TRADEMARK SECURITY AGREEMENT
EXHIBIT
10.3
This TRADEMARK SECURITY AGREEMENT (this
“Agreement”),
entered into as of the 6th day of August 2009, by and between THE OLD XXXXXXXXXX
XXXXX, L.L.C., a Louisiana limited liability company (“Pledgor”), and XXXXX
FARGO FOOTHILL, INC., a California corporation, as agent for the Lenders (as
defined in the hereinafter defined Loan Agreement) (“Agent”).
W I T N E S S E T
H:
WHEREAS,
pursuant to that certain Loan and Security Agreement dated as of June 16, 2004
(as amended, restated, supplemented or otherwise modified from time to time, the
“Loan
Agreement”), by and among Pledgor and Xxxxxxx Xx, LLC (formerly known as
Peninsula Gaming Company, LLC), a Delaware limited liability company, as
borrowers (collectively, “Borrowers”), the Lenders and Agent, the Lender Group
has agreed to extend credit to Borrowers from time to time pursuant to the terms
and conditions thereof; and
WHEREAS,
it is a condition precedent to the extension of credit under the Loan Agreement
that Pledgor shall have granted the security interest contemplated by this
Agreement;
NOW, THEREFORE, for and in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. The
Loan Agreement and the terms and provisions thereof are hereby incorporated
herein in their entirety by this reference thereto. Capitalized terms
not otherwise defined herein shall have the meanings ascribed to those terms in
the Loan Agreement.
2. To
secure the complete and timely payment, performance and satisfaction of
(a) all covenants, agreements and liabilities of the Borrowers under the
Loan Documents and all now existing or hereafter arising Obligations (including,
without limitation, any interest, fees and other charges in respect of the Loan
Agreement and the other Loan Documents that would accrue but for the filing of
an Insolvency Proceeding with respect to any Borrower, regardless of whether
such claim is allowed in such Insolvency Proceeding, but excluding the FF&E
Obligations), and (b) the obligations of Pledgor arising from this
Agreement and any other Loan Document to which Pledgor is a party (items (a) and
(b) above are hereinafter referred to as the “Secured
Obligations”), Pledgor hereby grants to Agent, for the benefit of the
Lender Group, a security interest in, as and by way of a first mortgage and
security interest having priority over all other security interests, with power
of sale to the extent permitted by applicable law, all of Pledgor's right, title
and interest in, to and under the following, whether presently existing or
hereafter created or acquired: (a) all trademarks, trade names,
corporate names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and
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general
intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith in the United States, Canada or any other country, including all
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, Canada
or any State, Province or Territory thereof, or any other country or any
political subdivision thereof, including, without limitation, those listed on
Schedule 1
attached hereto and made a part hereof, and (i) all renewals thereof, (ii) all
income, royalties, damages and payments now and hereafter due and/or payable
under and with respect thereto, including, without limitation, payments under
all licenses entered into in connection therewith and damages and payments for
past or future infringements or dilutions thereof, (iii) the right to xxx for
past, present and future infringements and dilutions thereof, (iv) the goodwill
of Pledgor's business symbolized by the foregoing and connected therewith, and
(v) all of Pledgor's rights corresponding thereto throughout the world (all of
the foregoing trademarks, trade names, registered trademarks and trademark
applications, service marks, registered service marks and service xxxx
applications, together with the items described in clauses (i)-(v) in
this paragraph
2(a), are sometimes hereinafter individually and/or collectively referred
to as the "Trademarks"); and (b)
all proceeds of any and all of the foregoing, including, without limitation,
license royalties and proceeds of infringement suits.
3. Pledgor
agrees that it will not, without Agent’s prior written consent, enter into any
agreement, including, without limitation, any license agreement, which is
inconsistent with this Agreement, and Pledgor further agrees that it will not
take any action, and will use its best efforts not to permit any action to be
taken by others subject to its control, including, without limitation,
licensees, or fail to take any commercially reasonable action, which would in
any material respect affect the validity or enforcement of the rights
transferred to Agent under this Agreement or the rights associated with the
Trademarks.
4. Pledgor
represents and warrants that, from and after the date hereof, (a) the
Trademarks listed on Schedule 1 are all of
the trademarks, trade names, corporate names (other than the legal name of
Pledgor), business names, trade styles, service marks, logos, other source or
business identifiers, prints and labels on which any of the foregoing have
appeared or appear, designs and general intangibles of like nature (whether
registered or unregistered), all registrations and recordings thereof, and all
applications in connection therewith in which Pledgor now has any right, title
or interest, and (b) the Trademarks have not been adjudged invalid or
unenforceable, and Pledgor is the legal and beneficial owner of the Trademarks
free and clear of all liens, claims or security interests other than (i) the
lien of Agent, (ii) the lien in favor of the Collateral Agent securing the
Indenture Documents (as defined in the Intercreditor Agreement), provided such lien of
the Collateral Agent is subject to the Intercreditor Agreement at all times, and
(iii) the Liens described in clauses (b), (d) and (i) of the definition of
Permitted Liens. If, prior to the termination of this Agreement,
Pledgor shall obtain rights to any new trademarks, trade names, corporate names,
business names, trade styles, service marks, logos, other source or business
identifiers, prints and labels on which any of the foregoing have appeared or
appear, designs or general intangibles of like nature (whether
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registered
or unregistered), any registrations and recordings thereof, or any applications
in connection therewith, the provisions of paragraph 2 above shall automatically
apply thereto. Pledgor shall give to Agent prompt written notice of
events described in the preceding sentence promptly after the occurrence
thereof. Pledgor authorizes Agent to modify this Agreement by
amending Schedule
1 to include any future trademarks, trade names, corporate names,
business names, trade styles, service marks, logos, other source or business
identifiers, prints and labels on which any of the foregoing have appeared or
appear, designs and general intangibles of like nature (whether registered or
unregistered), all registrations and recordings thereof, and all applications in
connection therewith which are or may become Trademarks hereunder and to record
such modifications (or notice thereof) in the United States Patent and Trademark
Office or with other applicable recording office at the expense of
Pledgor. Pledgor agrees to execute any and all instruments (including
individual conditional assignments or security agreements) necessary to confirm
such amendment or to enable such recording.
5. Pledgor
agrees, except to the extent such action would not result in a Material Adverse
Change, not to abandon any Trademark without the prior written
consent of Agent, and to take all action necessary to maintain in
force any registration of the Trademarks, in the United States Patent and
Trademark Office and in any other jurisdiction in which it is registered,
including (without limitation) any filing, to the extent permitted and
authorized by law, of any declarations under Sections 8 of the Trademark Act of
0000 (Xxxxxx Xxx) and any renewals thereunder, with respect to the
Trademarks. Any expense with regard to the foregoing shall be borne
and paid by Pledgor.
6. At
any time after the occurrence and during the continuance of an Event of Default,
Agent shall have the right, but shall not be obligated, to bring suit in its own
name to enforce the Trademarks and, if Agent shall commence any such suit,
Pledgor shall, at the request of Agent, do any and all lawful acts and execute
any and all proper documents required by Agent in aid of such
enforcement. Pledgor shall, upon demand, promptly reimburse Agent for
all costs and expenses incurred by Agent in the exercise of its rights under
this paragraph
6 (including, without limitation, reasonable fees and expenses of
attorneys and paralegals for Agent).
7.
(a) Pledgor
hereby irrevocably designates, constitutes and appoints Agent (and all officers
and agents of Agent designated by Agent in its sole and absolute discretion) as
Pledgor's true and lawful attorney-in-fact, and authorizes Agent and any of
Agent's designees, in Pledgor's or Agent’s name, to take any action and execute
any instrument necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, at any time after the occurrence and
during the continuance of an Event of Default, to (i) endorse Pledgor's name on
all applications, documents, papers and instruments necessary or desirable for
Agent in the use of the Trademarks, (ii) assign, pledge, convey or otherwise
transfer title in or dispose of the Trademarks to anyone, (iii) grant or issue
any exclusive or nonexclusive license under the Trademarks to anyone, and (iv)
take any other actions with respect to the Trademarks as Agent deems in its best
interest. Pledgor hereby ratifies all that such attorney shall
lawfully do or cause
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to be
done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until this Agreement is
terminated. Pledgor acknowledges and agrees that this Agreement is
not intended to limit or restrict in any way the rights and remedies of Agent
under the Loan Agreement or any other Loan Document, but rather is intended to
facilitate the exercise of such rights and remedies.
(b) Agent
shall have, in addition to all other rights and remedies given it by the terms
of this Agreement, all rights and remedies allowed by law and the rights and
remedies of a secured party under the Uniform Commercial Code as enacted in any
jurisdiction in which the Trademarks may be located or deemed
located. Upon the occurrence and during the continuance of an Event
of Default and the election by Agent to exercise any of its remedies under the
Uniform Commercial Code as in effect in the State of New York with respect to
the Trademarks, Pledgor agrees to assign, convey and otherwise transfer title in
and to the Trademarks to Agent or any transferee of Agent and to execute and
deliver to Agent or any such transferee all such agreements, documents and
instruments as may be necessary, in Agent’s Permitted Discretion, to effect such
assignment, conveyance and transfer. All of Agent’s rights and
remedies with respect to the Trademarks, whether established hereby, by the Loan
Agreement or by any other agreements or by law, shall be cumulative and may be
exercised separately or concurrently. Notwithstanding anything set
forth herein to the contrary, it is hereby expressly agreed that Agent may
exercise any of the rights and remedies provided in this Agreement, the Loan
Agreement or any of the other Loan Documents. Pledgor agrees that any
notification of intended disposition of any of the Trademarks required by law
shall be deemed reasonably and properly given if given at least 10 days before
such disposition; provided, however, that Agent
may give any shorter notice that is commercially reasonable under the
circumstances. Pledgor hereby acknowledges and agrees that such
notice, when filed, shall constitute a reasonable “authenticated notification of
disposition” within the meaning of Section 9-611 of the Uniform Commercial Code
as in effect from time to time in any jurisdiction.
8. Upon
the satisfaction in full of the Secured Obligations and the termination of the
Loan Agreement, including the Commitments of the Lenders thereunder, Agent shall
execute and deliver to Pledgor all instruments as may be necessary or proper to
remove and terminate the security interest, and to reassign to Pledgor any and
all right, title and interest in the Trademarks and the goodwill of the business
symbolized by the Trademarks, subject to any disposition thereof which may have
been made by Agent pursuant hereto.
9. The
provisions of this Agreement are severable, and if any clause or provision shall
be held invalid and unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability shall affect only such clause or provision,
or part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Agreement in any jurisdiction.
10. This
Agreement is subject to modification only by a writing signed by the
parties.
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11. The
benefits and burdens of this Agreement shall inure to the benefit of, and be
binding upon, the respective successors and permitted assigns of the
parties.
12. This
Agreement may be executed in one or more counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart. Delivery of
an executed counterpart of this Agreement by telefacsimile shall be equally as
effective as delivery of an original, executed counterpart of this
Agreement. Any party delivering an executed counterpart of this
Agreement by telefacsimile shall also deliver an original executed counterpart
of this Agreement, but the failure to deliver an original, executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Agreement.
13. This
Agreement shall be construed according to the internal laws of the New York,
without regard to the conflict of laws principles thereof.
14. The
powers conferred on Agent hereunder are solely to protect its interest in the
Trademarks and shall not impose any duty upon Agent to exercise any such
powers. Except for the accounting for moneys actually received by
Agent pursuant hereto, Agent shall have no duty with respect to the Trademarks
or as to the taking of any necessary steps to preserve rights against prior
parties or any other rights pertaining to any of the Trademarks. Each reference
herein to any right granted to, benefit conferred upon or power exercisable,
exercised, or action taken by Agent shall be deemed to be a reference to, or be
deemed to have been so taken, as the case may be, by Agent in its capacity as
Agent pursuant to the Loan Agreement for the benefit of the Lender Group, all as
more fully set forth in the Loan Agreement.
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IN WITNESS WHEREOF, Agent and Pledgor
have caused this Trademark Security Agreement to be duly executed as of the day
and year first above written.
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AGENT
XXXXX FARGO FOOTHILL, INC.
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PLEDGOR
THE OLD XXXXXXXXXX XXXXX, L.L.C.
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/s/Xxxxxxx
XxXxxxxxx
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/s/Xxxxxxx
Xxxxxxx
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Name:
Xxxxxxx XxXxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Vice President
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Title:
CFO
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SCHEDULE 1
Trademark Serial
No. Registration
No. Filing/Registration
Date
Races and
Aces
Xxxxxxxxxx
Xxxxx
Casino
& Off Track
Betting 76-518029
05/30/03
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