THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Third Amendment to Amended and Restated Loan Agreement (this "Third
Amendment") is made as of the 31/st/ day of March, 1999 by Xxx. Xxxxxx' Original
Cookies, Inc., a Delaware corporation ("Borrower"), and LaSalle Bank National
Association, a national banking association ("LaSalle").
W I T N E S S E T H:
WHEREAS, Borrower and LaSalle are all of the parties to that certain
Amended and Restated Loan Agreement dated as of February 28, 1998, as amended by
that certain First Amendment to Amended and Restated Loan Agreement dated as of
July 31, 1998 (the "First Amendment"), and that certain Second Amendment to
Amended and Restated Loan Agreement dated as of April 1, 1999 ("Second
Amendment") (the Amended and Restated Loan Agreement, together with the First
Amendment and the Second Amendment, as further amended, restated, modified or
supplemented and in effect from time to time, being herein referred to as the
"Loan Agreement"); and
WHEREAS, Borrower has requested that LaSalle amend the Loan Agreement with
respect to certain matters, and LaSalle is agreeable to such request, on and
subject to the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agrees as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
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herein are used with the meanings given such terms in the Loan Agreement.
2. Amendment. The Loan Agreement is hereby amended as follows:
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(1) by deleting Section 13.1 in its entirety and replacing it
with the following:
Section 13.1 Minimum Debt Service Coverage Ratio. The Borrower shall
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maintain a minimum Debt Service Coverage Ratio, (a) measured as of
March 31, 1999 and June 30, 1999 and for the four fiscal quarters then
ended, of 0.90 to 1.00, and (b) measured as of the end of any other
fiscal quarter of the Borrower and for the four fiscal quarters then
ended, of 1.10 to 1.00; provided, however, that for purposes of this
Section 13.1, for any four fiscal quarter period that includes any
period of time prior to November 27, 1997 (a "Pre-Reorganization
Period"), determination of the numerator and denominator of the Debt
Service Coverage Ratio shall be based on actual consolidated financial
information for the Borrower and its Subsidiaries for
the period occurring after November 26, 1997 and pro forma
consolidated financial information for the Borrower, The Xxx. Xxxxxx'
Brand, Inc. and Pretzel Time for the applicable Pre-Reorganization
Period (determined in accordance with GAAP as if the Borrower owned
the same interests in The Xxx. Xxxxxx' Brand, Inc. and Pretzel Time as
it owns on the date of this Agreement, but subject to the condition
that such consolidated financial information of the Borrower with
respect to such Pre-Reorganization Period may be adjusted to eliminate
certain historical expenses that are not expected to recur after the
consummation of the Pretzel Contributions on November 26, 1997 so long
as such adjustments are not deemed to be contrary to the requirements
of Regulation S-X under the Securities Act of 1933 (the "Securities
Act") by an Accounting Firm and the further condition that, in
calculating the Debt Service Coverage Ratio for any period, to the
extent that the proceeds from the incurrence of any Indebtedness are
to be used to fund the acquisition of Equity Interests, the Borrower
may include any pro forma adjustments permitted by Regulation S-X
under the Securities Act in its calculation of the amount of Free Cash
Flow that relates solely to such acquisition, so long as such pro
forma adjustments are not deemed to be contrary to the requirements of
Rule 11-02 of Regulation S-X under the Securities Act in writing by an
Accounting Firm.)
3. Miscellaneous.
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(1) Captions. Section captions and headings used in this Third
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Amendment are for convenience only and are not part of and shall
not affect the construction of this Third Amendment.
(2) Governing Law. This Third Amendment shall be a contract made and
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under governed by the laws of the State of Illinois, without
regard to conflict of laws principles. Whenever possible, each
provision of this Third Amendment shall be interpreted in such a
manner as to be effective and valid under applicable law, but if
any provision of this Second Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Third Amendment.
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(3) Counterparts. This Third Amendment may be executed in one or more
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counterparts, each of which shall be deemed to be an original,
but all of which shall together constitute but one and the same
document.
(4) Successors and Assigns. This Third Amendment shall be binding
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upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
(5) References. From and after the date of execution of this Third
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Amendment, any reference to the Loan Agreement or the other Loan
Documents contained in any notice, request, certificate or other
instrument, document or agreement executed concurrently with or
after the execution and delivery of this Third Amendment shall be
deemed to include this Third Amendment unless the context shall
otherwise require.
(6) Continued Effectiveness. Notwithstanding anything contained
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herein, the terms of this Third Amendment are not intended to and
do not serve to effect a novation as to the Loan Agreement. The
parties hereto expressly do not intend to extinguish the Loan
Agreement. Instead, it is the express intention of the parties
hereto to reaffirm the indebtedness created under the Loan
Agreement which is evidenced by the Notes provided for therein
and secured by the Collateral. The Loan Agreement, except as
modified hereby, and each of the other Loan Documents remain in
full force and effect and are hereby reaffirmed in all respects.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Amended and Restated Loan and Security Agreement as of the date first set forth
above.
XXX. XXXXXX' ORIGINAL COOKIES, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Chief Executive Officer
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LASALLE BANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President Leveraged Finance
