Exhibit 10.2
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT entered into as of June 26, 2003 (this "Third Amendment"), is hereby
entered into among WELLS FARGO FOOTHILL, INC. (formerly known as Foothill
Capital Corporation), a California corporation ("Lender") and MRS. FIELDS'
ORIGINAL COOKIES, INC., a Delaware corporation ("Borrower").
RECITALS
WHEREAS, Borrower and Lender have executed and delivered that certain
Second Amended and Restated Loan and Security Agreement dated as of January 16,
2003 (as amended prior to the date hereof, and as may be further amended,
modified or supplemented from time to time, the "Loan Agreement");
WHEREAS, Borrower has requested that Lender amend the Loan Agreement as
set forth in this Third Amendment; and
WHEREAS, Lender is willing to so amend the Loan Agreement in accordance
with the terms and conditions hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and upon the terms and conditions set
forth herein Borrower and Lender hereby agree as follows:
SECTION 1. RELATION TO THE LOAN AGREEMENT; DEFINITIONS.
1.1
Relation to Loan Agreement. This Third Amendment constitutes an
integral part of the Loan Agreement and shall be deemed to be a Loan Document
for all purposes. Upon the effectiveness of this Third Amendment, on and after
the date hereof each reference in the Loan Agreement to "this Agreement,"
"hereunder," "hereof," or words of like import referring to the Loan Agreement,
and each reference in the other Loan Documents to "the Loan Agreement,"
"thereunder," "thereof" or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as amended hereby.
1.2
Capitalized Terms. For all purposes of this Third Amendment,
capitalized terms used herein without definition shall have the meanings
specified in the Loan Agreement.
SECTION 2. AMENDMENT TO LOAN AGREEMENT.
2.1
Amendment to Section 1. Section 1.1 of the Loan Agreement is
hereby amended by deleting the definition of "Adjusted EBITDA" in its entirety
and replacing it with the following definition:
"Adjusted EBITDA" means with respect to any Person for any fiscal
period, EBITDA plus (a) to the extent and only to the extent deducted from
earnings used in calculating EBITDA, the sum of $5,300,000 related to the
Wal-Mart store impairment charges incurred in June 2002 for any period that
includes the month of June 2002, (b) to the extent and only to the extent
deducted from earnings used in calculating EBITDA, non-cash charges in
compensation expense attributable to stock options granted by Parent in the
aggregate amount over the term of this Agreement of up to $2,000,000, (c) to the
extent and only to the extent deducted from earnings used in calculating EBITDA
and only to the extent not already deducted from earnings as a result of
clause (a) above, charges related to the closure of Borrower's operations in
Wal-Mart stores in an aggregate amount of up to $1,950,000, (d) to