TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT ("Security Agreement"), dated as of June
12, 1995, is entered into between Xxxxxx X. Xxxxx, an individual with an address
at 000 Xxxxx Xxxxxx. Xxx Xxxx. Xxx Xxxx 00000 ("Xxxxx") and Xxxxx Hotels &
Casino Resorts, Inc. with a principal place of business at Mississippi Avenue
and Xxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 ("Company").
WHEREAS, pursuant to the License Agreement, Xxxxx has agreed to grant
a security interest to Company in the Collateral (as defined herein) to secure
Trump's obligations under the Trademark License Agreement dated as of June 12,
1995 between Xxxxx and Company (the "License Agreement").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Xxxxx and Company hereby agree as follows:
1. Definitions
(a) Capitalized terms not otherwise defined herein shall have the
meanings set forth in the License Agreement.
(b) "Bankruptcy Code" shall mean Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, and any successor
statute or statutes.
(c) "Collateral" shall mean (i) the Licensed Marks, including
without limitation the registrations listed in Schedule A hereto; (ii) any new
trademark registrations or applications for registration of any of the Licensed
Marks acquired during the term hereof, including any registrations that issue or
applications filed pursuant to paragraph 6.2.3 of the License Agreement; (iii)
all of the goodwill connected with the use of and symbolized by any of the
foregoing; (iv) all files, records, certificates of registration, recordals,
licenses, and other documentation relating to the foregoing, whether in the
possession of Xxxxx or his trademark agents or attorneys; and (v) all proceeds
of the foregoing.
(d) "Effective Date" shall mean the date on which this Security
Agreement has been fully executed.
(e) "Event of Default" shall mean the occurrence or continuance
of any of the following events, acts, occurrences or conditions, whether such
event, act, occurrence or condition is voluntary or involuntary or results from
the operation of law or pursuant to or as a result of compliance by any Person
with any judgment, decree, order, rule or regulation of any court or
administrative or governmental body:
(i) Breach of License Agreement. Any breach by Xxxxx under
the License Agreement (after giving effect to any applicable cure
period specified therein) which prevents Company from enjoying in any
material respect the use of the Licensed Marks as contemplated under
the License Agreement.
(ii) Breach of Representation or Warranty. Any representation
or warranty made by Xxxxx herein or in any other document or
certificate or statement delivered pursuant hereto shall prove to be
false or misleading on the date as of which made or deemed made and
Company is prevented from enjoying in any material respect the use of
the Licensed Marks as contemplated under the License Agreement.
(iii) Breach of Covenants. Xxxxx shall fail to perform or
observe any agreement, covenant or obligation arising under this
security Agreement and Company is prevented from enjoying in any
material respect the use of the Licensed Marks as contemplated under
the License Agreement, and such failure shall continue after the end
of the applicable grace period, if any, provided herein.
(iv) Bankruptcy, etc. (a) Xxxxx shall commence a voluntary
case concerning himself under the Bankruptcy Code; or (b) an
involuntary case is commenced against Xxxxx under the Bankruptcy Code
and the petition is not controverted within to days (or such longer
period as is permitted by order of the applicable bankruptcy court),
or is not dismissed, withdrawn or stayed within 45 days, after
commencement of the case; or (c) a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Xxxxx; or (d) Xxxxx files a
petition or answer or consent seeking reorganization or relief under
any applicable federal or state law whether now or hereafter in effect
relating to Xxxxx or there is commenced against Xxxxx any such
proceedings which remains undismissed for a period of 45 days; or (e)
any order for relief or other order approving any such case or
proceeding is entered; or (f) Xxxxx is adjudicated insolvent or
bankrupt; or (g) Xxxxx suffers any appointment of any custodian or the
like for all or any substantial part of his property to continue
undischarged or unstayed for a period of 45 days; or (h) Xxxxx makes a
general assignment for the benefit of creditors; or (i) Xxxxx shall by
any act or failure to act consent to, approve of or acquiesce in any
of the foregoing.
(f) "Licensed Marks" shall mean the Marks, except for those Marks
associated with the Retained Casinos as set forth in Schedule B of the License
Agreement.
(g) "Marks" shall mean all right, title and interest throughout
the world in (i) the names and marks "XXXXXX X. XXXXX," "XXXXXX XXXXX," X.X.
XXXXX" and "X. XXXXX" (collectively, the "Xxxxxx Name"), and "XXXXX" (the "Xxxxx
Name" and together with the Xxxxxx Name the "Xxxxx Names") with respect to
Casino Services and Products and of each of the trademarks, service marks and
registrations and applications listed on Schedule A of the License Agreement.
(h) "Person" shall mean and include any individual, partnership,
joint venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or agency, department or instrumentality
thereof.
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(i) "UCC" shall mean the Uniform Commercial Code as in effect
from time to time in the State of New York.
2. Grant of Security Interest
To secure the full performance by Xxxxx of all of his obligations
under the License Agreement, including but not limited to any expenses incurred
through the exercise of any remedies hereunder (including but not limited to
reasonable fees of attorneys and paralegals), Xxxxx hereby grants to Company a
first priority security interest in the Collateral.
3. Representations and Warranties of Xxxxx
Xxxxx represents and warrants to Company, which representations and
warranties shall survive execution and delivery of the Security Agreement, as
follows:
(a) Xxxxx is authorized to enter into this Security Agreement,
and his entry into this Security Agreement is not and would not, with the
passage of time, be in breach or violation of any governmental order or law or
the contractual rights of any third party (by contract or otherwise);
(b) The Marks constitute all of the trademarks, service marks and
trade names used by Xxxxx within the last five (5) years in connection with any
Casino Services and Products;
(c) Xxxxx is and will continue to be for the term of the security
Agreement the sole and exclusive owner of the Marks in the United States or
where Xxxxx has registered trademarks for Casino Services and Products
throughout the United States, and his rights therein are free and clear of all
liens, encumbrances and licenses to third parties (other than the licenses
granted by Xxxxx to the Retained Casinos pursuant to the Amended and Restated
License Agreement between Xxxxx and Xxxxx Xxx Xxxxx Associates dated April 1,
1991 and the License Agreement between Xxxxx and Trump's Castle Associates dated
May 29, 1992, and the license granted by Xxxxx to Xxxxx Plaza Associates
pursuant to Xxxxx Plaza Hotel and Casino pursuant to the Amended and Restated
Services Agreement by and among Xxxxx Plaza Associates, Xxxxx Plaza Management
Corp. and Xxxxx dated June 24, 1993), including without limitation any claims
arising under "community property" or similar laws;
(d) To the best of Trump's knowledge, aster due inquiry, there is
no material claim, suit, action or proceeding pending or threatened in the
United States against Xxxxx or any entity owned or controlled by Xxxxx with
respect to the validity of any of the Marks, Trump's ownership of any of the
Marks, the infringement of any of the marks by any third party or the
infringement of the rights of any third party arising out of use of any of the
marks;
(e) The Marks are valid and enforceable in the United States, and
to the best of Trump's knowledge, the Marks are valid and enforceable elsewhere
in the world;
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(f) All renewal fees and other maintenance fees for registration
of any of the Marks or applications therefor which have fallen due on or prior
to the Effective Date have been paid;
(g) To the best of Trump's knowledge, no third party owns or has
asserted any rights in the Marks, and, to the best of Trump's knowledge, the
Marks do not infringe any rights of any third party;
(h) None of the Licensed Marks or any additional trademark
registrations that issue pursuant to paragraph 6.2.3 of the License Agreement is
or shall became subject to any security interest in favor of any Person other
than Company. There is no financing statement or other document or instrument
now signed or on file in any United States public office granting a security
interest in or otherwise encumbering any part of the Licensed Marks or any
additional trademark registrations that issue pursuant to paragraph 6.2.3 of the
License Agreement. So long as this Security Agreement remains in effect, Xxxxx
will not execute, and there will not be on file in any public office, any such
financing statement or other document or instruments, except financing
statements filed or to be filed in favor of Company;
(i) Subject to any limitation stated therein or in connection
therewith, all information furnished to Company concerning the Marks and
proceeds thereof is and will be accurate and correct in all material respects;
(j) The security interests granted to Company hereunder in the
Marks, upon the filing of appropriate filings with the PTO and appropriate UCC
financing statements, shall constitute a first priority, perfected security
interest in the United States; provided, however, that recordation, filing or
registration of such security interest may be required to perfect such security
interest in the United States in Marks acquired by Xxxxx after the date hereof;
and
(k) The chief executive office of Xxxxx is located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
4. Covenants
Xxxxx covenants and agrees with Company that from and after the date
of this Security Agreement:
(a) Xxxxx will from time to time at the expense of Xxxxx,
promptly execute, deliver, file and record all further instruments, endorsements
and other documents, and take such further action as Company may deem reasonably
necessary for the perfection of the security interest of the Company hereunder
or for obtaining the full benefits of the rights, remedies and powers herein
granted, including, without limitation, the following:
(i) the filing of any financing statements, in form
acceptable to Company under the UCC in effect in any jurisdiction with
respect to the liens and security interests granted hereby. Xxxxx also
hereby authorizes Company to file any such financing statement without
the signature of Xxxxx to the extent permitted by applicable law.
photocopy or other reproduction of this Security Agreement shall be
sufficient as a financing statement and may be filed in lieu of
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the original to the extent permitted by applicable law. Xxxxx will pay
or reimburse the Company all filing fees and reasonable related
expenses;
(ii) the filing of any other document, including without
limitation the filing of any document in the PTO, reasonably deemed
necessary by Company to acknowledge, confirm, register, record or
perfect Company's interest in any of the Marks; and
(iii) the taking of all such other acts as may be necessary
for the purpose of carrying out the terms of this Security Agreement.
(b) Xxxxx will not change his name or the location of his chief
executive office without (i) giving Company at least thirty (30) days' prior
written notice clearly describing such new name or location and providing such
other information in connection therewith as Company may reasonably request, and
(ii) taking all action satisfactory to Company as Company may reasonably request
to maintain the security interest of Company in the Collateral intended to be
granted hereby as fully perfected with the same or better priority and in full
force and effect;
(c) Company agrees not to license, transfer, convey or encumber
any interest in or to the Collateral. Any license of the Collateral granted
after the Effective Date by Xxxxx shall be in writing and shall not prohibit
Xxxxx from assigning, transferring, selling, sublicensing or otherwise disposing
of all or any of his right, title and interest thereunder to Company or its
designees;
(d) Xxxxx shall not take any action, or permit any action to be
taken by others subject to Trump's control, or, fail to take any action, or
permit others subject to Trump's control, to fail to take any action, which
would, in the case of any such actions or failures to act taken singly or
together, adversely affect the validity, grant and enforceability of the
security interest granted to Company herein;
(e) Xxxxx agrees to maintain all U.S. Marks and registrations
thereof comprising the Collateral in full force and effect;
(f) Xxxxx shall not do any act or omit to do any act whereby any
of the Collateral may lapse or become abandoned or dedicated to the public or
unenforceable;
(g) Xxxxx shall not fail to maintain, as in the past, the level
of the quality of products and services offered under any of the Marks.
(h) Xxxxx shall promptly notify Company if it knows that any of
the Collateral may become (i) abandoned or dedicated to the public or placed in
the public domain, (ii) invalid or unenforceable, or (iii) subject to any
adverse determination or development (including the institution of proceedings)
in any proceeding in the United States Patent and Trademark Office, or any State
or foreign equivalent thereof, or any court;
(i) Any material provision of this Security Agreement shall for
any reason cease to be in full force and effect (other than by mutual agreement
of the parties pursuant
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to Section 7 or 8), or shall cease to give Company the liens, rights, powers and
privileges purported to be created hereby.
(j) Other than as provided in the License Agreement, Xxxxx shall
take all commercially reasonable steps, including in the United States Patent
and Trademark office, or any State or foreign equivalent thereof, to maintain
and pursue any application of each Xxxx comprising the Collateral owned by Xxxxx
including, but not limited to, the filing of applications for renewal,
affidavits of use, affidavits of incontestability, the prosecution and defense
of opposition, interference and cancellation proceedings, and the payment of
fees and taxes (except to the extent that dedication, abandonment, or
invalidation, or the failure to pursue and maintain is permitted under the
foregoing subparagraphs (f) or (g) hereof; and
(k) Xxxxx shall promptly (but in no event more than ninety days
after Xxxxx obtains knowledge thereof) report to Company (i) the filing of any
application to register any Marks comprising the Collateral (whether such
application is filed by Xxxxx or through any agent, employee, licensee or
designee thereof) with the United States Patent and Trademark Office, or any
State or foreign equivalent thereof and (ii) the registration of any Xxxx
comprising the Collateral by any such office. Upon the request of Company, Xxxxx
shall promptly execute and deliver any and all agreements, instruments,
documents, and papers reasonably necessary to protect or evidence Company's
security interest in such Marks.
5. Expenses
Xxxxx agrees to pay all costs of Company, including reasonable
attorneys' fees, incurred with respect to the enforcement of any of Company's
rights hereunder.
6. Rights and Remedies Upon an Event of Default
(a) If any Event of Default shall have occurred and be
continuing, then and in every such case, subject to any mandatory requirements
of applicable law then in effect, Company, in addition to other rights and
remedies provided for herein and any rights now or hereafter existing under
applicable law, shall have all rights and remedies as a secured party under the
UCC in all relevant jurisdictions and may:
(i) Personally, or by agents or attorneys, immediately take
possession of the Collateral or any part thereof, from Xxxxx or any
other Person who then has possession of any part thereof, with or
without notice or process of law;
(ii) sell, assign or otherwise liquidate, or direct Xxxxx to
sell, assign or otherwise liquidate, any or all of the Collateral and
take possession of the proceeds of any such sale or liquidation;
(b) Any Collateral repossessed by Company under or pursuant to
Section 6(a) may be sold, assigned, leased or otherwise disposed of under one or
more contracts or as an entirety, and without the necessity of gathering at the
place of sale the property to be sold, and in general in such terms as Company
may, in compliance with any mandatory requirements of applicable law, determine
to be commercially reasonable. Notwithstanding the
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foregoing, Company shall use its reasonable efforts not to make any such
disposition or take any other action that would result in harm to or destruction
of any of the Collateral, including without limitation any naked assignment or
license of any Xxxx comprising the Collateral. Any such disposition which shall
be a private sale or other private proceedings permitted by such requirements
shall be made upon not less than 10 days' written notice to Xxxxx specifying the
time at which such disposition is to be made and the intended sale price or
other consideration therefor, and shall be subject, for the 10 days after the
giving of such notice, to the right of Xxxxx or any nominee of Xxxxx to acquire
the Collateral involved at a price or for such other consideration at least
equal to the intended sale price or other consideration so specified. Any such
disposition which shall be a public sale permitted by such requirements shall be
made upon not less than 10 days' written notice to Xxxxx specifying the time and
place of such sale and, in the absence of applicable requirements of law, shall
be by public auction (which may, at the option of Company, be subject to
reserve), after publication of notice of such auction not less than to days
prior thereto in two newspapers in general circulation in the jurisdiction in
which such auction is to be held. To the extent permitted by any such
requirement of law, Company may bid for and become the purchaser of the
Collateral or any item thereof, offered for sale in accordance, with this
Section without accountability to Xxxxx (except to the extent of surplus money
received). If, under mandatory requirements of applicable law, Company shall be
required to make disposition of the Collateral within a period of time which
does not permit the giving of notice to Xxxxx as hereinabove specified, Company
need give Xxxxx only such notice of disposition as shall be reasonably
practicable in view of such mandatory requirements of applicable law. Company
shall not be obligated to make any sale of the Collateral regardless of notice
of sale having been given. Company may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
(c) Upon the occurrence and continuance of an Event of Default,
Company shall have the right at any time to make any payments and do any other
acts Company may deem necessary to protect its security interests in the
Collateral, including, without limitation, the rights to pay, purchase, contest
or compromise any encumbrance, charge or lien which, in the reasonable judgment
of Company appears to be prior to or superior to the security interests granted
hereunder in the Licensed Marks and any additional trademark registrations that
issue pursuant to paragraph 6.2.3 of the License Agreement, and appear in and
defend any action or proceeding purporting to affect its security interests in,
and/or the value of, the Collateral. Xxxxx hereby agrees to reimburse Company
for all reasonable payments made and expenses incurred under this Agreement
including reasonable fees, expenses and disbursements of attorneys and
paralegals acting for company, including any of the foregoing payments under, or
acts taken to protect its security interests in, the Collateral, which amounts
shall be secured under this Agreement, and agree they shall be bound by any
payment made or act taken by Company hereunder absent Company's gross negligence
or willful misconduct. Company shall have no obligation to make any of the
foregoing payments or perform any of the foregoing acts:
(d) Xxxxx hereby irrevocably authorizes and appoints Company, and
any officer or agent thereof as Trump's attorney-in-fact, with full authority in
the place and stead of Xxxxx and in the name of Xxxxx in Company's discretion,
to, upon the occurrence and during the continuance of an event of Default, take
any action and to execute any instrument that Company may deem necessary or
advisable for the purpose of carrying out the terms of this
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Security Agreement and to exercise all of the following powers, which powers,
being coupled with an interest, shall be irrevocable until this Security
Agreement has been terminated:
(i) ask for, demand, collect, bring suit, recover,
compromise, administer, accelerate or extend the time of payment,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Collateral;
(ii) receive, take, endorse, negotiate, sign, assign and
deliver and collect any checks, notes, drafts or other instruments,
documents and chattel paper, in connection with clause (i) above;
(iii) convey any Collateral to any purchaser thereof;
(iv) record any instruments contemplated under the terms
hereof
(v) make any payments or take any acts under Section 6(c)
hereof; and
(vi) file any claims or take any action or institute any
proceedings that Company may reasonably deem-necessary or desirable
for the collection of any of the Collateral or otherwise to enforce
the rights of Company with respect to any of the Collateral.
Company's authority under this Section 6(d) shall include, without limitation,
the authority to execute and give receipt for any certificate of ownership or
any document, transfer title to any of the Collateral, execute as Trump's
attorney-in-fact all financing statements or any other documents deemed
necessary or appropriate to preserve, protect or perfect the security interest
in the Collateral and to file the same, prepare, file and execute as Trump's
attorney-in-fact any notice of lien, assignment or satisfaction of lien or
similar document in connection with any of the Collateral and prepare, file and
execute as Trump's attorney-in-fact a proof of claim in bankruptcy or similar
document against any customer of Xxxxx, and to take any other actions arising
from or incident to the rights, powers and remedies granted to the Company in
this Agreement.
(e) If any Event of Default shall have occurred and Company has
taken possession of the Collateral or any part thereof pursuant to its rights
hereunder, Xxxxx agrees to take whatever actions are reasonably necessary to
avoid confusion between Company's ownership and use of the Collateral, on the
one hand, and Trump's, his licensees' and/or his successors' use of (i) the xxxx
XXXXX in connection with hotel services and (ii) the marks XXXXX XXX MAHAL and
XXXXX CASTLE in connection with the services and products of the casino hotels,
Xxxxx Xxx Mahal and Xxxxx Castle, respectively, on the other hand. Such actions
shall include but shall not be limited to Trump's entering into an appropriate
consent agreement with Company regarding Trump's and Company's concurrent use of
the XXXXX xxxx or such other actions as are deemed necessary or appropriate to
protect Company's rights in the XXXXX xxxx and to avoid confusion between
Trump's and Company's concurrent use of the XXXXX xxxx.
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7. Modification of Security Agreement
This Security Agreement or any provision hereof may not be amended,
changed, waived, or terminated except by mutual written agreement of Xxxxx and
the Special Committee Xxxxx additionally agrees to execute any additional
agreement or amendment hereto as may be required by Company from time to time to
subject any such owned or subsequently acquired right, title or interest in any
of the Collateral to the liens and perfection created or contemplated hereby or
by the License Agreement.
8. Termination of Security Agreement
This Security Agreement shall terminate upon termination of the
License Agreement, and Company, at the request and sole expense of Xxxxx, will
execute and deliver to Xxxxx the proper instruments acknowledging termination of
this Security Agreement and will duly, without recourse, representation or
warranty of any kind whatsoever, release such of the Collateral not therefore
disposed of, applied or released from the security interest created hereby.
9. Miscellaneous
(a) Notices. All notices and other communications hereunder shall
be in writing and shall be given as set forth in the License Agreement.
(b) Headings. The headings in this Security Agreement are for
purposes of reference only and shall not affect the meaning or construction of
any provision of this Agreement.
(c) Severability. The provisions of this Security Agreement are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such .invalidity or
unenforceability shall affect, in that jurisdiction only, such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Security Agreement in any jurisdiction.
(d) Interpretation. Time is of the essence in each provision of
this Security Agreement of which time is an element. All terms not defined
herein or in the License Agreement. shall have the meaning set forth in the UCC,
except where the context otherwise requires. To the extent a term or provision
of this Security Agreement conflicts with the License Agreement and is not dealt
with herein with more specificity, the License Agreement shall control with
respect to the subject matter of such term or provision. Acceptance of or
acquiescence in a course of performance rendered under this Security Agreement
shall not be relevant in determining the meaning of this Security Agreement even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
(e) Survival of Provisions. All representations, warranties and
covenants of Xxxxx contained herein shall survive the Effective Date, and shall
terminate only upon the termination of the License Agreement.
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(f) Company May Perform. If Xxxxx fails to perform any agreement
contained herein, Company may itself perform, or cause performance of, such
agreement, and the reasonable expenses of Company incurred in connection
therewith shall be payable by Xxxxx and shall constitute obligations secured by
this Security Agreement.
(g) Delays; Partial Exercise of Remedies. No delay or omission of
the Company to exercise any right or remedy hereunder, whether before or after
the happening of any Event of Default, shall impair any such right or shall
operate as a waiver thereof or as a waiver of any such Event of Default. No
single or partial exercise by Company of any right or remedy shall preclude any
other or further exercise thereof, or preclude any other right or remedy.
(i) Governing Law. THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
(h) Successors and Assigns. This Security Agreement shall be
binding upon and inure to the benefit of Xxxxx and Company, all future holders
of the Collateral and their respective successors and assigns, except that Xxxxx
may not assign or transfer any of its rights or obligations under this Security
Agreement without the prior written consent of Company; provided, however, that
Xxxxx may assign or transfer any rights and obligations under this Agreement to
a Permitted Transferee.
(i) Counterparts. This Security Agreement may be executed in any
number of counterparts and by the parties hereto on separate counterparts, each
of which when so executed, shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Xxxxx and Company have caused this Security
Agreement to be duly executed and delivered as of the date first above written.
XXXXXX XXXXX
By:/s/
----------------------------------
Name:
Title:
XXXXX HOTELS & CASINO RESORTS, INC.
By:/s/
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
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SCHEDULE A
Licensed Marks
U.S. Registrations
Xxxx Reg. Date Reg. No. Services
---- --------- -------- --------
OYSTERS XXXXX 1/18/94 1,817,558 Hotel restaurant services
XXXXX PLAZA 10/30/90 1,620,477 Casino services; hotel,
bar and restaurant services
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STATE OF ___________)
COUNTY OF __________)
On June ___, 1995, before me, the undersigned, a notary public in and
for said state and county, Personally appeared Xxxxxx X. Xxxxx, Personally known
to me (or proved to me on the basis of satisfactory evidence), to be the Person
who executed the within instrument as the individual therein named.
WITNESS MY HAND AND OFFICIAL SEAL.
(NOTARIAL STAMP OR SEAL)
___________________________
Notary Public
My Commission Expires:
__________________________
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STATE OF ___________)
COUNTY OF __________)
On June __, 1995, before me, the undersigned, a notary public in and
for said state and county, Personally appeared _________, personally known to me
(or proved to me on the basis of satisfactory evidence), to be the Person
executed the within instrument as the ________, on behalf of Xxxxx Hotels &
Casino Resorts, Inc., a Delaware corporation, in its capacity as Company, the
corporation therein named, and acknowledged to me that the corporation executed
the within instrument pursuant to its bylaws or a resolution of its board of
directors.
WITNESS MY HAND AND OFFICIAL SEAL.
(NOTARIAL STAMP OR SEAL)
___________________________
Notary Public
My Commission Expires:
__________________________
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AMENDMENT TO TRADEMARK SECURITY AGREEMENT
AMENDMENT, dated as of April 17, 1996 (the "Amendment"), to the Trademark
Security Agreement, dated as of June 12, 1995, by and between Xxxxxx X. Xxxxx,
an individual with an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Xxxxx"), and Xxxxx Hotels & Casino Resorts, Inc., a Delaware corporation, with
a principal place of business at Mississippi Avenue and Xxx Xxxxxxxxx, Xxxxxxxx
Xxxx, Xxx Xxxxxx 00000 (the "Company").
W I T N E S S E T H
WHEREAS, Trump and the Company are parties to that certain Trademark
Security Agreement, dated as of June 12, 1995 (as the same may be amended,
modified or supplemented from time to time, the "Security Agreement"); and
WHEREAS, as a result of the merger (the "Merger") of THCR Merger Corp., a
Delaware corporation ("Merger Sub") and a wholly owned subsidiary of the
Company, with and into Taj Mahal Holding Corp., a Delaware corporation ("Taj
Holding"), pursuant to the Agreement and Plan of Merger, dated as of January 8,
1996, among the Company, Taj Holding and Merger Sub, as amended by Amendment to
Agreement and Plan of Merger, dated as of January 31, 1996, and certain related
transactions, Xxxxx Hotels & Casino Resorts Holdings, L.P., a Delaware limited
partnership and a subsidiary of the Company, indirectly wholly owns Xxxxx Xxx
Mahal Associates, the owner and operator of the Xxxxx Xxx Xxxxx Casino Resort.
WHEREAS, Xxxxx and the Company have agreed that from and after the date
hereof, the Security Agreement be amended subject to and upon the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. As used herein, all terms that are defined in the License
Agreement shall have the same meanings herein.
2. Amendments.
2.1 The Security Agreement is hereby amended by deleting the term
"Retained Casinos" each time such term appears therein and inserting in lieu
thereof the term "Retained Casino."
2.2 Paragraph 3(c) of the Security Agreement is hereby amended by
deleting the phrase "the Amended and Restated License Agreement between Xxxxx
and Xxxxx Xxx Xxxxx Associates dated April 1, 1991 and" set forth therein.
2.3 Paragraph 6(e) of the Security Agreement is hereby amended and
restated in its entirety to read as follows:
(e) If any Event of Default shall have occurred and Company has
taken possession of the Collateral or any part thereof pursuant to its
rights hereunder,
Xxxxx agrees to take whatever actions are reasonably necessary to avoid
confusion between Company's ownership and use of the Collateral, on the one
hand, and Trump's, his licensees' and/or his successors' use of (i) the
xxxx XXXXX in connection with hotel services and (ii) the xxxx XXXXX CASTLE
in connection with the services and products of Xxxxx Castle, on the other
hand. Such actions shall include but shall not be limited to Trump's
entering into an appropriate consent agreement with Company regarding
Trump's and Company's concurrent use of the XXXXX xxxx or such other
actions as are deemed necessary or appropriate to protect Company's rights
in the XXXXX xxxx to avoid confusion between Trump's and Company's
concurrent use of the XXXXX xxxx."
2.4 Schedule A to the Security Agreement is hereby amended and
replaced in its entirety by the Amended Schedule A attached hereto.
3. Security Agreement Ratified. Except to the extent hereby amended, the
Security Agreement remains in full force and effect and is hereby ratified and
affirmed.
4. Effect of Amendment. This Amendment shall be limited precisely as
written and shall not be deemed (a) to be a consent granted pursuant to, or a
waiver or modification of, any other term or condition of the Security Agreement
or any of the instruments or agreements referred to therein or (b) to prejudice
any right or rights which the parties hereto may now have or have in the future
under or in connection with the Security Agreement or any of the instruments or
agreements referred to therein. Whenever the Security Agreement is referred to
in the Security Agreement or any of the instruments, agreements or other
documents or papers executed or delivered in connection therewith, such
reference shall be deemed to mean the Security Agreement as modified by this
Amendment.
5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same agreement, it being understood that
all of the parties need not sign the same counterpart.
6. Governing Law. THIS AMENDMENT, THE LEGAL RELATIONS BETWEEN THE PARTIES
AND THE ADJUDICATION AND THE ENFORCEMENT THEREOF, SHALL BE GOVERNED BY AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO APPLICABLE CONFLICT OF LAW RULES OR PRINCIPLES,
EXCEPT THAT ANY QUESTIONS GOVERNED BY THE TRADEMARK STATUTES OF THE UNITED
STATES OF AMERICA SHALL BE GOVERNED BY AND DETERMINED PURSUANT TO AND/OR UNDER
SUCH STATUTES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and the year first above written.
/s/
----------------------------------
XXXXXX X. XXXXX
XXXXX HOTELS & CASINO RESORTS, INC.
By:/s/
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
Agreed to:
/s/
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Member, Special Committee
Of Xxxxx Hotels & Casino
Resorts, Inc.
/s/
---------------------------------
Name: Xxx X. Xxxxxx
Title: Member, Special Committee
Of Xxxxx Hotels & Casino
Resorts, Inc.
Amended Schedule A
To Amendment to Trademark Security Agreement
XXXX DATE REG./APP. NO. United States
SERVICES
OYSTERS XXXXX 1/18/94 1,817,558 Hotel restaurant services
XXXXX PLAZA 10/30/90 1,620,477 Casino services; hotel, bar and
restaurant services
XXXXX XXX MAHAL CASINO RESORT 3/8/94 1,825,666 See Attachment A hereto
XXXXX XXX XXXXX CASINO RESORT 3/2/93 1,755,971 casino services; hotel services
XXXXX XXX MAHAL CASINO RESORT 1/26/93 1,749,119 casino services; hotel services
THE XXXXX XXX MAJAL filed 10/18/94 74/587,101 perfume and cologne
XXXXX XXX MAJAL filed 10/18/94 74/587,102 perfume and cologne
TAJ MAJAL filed 10/18/94 74/587,103 perfume and cologne
TAJ MAJAL filed 12/22/95 75,036,021 perfume, toilet water and cologne
Attachment A
SPOONS, SUNGLASSES, SIGNAL BELLS, AND MAGNETS; JEWELRY; PENCILS, BALL POINT
PENS, AND STATIONERY; UMBRELLAS, LUGGAGE, HIP PACKS, TOTE BAGS AND CARRY-ON
BAGS; NON-METALLIC MONEY CLIPS, PLASTIC KEY CHAINS, AND ORNAMENTAL NOVELTY PINS;
MUGS, BEER STEINS, AND GLASSES FOR DRINKING LIQUOR; TOWELS; CLOTHING; NAMELY,
T-SHIRTS, JACKETS, SWEATSHIRT, SWEATPANTS, SWEATERS, HATS, VISORS, SOCKS, BOXER
SHORTS, ROBES, SHORTS, GOLF SHIRTS, NIGHT SHIRTS, AND BEACH COVER-UPS; PLUSH
TOYS, BOARD, CARD AND PARLOR GAMES, DICE, AND GAMING EQUIPMENT; NAMELY, GAMING
WHEELS; ASH TRAYS AND CIGARETTE LIGHTERS
