FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of April 4, 2000, among Xxx. Xxxxxx' Original Cookies, Inc., a Delaware
corporation (or its permitted successor) (the "Company"), The Xxx. Xxxxxx'
Brand, Inc., a Delaware corporation and a subsidiary of the Company, ("MFB"),
Great American Cookie Company, Inc., a Delaware corporation and a subsidiary of
the Company ("Great American"), Pretzelmaker, Inc., a Utah corporation and a
subsidiary of the Company ("Pretzelmaker"), and Pretzel Time, Inc. ("Pretzel
Time"), a Utah corporation and a subsidiary of the Company (together with
Pretzelmaker, the "Guaranteeing Subsidiaries" and, together with the other
Guarantors defined in the Indenture referred to herein, the "Guarantors"), and
The Bank of New York, as trustee under the Indenture referred to herein (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture, dated as of November 26, 1997, as amended by the First
Supplemental Indenture, dated as of August 24, 1998, the Second Supplemental
Indenture, dated as of August 24, 1998, the Third Supplemental Indenture, dated
as of November 20, 1998 and the Fourth Supplemental Indenture, dated as of
December 30, 1998 (as so amended, the "Indenture"), providing for the issuance
of an aggregate principal amount of up to $200.0 million of 10/1//8% Notes due
2004 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Guarantee");
and
WHEREAS, Pretzelmaker Holdings, Inc., a Colorado corporation ("Old
Pretzelmaker"), heretofore executed and delivered the Third Supplemental
Indenture, dated as of November 20, 1998, pursuant to which it unconditionally
guaranteed all of the Company's Obligations under the Notes and the Indenture;
and
WHEREAS, Pretzel Time, Inc., a Pennsylvania corporation ("Old Pretzel
Time"), heretofore executed and delivered the Fourth Supplemental Indenture,
dated as of December 30, 1998, pursuant to which it unconditionally guaranteed
all of the Company's Obligations under the Notes and the Indenture; and
WHEREAS, (i) Old Pretzelmaker was merged with and into Pretzelmaker
Holdings, Inc. ("Pretzelmaker Holdings"), a Utah corporation and the predecessor
of Pretzelmaker, with Pretzelmaker Holdings as the surviving corporation, as of
January 27, 2000, (ii) Pretzelmaker Holdings was merged with and into
Pretzelmaker, effective as of April 4, 2000, and (iii) Old Pretzel Time has been
merged
with and into Pretzel Time, with Pretzel Time as the surviving corporation, as
of January 27, 2000; and
WHEREAS, Pretzelmaker acknowledges that the Indenture requires it to,
and Pretzelmaker desires to, assume Old Pretzelmaker's guarantee of the
Obligations under the Indenture and the Notes, and Pretzel Time acknowledges
that the Indenture requires it to, and Pretzel Time desires to, assume Old
Pretzel Time's guarantee of the Obligations under the Indenture and the Notes;
and
WHEREAS, pursuant to Section 9.01 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
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby
agree as follows:
(a) Along with all Guarantors named in the Indenture, to jointly
and severally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability of the
Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful,
and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof
and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason,
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the Guarantors shall be jointly and severally obligated to
pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the
Notes or the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(c) The following is hereby waived: diligence presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guaranteeing Subsidiaries,
MFB, Great American, or any Custodian, Trustee, liquidator or other
similar official acting in relation to either the Company or the
Guaran teeing Subsidiaries, MFB, or Great American, any amount paid by
either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obliga tions guaranteed hereby until payment in full of all
obligations guaran xxxx hereby.
(g) As between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Guarantee, notwith
standing any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y)
in the event of any declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such obligations (whether or
not
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due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Guarantee.
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such
other Guarantor under Article 10 of the Indenture shall result in the
obligations of such Guarantor under its Guarantee not constituting a
fraudulent transfer or conveyance.
3. Execution and Delivery. The Guaranteeing Subsidiaries agree that
the Guarantee shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
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4. Guaranteeing Subsidiaries May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Subsidiaries may not consolidate with or
merge with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Guarantor unless:
(i) subject to Section 10.05 of the Indenture, the Person formed
by or surviving any such consolidation or merger (if other
than a Guarantor or the Company) uncondition ally assumes
all the obligations of such Guarantor, pursuant to a
supplemental indenture in form and sub stance reasonably
satisfactory to the Trustee, under the Notes, the Indenture
and the Guarantee on the terms set forth herein or therein;
and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Guarantee endorsed upon
the Notes and the due and punctual performance of all of the covenants
and conditions of the Indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be signed
any or all of the Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All the Guarantees so issued
shall in all respects have the same legal rank and benefit under the
Indenture as the Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of such
Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor,
or shall prevent any sale or conveyance of the property of a Guarantor
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as an entirety or substantially as an entirety to the Company or
another Guarantor.
5. Releases.
---------
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise,
or a sale or other disposition of all of the capital stock of any
Guarantor, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of
the capital stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released
and relieved of any obligations under its Guarantee; provided that the
Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of the Indenture, including
without limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such sale or other disposi tion was made by
the Company in accordance with the provisions of the Indenture,
including without limitation Section 4.10 of the Indenture, the
Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its
Guarantee.
(b) Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in Article 10 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Company, the Guaranteeing Subsidiaries or under the Notes, any Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver may
not be effective to waive liabilities under the federal securities laws and it
is the view of the Commission that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT
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THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries, MFB, Great American,
and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemen tal
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: As of April 4, 2000
PRETZEL TIME, INC.
By:/s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
PRETZELMAKER, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title:Vice President
XXX. XXXXXX' ORIGINAL
COOKIES, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name:Xxxxxxx Xxxx
Title: Vice President
THE XXX. XXXXXX' BRAND,
INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
GREAT AMERICAN COOKIE
COMPANY, INC.
By:/s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
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THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
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