EXHIBIT B TO THE
STORE COMPANY
SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT ("Agreement"), dated as of
September 18, 1996, is entered into among Xxx. Xxxxxx' Original Cookies, Inc., a
Delaware corporation (with its successors, the "Store Company"), Xxx. Xxxxxx
Cookies Australia, a Utah corporation, and Fairfield Foods Inc., a New Jersey
corporation, each located c/o Capricorn Investors II, L.P. at 00 Xxxx Xxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (each individually a "Grantor" and
collectively, the "Grantors"), in favor of The Bank of New York, as collateral
agent (the "Collateral Agent") for the Lenders (as defined below), located at
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000. Capitalized terms
not otherwise defined herein have the meanings set forth in the Security
Agreement, dated as of September 18, 1996, made by the Grantors and the
Collateral Agent (the "Security Agreement").
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"), and Xxx. Xxxxxx Inc., a
Delaware corporation ("MFI," and together with Chocamerican, Prudential,
Principal, Pruco and Contrarian, the "Lenders"), are entering into that certain
Senior Note and Senior Subordinated Note Agreement, of even date herewith, (said
Agreement, as it may be amended or otherwise modified from time to time, being
the "Note Agreement"); and
WHEREAS, the Collateral Agent, acting on behalf of and for the
ratable benefit of the Lenders, is hereby referred to as the "Secured Party";
WHEREAS, pursuant to the Security Agreement, the Grantors are
granting a security interest to the Secured Party in certain collateral,
including the Copyrights (as defined herein).
3
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Grantors and the Secured Party hereby agree as follows:
1. Grant of Security Interest
a. As collateral security for the full and prompt payment when
due (whether at stated maturity, by acceleration or otherwise) of the Notes and
all of the other Obligations, each Grantor hereby grants to the Secured Party a
security interest in all of each Grantor's right, title and interest in the
Copyrights, whether now owned or existing or hereafter acquired or arising, and
wherever located, except such of the Copyrights 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; provided, however, that the security interest
in each Grantor's Copyrights created hereunder shall be subject to the rights of
licensees or franchisees in such Copyrights (whether existing as of the date
hereof or arising after the date hereof) to the same extent as each Grantor's
are so subject.
b. For purposes of this Agreement, "Copyrights" shall mean all
United States copyrights, registrations and applications therefor, including,
without limitation, the copyrights listed on Schedule I hereto, along with any
and all (i) renewals and extensions thereof, (ii) income, royalties, damages and
payments now and hereafter due and/or payable to any of the Grantors with
respect thereto, including, without limitation, damages and payments for past or
future infringements and misappropriations thereof, (iii) rights to xxx for
past, present and future infringements or misappropriations thereof, and (iv)
all other rights corresponding thereto throughout the world.
c. Schedule I hereto contains a true and accurate list of all
of the Grantors' U.S. Copyright registrations and applications.
d. The security interest granted hereby is granted in
conjunction with the security interest, granted to the Secured Party under the
Security Agreement, which is incorporated in its entirety herein by reference
except that references to "Collateral" in the Security Agreement as incorporated
herein shall be deemed to refer only to the Copyrights.
2. Governing Law.
This Agreement shall be governed by, and be construed and
interpreted in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.
IN WITNESS WHEREOF, the Grantors and the Secured Party have
caused this Agreement to be duly executed and delivered as of the date first
above written.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:President
XXX. XXXXXX COOKIES AUSTRALIA
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
Accepted and acknowledged by:
THE BANK OF NEW YORK,
AS COLLATERAL AGENT
By:/s/Xxxxx Xxxxxx
Name:Xxxxx Xxxxxx
Title:Assistant Treasurer
5
0132932.04-01S6a
SCHEDULE I
Grantors' U.S. Copyright
Registrations and Applications
NONE
