AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT
AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT (this "Agreement")
dated as of January 31, 1997, by and among Chocamerican, Inc., a Delaware
corporation ("Chocamerican"), The Prudential Insurance Company of America, a New
Jersey mutual insurance company ("Prudential"), Principal Mutual Life Insurance
Company, an Iowa corporation ("Principal"), Pruco Life Insurance Company, an
Arizona corporation ("Pruco"), Contrarian Capital Advisors, L.L.C., a Delaware
limited liability company, as agent ("Contrarian"), Xxx. Xxxxxx Inc., a Delaware
corporation ("MFI"), Xxx. Xxxxxx Holding Company, Inc., a Delaware corporation
("Holding", and together with Contrarian, Chocamerican, Prudential, Principal,
Pruco and MFI, and their respective successors and assigns and any transferee of
any of the Notes, the "Subordinated Beneficiaries"), LaSalle National Bank, a
national banking association (together with its successors and assigns and any
transferee of any "LaSalle Notes" (as defined below), the "Senior
Beneficiaries") (collectively, the Subordinated Beneficiaries and the Senior
Beneficiaries are herein referred to as the "Beneficiaries"), Xxx. Xxxxxx'
Original Cookies, Inc., a Delaware corporation (with its successors, the "Store
Company"), as a grantor of the security interests and liens in the Collateral
referred to below, and Xxx. Xxxxxx Cookies Australia, a Utah corporation ("Xxx.
Xxxxxx Australia"), Fairfield Foods, Inc., a New Jersey corporation
("Fairfield"), and Xxx. Xxxxxx' Other Names, Inc., a Delaware corporation ("Xxx.
Xxxxxx' Other Names") also as grantors of the security interests and liens in
the Collateral referred to below, and The Bank of New York, as collateral agent
appointed pursuant to this Agreement (the "Collateral Agent") in connection with
(i) that certain Senior Note and Senior Subordinated Note Agreement (the "Note
Agreement"), dated as of September 18, 1996, among the Subordinated
Beneficiaries and the Store Company, and (ii) that certain Loan Agreement (as
amended, restated, modified or supplemented and in effect from time to time, the
"Loan Agreement") dated as of January __, 1997 between the Senior Beneficiaries
and the Store Company and the Revolving Note issued by the Store Company
thereunder (as amended, restated, modified or supplemented and in effect from
time to time, and including any replacement notes issued therefor, the "LaSalle
Notes").
RECITALS
-38-
WHEREAS, in connection with closing of the transactions contemplated by
the Note Agreement, the Store Company, Xxx. Xxxxxx Australia and Fairfield
executed and delivered in favor of the Collateral Agent, as agent for the
Subordinated Beneficiaries, that certain Security Agreement dated as of
September 18, 1996, and those certain Trademark Security Agreement and Copyright
Security Agreement, each dated as of September 18, 1996, referred to in such
Security Agreement; and (ii) the Store Company executed and delivered in favor
of the Collateral Agent, as agent for the Subordinated Beneficiaries, that
certain Stock Pledge Agreement dated as of September 18, 1996; and (iii) that
certain Collateral Agency Agreement by and among the Subordinated Beneficiaries,
the Store Company and the Collateral Agent; and
WHEREAS, the Store Company has requested that the Senior Beneficiaries
make certain loans and extensions of credit to the Store Company on and subject
to the terms and conditions of the Loan Agreement and, in connection therewith,
Xxx. Xxxxxx' Other Names is becoming a party to the Security Documents (other
than the Stock Pledge Agreement); and
WHEREAS, it is a condition precedent to the obligation of the Senior
Beneficiaries to make loans and extensions of credit to the Store Company under
the Loan Agreement that the parties amend and restate the Collateral Agency
Agreement in its entirety as set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
foregoing recitals and the mutual covenants and promises set forth herein, the
parties hereto agree as follows:
ARTICLE I
AMENDMENT AND RESTATEMENT
The Collateral Agency Agreement dated as of September 18, 1996 by and
among the Subordinated Beneficiaries, the Store Company and the Collateral Agent
is hereby amended and restated in its entirety as set forth in this Amended and
Restated Collateral Agency Agreement. Concurrently with such amendment and
restatement, LaSalle, as the sole Senior Beneficiary at this time, and Xxx.
Xxxxxx' Other Names are becoming parties hereto.
ARTICLE II
TERMS AND DEFINITIONS
2.1 Definitions. (a) Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Note
Agreement.
(b) For purposes of this Agreement, the following terms shall have the
meanings indicated:
"Event of Default" means each "Event of Default" as defined in
the Loan Agreement and each "Event of Default" as defined in the Note
Agreement.
"Intercreditor Agreement" shall mean that certain
Subordination and Intercreditor Agreement dated as of January 31, 1997
by and among the Subordinated Beneficiaries parties hereto, LaSalle and
the Store Company, as the same may be amended, restated, modified or
supplemented and in effect from time to time.
"LaSalle" means LaSalle National Bank, a national banking association.
"LaSalle Obligations" means the obligations of the Store
Company and its Subsidiaries from time to time under the Loan Agreement
(or while any commitment of LaSalle remains in effect thereunder), the
LaSalle Notes and the other "Loan Documents" referred to in the Loan
Agreement.
"Majority Bank Lenders" means the holders of at least a
majority in dollar amount of the aggregate unpaid principal amount of
the LaSalle Obligations at the time outstanding.
"Majority Lenders" means (i) for so long as both Senior Notes
and LaSalle Obligations remain outstanding, the holders of at least a
majority in dollar amount of the aggregate unpaid principal amount then
outstanding of (x) the LaSalle Obligations, plus (y) the Senior Notes;
(ii) for so long as both Senior Subordinated Notes and LaSalle
Obligations remain outstanding and none of the Senior Notes remain
outstanding, the holders of at least a majority in dollar amount of the
aggregate unpaid principal amount then outstanding of (x) the LaSalle
Obligations, plus (y) the Senior Subordinated Notes; (iii) at any time
when no LaSalle Obligations remain outstanding and all obligations of
the Senior Beneficiaries to make loans or extensions of credit to the
Store Company under the Loan Agreement have terminated and are of no
further force or effect, the Majority Note Lenders; and (iv) at any
time when no Note Obligations remain outstanding, the Majority Bank
Lenders.
"Majority Note Lenders" means (i) for so long as any Senior
Notes remain outstanding, the Majority Chocamerican Senior Lenders and
the Majority MFI Lenders (as each such term is defined in the Note
Agreement) and (ii) if none of the Senior Notes remain outstanding, the
Majority Senior Subordinated Lenders (as such term is defined in the
Note Agreement).
"Note Obligations" means the "Obligations" as defined in the Note Agreement.
"Security Documents" means the agreements referred to in the
first WHEREAS clause hereto, as the same may be amended, restated
modified or supplemented and in effect from time to time.
"Standstill Notice" means a written notice from the Majority
Bank Lenders to the Collateral Agent stating (i) that a "Senior
Indebtedness Covenant Default" (as defined in the Intercreditor
Agreement) is in existence, (ii) identifying a "Payment Blockage
Commencement Date" under the Intercreditor Agreement, and (iii)
directing the Collateral Agent, for the duration of the Standstill
Period commencing on the specified Payment Blockage Commencement Date,
to disregard any instructions from the Subordinated Beneficiaries
directing the Collateral Agent to initiate or maintain any suit or
other legal proceeding or other action seeking to sell or otherwise
dispose of or otherwise exercise remedies in respect of any Collateral.
"Standstill Period" means the period of time beginning on a
"Payment Blockage Commencement Date" specified by the Majority Bank
Lenders in a Standstill Notice, and ending upon the earlier of:
(i) the date upon which the Majority Bank Lenders
notify the Collateral Agent that such Standstill Period has
terminated; or
(ii) the date which is 120 days after the specified
Payment Blockage Commencement Date; or
(iii) the date (the "Omega Date") upon which such
Standstill Period shall have been in effect for a number of
days which, when aggregated with any prior Standstill Periods
in effect during the 365 day period immediately preceding the
Omega Date, shall equal 120 days (e.g. Standstill Periods
under this Agreement shall be in effect for a maximum of 120
days out of any period of 365 consecutive days);
provided, however, that no facts or circumstances constituting a
"Senior Indebtedness Covenant Default" (as defined in the Subordination
Agreement) existing on any "Payment Blockage Commencement Date" may be
used as a basis for any subsequent Standstill Notice unless such Senior
Indebtedness Covenant Default has been cured or waived for a period of
at least ten (10) consecutive days; and provided further that there
shall not be more than three (3) Standstill Periods in effect during
any period of 365 consecutive days.
2.2 Interpretation.
(a) Unless the context otherwise indicates, words expressed in
the singular shall include the plural and vice versa.
(b) Headings of articles and sections herein are solely for
convenience of reference, do not constitute a part hereof and shall not
affect the meaning, construction or effect hereof.
(c) The words "herein," "hereof," "hereby," "hereunder," and
other words of similar import refer to this Agreement as a whole and
not to any particular section or subdivision hereof.
2.3 Beneficiaries' Action or Instructions. (a) Any action permitted to
be taken by the Subordinated Beneficiaries or any direction which the
Subordinated Beneficiaries may give to the Collateral Agent, may be taken or
given, as the case may be, by the Majority Note Lenders. Each Subordinated
Beneficiary hereby represents and warrants to the Collateral Agent that it is a
Subordinated Beneficiary and, on the date hereof, it holds the principal amount
of Notes set forth opposite such Subordinated Beneficiary's name on Schedules B
and C attached hereto and that the Collateral Agent shall have the right to
assume that each such Subordinated Beneficiary shall continue to hold the
principal amount of Notes set forth opposite such Subordinated Beneficiary's
name on Schedules B and C attached hereto, until the Collateral Agent receives
written notice signed by a Subordinated Beneficiary that has transferred its
Notes, advising the Collateral Agent that it has transferred its Notes, which
written notice also shall specify the transferees, the amount of Notes
transferred by such Subordinated Beneficiary to each such transferee and the
principal amount of Notes then held by such Subordinated Beneficiary (if any).
Each Senior Beneficiary hereby represents and warrants to the Collateral Agent
that it is a Senior Beneficiary and, on the date hereof, it holds the principal
amount of LaSalle Notes set forth opposite such Senior Beneficiary's name on
Schedule A attached hereto and that the Collateral Agent shall have the right to
assume that each such Senior Beneficiary shall continue to hold the principal
amount of LaSalle Notes set forth opposite such Senior Beneficiary's name on
Schedule A attached hereto, until the Collateral Agent receives written notice
signed by a Senior Beneficiary that has transferred its LaSalle Notes, advising
the Collateral Agent that it has transferred its LaSalle Notes, which written
notice also shall specify the transferees, the amount of LaSalle Notes
transferred by such Senior Beneficiary to each such transferee and the principal
amount of LaSalle Notes then held by such Senior Beneficiary (if any).
(b) Any action permitted to be taken by the Senior Beneficiaries or any
direction which the Senior Beneficiaries may give to the Collateral Agent, may
be taken or given, as the case may be, by the Majority Bank Lenders.
ARTICLE III
APPOINTMENT AND COMPENSATION OF THE COLLATERAL AGENT
3.1 Appointment of the Collateral Agent. Each Beneficiary hereby
appoints and, by acquiring certain interests, rights, benefits, duties, and
obligations under the Note Agreement, the Loan Agreement and the Security
Documents, each case in accordance with the terms of such agreements, shall be
deemed to have appointed The Bank of New York as Collateral Agent for such
Beneficiary and irrevocably authorizes and empowers the Collateral Agent to (i)
hold the Collateral for the benefit of all Beneficiaries, (ii) exercise such
authority, rights, powers, and duties hereunder as specifically are delegated to
and accepted by the Collateral Agent hereunder, and (iii) take such other action
in connection with the foregoing as the Beneficiaries may from time to time
direct in accordance with the terms and conditions of this Agreement. The Bank
of New York, hereby accepts its appointment as Collateral Agent and agrees to
perform the duties of the Collateral Agent specified herein and to exercise the
powers granted hereby, in either case in accordance with the terms hereof. In
performing its duties and functions in connection herewith, the Collateral Agent
shall be considered to be acting in an administrative and ministerial capacity
only and neither as trustee for any Beneficiary nor in its individual capacity.
3.2 Compensation of the Collateral Agent. As compensation for its
services as Collateral Agent, the Store Company agrees to pay the Collateral
Agent, so long as this Agreement remains in effect, annually on each 15th day of
October, the sum of Three Thousand Five Hundred Dollars ($3,500.00), payable by
wire transfer: The Bank of New York, ABA No. 000000000, Account No. 254198, New
York, New York, Attention: Xxx Xxxx; and all the fees, costs and expenses
incurred in good faith by the Collateral Agent (including, without limitation,
the fees and disbursements of its counsel and other advisers as the Collateral
Agent elects to retain) (i) arising in connection with the preparation,
execution, delivery, performance, modification, and termination of this
Agreement or any other Security Document or the enforcement of any of the
provisions hereof or thereof or (ii) incurred or advanced in good faith in
connection with the administration of the Collateral, the sale or other
disposition thereof pursuant to any Security Document and the preservation,
protection, or defense of the Collateral Agent's rights under the Security
Documents and the other related documents and in and to the Collateral, or (iii)
incurred in good faith by the Collateral Agent in connection with the
resignation or removal of the Collateral Agent pursuant to Article 8 hereof.
Additionally, the Store Company agrees (A) to indemnify and hold harmless the
Collateral Agent from any present or future claim or liability for any stamp or
other similar tax and any penalties or interest with respect thereto, which may
be assessed, levied, or collected by any jurisdiction in connection with this
Agreement, any other Security Document or any Collateral, and (B) to pay or to
reimburse the Collateral Agent for any and all amounts in respect of all search,
filing, recording, and registration fees, taxes, excise taxes, and other similar
imposts which may be payable or determined to be payable in respect of the
execution, delivery, filing, performance, and enforcement of this Agreement,
each other Security Document, and all documents (including, without limitation,
financing statements) provided for herein or therein.
ARTICLE IV
DUTIES, POWERS AND RIGHTS OF THE COLLATERAL AGENT
4.1 Specific Duties of the Collateral Agent. The Collateral Agent shall
have the following duties:
(a) upon the receipt by it of written instructions of the
Majority Bank Lenders or the Majority Note Lenders, execute and deliver
on behalf of the Beneficiaries such documents or instruments as the
Majority Bank Lenders or the Majority Note Lenders shall deem necessary
or appropriate from time to time to maintain the perfection of any Lien
in, to, or upon the Collateral or any portion thereof, which has been,
are or will be granted pursuant to any of the Security Documents;
(b) accept, on behalf of the Beneficiaries, any part of the
Collateral delivered to it, including, without limitation, any
certificated securities, instruments, and documents, and accept, on
behalf of the Beneficiaries, any new Collateral given as security for
the LaSalle Obligations and/or the Note Obligations, and execute and
deliver, on behalf of the Beneficiaries and at the direction of the
Majority Bank Lenders or the Majority Note Lenders, such documents or
instruments as the Majority Bank Lenders or the Majority Note Lenders
deem necessary or appropriate to evidence the creation of any Lien with
respect thereto and to perfect such Lien;
(c) upon the receipt by it of written instructions executed by
the Majority Bank Lenders and the Majority Note Lenders, release the
Collateral or any portion thereof from any Liens thereon which were
created pursuant to any of the Security Documents for the purposes of
securing the LaSalle Obligations or upon the receipt by it of written
instructions executed by the Majority Note Lenders, release the
Collateral or any portion thereof from any Liens thereon which were
created pursuant to any of the Security Documents for the purposes of
securing the Note Obligations; provided, in either case, that in
connection with a sale thereof for the benefit of the Senior
Beneficiaries or the Subordinated Beneficiaries, such sale is effected
in a commercially reasonable manner:
(d) furnish to each of the Beneficiaries, promptly upon
receipt thereof, duplicates of all reports, notices, requests, demands,
certificates, and other documents received by it under this Agreement
or any of the other Security Documents, unless any such document shall
state thereon that it has previously been furnished directly to the
Beneficiaries;
(e) provide to each of the Beneficiaries a copy of all notices
received from the issuer of any capital stock or securities which
constitute Collateral and, upon receipt by it of written instructions
of the Majority Bank Lenders exercise all rights and powers determined
by the Majority Bank Lenders which are appurtenant to any such capital
stock or securities which become a part of the Collateral (or, in the
absence of receipt of such written instructions of the Majority Bank
Lenders, upon receipt by the Collateral Agent of written instructions
of the Majority Note Lenders, exercise all rights and powers determined
by the Majority Note Lenders which are appurtenant to any such capital
stock or securities), including, without limitation, the right to vote
stock, to receive dividends or other distributions, and to grant or
refrain from granting any consent or waiver;
(f) inform each of the Beneficiaries in writing of the
existence of any Event of Default promptly upon learning of the same;
provided, however, that it shall not be deemed to have any knowledge
whatsoever of any Event of Default unless it has actually received
written notice stating that an Event of Default has occurred from any
of the Beneficiaries or the Store Company;
(g) upon receipt by it of written instructions of the Majority
Bank Lenders or the Majority Note Lenders, take those actions
determined by the Majority Bank Lenders or the Majority Note Lenders as
necessary to protect and preserve the Collateral and realize on and
foreclose upon the Collateral, including, without limitation,
initiating (at the expense of Store Company) and defending any and all
actions or proceedings which may be brought affecting any of the
Collateral or any portion thereof or otherwise pursue any remedies
available to any Beneficiary or to it in respect of the Collateral or
any portion thereof, which actions may include, without limitation,
initiating and conducting any public or private sale or pursuing any
other actions or remedies relating to the Collateral or any portion
thereof;
(h) provide, at the direction of the Majority Bank Lenders or
the Majority Note Lenders, notice required by the Loan Agreement, the
Note Agreement or the Security Documents, or by law, to the Store
Company, or any other party entitled thereto, in order to take any
actions required or authorized to be taken under this Agreement or
specified in written instructions of the Majority Bank Lenders or the
Majority Note Lenders;
(i) receive any and all amounts of any kind made pursuant to
any of the Security Documents, including Section 7.2 hereof, and
receive proceeds of the Collateral subsequent to an Event of Default
and apply such amounts or proceeds as specified in section 5.2 hereof;
(j) receive any amounts payable under the Store Company's or
any of its Subsidiaries' insurance policies and distribute such amounts
all as specified in Section 5.2 of this Agreement;
(k) deliver a letter in the form attached hereto as Exhibit
4.1(k) to any franchisee or other licensee of the Store Company's or
any of its Subsidiaries' trademarks upon the reasonable request of the
Store Company; and
(l) take, or refrain from taking, such other actions (but only
such actions that are set forth in this Agreement) as the Majority Bank
Lenders or the Majority Note Lenders shall from time to time direct by
written instruction; provided, however, that the Collateral Agent shall
not take any action to initiate or maintain any suit or other legal
proceeding or other action seeking to sell or otherwise dispose of or
otherwise exercise remedies in respect of any Collateral pursuant to
directions of the Majority Note Lenders during any Standstill Period
which is in effect.
4.2 Duties Limited.
(a) The Collateral Agent shall be obliged to perform such
duties and only such duties as specifically set forth in this Agreement
and no implied covenants or obligations shall be read into this
Agreement against the Collateral Agent, and the Collateral Agent shall
be obliged to take any actions or exercise any rights, powers or
remedies which are discretionary with the Collateral Agent under this
Agreement only as may be specified in a written notice from the
Majority Bank Lenders or the Majority Note Lenders; provided, however,
that the Collateral Agent shall not take any actions specified in a
written notice if the provisions of this Agreement expressly prohibit
such action. Except as expressly provided herein or in written
instructions of the Majority Bank Lenders or the Majority Note Lenders,
the Collateral Agent shall not have any duty or obligation, express or
implied, to:
(i) manage, control, use, maintain, sell, dispose of,
purchase, bid for, or otherwise deal with the Collateral or
any portion thereof, or to otherwise take or refrain from
taking any action under, or in connection with this Agreement
or any of the other Security Documents, except to the extent
required by law;
(ii) take any action which relates to, materially
affects, or impairs the amounts which the Beneficiaries may
recover from disposition of the Collateral, including, without
limitation, any election or waiver of remedies available under
any of the Security Documents, or with respect to the
Collateral or the manner of foreclosure upon the same; any
determination of the order and timing of foreclosure upon any
portion of the Collateral or of the amount of any credit bid
to be entered at any public or private, judicial, or
nonjudicial sale of the Collateral; the pursuit of any
remedies against the Store Company or any of its Subsidiaries
following the completion of foreclosure upon the Collateral;
the compromise or settlement of any claims against the Store
Company or any of its Subsidiaries including the conduct of
any negotiations relating to the same or with a view toward
the termination of any pending foreclosure proceedings;
(iii) obtain or maintain insurance on the Collateral
or any other insurance;
(iv) pay or discharge any tax, assessment or other
governmental charge or any Lien or encumbrance of any kind
owing with respect to, or assessed or levied against, any part
of the Collateral;
(v) take any action or omit to take any action
provided for in any of the Security Documents, and the
documents executed in connection therewith;
(vi) advance any monies for any purpose; or
(vii) except at the specific direction of the
Majority Bank Lenders or the Majority Note Lenders, record or
file any Security Document, any other document or any other
instrument referred to herein or therein with respect to any
Lien.
(b) In addition to and not in limitation of the provisions of
the foregoing Section 4.2(a), under no circumstances shall the
Collateral Agent have any duty or obligation to take any actions
hereunder, even if instructed to do so by the Majority Bank Lenders or
the Majority Note Lenders or if expressly set forth herein, if the
Collateral Agent determines, in its sole and absolute discretion, that
such actions would subject it to liability or expense for which
satisfactory indemnity has not been provided hereunder or otherwise.
4.3 Specific Powers of the Collateral Agent. In addition to all powers
necessary, appropriate, desirable or incidental to the Collateral Agent's
performance of the specific duties set forth in Section 4.1 hereof, the
Collateral Agent is hereby empowered and authorized to do, in its sole and
absolute discretion, any and all of the following in connection with its
performance of such duties; provided, however, that in no event shall it have
any obligation to do so:
(a) establish bank accounts in its name with the right to be
the only party authorized to draw from such account or accounts;
(b) employ such persons, firms, or professionals as it shall
deem appropriate or desirable in connection with the performance of its
duties hereunder, including, without limitation, appraisers,
auctioneers, stockbrokers, custodians of securities, fiduciaries,
commercial banks, investment banks, accountants, and attorneys; and
(c) execute and deliver, as Collateral Agent and on behalf of
the Beneficiaries, any agreements, escrow instructions, bills of sale,
applications, or any other documents related to or in any way connected
with any disposition of the Collateral, or any portion thereof,
permitted under this Agreement or directed by the Majority Bank Lenders
or the Majority Note Lenders in accordance with the terms hereof;
provided, however, that in the event it is unwilling or unable for any
reason to execute and deliver such documents, then it promptly shall
notify the Beneficiaries of such unwillingness or inability and shall
request execution and delivery of such documents by the Majority Bank
Lenders (if pursuant to direction of the Majority Bank Lenders) or the
Majority Note Lenders (if pursuant to direction of the Majority Note
Lenders).
4.4 Written Instructions. Any written request or written instructions
required or permitted to be given hereunder to the Collateral Agent shall be
given exclusively by the Majority Bank Lenders or the Majority Note Lenders. In
the event that the Collateral Agent receives written instructions from the
Majority Bank Lenders or the Majority Note Lenders which the Collateral Agent
determines, in its sole and absolute discretion, to be ambiguous, inconsistent,
in conflict with other instructions previously received, or otherwise
insufficient to direct the actions of the Collateral Agent, then the Collateral
Agent shall have no obligation whatsoever to take or refrain from taking any
action pursuant to such written instructions, but shall instead do any one or
more of the following:
(a) seek additional written instructions from the Majority
Bank Lenders or the Majority Note Lenders (as applicable) satisfactory
to it;
(b) resign as Collateral Agent in accordance with this Agreement; or
(c) at the expense of the Beneficiaries, commence an action in
a court of appropriate jurisdiction requiring the Beneficiaries to
interplead and settle among themselves their rights in and to the
Collateral and any proceeds thereof then held by it.
The Collateral Agent shall not be liable to any party hereto by reason of its
actions under this Section 4.4.
4.5 Reliance. In acting with respect to this Agreement and the Security
Documents, the Collateral Agent shall be entitled to:
(a) rely on any communication reasonably believed by it to be
genuine and to have been made, sent, or signed by the person, firm, or
institution by whom it purports to have been made, sent, or signed;
(b) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Beneficiaries or the Store
Company or any of its Subsidiaries, upon a certificate signed by or on
behalf of any of the Beneficiaries or the Store Company or any of its
Subsidiaries;
(c) rely on the representations made by the Majority Bank
Lenders and/or the Majority Note Lenders in their respective
instructions regarding their respective authority to provide the
instructions;
(d) rely on the advice or services of any persons, firms, or
professionals employed by it pursuant to Section 4.3(b) hereof and rely
upon the opinions and statements of any professional advisor so
employed; and
(e) rely on any resolution, statement, certificate,
instrument, opinion, report, notice, request, consent, order, bond, or
other paper or document which it reasonably believes to be genuine and
to have been signed or presented by the proper person or, in the case
of cables, facsimile transmissions, telecopies, and telexes, to have
been sent by the proper person.
The Collateral Agent shall not be liable to any party hereto for any consequence
of any such relying, acting, or refraining to act. Nothing in this Section 4.5
shall impair the right of the Collateral Agent in its discretion to take or omit
to take any action which the Collateral Agent deems proper to take or omit to
take if such action or omission is not inconsistent with any notice or direction
from the Majority Bank Lenders or the Majority Note Lenders; provided, that the
Collateral Agent shall not be under any obligation to take any action which is
discretionary with the Collateral Agent under this Agreement or any other
Security Document except as may be specified in a written notice from the
Majority Bank Lenders or the Majority Note Lenders.
4.6 No Responsibility. The Collateral Agent does not assume any
responsibility for:
(a) any failure or delay in performance or breach by the Store
Company or its Subsidiaries or by any Beneficiary of any obligation
under the Intercreditor Agreement, the Loan Agreement, the Note
Agreement or the Security Documents;
(b) the truth or accuracy of any representation or warranty or
statement given or made in connection with the Intercreditor Agreement,
the Loan Agreement, the Note Agreement or the Security Documents;
(c) the legality, validity, effectiveness, adequacy, or
enforceability of the Intercreditor Agreement, the Loan Agreement, the
Note Agreement or the Security Documents; or
(d) the validity, enforceability, or sufficiency of any
agreement or instrument or any depreciation or diminution in the value
of any Collateral or income thereon.
As to any event or occurrence in which neither the Collateral Agent nor
any person acting on its behalf is a participant, the Collateral Agent shall be
conclusively presumed to have no knowledge of such event or occurrence, absent
gross negligence or willful misconduct, except to the extent that the Collateral
Agent shall have received a written notice from any of the Beneficiaries with
respect thereto.
4.7 Collateral Agent Protected. The Collateral Agent shall be protected
in acting or refraining to act upon any certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, or paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Collateral Agent may consult with independent
counsel of its selection, and the advice or written opinion of such counsel
shall constitute full and complete protection in respect of any action taken,
suffered, or omitted by it under this Agreement in good faith and in accordance
with such opinion of counsel. The Collateral Agent may execute any of its powers
hereunder or perform any duties hereunder either directly or through agents or
attorneys and the Collateral Agent shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; provided, however, that as between the other parties hereto and the
Collateral Agent, all such powers and duties are those of the Collateral Agent
as provided hereunder.
ARTICLE V
APPLICATION OF PROCEEDS OF COLLATERAL
5.1 Sharing Notice. Upon receipt by the Collateral Agent of:
(a) notice from the Majority Bank Lenders of the acceleration
and maturity of any amount outstanding under the Loan Agreement, the
LaSalle Notes or any Security Document as a consequence of an Event of
Default thereunder; or
(b) notice from the Majority Note Lenders of the acceleration
and maturity of any amount outstanding under the Note Agreement, the
Notes or any Security Document as a consequence of an Event of Default
thereunder;
the Collateral Agent shall give notice (a "Sharing Notice") to each of the
Beneficiaries informing it of the occurrence of such Event of Default and
acceleration and requiring each Beneficiary to provide the Collateral Agent with
all necessary information to enable the Collateral Agent to calculate such
Beneficiary's pro rata share of any proceeds resulting from a foreclosure upon
the Collateral, in accordance with Section 5.2 hereof. For purposes of this
Section 5.1, such necessary information for each Beneficiary shall include (i) a
statement as to whether it holds Note Obligations or LaSalle Obligations, (ii)
the amount of outstanding principal owed to such Beneficiary, (iii) the amount
of accrued and unpaid interest owed to such Beneficiary, and (iv) all other
information sufficient to permit the Collateral Agent to calculate accrued and
unpaid interest on the amounts owed to such Beneficiary as of the date of any
distribution hereunder. Upon receipt of such information, the Collateral Agent
shall calculate and promptly notify the Beneficiaries as to any distribution to
which each Beneficiary is entitled pursuant to Section 5.2. Any Sharing Notice
shall be effective as of the date it is sent by the Collateral Agent and shall
remain effective until all the Beneficiaries agree that such Sharing Notice is
no longer in effect.
5.2 Application of Proceeds. The receipt of any amounts on behalf of
the Beneficiaries under the Loan Agreement, the LaSalle Notes, the Note
Agreement, the Notes or any Security Document, or otherwise, and the proceeds of
any sale, enforcement, or other disposition of any of the Collateral or any
other distribution in respect of the Collateral (each, a "Distribution") shall
be applied by the Beneficiaries and the Collateral Agent in the following order:
(a) First, to the payment of all fees, costs, expenses,
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements incurred or made by
the Collateral Agent and its agents and counsel in connection with its
obligations under this Agreement;
(b) Second, to the Senior Beneficiaries, as specified in the
next sentence, until payment in full of all accrued and unpaid interest
on the LaSalle Notes at the nondefault rates of interest specified in
the Loan Agreement or the LaSalle Notes (excluding any interest on
unpaid interest specified in the Loan Agreement or the LaSalle Notes)
through and including the date of receipt of such amounts. The
Collateral Agent shall distribute such Distribution by (i) multiplying
the amount of such Distribution by the percentage specified for each
such Senior Beneficiary listed on Schedule A hereto and paying to such
Senior Beneficiary the lesser of (A) such amount or (B) the accrued
interest owing to such Senior Beneficiary (excluding interest at the
default rate and any interest on unpaid interest under the Loan
Agreement or the LaSalle Notes) and (ii) multiplying the amount of any
such Distribution remaining after application of clause (i) of this
Section 5.2(b) by the percentage specified for each Senior Beneficiary
listed on Schedule A hereto and paying such amount to such Senior
Beneficiary;
(c) Third, to the Senior Beneficiaries, as specified in the
next sentence, until payment in full of the lesser of (1) the remaining
outstanding LaSalle Notes (including, without limitation, any remaining
interest at the default rate of interest on overdue interest as
specified in the Loan Agreement or the LaSalle Notes), or (2)
$3,000,000 plus any remaining interest outstanding on the LaSalle Notes
(including, without limitation, any remaining interest at the default
rate of interest on overdue interest as specified in the Loan Agreement
or the LaSalle Notes). The Collateral Agent shall distribute the
portion of such Distribution remaining after complying with clauses (a)
and (b) above by multiplying such remaining amount of such Distribution
by the percentage specified for such Senior Beneficiary on Schedule A
hereto and paying such amount to such Senior Beneficiary;
(d) Fourth, to the Subordinated Beneficiaries, as specified in
the next sentence, until payment in full of all accrued and unpaid
interest on the Senior Notes at the nondefault rates of interest
specified in the Note Agreement (excluding any interest on unpaid
interest specified in the Note Agreement or the Senior Notes) through
and including the date of receipt of such amounts, with such amounts
first being applied to interest on the Chocamerican Series 4 Notes and
the MFI Series 3 Notes, pro rata. The Collateral Agent shall distribute
the portion of such Distribution remaining after complying with clauses
(a), (b) and (c) above by (i) multiplying the remaining amount of such
Distribution by the percentage specified for each Subordinated
Beneficiary listed on Schedule B hereto and paying to such Subordinated
Beneficiary the lesser of (A) such amount or (B) the accrued interest
owing to such Subordinated Beneficiary (excluding interest at the
default rate and any interest on unpaid interest under the Note
Agreement or the Senior Notes) and (ii) multiplying the remaining
amount of any such Distribution remaining after application of clause
(i) of this Section 5.2(d) by the percentage specified for each
Subordinated Beneficiary listed on Schedule B hereto and paying such
amount to such Subordinated Beneficiary;
(e) Fifth, to the Subordinated Beneficiaries and, in the event
that the outstanding principal of the LaSalle Notes or any other
amounts owing to the Senior Beneficiaries under the Loan Agreement have
not been paid in full pursuant to clause (b) above, to the Senior
Beneficiaries, as specified in the next sentence, until payment in full
of the remaining outstanding Senior Notes and other amounts owing to
the Senior Beneficiaries under the Loan Agreement (including, without
limitation, any remaining interest at the default rate of interest on
overdue interest as specified in the Note Agreement or the Senior
Notes) and any remaining outstanding principal of the LaSalle Notes.
The Collateral Agent shall distribute the portion of such Distribution
remaining after complying with clauses (a), (b), (c) and (d) above by
multiplying the remaining amount of such Distribution by the percentage
specified for such Subordinated Beneficiary on Schedule B hereto and
paying such amount to such Subordinated Beneficiary;
(f) Sixth, to the Subordinated Beneficiaries as specified in
the next sentence, until payment in full of all accrued and unpaid
interest on the Senior Subordinated Notes at the rate of interest
specified in the Note Agreement (excluding any interest on unpaid
interest specified in the Note Agreement or the Senior Subordinated
Notes) through and including the date of receipt of such amounts. The
Collateral Agent shall distribute the portion of such Distribution
remaining after complying with clauses (a), (b), (c), (d) and (e) above
by (i) multiplying the remaining amount of such Distribution by the
percentage specified for each Subordinated Beneficiary listed on
Schedule C hereto and paying to such Subordinated Beneficiary the
lesser of (A) such amount or (B) the accrued interest owing to such
Subordinated Beneficiary (excluding interest at the default rate and
any interest on unpaid interest under the Note Agreement or the Senior
Subordinated Notes) and (ii) multiplying the remaining amount of any
such Distribution remaining after application of clause (i) by the
percentage specified for each Subordinated Beneficiary listed on
Schedule C hereto and paying such amount to such Subordinated
Beneficiary;
(g) Seventh, to the Subordinated Beneficiaries, as specified
in the next sentence, until payment in full of the remaining
outstanding Senior Subordinated Notes. The Collateral Agent shall
distribute the portion of such Distribution remaining after complying
with clauses (a), (b), (c), (d), (e) and (f) above by multiplying the
remaining amount of such Distribution by the percentage specified for
such Subordinated Beneficiary on Schedule C hereto and paying such
amount to such Subordinated Beneficiary;
(h) Eighth, to the Subordinated Beneficiaries, until payment
in full of all other amounts owing under the Note Agreement or any of
the Security Documents; and
(i) Ninth, to the Store Company, its successors or assigns, or
as a court of competent jurisdiction may direct, or as is otherwise
required by law.
5.3 This Agreement Controlling. In the event of any conflict between
the terms hereof concerning the Collateral and the duties, obligations and
liabilities of the Collateral Agent, and the terms of any other agreement to
which the Collateral Agent and one or more Beneficiaries and the Store Company
are parties, the provisions contained herein concerning the Collateral and the
duties, obligations, and liabilities of the Collateral Agent, shall be
controlling, whether or not bankruptcy, receivership, or insolvency proceedings
shall have at any time been commenced.
ARTICLE VI
CONFIDENTIALITY
The Collateral Agent agrees, for the benefit of the Beneficiaries, the
Store Company, and the Subsidiaries, to hold in confidence and not disclose any
information (other than information (i) which was publicly known or otherwise
known to the Collateral Agent at the time of disclosure (except pursuant to
disclosure in connection with the Loan Agreement, the Note Agreement or the
other Security Documents), (ii) which subsequently becomes publicly known
through no act or omission by the Collateral Agent or (iii) which otherwise
becomes known to the Collateral Agent on a nonconfidential basis from a source
other than the Store Company or any Subsidiary, provided that such source, to
the best of the Collateral Agent's knowledge, is not bound by a confidentiality
agreement or similar understanding with the Store Company or any Subsidiary with
respect thereto) delivered or made available by or on behalf of the Store
Company or any Subsidiary to the Collateral Agent in connection with or pursuant
to this Agreement which is proprietary in nature and clearly marked, labeled or
otherwise designated as being confidential information, provided that nothing
herein shall prevent the Collateral Agent from delivering copies of any
financial statements and other documents delivered to the Collateral Agent, and
disclosing any other information disclosed to the Collateral Agent, by or on
behalf of the Store Company or any Subsidiary in connection with or pursuant to
the Loan Agreement, the Note Agreement or the Security Documents to (i) the
Collateral Agent's directors, officers, employees, agents, and professional
consultants (it being understood that such directors, officers, employees,
agents, and professional consultants shall be informed by the Collateral Agent,
in advance of disclosure, of the confidential nature of the items delivered and
shall be directed by the Collateral Agent to treat such items confidentially),
(ii) any holder of any Note or any LaSalle Note, (iii) any federal or state
regulatory authority having jurisdiction over the Collateral Agent, and (iv) any
other Person to which such delivery or disclosure may be reasonably necessary or
appropriate in order to implement or facilitate the exercise of remedies by the
Collateral Agent in its capacity as such. In the event that the Collateral Agent
or any of the Collateral Agent's directors, officers, employees, agents, or
professional consultants are requested or required (by oral question,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, or similar process) to disclose any confidential material,
the Collateral Agent agrees to provide the Beneficiaries and the Store Company
with prompt notice of such request(s) so that they may seek an appropriate
protective order and/or waive compliance with the provisions hereof. It is
further agreed that if, in the absence of a protective order or the receipt of a
waiver hereunder, the Collateral Agent or the Collateral Agent's directors,
officers, employees, agents or professional consultants are nonetheless, in the
opinion of their counsel, compelled to disclose confidential material or else
stand liable for contempt or suffer significant financial penalty, the
Collateral Agent may disclose such information without liability hereunder.
ARTICLE VII
AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF BENEFICIARIES
7.1 Rights in Collateral. Each Beneficiary hereby acknowledges and
agrees that:
(a) it shall have no right to take or initiate any independent
direction or action respecting or against the Collateral or any portion
thereof including, without limitation, the right to bid at any
foreclosure sale of the Collateral or any portion thereof; provided,
however, that this provision shall not be deemed to prohibit any
Beneficiary from making any cash bid at any foreclosure sale to the
same extent, in the same manner, and with the same effect as any party
that is not a Beneficiary may so do;
(b) except as provided in paragraph (a) above, its sole right
respecting the Collateral shall consist of the right of the Majority
Bank Lenders (if such Beneficiary is a Senior Beneficiary) or the
Majority Note Lenders (if such Beneficiary is a Subordinated
Beneficiary) to provide written instructions to the Collateral Agent
and to receive, in accordance with this Agreement, the proceeds
realized through the actions directed by the Majority Bank Lenders or
the Majority Note Lenders; and
(c) it shall be bound in all respects by any and all actions
taken by the Collateral Agent pursuant to this Agreement in respect of
the Collateral or any portion thereof so long as such actions are
permitted or required by this Agreement or directed by the Majority
Bank Lenders or the Majority Note Lenders in accordance with the terms
hereof.
7.2 Duty to Hold in Trust. If any Beneficiary (or any assignee of any
Beneficiary) obtains any payments in respect of the Notes or the other
Obligations (whether by way of payment of excess cash as provided in Section
5.2(c) of the Note Agreement, or any other voluntary or involuntary payment, the
exercise of any right of setoff, offset, deduction, reimbursement or recoupment,
the application of any provision of any document (other than this Agreement, or
the Loan Agreement or the LaSalle Notes or the Note Agreement or the Notes), or
any other manner (except pursuant to this Agreement or the Loan Agreement or the
LaSalle Notes or the Note Agreement the Notes), such Beneficiary agrees herein
to hold such payment in trust for the benefit of all the Beneficiaries, and
forthwith shall notify all other Beneficiaries thereof of its (or such
assignee's) obtaining such payment and, after receipt of a Sharing Notice
pursuant to Section 5.1 hereof, pay to the Collateral Agent for distribution to
the Beneficiaries in accordance with the priorities specified in Section 5.2, an
amount equal to the payment so received, net of any out-of-pocket costs and
expenses paid by such Beneficiary (or such assignee) in so obtaining the same.
Upon receipt of any such payment, the Collateral Agent shall distribute the same
to all the Beneficiaries in accordance with the priorities set forth in Section
5.2 hereof.
7.3 Authority. The Store Company and each Beneficiary hereby represent
and warrant to all other parties hereto that:
(a) the execution, delivery, and performance by it of this
Agreement has been duly authorized by all necessary corporate action,
will not violate any provision of law, governmental regulation, or any
agreement or instrument to which it is a party, and requires no
governmental or other consent; and
(b) this Agreement is valid, binding, and enforceable against
it in accordance with its terms.
ARTICLE VIII
RESIGNATION OR REMOVAL OF COLLATERAL AGENT
The Collateral Agent may, by written notice to the Beneficiaries, at
any time resign its agency under this Agreement. The Majority Lenders may remove
the Collateral Agent by written notice to the Collateral Agent. No such
resignation or removal shall become effective unless and until a successor
Collateral Agent under this Agreement is appointed and has accepted the
appointment, such successor Collateral Agent to be appointed by the Majority
Lenders and be reasonably acceptable to LaSalle; provided, however, that if no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within thirty (30) days after the retiring Collateral Agent's
giving notice of resignation or after notice to the retiring Collateral Agent of
the retiring Collateral Agent's removal, as the case may be, then the retiring
Collateral Agent may apply to any court of competent jurisdiction, at the
expense of the Beneficiaries, to appoint a successor Collateral Agent to act
until such time as a successor shall have been appointed by the Majority
Lenders. Upon receipt by the predecessor Collateral Agent of any fees, expenses,
or costs due it hereunder and the acceptance of any appointment as Collateral
Agent hereunder by a successor Collateral Agent, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges, and duties of the retiring Collateral Agent, and the referring
Collateral Agent shall be discharged from any further duties and obligations
under this Agreement except the duty to execute and deliver any documents
necessary to vest or confirm the vesting of such rights, powers, privileges, and
duties in such successor Collateral Agent. After the retiring Collateral Agent's
resignation or removal hereunder as Collateral Agent, each reference herein to a
place for giving of notice or deliveries to the Collateral Agent shall be deemed
to refer to the principal office of the successor Collateral Agent or such other
office of the successor Collateral Agent as it may specify to each party hereto.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification.
(a) The Store Company agrees to pay, indemnify, and hold the Collateral
Agent and each director, officer, employee, agent, bailee, or other person
acting on behalf of the Collateral Agent, and each stockholder of any thereof,
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, the reasonable fees and disbursements of counsel and other
advisers), or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, including, without limitation, any amendment hereto, and the other
Security Documents (including arising from the ordinary negligence of the person
seeking indemnification) unless arising from the gross negligence or willful
misconduct of the person seeking indemnification.
(b) in any suit, proceeding, or action brought by the Collateral Agent
under or with respect to the Collateral for any sum owing thereunder, or to
enforce any provisions hereof or of any of the other Security Documents, the
Store Company will save, indemnify, and keep the Collateral Agent (including its
successors, assigns, employees, and agents) and the Beneficiaries harmless from
and against all expense, loss, or damage suffered by reason of any defense,
set-off, counterclaim, recoupment, or reduction of liability whatsoever of the
obligee thereunder, arising out of a breach by the Store Company or any
Subsidiary of any obligation hereunder or thereunder or arising out of any other
agreement, indebtedness, or liability at any time owing to or in favor of such
obligee or its successors from the Store Company or any Subsidiary, and all such
obligations of the Store Company or any Subsidiary shall be and remain
enforceable against and only against the Store Company or any Subsidiary and
shall not be enforceable against the Collateral Agent or the Beneficiaries.
(c) the obligations under this Section 9.1 shall survive the
termination or modification of the other provisions of this Agreement and shall
survive the commencement of a case under any applicable bankruptcy law on behalf
of or against the Store Company or any Subsidiary or Affiliate of the Store
Company or any other proceeding for the reorganization, management, adjustment
of debt, dissolution, or liquidation on behalf of or against the Store Company
or any Subsidiary or Affiliate of the Store Company and shall survive any
dissolution of the Store Company or any Subsidiary or Affiliate of the Store
Company.
ARTICLE X
SUCCESSORS AND ASSIGNS
10.1 Assignees. No provision of this Agreement shall restrict in any
manner the assignment, participation, or other transfer by any Beneficiary of
all or any part of its right, title, or interest under the Note Agreement, the
Notes, the Loan Agreement, the LaSalle Notes or any Security Document; provided,
however, that, unless the transferee becomes a Beneficiary for purposes hereof
in accordance with Section 10.2 hereof, the transferor Beneficiary shall remain
obligated to perform pursuant to this Agreement with respect to the interest
transferred.
10.2 Additional Beneficiaries. In connection with an assignment of all
or a part of its right, title, and interest under the Note Agreement, the Notes,
the Loan Agreement, the LaSalle Notes or any Security Document to any Accredited
Investor (within the meaning of Regulation D under the Securities Act of 1933,
as amended) (the "Transferee"), together with, in the case of any Transferee
under the Note Agreement, the Notes, the Loan Agreement, the LaSalle Notes or
any Security Document, the assumption by the Transferee of the obligations, if
any, of such Beneficiary thereunder to the extent of the interest assigned, all
in accordance with the applicable provisions of the Note Agreement, the Loan
Agreement or such Security Document, such Transferee shall become a Beneficiary
hereunder only upon (i) the written agreement of such transferor Beneficiary and
such Transferee and (ii) receipt by the Collateral Agent and the other
Beneficiaries of a notice from the Transferee of such transfer. Upon any
assignment by a Beneficiary to a Transferee in accordance with the provisions of
this Section 10.2, the Schedules to this Agreement shall be deemed to be amended
as appropriate to reflect the right, title and interest assigned by a
Beneficiary to such Transferee.
10.3 Benefit of the Agreement. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that the Store Company may not
assign any rights or obligations under this Agreement without the prior written
consent of the Majority Bank Lenders and the Majority Note Lenders.
ARTICLE XI
MISCELLANEOUS
11.1 Notices. All notices and other communications provided for in this
Agreement shall be given or made by facsimile transmission, first class mail,
overnight delivery or personal delivery to the intended recipient at the address
specified herein or below its signature on the signature pages hereof, or, as to
any party at such other address as shall be designated by such party in a notice
to each other party given in accordance with this Section 11.1. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by facsimile transmission, subject to
telephone confirmation of receipt and the provision immediately thereafter of a
copy by first class mail, overnight delivery or personal delivery, or, in the
case of a mailed notice, when duly deposited in the U.S. mails, first class
postage prepaid, in each case given or addressed as aforesaid, except that
notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent at its address listed on the signature page
hereof or at such other address as shall be designated by such party in a notice
to each other party given in accordance with this Section 11.1.
11.2 No Partnership or Joint Venture. Nothing contained in this
Agreement, and no action taken by the Collateral Agent or the Beneficiaries (or
any of them) pursuant hereto, is intended to constitute or shall be deemed to
constitute a partnership, association or joint venture among any of the parties
hereto and no party hereto shall hold itself out in any manner to the contrary.
11.3 Payments. All payments hereunder shall be made in U.S. dollars in
immediately available funds.
11.4 Term. This Agreement shall remain in effect until all the Notes
and the other Obligations and all the LaSalle Notes and the other LaSalle
Obligations are paid in full.
11.5 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any document or agreement required hereunder.
11.6 Counterparts. This Agreement may be executed by the parties hereto
in as many counterparts as may be deemed necessary or convenient, and each such
counterpart, when so executed, shall be deemed an original and all such
counterparts shall constitute but one and the same agreement.
11.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
11.8 Amendments and Waivers. Any provision of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed by each of the Beneficiaries (and, if the rights or duties of the
Collateral Agent are affected thereby, by the Collateral Agent).
11.9 Entire Agreement. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrates all the terms and
conditions mentioned herein or incidental hereto, and supersedes all oral
negotiations and prior writings in respect to the subject matter hereof unless
such prior writings are referred to herein. In the event of any conflict between
the terms hereof concerning the Collateral and the duties, obligations and
liabilities of the Collateral Agent, and the terms of any other agreement to
which the Collateral Agent and one or more Beneficiaries and the Store Company
are parties, the provisions contained herein concerning the Collateral and the
duties, obligations, and liabilities of the Collateral Agent, shall be
controlling, whether or not bankruptcy, receivership, or insolvency proceedings
shall have at any time been commenced.
[Balance of page intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Collateral Agency Agreement by their duly authorized officers as of the
day and year first above written.
THE BANK OF NEW YORK, as
Collateral Agent
By:/s/Xxxxxxx X. Xxxx
Name:Xxxxxxx X. Xxxx
Title:Assistant Treasurer
Address for notices:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee
Administration
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
CHOCAMERICAN, INC.
By:/s/Xxxxxxxx X. xx Xxxxxxxxx
Name:Xxxxxxxx X. xx Xxxxxxxxx
Title:Chairman
Address for notices:
Chocamerican, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: FranHois de Carbonnel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:/s/Xxxx X. Xxxxxx
Name:Xxxx X. Xxxxxx
Title:Vice Presaident
Address for notices:
The Prudential Insurance
Company of America
c/o Prudential Financial
Restructuring Group
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By:/s/Xxxx X.Xxxxxxxxxx
Name:Xxxx X. Xxxxxxxxxx
Title:Counsel
Address for notices:
Principal Mutual Life Insurance
Company
Investment Securities Department
The Principal Financial Group
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
CONTRARIAN CAPITAL ADVISORS, L.L.C.,
AS AGENT FOR THE ENTITIES LISTED
BELOW:
XXXXXXXXXXX & CO., INC.
XXXXXXXXXXX HORIZON PARTNERS, X.X.
XXXXXXXXXXX INSTITUTIONAL HORIZON
PARTNERS, X.X.
XXXXXXXXXXX INSTITUTIONAL HORIZON
FUND II, LTD.
THE & TRUST
By:
Name:
Title:
Address for notices:
Contrarian Capital Advisors, L.L.C.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
PRUCO LIFE INSURANCE COMPANY
By:/s/Xxxx X. Xxxxxx
Name:Xxxx X. Xxxxxx
Title:Vice President
Address for notices:
Pruco Life Insurance Company
c/o Prudential Financial
Restructuring Group
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
XXX. XXXXXX INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
Address for notices:
Xxx. Xxxxxx Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXX. XXXXXX' HOLDING COMPANY, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Winour
Title:President
Address for notices:
Xxx. Xxxxxx' Holding Company, Inc.
c/o Capricorn Investors II, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
Address for notices:
Xxx. Xxxxxx' Original Cookies, Inc.
c/o Capricorn Investors II, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LASALLE NATIONAL BANK
By:/s/Xxx X. Xxxxx
Name:Xxx X. Xxxxx
Title:Asst. Vice President
Address for notices:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
XXX. XXXXXX COOKIES AUSTRALIA
By:/s/L. Xxx Xxxxxx
Name:L. Xxx Xxxxxx
Title:SVP and CFO
Address for notices:
Xxx. Xxxxxx Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXX. XXXXXX' OTHER NAMES, INC.
By:/s/L. Xxx Xxxxxx
Name:L. Xxx Xxxxxx
Title:SVP and CFO
Address for notices:
Xxx. Xxxxxx Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
FAIRFIELD FOODS, INC.
By:/s/L. Xxx Xxxxxx
Name:L. Xxx Xxxxxx
Title:VP
Address for notices:
Xxx. Xxxxxx Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE A
PRINCIPAL AMOUNTS OF LASALLE NOTES
Principal Amount
of LaSalle Notes Amount Percentage
LaSalle National Bank $3,000,000 100%
SCHEDULE B
PRINCIPAL AMOUNTS OF SENIOR NOTES
Principal Amount
of Senior Notes Amount Percentage
Chocamerican, Inc. $27,000,000 64.3%
The Prudential Insurance
Company of America 5,079,360 12.1%
Principal Mutual Life
Insurance Company 1,356,640 3.2%
Pruco Life Insurance Company 211,600 0.5%
Contrarian Capital Advisors,
L.L.C. (as agent) 1,352,400 3.2%
Xxx. Xxxxxx Inc. 6,965,864 16.7%
Totals $41,965,864 100.0%
----------- ------
SCHEDULE C
PRINCIPAL AMOUNTS OF SENIOR SUBORDINATED NOTES
Principal Amount of
Senior Subordinated Notes Amount Percentage
Chocamerican, Inc. $ 7,357,000 61.3%
Xxx. Xxxxxx Holding Company, Inc. 4,643,000 38.7%
Totals $12,000,000 100.0%
----------- ------
EXHIBIT 4.1(k)
Dear Xxx. Xxxxxx Franchisee:
The Bank of New York is the collateral agent (the "Collateral Agent")
for a group of companies that has lent money to Xxx. Xxxxxx' Original Cookies,
Inc. (the "Company"). We have been authorized by these lenders and by the
Company to provide this letter to you as you have requested.
Under the terms of the various documents that the Company has signed,
the Company and its subsidiaries have granted to us on behalf of these lenders
continuing security interests in the trademarks, service marks, trade names,
logos and other symbols of the Xxx. Xxxxxx cookie business, as well as in the
recipes and other trade secrets that have been used in the Xxx. Xxxxxx cookie
business (collectively, the "Trademarks and Trade Secrets"). If the Company
defaults on its loans and the lenders become entitled to foreclose under the
terms of the security agreement, the lenders may receive or become entitled to
sell the Trademarks and Trade Secrets.
The purpose of this letter is to inform you, as a holder or prospective
holder of a franchise and trademark license from the Company and/or its
subsidiaries, that in the event of a foreclosure by us on behalf of the lenders
on the Trademarks and Trade Secrets, the documents specifically recognize your
rights (and prospective rights) under the franchise and trademark licenses from
the Company and/or its subsidiaries and provide that these rights cannot be
disturbed or interfered with by any such foreclosure and that the collateral
agent and the lenders are not authorized to disturb these rights; provided,
however, that nothing set forth herein shall be construed to waive any default
by you which may exist now or in the future under any of the agreements
governing a franchise and trademark license or any remedy which the Collateral
Agent or the lenders may have with respect thereto or any other rights of the
Company thereunder. If you should have any questions regarding this letter,
please contact ___________________________ at the Company.
Very truly yours,
The Bank of New York,
as Collateral Agent
By:__________________________________
Name:
Title:
