FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 7, 1998, among
Archibald Candy 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 10-1/4% Senior Secured
Notes Due 2004 (the "Notes"), in the aggregate principal amount of
$100,000,000 pursuant to an Indenture between the Company and the Trustee
dated as of July 2, 1997 (the "Indenture"), and the Notes are outstanding on
the date hereof; and
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; and
WHEREAS, pursuant to a Consent Solicitation Statement, dated
November 23, 1998 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; and
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; and
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; and
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 $130,000,000 aggregate principal amount of the Notes.
The aggregate principal amount of Notes outstanding at any time may
not exceed $130,000,000 except as provided in Section 2.7 hereof.
Section 2.2 AMENDMENT TO THE "OPTIONAL REDEMPTION" PROVISION.
Section 3.7(b) of the Indenture shall be amended and restated in its
entirety as follows:
"(b) At any time or from time to time prior to July 1, 2000, the Company
may, at its option, redeem up to one-third of the aggregate principal
amount of Notes ever issued under this Indenture at a redemption price of
110.250% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the applicable redemption date, with the net cash proceeds of
one or more Public Equity Offerings; PROVIDED that (i) such redemption
shall occur within 90 days of the date of closing of such public offering
and (ii) at least two-thirds aggregate principal amount of the Notes ever
issued under this Indenture remains outstanding immediately after giving
effect to each such redemption."
Section 2.3 CONFORMING CHANGES TO THE INDENTURE.
The Indenture is otherwise amended, to the extent necessary, to permit
the issuance of up to $130,000,000 in the aggregate of the Company's 10-1/4%
Senior Secured Notes due 2004.
SECTION 3 GUARANTEE BY RESTRICTED SUBSIDIARIES
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Each of Sweet Factory Group, Inc., Sweet Factory, Inc., SF Properties,
Inc. and SF Candy Company unconditionally guarantees all of the Company's
Obligations as set forth in Section 10.7 of the Indenture.
SECTION 4 MISCELLANEOUS
Section 4.1 GOVERNING LAW.
THIS FIRST 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 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.
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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 First Supplemental Indenture,
then the terms and conditions of this First Supplemental Indenture shall
prevail.
Section 4.4 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 4.5 HEADINGS, ETC.
The Headings of the Sections of this First 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.
ARCHIBALD CANDY
CORPORATION
By: /s/ Ted A. Shepherd
Name: Ted A. Shepherd
Title: President and Chief Operating Officer
Attest:
/s/ Donna M. Snopek
Name: Donna M. Snopek
Title: Vice President Finance and Accounting
SWEET FACTORY GROUP, INC.
By: /s/ Ted A. Shepherd
Name: Ted A. Shepherd
Title: President and Chief Operating Officer
Attest:
/s/ Donna M. Snopek
Name: Donna M. Snopek
Title: Vice President Finance and Accounting
SWEET FACTORY, INC.
By: /s/ Ted A. Shepherd
Name: Ted A. Shepherd
Title: President and Chief Operating Officer
Attest:
/s/ Donna M. Snopek
Name: Donna M. Snopek
Title: Vice President Finance and Accounting
SF PROPERTIES, INC.
By: /s/ Ted A. Shepherd
Name: Ted A. Shepherd
Title: President and Chief Operating Officer
Attest:
/s/ Donna M. Snopek
Name: Donna M. Snopek
Title: Vice President Finance and Accounting
SF CANDY COMPANY
By: /s/ Ted A. Shepherd
Name: Ted A. Shepherd
Title: President and Chief Operating Officer
Attest:
/s/ Donna M. Snopek
Name: Donna M. Snopek
Title: Vice President Finance and Accounting
THE BANK OF NEW YORK, as Trustee
By: /s/ Mary LaGumina
Name: Mary LaGumina
Title: Assistant Vice President