FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of December 30 , 1998, 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 Holdings, Inc., a
Colorado corporation and a subsidiary of the Company ("Pretzelmaker"), and
Pretzel Time, Inc., a Pennsylvania corporation and a subsidiary of the Company
(the "Guaranteeing Subsidiary" 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, and the Third Supplemental Indenture,
dated as of November 20, 1998 (as so amended, the "Indenture"), providing for
the issuance of an aggregate principal amount of up to $200.0 million of 101/8%
Notes due 2004 (the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
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, 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 Subsidiary 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
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definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary
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hereby agrees 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, 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
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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
Subsidiary, MFB, Great American, Pretzelmaker, or any
Custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or the Guaranteeing
Subsidiary, MFB, Great American, or Pretzelmaker, 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 Subsidiary shall not be entitled
to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed 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, notwithstanding 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 due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of
this Guarantee.
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(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 Subsidiary
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agrees that the Guarantee shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on
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Certain Terms.
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(a) The Guaranteeing Subsidiary 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) unconditionally
assumes all the obligations of such Guarantor,
pursuant to a supplemental indenture in form
and substance 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
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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 as an
entirety or substantially as an entirety to the Company or
another Guarantor.
5. Releases.
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(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 disposition 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
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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
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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 Subsidiary 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.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
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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 THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
9. Counterparts. The parties may sign any number of copies
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of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
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convenience only and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be responsible in any
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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 Subsidiary, MFB, Great
American, Pretzelmaker, and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: As of December 30, 1998
PRETZEL TIME, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
PRETZELMAKER HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
THE XXX. XXXXXX' BRAND, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
GREAT AMERICAN COOKIE COMPANY, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: V.P.
THE BANK OF NEW YORK,
AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
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