SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE dated as of June 2, 1999, between NINE
WEST GROUP INC., a Delaware corporation ("Tender Co."), ▇▇▇▇ ASSET SUB INC.,
a Delaware corporation ("New Tender Co."), ▇▇▇▇ ACQUISITION SUB INC., a
Delaware corporation ("Acquisition Sub"), and THE BANK OF NEW YORK, as
trustee (the "Trustee").
Whereas there has heretofore been executed and delivered to the Trustee
an Indenture dated as of July 9, 1997, and a Supplemental Indenture dated as
of September 15, 1998 (the "Original Indenture" and, as it may be amended or
supplemented from time to time by more indentures supplemental thereto
entered into pursuant to the applicable provisions thereof, the "Indenture"),
providing for the issuance of Tender Co.'s 9% Series B Senior Subordinated
Notes due 2007 (the "Securities");
Whereas there are now outstanding under the Indenture Securities in the
aggregate principal amount of $94 million;
Whereas Section 902 of the Indenture provides that Tender Co. and the
Trustee may amend the Indenture with the written consent of the Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding and Section 1020 provides that Tender Co. and the Trustee may
waive certain provisions of the Indenture with the written consent of the
Holders of at least a majority in aggregate principal amount of the
Securities then outstanding;
Whereas Tender Co. desires to have waived and to amend certain
provisions of the Indenture, as set forth in Article I hereof;
Whereas the Holders of at least a majority in aggregate principal amount
of the Securities outstanding have consented to the amendments and waivers
effected by this Second Supplemental Indenture;
Whereas ▇▇▇▇▇ Apparel Group, Inc. ("▇▇▇▇▇") intends to acquire Tender
Co., through a merger of its wholly-owned subsidiary, Acquisition Sub, with
Tender Co. (the "Acquisition");
WHEREAS New Tender Co. is to be successor to Tender Co. following the
Acquisition and certain asset transfers and is to be obligor of the
Securities; and
Whereas all things necessary to make this Second Supplemental Indenture
a valid agreement, in accordance with its terms, have been done.
Now, Therefore, this Second Supplemental Indenture witnesseth that, for
and in consideration of the premises, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
Amendments to Indenture and Additional Provisions
Section 101. Waiver of and Amendments to Articles Ten, Eight and Five.
(a) The application of the provisions of Sections 1008, 1009, 1010, 1011,
1012, 1013, 1014, 1016, 1017, 1018, 1019, 801(c) and (e) and 501(5) and (6)
of the Indenture are hereby waived: (i) to the extent that such provisions
might otherwise interfere with the ability of Tender Co. or Acquisition Sub
to enter into agreements contemplated by, and for Acquisition Sub to
consummate, the Offer and Consent Solicitation as set forth in the Offer to
Purchase and Consent Solicitation Statement and accompanying Consent and
Letter of Transmittal, each dated May 19, 1999,
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and any amendments, modifications or supplements thereto (the "Offer and
Consent Solicitation") and (ii) to the extent that such provisions might
otherwise interfere with the ability of New Tender Co. to assume the
obligations hereunder and under the Indenture as provided in Section 803 of
the Indenture and the ability to effectuate the transfer of assets from
Tender Co. to New Tender Co. pursuant to the Acquisition and the subsequent
asset drop down.
(b) Effective upon the date Acquisition Sub or New Tender Co. accepts
Securities for purchase and payment pursuant to the Offer and Consent
Solicitation (the "Acceptance Date"), unless, prior to that time, New Tender
Co. or Acquisition Sub by written notice to the Trustee, has terminated this
Second Supplemental Indenture, Sections 1008, 1009, 1010, 1011, 1012, 1013,
1016, 1017, 1018, 1019, 801(c) and (e) and 501(5) and (6) of the Indenture
are hereby amended by deleting all such sections and all references thereto
in their entirety, including without limitation all references, direct or
indirect, thereto in Section 501(3), "Events of Default".
(c) Effective upon consummation of the Acquisition, pursuant to
Section 803 of the Indenture, New Tender Co. shall be the obligor hereunder
and the obligor of any and all Securities that remain outstanding under the
Indenture and Tender Co. shall be released from all of its obligations
hereunder and under the Indenture.
(d) Following the Acceptance Date, all Subsidiary Guarantees shall be
released in accordance with Section 1308 of the Indenture.
(e) Tender Co. and New Tender Co. will not be required to comply with
Section 1014 of the Indenture in connection with the Acquisition pursuant to
section 1020 of the Indenture.
ARTICLE II
MISCELLANEOUS
Section 201. Instruments To Be Read Together. This Second Supplemental
Indenture is an indenture supplemental to and in implementation of the
Original Indenture, and said Original Indenture and this Second Supplemental
Indenture shall henceforth be read together.
Section 202. Confirmation. The Original Indenture as amended and
supplemented by this Second Supplemental Indenture is in all respects
confirmed and preserved.
Section 203. Definitions. Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined herein shall have the
respective meanings set forth in the Original Indenture. Any defined terms
present in the Original Indenture, but no longer used as a result of the
amendments made by this Second Supplemental Indenture shall be eliminated.
Section 204. Headings. The headings of the Articles and Sections of this
Second Supplemental Indenture have been inserted for convenience of reference
only, and are not to be considered a part hereof and shall in no way modify
or restrict any of the terms and provisions hereof.
Section 205. Governing Law. The laws of the State of New York shall
govern this Second Supplemental Indenture.
Section 206. Counterparts. This Second Supplemental Indenture 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.
Section 207. Effectiveness; Termination. The provisions of this Second
Supplemental Indenture will take effect immediately upon its execution and
delivery by the Trustee in
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accordance with the provisions of Section 902 of the Indenture; provided that
the waivers and amendments to the Original Indenture set forth in Section 101
of this Second Supplemental Indenture shall become operative as specified in
Section 101 hereof. Prior to the Acceptance Date, Tender Co., New Tender Co.
or Acquisition Sub may terminate this Second Supplemental Indenture upon
written notice to the Trustee (it being understood that each party may agree,
subsequent thereto, to enter into a substitute second supplemental indenture,
provided, however, once New Tender Co. becomes obligor under the Notes, only
New Tender Co. or Acquisition Sub may enter into such substitute second
supplemental indenture).
Section 208. Acceptance by Trustee. The Trustee accepts the amendments
to the Original Indenture effected by this Second Supplemental Indenture and
agrees to execute the trusts created by the Indenture as hereby amended, but
only upon the terms and conditions set forth in the Indenture.
Section 209. Responsibility of Trustee. The recitals contained herein
shall be taken as the statements of Tender Co., and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Second Supplemental Indenture.
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In Witness Whereof, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the date first written
above.
NINE WEST GROUP INC.,
Attest: By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Title: Senior Vice President
▇▇▇▇ ASSET SUB INC.,
Attest: By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name: Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Title: President
▇▇▇▇ ACQUISITION SUB INC.,
Attest: By /s/ ▇▇▇▇▇▇ ▇. Card
Name: Name: ▇▇▇▇▇▇ ▇. Card
Title: Title: President
THE BANK OF NEW YORK, as Trustee,
Attest: By /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Name: Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Title: Assistant Vice President