TRADEMARK SECURITY AGREEMENT
EXHIBIT
4.6
This
TRADEMARK SECURITY
AGREEMENT, dated as of August 6, 2009 (as it may be amended, restated,
supplemented or otherwise modified from time to time, this “Agreement”), is made by THE OLD XXXXXXXXXX XXXXX,
L.L.C., a Louisiana limited liability company (the “Company”), in favor of U.S. BANK NATIONAL
ASSOCIATION, as collateral agent for the Secured Parties (in such
capacity, together with its successors and permitted assigns, the “Collateral
Agent”).
WHEREAS, the Company is party
to a Pledge and Security Agreement, dated as of August 6, 2009 (the “Security Agreement”), among
the Company, the other Grantors party thereto and the Collateral Agent, pursuant
to which the Company granted a security interest to the Collateral Agent in the
Trademark Collateral (as defined below) and is required to execute and deliver
this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company hereby
agrees with the Collateral Agent as follows:
SECTION
1. Defined
Terms
Unless
otherwise defined herein, terms defined in the Security Agreement and used
herein have the meaning given to them in the Security Agreement.
SECTION
2. Grant
of Security Interest in Trademark Collateral
The
Company hereby grants to the Collateral Agent, for the benefit of the Secured
Parties, a security interest in and continuing lien on all of the Company’s
right, title and interest in, to and under the following, in each case whether
now owned or existing or hereafter acquired, developed, created or arising and
wherever located (collectively, the “Trademark
Collateral”):
(a) all
United States, and foreign trademarks, trade names, trade dress, corporate
names, company names, business names, fictitious business names, Internet domain
names, service marks, certification marks, collective marks, logos, other source
or business identifiers, designs and general intangibles of a like nature,
whether or not registered, and with respect to any and all of the foregoing: (i)
all registrations and applications therefor including, without limitation, the
registrations and applications listed or required to be listed in Schedule A
attached hereto, (ii) all extensions or renewals of any of the foregoing, (iii)
all of the goodwill of the business connected with the use of and symbolized by
any of the foregoing, (iv) the right to xxx or otherwise recover for any past,
present and future infringement, dilution or other violation of any of the
foregoing or for any injury to the related goodwill, (v) all Proceeds of the
foregoing, including, without limitation, license fees, royalties, income,
payments, claims, damages, and proceeds of suit now or hereafter due and/or
payable with respect thereto, (vi) all payments and rights to payments arising
out of the sale, lease, license, assignment or other disposition thereof, and
(vii) all other rights of any kind accruing thereunder or pertaining thereto
throughout the world (collectively, “Trademarks”);
(b) any
and all agreements, licenses and covenants providing for the granting of any
right in or to any Trademark or otherwise providing for a covenant not to xxx
for infringement, dilution or other violation of any Trademark or permitting
co-existence with respect to a Trademark (whether the Company is licensee or
licensor thereunder) including, without limitation, those listed or required to
be listed in Schedule A attached hereto;
NY\1552200.4
(c) all
rights to xxx or otherwise recover for any past, present and future
infringement, dilution, misappropriation, or other violation or impairment
thereof, including the right to receive all Proceeds therefrom, including
without limitation license fees, royalties, income, payments, claims, damages
and proceeds of suit, now or hereafter due and/or payable with respect thereto;
and
(d) to
the extent not otherwise included, all Proceeds, Supporting Obligations and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the
foregoing,
in each
case, to the extent not constituting Excluded Assets.
SECTION
3. Security
Agreement
. The
security interest granted pursuant to this Agreement is granted in conjunction
with the security interest granted to the Collateral Agent for the Secured
Parties pursuant to the Security Agreement, and the Company hereby acknowledges
and affirms that the rights and remedies of the Collateral 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. In the event that any provision of this Agreement is deemed
to conflict with the Security Agreement, the provisions of the Security
Agreement shall control.
SECTION
4. Governing
Law
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND ALL CLAIMS
AND CONTROVERSIES ARISING OUT OF THE SUBJECT MATTER HEREOF WHETHER SOUNDING IN
CONTRACT LAW, TORT LAW OR OTHERWISE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF
ANY OTHER LAW (OTHER THAN ANY MANDATORY PROVISIONS OF LAW RELATING TO THE LAW
GOVERNING PERFECTION AND THE EFFECT OF PERFECTION OF THE SECURITY
INTEREST).
SECTION
5. Counterparts
This
Agreement may be executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument.
SECTION
6. Intercreditor
Agreement
Notwithstanding
anything herein to the contrary, the Lien and security interest granted to the
Collateral Agent pursuant to this Agreement and the exercise of any right or
remedy by the Collateral Agent hereunder are subject to the provisions of the
Intercreditor Agreement, dated as of August [__], 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor Agreement”),
between U.S. Bank National Association, as Subordinated Lien Creditor
Representative (as defined therein) and the Senior Lien Administrative Agent,
and acknowledged by the Company, the other Grantors and the other Persons from
time to time party thereto, at any time when any Credit Facility Indebtedness
exists that has not been Fully Paid (as such terms are defined
therein). In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the Intercreditor
Agreement shall govern and control.
NY\1552200.4
IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed and delivered by its duly
authorized officer as of the date first set forth above.
| THE OLD XXXXXXXXXX XXXXX, L.L.C. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | |||
| Title: CFO | |||
STATE
OF IOWA
)
) ss.
COUNTY
OF
)
On this
6th day of August, 2009, before me personally
appeared Xxxxxxx Xxxxxxx, proved
to me on the basis of satisfactory evidence to be the person who executed the
foregoing instrument on behalf of The
Old Xxxxxxxxxx Xxxxx who
being by me duly sworn did depose and say that he/she is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he/she acknowledged
said instrument to be the free act and deed of said corporation.
Notary Public /s/Xxxxx X.
Xxxxxx
NY\1552200.4
Accepted
and Agreed:
U.S. BANK NATIONAL
ASSOCIATION,
as
Collateral Agent
By: /s/Xxxxxxx X.
Xxxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxxx
Title:
Vice President
NY\1552200.4
SCHEDULE
A
TRADEMARK REGISTRATIONS AND
APPLICATIONS
|
Xxxx
|
Serial Number
|
Filing Date
|
Registration Number
|
Registration Date
|
|
RACES
& ACES XXXXXXXXXX XXXXX CASINO & OFF-TRACK BETTING (and
Design)
|
76-518,029
|
5/30/2003
|
3,022,401
|
12/06/2005
|
TRADEMARK
LICENSES
|
Description
of Trademark License
|
Name of Licensor
|
Registration
Number of Underlying
Trademark
|
NY\1552200.4
