Exhibit 10.4
Execution Copy
TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT (this "Agreement") dated as of January 29,
2008 (the "Effective Date"), is made and entered into by and between Mrs. Fields
Famous Brands, LLC, a Delaware limited liability company and the parent of the
Sellers (as defined below) ("MFFB") and NexCen Asset Acquisition, LLC, a
Delaware limited liability company ("NexCen Asset Acquisition" or "Purchaser").
MFFB and Purchaser may each be referred to herein individually as a "Party," and
collectively as the "Parties."
RECITALS
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of even
date herewith (the "Purchase Agreement"), by and among NexCen Brands, Inc., a
Delaware corporation,
Purchaser
(the "Buyer"), MFFB, Great American Cookie
Company Franchising, LLC, a Delaware limited liability company ("GACCF"), Great
American Manufacturing, LLC, a Delaware limited liability company ("GAM," and
collectively with GACCF the "Sellers"), the Buyer and/or its Affiliates are
acquiring certain assets of GACCF related to the "Great American Cookie" brand
franchising business ("GAC Franchise Business") and of GAM related to the "Great
American Cookie" dough manufacturing and supply business (the "GAC Manufacturing
Business");
WHEREAS, in connection with the foregoing, and as contemplated by the Purchase
Agreement, MFFB has agreed to provide certain services to Buyer following the
Closing; and
WHEREAS, this Agreement governs the Services (as defined below) that MFFB has
agreed to provide to Purchaser in relation to the GAC Franchise Business.
NOW THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Each capitalized term used herein without definition shall have the meaning
ascribed to it in the Purchase Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
REPRESENTATIONS AND WARRANTIES OF MFFB.
MFFB MAKES THE
FOLLOWING REPRESENTATIONS AND WARRANTIES TO PURCHASER, EACH OF WHICH IS TRUE AND
CORRECT ON THE EFFECTIVE DATE:
(A)
MFFB IS A LIMITED LIABILITY COMPANY DULY FORMED AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE, AND HAS ALL REQUISITE LIMITED
LIABILITY COMPANY POWER
AND AUTHORITY TO ENTER INTO AND PERFORM THIS AGREEMENT AND TO CARRY OUT THE
TRANSACTIONS CONTEMPLATED HEREIN.
(B)
MFFB HAS, OR WILL USE GOOD FAITH EFFORTS TO OBTAIN, ALL CONSENTS
PURSUANT TO APPLICABLE REGULATIONS AND UNDER EXISTING LICENSES OR CONTRACTS WITH
THIRD PARTIES TO ENTER INTO AND PERFORM THIS AGREEMENT AND TO CARRY OUT THE
TRANSACTIONS CONTEMPLATED HEREIN.
(C)
MFFB'S EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAS
BEEN DULY AUTHORIZED BY, AND IS IN ACCORDANCE WITH, ITS CERTIFICATE OF FORMATION
AND OPERATING AGREEMENT; THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED FOR
IT BY THE SIGNATORY SO AUTHORIZED; AND THIS AGREEMENT CONSTITUTES ITS LEGAL,
VALID, AND BINDING OBLIGATION, ENFORCEABLE AGAINST MFFB IN ACCORDANCE WITH THE
TERMS HEREOF, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY APPLICABLE
BANKRUPTCY LAWS, OR BY GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER SUCH
ENFORCEMENT IS CONSIDERED IN EQUITY OR AT LAW).
2.2
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
PURCHASER