Exhibit 10.1
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT entered into as of this 23 day of April, 2003 (this "Second
Amendment"), is hereby entered into among 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 by that certain First Amendment dated as of March 6, 2003 to the
Second Amended and Restated Loan and Security Agreement (as may be further
amended, modified or supplemented from time to time, the "Loan Agreement");
WHEREAS, pursuant to SFAS #144, GAAP now requires all United States
reporting companies to report asset impairment expense as a detailed line item
on their income statements, separate from depreciation and amortization;
WHEREAS, until December 28, 2002 Borrower included the value of asset
impairment expense as part of the value of amortization and depreciation, not as
a separate item, when calculating EBITDA under the Loan Agreement; and
WHEREAS, Borrower has requested that the definition of EBITDA in the
Loan Agreement be amended to accurately reflect asset impairment expense as an
item separate from amortization and depreciation;
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 Second 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 Second 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 Second 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 "EBITDA" in its entirety and
replacing it with the following definition:
"EBITDA" means, with respect to any fiscal period, Borrower's and its
Subsidiaries' consolidated net earnings (or loss), minus extraordinary gains and
interest income, plus interest expense, income taxes, depreciation and
amortization, and non-cash asset impairment expense (other than any asset
impairment expenses related to the Wal-Mart store impairment charges incurred in
June 2002) for such period, as determined in accordance with GAAP.
SECTION 3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS.
3.1
Representations.
Borrower and each Guarantor hereby represents and warrants to