Exhibit 10.38
FIFTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Fifth Amendment to Amended and Restated Loan Agreement (this "Fifth
Amendment") is made as of the 30th day of March 2001 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"), that certain Second Amendment to Amended
and Restated Loan Agreement dated as of April 1, 1999 ("Second Amendment"), that
certain Third Amendment to Amended and Restated Loan Agreement dated as of
February 1, 2000 ("Third Amendment"), and that certain Fourth Amendment to
Amended and Restated Loan Agreement dated as of April 3, 2000 ("Fourth
Amendment") (the Amended and Restated Loan Agreement, together with the First
Amendment, the Second Amendment, the Third Amendment and the Fourth 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 "Revolving Loan Maturity Date" in its
entirety and replacing it with the following:
"Revolving Loan Maturity Date" shall mean March 31, 2002, or unless
the Bank earlier terminates this Agreement or otherwise accelerates the
maturity of the Obligations pursuant to the terms hereof, in which case
Revolving Loan Maturity Date shall mean such earlier date.
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b. By deleting Article 7 in its entirety and replacing it with the
following:
ARTICLE 7. NON-UTILIZATION FEE.
The Borrower agrees to pay to the Bank a commitment fee in the
amount of one half of one percent (1/2 of 1%) per annum (calculated
using a year of 360 days and actual days elapsed) of the unused
portion of the Revolving Loan Commitment, payable at the Revolving
Loan Maturity Date, and prior to such date, quarterly in arrears, on
March 31st, June 30th, September 30th and December 31st of each
year.
c. By deleting Section 13.2 in its entirety and replacing it with the
following:
Section 13.2 Maximum Capital Expenditures. The Borrower shall
not make any Capital Expenditures, individually or in the aggregate,
in excess of $14,000,000 in any fiscal year.
3. Representations and Warranties. Borrower hereby represents, warrants
and covenants to LaSalle that:
(a) Authorization. The Borrower is duly authorized to execute and
deliver this Fifth 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 Fifth
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 Fifth Amendment and the Loan
Documents are a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with
their respective 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.
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(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.
4. Miscellaneous.
(a) Captions. Section captions and headings used in this Fifth
Amendment are for convenience only and are not part of and
shall not affect the construction of this Fifth Amendment.
(b) Governing Law. This Fifth 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 Fifth Amendment shall be
interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Fifth
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 Fifth
Amendment.
(c) Counterparts. This Fifth 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 Fifth 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 Fifth
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
Fifth Amendment shall be deemed to include this Fifth
Amendment unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Fifth 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
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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 Fifth 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/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Sr. Vice-President,
General Counsel
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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
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Title: Vice President, Leveraged Finance
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