SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of June 8, 1999, among
Xxxxxxxxx Xxxxx Corporation, an Illinois corporation (the "Company"), the
Guarantors named herein and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
WHEREAS, the Company has duly issued its 101/4% Senior Secured
Notes Due 2004 (the "Notes"), in the aggregate principal amount of
$130,000,000 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 (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 May
24, 1999 and the accompanying 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;
WHEREAS, Section 10.7 of the Indenture provides, among other
things, that the Company shall cause each Restricted Subsidiary that is
formed or acquired after the date of the Indenture to become a Guarantor
thereunder and to execute and deliver a supplemental indenture pursuant to
which such Restricted Subsidiaries shall unconditionally guarantee all of the
Company's Obligations as set forth in Section 10.7 of the Indenture;
WHEREAS, Section 9.1 of the Indenture provides, among other things,
that the Company, the Guarantors and the Trustee may amend or supplement the
Indenture without the consent of any Holder to comply with Article 10.7
thereof and execute a supplemental indenture with respect thereto; 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 "EXECUTION AND AUTHENTICATION"
COVENANT.
The third paragraph of Section 2.2 of the Indenture is hereby amended
and restated to read in its entirety as follows:
The Trustee shall, upon a Company Order, authenticate for
original issue up to $170,000,000 aggregate principal amount of
the Notes. The aggregate principal amount of Notes outstanding
at any time may not exceed $170,000,000 except as provided in
Section 2.7 hereof.
Section 2.2 AMENDMENT TO THE LIMITATION ON INCURRENCE OF
INDEBTEDNESS COVENANT.
Section 4.9(b) of the Indenture shall be amended by adding a new
subsection (ix) thereto (and renumbering current subsections (ix) and (x) as new
subsections (x) and (xi), respectively) as follows:
(ix) Indebtedness of the Company arising out of the Company's
issuance and sale of up to $40.0 million of additional Series A Notes
to fund, in part, the acquisition by the Company, or one or more of
its subsidiaries, of Nestle Canada Inc.'s Xxxxx Xxxxxx retail
business.
Section 2.3 APPOINTMENT AS FONDE DE POUVOIR.
Article 7 of the Indenture is hereby amended to add a Section 7.12 which
shall read as follows:
Section 7.12 APPOINTMENT AS FONDE DE POUVOIR.
For the purposes of the jurisdiction of the Province of
Quebec, the Company hereby appoints the Trustee as the FONDE DE
POUVOIR of the Holders, as contemplated by Article 2692 of the
Civil Code of Quebec, to take and hold on behalf of, and for the
benefit of, each of the Holders, any security under the Security
Documents which is subject to the laws of the jurisdiction of the
Province of Quebec to secure the payment of the Notes, and to
exercise the powers and duties which are conferred upon the
Trustee under the Indenture. Each of the Holders, by acquiring
Notes, shall be deemed to have consented to and confirmed the
appointment of the Trustee as FONDE DE POUVOIR to take and hold
on behalf of, and for the benefit of, each of the Holders, any
such security and to exercise such powers and duties. Reference
herein, in the Security Documents and in any other documents
executed by the Trustee acting in its capacity as trustee for the
Holders shall, for the purposes of the jurisdiction of the
Province of Quebec, include its acting in its capacity as FONDE
DE POUVOIR as hereinabove contemplated.
The Trustee hereby accepts its appointment as FONDE DE
POUVOIR and agrees to take and hold any security under the
Security Documents and to exercise the powers and duties
conferred upon the FONDE DE POUVOIR as provided above.
Each Person who becomes a Holder, by becoming a Holder shall
be deemed for all purposes to have consented to and confirmed the
appointment of the Trustee as FONDE DE POUVOIR for the Holders as
herein provided, to be governed by the provisions of this
Indenture dealing with the FONDE DE POUVOIR and to have ratified,
as of the date such Person becomes a Holder, all actions taken
and all documents signed by the Trustee, as FONDE DE POUVOIR,
under the terms of the Indenture.
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Section 2.4 APPOINTMENT OF CANADIAN CO-TRUSTEE.
Article 7 of the Indenture is hereby further amended to add a
Section 7.13 which shall read as follows:
Section 7.13 APPOINTMENT OF CANADIAN CO-TRUSTEE.
It is recognized that in case of litigation under this
Agreement or the Security Documents, and in particular in case of
the enforcement thereof on default, or in the case the Trustee
deems that by reason of any present or future law of Canada it
may not exercise any of the powers, rights or remedies herein
granted to the Trustee or hold title to the properties, in trust,
as herein granted or take any action which may be desirable or
necessary in connection therewith, it may be necessary that the
Trustee appoint an individual or institution as a separate or
co-trustee (each, a "Co-Trustee") with respect to Xxxxxxxxx Xxxxx
(Canada) Corporation ("Xxxxxxxxx Xxxxx (Canada)"). The following
provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an individual or
institution as a Co-Trustee with respect to Xxxxxxxxx Xxxxx
(Canada), each and every remedy, power, right, claim, demand,
cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or
vested in or conveyed to the Trustee with respect thereto shall
be exercisable by and vest in such Co-Trustee but only to the
extent necessary to enable such Co-Trustee to exercise such
powers, rights and remedies, and only to the extent that the
Trustee by the laws of Canada is incapable of exercising such
powers, rights and remedies and every covenant and obligation
necessary to the exercise thereof by such Co-Trustee shall run to
and be enforceable by either of them.
Should any instrument in writing from the Company and/or the
Guarantors be required by the Co-Trustee so appointed by the
Trustee for more fully and certainly vesting in and confirming to
him or it such properties, rights, powers,
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trusts, duties and obligations, any and all such instruments in
writing shall, on request, be executed, acknowledged and delivered
by the Company and the Guarantors; provided, that if an Event of
Default shall have occurred and be continuing, if the Company and
the Guarantors do not execute any such instrument within fifteen
(15) days after request therefor, the Trustees shall be empowered
as an attorney-in-fact for the Company and the Guarantors to
execute any such instrument in the Company and the Guarantors' name
and stead. In case any Co-Trustee or a successor to either shall
die, become incapable of acting, resign or be removed, all the
estates, properties, rights, powers, duties and obligations of such
Co-Trustee, so far as permitted by law, shall vest in and be
exercised by the Trustee until the appointment of a new trustee or
successor to such Co-Trustee.
Every Co-Trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
all rights and powers, conferred or imposed upon the Trustee shall be
conferred or imposed upon and may be exercised or performed by such Co-Trustee;
and
no trustee hereunder shall be personally liable by reason of any act or
omission of any other trustee hereunder.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then
Co-Trustees, as effectively as if given to each of them. Every
instrument appointing any Co-Trustee shall refer to this
Indenture and the conditions of this Article.
Any Co-Trustee may at any time appoint the Trustee as its
agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in
respect of this Agreement or the Security Documents on its
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behalf and in its name. If any Co-Trustee shall die, become
incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 2.5 CONFORMING CHANGES TO THE INDENTURE.
The Indenture is otherwise amended, to the extent necessary, to permit
the issuance of up to $170,000,000 in the aggregate of the Company's 101/4%
Senior Secured Notes due 2004.
SECTION 3. GUARANTEE BY RESTRICTED SUBSIDIARIES
Each of Sweet Factory Group, Inc., Sweet Factory, Inc., SF
Properties, Inc., SF Candy Company and Xxxxxxxxx Xxxxx (Canada)
(collectively, the "Guarantors") unconditionally guarantees all of the
Company's Obligations as set forth in Section 10.7 of the Indenture, and each
such Guarantor agrees to all applicable provisions of the Indenture
applicable to it as if fully set forth herein, including, but not limited to,
the provisions set forth in Sections 10.6, 10.7, 10.8, 10.9, 10.10 and 10.11
of the Indenture.
SECTION 4. MISCELLANEOUS
Section 4.1 GOVERNING LAW.
THIS SECOND 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 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
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OR ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
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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 4.2 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.
Section 4.3 CONFLICTS.
In the event of a conflict between the terms and conditions of the
Indenture and the terms and conditions of this Second Supplemental Indenture,
then the terms and conditions of this Second Supplemental Indenture shall
prevail.
Section 4.4 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Second
Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
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Section 4.5 HEADINGS, ETC..
The Headings of the Sections of this Second 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 Supplemental Indenture as of the date first written above.
XXXXXXXXX XXXXX
CORPORATION
By:
Name: /s/ Xxx X. Xxxxxxxx
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Attest:
Name: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: V.P. - Finance & Accounting
-----------------------------
SWEET FACTORY GROUP, INC.
By:
Name: /s/ Xxx X. Xxxxxxxx
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Attest:
Name: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: V.P. - Finance & Accounting
-----------------------------
SWEET FACTORY, INC.
By:
Name: /s/ Xxx X. Xxxxxxxx
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Attest:
Name: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: V.P. - Finance & Accounting
-----------------------------
SF PROPERTIES, INC.
By:
Name: /s/ Xxx X. Xxxxxxxx
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Attest:
Name: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: V.P. - Finance & Accounting
-----------------------------
SF CANDY COMPANY
By:
Name: /s/ Xxx X. Xxxxxxxx
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Attest:
Name: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: V.P. - Finance & Accounting
-----------------------------
XXXXXXXXX XXXXX (CANADA)
CORPORATION
By:
Name: /s/ Xxx X. Xxxxxxxx
-----------------------------
Title: President and Chief Operating
Officer
-----------------------------
Attest:
Name: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: V.P. - Finance & Accounting
-----------------------------
THE BANK OF NEW YORK, as Trustee
By:
Name: /s/ Xxxx XxXxxxxx
-----------------------------
Title: Assistant Vice President
-----------------------------
