AMENDED AND RESTATED
INTELLECTUAL PROPERTY
SECURITY AGREEMENT
This AMENDED AND RESTATED INTELLECTUAL PROPERTY SECURITY AGREEMENT
(as amended, restated, modified or supplemental from time to time, the
"Intellectual Property Security Agreement"), dated as of December 7, 1998, by
and among Xxxxxxxxx Xxxxx Corporation, an Illinois Corporation with offices
at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company"),
Sweet Factory Group, Inc., a Delaware corporation with offices at 00000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Sweet Factory, Inc., a Delaware
corporation with offices at 00000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000, SF Properties, Inc., a Delaware corporation with offices at 00000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 and SF Candy Company, a Delaware
corporation with offices at 00000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000 (collectively, the"Assignors"), and THE BANK OF NEW YORK, a New York
banking corporation with offices at 000 Xxxxxxx Xxxxxx-00X, Xxx Xxxx, Xxx
Xxxx (the "Assignee"), as Trustee for the ratable benefit of the Holders as
defined under that certain Indenture (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Company and Assignee have entered into an Indenture,
dated as of July 2, 1997 as amended by the Supplemental Indenture dated the
date hereof, between the Company, the Restricted Subsidiaries (as defined in
the Indenture) and the Assignee (together with all supplements, modifications
and amendments thereto made from time to time in accordance with its terms,
the "Indenture");
WHEREAS, the Company will issue and sell its 10 1/4% Senior Secured
Notes, due 2004 (as amended, modified or supplemented from time to time in
accordance with their terms, the "Notes") in accordance with the terms of the
Indenture;
WHEREAS, the Company and Assignee entered into that certain
Intellectual Property Security Agreement dated as of July 2, 1997 (the
"Initial Intellectual Property Security Agreement") which contemplates that
the Company and the Restricted Subsidiaries will, in order to secure their
Obligations (as defined in the Indenture), grant to Assignee, for the ratable
benefit of the Holders (as such term is defined in the Indenture), a security
interest in and continuing lien upon the Intellectual Property and certain
other assets relating to or connected therewith, as further set forth herein,
and the Assignors have been requested to enter into this Agreement to
evidence such security interest;
WHEREAS, Assignors own all right, title and interest in and to,
among other things, certain United States, state and foreign trademarks,
service marks, patents, copyrights, trade names, trade dress, trade secrets,
know-how and other proprietary information, and all registrations of and
applications for any of the foregoing, including, but not limited to, those
set forth on EXHIBIT 1 hereto, which are used in the business of the
Assignors, along with the goodwill of the businesses symbolized thereby, any
inventions disclosed therein and the Licenses (as hereinafter defined) (all
of the above, collectively, the "Intellectual Property"); and
WHEREAS, the Company and the Assignee have agreed to amend and
restate the Initial Intellectual Property Security Agreement in its entirety
as set forth herein.
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for valuable
consideration received and to be received, as security for the full payment
and performance of the Obligations, each of the Assignors and Assignee hereby
agree as follows:
1. AMENDMENT AND RESTATEMENT. The Intellectual Property Security
Agreement, dated as of July 2, 1997, between the Company and the Assignee, is
hereby amended and restated in its entirety as set forth in this Amended and
Restated Intellectual Property Security Agreement.
2. GRANT OF SECURITY INTEREST. As collateral security for the
due and punctual payment and performance of the Obligations, each of the
Assignors hereby grants to Assignee a security interest in and continuing
lien on each Assignors' right, title and interest in, to and under the
following property of each of the Assignors:
(a) the Intellectual Property;
(b) all applications of and registrations for the Intellectual
Property in the United States, any state of the United States
and any foreign countries and localities;
(c) all United States, state and foreign trademarks, service marks,
patents, copyrights, trade names, trade dress, trade secrets,
know-how and other proprietary information, and all registrations
of, applications for and licenses relating to any of the
foregoing hereafter adopted or acquired and used by any of the
Assignors or any Subsidiary in its business, including, but not
limited to, those which are based upon or derived from the
Intellectual
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Property or any variations thereof (the "Future Intellectual
Property");
(d) all extensions and renewals of all United States, state and
foreign trademarks, service marks, trade names and copyrights,
and any registrations thereof and applications therefor,
contained within the Intellectual Property and Future
Intellectual Property;
(e) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and re-examinations of any United States and
foreign patents, and any applications therefor, contained within
the Intellectual Property and Future Intellectual Property;
(f) all rights to xxx for past, present and future infringements of
the Intellectual Property and the Future Intellectual Property,
and all rights to xxx under any licenses ("Licenses") relating to
trademarks, service marks, patents, copyrights, trade names,
trade dress, trade secrets, know-how and other proprietary
information used in the business of any of the Assignors (other
than any Licenses that, by their terms, are not assignable, and
for which consents cannot be obtained under Section 6 hereof);
(g) all of the Assignors' logos and trade dress including, containing
or relating to the Intellectual Property, the Future Intellectual
Property, and the trademarks, service marks and trade names
covered by the Licenses, or a representation thereof, or any
variation thereof;
(h) all licenses and other agreements under which each of the
Assignors is licensor or licensee (including without limitation,
the Licenses (other than any licenses or other agreements that,
by their terms, are not assignable, and for which consents cannot
be obtained under Section 6 hereof)), and all fees, rents,
royalties, proceeds or monies thereunder, relating to the
Intellectual Property, the Future Intellectual Property, or any
other intellectual property or related rights;
(i) all goodwill of each of the Assignors' business connected with,
symbolized by or in any way related to any of the foregoing;
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(j) all of the Assignors' inventions disclosed in any of the
foregoing;
(k) all of the Assignors' books, records, computer software (to the
extent assignable, subject to Section 6 hereof), computer print-
outs, manuals and similar items which relate to any of the
foregoing; and
(l) all proceeds of any of the foregoing, including without
limitation, license royalties, income, payments, claims, damages,
insurance proceeds and proceeds of suit.
All of the foregoing items set forth in clauses (a) through (l) are hereinafter
referred to collectively as the "Collateral".
3. DEFINED TERMS. As used herein, capitalized terms defined in the
Indenture and not otherwise defined herein are used herein as so defined. The
following terms shall have the meanings set forth below:
BANK LENDERS shall mean the lenders under the Bank Loan Documents.
BANK LOAN DOCUMENTS shall mean the Revolving Credit Facility.
EVENT OF DEFAULT shall have the meaning set forth in the Indenture.
FINANCING DOCUMENTS shall mean the Indenture, the Notes, the Security
Agreement, this Agreement, and the other documents and agreements referred to
herein or therein, or delivered in connection herewith or therewith, as same may
from time to time be amended, modified, waived or supplemented in accordance
with their respective terms.
FUTURE INTELLECTUAL PROPERTY shall have the meaning set forth in
Section 21(c) hereof.
INTELLECTUAL PROPERTY shall have the meaning set forth in the third
Whereas clause hereof.
LICENSES shall have the meaning set forth in Section 2(f) hereof.
SUBSIDIARY shall have the meaning set forth in the Indenture.
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4. ASSIGNORS' OBLIGATIONS. Each of the Assignors agrees that,
notwithstanding this Agreement, it will perform and discharge and remain
liable for all its covenants, duties, and obligations arising in connection
with the Collateral. Assignee shall have no obligation or liability in
connection with the Collateral by reason of this Agreement or any payment
received by Assignee relating to the Collateral and Assignee shall not be
required to perform any covenant, duty or obligation of any of the Assignors
arising in connection with the Collateral or any license or agreement related
thereto or to take any other action regarding the Collateral, except and only
to the extent that Assignee has acquired, for the ratable benefit of the
Holders, absolute ownership of the Collateral upon an exercise of remedies
under Section 7 hereof.
5. REPRESENTATIONS AND WARRANTIES. Each of the Assignors
represents and warrants to Assignee that: (a) EXHIBIT 1 hereto sets forth a
complete and accurate list of all of such Assignor's United States and state
registrations of and applications for those trademarks, service marks,
patents and copyrights material to the conduct of any Assignors' business,
all Licenses material to the business of any of the Assignors, and all
unregistered trademarks, service marks, trade names and copyrights used by
any of the Assignors which are material to the business of any of the
Assignors; (b) each of the Assignors is the sole, exclusive, beneficial and
record owner of all right, title and interest in and to the Collateral
material to the conduct of such Assignor's business, and no adverse claims
have been made with respect to its title to or the validity of such
Collateral; (c) the Intellectual Property and the trademarks, service marks,
patents, copyrights, trade names, trade dress, trade secrets, know-how and
other proprietary information covered by the Licenses constitute the only
intellectual property, and registrations thereof and applications therefor,
in which any of the Assignors has any right, title or interest; (d) none of
the Collateral is subject to any mortgage, pledge, lien, security interest,
lease, charge or encumbrance, other than as created hereby; (e) the
registrations of those trademarks, service marks, patents and copyrights
material to the conduct of any Assignors' business are subsisting, and, to
the best of each of the Assignor's knowledge, valid, and none of the
Collateral of such Assignor has been adjudged invalid or unenforceable, and
each of the Assignors has performed all acts and has paid all renewal,
maintenance and other fees and taxes required to maintain in full force and
effect each and every registration and application contained within the
Collateral to the extent material to the conduct of such Assignors' business;
(f) no claims have been made that the use of any of the Collateral material
to the conduct of any Assignors' business violates the asserted rights of any
third party and, to the best of each of the Assignors' knowledge, the conduct
of such Assignors' business does not infringe in any material respect upon
any intellectual property rights of any third party; (g) to the best of each
of the Assignors' knowledge, no third party is infringing in any material
respect upon any of the Collateral; (h) provided that this Agreement is filed
in and recorded by the United States Patent and Trademark Office (the "PTO")
within three
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(3) months of the date hereof and the United States Copyright Office
("Copyright Office") within one (1) month of the date hereof, and provided
that UCC financing statements have been filed in the jurisdictions listed on
EXHIBIT 3 hereto, this Agreement will create a legal, valid, perfected and
continuing lien on and security interest in the Collateral so filed and
recorded in favor of Assignee, enforceable against each of the Assignors and
all third parties, subject to no other mortgage, assignment, pledge, lien,
charge, encumbrance, or security or other interest except for a non-exclusive
license granted to Bank Lenders in connection with inventory sales after an
event of default under the Bank Loan Documents; and (i) none of Assignors'
Subsidiaries owns any intellectual property of any nature whatsoever, other
than their respective trade names, or conducts any business whatsoever.
6. COVENANTS. Each of the Assignors will maintain and renew all
items of Collateral of such Assignor, and any U.S. applications therefor and
U.S. registrations thereof, necessary or economically desirable for the conduct
of its business and will defend the Collateral against the claims of all
persons. Each of the Assignors will, promptly following the creation or
acquisition of any copyrightable work which is necessary or economically
desirable for the conduct of its business, apply to register the copyright in
the Copyright Office. Each of the Assignors will maintain, and will cause each
licensee which uses any of the Collateral to maintain, the same standards of
quality for the goods and services in connection with which the Collateral is
used as each of the Assignors maintained for such goods and services prior to
the date of this Agreement. Assignee shall have the right to enter upon any of
the Assignors' premises at all reasonable times to monitor such quality
standards. Each of the Assignors shall promptly notify Assignee if it knows or
has received written notice that any of the Collateral material to the conduct
of any Assignors' business may lapse, expire, become dedicated to the public,
terminate, be abandoned, or become subject to any adverse determination or
development (including the institution of proceedings) in any action or
proceeding before the PTO, the Copyright Office, any state registry, any foreign
counterpart of the foregoing, or any court. In the event that any material
portion of the Collateral is infringed or diluted by a third party, promptly
after any of the Assignors becomes aware of such infringement or dilution, such
Assignors shall take all reasonable actions to stop such infringement or
dilution and protect its exclusive rights in such Collateral. Without limiting
the generality of the foregoing, none of the Assignors shall permit the lapse,
expiration, dedication to the public, termination or abandonment of any
Intellectual Property, Future Intellectual Property or License material to the
conduct of its business without the prior written consent of Assignee. If,
before the Obligations have been satisfied in full, any of the Assignors shall
obtain rights to, become licensed to use, or become entitled to the benefit of
any new trademarks, service marks, patents, copyrights, trade names, trade
dress, trade secrets, know-how or other proprietary information (or any
applications therefor or registrations thereof) not identified on
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EXHIBIT 1 hereto, the provisions of this Agreement (including, without
limitation, all requirements for filings, recordings, registrations and the
like) shall automatically apply thereto, and same shall thereupon constitute
part of the Collateral. Each of the Assignors shall give Assignee prompt
notice thereof in writing, and shall take all actions necessary to create,
perfect and preserve the Assignee's security interest therein (to the extent
capable of being created, perfected or preserved under the laws of the United
States or any state thereof) in connection therewith. Except with the prior
written consent of Assignee, or as permitted by the Indenture, none of the
Assignors shall sell, assign, transfer or dispose of (other than in the
ordinary course of such Assignors' business), or create or allow to exist any
lien, claim or encumbrance upon or with respect to any of the Collateral,
except for the security interest and continuing lien created hereunder and
other Permitted Liens. If any of the Assignors forms or acquires any
Restricted Subsidiary (as defined in the Indenture), or any Subsidiary
existing as of the date hereof hereafter engages in any business, then the
Assignors covenant and agree that they shall cause each such Restricted
Subsidiary to enter into a security agreement with Assignee, in substantially
the form of this Agreement, covering all such Restricted Subsidiary's
intellectual property and related rights. Each of the Assignors will use
reasonable commercial efforts to obtain any third-party consents required in
connection with the grant of a security interest in any Collateral.
7. REMEDIES UPON DEFAULT. Whenever any Event of Default shall
occur and be continuing, Assignee shall have all the rights and remedies
granted to it in such event by the Security Agreement and the other Financing
Agreements, which rights and remedies are specifically incorporated herein by
reference and made a part hereof, with the same force and effect as if set
forth herein in their entirety. Assignee in such event may collect directly
any payments due to any of the Assignors in respect of the Collateral and,
subject to any limitations imposed under any license agreements constituting
part of the Collateral, may sell, license, lease, assign, or otherwise
dispose of the Collateral in any manner set forth in the Security Agreement.
Each of the Assignors agrees that, in the event of any disposition of the
Collateral upon any such Event of Default, it will duly execute, acknowledge,
and deliver all documents necessary or advisable to record title to the
Collateral in any transferee or transferees thereof, including, without
limitation, valid, recordable assignments of the Intellectual Property, the
Future Intellectual Property, and the Licenses. Each of the Assignors hereby
irrevocably appoints Assignee as its attorney-in-fact, with power of
substitution, to execute, deliver, and record any such documents on each
Assignors' behalf. Notwithstanding any provision hereof to the contrary,
during the continuance of an Event of Default, the Bank Lenders may have,
under the Bank Loan Documents, a non-exclusive license to sell inventory
bearing any trademarks, service marks, trade names and trade dress included
within the Intellectual Property or the Future Intellectual Property, or
covered by the Licenses.
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8. POWER OF ATTORNEY. Concurrently with the execution and
delivery hereof, each of the Assignors shall execute and delivery to the
Assignee, in the form of EXHIBIT 2 hereto, five (5) originals of a Special
Power of Attorney for the implementation of the assignment, sale, license,
lease or other disposition of the Intellectual Property, Future Intellectual
Property, and Licenses pursuant to Section 7. Each of the Assignors hereby
fully and unconditionally releases Assignee from any and all future claims,
causes of action and demands at any time arising out of or with respect to
any actions taken or omitted to be taken by Assignee in accordance with
Section 7 under the powers of attorney granted therein, other than actions
taken or omitted to be taken through the willful misconduct or gross
negligence of Assignee.
9. CUMULATIVE REMEDIES. The rights and remedies provided herein
are cumulative and not exclusive of any other rights or remedies provided by
law. The security interest granted hereby is granted in conjunction with the
security interest granted to Assignee under the Security Agreement. The
rights and remedies of Assignee with respect to the security interest granted
hereby are in addition to those set forth in the Security Agreement and those
which are now or hereafter available to Assignee as a matter of law or
equity. The exercise by Assignee of any one or more of the rights, powers or
remedies provided for in this Agreement or the Security Agreement, or now or
hereafter existing at law or in equity shall not preclude the simultaneous or
later exercise by any person, including Assignee, of any or all other rights,
powers or remedies. The rights and remedies provided herein are intended to
be in addition to and not in substitution of the rights and remedies provided
by the Security Agreement.
10. AMENDMENTS AND WAIVERS. This Agreement may not be modified,
supplemented, or amended, or any of its provisions waived without the prior
written consent of Assignee and each of the Assignors. Each of the Assignors
hereby authorizes Assignee to modify this Agreement by amending EXHIBIT 1
hereto to include any Future Intellectual Property or additional licenses in
which any of the Assignors acquires rights.
11. ACTIONS BY TRUSTEE. Whenever any provision of this Agreement
requires action or waiver, by, or the consent of, the Assignee, Assignee
shall only be required to take or refrain from taking such action or grant or
withhold any waiver or consent when 25% in outstanding principal amount of
the Notes shall have instructed the Trustee in writing.
12. WAIVER OF RIGHTS. No course of dealing between the parties to
this Agreement or any failure or delay on the part of any such party in
exercising any rights or remedies hereunder shall operate as a waiver of any
rights and remedies of such
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party or any other party, and no single or partial exercise of any rights or
remedies by one party hereunder shall operate as a waiver or preclude the
exercise of any other rights and remedies of such party or any other party.
No waiver by Assignee of any breach or default by any of the Assignors shall
be deemed a waiver of any other previous breach or default or of any breach
or default occurring thereafter.
13. ASSIGNMENT. The provisions of this Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
parties hereto; PROVIDED, HOWEVER, that no right, obligation, duty or interest
herein or in or to the Collateral may be assigned, transferred or disposed of by
any of the Assignors without the prior written consent of Assignee, except as
permitted by Section 6 hereof.
14. FURTHER ACTS. Each of the Assignors shall have the duty to
prosecute diligently any application for the Intellectual Property and Future
Intellectual Property material to the conduct of its or any Subsidiary's
business pending as of the date of this Agreement or thereafter, until the
Obligations shall have been paid in full, and to make applications on material
unregistered but registrable trademarks, service marks, copyrights and patents
material to the conduct of its or any Subsidiary's business in any location in
the United States where the Assignors or such Subsidiary does business using
such Intellectual Property and to preserve and maintain all rights in and to the
Collateral material to the conduct of its or any Subsidiary's business. Any
expenses incurred in connection with such applications shall be borne jointly by
the Assignors.
15. ENFORCEMENT. While an Event of Default shall be continuing,
Assignee shall have the right, if any of the Assignors has failed to do so but
shall in no way be obligated to, bring suit in its own name to enforce any
rights in and to the Collateral, in which event the Assignors shall do any and
all lawful acts and execute any and all proper documents in aid of such
enforcement including, but not limited to, joining as a plaintiff in any such
enforcement action and the Assignors shall promptly, upon demand, reimburse and
indemnify Assignee for all costs and expenses (including fees and expenses of
its agents and counsel) incurred by Assignee in the exercise of its rights under
this Section 15.
16. RELEASE AND RE-ASSIGNMENT. As provided for in the Indenture, or
at such time as all of the Obligations have been satisfied, and the Indenture
has been terminated, Assignee will execute and deliver to the Assignors all
deeds, assignments and other instruments as may be necessary or proper to
release Assignee's lien in the Collateral and reassign to the Assignors any and
all rights of Assignee therein which were granted to Assignee hereunder, subject
to any dispositions thereof which may have been made by Assignee pursuant
hereto.
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17. SEVERABILITY. If any clause or provision of this Agreement shall
be held invalid or unenforceable, in whole or in part, in any jurisdiction, such
invalidity or unenforceability shall attach only to such clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect any other
clause or provision in any other jurisdiction.
18. NOTICES. All notices, requests and demands to or upon any of the
Assignors or Assignee under this Agreement shall be given in the manner
prescribed by the Security Agreement.
19. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
20. NOTES EQUALLY AND RATABLY SECURED. Each Note will be equally
and ratably secured with each other Note hereunder, regardless of the date of
issuance of such Note.
21. RELEASE OF GUARANTOR. If in accordance with the terms and
provisions of the Indenture, any Guarantor (as defined in the Indenture) is
designated by the Company to be an Unrestricted Subsidiary (as defined in the
Indenture), then such Guarantor will be released and discharged from all of its
obligations under its Guaranty (as defined in the Indenture) of the Notes and
the Indenture.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have entered into this Intellectual
Property Security Agreement as of the date first above written.
ASSIGNORS
Xxxxxxxxx Xxxxx Corporation
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
Sweet Factory Group, Inc.
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
Sweet Factory, Inc.
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------------
Name: Xxx. X. Xxxxxxxx
Title: President and Chief Operating Officer
SF Properties, Inc.
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
SF Candy Company
By: /s/ Xxx X. Xxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating Officer
THE BANK OF NEW YORK, for the ratable
benefit of the Holders, as Assignee
By: /s/ Xxxx XxXxxxxx
--------------------------------------------
Name: Xxxx XxXxxxxx
Title: Assistant Vice President
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STATE OF ILLINOIS )
) ss:
COUNTY OF XXXX )
On the 7th day of December 1998 before me personally came Xxx X.
Xxxxxxxx, to me known, who being by me duly sworn, did depose and say that
he/she is the President of Xxxxxxxxx Xxxxx Corporation, the corporation
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by order of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss:
COUNTY OF XXXX )
On the 7th day of December 1998 before me personally came Xxx X.
Xxxxxxxx, to me known, who being by me duly sworn, did depose and say that he
/she is the President of Sweet Factory Group, Inc., the corporation described in
and which executed the foregoing instrument; and that he/she signed his/her name
thereto by order of the Board of Directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss:
COUNTY OF XXXX )
On the 7th day of December 1998 before me personally came Xxx X.
Xxxxxxxx, to me known, who being by me duly sworn, did depose and say that
he/she is the President of SF Properties, Inc., the corporation described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by order of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxxx
--------------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss:
COUNTY OF XXXX )
On the 7th day of December 1998 before me personally came Xxx X.
Xxxxxxxx, to me known, who being by me duly sworn, did depose and say that
he/she is the President of SF Candy Company, the corporation described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by order of the Board of Directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------------------
Notary Public
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 7th day of December 1998 before me personally came Xxxx
XxXxxxxx, to me known, who being by me duly sworn, did depose and say that
he/she is a Assistant Vice President of THE BANK OF NEW YORK, a New York banking
corporation described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by order of the Board of Directors of said
banking corporation.
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
Notary Public
