TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT (this "TRADEMARK SECURITY
AGREEMENT") is made this 24th day of September, 2008, among Grantors listed on
the signature pages hereof (collectively, jointly and severally, "Grantors" and
each individually "GRANTOR"), and XXXXX FARGO FOOTHILL, LLC, a Delaware limited
liability company, in its capacity as Agent for the Lender Group and the Bank
Product Providers (in such capacity, together with its successors and assigns in
such capacity, the "AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of
September 24, 2008 (as amended, restated, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT") among XXXXXXX & XXXXX XXXXXXXXX'X
HOLDING INC., a Delaware corporation ("PARENT"), XXXXXXX & XXXXX XXXXXXXXX'X
INC., a Delaware corporation ("BORROWER"), the lenders party thereto as
"Lenders" ("LENDERS") and Agent, the Lender Group is willing to make certain
financial accommodations available to Borrower pursuant to the terms and
conditions thereof; and
WHEREAS, the members of the Lender Group are willing to make the
financial accommodations to Borrower as provided for in the Credit Agreement,
but only upon the condition, among others, that Grantors shall have executed and
delivered to Agent, for the benefit of Lender Group and the Bank Product
Providers, that certain Security Agreement dated as of September 24, 2008
(including all annexes, exhibits or schedules thereto, as from time to time
amended, restated, supplemented or otherwise modified, the "SECURITY
Agreement");
WHEREAS, pursuant to the Security Agreement, Grantors are required
to execute and deliver to Agent, for the benefit of Lender Group and the Bank
Product Providers, this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Grantor hereby
agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Security Agreement or the Credit
Agreement.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Each Grantor hereby
grants to Agent, for the benefit of the Lender Group and the Bank Product
Providers, a continuing first priority security interest in all of such
Grantor's right, title and interest in, to and under the following, whether
presently existing or hereafter created or acquired (collectively, the
"TRADEMARK COLLATERAL"):
(a) all of its Trademarks and rights in and to Trademark Intellectual
Property Licenses to which it is a party including those referred to on SCHEDULE
I hereto;
(b) all goodwill, trade secrets, proprietary or confidential
information, technical information, procedures, formulae, quality control
standards, designs, operating and training manuals, customer lists, and other
General Intangibles with respect to the foregoing;
(c) all modifications and renewals of the foregoing;
(d) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark Intellectual Property License;
and
(e) all products and proceeds of the foregoing, including any claim by
such Grantor against third parties for past, present or future (i) infringement
or dilution of any Trademark or any Trademark licensed under any Intellectual
Property License or (ii) injury to the goodwill associated with any Trademark or
any Trademark licensed under any Intellectual Property License.
3. SECURITY FOR OBLIGATIONS. This Trademark Security Agreement and the
Security Interest created hereby secures the payment and performance of all the
Secured Obligations, whether now existing or arising hereafter. Without limiting
the generality of the foregoing, this Trademark Security Agreement secures the
payment of all amounts which constitute part of the Obligations and would be
owed by Grantors, or any of them, to Agent, the Lender Group, the Bank Product
Providers or any of them, whether or not they are unenforceable or not allowable
due to the existence of an Insolvency Proceeding involving any Grantor.
4. SECURITY AGREEMENT. The security interests granted pursuant to this
Trademark Security Agreement are granted in conjunction with the security
interests granted to Agent, for the benefit of the Lender Group and the Bank
Product Providers, pursuant to the Security Agreement. Each Grantor hereby
acknowledges and affirms that the rights and remedies of Agent with respect to
the security interest in the Trademark Collateral made and granted hereby are
more fully set forth in the Security Agreement, the terms and provisions of
which are incorporated by reference herein as if fully set forth herein and in
the event of any conflict between this Trademark Security Agreement and the
Security Agreement, the Security Agreement shall control.
5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any
new trademarks, the provisions of this Trademark Security Agreement shall
automatically apply thereto. Grantors shall give prompt notice in writing to
Agent with respect to any such new trademarks or renewal or extension of any
trademark registration. Without limiting Grantors' obligations under this
Section, Grantors hereby authorize Agent unilaterally to modify this Agreement
by amending SCHEDULE I to include any such new trademark rights of Grantors.
Notwithstanding the foregoing, no failure to so modify this Trademark Security
Agreement or amend SCHEDULE I shall in any way affect, invalidate or detract
from Agent's continuing security interest in all Collateral, whether or not
listed on SCHEDULE I.
6. COUNTERPARTS. This Trademark Security Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument. In proving this Trademark Security Agreement or any other Loan
Document in any judicial proceedings, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom such
enforcement is sought. Any signatures delivered by a party by facsimile
transmission or by e-mail transmission shall be deemed an original signature
hereto.
7. CONSTRUCTION. Unless the context of this Trademark Security Agreement
or any other Loan Document clearly requires otherwise, references to the plural
include the singular, references to the singular include the plural, the terms
"includes" and "including" are not limiting, and the term "or" has, except where
otherwise indicated, the inclusive meaning represented by the phrase "and/or."
The words "hereof," "herein," "hereby," "hereunder," and similar terms in this
Trademark Security Agreement or any other Loan Document refer to this Trademark
Security Agreement or such other Loan Document, as the case may be, as a whole
and not to any particular provision of this Trademark Security Agreement or such
other Loan Document, as the case may be. Section, subsection, clause, schedule,
and exhibit references herein are to this Agreement unless otherwise specified.
Any reference in this Trademark Security Agreement or in any other Loan Document
to any agreement, instrument, or document shall include all alterations,
amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as applicable
(subject to any restrictions on such alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements set forth herein). Any reference herein or in any other Loan
Document to the satisfaction or repayment in full of the Obligations shall mean
the repayment in full in cash (or cash collateralization in accordance with the
terms of the Credit
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Agreement) of all Obligations other than unasserted contingent indemnification
Obligations and other than any Bank Product Obligations that, at such time, are
allowed by the applicable Bank Product Providers to remain outstanding and that
are not required by the provisions of the Credit Agreement to be repaid or cash
collateralized. Any reference herein to any Person shall be construed to include
such Person's successors and assigns. Any requirement of a writing contained
herein or in any other Loan Document shall be satisfied by the transmission of a
Record and any Record so transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information contained
therein.
8. GOVERNING LAW.
(a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT
AS EXPRESSLY PROVIDED IN SECTION 8(B) AND UNLESS EXPRESSLY PROVIDED TO THE
CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE
CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS
OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER
OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) THE VALIDITY OF SECTION 2 OF THIS AGREEMENT, SOLELY WITH RESPECT TO
THE GRANT OF A CONTINUING SECURITY INTEREST IN PERMITS OR LICENSES THAT ARE
SUBJECT TO REGULATION BY OR CONSENT OF ANY GOVERNMENTAL AUTHORITY (INCLUDING
LIQUOR LICENSES AND FRANCHISES), THE CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT THEREOF, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT THERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE.
[signature page follows]
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[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]
IN WITNESS WHEREOF, the undersigned parties hereto have executed
this Agreement by and through their duly authorized officers, as of the day and
year first above written.
GRANTORS:
XXXXXXX & XXXXX XXXXXXXXX'X HOLDING INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
XXXXXXX & XXXXX XXXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
XXXXXXX & XXXXX XXXXXXXXX'X REALTY LLC,
a Delaware limited liability company
By: /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
XXXXXXX FINANCE CORP.,
a Delaware corporation
By: /s/ XXXX X. XXXXX, XX.
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
WILSHIRE RESTAURANT GROUP LLC,
a Delaware limited liability company
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]
XXXXX XXXXXXXXX PIE SHOPS, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
MACAL INVESTORS, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
XXXXX XXXXXXXXX WHOLESALERS, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
FIV CORP.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Vice President, Secretary
MCID, INC.,
an Idaho corporation
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
WILSHIRE BEVERAGE, INC.,
a Texas corporation
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President, Vice President, Treasurer,
Secretary
[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]
AGENT: XXXXX FARGO FOOTHILL, LLC,
a Delaware limited liability company, as Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]
