EXECUTION VERSION
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 THE BANK OF NEW YORK MELLON, in its capacity
as trustee and collateral agent for the Holders (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 Indenture dated as of September 24,
2008 (as amended, restated, supplemented and/or otherwise modified from time to
time, including all schedules thereto, the "INDENTURE") among XXXXXXX & XXXXX
XXXXXXXXX'X HOLDING INC., a Delaware corporation ("PARENT"), as parent and
guarantor, XXXXXXX & XXXXX XXXXXXXXX'X INC., a Delaware corporation, as issuer
("COMPANY"), each of the Parent's subsidiaries signatory thereto, as guarantors,
and Agent, the Company has issued 14% Senior Secured Notes due 2013 (as amended,
restated, supplemented and/or otherwise modified from time to time, the
"NOTES");
WHEREAS, Agent has agreed to act as trustee and collateral agent for
the benefit of the Holders in connection with the transactions contemplated by
the Indenture and this Agreement, and
WHEREAS, it is a condition precedent to the purchase of the Notes by
the Holders that the Grantors grant a continuing security interest in and to the
Collateral in order to secure the prompt and complete payment, observance and
performance of, among other things, the Secured Obligations, under 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 and/or otherwise modified, the "SECURITY AGREEMENT"); and
WHEREAS, pursuant to the Security Agreement, Grantors are required to
execute and deliver to Agent, for the benefit of the Holders, 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
Indenture.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Each Grantor
hereby grants to Agent, for the benefit of the Holders, a continuing second
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 Holders 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 Holders, 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 Indenture
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 Indenture 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 Indenture
Document refer to this Trademark Security Agreement or such other Indenture
Document, as the case may be, as a whole and not to any particular provision of
this Trademark Security Agreement or such other Indenture 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 Indenture 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 Indenture Document to the satisfaction or
repayment in full of
2
the Obligations shall mean the repayment in full in cash (or cash
collateralization in accordance with the terms of the Indenture) of all
Obligations other than unasserted contingent indemnification Obligations. 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 Indenture 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 INDENTURE
DOCUMENTS (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8(b) AND UNLESS EXPRESSLY
PROVIDED TO THE CONTRARY IN ANOTHER INDENTURE DOCUMENT IN RESPECT OF SUCH OTHER
INDENTURE 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.
3
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/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXXX & XXXXX XXXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Executive Vice President and Chief Financial
Officer
XXXXXXX & XXXXX XXXXXXXXX'X REALTY LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
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/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
[Signature Page to Second Lien Trademark Security Agreement]
XXXXX XXXXXXXXX PIE SHOPS, INC.,
a California corporation
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
MACAL INVESTORS, INC.,
a California corporation
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXX XXXXXXXXX WHOLESALERS, INC.,
a California corporation
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
FIV CORP.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
MCID, INC.,
an Idaho corporation
By: /s/ Xxxx X. Xxxxx, Xx.
--------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
WILSHIRE BEVERAGE, INC.,
a Texas corporation
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President, Vice President, Treasurer,
Secretary
[Signature Page to Second Lien Trademark Security Agreement]
ACCEPTED AND ACKNOWLEDGED BY:
AGENT: THE BANK OF NEW YORK MELLON,
as Agent
By: /s/ Xxxxxxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
[Signature Page to Second Lien Trademark Security Agreement]
