6
AMENDMENT TO SECURITY AGREEMENT
This Amendment to 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"), each
subsidiary of the Store Company listed on Schedule A hereto (which Schedule
shall be revised from time to time to reflect the addition of any new
subsidiaries of the Store Company), and Xxx. Xxxxxx' Other Names, Inc., a
Delaware corporation ("Xxx. Xxxxxx' Other Names") (the parties listed on
Schedule A and Xxx. Xxxxxx' Other Names are 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 (other than Xxx. Xxxxxx' Other Names) are
all of the parties to that certain Security Agreement dated as of September 18,
1996 (the "Security Agreement"); and
WHEREAS, the parties hereto desire to amend the Security Agreement in
certain respects, as more fully set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment and not
otherwise defined herein are used with the meanings given such terms in the
Security Agreement.
2. AMENDMENTS TO THE SECURITY AGREEMENT.
(a) Xxx. Xxxxxx' Other Names is hereby made a party to the Security
Agreement and hereby grants, as a grantor, in favor of the Collateral Agent, a
security interest in the assets of Xxx. Xxxxxx' Other Names, as more fully
described in subparagraph 2(d) herein.
(b) The following new definitions are hereby added to Section 1 of the
Security Agreement in their respective proper alphabetical places:
"Banks" means, collectively, LaSalle National Bank and each
other financial institution which hereafter becomes a party to the Loan
Agreement or acquires an interest in the LaSalle Obligations.
"Beneficiaries" means the Lenders.
"Collateral Agency Agreement" means that certain Amended and
Restated Collateral Agency Agreement dated as of January 31, 1997, as
the same may be amended, restated, modified or supplemented and in
effect from time to time.
"Goods" means, with respect to any Grantor, any "goods" as
such term is defined in Section 9-105 of the UCC, now owned or
hereafter acquired by such Grantor.
"LaSalle" means LaSalle National Bank.
"LaSalle Obligations" means the obligations of the Store
Company and its Subsidiaries under the Loan Agreement, the LaSalle
Notes and the other "Loan Documents" referred to in the Loan Agreement.
"Lenders" means, collectively, the "Lenders" as defined in the
Note Agreement and the Banks.
"Loan Agreement" means that certain Loan Agreement dated as of
January 31, 1997 between the Store Company and LaSalle, as the same may
be amended, restated, modified or supplemented and in effect from time
to time.
"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 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).
"NoteObligations" means the "Obligations" as defined in the Note
Agreement.
"Notes" means, collectively, all promissory notes evidencing any
LaSalle Obligations or any Note Obligations.
"Obligations" means, collectively, the LaSalle Obligations and
the Note Obligations.
"Store Company" means Xxx. Xxxxxx' Original Cookies, Inc., a
Delaware corporation.
"Subordination and Intercreditor Agreement" means that certain
Subordination and Intercreditor Agreement dated as of
January 31, 1997 among LaSalle National Bank, a national
banking association, and Chocamerican, Inc., The Prudential
Insurance Company of America, Principal Mutual Life
Insurance Company, Pruco Life Insurance Company, Contrarian
Capital Advisors, L.L.C., Xxx. Xxxxxx Inc. and Xxx. Xxxxxx'
Holding Company, Inc.
(c) The definitions of "Majority Lenders" and "Permitted Liens" are
hereby amended and restated in their respective entireties as follows:
"Majority Lenders" means (i) for so long as any LaSalle
Obligations remain outstanding, the Majority Bank Lenders, and (ii) at
any time when no LaSalle Obligations remain outstanding, the Majority
Note Lenders; provided, however, that for purposes of Article 8, such
term means either Majority Bank Lenders or (subject to the rights of
the Banks under section 2(e) of the Subordination and Intercreditor
Agreement) Majority Note Lenders, and for purpose of Article 11, such
term means both Majority Bank Lenders and Majority Note Lenders.
"Permitted Liens" means (a) while the Loan Agreement and the
Note Agreement are both in effect, any Lien which is permitted by both
the Loan Agreement and section 9.2 of the Note Agreement; (b) at any
time when the Loan Agreement has been terminated but the Note Agreement
remains in effect, any Lien which is permitted by section 9.2 of the
Note Agreement; and (c) at any time when the Note Agreement has been
terminated but the Loan Agreement remains in effect, any Lien which is
permitted by the Loan Agreement.
(d) Section 2 of the Security Agreement is hereby amended and restated
in its entirety to read as follows:
2. Grant of Security Interest.
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 assigns, conveys, mortgages, pledges,
hypothecates and transfers to the Secured Party, and hereby grants to
the Secured Party a security interest in all of each Grantor's right,
title and interest in, to and under the following, except such of the
following as such Grantor is prohibited by law or by any contract or
agreement entered into prior to the Closing Date from granting a
security interest in (all of which being hereinafter collectively
called the "Collateral"):
i) all Accounts;
ii) all Chattel Paper;
iii) all Contracts and any and all claims of such Grantor
for damages arising out of or for breach of or a default under
any Contract and the right of such Grantor to perform or to
compel performance under any Contract and to exercise all
remedies thereunder;
iv) all Documents;
v) all Equipment;
vi) all General Intangibles;
vii) all Instruments;
viii) all Inventory;
ix) all Intellectual Property;
x) all Goods and all other personal property of such
Grantor whether tangible or intangible or whether now owned or
hereafter acquired by such Grantor and wherever located; and
xi) to the extent not otherwise included, all Proceeds of
each of the foregoing and all accessions to, substitutions and
replacements for, and rents, profits and products of, each of
the foregoing;
provided, however, that the security interest in each Grantor's
Intellectual Property and General Intangibles, to the extent that such
General Intangibles contain Intellectual Property, created hereunder
shall be subject to the rights of licensees or franchisees in such
Intellectual Property (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.
(e) Section 8(d) of the Security Agreement is hereby amended and
restated in its entirety as follows:
(d) The Proceeds of any sale, disposition or other realization
upon all or any part of the Collateral shall be distributed by the
Secured Party as provided in Section 5.2 of the Collateral Agency
Agreement.
(f) Schedule A of the Security Agreement is hereby amended to add Xxx.
Xxxxxx' Other Names, Inc. as a Grantor hereunder.
3. 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 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 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
Security Agreement as of the date first set forth above.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
XXX. XXXXXX COOKIES AUSTRALIA, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
FAIRFIELD FOODS, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
XXX. XXXXXX' OTHER NAMES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
THE BANK OF NEW YORK, AS COLLATERAL AGENT
By:/s/Xxxxx Xxxxxx
Name:Xxxxx Xxxxxx
Title:Assistant Treasurer
Schedule A
Xxx. Xxxxxx Cookies Australia
Fairfield Foods, Inc.
