NOTES PATENT SECURITY AGREEMENT
Exhibit 10.5
EXECUTION VERSION
NOTES PATENT SECURITY AGREEMENT
NOTES PATENT SECURITY AGREEMENT, dated as of July 12, 2010 (as amended, restated, supplemented, waived or otherwise modified from time to time, this “Agreement”), made by each of the undersigned (each a “Grantor” and collectively, the “Grantors”) in favor of Xxxxx Fargo Bank, National Association, as trustee and collateral agent (in such capacity, the “Agent”) for the Secured Parties (as defined in the Collateral Agreement defined below).
Reference is made to (a) the Collateral Agreement, dated as of July 12, 2010 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Collateral Agreement”), by and among Columbia Lake Acquisition Corp., a Delaware corporation (“Merger Sub”; to be merged on the Issue Date with and into CKE Restaurants, Inc., a Delaware corporation (“CKE”), and together with CKE, the “Issuer”), each Note Guarantor listed on Schedule I to the Collateral Agreement and each future Note Guarantor of Issuer that becomes a party thereto (each, a “Note Guarantor”) and the Agent, (b) the Indenture dated as of July 12, 2010 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Initial Indenture”), by and among Merger Sub, the Guarantors (as defined therein) and the Agent and (c) the Supplemental Indenture dated as of July 12, 2010 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Supplemental Indenture”) by and among CKE, the Note Guarantors and the Agent. References herein to the “Indenture” shall mean the Initial Indenture prior to the effectiveness of the Supplemental Indenture and the Supplemental Indenture thereafter.
The Indenture requires that the Issuer and the Note Guarantors enter into this Agreement. The Note Guarantors are subsidiaries of the Issuer, will derive substantial benefits from the issuance of the $600,000,000 aggregate principal amount of 11.375% Senior Secured Second Lien Notes due 2018 (the “Notes”) pursuant to the Indenture and are willing to execute and deliver this Agreement pursuant to the requirements of the Indenture.
Accordingly, the parties hereto agree as follows:
SECTION 1. Terms. Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings specified in the Indenture. The rules of construction specified in Section 1.04 of the Indenture also apply to this Agreement.
SECTION 2. Grant of Security Interest. As security for the payment or performance, as the case may be, in full of the Note Obligations, each Grantor, pursuant to the Collateral Agreement, did and hereby does grant to the Agent, its successors and assigns, for the benefit of the Secured Parties (as defined in the Collateral Agreement), a security interest in, all right, title or interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by each Grantor or in which each Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Patent Collateral”):
(a) all letters patent of the United States, including those listed on Schedule I, and all applications for letters patent of the United States, including those listed on Schedule I;
(b) all provisionals, reissues, extensions, continuations, divisions, continuations-in-part, reexaminations or revisions thereof, and the inventions disclosed or claimed therein, including the right to make, use, import and/or sell the inventions disclosed or claimed therein;
(c) all claims for, and rights to xxx for, past or future infringements of any of the foregoing; and
(d) all income, royalties, damages and payments now or hereafter due and payable with respect to any of the foregoing, including damages and payments for past or future infringement thereof.
SECTION 3. Collateral Agreement. The security interests granted to the Agent herein are granted in furtherance, and not in limitation of, the security interests granted to the Agent pursuant to the Collateral Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of the Agent generally and with respect to the Patent Collateral are more fully set forth in the Collateral Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein.
SECTION 4. Indenture. In the event of any conflict between the terms of this Agreement and the Indenture, the terms of the Indenture shall govern.
SECTION 5. Intercreditor Agreement Governs. REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, THIS AGREEMENT, THE LIENS CREATED HEREBY AND THE RIGHTS, REMEDIES, DUTIES AND OBLIGATIONS PROVIDED FOR HEREIN ARE SUBJECT IN ALL RESPECTS TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THIS AGREEMENT AND THE INTERCREDITOR AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT SHALL CONTROL.
SECTION 6. Choice of Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly executed this Notes Patent Security Agreement as of the day and year first above written.
| GRANTORS: | ||
| CKE RESTAURANTS, INC., for Itself and as Sole Member of CKE DISTRIBUTION, LLC and | ||
| XXXX XXXXXXX ENTERPRISES, INC. | ||
| XXXXXX’X FOOD SYSTEMS, INC. | ||
| FLAGSTAR ENTERPRISES, INC. | ||
| SPARDEE’S REALTY, INC. | ||
| HED, INC. | ||
| BURGER CHEF SYSTEMS, INC. | ||
| SANTA XXXXXXX RESTAURANT GROUP, INC. | ||
| GB FRANCHISE CORPORATION | ||
| CHANNEL ISLANDS ROASTING COMPANY | ||
| CARL’S JR. REGION VIII, INC. | ||
| CKE REIT II, INC. | ||
| By: | /s/ Xxxxxxxx Xxxxxxx | |
| Name: Xxxxxxxx Xxxxxxx | ||
| Title: Executive Vice President and Chief Financial Officer | ||
Signature Page to Notes Patent Security Agreement
| STATE OF |
) | |
| ) ss | ||
| COUNTY OF |
) |
On the day of , 2010, before me personally came ; who, being duly sworn, did depose and say that he/she is the of each, a corporation incorporated under the laws of , the corporations described in and which executed the foregoing instrument; that he/she executed and delivered said instrument pursuant to authority given by the Board of Directors of such corporation; and that he/she acknowledged said instrument to be the free act and deed of said corporation.
|
| ||
| Notary Public | ||
(PLACE STAMP AND SEAL ABOVE)
STATE OF CALIFORNIA
COUNTY OF
On , 2010, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature [SEAL]
(PLACE STAMP AND SEAL ABOVE)
| ACCEPTED: | ||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee and Collateral Agent
| ||
| By: | /s/ Xxxxxxx Xxxxx Colli | |
| Name: Xxxxxxx Xxxxx Xxxxx | ||
| Title: Vice President | ||
Signature Page to Notes Patent Security Agreement
Schedule I
Patents
See Attached.
Schedule to Notes Patent Security Agreement
U.S. Patent
XXXXXX’X FOOD SYSTEMS, INC. U.S. PATENT
| Title |
Reg. No. | Reg. Date | ||
| Process For Preparing Oven Roasted Food |
5431937 | 7/11/1995 |
