Exhibit 4.2.7
SEVENTH SUPPLEMENTAL
INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE (this
“ Supplemental Indenture ”), dated as of
July 19, 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 J.P. Morgan Trust Company, National
Association, a national banking association organized under the
laws of the United States of America and successor in interest to
The First National Bank of Chicago (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 December 2,
1998, relating to the Company’s 7 1/2% Notes due 2010 (the
“ Notes ”), as amended and supplemented prior to
the date hereof (the “ Original Indenture
”);
WHEREAS, the Company has commenced (i) an offer to
purchase for cash any and all Outstanding Notes and (ii) a
concurrent solicitation of 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 9.02 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 1.01.
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 1.01 of the Original
Indenture shall be amended to insert alphabetically therein the
following defined terms:
“Compliance Certificate”
has the meaning set forth in Section 10.12.
“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 Purchase Price, if due, for the Notes in accordance with
the Offer to Purchase and (ii) October 31,
2005.
“Purchase Price” means
the payment (including the Consent Payment) defined as such with
respect to the Notes in the Offer to Purchase.
“Offer to Purchase”
means the Offers to Purchase and Consent Solicitations Statement
dated as of June 20, 2005 and the related Letter of
Transmittal and Consent, each as may be amended and supplemented
from time to time.
ARTICLE II
REMEDIES
Section 2.01. Events of
Default .
Section 5.01 of the Original
Indenture shall be deleted in its entirety and replaced with the
following:
Section 5.01. Events of
Default .
“Event of Default,”
wherever used herein, means anyone 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 on the Notes when due and payable, continued for 30 days
or more; or
(b) default in payment of all or any
part of principal of or premium, if any, on the Notes at the
Maturity Date; or
(c) except as otherwise provided in
this Section 5.01, default in the performance of or breach of
any other covenant or warranty of the Company contained in the
Notes, any Note 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 Note 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 Note
Guarantee, or gives notice to such effect (other than by reason of
the termination of this Indenture or the release of any such Note
Guarantee in accordance with Section 12.04 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;
(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) shall admit 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; or
(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.
Notwithstanding any of the
foregoing, the failure of the Company to comply with
Section 7.04, 10.10 or 10.12 of this Indenture, or §314
of the Trust Indenture Act, before the Covenant Reversion Date
shall not constitute a Default under clause
(c) above.
ARTICLE III
HOLDERS’ LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 3.01. Reports by
Company and Each Guarantor .
Section 7.04 of the Original
Indenture shall be deleted in its entirety and replaced with the
following:
Section 7.04. Reports by
Company and Each Guarantor .
The Company and each Guarantor
shall, except as otherwise provided in this
Section 7.04:
(a) file with the Commission, the
copies of annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations
prescribe) required to be filed with Commission pursuant to
Section 13 or Section 15 of the Exchange Act, whether or
not the Company or any Guarantor has a class of securities
registered under the Exchange Act;
(b) file with the Trustee within 15
days after it files or would be required to file the information
specified in subsection (a) of this Section 7.04 reports
and documents with the Commission copies of such
information;
(c) file with the Trustee and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company and
each Guarantor with the conditions and covenants of this Indenture
as maybe required from
