Exhibit 10.37
FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Fourth Amendment to Amended and Restated Loan Agreement (this "Fourth
Amendment") is made as of the 3rd day of April 2000 by ▇▇▇. ▇▇▇▇▇▇' 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"), that certain Second Amendment to Amended
and Restated Loan Agreement dated as of April 1, 1999 ("Second Amendment"), and
that certain Third Amendment to Amended and Restated Loan Agreement dated as of
February 1, 2000 ("Third Amendment") (the Amended and Restated Loan Agreement,
together with the First Amendment, the Second Amendment and the Third 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
herein are used with the meanings given such terms in the Loan Agreement.
2. Amendment. The Loan Agreement is hereby amended as follows:
(a) by deleting the definition of "Credit Facility" in its
entirety and replacing it with the following:
"Credit Facility" shall mean, with respect to the Borrower, one or
more debt facilities (including, without limitation, the debt facility
provided by this Agreement) or commercial paper facilities with banks or
other institutional lenders (including any related notes, guaranties,
collateral documents, instruments and agreements executed in connection
therewith) providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to
special purpose
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entities formed to borrow from such lenders against such receivables) or
letters of credit up to a maximum aggregate amount of not more than
$10,000,000, in each case, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time.
(b) by deleting the definition of "Revolving Loan Commitment" in
its entirety and replacing it with the following:
"Revolving Loan Commitment" shall mean Ten Million and 00/100
Dollars ($10,000,000.00).
(c) by deleting the following Section 11.3(b)(xi) in its entirety:
(xi) the incurrence by Pretzel Time of Indebtedness under a working
capital facility, provided that the aggregate principal amount of all
Indebtedness (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of Pretzel Time
thereunder) outstanding thereunder after giving effect to such incurrence,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any other Indebtedness incurred pursuant to this
clause (x), does not exceed an amount equal to $1,000,000;
3. Conditions Precedent. This Fourth Amendment shall become effective upon
completion of each of the following conditions to the reasonable satisfaction of
LaSalle:
(a) Delivery of Stock Certificates. Borrower shall deliver to
LaSalle share certificates for all of the issued and
outstanding shares of Pretzel Maker Holdings, Inc. Borrower
shall deliver to LaSalle share certificates for all of the
shares of Pretzel Time, Inc. that were previously pledged to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ which have now been released from the
pledge to ▇▇. ▇▇▇▇▇▇▇▇▇.
(b) Termination of Liens. The following Uniform Commercial Code
financing statements encumbering assets of the Borrower shall
be terminated:
(i) Number 9434060737 filed with the California Secretary of
State by Forum Financial Group, Inc.;
(ii) Number 3328767 filed with the Illinois Secretary of State
by Forum Financial Group, Inc.;
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(iii) Number 3436675 filed with the Illinois Secretary of
State by SC Three Limited Partnership;
(iv) Number 392633 filed with the Utah Secretary of State by
Home Insurance Company/Home Insurance Company of Indiana; and
(v) Book 796, Page 433 filed with Summit County, Utah by Home
Insurance Company/Home Insurance Company of Indiana.
(c) Updated Exhibit I. Borrower shall deliver to LaSalle an
updated Exhibit I to the Pledge and Security Agreement of
Borrower, listing all the shares of stock owned by the
Borrower.
(d) Corporate Deliveries. Borrower shall cause the following to be
delivered to LaSalle: corporate resolutions of Pretzel Time,
Inc., Pretzel Maker Holdings, Inc. and Great American Cookie
Company, Inc. approving each such entity's Guaranty,
guaranteeing the indebtedness of Borrower to LaSalle.
(e) Delivery of Affidavit. Borrower shall deliver to LaSalle a
property executed Affidavit, in the form attached hereto as
Exhibit A.
4. Representations and Warranties. Borrower hereby represents, warrants
and covenants to LaSalle that:
(a) Authorization. The Borrower is duly authorized to execute and
deliver this Fourth Amendment and all deliveries required
hereunder, and is and will continue to be duly authorized to
borrow monies under the Loan Agreement, as amended hereby, and
to perform its obligations under the Loan Documents.
(b) No Conflicts. The execution and delivery of this Fourth
Amendment and all deliveries required hereunder, and the
performance by the Borrower of its obligations under the Loan
Documents do not and will not conflict with any provision of
law or of the charter or by-laws of the Borrower or of any
agreement binding upon the Borrower.
(c) Validity and Binding Effect. This Fourth Amendment and the
Loan Documents are a legal, valid and binding obligation of
the Borrower, enforceable against the Borrower in accordance
with their respective
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terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable
remedies.
(d) No Events of Default. As of the date hereof, no Default or
Event of Default under the Loan Documents has occurred or is
continuing.
(e) Warranties. As of the date hereof, the representations and
warranties in the Loan Agreement are true and correct as
though made on such date, except where a different date is
specifically indicated.
5. Miscellaneous.
(a) Captions. Section captions and headings used in this Fourth
Amendment are for convenience only and are not part of and
shall not affect the construction of this Fourth Amendment.
(b) Governing Law. This Fourth Amendment shall be a contract made
under and governed by the laws of the State of Illinois,
without regard to conflict of laws principles. Whenever
possible, each provision of this Fourth Amendment shall be
interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Fourth
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 Fourth
Amendment.
(c) Counterparts. This Fourth Amendment may be executed in one or
more counterparts, each of which shall be deemed to be an
original, but all of which shall together constitute but one
and the same document.
(d) Successors and Assigns. This Fourth Amendment shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
(e) References. From and after the date of execution of this
Fourth 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 Fourth Amendment shall be deemed to include this
Fourth Amendment unless the context shall otherwise require.
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(f) Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Fourth 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
Revolving Note 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 Fourth Amendment to
Amended and Restated Loan and Security Agreement as of the date first set forth
above.
▇▇▇. ▇▇▇▇▇▇' ORIGINAL COOKIES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice-President, General Counsel
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LASALLE BANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Asst. Vice-Pres.Leveraged Finance
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EXHIBIT A
AFFIDAVIT
I, ▇▇▇▇▇ ▇▇▇▇▇▇, in my capacity as Chief Executive Officer of ▇▇▇. ▇▇▇▇▇▇'
Original Cookies, Inc. (the "Company"), hereby state that the Company currently
has no cash management, working capital, investment or other accounts of any
kind with Bankers Trust Company or ▇▇▇▇▇▇▇ ▇▇▇▇▇, or with any of their
affiliates, and hereby further state that the Company currently maintains no
accounts of any kind with any bank, investment company or other financial
institution that are not subject to a blocked account agreement, or some other
similar agreement, among the Company, such financial institution and LaSalle
Bank National Association.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer