Exhibit 10.40
AMENDMENT NO. 1
TO
MANAGEMENT AGREEMENT
This Amendment No. 1, dated as of December 22, 2000 (this "Amendment"), to
the Management Agreement, dated as of May 31, 2000 (the "Existing Agreement"),
by and among Xxx. Xxxxxx' Original Cookies, Inc. ("Xxx. Xxxxxx"), a Delaware
corporation, TCBY Holding Company, Inc., a Delaware corporation ("Holding"),
and TCBY Systems, LLC, a Delaware limited liability company ("Systems" and,
together with Holding, "TCBY"). Capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed thereto in the Existing
Agreement.
R E C I T A L S
WHEREAS, the Parties desire to amend certain terms of the Existing
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Amendment.
1.1 The Existing Agreement is hereby amended by deleting Section 5.5 and
inserting the following in lieu thereof:
"5.5 Americana Sale Advisory Fee. For Services rendered and to be rendered to
TCBY in connection with the planned sale of the stock or assets of
Americana (the "Americana Sale"), Holding agrees to pay (solely from
Americana Proceeds, as defined below), or cause Americana to pay, to Xxx.
Xxxxxx a transaction advisory fee (the "Americana Sale Advisory Fee") of
$2,500,000 in one or more installments (and taking into account for this
purpose all such payments from and after the Effective Date of this
Agreement) promptly upon cash in such amount being available for such
purpose either from excess working capital of Americana ("Excess Americana
Working Capital") or from proceeds of the Americana Sale after the payment
of the Americana Mortgage (such proceeds, together with the Excess
Americana Working Capital, the "Americana Proceeds"). Until such time as
the Senior Debt and the Subordinated Notes shall be fully repaid
(together with all interest and other amounts
owing), the Americana Sale Advisory Fee shall be a non-recourse obligation
of Holding (with recourse limited solely to Americana Proceeds actually
received and retained at such time by Holding), and shall in no event be
an obligation of TCBY. No failure by Holding to pay or cause to be paid
the Americana Sale Advisory Fee when due (including notwithstanding any
receipt of Americana Proceeds by Holding) shall give Xxx. Xxxxxx the right
to collect (by setoff or otherwise) or otherwise proceed against TCBY, or
to terminate or setoff under this Agreement."
2. Miscellaneous.
2.1 This Amendment shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns.
2.2 In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in
any way be affected or impaired thereby.
2.3 Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other
purpose or be given any substantive effect.
2.4 THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
2.5 This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original,
but all such counterparts together shall constitute but one and the
same instrument.
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2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Sr. V.P.
TCBY HOLDING COMPANY, INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Sr. V.P.
TCBY SYSTEMS, LLC
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Sr. V.P.
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