AMENDMENT TO TRADEMARK SECURITY AGREEMENT
This Amendment to Trademark Security Agreement (this "Amendment") is
dated as of the 31st day of January, 1997 and is by and among Xxx. Xxxxxx'
Original Cookies, Inc., a Delaware corporation (with its successors, the "Store
Company"), Xxx. Xxxxxx Cookies Australia, a Utah corporation, Fairfield Foods
Inc., a New Jersey corporation, Xxx. Xxxxxx' Other Names, Inc., a Delaware
corporation (each individually, a "Grantor" and collectively, the "Grantors")
and The Bank of New York, as collateral agent pursuant to that certain Amended
and Restated Collateral Agency Agreement of even date herewith (the "Collateral
Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto are all of the parties to that certain
Security Agreement, dated as of September 18, 1996, as amended by that certain
Amendment to Security Agreement of even date herewith, and that certain
Trademark Security Agreement (other than Xxx. Xxxxxx' Other Names, Inc.), dated
as of September 18, 1996 and recorded in the U.S. Patent and Trademark Office on
October 15, 1996 at Reel 1515, Frame 0428; and
WHEREAS, the parties are entering into that certain Amendment to
Security Agreement of even date herewith pursuant to which such Security
Agreement is being amended in certain respects and, in connection therewith,
also desire to amend such Trademark Security Agreement in certain respects, as
more fully set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. AMENDMENTS.
(a) Xxx. Xxxxxx' Other Names, Inc. is hereby made a party to the
Trademark Security Agreement and hereby grants, with respect to the assets of
Xxx. Xxxxxx' Other Names, Inc., the security interests contemplated therein, as
amended herein, in favor of the Collateral Agent.
(b) The definition of "Agreement" set forth in the first line of the
Trademark Security Agreement is hereby amended to mean such Trademark Security
Agreement as amended by this Amendment to Trademark Security Agreement and as
the same may be further amended, restated, modified or supplemented and in
effect from time to time.
(c) The definition of "Security Agreement" is hereby amended and
restated in its entirety to mean and refer to:
"that certain Security Agreement, dated as of September 18, 1996, by
and among Xxx. Xxxxxx' Original Cookies, Inc., a Delaware corporation,
Xxx. Xxxxxx Cookies Australia, a Utah corporation, Fairfield Foods
Inc., a New Jersey corporation, Xxx. Xxxxxx' Other Names, Inc., a
Delaware corporation (each individually, a "Grantor" and collectively,
the "Grantors") and The Bank of New York, as collateral agent pursuant
to that certain Amended and Restated Collateral Agency Agreement dated
as of January 31, 1997, as amended by that certain Amendment to
Security Agreement dated as of January 31, 1997 and as the same may be
further amended, restated, modified or supplemented and in effect from
time to time"
(d) The first WHEREAS clause of the Trademark Security Agreement is
hereby amended and restated in its entirety as follows:
"WHEREAS, the Store Company and 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")
and Xxx. Xxxxxx Holding Company, Inc., a Delaware corporation
("Holding") have entered into that certain Senior Note and Senior
Subordinated Note Agreement dated as of September 18, 1996 (as it may
be amended, restated, modified or supplemented and in effect from time
to time, the "Note Agreement"), and the Store Company and LaSalle
National Bank, a national banking association ("LaSalle") are entering
into that certain Loan Agreement dated as of January 31, 1997 (as it
may be amended, restated, modified or supplemented and in effect from
time to time, the "Loan Agreement") (collectively, Chocamerican,
Prudential, Principal, Pruco, Contrarian, MFI, Holding and LaSalle,
together with their respective successors and assigns, are collectively
referred to herein as the "Lenders");"
(e) Section 1.a of the Trademark Security Agreement is hereby amended
and restated in its entirety as follows:
"a. As collateral security for the full and prompt payment
when due (whether at stated maturity, by acceleration or otherwise) of
the Obligations, each Grantor hereby grants to the Secured Party a
security interest in all of each Grantor's right, title and interest in
the Trademarks, whether now owned or existing or hereafter acquired or
arising, and wherever located, except such of the Trademarks as such
Grantor is prohibited by law or by any contract or agreement entered
into prior to September 18, 1996 from granting a security interest in;
provided, however, that the security interest in each Grantor's
Trademarks created hereunder shall be subject to the rights of
licensees or franchisees in such Trademarks (whether existing as of the
date hereof or arising after the date hereof) to the same extent as
each Grantor's rights are so subject."
2. MISCELLANEOUS.
(a) Captions. Section captions and headings used in this Amendment are
for convenience only and are not part of and shall not affect the construction
of this Amendment.
(b) Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles. Whenever possible, each provision of this Amendment shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
(c) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall together constitute but one and the same document.
(d) Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
(e) References. From and after the date of execution of this Amendment,
any reference to the Trademark Security Agreement contained in any notice,
request, certificate or other instrument, document or agreement executed
concurrently with or after the execution and delivery of this Amendment shall be
deemed to include this Amendment unless the context shall otherwise require.
(f) Continued Effectiveness. The Trademark Security Agreement
(including the schedules thereto), as amended hereby, remains in full force and
effect and is hereby reaffirmed in all respects.
[Balance of page left intentionally blank; signature page follows.]
IN WITNESS WHEREOF, the parties have executed this Amendment to
Trademark Security Agreement as of the date first set forth above.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By:/s/L.Xxx Xxxxxx
Name:L. Xxx Xxxxxx
Title:SVP and CFO
XXX. XXXXXX COOKIES AUSTRALIA, INC.
By:/s/L. Xxx Xxxxxx
Name:L. Time Xxxxxx
Title:SVP and CFO
FAIRFIELD FOODS, INC.
By:/s/L. Xxx Xxxxxx
Name:L. Xxx Xxxxxx
Title:SVP and CFO
XXX. XXXXXX' OTHER NAMES, INC.
By:/s/L. Xxx Xxxxxx
Name:L. Xxx Xxxxxx
Title:SVP and CFO
THE BANK OF NEW YORK, AS COLLATERAL AGENT
By:/s/Xxxxxxx X. Xxxx
Name:Xxxxxxx X. Xxxx
Title:Assistant Treasurer
