time. The number of shares of Common
Stock such holder would have received for each $1,000
principal amount of Securities converted shall be
referred to herein as the "Conversion Rate". The
Conversion Rate shall be extended to the sixth decimal
place. The Conversion Rate shall be adjusted in
certain instances as provided in this Article
Thirteen.
SECTION 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege,
the Holder of any Security to be converted shall
surrender such Security, duly endorsed or assigned to
the Company or in blank, at any office or agency of
the Company maintained for that purpose pursuant to
Section 1002 (any city in which any Conversion Agent
is located being called herein a "Place of
Conversion"), accompanied by a duly signed conversion
notice substantially in the form set forth in Section
205 stating that the Holder elects to convert such
Security or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be
converted. Each Security surrendered for conversion
(in whole or in part) during the period from the close
of business on any Regular Record Date next preceding
any Interest Payment Date to the opening of business
on such Interest Payment Date shall (except in the
case of any Security or portion thereof which has been
called for redemption on a Redemption Date, or which
is repurchasable on a Repurchase Date, occurring, in
either case, within such period) be accompanied by
payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on
the principal amount of such Security (or part
thereof, as the case may be) being surrendered for
conversion. The interest so payable on such Interest
Payment Date with respect to any Security (or portion
thereof, if applicable) which has been called for
redemption on a Redemption Date, or is repurchasable
on a Repurchase Date, occurring, in either case,
during the period from the close of business on any
Regular Record Date next preceding any Interest
Payment Date to the opening of business on such
Interest Payment Date, which Security (or portion
thereof, if applicable) is surrendered for conversion
during such period, shall be paid to the Holder of
such Security being converted in an amount equal to
the interest that would have been payable on such
Security if such Security had ben converted as of the
close of business on such Interest Payment Date. The
interest so payable on such Interest Payment Date in
respect of any Security (or portion thereof, as the
case may be) which has not been called for redemption
on a Redemption Date, or is not eligible for
repurchase on a Repurchase Date, occurring, in either
case, during the period from the close of business on
any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such
Interest Payment Date, which Security (or portion
thereof, as the case may be) is surrendered for
conversion during such period, shall be paid to the
Holder of such Security as of such Regular Record
Date. Interest payable in respect of any Security
surrendered for conversion on or after an Interest
Payment Date shall be paid to the Holder of such
Security as of the next preceding Regular Record Date,
notwithstanding the exercise of the right of
conversion. Except as provided in this paragraph and
subject to the last paragraph of Section 307, no cash
payment or adjustment shall be made upon any
conversion on account of any interest accrued from the
Interest Payment Date next preceding the conversion
date, in respect of any Security (or part thereof, as
the case may be) surrendered for conversion, or on
account of any dividends on the Common Stock issued
upon conversion. The Company's delivery to the Holder
of the number of shares of Common Stock (and cash in
lieu of fractions thereof, as provided in this
Indenture) into which a Security is convertible will
be deemed to satisfy the Company's obligation to pay
the principal amount of the Security.
Securities shall be deemed to have been converted
immediately prior to the close of business on the day
of surrender of such Securities for conversion in
accordance with the foregoing provisions, and at such
time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the
record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the
conversion date, the Company shall issue (or cause to
be issued) and deliver to the Trustee, for delivery to
the Holder, a certificate or certificates for the
number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any
fraction of a share, as provided in Section 1303.
In the case of any Security which is converted in
part only, upon such conversion the Company shall
execute and the Trustee shall authenticate and deliver
to the Holder thereof, at the expense of the Company,
a new Security or Securities of authorized
denominations in an aggregate principal amount equal
to the unconverted portion of the principal amount of
such Security. A Security may be converted in part,
but only if the principal amount of such Security to
be converted is any integral multiple of $1,000 and
the principal amount of such security to remain
outstanding after such conversion is equal to $1,000
or any integral multiple of $1,000 in excess thereof.
SECTION 1303. Fractions of Shares.
No fractional shares of Common Stock shall be
issued upon conversion of any Security or Securities.
If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the
aggregate principal amount of the Securities (or
specified portions thereof) so surrendered. Instead
of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), the
Company shall calculate and pay a cash adjustment in
respect of such fraction (calculated to the nearest
1/100th of a share) in an amount equal to the same
fraction of the Closing Price Per Share at the close
of business on the day of conversion.
SECTION 1304. Adjustment of Conversion Rate.
The Conversion Rate shall be subject to
adjustments from time to time as follows:
(1) In case Saks Incorporated shall pay or
make a dividend or other distribution on any class of
its capital stock payable in shares of Common Stock,
the Conversion Rate in effect at the opening of
business on the day following the date fixed for the
determination of shareholders entitled to receive such
dividend or other distribution shall be increased by
dividing such Conversion Rate by a fraction of which
the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date
fixed for such determination and the denominator shall
be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribution, such increase to become effective
immediately after the opening of business on the day
following the date fixed for such determination. For
the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall
not include shares held in Saks Incorporated's
treasury but shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of
shares of Common Stock. Saks Incorporated will not
pay any dividend or make any distribution on shares of
Common Stock held in its treasury.
(2) In case Saks Incorporated shall issue
rights, options or warrants to all holders of its
Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share
less than the current market price per share
(determined as provided in paragraph (8) of this
Section 1304) of the Common Stock on the date fixed
for the determination of stockholders entitled to
receive such rights, options or warrants, the
Conversion Rate in effect at the opening of business
on the day following the date fixed for such
determination shall be increased by dividing such
Conversion Rate by a fraction of which the numerator
shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed
for such determination plus the number of shares of
Common Stock which the aggregate of the offering price
of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at
such current market price and the denominator shall be
the number of shares of Common Stock outstanding at
the close of business on the date fixed for such
determination plus the number of shares of Common
Stock so offered for subscription or purchase, such
increase to become effective immediately after the
opening of business on the day following the date
fixed for such determination. For the purposes of this
paragraph (2), the number of shares of Common Stock at
any time outstanding shall not include shares held in
Saks Incorporated's treasury but shall include shares
issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock. Saks
Incorporated will not issue any rights, options or
warrants in respect of shares of Common Stock held in
its treasury.
(3) In case outstanding shares of Common
Stock shall be subdivided into a greater number of
shares of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the
day upon which such subdivision becomes effective
shall be proportionately increased, and, conversely,
in case outstanding shares of Common Stock shall each
be combined into a smaller number of shares of Common
Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such
combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may
be, to become effective immediately after the opening
of business on the day following the day upon which
such subdivision or combination becomes effective.
(4) In case Saks Incorporated shall, by
dividend or otherwise, distribute to all holders of
its Common Stock evidences of its indebtedness, shares
of any class of capital stock, or other property
(including securities, but excluding (i) any rights,
options or warrants referred to in paragraph (2) of
this Section, (ii) any dividend or distribution paid
exclusively in cash, (iii) any dividend or
distribution referred to in paragraph (1) of this
Section and (iv) any merger or consolidation to which
Section 1311 applies), the Conversion Rate shall be
adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate in effect
immediately prior to the close of business on the date
fixed for the determination of stockholders entitled
to receive such distribution by a fraction of which
the numerator shall be the current market price per
share (determined as provided in paragraph (8) of this
Section 1304) of the Common Stock on the date fixed
for such determination (the "Reference Date") less the
then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution filed with the
Trustee) on the Reference Date of the portion of the
assets, shares or evidences of indebtedness so
distributed applicable to one share of Common Stock
and the denominator shall be the current market price
per share of the Common Stock on the Reference Date,
such adjustment to become effective immediately prior
to the opening of business on the day following the
Reference Date.
(5) In case Saks Incorporated shall, by
dividend or otherwise, distribute to all holders of
its Common Stock cash (excluding any cash that is
distributed as part of a distribution referred to
paragraph (4) of this Section) in an aggregate amount
that, combined together with (I) the aggregate amount
of any other cash distributions to all holders of its
Common Stock made exclusively in cash within the 12
months preceding the date of payment of such
distribution and in respect of which no adjustment
pursuant to this paragraph (5) has been made and (II)
the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) of consideration payable in respect
of any tender offer by Saks Incorporated or any of its
subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the
date of payment of such distribution and in respect of
which no adjustment pursuant to paragraph (6) of this
Section 1304 has been made (the "combined cash and
tender amount"), exceeds 10% of the product of the
current market price per share (determined as provided
in paragraph (8) of this Section 1304) of the Common
Stock on the date for the determination of holders of
shares of Common Stock entitled to receive such
distribution times the number of shares of Common
Stock outstanding on such date (the "aggregate current
market price"), then, and in each such case,
immediately after the close of business on such date
for determination, the Conversion Rate shall be
adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate in effect
immediately prior to the close of business on the date
fixed for determination of the stockholders entitled
to receive such distribution by a fraction (i) the
numerator of which shall be equal to the current
market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on
the date fixed for such determination less a amount
equal to the quotient of (x) the excess of such
combined cash and tender amount over 10% of such
aggregate current market price divided by (y) the
number of shares of Common Stock outstanding on such
date for determination and (ii) the denominator of
which shall be equal to the current market price per
share (determined as provided in paragraph (8) of this
Section 1304) of the Common Stock on such date for
determination.
(6) In case a tender offer made by Saks
Incorporated or any Subsidiary for all or any portion
of the Common Stock shall expire and such tender offer
or exchange (as amended upon the expiration thereof)
shall require the payment to stockholders (based on
the acceptance (up to any maximum specified in the
terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having
a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution) that combined
together with (I) the aggregate of the cash plus the
fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration
of such tender or exchange offer, of consideration
payable in respect of any other tender or exchange
offer by Saks Incorporated or any Subsidiary for all
or any portion of the Common Stock expiring within the
12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment
pursuant to this paragraph (6) has been made and (II)
the aggregate amount of any cash distributions to all
holders of the Common Stock within 12 months
preceding the expiration of such tender or exchange
offer and in respect of which no adjustment pursuant
to paragraph (5) of this Section has been made (the
"combined tender and cash amount") exceeds 10% of the
product of the current market price per share of the
Common Stock (determined as provided in paragraph (8)
of this Section 1304) as of the last time (the
"Expiration Time") tenders or exchanges could have
been made pursuant to such tender or exchange offer
(as it may be amended) times the number of shares of
Common Stock outstanding (including any tendered or
exchanged shares) as of the Expiration Time, then, and
in each such case, immediately prior to the opening of
business on the day after the date of the Expiration
Time, the Conversion Rate shall be adjusted so that
the same shall xxxx the rate determined by dividing
the Conversion Rate immediately prior to close of
business on the date of the Expiration Time by a
fraction (i) the numerator of which shall be equal to
(A) the product of (I) the current market price per
share of the Common Stock (determined as provided in
paragraph (8) of this Section 1304) on the date of the
Expiration Time multiplied by (II) the number of
shares of Common Stock outstanding (including any
tendered or exchanged shares) on the date of the
Expiration Time less (B) the combined tender and cash
amount, and (ii) the denominator of which shall be
equal to the product of (A) the current market price
per share of the Common Stock (determined as provided
in paragraph (8) of this Section 1304) as of the
Expiration Time multiplied by (B) the number of shares
of Common Stock outstanding (including any tendered or
exchanged shares) as of the Expiration Time less the
number of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares
deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares").
(7) The reclassification of Common Stock
into securities other than Common Stock (other than
any reclassification upon a consolidation or merger to
which Section 1311 applies) shall be deemed to involve
(a) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the
effective date of such reclassification shall be
deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution"
and "the date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (b) a
subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding
immediately prior to such reclassification into the
number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day
upon which such combination becomes effective", as the
case may be, and "the day upon which such subdivision
or combination becomes effective" within the meaning
of paragraph (3) of this Section 1304).
(8) For the purpose of any computation
under paragraphs (2), (4), (5) or (6) of this Section
1304, the current market price per share of Common
Stock on any date shall be calculated by Saks
Incorporated and be deemed to be the average of the
daily Closing Prices Per Share for the five
consecutive Trading Days selected by Saks Incorporated
commencing not more than 10 Trading Days before, and
ending not later than, the earlier of the day in
question and the day before the "ex" date with respect
to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or
distribution, means the first date on which the Common
Stock trades regular way in the applicable securities
market or on the applicable securities exchange
without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Rate
shall be required unless such adjustment (plus any
adjustments not previously made by reason of this
paragraph (9)) would require an increase or decrease
of at least one percent in such rate; provided,
however, that any adjustments which by reason of this
paragraph (9) are not required to be made shall be
carried forward and taken into account in any
subsequent adjustment. All calculations under this
Article shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in
the Conversion Rate, for the remaining term of the
Securities or any shorter term, in addition to these
required by paragraphs (1), (2), (3), (4), (5) and (6)
of this Section 1304, as it considers to be advisable
in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any
dividend or distribution of stock or issuance of
rights or warrants to purchase or subscribe for stock
or from any event treated as such for income tax
purposes. The Company shall have the power to resolve
any ambiguity or correct any error in this paragraph
(10) and its actions in so doing shall, absent
manifest error, be final and conclusive.
SECTION 1305. Notice of Adjustments of Conversion
Rate.
Whenever the Conversion Rate is adjusted as
herein provided:
(1) the Company shall compute the adjusted
Conversion Rate in accordance with Section 1304 and
shall prepare a certificate signed by the principal
accounting or financial officer of the Company setting
forth the adjusted Conversion Rate and showing in
reasonable detail the facts upon which such adjustment
is based, and such certificate shall promptly be filed
with the Trustee and with each Conversion Agent; and
(2) a notice stating that the Conversion
Rate has been adjusted and setting forth the adjusted
Conversion Rate shall forthwith be prepared, and as
soon as practicable after it is prepared, such notice
shall be provided by the Company, or the Company shall
cause such notice to be provided by the Trustee to,
all Holders in accordance with Section 106.
Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any
such certificate or the information and calculations
contained therein, except to exhibit the same to any
Holder of Securities desiring inspection thereof at
its office during normal business hours.
SECTION 1306. Notice of Certain Corporate Action.
In case:
(a) Saks Incorporated shall declare a
dividend (or any other distribution) on its Common
Stock payable (i) otherwise than exclusively in cash
or (ii) exclusively in cash in an amount that would
require any adjustment pursuant to Section 1304; or
(b) Saks Incorporated shall authorize the
granting to the holders of its Common Stock generally
of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of the Common
Stock, or of any consolidation, merger or share
exchange to which Saks Incorporated is a party and for
which approval of any stockholders of Saks
Incorporated is required, or of the conveyance, sale,
transfer or lease of all or substantially all of the
assets of Saks Incorporated; or
(d) of the voluntary or involuntary
dissolution, liquidation or winding up of Saks
Incorporated; or
(e) Saks Incorporated or any Subsidiary
shall commence a tender offer for all or a portion of
the outstanding shares of Common Stock (or shall amend
any such tender offer);
then the Company shall cause to be filed, or the
Company shall cause the Trustee to cause to be filed,
at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 1002, and
the Company shall cause to be provided, or the Company
shall cause the Trustee to cause to be provided, to
all Holders in accordance with Section 106, at least
20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record,
expiration or effective date hereinafter specified, a
notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution,
rights, options or warrants, or, if a record is not to
be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be
determined, (y) the date on which the right to make
tenders under such tender offer expires or (z) the
date on which such reclassification, consolidation,
merger, conveyance, transfer, sale, lease,
dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is
expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock
for securities, cash or other property deliverable
upon such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give
such notice or the notice referred to in the following
paragraph nor any defect therein shall affect the
legality or validity of the proceedings described in
clauses (a) through (e) of this Section 1306. If at
the time the Trustee shall not be a Conversion Agent,
a copy of such notice shall also forthwith be filed by
the Company with the Trustee.
The preceding paragraph to the contrary
notwithstanding, the Company shall cause to be filed,
or the Company shall cause the Trustee to cause to be
filed, at each office or agency maintained for the
purpose of conversion of Securities pursuant to
Section 1002, and the Company shall cause to be
provided, or the Company shall cause the Trustee to
cause to be provided, to all Holders in accordance
with Section 106, notice of any tender offer by Saks
Incorporated or any Subsidiary for all or any portion
of the Common Stock on or after the time that such
notice of tender offer is provided to the public
generally.
SECTION 1307. Saks Incorporated to Reserve Common
Stock.
Saks Incorporated shall at all times reserve and
keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the
full number of shares of Common Stock then issuable
upon the conversion of all Outstanding Securities.
SECTION 1308. Taxes on Conversions.
Except as provided in the next sentence, the
Company will pay any and all taxes and duties that may
be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not however, be
required to pay any tax or duty which may be payable
in respect of (i) income of the Holder or (ii) any
transfer involved in the issue and delivery of shares
of Common Stock in a name other than that of the
Holder of the Security or Securities to be converted,
and no such issue or delivery shall be made unless and
until the Person requesting such issue has paid to the
Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that
such tax or duty has been paid.
SECTION 1309. Covenant as to Common Stock.
The Company agrees that all shares of Common
Stock which may be delivered upon conversion of
Securities will be newly issued shares and, upon such
delivery, will have been duly authorized and validly
issued and will be fully paid and nonassessable and,
except as provided in Section 1308, the Company will
pay all taxes, liens and charges with respect to the
issue thereof.
SECTION 1310. Cancellation of Converted Securities.
All Securities delivered for conversion
shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose
of the same as provided in Section 309.
SECTION 1311. Provision in Case of Consolidation,
Merger or Sale of Assets.
In case of any consolidation or merger of
Saks Incorporated with or into any other Person, any
merger of another Person with or into Saks
Incorporated (other than a merger which does not
result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock)
or any conveyance, sale, transfer or lease of all or
substantially all of the assets of Saks Incorporated,
the Person formed by such consolidation or resulting
from such merger or which acquires such assets, as the
case may be, shall execute and deliver to the Trustee
a supplemental indenture providing that the Holder of
each Security then Outstanding shall have the right
thereafter, during the period such Security shall be
convertible as specified in Section 1301, to convert
such Security only into the kind and amount of
securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer
or lease by a holder of the number of shares of Common
Stock into which such Security might have been
converted immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease, assuming
such holder of Common Stock (i) is not a Person with
which Saks Incorporated consolidated or merged with or
into or which merged into or with Saks Incorporated or
to which such conveyance, sale, transfer or lease was
made, as the case may be ("Constituent Person"), or an
Affiliate of a Constituent Person and (ii) failed to
exercise his rights of election, if any, as to the
kind or amount of securities, cash and other property
receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (provided that if
the kind or amount of securities, cash and other
property receivable upon such consolidation, merger,
conveyance, sale, transfer, or lease is not the same
for each share of Common Stock held immediately prior
to such consolidation, merger, conveyance, sale,
transfer or lease by others than a Constituent Person
or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised
("Non-electing Share"), then for the purpose of this
Section 1311 the kind and amount of securities, cash
and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease by the
holders of each Non-electing Share shall be deemed to
be the kind and amount so receivable per share by a
plurality of the Non-electing Shares). Such
supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly
equivalent as may be practicable to the adjustments
provided for in this Article. The above provisions of
this Section 1311 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers
or leases. Notice of the execution of such a
supplemental indenture shall be given by the Company,
or the Company shall cause the Trustee to give such
notice, to the Holder of each Security as provided in
Section 106 promptly upon such execution.
Neither the Trustee, any Paying Agent nor any
Conversion Agent shall be under any responsibility to
determine the correctness of any provisions contained
in any such supplemental indenture relating either to
the kind or amount of shares of stock or other
securities or property or cash receivable by Holders
of Securities upon the conversion of their Securities
after any such consolidation, merger, conveyance,
transfer, sale or lease or to any such adjustment, but
may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in
relying upon, an opinion of Counsel with respect
thereto, which the Company shall cause to be furnished
to the Trustee upon request.
SECTION 1312. Responsibility of Trustee for
Conversion Provisions.
The Trustee, subject to the provisions of Article
Six, and any Conversion Agent shall not at any time be
under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which
may require any adjustment of the Conversion Rate, or
with respect to the nature or extent of any such
adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture
provided to be employed, in making the same, or
whether a supplemental indenture need be entered into.
Neither the Trustee, subject to the provisions of
Article Six, nor any Conversion Agent shall be
accountable with respect to the validity or value (or
the kind or amount) of any Common Stock, or of any
other securities or property or cash, which may at any
time be issued or delivered upon the conversion of any
Security; and it or they do not make any
representation with respect thereto. Neither the
Trustee, subject to the provisions of Article Six, nor
any Conversion Agent shall be responsible for any
failure of the Company to make or calculate any cash
payment or to issue, transfer or deliver any shares of
Common Stock or share certificates or other securities
or property or cash upon the surrender of any Security
for the purpose of conversion; and the Trustee,
subject to the provisions of Article Six, and any
Conversion Agent shall not be responsible for any
failure of the Company to comply with any of the
covenants of the Company contained in this Article.
SECTION 2.4 Amendment and Restatement of Article
Fourteen. Article Fourteen of the Indenture shall be deleted
in its entirety, and the following shall be inserted in lieu
thereof:
ARTICLE FOURTEEN
Repurchase of Securities at the Option of the
Holder Upon a Change of Control
SECTION 1401. Right to Require Repurchase.
In the event that a Change of Control (as
hereinafter defined) shall occur, then each Holder
shall have the right, at the Holder's option, but
subject to the provisions of Section 1402, to require
the Company to repurchase, and upon the exercise of
such right the Company shall repurchase, all of such
Holder's Securities, or any portion of the principal
amount thereof that is equal to $1,000 or any integral
multiple of $1,000 in excess thereof, on the date (the
"Repurchase Date") that is 45 days after the date of
the Company Notice (as defined in Section 1403) at a
purchase price equal to 100% of the principal amount
of the Securities to be repurchased plus interest
accrued to the, Repurchase Date (the "Repurchase
Price"); provided, however, that installments of
interest on Securities whose Stated Maturity is on or
prior to the Repurchase Date shall be payable to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of
business on the relevant Record Date according to
their terms and the provisions of Section 307. Such
right to require the repurchase of the Securities
shall not continue after a discharge of the Company
from its obligations with respect to the Securities in
accordance with Article Four, unless a Change of
Control shall have occurred prior to such discharge.
At the option of the Company, the Repurchase Price may
be paid (i) subject to the provisions of Section
1402(B) in cash, or (ii) subject to the fulfillment by
the Company of the conditions set forth in Section
1402(A), by delivery of shares of Common Stock having
a fair market value equal to the Repurchase Price;
provided, however, that failure of the Company to pay
the Repurchase Price on the Repurchase Date either in
cash or by delivery of shares of Common Stock shall
constitute an Event of Default for purposes of Section
501(1) hereof notwithstanding the Company's inability
to comply with the provisions of or satisfy any
conditions set forth in Section 1402. Whenever in this
Indenture (including Sections 202, 301, 501(l) and
508) there is a reference, in any context, to the
principal of any Security as of any time, such
reference shall be deemed to include reference to the
Repurchase Price payable in respect of such Security
to the extent that such Repurchase Price is, was or
would be so payable at such time, and express mention
of the Repurchase Price in any provision of this
Indenture shall not be construed as excluding the
Repurchase Price in those provisions of this Indenture
when such express mention is not made; provided,
however, that for the purposes of Article Twelve such
reference shall be deemed to include reference to the
Repurchase Price only to the extent the Repurchase
Price is payable in cash.
SECTION 1402. Conditions to the Company's Election to
Pay the Repurchase
Price in Common Stock or Cash.
(A) The Company may elect to pay the Repurchase
Price by delivery of shares of Common Stock pursuant
to Section 1401 if and only if the following
conditions shall have been satisfied:
(i) The shares of Common Stock deliverable
in payment of the Repurchase Price shall have a fair
market value as of the Repurchase Date of not less
than the Repurchase Price. For purposes of this
Section 1402, the fair market value of shares of
Common Stock shall be determined by the Company and
shall be equal to 95% of the average of the Closing
Prices Per Share for the five consecutive Trading Days
ending on and including the third Trading Day
immediately preceding the Repurchase Date;
(ii) The shares of Common Stock deliverable
in payment of the Repurchase Price are, or shall have
been, approved for quotation on the NASDAQ National
Market or are, or shall have been, listed on a
national securities exchange, in either case, prior to
the Repurchase Date; and
(iii) All shares of Common Stock deliverable
in payment of the Repurchase Price shall be issued out
of Saks Incorporated's authorized but unissued Common
Stock and, will upon issue, be duly and validly issued
and fully paid and nonassessable and free of any
preemptive rights.
If all of the conditions set forth in this
Section 1402(A) are not satisfied in accordance with
the terms thereof, the Repurchase Price shall be paid
by the Company only in cash.
(B) The Company may elect to pay the Repurchase
Price in cash if and only if on or prior to the
Repurchase Date there shall not remain any amounts
outstanding under the Amended and Restated Credit
Agreement and all Commitments (as defined therein)
shall have terminated or expired.
SECTION 1403. Notices; Method of Exercising
Repurchase Right, Etc.
(a) Unless the Company shall have
theretofore called for redemption all of the
Outstanding Securities or unless all of the
Outstanding Securities shall have theretofore been
converted in accordance with Article Thirteen, on or
before the 30th day after the occurrence of a Change
of Control, the Company or, at the request and expense
of the Company on or before the 15th day after such
occurrence, the Trustee, shall give to all Holders, in
the manner provided in Section 106, notice (the
"Company Notice") of the occurrence of the Change of
Control and of the repurchase right set forth herein
arising as a result thereof. The Company shall also
deliver a copy of such notice of a repurchase right to
the Trustee.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right
must be exercised,
(3) the Repurchase Price, and whether the
Repurchase Price shall be paid by the Company in cash or by
delivery of shares of Common Stock,
(4) a description of the procedure which a
Holder must follow to exercise a repurchase right, and
the place or places where such Securities are to be
surrendered for payment of the Repurchase Price and
accrued interest, if any,
(5) that on the Repurchase Date the
Repurchase Price, including accrued interest, if any,
will become due and payable upon each such Security
designated by the Holder to be repurchased, and that
interest thereon shall cease to accrue on and after
said date,
(6) the Conversion Rate then in effect, the
date on which the right to convert the principal
amount of the Securities to be repurchased will
terminate and the place or places where such
Securities may be surrendered for conversion, and
(7) the place or places that the form of
certificate required by Section 203 shall be
delivered, and the form of such certificate.
No failure of the Company to give the foregoing
notices or defect therein shall limit any Holder's
right to exercise a repurchase right or affect the
validity of the proceedings for the repurchase of
Securities.
If any of the foregoing provisions or other
provisions of this Article Fourteen are inconsistent
with applicable law, such law shall govern.
(b) To exercise a repurchase right, a
Holder shall deliver to the Trustee or any Paying
Agent on or before the 30th day after the date of the
Company Notice (i) written notice of the Holder's
exercise of such right, which notice shall set forth
the name of the Holder, the principal amount of the
Securities to be repurchased (and, if any Security is
to be repurchased in part, the portion of the
principal amount thereof to be repurchased and the
name of the Person in which the portion thereof to
remain Outstanding after such repurchase is to be
registered) and a statement that an election to
exercise the repurchase right is being made thereby,
and in the event that the Repurchase Price shall be
paid in shares of Common Stock, the name or names
(with addresses) in which the certificate or
certificates for shares of Common Stock shall be
issued, and (ii) the Securities with respect to which
the repurchase right is being exercised. Such written
notice shall be irrevocable, except that the right of
the Holder to convert the Securities with respect to
which the repurchase right is being exercised shall
continue until the close of business on the Repurchase
Date.
(c) In the event a repurchase right shall
be exercised in accordance with the terms hereof, the
Company shall pay or cause to be paid to the Trustee
or the Paying Agent the Repurchase Price in cash or
shares of Common Stock, as provided above, for payment
to the Holder on the Repurchase Date or, if shares of
Common Stock are to be paid, as promptly after the
Repurchase Date as practicable, together with accrued
and unpaid interest to the Repurchase Date payable
with respect to the Securities as to which the
purchase right has been exercised; provided, however,
that installments of interest that mature on or prior
to the Repurchase Date shall be payable in cash to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of
business on the relevant Regular Record Date according
to the terms and provisions of Section 307.
(d) If any Security (or portion thereof)
surrendered for repurchase shall not be so paid on the
Repurchase Date, the principal amount of such Security
(or portion thereof, as the case may be) shall, until
paid, bear interest to the extent permitted by
applicable law from the Repurchase Date at the rate of
5 1/2% per annum, and each Security shall remain
convertible into Common Stock until the principal of
such Security (or portion thereof, as the case may be)
shall have been paid or duly provided for.
(e) Any security which is to be repurchased
only in part shall be surrendered to the Trustee
(with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without
service charge, a new Security or Securities,
containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount
equal to and in exchange for the unrepurchased portion
of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock
in respect of the Repurchase Price shall be deemed to
have been effected immediately prior to the close of
business on the Repurchase Date and the Person or
Persons in whose name or names any certificate or
certificates for shares of Common Stock shall be
issuable upon such repurchase shall be deemed to have
become on the Repurchase Date the holder or holders of
record of the shares represented thereby; provided,
however, that any surrender for repurchase on a date
when the stock transfer books of Saks Incorporated
shall be closed shall constitute the Person or Persons
in whose name or names the certificate or certificates
for such shares are to be issued as the record holder
or holders thereof for all purposes at the opening of
business on the next succeeding day on which such
stock transfer books are open. No payment or
adjustment shall be made for dividends or
distributions on any Common Stock issued upon
repurchase of any Security declared prior to the
Repurchase Date.
(g) No fractions of shares shall be issued
upon repurchase of Securities. If more than one
Security shall be repurchased from the same Holder and
the Repurchase Price shall be payable in shares of
Common Stock, the number of full shares which shall be
issuable upon such repurchase shall be computed on the
basis of the aggregate principal amount of the
Securities so repurchased. Instead of any fractional
share of Common Stock which would otherwise be
issuable on the repurchase of any Security or
Securities, the Company will deliver to the applicable
Holder its check for the current market value of such
fractional share. The current market value of a
fraction of a share is determined by multiplying the
current market price of a full share by the fraction,
and rounding the result to the nearest cent. For
purposes of this Section, the current market price of
a share of Common Stock is the Closing Price Per Share
of the Common Stock on the Trading Day immediately
preceding the Repurchase Date.
(h) Any issuance and delivery of
certificates for shares of Common Stock on repurchase
of Securities shall be made without charge to the
Holder of Securities being repurchased for such
certificates or for any tax or duty in respect of the
issuance or delivery of such certificates or the
securities represented thereby; provided, however,
that the Company shall not be required to pay any tax
or duty which may be payable in respect of (i) income
of the Holder or (ii) any transfer involved in the
issuance or delivery of certificates for shares of
Common Stock in a name other than that of the Holder
of the Securities being repurchased, and no such
issuance or delivery shall be made unless and until
the Person requesting such issuance or delivery has
paid to the Company the amount of any such tax or duty
or has established, to the satisfaction of the
Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase
shall be delivered to the Trustee, the Paying Agent or
any other agents (as shall be set forth in the Company
Notice) to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided
in Section 309.
SECTION 1404. Certain Definitions.
For purposes of this Article Fourteen,
(a) the term "beneficial owner" shall be
determined in accordance with Rule 13d-3, as in effect
on the date of the original execution of this
Indenture, promulgated by the Commission pursuant to
the Exchange Act;
(b) a "Change of Control" shall be deemed to
have occurred at the time, after the original issuance
of the Securities, of:
(i) the acquisition by any Person of
beneficial ownership, directly or indirectly, through
a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of
Saks Incorporated entitling such Person to exercise
50% or more of the total voting power of all shares of
capital stock of Saks Incorporated entitled to vote
generally in the elections of directors (any shares of
voting stock of which such person or group is the
beneficial owner that are not then outstanding being
deemed outstanding for purposes of calculating such
percentage), other than any such acquisition by Saks
Incorporated, any Subsidiary of Saks Incorporated or
any employee benefit plan of Saks Incorporated
existing at the Effective Time; or
(ii) any consolidation or merger of Saks
Incorporated with or into any other Person, any merger
of another Person into Saks Incorporated, or any
conveyance, sale, transfer, or lease of all or
substantially all of the assets (other than (a) any
such transaction (x) which does not result in any
reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock, and
(y) pursuant to which the holders of 50% or more of
the total voting power of all shares of capital stock
of Saks Incorporated entitled to vote generally in
elections of directors immediately prior to such
transaction have the entitlement to exercise, directly
or indirectly, 50% or more of the total voting power
of all shares of capital stock of the continuing or
surviving corporation entitled to vote generally in
elections of directors of the continuing or surviving
corporation immediately after such transaction and (b)
a merger which is effected solely to change the
jurisdiction of incorporation of Saks Incorporated and
results in a reclassification, conversion or exchange
of outstanding shares of Common Stock into solely
shares of common stock);
provided, however, that a Change of Control shall not
be deemed to have occurred if the Closing Price Per
Share on any five Trading Days within the period of 10
consecutive Trading Days ending immediately after the
later of the date of the Change of Control or the date
of the public announcement of the Change of Control
(in the case of a Change of Control under Clause (i)
above) or the period of 10 consecutive Trading Days
ending immediately prior to the date of the Change of
Control (in the case of a Change of Control under
Clause (ii) above) shall equal or exceed 105% of the
Conversion Price in effect on each such Trading Day.
(c) the term "Conversion Price" shall equal
$1,000 divided by the Conversion Rate; and
(d) for the purposes of Section 1404(b)(i),
the term "Person" shall include any syndicate or group
which would be deemed to be a "person" under Section
13(d)(3) of the Exchange Act, as in effect on the date
of the original execution of this Indenture.
SECTION 1405. Consolidation, Merger, Etc.
In the case of any conveyance, sale, transfer,
lease, or merger, to which Section 1311 applies, in
which the Common Stock is changed or exchanged as a
result into the right to receive shares of stock and
other securities or property or assets (including
cash) which includes shares of Common Stock or common
stock of another person that are, or upon issuance
will be, traded on a United States national securities
exchange or approved for trading on an established
automated over-the-counter trading market in the
United States and such shares constitute at the time
such change or exchange becomes effective in excess of
50% of the aggregate fair market value of such shares
of stock and other securities, property and assets
(including cash) (as determined by the Company, which
determination shall be conclusive and binding), then
the person formed by such consolidation or resulting
from such merger or combination or which acquires the
properties or assets (including cash) of the Company,
as the case may be, shall execute and deliver to the
Trustee a supplemental indenture (which shall comply
with the Trust Indenture Act as in force at the date
of execution of such supplemental indenture) modifying
the provisions of this Indenture relating to the right
of Holders to cause the Company to repurchase the
Securities following a Change of Control, including
without limitation the applicable provisions of this
Article Fourteen and the definitions of the Common
Stock and Change of Control, as appropriate, and such
other related definitions set forth herein as
determined in good faith by the Company (which
determination shall be conclusive and binding), to
make such provisions apply to the common stock and the
issuer thereof if different from the Company and
Common Stock (in lieu of the Company and the Common
Stock).
This instrument 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.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1 Effectiveness. This Supplemental
Indenture shall become effective as of the Effective Time
when, and only when, counterparts hereof shall have been duly
executed and delivered by the Company and the Trustee.
SECTION 3.2 Ratification of Indenture. Except as
expressly amended, supplemented and otherwise modified hereby,
the Indenture continues in full force and effect and is in all
respects ratified, confirmed and preserved.
SECTION 3.3 Governing Law. This Supplemental
Indenture shall be governed by and construed in accordance
with the laws of the State of New York. This Supplemental
Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended and shall, to the extent applicable,
be governed by such provisions.
SECTION 3.4 Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, and all of
which shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date
first above written.
SAKS HOLDINGS, INC.
By:
Name: Xxxxx X. Xxxxxx
Title: Executive Vice
President
Attest:
Name: Xxxxxxx X. Xxxxxx
Title:Assistant Secretary
BANKERS TRUST COMPANY,
as trustee
By:
Name:
Title:
Attest:
Title:
