TRADEMARK SECURITY AGREEMENT
EXECUTION DRAFT
This
Trademark Security Agreement is made and entered into this ____ day of October,
2009, by and between The Saint Xxxxx Eos Wine Company, a California corporation
(“Pledgor”), and Saphire Advisors, LLC, a Delaware limited liability company
(“Secured Party”).
WITNESSETH:
WHEREAS, in connection with that
certain Membership Interest Purchase Agreement, dated October 12, 2009 (the
“Purchase Agreement”), by and among Pledgor, Secured Party and The Saint Xxxxx
Company, a North Carolina corporation, Pledgor is executing and delivering to
Secured Party that certain Secured Promissory Note of Pledgor, dated of even
date herewith, in favor of Secured Party in the initial principal amount of
$6,128,559.91 (the “Note”); and
WHEREAS,
Secured Party has required, as a condition to entering into the Purchase
Agreement, that Pledgor execute and deliver this Trademark Security Agreement
(Capitalized terms not defined herein shall have the meanings given in the
Purchase Agreement).
NOW, THEREFORE, in consideration of the
foregoing and other good and valuable consideration, the receipt, adequacy, and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Pledge. As
security for the prompt and complete payment and performance of Pledgor’s
obligations under the Note (the “Obligations”), Pledgor hereby pledges and
grants a second or third priority security interest to Secured Party in all of
its right, title and interest, whether now existing or hereafter arising or
acquired, in and to any and all items of its intellectual property, wherever
located, including without limitation, the property set forth below
(collectively, the “Collateral”):
a. each
trademark and trademark application, including, without limitation, each
trademark and trademark application referred to in Schedule 1 annexed
hereto, together with any reissues, continuations or extensions thereof and all
goodwill associated therewith;
b. each
trademark license, including, without limitation, each trademark license listed
on Schedule 1
annexed hereto, together with all goodwill associated therewith;
c. all
products and proceeds of the foregoing, including, without limitation, any claim
by Pledgor against third parties for past, present or future infringement of any
trademark, including, without limitation, any trademark referred to in Schedule 1 annexed
hereto, any trademark issued pursuant to a trademark application referred to in
Schedule 1 and
any trademark licensed under any trademark license listed on Schedule 1 annexed
hereto (items (a) through (c) being herein collectively referred to as the
“Collateral”);
This
security interest is granted in conjunction with the security interests granted
to the Secured Party pursuant to that certain Security Agreement dated of even
date herewith by and between Secured Party and Pledgor (the “Security
Agreement”) and subject to limitations set forth therein. Pledgor
hereby acknowledges and affirms that the rights and remedies of the Secured
Party with respect to the security interest in the 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.
2. Priority of Liens;
Subordination. Secured Party hereby further acknowledges the
security interests granted hereby shall be a second priority lien subordinate
only to the security interests securing the obligations to VinREIT pursuant to
the VinREIT and the obligations to Farm Credit Obligations (and those in place
thereof, e.g., a Qualified Refinancing
(as defined in the Security Agreement)). Secured Party agrees to
execute a subordination agreement with Farm Credit or the holder(s) of the
security interest securing the Qualified Refinancing, as applicable, in a form
reasonably acceptable to Secured Party’s counsel which provides that, except
during the pendency of any event of default set forth in the documents
underlying the Farm Credit Obligations or Qualified Refinancing, as applicable,
payments shall be made when due under the Note (and, if such event of default is
cured, any payments suspended during the pendency of such event of default, are
promptly paid to Secured Party); provided, however, that, if either Farm
Credit or the entity that provides the Qualifying Refinancing shall impose more
“restrictive subordination provisions” as a condition to providing Purchaser
with access to its reasonably required financing, Secured Party shall execute
such further-restricted subordination agreement. For purposes of this
Agreement, the phrase “restrictive subordination provisions” means (i) reserve
requirements imposed upon either or both of Purchaser and Saint Xxxxx, (ii)
cash, free cash, or excess cash requirements imposed upon either or both of
Purchaser and Saint Xxxxx, (iii) financial ratios or financial statement ratios
imposed upon either or both of Purchaser and Saint Xxxxx, (iv) requirements that
all payments to grape growers or suppliers for the current or upcoming season,
as imposed upon either or both of Purchaser and Saint Xxxxx, shall have been
made in full, or (v) equivalent restrictions, such that Farm Credit or the
Qualifying Financing entity has the contractual right and power to limit or
preclude the performance by the Purchaser of its obligations to the Secured
Party under the Note or the obligations of Saint Xxxxx, as guarantor under that
certain Guaranty in favor of the Secured Party, of even date herewith; subject
to the Purchaser not being in breach of any of its covenants in any such
financing agreement, as of the effective date of each financing agreement
between the Purchaser and Farm Credit or between the Purchaser and the
Qualifying Financing entity, as appropriate.
THE
BALANCE OF THIS PAGE INTENTIONALLY IS LEFT BLANK.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Trademark
Security Agreement as of the date first set forth above.
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PLEDGOR:
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SECURED
PARTY:
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THE
SAINT XXXXX EOS WINE COMPANY
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SAPHIRE
ADVISORS, LLC
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By:
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By:
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Its:
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Its:
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STATE
OF ____________
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ss
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COUNTY
OF ___________
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)
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On this
___ day of October, 2009, before me personally appeared the person whose
signature is set forth above, to me known, who, being duly sworn, did depose and
say that he is the above-indicated officer of The Saint Xxxxx EOS Wine Company,
and which executed the above instrument; and that he signed his name thereto by
authority of the board of directors of said entity.
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Notary
Public
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STATE
OF ILLINOIS
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ss
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COUNTY
OF XXXX
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On this
___ day of October ___, 2009, before me personally appeared the person whose
signature is set forth above, to me known, who, being duly sworn, did depose and
say that he is the manager of the limited liability company which is the manager
of Saphire Advisors, LLC, and which executed the above instrument; and that he
signed his name thereto by authority of the manager of said limited liability
company.
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Notary
Public
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SCHEDULE
1 TO
Trademarks
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U.S. Trademark
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Owner
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App. Date
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Ser. No.
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Reg. No.
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Date Reg.
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EOS
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Sapphire
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May
8, 1997
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75288344
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2200574
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October
27, 1998
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Novella
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Emerald
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February
14, 2001
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76212219
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2725215
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June
10, 2003
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Cupa
Grandis
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Sapphire
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May
19, 2003
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76515430
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2819488
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March
2, 2004
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Lost
Angel
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Sapphire
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June
12, 2009
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77758502
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Grail
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Sapphire
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February
14, 2006
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78814410
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|||||||
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Carneros
Signature Reserve
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Emerald
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February
14, 2006
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78814300
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3381831
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February
12, 0000
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Xxxxxxxx
Xxxxx
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Emerald
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March
3, 2006
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78828973
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3255431
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June
26, 0000
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Xxxxxxxxx
Xxxx Design
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Emerald
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March
1, 2006
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78826921
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3187345
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December
19, 2006
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Ramshead
Design
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Emerald
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March
1, 2006
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78826910
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3187344
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December
19, 2006
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Ramshead
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Emerald
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February
14, 2006
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78814389
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3187145
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December
19, 0000
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Xxx
Xxxxxxxx Xxxxxxx
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Emerald
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February
14, 2006
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78814316
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3226186
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April
3, 0000
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Xxxxxxxxx
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Emerald
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February
14, 2006
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78814262
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3187143
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December
19, 0000
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Xxxxxxxx
Xxxxx Winery
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Emerald
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June
7, 1985
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73541746
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1383637
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February
18, 1986
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