TRADEMARK SECURITY AGREEMENT
This TRADEMARK SECURITY AGREEMENT ("Agreement"), dated as of April 17,
1996 is entered into between First Bank National Association (together with its
successors and assigns the "Secured Party"), as collateral agent under the
Collateral Agency Agreement dated April 17, 1996 and Xxxxx Xxx Xxxxx Associates,
a New Jersey general partnership (the "Assignor"). Capitalized terms not
otherwise defined herein have the meanings set forth in the Security Agreement,
dated as of April 17, 1996, among Assignor, Xxxxx Atlantic City Associates,
Xxxxx Atlantic City Funding, Inc., Xxxxx Plaza Associates, Xxxxx Atlantic City
Corporation and the Secured Party (the "Security Agreement").
WHEREAS, pursuant to the Security Agreement, Assignor is granting a
security interest to the Secured party in certain collateral, including the
Trademarks (as defined herein);
WHEREAS, it is contemplated that the Amended and Restated License
Agreement between Xxxxxx X. Xxxxx ("Xxxxx") and Assignor dated April 1, 1991,
granting Assignor a license to use certain trademarks of Xxxxx, will have been
terminated and that the rights granted to Assignor thereunder will in that case
not be subject to 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, Assignor and the Secured Party hereby agree as follows:
1. Grant of Security Interest
(a) As security for the prompt and complete payment and
performance in full of the Secured Obligations, Assignor hereby assigns,
pledges, transfers, and delivers to the Secured party, and grants to the Secured
Party a security interest in and continuing lien upon all of the Assignors
right, title, and interest in the Trademarks, whether now owned or existing or
hereafter acquired or arising, and wherever located.
(b) For purposes of this Agreement, "Trademarks" shall mean all
of the Assignor's right, title, and interest in and to all United states
trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, certification marks,
collective marks, logos, other source of business identifiers, designs and
general intangibles of a like nature; all registrations, and applications for
any of the foregoing including, but not limited to the U.S. trademark and
service xxxx registrations and applications referred to in Schedule A hereto;
all extensions or renewals of any of the foregoing; all of the goodwill of the
business connected with the use of and symbolized by the foregoing; all rights
and priorities afforded under any international treaty, convention, or the like;
the right to xxx for past infringement or dilution of any of the foregoing or
for any injury to goodwill; and all proceeds of the foregoing, including,
without limitation, license royalties, income, payments, claims, damages, and
proceeds of suit.
(c) Schedule A hereto contains a true and accurate list of all of
Assignor's U.S. trademark registrations and applications.
(d) The security interest granted hereby is granted in
conjunction with the security interest granted to the Secured Party under the
security Agreement. The rights and remedies of the Secured Party with respect to
the security interest granted hereby are in addition to those set forth in the
Security Agreement and those which are now or hereafter available to the secured
Party as a matter of law or equity. Each right, power, and remedy of the secured
Party provided for herein, in the Security Agreement, in the other Loan
Documents or now or hereafter existing at law ox in equity shall be cumulative
and concurrent and shall be in addition to every right, power or remedy provided
for herein, and the exercise by the Secured Party of any one or more of the
rights, powers or remedies provided for in this Agreement, in the Security
Agreement, or now or hereafter existing at law or in equity shall not preclude
the simultaneous or later exercise by any person, including Secured Party, of
any or all other rights, powers or remedies.
2. Modification of Agreement
This Agreement or any provision hereof may not be changed, waived, or
terminated except in accordance with the amendment provisions of the Security
Agreement. Notwithstanding the foregoing, Assignor authorizes the secured Party,
upon notice to Assignor, to modify this Agreement in the name of and on behalf
of the Assignor without obtaining the Assignor's signature to such modification,
to the extent that such modification constitutes an amendment of Schedule A to
add any right, title, or interest in any Trademark owned or subsequently
acquired by Assignor, and Assignor additionally agrees to execute any additional
agreement or amendment hereto as may be required by the Secured Party from time
to time to subject any such owned or subsequently acquired right, title or
interest in any Trademark to the liens and perfection created or contemplated
hereby or by the Security Agreement.
3. Termination of Agreement
Upon termination of the Security Agreement, this Agreement shall
terminate and the secured Party, at the request and sole expense of the
Assignor, will execute and deliver to the Assignor the proper instruments
acknowledging termination of this Agreement and will duly, without recourse,
representation or warranty of any kind whatsoever, release such of the
Trademarks not therefore disposed of, applied or released from the security
interest created hereby and under the Security Agreement.
4. Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK.
5. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
Assignor, the Secured Party, all future holders of the Secured Obligations and
their respective successors and assigns, except that the Assignor may not assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of the Secured Party.
6. Counterparts
This Agreement may be executed in any number of counterparts and by
the parties hereto on separate counterparts, each of which when so executed,
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Assignor and the Secured Party have caused
this Agreement to be duly executed and delivered as of the date first above
written.
XXXXX XXX XXXXX ASSOCIATES
By: Xxxxx Atlantic City Corporation,
a General Partner
By: /s/
-------------------------------------
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION, as
Collateral Agent
By: /s/
-------------------------------------
Name:
Title:
Schedule A
To Xxxxx Xxx Xxxxx Associates
Trademark Security Agreement
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XXXX DATE REG./APP. NO. SERVICES
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TAJ POKER 1/23/96 1,950,821 Casino services
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XANADU Filed 5/3/94 74/519,789 Entertainment services,
namely a nightclub,
restaurant and theater
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KIPLING'S CORNER 1/18/94 1,817,565 Restaurant services
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GOBI DESSERT 5/12/92 1,687,340 Hotel restaurant services
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THE BOMBAY CAFE 7/26/94 1,847,479 Hotel restaurant services
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ROCK 'N ROLLS 12/29/92 1,744,052 Hotel restaurant services
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SCHEHERAZADE 7/28/92 1,704,378 Hotel restaurant services
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