FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of November 14, 2001, among
Xxxxxxxxx Xxxxx Corporation, an Illinois corporation (the "Company"), the
guarantors signatory hereto (the "Guarantors") and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
WHEREAS, the Company has duly issued its 10 1/4% Senior Secured Notes
Due 2004 (the "Notes"), in the aggregate principal amount of $170,000,000
pursuant to an Indenture between the Company and the Trustee, dated as of July
2, 1997, as amended by the First Supplemental Indenture, dated as of December 7,
1998, among the Company, the guarantors named therein and the Trustee, the
Second Supplemental Indenture, dated as of June 8, 1999, among the Company, the
Guarantors and the Trustee, and the Third Supplemental Indenture, dated as of
March 23, 2000, among the Company, the Guarantors and the Trustee (together, the
"Indenture"), and the Notes are outstanding on the date hereof;
WHEREAS, Section 9.2 of the Indenture provides that the Company and
the Trustee may amend certain provisions of the Indenture with the written
consent of the Holders of at least a majority of the principal amount of the
then outstanding Notes and execute a supplemental indenture to evidence such
amendment;
WHEREAS, pursuant to a Consent Solicitation Statement, dated November
2, 2001 and the accompanying form of consent letter, the Company solicited, and
has received, consents from Holders representing at least a majority in
aggregate principal amount of its outstanding Notes to the certain amendments to
the Indenture described therein; and
WHEREAS, it is provided in Section 9.4 of the Indenture that a
supplemental indenture becomes effective in accordance with its terms and
thereafter binds every Holder.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms not defined herein shall have the meanings given to
such terms in the Indenture.
SECTION 2. AMENDMENTS TO THE INDENTURE
Section 2.1. AMENDMENT TO THE LIMITATION ON INCURRENCE OF
INDEBTEDNESS COVENANT.
Section 4.9(b)(i) of the Indenture is hereby amended in its entirety
to read as follows:
"(i) Indebtedness under the Revolving Credit Facility and
repayment obligations in respect of letters of credit, PROVIDED that
the aggregate principal amount of such Indebtedness so incurred on
any date, together with all other Indebtedness incurred pursuant to
this clause (i) and outstanding on such date, shall not exceed $25.0
million (or, for the period from the date of the Fourth Supplemental
Indenture to December 15, 2002, $27.0 million),"
Section 2.2. AMENDMENT TO DEFINITION OF EVENTS OF DEFAULTS.
Section 6.1 of the Indenture is hereby amended by adding the
following immediately after the last sentence of Section 6.1:
"Notwithstanding anything contained herein to the contrary,
neither the commencement of a voluntary case under the Bankruptcy Law
by Sweet Factory Group, Inc., Sweet Factory, Inc., SF Candy Company
and SF Properties, Inc., each a Delaware corporation and wholly owned
subsidiary of the Company and a Guarantor of the Notes (collectively,
the "Sweet Factory Entities"), nor the restriction on the Sweet
Factory Entities' ability to pay dividends or make distributions,
loans, advances or asset transfers in connection with such voluntary
case, nor any actions taken by the Sweet Factory Entities in
connection with such voluntary case that are not inconsistent with
terms of the Indenture, shall violate, or constitute a Default or an
Event of Default under, this Indenture."
SECTION 3. MISCELLANEOUS
Section 3.1. GOVERNING LAW.
THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED, INTERPRETED
AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
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WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FOURTH
SUPPLEMENTAL INDENTURE, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH HEREIN,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY PERSON TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
Section 3.2. CONTINUING AGREEMENT.
Except as herein amended, all terms, provisions and conditions of the
Indenture, all Exhibits thereto and all documents executed in connection
therewith shall continue in full force and effect and shall remain enforceable
and binding in accordance with their terms.
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Section 3.3. CONFLICTS.
In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this Fourth Supplemental Indenture,
then the terms and conditions of this Fourth Supplemental Indenture shall
prevail.
Section 3.4. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Fourth Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 3.5. HEADINGS, ETC..
The Headings of the Sections of this Fourth Supplemental Indenture
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
[signature pages follow]
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Fourth Supplemental Indenture as of the date first written above.
XXXXXXXXX XXXXX
CORPORATION
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Chief Financial Officer
SWEET FACTORY GROUP, INC.
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Chief Financial Officer
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SWEET FACTORY, INC.
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Chief Financial Officer
SF PROPERTIES, INC.
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Chief Financial Officer
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SF CANDY COMPANY
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Chief Financial Officer
XXXXXXXXX XXXXX (CANADA)
CORPORATION
By: /s/ Xxx X. Xxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxx
Title: President, Chief Operating
Officer
Attest:
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Chief Financial Officer
THE BANK OF NEW YORK, as
Trustee
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Agent
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