EXHIBIT 4.3
EXECUTION COPY
================================================================================
FIRST SUPPLEMENTAL INDENTURE
to
INDENTURE
Dated as of October 17, 1997
between
J. CREW GROUP, INC.,
as Issuer,
and
U.S. BANK NATIONAL ASSOCIATION
(successor to State Street Bank and Trust Company),
as Trustee
Dated as of May 6, 2003
================================================================================
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, effective as of May 6, 2003, by and
between J. CREW GROUP, INC., a corporation duly organized and existing under the
laws of New York (the "Company"), having its principal business office at 770
Broadway, New York, New York 10003, and U.S. BANK NATIONAL ASSOCIATION, a
national banking corporation, as trustee and successor to State Street Bank and
Trust Company (the "Trustee"), having a corporate trust office at Goodwin
Square, 225 Asylum Street, Hartford, CT 06103.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee previously entered into an
indenture (the "Indenture"), dated as of October 17, 1997 providing for the
issuance of 13 1/8% Senior Discount Debentures Due 2008 (the "Notes");
WHEREAS, Section 9.02 of the Indenture provides that amendments and
supplements to the Indenture and the Notes may be made and one or more amended
or supplemental indentures entered into by the Company and the Trustee with the
consent of the holders of the Notes (the "Holders") of at least a majority in
principal amount at maturity of the Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for the Notes), except for certain specific events which
require the consent of each Holder affected thereby;
WHEREAS, the Company, through its wholly owned subsidiary, J. Crew
Intermediate LLC, undertook an exchange offer and consent solicitation (the
"Exchange Offer") pursuant to a confidential offering circular and consent
solicitation statement dated April 4, 2003, offering to exchange the Holders'
Notes for new securities of J. Crew Intermediate LLC, and requesting, among
other things, that the Holders give their written consent to implement the
amendments to the Indenture set forth in this First Supplemental Indenture (the
"Amendments");
WHEREAS, the Company has received through the Exchange Offer the valid
consents of the Holders of at least a majority in principal amount at maturity
of the Notes outstanding consenting to the substance of the Amendments set forth
in this First Supplemental Indenture;
WHEREAS, all conditions and requirements necessary to make this First
Supplemental Indenture a valid, binding, and legal instrument in accordance with
the terms of the Indenture have been performed and fulfilled and the execution
and delivery hereof have been in all respects duly authorized:
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture; and
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee is
authorized to execute and deliver this First Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Indenture and for other good and valuable
consideration, the receipt and sufficiency of which are herein acknowledged, the
Company and the Trustee hereby agree for the equal and ratable benefit of all
Holders as follows:
ARTICLE 1
AMENDMENTS
Section 1.01. Indenture Amendments. The Indenture is hereby amended as
follows:
(a) The table of contents of the Indenture is amended by:
(1) deleting "or Purchase" from the heading "Deposit of
Redemption or Purchase Price" in Section 3.05";
(2) replacing the heading "Repurchase Offers" in Section
3.09 with the heading "[intentionally omitted]";
(3) replacing the heading "Maintenance of Office or Agency"
in Section 4.02 with the heading "[intentionally omitted]";
(4) replacing the heading "Taxes" in Section 4.05 with the
heading "[intentionally omitted]";
(5) replacing the heading "Stay, Extension and Usury Laws"
in Section 4.06 with the heading "[intentionally omitted]";
(6) replacing the heading "Restricted Payments" in Section
4.07 with the heading "[intentionally omitted]";
(7) replacing the heading "Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries" in Section 4.08 with the
heading "[intentionally omitted]";
(8) replacing the heading "Incurrence of Indebtedness and
Issuance of Preferred Stock" in Section 4.09 with the heading
"[intentionally omitted]";
(9) replacing the heading "Assets Sales" in Section 4.10
with the heading "[intentionally omitted]";
(10) replacing the heading "Transactions with Affiliates" in
Section 4.11 with the heading "[intentionally omitted]";
(11) replacing the heading "Liens" in Section 4.12 with the
heading "[intentionally omitted]";
2
(12) replacing the heading "Offer to Purchase Upon Change of
Control" in Section 4.13 with the heading "[intentionally omitted]";
(13) replacing the heading "Corporate Existence" in Section
4.14 with the heading "[intentionally omitted]";
(14) replacing the heading "Business Activities" in Section
4.15 with the heading "[intentionally omitted]"; and
(15) replacing the heading "Merger, Consolidation of Sale of
Assets" in Section 5.01 with the heading "[intentionally omitted]".
(b) Section 1.01 of the Indenture is amended by:
(1) deleting the following definitions:
"Acquired Debt"
"Asset Sale"
"Attributable Debt"
"Capital Lease Obligation"
"Capital Stock"
"Cash Equivalents"
"Change of Control"
"Consolidated Cash Flow"
"Consolidated Net Income"
"Credit Agent"
"Credit Facilities"
"Disqualified Stock"
"Equity Interests"
"Existing Indebtedness"
"Fixed Charges"
"Fixed Charge Coverage Ratio"
"Guarantee"
"Hedging Obligations"
"Indebtedness"
"Insolvency or Liquidation Proceedings"
"Investments"
"Net Income"
"Net Proceeds"
"New Credit Facility"
"Non-Recourse Debt"
"Obligations"
"Permitted Business"
"Permitted Refinancing Indebtedness"
"Permitted Investments"
"Permitted Liens"
"Purchase Money Note"
3
"Qualified Proceeds"
"Qualified Receivables Transaction"
"Receivables"
"Receivables Subsidiary"
"Receivables Transaction"
"Related Party"
"Restricted Investment"
"Restricted Subsidiary"
"Significant Subsidiary"
"Standard Securitization Undertakings"
"Stated Maturity"
"Unrestricted Subsidiary"
"Voting Stock"
"Weighted Average Life to Maturity"
"Wholly Owned Subsidiary";
(2) inserting the following immediately before the
definition of "Default:
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.";
(3) deleting "(other than Disqualified Stock)" from the
definition of "Equity Offering"; and
(4) replacing "Voting Stock" with "voting stock" in the
definition of "Subsidiary".
(c) Section 1.02 of the Indenture is amended by deleting each of the
following terms and the corresponding section reference thereto:
"Affiliate Transaction"
"Asset Sale Offer"
"Change of Control Offer"
"Change of Control Payment"
"Change of Control Payment Date"
"Custodian"
"Excess Proceeds"
"incur"
"Offer Amount"
"Offer Period"
"Pari Passu Indebtedness"
"Payment Default"
"Permitted Debt"
"Purchase Date"
"Repurchase Offer"
"Restricted Payments".
4
(d) Section 2.04 of the Indenture is amended by deleting the last
sentence of such section.
(e) Section 3.01 of the Indenture is amended by deleting the last
sentence of such section.
(f) Section 3.05 of the Indenture is amended by: (1) deleting "or
Purchase" from the heading of such section; (2) deleting "or the date on which
Notes must be accepted for purchase pursuant to Section 4.10 or Section 4.13,"
from the first sentence of such section; (3) deleting "or purchased" and "or
purchase" wherever such words appear in such section; and (4) deleting "or
tendered in an Asset Sale Offer or Change of Control Offer" and "or tendered and
not withdrawn in an Asset Sale Offer or Change of Control Offer" from the third
sentence of such section.
(g) Section 3.08 of the Indenture is amended by: (1) deleting
"Except as set forth in Sections 3.09, 4.10 and 4.13 hereof" from such section;
and (2) replacing "the" preceding "Company" in such section with "The".
(h) Section 3.09 of the Indenture is amended by deleting the heading
and the text of such section in their entirety and inserting in lieu thereof
"[intentionally omitted]".
(i) Article 4 of the Indenture is amended by deleting the heading
and the text of Sections 4.02, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14 and 4.15 in their entirety and inserting in lieu thereof
"[intentionally omitted]".
(j) Section 4.04 of the Indenture is amended by: (1) deleting the
following from the first sentence of such section: "(including, with respect to
any Restricted Payments made during such year, the basis upon which the
calculations required by Section 4.07 hereof were computed, which calculations
may be based on the Company's latest available financial statements)"; and (2)
deleting "or Section 5.01" from the second sentence of such section.
(k) Section 5.01 of the Indenture is amended by deleting the heading
and the text of such section in their entirety and inserting in lieu thereof
"[intentionally omitted]".
(l) Section 5.02 of the Indenture is amended by: (1) deleting "in
accordance with Section 5.01 hereof" from such section; and (2) deleting the
following from the proviso in such section: "(i) solely for the purposes of
computing Consolidated Net Income for purposes of clause (b) of the first
paragraph of Section 4.07 hereof, the Consolidated Net Income of any person
other than the Company and its Subsidiaries shall be included only for periods
subsequent to the effective time of such merger, consolidation, combination or
transfer of assets; and (ii)".
(m) Section 6.01 of the Indenture is amended by: (1) inserting "and"
after the semicolon at the end of clause (i) of such section; (2) deleting the
semicolon at the end of clause (ii) of such section and inserting a period in
lieu thereof; (3) deleting clauses (iii) to (viii) (inclusive) of such section
in their entirety; and (4) deleting the following from the end of such section:
"The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law."
5
(n) Section 6.02 of the Indenture is amended by deleting the second
and last sentences of such section.
(o) Section 6.04 of the Indenture is amended by deleting the
following from such section: "(other than an automatic acceleration resulting
from an Event of Default under clause (vii) or (viii) of Section 6.01 hereof)".
(p) Section 6.10 is amended by replacing "Obligations" with
"obligation" in such section.
(q) Section 7.07 is amended by deleting the penultimate sentence of
such section.
(r) Section 8.02 of the Indenture is amended by: (1) replacing
"Indebtedness" with "indebtedness" in the second sentence of such section; and
(2) deleting ", 4.02" from clause (b) of such section.
(s) Section 8.03 of the Indenture is amended by: (1) deleting ",
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13 and 5.01" from the first sentence of
such section; (2) replacing "Sections" immediately preceding "4.03" with
"Section" in the first sentence of such section; and (3) deleting the last
sentence of such section.
(t) Section 9.02 of the Indenture is amended by: (1) deleting
"(other than provisions relating to Sections 3.09, 4.10 and 4.13 hereof)" from
clause (b) of such section; and (2) deleting "(other than a payment required by
Section 4.10 or 4.13 hereof)" from clause (g) of such section.
(u) The "Back of Note" in Exhibit A-1 of the Indenture is amended
by: (1) replacing "Obligations" with "obligations" in the last sentence of
paragraph 4; (2) deleting "Except as set forth in paragraph 7 below" and
replacing "the" preceding "Company" with "The" in paragraph 6; (3) deleting the
text of paragraph 7 in its entirety and inserting in lieu thereof
"[intentionally omitted]"; (4) deleting clauses (iii) to (vii)(inclusive) in
paragraph 12; (5) inserting the word "and" after "Notes;" in clause (i)
paragraph 12; and (6) deleting the third and last sentences from paragraph 12.
(v) The "Back of Regulation S Temporary Global Note" in Exhibit A-2
of the Indenture is amended by: (1) replacing "Obligations" with "obligations"
in the last sentence of paragraph 4; (2) deleting "Except as set forth in
paragraph 7 below" and replacing "the" preceding "Company" with "The" in
paragraph 6; (3) deleting the text of paragraph 7 in its entirety and inserting
in lieu thereof "[intentionally omitted]"; (4) deleting clauses (iii) to
(vii)(inclusive) in paragraph 12; (5) inserting the word "and" after "Notes;" in
clause (i) paragraph 12; and (6) deleting the third and last sentences from
paragraph 12.
Section 1.02. Mutatis Mutandis Effect. The Indenture, as supplemented, is
hereby amended mutatis mutandis to reflect the addition or amendment of each of
the defined terms incorporated in the Indenture pursuant to Section 1.01 above.
6
ARTICLE 2
MISCELLANEOUS
Section 2.01. Effect of the Supplemental Indenture. This First Supplemental
Indenture supplements the Indenture and shall be a part, and subject to all the
terms, thereof. Except as expressly supplemented hereby, the Indenture and the
Notes issued thereunder shall continue in full force and effect.
Section 2.02. Governing Law. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York, but without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
Section 2.03. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture. The recitals to this First Supplemental Indenture are statements of
the Company and the Trustee shall have no responsibility for such recitals.
Section 2.04. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction thereof.
Section 2.05. Counterparts. The parties may sign any number of copies of this
First Supplemental Indenture. Each signed copy shall be an original, but all of
them shall represent the same agreement.
[Signature page follows]
7
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first stated above.
J. CREW GROUP, INC.
By: /s/ Scott M. Rosen
--------------------------------
Name: Scott M. Rosen
Title: Executive Vice-President and
Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
By: /s/ Philip G. Kane, Jr.
-------------------------------
Name: Philip G. Kane, Jr.
Title: Vice President
8