EXHIBIT 10.10
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ADMINISTRATION AND SERVICING AGREEMENT
BETWEEN AND AMONG
HMFI TRUST
HMFI ACQUISITION CORPORATION
AND
HARRY'S FARMERS MARKET,INC.
DATED AS OF JANUARY 31, 1997
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ADMINISTRATION AND SERVICING AGREEMENT dated as of January 31, 1997
between and among HFMI TRUST, a Delaware Business Trust (the "Trust"), HFMI
ACQUISITION CORPORATION, a Delaware corporation ("Newco" or the "Servicer"), and
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Harry's Farmers Market, Inc., a Georgia corporation ("HFMI").
(a) Pursuant to a Trust Agreement dated as of the date hereof (the "Trust
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Agreement") between HFMI and Wilmington Trust Company, a Delaware banking
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corporation, as Trustee, HFMI has established the Trust pursuant to the Delaware
Business Trust Act, as amended.
(b) Pursuant to a Transfer Agreement dated as of the date hereof (the
"Transfer Agreement") between and among HFMI, Newco and the Trust, HFMI has
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agreed to transfer to the Trust, as more fully described therein and in the
Assignment of Intellectual Property annexed thereto as Exhibit A, all right,
title and interest worldwide in and to the Intellectual Property (as defined in
the Trust Agreement).
(c) Pursuant to the Trust Agreement, the Trust shall issue to HFMI on the
date hereof the Worldwide Class Owner Certificate (as defined in the Trust
Agreement) representing the Worldwide Class Intellectual Property (as defined in
the Trust Agreement) and the Georgia Class Owner Certificate (as defined in the
Trust Agreement) representing the Georgia Class Intellectual Property (as
defined in the Trust Agreement), together with the corresponding irrevocable,
exclusive, perpetual licenses to the Worldwide Class Intellectual Property and
the Georgia Class Intellectual Property (the "Licenses").
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(d) Pursuant to an Acquisition Agreement dated as of the date hereof (the
"Acquisition Agreement") between HFMI and Newco, HFMI has agreed to transfer to
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Newco the Worldwide Class Owner Certificate, together with the corresponding
irrevocable, exclusive, perpetual license to the Worldwide Class Intellectual
Property.
(e) The parties hereto wish to enter into this Agreement to provide for
the appointment of the Servicer as the agent of the Trust to perform all of the
Trust's obligations in connection with the administration, maintenance,
protection and enforcement of the Intellectual Property.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the parties hereto agree as follows:
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ARTICLE I
The Servicer
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SECTION 1.01 Appointment of Servicer as Agent. The Trust hereby
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appoints the Servicer as its agent to perform the functions and duties, and to
prepare and file such documents, as are provided in the Trust Agreement, the
Transfer Agreement, the Licenses and this Agreement to be performed or prepared
by the Trust, its agent or the Servicer on behalf of the Trust. In addition,
the Servicer agrees to take such actions on behalf of the Trust as the Trust,
any Owner of Intellectual Property (as defined in the Trust Agreement) or the
Trustee may reasonably request on a timely basis in writing that are consistent
with the terms, provisions, and purposes of the Trust Agreement, the Transfer
Agreement, and this Agreement. The Servicer shall prepare for signature on
behalf of the Trust, or shall cause the preparation by other appropriate
persons, all documents, certificates, and other filings as the Trust shall be
required to prepare and/or file in connection with the Trust Agreement, the
Transfer Agreement, or this Agreement. In order to enable Servicer to carry out
such obligations, the Trustee has executed on behalf of the Trust the Power of
Attorney accompanying this Agreement as Exhibit A, and the Trustee agrees that
it will cooperate fully with the Servicer in executing such additional Powers of
Attorney or other documents, and by taking such actions as the Servicer may
direct, in order to facilitate the Servicer's performance of its obligations
hereunder.
SECTION 1.02 Rights and Duties of Servicer.
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(a) As part of its performance of such obligations, the Servicer's
permitted activities shall include, without limitation:
(1) taking any steps reasonably necessary to the preservation and
maintenance (including of any registrations or recordations therefor or
thereof) of the Intellectual Property, including without limitation
preservation of requisite confidentiality arrangements, payment of
applicable renewal fees, payment of periodic taxes, filing use
declarations, filing proof of use, and the like;
(2) executing and/or requiring the execution of confidentiality
agreements, filing and prosecuting applications to register, renew, record,
or otherwise perfect and/or confirm the ownership and integrity of the
Intellectual Property, and filing, prosecuting, defending, and resolving
(by any means deemed appropriate by Servicer, including, without
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limitation, negotiated settlement), any suit, opposition, cancellation,
reconsideration, appeal, or other proceeding related to or affecting any of
the Intellectual Property;
(3) recording any sublicenses or other agreements evidencing
confidentiality requirements, and filing additional applications,
registrations and recordations with respect to the Intellectual Property or
with respect to any Additional Intellectual Property (as defined in the
Trust Agreement) as shall be necessary and appropriate, including, without
limitation, the filing of applications in the United States Patent and
Trademark Office or with the United States Register of Copyrights, and
elsewhere throughout the world, covering the Intellectual Property and/or
any Additional Intellectual Property;
(4) taking all steps reasonably necessary and appropriate to
enforce the Trust's rights and/or legal title in the Intellectual Property,
and to enforce the rights and obligations of the Trust under this Agreement
and the Licenses, including, without limitation, with regard to (i) the
preservation of the confidentiality of trade secrets and know-how included
in the Intellectual Property; and (ii) the use of the appropriate marks
indicating registration and/or ownership of copyrights, logos, trade names,
service marks and trademarks included in the Intellectual Property.
(b) In the event that any Intellectual Property is infringed or
misappropriated or otherwise subject to unauthorized use by a third party, any
Owner of Intellectual Property that has knowledge of such third party use shall
promptly notify the Servicer and the other Owners of Intellectual Property in
writing, and the Servicer shall take such actions deemed by the Servicer to be
reasonably necessary and appropriate under the circumstances with respect
thereto, including without limitation, bringing legal action on behalf of the
Trustee (or, as set forth in Section 1.03, delegating authority to the relevant
Owner of Intellectual Property to bring such action) for infringement and/or
misappropriation and for appropriate remedies, which may include injunctive
relief; provided, however, that the Servicer shall consult with the relevant
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Owner of Intellectual Property prior to taking any action. Any monetary
recovery from any action brought pursuant to this paragraph shall be apportioned
between the Owners in a manner to be agreed upon in good faith by the Owners.
(c) Servicer will use its best commercially reasonable efforts to avoid
intentionally abandoning, failing to renew, or failing to maintain any
application or registration or other documentation of ownership rights for any
Intellectual Property that an Owner of Intellectual Property notifies Servicer
in writing on a timely basis is to be maintained or otherwise renewed by
Servicer.
(d) Servicer will use its best commercially reasonable efforts to avoid
intentional lapse into the public domain of any of the Intellectual Property
that requires confidential treatment to maintain its value or validity.
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(e) Servicer's obligations are conditioned on the full and timely
cooperation from the Owners of Intellectual Property and/or the Trustee.
Servicer shall have no duty to take any steps to maintain confidentiality or to
maintain any registrations, recordations, or other filings that Servicer deems
no longer feasible, possible, practical, desirable, or cost-effective to
maintain; provided, however, that Servicer shall notify the Owners of
Intellectual Property of its decision not to maintain any of the foregoing and
(ii) in such event, HFMI shall have the option of requiring Servicer assign such
Intellectual Property to it prior to such registration, recordation or other
filing rights expiring.
SECTION 1.03 Delegation to Owners of Intellectual Property.
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(a) Notwithstanding any provisions to the contrary contained in this
Article I, the Servicer may delegate to an Owner of Intellectual Property the
authority to take in the name of the Trust any and all actions to maintain and
defend the Intellectual Property covered by the Owner Certificate of that Owner
of Intellectual Property, but in no event shall the Owner be obligated to take
such action. In the event that Servicer so delegates any such authority, the
party to whom such authority is delegated shall provide the Servicer with copies
of all correspondence and documents relating thereto. Notwithstanding the
foregoing, if in the good faith judgment of the Servicer the Owner of
Intellectual Property to which the Servicer has delegated authority acts in a
manner prejudicial to the value of the Intellectual Property, the Servicer may
revoke the authority previously delegated.
(b) Subject to the preceding sentence, if the Servicer delegates to an
Owner of Intellectual Property authority to take all actions in the name of and
on behalf of the Trust with respect to any infringement, misappropriation, or
unauthorized third-party use of any Intellectual Property, the Servicer shall
cooperate with such Owner of Intellectual Property in all respects in any such
actions, such cooperation including without limitation causing the Trust to be a
plaintiff or co-plaintiff in any such action, causing the officers of the Trust
to execute pleadings and other necessary documents, and providing such documents
signed on behalf of Servicer or the Trust, if such documents are required.
(c) Notwithstanding the foregoing, nothing herein is intended to or
shall serve in any way to restrict any rights the Owners may have to bring suit
in their own names as exclusive licensees.
SECTION 1.04 Servicing Expenses.
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(a) HFMI shall pay for all reasonable fees and expenses, including the
reasonable fees and expenses of its attorneys, consultants and agents, incurred
by the Servicer in connection with the transfer of the Intellectual Property
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from HFMI to the Trust (including all governmental recordation, filing and other
taxes and fees).
(b) Each Owner of Intellectual Property shall pay for all fees and
expenses, including the reasonable fees and expenses of attorneys, consultants
and agents, incurred by the Servicer in connection with the performance of
services for the Trust, that relate solely to the Intellectual Property covered
by the Owner Certificate of that Owner of Intellectual Property. In the event
the Servicer undertakes litigation in Georgia or Alabama that HFMI reasonably
considers should not be undertaken, HFMI shall not be required to fund such
litigation.
(c) Where the services rendered by the Servicer do not relate solely
to the Intellectual Property of a particular Owner of Intellectual Property,
each Owner of Intellectual Property shall pay for all fees and expenses,
including the reasonable fees and expenses of its attorneys, consultants and
agents, incurred by the Servicer in connection with that Owner of Intellectual
Property's Portion. The "Owner of Intellectual Property's Portion" shall be
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determined on a case by case basis in good faith by the Owner of the
Intellectual Property in consideration of the nature of the services rendered.
(d) Any fees and expenses incurred by an Owner of Intellectual
Property in connection with the taking of an action pursuant to Section 1.03(b)
shall be borne by such Owner of Intellectual Property, and such Owner of
Intellectual Property shall pay for all fees and expenses, including the
reasonable fees and expenses of attorneys, consultants and agents, incurred by
the Servicer in connection with such action.
(e) In the event that the Trust is a party to a lawsuit concerning
any issue relating to the Intellectual Property, Servicer agrees not to commit
to any settlement of such lawsuit without the consent of the Owners of
Intellectual Property, which consent shall not be unreasonably withheld.
SECTION 1.05 Advance of Expenses.
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(a) HFMI agrees to pay the Servicer one thousand dollars, upon execution
of this Agreement as an advance on the fees and expenses to be incurred by the
Servicer in connection with the transfer of the Intellectual Property from HFMI
to the Trust pursuant to the Transfer Agreement.
(b) HFMI agrees to pay the Servicer one thousand dollars annually no
later than March 31 of each year (the "Annual Servicing Advance"), as an advance
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to cover expenses expected to be incurred by the Servicer in performing its
duties under this Article I for that year. The first Annual Servicing Advance
payment shall be due upon execution of this Agreement; the amount of such
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initial payment shall be adjusted by multiplying the Annual Servicing Advance by
the number of days remaining in calendar year 1997, divided by 365.
(c) The Servicer shall reimburse HFMI for the amount by which any
advances exceed actual expenses, and HFMI shall pay the Servicer the amount by
which actual expenses exceed any advances.
(d) Commencing in the year 2000 and for each year thereafter, the
Servicer shall increase or decrease the amount of the Annual Servicing Advance
to equal the average actual servicing expenses incurred by the Servicer during
the prior two calendar years.
1.06 Proceeds. The Owner of Intellectual Property for the Intellectual
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Property involved in an action pursuant to Section 1.02 or 1.03 shall be
entitled to all of the proceeds from a claim brought by the Servicer or by that
Owner of Intellectual Property to enforce or protect the Intellectual Property
involved.
1.07 Independence of the Servicer. For all purposes of this
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Agreement, the Servicer shall be an independent contractor with respect to the
manner in which it accomplishes the performance of its obligations hereunder,
and the Trust shall not interfere with the performance by the Servicer of the
Services. Neither the Trust nor an Owner of Intellectual Property may require
the Servicer to act contrary to its obligations under this Agreement or the
Trust Agreement.
ARTICLE II
Administration Fee
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SECTION 2.01 Administration Fee. HFMI agrees that it will also pay the
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Servicer, in order to cover the Servicer's overhead costs and expenses in
connection with the administration of the Intellectual Property, an
administration fee of one thousand dollars annually by January 30 of each year
(the "Annual Administration Fee"). The first Annual Administration Fee shall be
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due upon execution of this Agreement; the amount of such initial payment shall
be adjusted by multiplying the Annual Administration Fee by the number of days
remaining in calendar year 199, divided by 365. Commencing in 2000 and for each
year thereafter, the Servicer shall increase or decrease the amount of the
Annual Administration Fee to equal the actual budgeted overhead costs and
expenses for the administration of the Intellectual Property during that year.
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ARTICLE III
Use of Intellectual Property
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SECTION 3.01 Use of Intellectual Property. (a) Unless the Servicer
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consents in advance in writing, which consent may be withheld in the Servicer's
sole discretion, the Owner of Georgia Class Intellectual Property shall not (i)
use any Additional Intellectual Property (as defined in the Trust Agreement)
other than the Georgia Class Intellectual Property, which may include Additional
Intellectual Property (ii) co-join any other name or names with any of the
trademarks, service marks, trade names or logos included in the Intellectual
Property to create a composite trademark, service ▇▇▇▇, trade name or logo or
(ii) use a modified version of a trademark, service ▇▇▇▇, trade name or logo
included in the Georgia Class Intellectual Property.
(b) The Owner of the Georgia Class Intellectual Property shall not
apply to register any of the Intellectual Property, file any document relating
to any of the Intellectual Property with any government authority or take any
action that would affect the ownership by Newco of the Worldwide Class
Intellectual Property.
ARTICLE IV
Miscellaneous Provisions
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SECTION 4.01 Term. The term of this Agreement and of the Power of
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Attorney shall begin as of the effective date hereof and continue in perpetuity.
SECTION 4.02. Limitations on Liability.
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(a) The Servicer shall discharge its duties hereunder and under the
Power of Attorney with appropriate skill and care, but shall have no liability
with respect to, and shall not be obligated to indemnify or hold harmless any
party including, without limitation, the Trust or any of its affiliates,
employees, agents or other representatives from or against, any cost, expense,
damage or liability arising out of or otherwise in respect of the performance of
the Services or under the Power of Attorney. It is expressly understood and
agreed by the parties hereto that the Servicer shall not be liable for the
obligations of the Trust other than as provided in this Agreement. Without
limiting the foregoing, the Trust shall indemnify the Servicer, its affiliates,
stockholders, directors, officers, employees, agents and representatives (col
lectively, the "Indemnified Parties") and hold them harmless from and against
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any and all losses, liabilities, claims, damages and expenses (including
reasonable attorney's fees and expenses) suffered or incurred by or on behalf of
any Indemnified Party arising out of or based upon the defense of any claim or
litigation brought by a third party with respect to the performance by any
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Indemnified Party of their obligations under this Agreement or under the Power
of Attorney; provided, however, that the Trust shall not be liable to any
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Indemnified Party to the extent that liability of any Indemnified Party arises
primarily from such party's material breach of this Agreement by bad faith,
fraud, willful misconduct or gross negligence.
(b) It is expressly understood and agreed by the parties hereto that
(i) this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Trustee of the Trust under the Trust
Agreement, in the exercise of the powers and authority conferred and vested in
it thereby, (ii) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as a personal
representation, undertaking or agreement by Wilmington Trust Company but is made
and intended for the purpose of binding only the Trust, (iii) except as
Wilmington Trust Company shall otherwise expressly agree, nothing herein
contained shall be construed as creating any liability on Wilmington Trust
Company, individually or personally, to perform any covenant either expressly or
impliedly contained herein, all such liability, if any, being expressly waived
by the Servicer and by any person claiming by, through or under it and (iv)
under no circumstances shall Wilmington Trust Company be personally liable for
the payment of any indebtedness or expense of the Trust or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trust under this Agreement or the Trust Agreement.
SECTION 4.03. Access to Records and Information. The Trust and the
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Owners of Intellectual Property will (a) permit the Servicer, upon reasonable
request and during normal business hours, access to inspect and make copies of
any of the Trust's or the Owners of Intellectual Property's records and (b)
promptly provide other information reasonably requested by the Servicer in order
to carry out its duties hereunder.
SECTION 4.04 Indemnification. Each Owner of Intellectual Property
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agrees to indemnify and hold harmless the other Owners of Intellectual Property
(and their affiliates, subsidiaries, officers and directors) and the Trust
against and save and hold each of them harmless from any and all losses,
liability, damages and expenses (including reasonable attorneys' fees and
expenses) ("Losses") that may arise in connection with any third party product
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liability claim that arises in connection with the manufacture, production and
distribution of products or services sold, licensed, sublicensed, distributed,
advertised, provided, and/or marketed with, under or in connection with the
Intellectual Property, by or under the direction and control of such Owner of
Intellectual Property.
SECTION 4.05 Integration; Amendments. This Agreement, the licenses in
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perpetuity from the Trust and, as applicable, the Trust Agreement and the
Transfer Agreement contain the complete understanding of the parties with
respect to the subject matter hereof, and supersede all prior oral or written
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understandings and agreements relating thereto, and may not be modified,
discharged or terminated except by a written instrument signed by the parties
hereto.
SECTION 4.06 Waivers. No failure or delay on the part of any party in
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exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other or further exercise thereof or the exercise
of any other power, right or remedy.
SECTION 4.07 Arbitration. If the parties cannot agree upon any matter
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relating to this Agreement, the dispute shall be settled and determined by an
arbitrator (which may be the Trustee) mutually agreed by the parties (or, if the
parties cannot agree upon an arbitrator within 30 days, an arbitrator selected
by the president of the American Arbitration Association). Such arbitration
shall take place in New York, in accordance with and pursuant to the then
existing rules of the American Arbitration Association.
The arbitrator shall have power to order that any party specifically
perform its obligations under this Agreement. The fees and expenses of the
arbitrator shall be shared equally by the parties to the arbitration. The
parties agree that the arbitrator shall have the power to award attorney's fees
and expenses in any proceeding and that the arbitration award shall be final and
binding upon the parties.
SECTION 4.08 No Joint Ventures. Nothing contained in this Agreement
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shall be construed to create a relationship of partnership, joint venture or
agency between the parties, except for the agency relationship between the Trust
and the Servicer, and this Agreement shall not confer on any party any power to
obligate or bind any other party in any manner whatsoever, except as
specifically provided herein.
SECTION 4.09 Notices. All notices and other communications hereunder
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shall be in writing and shall be deemed to have been duly given when delivered
in person, by facsimile or on the next business day when sent by reputable
overnight courier or on the third succeeding business day when sent by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to Newco or the Services, to:
HFMI Acquisition Agreement
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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and to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to HFMI Trust, to:
HFMI Trust
c/o Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Administration
Telecopier:
and to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to HFMI, to:
Harry's Farmers Market, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇▇ & Bird
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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SECTION 4.10 Headings and Cross-References. The various headings and
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the table of contents in this Agreement are included for convenience only and
shall not affect the meaning or interpretation of any provision of this
Agreement. References in this Agreement to Section names or numbers are to such
Sections of this Agreement.
SECTION 4.11 Severability. Any provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability, without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 4.12 Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of Georgia
applicable to agreements made and to be performed wholly within such State, and
in accordance with the trademark or copyright laws of the United States, as
applicable.
SECTION 4.13 Counterparts. This Agreement may be executed in two or
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more counterparts and by different parties on separate counterparts, each of
which shall be an original, but all of which taken together shall constitute one
and the same instrument.
SECTION 4.14. Successors and Assigns. All covenants and agreements
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contained herein shall be binding upon, and inure to the benefit of, the Trust,
HFMI, and Newco, and their respective Successors (as defined in the Trust
Agreement).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers duly authorized as of the date and year
first above written.
HFMI TRUST HARRY'S FARMERS MARKET, INC.
By: WILMINGTON TRUST By:/s/ ▇▇▇▇▇ ▇. Blazer
COMPANY, not in its -----------------------------
individual capacity Name: ▇▇▇▇▇ ▇. Blazer
but solely as Trustee, Title: President
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HMFI ACQUISITION CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that HFMI Trust, a Delaware business
trust (the "Trust") hereby appoints HMFI ACQUISITION CORPORATION ("Newco") and
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any and all officers thereof as its true and lawful attorney-in-fact, with full
power of substitution, in connection with the maintenance and defense of the
Trust's rights in, to, and under federal, state and foreign patents, trademarks
(registered and unregistered) trademark applications, service marks (registered
and unregistered), service ▇▇▇▇ applications, trade names, trade name rights and
publicity rights, copyrights and copyright registrations, trade secrets and
know-how and other proprietary rights and information, and any later additions
thereto, that are the subject of the Trust Agreement worldwide (the
"Intellectual Property") with full irrevocable power and authority in the place
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of the Trust and in the name of the Trust or in its own name as nominee for the
Trust, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
foregoing including, without limitation:
(i) the full power to sign its name upon all filings and to do all
things necessary to maintain and register the Intellectual Property with the
United States Patent and Trademark Office or United States Register of
Copyrights and with any other appropriate trademark, copyright or other
governmental offices throughout the world;
(ii) the full power to execute, require execution of or record
requisite confidentiality agreements or otherwise preserve the value or validity
of that portion of the Intellectual Property which requires confidential
treatment;
(iii) the full power to use and require the use of the appropriate
marks indicating registration and/or ownership of copyrights, logos, trade
names, service marks and trademarks included in the Intellectual Property
(iv) to cause the Trust to pay or to pay or discharge taxes and liens
levied or placed on or threatened against the Intellectual Property; and
(v) (A) to commence, prosecute and settle in the name of the Trust
any suits, actions or proceedings at law or in equity in any court of competent
jurisdiction or before any appropriate governmental authority regarding the
ownership, validity or use of the Intellectual Property, or (B) to defend any
suit, action or proceeding brought against or regarding the Intellectual
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Property, all in accordance with the Administration and Servicing Agreement
dated as of the date hereof between and among Newco, Harry's Farmers Market,
Inc. and the Trust.
This Power of Attorney is governed by the laws of the State of Georgia
applicable to powers of attorney made and to be exercised wholly within such
State.
Dated: This day of January, 1997
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HFMI TRUST
By: Wilmington Trust Company, not in its
individual capacity, but solely as Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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STATE OF Delaware )
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: ss.:
COUNTY OF New Castle )
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On the 30th of January, 1997, before me personally came
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me personally known and known to me to be the person
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described in and who executed the foregoing instrument as Vice President
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of Wilmington Trust Company, as Trustee of HFMI Trust, who being by me duly
sworn, did depose and say that he resides at Wilmington, Delaware; that he
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is the Vice President of Wilmington Trust Company, the Trustee of the HFMI
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Trust described in and which executed the foregoing instrument; that the said
instrument was signed on behalf of said HFMI Trust by Wilmington Trust Company,
as Trustee, by order of its Board of Directors; that he signed his name thereto
by like order; and that he acknowledged said instrument to be the free act and
deed of said Trust.
Notary Public
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NOTARY PUBLIC
My Commission expires October 31, 1998
