**Exhibit10.63**

 

 

**AMENDMENT TO**

# **TRADEMARK LICENSE AGREEMENTS**

 

This Amendment to TrademarkLicense Agreements, dated as of December 24, 2004 (this” Amendment”), to theTrademark License Agreements described below, is entered into by and betweenMrs. Fields Franchising, LLC (“MFF”), a Delaware limited liability company, assuccessor-in-interest to The Mrs. Fields’ Brand, Inc. and/or Mrs. Fields’Original Cookies, Inc., and Shadewell Grove IP, LLC (“Shadewell”), a Delawarelimited liability company, as successor-in-interest to Nonni’s Food Company,Inc. (“Nonni’s”), a Florida corporation.  MFF and Shadewell are sometimes collectively referred to herein as the“parties.”

 

A.            The parties wish to amend the following Trademark LicenseAgreements entered into between their predecessors-in-interest:  (a) Trademark License Agreement dated January3, 2000, as previously amended (the “January 2000 TMLA”); (b) Trademark LicenseAgreement dated February 21, 2001 (the“February 2001 TMLA”), as previously amended; and (c) Trademark LicenseAgreement dated March 31, 2003 (the “March 2003 TMLA”; and all agreementscollectively, the “Existing Agreements”), upon the terms set forth herein.

 

                B.            The capitalized terms used but nototherwise defined herein shall have the meanings ascribed thereto in theExisting Agreements.

 

NOW, THEREFORE, for good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties hereby agree as follows:

 

1.             Amendment to Section 5 — Running Royalties PaymentDue Date.  Section 5 of each of theExisting Agreements currently provides that Shadewell will pay RunningRoyalties to MFF on the last day of the month following the end of eachcalendar quarter covered by the respective Existing Agreements.  Each Existing Agreement is hereby amended toreflect that, effective as of the date of this Agreement, Shadewell shall remitsuch Running Royalties to MFF no later than 60 days following the end of eachcalendar quarter covered by the Existing Agreement.

 

2.             Amendment to Section 6 of January 2000 TMLA —Guaranteed Royalty Payment Due Date. Section 6 of the January 2000 TMLA currently provides that Shadewellwill pay any Guaranteed Royalties to MFF within 45 days following the end ofthe respective 12-month period.  TheJanuary 2000 TMLA is hereby amended to reflect that, effective as of the dateof this Agreement, Shadewell shall remit Guaranteed Royalties to MFF within 60days following the end of the corresponding 12-month period.

 

3.             Amendment to Sections 6 and 7 of March 2003 TMLA—  Deletion of Guaranteed Royalties andAddition of Sales Increase Commitments. Section 6 of the March 2003 TMLA is deleted in its entirety, effectiveas of the date of this Agreement,

 

 

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and the words “Intentionally Deleted” areinserted in its place.  All otherreferences to the defined terms “Guaranteed Royalty” or “Guaranteed Royalties”are hereby also deleted, and any changes in form and grammar necessary as aresult of such deletions are hereby made to protect the remaining content ofthe March 2003 TMLA.  Section 7 of theMarch 2003 TMLA is hereby amended and restated as follows:

 

“If, during each annualperiod from March 31, 2005 through March 31, 2008,  Shadewell fails to either (i) generate aminimum of a 2% increase in year-over-year sales or (ii) pay to MFF the RunningRoyalty attributable to the amount by which, in a given year, the increase inyear-over-year sales has been less than 2%, MFF shall have the option either toterminate this Agreement or to treat it for the remainder of its term as anon-exclusive license.”  

 

4.             Amendment to Section 8 — Report Due Dates.  Section 8(a) of each of the ExistingAgreements currently provides that Shadewell will submit certain statementsregarding Royalty Bearing Products on or before the last day of the monthfollowing the last month of each calendar quarter covered by the respectiveAgreement.  Each such Existing Agreementis hereby amended to reflect that, effective as of the date of this Agreement,Shadewell shall submit such statements to MFF no later than 60 days followingthe end of each calendar quarter covered by the Existing Agreement.

 

5.             Continuing Effect.  The Existing Agreements, as amended herein,shall each continue in full force and effect according to its respective terms.

 

6.             Miscellaneous.

 

6.1           This Amendment shall be binding uponand shall inure to the benefit of the parties hereto and the respectivesuccessors and assigns.

 

6.2           In case any provision or obligationhereunder shall be invalid, illegal or unenforceable in any jurisdiction, thevalidity, legality and enforceability of the remaining provisions orobligations, or of such provision or obligation in any other jurisdiction,shall not in any way be affected or impaired thereby.

 

6.3           Section headings herein are includedherein for convenience of reference only and shall not constitute a part hereoffor any other purpose or be given any substantive effect.

 

6.4           THIS AMENDMENT AND THE RIGHTS ANDOBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUEDAND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF UTAH.

 

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6.5            This Amendment may be executed inany number of counterparts, each of which when so executed and delivered shallbe deemed an original, but all such counterparts together shall constitute oneand the same instrument.

 

 

 

IN WITNESS WHEREOF, theparties hereto have caused this Amendment to be duly executed and delivered bytheir respective authorized officers as of the date first set forth above.

 
|   | SHADEWELL GROVE IP, LLC       |
|--------|-------------------------------|
|   |                          |
|   | By:                           | /s/ Tim Bruer |   |
|   |                          | Tim Bruer |
|   | Its:                          | President |
|   |                          |
|   |                          |
|   | MRS. FIELDS FRANCHISING,  LLC |
|   |                          |
|   | By:                           | /s/ Michael Ward |   |
|   |                          | Michael Ward |
|   | Its:                          | Executive Vice President,  General Counsel |

 

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