EXHIBIT 4.8(i)
TRADEMARK SECURITY AGREEMENT
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THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is made and entered
into this 17 day of JUNE, 1998 by and among EMPRESS ENTERTAINMENT, INC., a
Delaware corporation ("EEI"), EMPRESS CASINO JOLIET CORPORATION, an Illinois
corporation ("ECJC"), and EMPRESS CASINO HAMMOND CORPORATION, an Indiana
corporation ("ECHC"), all of which are hereinafter collectively referred to as
"Debtors", and XXXXX FARGO BANK, National Association, as Agent Bank on behalf
of the Lenders, the Swingline Lender and the L/C Issuer, all of which are
described hereinbelow (hereinafter referred to, in such capacity, as "Agent
Bank").
R E C I T A L S:
A. Reference is made to that certain Credit Agreement executed
concurrently, or substantially concurrent, herewith (as it may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among Debtors, as Borrowers, the Lenders therein named (each, together
with their respective successors and assigns, individually being referred to
herein as a "Lender" and collectively as the "Lenders"), the Swingline Lender
therein named (together with its successors and assigns, the "Swingline
Lender"), the L/C Issuer therein named (together with its successors and
assigns, the "L/C Issuer"), and Agent Bank (with the Lenders, the Swingline
Lender, the L/C Issuer and Agent Bank being collectively referred to herein as
the "Banks").
B. In this Agreement, all capitalized words and terms not otherwise
defined herein shall have the respective meanings and be construed herein as
provided in Section 1.01 of the Credit Agreement and any reference to a
provision of the Credit Agreement shall be deemed to incorporate that provision
as a part hereof in the same manner and with the same effect as if the same were
fully set forth herein.
C. The Debtors desire to grant a security interest to Agent Bank in
all of their now owned, or hereafter acquired, right, title and interest in, and
to, the Trademarks and the Copyrights as well as the proceeds of all such
collateral.
NOW, THEREFORE, in consideration of the premises and the terms and
conditions contained herein, the parties hereto hereby agree as follows:
Section 1. Definitions. As used herein, the following terms shall
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have the respective meanings set forth below and unless the context otherwise
requires, capitalized terms used herein without definition shall have the
respective meanings assigned to such terms in the Credit Agreement.
"Abandoned and De Minimis Common Law Trademarks" shall mean those
common law Trademarks owned or previously owned by any of the Debtors that have
been abandoned and have not more than de minimis value.
"Abandoned and De Minimis Trademarks" shall mean those Trademarks
owned or previously owned by any of the Debtors that have been abandoned and
have not more than de minimis value.
"Agreement" shall mean this Trademark Security Agreement, including
all amendments, supplements and extensions hereto and restatements hereof
entered into at any time and from time to time and any exhibits or schedules to
any of the foregoing.
"Copyrights" mean all copyrights, copyright registrations, and
copyright applications, which, in each case, are now or hereafter filed with the
Copyright Office of the Library of Congress or any similar office or agency of
any other countries or used in the United States, any state, territory or
possession thereof or any other country, and all renewals thereof, which are
owned by Debtors, or any of them.
"Empress Banquets License" shall mean that certain License Agreement
under date of May 20, 1998 by and between The Empress, Ltd. and ECJC pursuant to
which ECJC has granted to The Empress, Ltd. the right to continued use of the
"Empress Banquets" and "Empress" trademarks at its facility in Addison,
Illinois.
"Xxxxxxx License" shall mean that certain Trademark License Agreement
dated as of June 30, 1997 by and between ECJC and ECHC pursuant to which ECHC is
granted a license to utilize some of the Trademarks.
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"Intellectual Property Collateral" shall mean all of the property and
interests in property described in Section 2.01 hereof which shall, from time to
time, secure any of the Secured Obligations.
"Loan Documents" shall have the meaning set forth by Section 1.01 of
the Credit Agreement.
"Secured Obligations" shall mean all indebtedness, obligations and
liabilities of Debtors, or any of them, arising under the Credit Agreement, the
Notes and/or any other Loan Document and any other indebtedness, obligation or
liability of Debtors, or any of them, which may be secured by any of said Loan
Documents, all as such obligations or Loan Documents may be modified, amended,
supplemented, restated, increased or extended from time to time.
"Trademarks" shall mean all right, title and interest of the Debtors,
or any of them, in the United States and throughout the world, in and to all of
their respective now owned and hereafter acquired trademarks, service marks,
trade names, trade dress, colors, designs, logos, indicia, corporate names,
company names, business names, fictitious business names, trade styles and/or
other source and/or business identifiers and all registrations and applications
to register the same, except applications based on an intent to use until the
filing of a verified statement of use accepted by the U.S. Trademark Office, and
all renewals thereof, and the goodwill and business relating to such
applications, which Trademarks include, without limitation, all such items which
are particularly described by Schedule A attached hereto and incorporated by
reference herein.
Section 2. Intellectual Property Collateral; General Terms.
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2.01. Security Interest. To secure the prompt payment of the
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Secured Obligations, the Debtors hereby grant to the Agent Bank a first priority
continuing security interest in and to all of the following property and
interests in property of the Debtors, or any of them, whether now owned or
existing, hereafter acquired or arising, or in which the Debtors, or any of
them, now or hereafter have any rights, including without limitation any such
property used in or useful to the businesses of Debtors, or any of them, or the
operation of such businesses, and wheresoever located (collectively, the
"Intellectual Property Collateral"):
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a. all right, title and interest of Debtors, or any of
them, in and to the Trademarks (other than Abandoned and De Minimis Trademarks);
b. all right, title and interest of Debtors, or any of
them, in and to all: (i) income, royalties, damages and payments now and
hereafter due and/or payable under all Trademarks; and (ii) rights accruing
during the term of this Agreement to xxx and collect damages and payments for
past or future infringements of the Trademarks;
c. all the goodwill in the businesses symbolized by the
Trademarks;
d. all right, title and interest of Debtors, or any of
them, in and to the Copyrights;
e. all right, title and interest of Debtors, or any of
them, in and to all (i) income, royalties, damages and payments now and
hereafter due and/or payable under all Copyrights and (ii) rights accruing
during the term of this Agreement to xxx and collect damages and payments for
past or future infringement of the Copyrights; and
f. all proceeds of any of the foregoing.
2.02. Existing Trademarks and Copyrights. All presently known
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registered Trademarks or pending applications for Trademarks, registered
Copyrights and pending applications for copyright registration in which the
Debtors, or any of them, have an interest, other than Abandoned and De Minimis
Trademarks, are listed on Schedule A attached hereto and made a part hereof.
All presently known common law Trademarks in which the Debtors, or any of them,
have an interest, other than Abandoned and De Minimis Common Law Trademarks, are
also listed on Schedule A attached hereto and made a part hereof.
2.03. Initial Filing. This Agreement may, in the sole and
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absolute discretion of Agent Bank, be filed for recordation in the United States
Patent and Trademark Office, with respect to Trademarks and in the U.S.
Copyright Office with respect to Copyrights. Upon request by the Agent Bank, the
Debtors shall cause this Agreement to be filed with the copyright or trademark
registration office of the States of Illinois and Indiana and any province,
territory or country in which the Agent Bank, in its reasonable discretion,
determines that registration and/or recordation is necessary or
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appropriate to perfect the Agent Bank's security interest in the Intellectual
Property Collateral.
Section 3. Representations and Warranties.
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3.01. General Representations and Warranties. The Debtors
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represent and warrant to the Agent Bank that:
a. Title to Intellectual Property Collateral.
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(i) The Debtors own all Intellectual Property Collateral,
subject to no assignments, liens, licenses or other security
interests, encumbrances or title defects, infringements or other
adverse claims, other than: (i) the Xxxxxxx License; (ii) the
Empress Banquets License; (iii) the ECJC Permitted Encumbrances;
(iv) the ECHC Permitted Encumbrances; and (v) or other adverse
claims which would not reasonably be expected to result in
Material Adverse Effect. None of the Debtors have signed, filed
or recorded any assignment in favor of any person (other than
Agent Bank) with respect to any of the Intellectual Property
Collateral, in the United States Patent and Trademark Office, in
the U.S. Copyright Office or in the copyright or trademark office
of any state, province, territory or country; and
(ii) All federally registered or state registered
Intellectual Property Collateral now owned by the Debtors, or any
of them, are listed in Schedule A hereto and all material common
law Intellectual Property Collateral known to and now owned by
the Debtors, or any of them, is listed in Schedule B hereto.
b. Due Execution. The Debtors have the right and power
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and are duly authorized and empowered to enter into, execute and deliver and
perform this Agreement and the transactions contemplated hereby; this Agreement
has been duly and validly executed by the Debtors and constitutes a legal, valid
and binding obligation of Debtors enforceable in accordance with its terms.
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c. Perfection. This Agreement creates a valid security
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interest in the Intellectual Property Collateral securing the repayment of the
Secured Obligations and all filing and other actions necessary in order to
perfect and protect such security interest have been duly taken or will be taken
immediately following the date hereof.
3.02. Trademark and Copyright Representation and Warranty. All
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Intellectual Property Collateral consisting of applications for registrations of
Trademarks and Copyrights have been duly and properly filed and all Intellectual
Property Collateral consisting of registrations of Trademarks and Copyrights
(including, without limitation, any and all renewals, reissues, continuations or
divisions thereof, as the case may be) have been duly and properly filed and
issued (other than pending applications) and are valid and enforceable.
3.03. Warranty and Reaffirmation of Warranties and
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Representations; Survival of Warranties and Representations. Each request for a
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Borrowing made by the Debtors, or any of them, pursuant to the Loan Documents
shall constitute a reaffirmation, as of the date of said request, of the
representations and warranties of the Debtors contained in Section 3 hereof with
respect to Intellectual Property Collateral then existing (except to the extent
that Debtors may otherwise notify Agent Bank, in writing, concurrently with, or
prior to, any such request). All representations and warranties of the Debtors
contained in this Agreement shall survive the execution, delivery and acceptance
of this Agreement by the parties thereto.
Section 4. Covenants.
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4.01. Affirmative Covenants. Unless the Agent Bank otherwise
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agrees in writing, the Debtors covenant that they shall:
a. Delivery of Documents. Furnish to the Agent Bank, from
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time to time upon its request, a complete status report of all Intellectual
Property Collateral and deliver to the Agent Bank copies of any such
Intellectual Property Collateral and other documents concerned with or related
to the prosecution, protection, maintenance, enforcement and issuance of the
Intellectual Property Collateral, and such other data and information as the
Agent Bank from time to time may reasonably request bearing upon or related to
the Intellectual Property Collateral.
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b. Defense of Title. Use all reasonable efforts to
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defend their title to the Intellectual Property Collateral against all claims of
all Persons whomsoever which could reasonably be expected to have a Material
Adverse Effect (as defined in the Credit Agreement) on the business of any of
the Debtors, except with respect to liens and other rights created or permitted
hereby.
c. Execute Addenda. Promptly upon the filing of any
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application for registration of a trademark or copyright and upon the issuance
of any trademark registration, they shall, unless the Agent Bank agrees
otherwise in writing:
(i) execute an addendum to this Agreement, which addendum
shall identify such trademark or copyright application as
necessary to perfect a security interest in such trademark or
copyright application;
(ii) with respect to United States trademark or copyright
applications, cause this Agreement and such addendum to be
recorded in the United States Patent and Trademark Office or U.S.
Copyright Office, as appropriate; and
(iii) upon request by the Agent Bank, cause this Agreement
and such addendum to be recorded with the trademark or copyright
registration office of any state in the United States in which
the Agent Bank determines, in its sole discretion, that filing is
necessary or advisable to perfect the Agent Bank's security
interest in the Intellectual Property Collateral subject to such
addendum.
d. Affix Notices. Whenever any trademarks or trade
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names are used by or on behalf of any of them, use their best efforts to affix
or cause to be affixed, where necessary to protect all of their right, title and
interest in any such trademark or trade name, a notice that the xxxx is a
trademark, a service xxxx or is registered, which notice shall be in a form
accepted or required by the trademark marking laws of each province, territory
or country in which the xxxx is so used.
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e. Notice of Abandonment. Notify the Agent Bank as soon
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as reasonably practicable of its intention to voluntarily suspend use of or
voluntarily abandon any material trademarks, trade names or applications or
registrations thereof (it being understood that suspension of use or abandonment
of a material trademark, trade name or application or registration thereof shall
be deemed reasonable by the Agent Bank under circumstances in which the Debtors
reasonably believe that: (i) continued use or maintenance of the trademark,
trade name or application or registration thereof will subject them to liability
to a third party for wilful infringement; and (ii) the contemplated suspension
or abandonment represents a reasonable alternative to the contemplated
liability), and obtain the written permission of the Agent Bank to such
abandonment, which permission shall not be unreasonably withheld or delayed. In
the event that such permission to abandon is reasonably withheld by the Agent
Bank, the Debtors shall, at their own expense, take all action reasonably
necessary to continue and maintain each item of Intellectual Property Collateral
in force.
4.02. Negative Covenants. Without the Agent Bank's prior
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written consent, which may be withheld by Agent Bank in its sole discretion,
none of the Debtors shall license (excluding the Xxxxxxx License and the Empress
Banquets License, and also excluding licenses made in the ordinary course of
business), transfer, convey or encumber any interest in or to the Intellectual
Property Collateral or take any action, or permit any action to be taken, or
fail to take any action which individually or in the aggregate would affect the
validity or enforceability of any material portion of the Intellectual Property
Collateral or of the security interest of the Agent Bank therein or which would
otherwise violate, in any material respect, any provision of any Loan Document.
4.03. Notice of Proceedings. The Debtors shall promptly notify
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the Agent Bank, in writing, of any suit, action or proceeding brought against
any of them relating to, concerned with, or affecting any of the Intellectual
Property Collateral, if such suit, action or proceeding constitutes or becomes a
Material Adverse Effect. Debtors shall, upon request from Agent Bank, deliver to
the Agent Bank a copy of all pleadings, papers, orders or decrees theretofore
and thereafter filed in any such suit, action or proceeding, and shall keep the
Agent Bank fully advised in writing of the progress of any such suit, action or
proceeding.
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4.04. Infringement. In the event of any infringement of the
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Intellectual Property Collateral by other persons, or in the event of any other
conduct by other persons to the detriment of the Intellectual Property
Collateral, which has constituted or in the future could reasonably be expected
to constitute a Material Adverse Effect on the business and operations of any of
the Debtors, the Debtors shall promptly notify the Agent Bank in writing of such
infringement or other conduct and the full nature, extent, evidence and
circumstances of such infringement or other conduct known to any of the Debtors.
The Debtors shall take all reasonable steps to protect their interests and
rights in such Intellectual Property Collateral and shall provide the Agent Bank
written notice of all material occurrences and developments with respect to such
Intellectual Property Collateral. If reasonably requested by the Agent Bank,
the Debtors shall send to the person committing such infringement or engaging in
such other conduct, no later than thirty (30) calendar days after such request,
a letter, in form and substance reasonably satisfactory to the Agent Bank, by
personal delivery or by U.S. first-class registered or certified mail (return
receipt requested) demanding that such person cease and desist forthwith from
committing such infringement or engaging in such other conduct. In the event
that (a) within forty-five (45) calendar days thereafter, good faith
negotiations between the Debtors and such other person have not commenced
regarding the cessation of such infringement or other conduct or (b)
negotiations have commenced within such period, but thereafter cease to be
carried on in good faith; the Debtors shall, at the request of Agent Bank,
promptly bring and diligently and vigorously maintain an action to stop such
infringement and other conduct (to the extent that, and so long as, such
diligent and vigorous maintenance of an action is reasonable in light of the
materiality of such infringement or other conduct and in light of the
materiality of the item(s) of Intellectual Property Collateral which are subject
to such infringement or other action). The Debtors shall diligently and
vigorously maintain such action until a decision is obtained from which no
review or appeal can or has been taken or until such action is resolved
otherwise in a manner reasonably satisfactory to the Agent Bank. If any Debtor
requests Agent Bank to approve an action as reasonable and Agent Bank does not
object thereto within ten (10) days after receipt of such request, specifying
the reasons for such objection, the same shall be deemed approved. If
reasonably requested by the Agent Bank, subject to other provisions of this
Agreement, the Debtors shall assume and continue, at their own cost and expense,
through
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counsel reasonably acceptable to the Agent Bank, full and complete
responsibility for the prosecution of any infringement of (or other conduct
materially and adversely affecting) the Intellectual Property Collateral and
otherwise defend and take all reasonable steps to assure the grant, validity and
enforceability of the Intellectual Property Collateral, whether by judicial or
nonjudicial means.
4.05. Payment of Charges and Claims. If the Debtors, at any
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time or times hereafter, shall fail to pay charges in respect of the
Intellectual Property Collateral when due or promptly obtain the discharge of
such charges or of any lien, claim or encumbrance asserted against the
Intellectual Property Collateral, the Agent Bank may, without waiving or
releasing any obligation or liability of the Debtors hereunder or any Event of
Default under any of the Loan Documents, in its sole discretion, at any time or
times thereafter, make such payment, or any part thereof, or obtain such
discharge and take any other action with respect thereto which the Agent Bank
reasonably deems advisable (provided that Agent Bank has first given Debtors
notice of the proposed payment or action and Debtors have failed to make such
payment or take such action within ten (10) Banking Business Days thereafter).
All sums so paid by the Agent Bank and any expenses incurred by the Agent Bank
on its behalf, including reasonable attorneys' fees, court costs, expenses and
other charges relating thereto, shall be payable, upon demand, by the Debtors to
the Agent Bank and shall be Secured Obligations secured by the Collateral under
any of the Loan Documents, including, without limitation, the Intellectual
Property Collateral, and shall bear interest, accruing from the date of such
demand, at the Default Rate which is set forth in the Credit Agreement.
Section 5. Agent Bank's Rights and Remedies.
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5.01. Remedies. Upon the occurrence and continuation of an
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Event of Default under any of the Loan Documents, the Agent Bank shall have and
may exercise any one (1) or more of the rights and remedies provided to it under
any of the Loan Documents or provided by any applicable law, including but not
limited to, all of the rights and remedies of a secured party under the Uniform
Commercial Code and the Debtors hereby agree to make the Intellectual Property
Collateral available to the Agent Bank, to extent applicable, at a place to be
designated by the Agent Bank which is reasonably convenient to the parties,
authorize the Agent Bank to take possession of the Intellectual Property
Collateral
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with or without demand and with or without process of law and, following at
least ten (10) days' notice to Debtors of the time and place of sale, to sell
and dispose of the same at public or private sale and to apply the proceeds of
such sale to the Secured Obligations in the order specified in the Credit
Agreement, or as otherwise agreed to by the Agent Bank. In addition to the
foregoing, if an Event of Default shall occur and be continuing, the Agent Bank
may, by written notice to the Debtors, take any or all of the following actions
to the extent permitted by law: (i) declare the entire right, title and
interest of the Debtors in and to each of the Copyrights and the Trademarks, the
goodwill in the business symbolized by the Trademarks, together with all
trademark rights and rights of protection to the same to be immediately vested
in the Agent Bank, in which case the Debtors agree to execute an assignment in
form and substance reasonably satisfactory to the Agent Bank of all their
rights, title and interest in and to the Copyrights and the Trademarks to the
Agent Bank; (ii) take and use or sell the Copyrights and Trademarks and the
goodwill of any of the Debtors' businesses symbolized by the Trademarks and the
right to carry on the businesses and use of the assets of any of the Debtors in
connection with which the Copyrights and Trademarks have been used; and (iii)
direct the Debtors to refrain, in which event the Debtors shall refrain, from
using the Copyrights and Trademarks in any manner whatsoever, directly or
indirectly, and, if requested by the Agent Bank, change the Debtors' corporate
name(s) to eliminate therefrom any use of any Trademark and execute such other
and further documents that the Agent Bank may request to further confirm this
and to transfer ownership of the Trademarks and registrations and any pending
trademark application in the United States Patent and Trademark Office and/or
the Copyrights and registrations and any pending applications for copyright
registration in the U.S. Copyright Office to the Agent Bank.
5.02. Appointment of the Agent Bank as the Debtors' Lawful Attorney.
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Upon the occurrence and during the continuation of an Event of Default under any
of the Loan Documents, the Debtors irrevocably designate, make, constitute and
appoint the Agent Bank (and all persons designated by the Agent Bank) as the
true and lawful attorney (and agent-in-fact) of each of them, and the Agent
Bank, or the Agent Bank's agent, may, without notice to any of them take any
action as the Agent Bank reasonably deems necessary under the circumstances to
file, prosecute, defend, issue, maintain, enforce or otherwise take action in
respect to the Intellectual Property Collateral as required or permitted
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hereby, or to carry out any other obligation or duty of any of the Debtors under
this Agreement, including, without limitation, the right to execute any
assignment of the Intellectual Property Collateral in the event any of the
Secured Obligations are accelerated in accordance with any of the Loan
Documents, and the employment of counsel. The Debtors shall pay all reasonable
fees and expenses, including reasonable attorneys' fees and expenses, incurred
by the Agent Bank in connection with such action and such fees and expenses
shall form part of the Secured Obligations.
Section 6. Remedies Cumulative; etc. The rights, remedies and
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benefits of the Agent Bank herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which the Agent Bank may
have under this Agreement, the Credit Agreement or any other Loan Document or at
law, in equity, by statue or otherwise. The obligations of Debtors hereunder
shall be joint and several.
Section 7. Expenses. The Debtors will pay the Agent Bank all
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reasonable expenses (including reasonable expenses for legal services of every
kind) of, or incidental to: (i) the preparation or filing of, or the
performance or enforcement of any of the provisions of, this Agreement; (ii) or
to the extent permitted hereunder, any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement of any of the
Intellectual Property Collateral or the care of the Intellectual Property
Collateral or defending or asserting the rights and claims of the Agent Bank in
respect of the Collateral, by litigation or otherwise, including but not limited
to reasonable expenses of insurance and the reasonable fees and expenses of
counsel for the Agent Bank. All such expenses shall be payable to Agent Bank
upon demand and shall, at any time when there is an uncured Event of Default
existing, accrue interest, from the date of such demand, at the Default Rate as
defined in the Credit Agreement. Debtors' obligation to repay such expenses and
accrued interest thereon shall be Secured Obligations secured by the
Intellectual Property Collateral and the Collateral under the Loan Documents.
Section 8. Indemnity. Debtors hereby agree to jointly and severally
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indemnify, protect, defend and save harmless Agent Bank and each of the Banks as
well as their respective directors, trustees, officers, employees, agents,
attorneys and stockholders (individually an "Indemnified Party" and
collectively, the "Indemnified Parties") from and against, any and all losses,
damages, expenses or liabilities
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of any kind or nature from any investigations, suits, claims, demands or other
proceedings, including reasonable counsel fees incurred in investigating or
defending such claim, suffered by any of them and caused by, relating to,
arising out of, resulting from, or in any way connected with: (i) the
preparation or administration of this Agreement, (ii) the custody, preservation,
use or operation of, or the sale of, collection from or other realization upon,
any of the Intellectual Property Collateral, (iii) the exercise or enforcement
of any of the rights, or the defense thereof, of the Agent Bank hereunder or
under any of the Loan Documents, or (iv) the failure of the Debtors to perform
or observe any of the provisions hereof. It is provided, however, that Debtors
shall not be obligated to indemnify, protect, defend or save harmless an
Indemnified Party if, and to the extent, the loss, damage, expense or liability
was caused by (a) the gross negligence or willful misconduct of such Indemnified
Party, or (b) the breach of this Agreement or any other Loan Document by such
Indemnified Party or the breach of any laws, rules or regulations by such
Indemnified Party (other than those breaches of laws arising from any Debtor's
default). In case any action shall be brought against any Indemnified Party
based upon any of the above and in respect to which indemnity may be sought
against Debtors, Agent Bank shall promptly notify Debtors in writing, and
Debtors shall assume the defense thereof, including the employment of counsel
selected by Debtors and reasonably satisfactory to Agent Bank, the payment of
all costs and expenses and the right to negotiate and consent to settlement.
Upon reasonable determination made by an Indemnified Party that such counsel
would have a conflict representing such Indemnified Party and Debtors, the
applicable Indemnified Party shall have the right to employ, at the expense of
Debtors, separate counsel in any such action and to participate in the defense
thereof. Debtors shall not be liable for any settlement of any such action
effected without their consent, but if settled with Debtors' consent, or if
there be a final judgment for the claimant in any such action, Debtors agree to
indemnify, defend and save harmless such Indemnified Parties from and against
any loss or liability by reason of such settlement or judgment. In the event
that any Person is adjudged by a court of competent jurisdiction not to have
been entitled to indemnification under this Section 8, it shall repay all
amounts with respect to which it has been so adjudged. If and to the extent
that the indemnification provisions contained in this Section 8 are
unenforceable for any reason, the Debtors hereby agree to make the maximum
contribution to the payment and satisfaction of such obligations that is
permissible under applicable law.
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The provisions of this Section 8 shall survive the termination of this
Agreement, the repayment of the Bank Facilities and the assignment or
subparticipation of all or any portion of the Bank Facilities.
Section 9. No Delay; Waiver, etc. No delay on the part of the Agent
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Bank in exercising any power or right hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any power or right hereunder
preclude other or further exercise thereof or the exercise of any other power or
right. To the fullest extent permitted by law and except as otherwise provided
for in this Agreement, the Debtors waive: (a) all rights to notice of a hearing
prior to the Agent Bank's taking possession or control of, or to the Agent
Bank's reply, attachment or levy upon, the Intellectual Property Collateral or
any bond or security which might be required by any court prior to allowing the
Agent Bank to exercise any of the Agent Bank's remedies; and (b) the benefit of
all valuation, appraisement and exemption laws. The Debtors acknowledge that
they have been advised by counsel with respect to this Agreement, the waivers
contained herein and the transactions evidenced by this Agreement.
Section 10. Further Assurances. The Debtors agree to do such further
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acts and things and to pay the reasonable costs and expenses in connection with
such acts (including, without limitation, the recording of the security interest
with respect to the Intellectual Property Collateral with any trademark office
in any state, province, territory or country), and to execute and deliver or
cause to be executed and delivered such supplemental documentation, additional
conveyances, assignments, and similar instruments, as the Agent Bank may at any
time reasonably request in connection with the administration and enforcement of
this Agreement or with respect to the Intellectual Property Collateral or any
part thereof or in order better to assure and confirm unto the Agent Bank its
rights and remedies hereunder or further to effectuate the purposes of this
Agreement and to pay the costs and expenses in connection with such acts. The
Debtors agree that, where permitted under applicable law, a carbon, photographic
or other reproduction, of this Agreement is sufficient as a recordable
assignment.
Section 11. Modification. No amendment hereof shall be effective
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unless contained in a written instrument signed by the parties hereto.
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Section 12. Notices. All notices and other communications provided
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to any party hereto under this Agreement shall be in writing or by facsimile and
addressed, delivered or transmitted to such party at its address or facsimile
number set forth below or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted. If any facsimile is transmitted at a time which is not during
regular business hours at the location to which such facsimile is transmitted,
it shall be deemed transmitted on the next Banking Business Day.
If to Debtors: Empress Entertainment, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile No. (000)000-0000
Empress Casino Joliet
Corporation
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile No. (000)000-0000
Empress Casino Xxxxxxx
Corporation
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Facsimile No. (000)000-0000
If to Secured
Party: Xxxxx Fargo Bank, N.A.,
Agent Bank
Commercial Banking Division
Xxx Xxxx Xxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxx, V.P.
Facsimile No. (000) 000-0000
15
Section 13. Termination. This Agreement shall terminate upon the
-----------
occurrence of Bank Facility Termination and the due release and termination of
the Security Documentation which is executed and delivered concurrently, or
substantially concurrent, herewith. Upon any such termination the Agent Bank
will, at the Debtors' expense, execute and deliver to the Debtors such documents
as the Debtors shall reasonably request to evidence such termination and release
the security interest in the Intellectual Property Collateral granted hereunder;
provided, however, that this Agreement shall continue to be effective, or shall
be automatically reinstated, as the case may be, if at any time payment, in
whole or in part, of any of the Secured Obligations is reduced, rescinded or
must otherwise be restored or returned by the Agent Bank upon the bankruptcy,
insolvency, dissolution, liquidation or reorganization of the Debtors, or any of
them, or upon or as a result of the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to any of the Debtors
or any of their respective property or otherwise.
Section 14. Governing Law. This Agreement has been delivered and
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shall be deemed to have been made in Illinois and, shall be interpreted, and the
rights and liabilities of the parties hereto determined, in accordance with the
laws of the State of Illinois (exclusive of choice and conflict of laws
provisions thereof to the extent allowed by law) except with respect to those
matters regarding the Intellectual Property Collateral to which the law of the
United States or the law of a foreign sovereign jurisdiction applies.
Section 15. Consent to Jurisdiction. Any suit, action or proceeding
-----------------------
against any of the Debtors arising out of or relating to this Agreement may be
instituted in any court of competent jurisdiction in the State of Illinois, and
the Debtors hereby irrevocably waive any objection which any of them may have or
hereafter have to the laying of such venue of any such suit, action or
proceeding and any claim that any such suit, action or proceeding has been
brought in inconvenient forum, and the Debtors hereby irrevocably submit the
person and property of each of them to the jurisdiction of any such court in any
such suit, action or proceeding. The Debtors hereby consent to the service of
process in any suit, action or proceeding of the nature referred to in this
paragraph by the mailing of the copy thereof by registered or certified mail,
postage prepaid, or personally delivering a copy thereof to the Debtors,
addressed to the addresses specified in Section 12 hereof or at such other
address(es) as the Debtors may hereafter specify to the Agent Bank in
16
writing. Nothing in this paragraph shall affect the right of the Agent Bank to
serve process in any other manner permitted by law or limit the right of Agent
Bank to bring any such action or proceeding against any of the Debtors or their
property in the courts of any other jurisdiction.
Section 16. Successors and Assigns. Whenever in this Agreement any
----------------------
of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party and all grants, covenants, promises and
agreements by or on behalf of any of the Debtors shall bind the successors and
assigns of such Debtors and inure to the benefit of the successors, assigns and
transferees of the Agent Bank, provided that none of the Debtors shall assign
all or any portion of their respective rights, duties or obligations hereunder
without the prior written consent of Agent Bank. The obligations of Debtors
hereunder shall be joint and several.
Section 17. Severability. If any part of this Agreement is contrary
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to, prohibited by or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible. If any part of this Agreement is
contrary to, prohibited by or deemed invalid under the applicable laws and
regulations of one (1) jurisdiction, such provisions shall not thereby be
rendered invalid in any other jurisdiction. Should any part or provision of
this Agreement be deemed by a court or other Governmental Authority of competent
jurisdiction to be an assignment of any trademark, trade name or registration
thereof so as to result in the Debtors' abandonment thereof, such part or
provision (but no other) shall be construed as providing for a security interest
and not an assignment, all in order to preclude such abandonment and, if such
construction shall not be accepted by such court or other Governmental Authority
such part or provision (but no other) shall be deemed null and void as to such
trademark, trade name or registration thereof in the jurisdiction where
abandonment might otherwise result.
Section 18. Headings. Section headings used herein are for
--------
convenience of reference only and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
17
Section 19. Subsequent Execution by ECJC. This Agreement is executed
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by EEI and by ECHC on the date set forth above, and will be executed by ECJC on,
or before, the Closing Date. By execution of this Agreement, EEI and ECHC
acknowledge that they shall be jointly and severally liable for all obligations
of the Debtors hereunder, until such time as this Agreement is executed by ECJC
(if at all), at which time EEI, ECHC and ECJC shall be jointly and severally
liable for all obligations of the Debtors hereunder.
Section 20. Counterparts. This Agreement may be executed by the
------------
parties hereto in any number of separate counterparts with the same effect as if
the signatures hereto and hereby were upon the same instrument. All such
counterparts shall together constitute but one and the same document.
18
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the day and year first above written.
DEBTORS: AGENT BANK
EMPRESS ENTERTAINMENT, INC., XXXXX FARGO BANK, National
a Delaware corporation Association, as Agent Bank
By /s/ Xxxx Xxxxxxxx By /s/ Xxxxxx X. Xxxxx
------------------------- -------------------------
Xxxxxx X. Xxxxx
Name Xxxx Xxxxxxxx Sr. Vice President
-----------------------
Title VP & ???
----------------------
EMPRESS CASINO JOLIET
CORPORATION, an Illinois
corporation
By__________________________
Name________________________
Title_______________________
EMPRESS CASINO HAMMOND
CORPORATION, an Indiana
corporation
By /s/ Xxxx Xxxxxxxx
-------------------------
Name Xxxx Xxxxxxxx
-----------------------
Title VP & ???
----------------------
19
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that XXXX XXXXXXXX, whose name as Vice President - CFO of
EMPRESS ENTERTAINMENT, INC., a Delaware corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the instrument, he/she, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and Official Seal this 17th day of June, 1998.
/s/ Xxxxxx Xxxxx
--------------------------------
[Seal] Notary Public
My commission expires: 10/14/00
----------
Xxxxxx Xxxxx
--------------------------------
(Printed Name)
Notary Public in and for the
State of ILLINOIS
-----------------------
[Seal]
20
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that __________________, whose name as ___________________
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of the instrument, he/she,
as such officer and with full authority, executed the same voluntarily for and
as the act of said corporation.
Given under my hand and Official Seal this _____ day of
________________, 1998.
______________________________
[Seal] Notary Public
My commission expires:________
______________________________
(Printed Name)
Notary Public in and for the
State of _____________________
21
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that Xxxx Xxxxxxxx, whose name as Vice President, CFO of
EMPRESS CASINO JOLIET CORPORATION, an Illinois corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of the instrument, he/she, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and Official Seal this 17th day of June, 1998.
/s/ Xxxxxx Xxxxx
------------------------------
[Seal] Notary Public
My commission expires:10/14/00
--------
Xxxxxx Xxxxx
------------------------------
(Printed Name)
Notary Public in and for the
State of ILLINOIS
---------------------
[SEAL]
22
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for said County, in said
State, hereby certify that XXXXXX ?????, whose name as SR Vice President of
XXXXX FARGO BANK, National Association, a national banking association, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of the instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said national banking association.
Given under my hand and Official Seal this 17th day of June, 1998.
/s/ Xxxxxx Xxxxx
------------------------------
[Seal] Notary Public
My commission expires:10/14/00
Xxxxxx Xxxxx
------------------------------
(Printed Name)
Notary Public in and for the
State of ILLINOIS
23
UPDATED: 06/10/98
EMPRESS CASINO JOLIET CORPORATION
TRADEMARKS & SERVICE MARKS
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XXXX SERIAL FILING STATUS REGISTRATION INTERNATIONAL GOODS OR SERVICES
NO DATE DATE CLASS
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MISCELLANEOUS DESIGN 75/421,079 1/21/98 Pending 35,41,42 (IC 35) Promoting casino
OF A WOMEN WITH Assigned to Examiner services through the
EXTENDED HAIR 6/9/98 administration of incentive
award programs; (IC 41)
casino services, and
preferred customer program
in the Field of casino
services; (IC 42) hotel
services, restaurant
services and retail shop
services featuring novelties
and souvenirs
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THE EMPRESS 74/226,028 11/29/91 Registered, Reg. No. 8/15/95 41 Casino services, not
1,912,772. including dinner cruise ship
services
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EMPRESS 74/255,169 03/13/92 Registered, Reg. No. 2/11/97 41 Casino services, not
2,034,357. including dinner cruise ship
services [originally --
casino services, excluding
those rendered on a cruise
ship]
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EMPRESS 74/255,297 03/13/92 Registered, Reg. No. 10/21/97 41 Casino services
2,107,523
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EMPRESS 74/495,726 03/01/94 Opposition dismissed; 41 Casino services, not
(child) Application to proceed. including dinner cruise ship
services
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XXXX SERIAL FILING STATUS REGISTRATION INTERNATIONAL GOODS OR SERVICES
NO. DATE DATE CLASS
------------------------------------------------------------------------------------------------------------------------------------
EMPRESS (stylized) 74/495,672 03/01/94 Xxxxxxxxxx 00 Xxxxxx services,
(parent) dismissed; not including
Application to dinner cruise ship
proceed. services
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EMPRESS RIVER CASINO 74/495,673 03/01/94 Xxxxxxxxxx 00 Xxxxxx services,
and design (woman dismissed; not including
with hair extended- Application to dinner cruise ship
black and white) proceed. services
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EMPRESS RIVER CASINO 74/495,676 03/01/94 Xxxxxxxxxx 00 Xxxxxx services,
and design (woman (child) dismissed; not including
with hair extended- Application to dinner cruise ship
teal and gold) proceed. services
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EMPRESSMILES 74/613,639 12/21/94 Registered, Reg. 1/2/96 35 Promoting casino
No. 1,945,518 services through the
administration of
incentive award
programs
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EMPRESS 75/067,616 03/05/96 Registered, Reg. 9/30/97 42 Hotel services
No. 2,102,174
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EMPRESS CASINO 75/070,785 03/11/96 Xxxxxxxxxx 00 Xxxxxx services
dismissed;
Application to
proceed.
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EMPRESS 75/059,142 02/16/96 Response to 6,20,21,30 (IC 6) Metal money
(Parent) Final Office Action clips, metal key
entered on 12/22/97 chains and metal
license plate
frames; (IC 20) non-
metal key chains and
non-metal license
plate frames; (IC
21) a full line of
glassware and mugs;
(IC 30) candy
------------------------------------------------------------------------------------------------------------------------------------
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XXXX SERIAL FILING STATUS REGISTRATION INTERNATIONAL GOODS OR SERVICES
NO. DATE DATE CLASS
------------------------------------------------------------------------------------------------------------------------------------
EMPRESS 75/957,808 02/16/96 Filed 2/16/96 3,9,16 & 34 (IC 3) Perfume; (IC 9)
(Child) Divided from binoculars and magnets;
75/059,142 (IC 16) pens pencils,
Non-final Office photography albums and
Action entered playing cards; (IC 34)
8/15/96 ashtrays, not of precious
metals
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EMPRESS 75/976,982 02/16/96 Divided from 25 Clothing, namely t-shirts
(Child) 75/059,142 Sweat shirts, sweat
Approved for shorts, tank tops, hats
publication and jackets.
5/5/98
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EMPRESS CLUB 75/061,443 02/23/96 Opposition No. 41 Preferred customer
107,106 Opposed program in the field of
by Caesars casino services
World's Inc.; (amendment to services
Filed new Motion pending)
to Extend Time
6/2/98
The Empress, Ltd.
Opposition
dismissed;
Application to
proceed.
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THE JEWEL OF THE GREAT 75/339,905 05/13/97 Publication date 41 Casino services
MIDWEST 03/24/98
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EXCITEMENT IS A LADY 75/329,326 05/13/97 Registered, Reg. 5/19/98 41 Casino services
NAMED EMPRESS No. 2,159,095
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EMPRESS STATE REGISTRATIONS
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SERIAL FILING REGISTRATION INTERNATIONAL
XXXX NO. DATE STATUS DATE CLASS GOODS OR SERVICES
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THE GREAT ESCAPE Illinois Reg. No. 77,295 10/12/95 --- Casino services and
Registration restaurant services
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THE GREAT ESCAPE Illinois Reg. No. 77,294 10/12/95 --- Retail store services
Registration
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CHICAGOLAND'S Illinois Reg. No. 74,175 3/8/94 --- Casino services
CASINO Registration
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JUMPING JACKPOTS Indiana Reg. No. 1997-0231 5/12/97 --- Promotion of casino
Registration services
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EMPRESS Illinois Reg. No. 069,775 1/22/92 --- Riverboat casino gambling,
Registration food and beverage, and
entertainment
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EMPRESS Illinois Reg. No. 069,776 1/2/92 --- Riverboat casino gambling,
Registration food and beverage, and
entertainment
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COMMON LAW TRADEMARKS
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XXXX STATUS GOODS OR
SERVICES
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YOU CAN Search performed Casino services
NEVER HAVE under request of and ancillary
TO MUCH FUN client services
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OASIS Search performed RV Park
under request of
client
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CLUB Search performed Nightclub
CHAMELEON under request of
client
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THE In use Restaurant
HARBORSIDE
STEAKHOUSE
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EMPRESSIVE In use Restaurant
BUFFET
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WAVES DELI In use Restaurant
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BLUE WATER In use Lounge
LOUNGE
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STEAKHOUSE In use Restaurant
ALEXANDRIA
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CAFE In Use Restaurant
CASABLANCA
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MARRAKECH In Use Restaurant
BUFFET
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PALACE In Use Gift shop
TREASURES
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OASIS BAR In Use Lounge
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