TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT ("Agreement") is made as of
February 12, 1997, by and between Country Star Restaurants, Inc., a Delaware
corporation ("Borrower"), and Cameron Capital Ltd., a Bermuda corporation, as
agent ("Agent") for "Lenders" (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan and Security Agreement of
even date herewith by and among Borrower, the financial institutions which from
time to time may become parties thereto (collectively, "Lenders"), and Agent (as
the same may from time to time be amended, restated, modified or supplemented,
the "Loan Agreement"), Agent and Lenders have agreed, among other things and
subject to certain conditions precedent, to make loans and other financial
accommodations to Borrower;
WHEREAS, Agent and Lenders have required Borrower to execute and
deliver this Agreement (i) in order to secure the prompt and complete payment,
observance and performance of all of the Obligations under the Loan Agreement
and the Loan Documents and (ii) as a condition precedent to providing certain
loans and financial accommodations under the Loan Agreement;
NOW, THEREFORE, in consideration of the premises set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower agrees as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term used
herein that is defined in the Loan Agreement shall have the meaning specified
for such term in the Loan Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of like
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section references are to
this Agreement unless otherwise specified.
(c) All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural, and vice versa, unless otherwise
specified.
2. Incorporation of Premises. The premises set forth above are
incorporated into this Agreement by this reference thereto and are made a part
hereof.
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3. Incorporation of the Loan Agreement. The Loan Agreement and the
terms and provisions thereof are hereby incorporated herein in their entirety by
this reference thereto.
4. Security Interest in Trademarks. To secure the complete and
timely payment, performance and satisfaction of all of the Obligations, Borrower
hereby mortgages and grants, with power of sale, to Agent for the benefit of
Agent and Lenders a first priority security interest in the following property
and interests in property of Borrower, now owned or existing and hereafter
acquired or arising:
(i) trademarks, registered trademarks, trademark applications,
service marks, registered service marks and service xxxx applications,
including, without limitation, the trademarks, registered trademarks,
trademark applications, service marks, registered service marks and
service xxxx applications listed on Schedule A attached hereto and made a
part hereof, and (a) all renewals thereof, (b) all income, royalties,
damages and payments now and hereafter due and/or payable under and with
respect thereto, including, without limitation, payments under all
licenses entered into in connection therewith and damages and payments for
past or future infringements or dilutions thereof, (c) the right to xxx
for past, present and future infringements and dilutions thereof, (d) the
goodwill of Borrower's business symbolized by the foregoing and connected
therewith, and (e) all of Borrower's rights corresponding thereto
throughout the world (all of the foregoing trademarks, registered
trademarks and trademark applications, and service marks, registered
service marks and service xxxx applications, together with the items
described in clauses (a)-(e) in this paragraph 4(i), are sometimes
hereinafter individually and/or collectively referred to as the
"Trademarks"); and
(ii) rights under or interest in any trademark license agreements or
service xxxx license agreements with any other party, whether Borrower is
a licensee or licensor under any such license agreement, including,
without limitation, those trademark license agreements and service xxxx
license agreements listed on Schedule B attached hereto and made a part
hereof, together with any goodwill connected with and symbolized by any
such trademark license agreements or service xxxx license agreements, and
the right to prepare for sale and sell any and all Inventory now or
hereafter owned by Borrower and now or hereafter covered by such licenses
(all of the foregoing are hereinafter referred to collectively as the
"Licenses").
5. New Trademarks and Licenses. Borrower represents and warrants
that, (a) the Trademarks listed on Schedule A include all of the trademarks,
registered trademarks, trademark applications, service marks, registered service
marks and service xxxx applications now owned or held by Borrower, (b) the
Licenses listed on Schedule B include all of the trademark license agreements
and service xxxx license agreements under which Borrower is the licensee or
licensor and (c) no liens, claims or security interests in such Trademarks and
Licenses have been granted by Borrower to any Person other than Agent. If, prior
to the termination of this
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Agreement, Borrower shall (i) obtain rights to any new trademarks, registered
trademarks, trademark applications, service marks, registered service marks or
service xxxx applications, (ii) become entitled to the benefit of any
trademarks, registered trademarks, trademark applications, trademark licenses,
trademark license renewals, service marks, registered service marks, service
xxxx applications, service xxxx licenses or service xxxx license renewals
whether as licensee or licensor, or (iii) enter into any new trademark license
agreement or service xxxx license agreement, the provisions of paragraph 4 above
shall automatically apply thereto. Borrower shall give to Agent written notice
of events described in clauses (i), (ii) and (iii) of the preceding sentence
promptly after the occurrence thereof, but in any event not less frequently than
on a quarterly basis. Borrower hereby authorizes Agent to modify this Agreement
unilaterally (i) by amending Schedule A to include any future trademarks,
registered trademarks, trademark applications, service marks, registered service
marks and service xxxx applications and by amending Schedule B to include any
future trademark license agreements and service xxxx license agreements, which
are Trademarks or Licenses under paragraph 4 above or under this paragraph 5,
and (ii) by filing, in addition to and not in substitution for this Agreement, a
duplicate original of this Agreement containing on Schedule A or B thereto, as
the case may be, such future trademarks, registered trademarks, trademark
applications, service marks, registered service marks and service xxxx
applications, and trademark license agreements and service xxxx license
agreements.
6. Royalties. Borrower hereby agrees that the use by Agent and
Lenders of the Trademarks and Licenses as authorized hereunder in connection
with Agent's and Lenders' exercise of their rights and remedies under paragraph
14 or pursuant to the Loan Agreement shall be coextensive with Borrower's rights
thereunder and with respect thereto and without any liability for royalties or
other related charges to Borrower from Agent or any Lender.
7. Right to Inspect; Further Assignments and Security Interests.
From and after the occurrence of an Event of Default, Borrower agrees that
Agent, or a conservator appointed by Agent, shall have the right to establish
such reasonable additional product quality controls as Agent or such
conservator, in its sole and absolute judgment, may deem necessary to assure
maintenance of the quality of products sold by Borrower under the Trademarks and
the Licenses or in connection with which such Trademarks and Licenses are used.
Borrower agrees not to sell or assign its respective interests in, or grant any
license under, the Trademarks or the Licenses without the prior and express
written consent of Agent.
8. Nature and Continuation of Agent's Security Interest; Termination
of Agent's Security Interest. This Agreement is made for collateral security
purposes only. This Agreement shall create a continuing security interest in the
Trademarks and Licenses and shall terminate only when the Obligations have been
paid in full and the Loan Agreement has been terminated. When this Agreement has
terminated, Agent shall promptly execute and deliver to Borrower, at Borrower's
expense, all termination statements and other instruments as may be necessary or
proper to terminate Agent's security interest in the Trademarks and the
Licenses, subject to any disposition thereof which may have been made by Agent
pursuant to this Agreement or the Loan Agreement.
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9. Duties of Borrower. Borrower shall have the duty, to the extent
desirable in the normal conduct of Borrower's business, to: (i) prosecute
diligently any trademark application or service xxxx application that is part of
the Trademarks pending as of the date hereof or hereafter until the termination
of this Agreement, and (ii) make application for trademarks or service marks.
Borrower further agrees (i) not to abandon any Trademark or License without the
prior written consent of Agent, and (ii) to use its best efforts to maintain in
full force and effect the Trademarks and the Licenses that are or shall be
necessary or economically desirable in the operation of Borrower's business. Any
expenses incurred in connection with the foregoing shall be borne by Borrower.
Agent and Lenders shall not have any duty with respect to the Trademarks and
Licenses. Without limiting the generality of the foregoing, Agent and Lenders
shall not be under any obligation to take any steps necessary to preserve rights
in the Trademarks or Licenses against any other parties, but Agent or Lenders
may do so at its option from and after the occurrence of an Event of Default,
and all expenses incurred in connection therewith shall be for the sole account
of Borrower and shall be added to the Obligations secured hereby.
10. Agent's Right to Xxx. From and after the occurrence of an Event
of Default, Agent shall have the right, but shall not be obligated, to bring
suit in its own name to enforce the Trademarks and the Licenses and, if Agent
shall commence any such suit, Borrower shall, at the request of Agent, do any
and all lawful acts and execute any and all proper documents required by Agent
in aid of such enforcement. Borrower shall, upon demand, promptly reimburse
Agent for all costs and expenses incurred by Agent in the exercise of its rights
under this paragraph 10 (including, without limitation, reasonable fees and
expenses of attorneys and paralegals for Agent).
11. Waivers. Agent's failure, at any time or times hereafter, to
require strict performance by Borrower of any provision of this Agreement shall
not waive, affect or diminish any right of Agent thereafter to demand strict
compliance and performance therewith nor shall any course of dealing between
Borrower and Agent have such effect. No single or partial exercise of any right
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right. None of the undertakings, agreements, warranties, covenants
and representations of Borrower contained in this Agreement shall be deemed to
have been suspended or waived by Agent unless such suspension or waiver is in
writing signed by an officer of Agent and directed to Borrower specifying such
suspension or waiver.
12. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but the provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part hereof, in such jurisdiction, and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
13. Modification. This Agreement cannot be altered, amended or
modified in
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any way, except as specifically provided in paragraph 5 hereof or by a writing
signed by the parties hereto.
14. Cumulative Remedies; Power of Attorney. Borrower hereby
irrevocably designates, constitutes and appoints Agent (and all Persons
designated by Agent in its sole and absolute discretion) as Borrower's true and
lawful attorney-in-fact, and authorizes Agent and any of Agent's designees, in
Borrower's or Agent's name, to take any action and execute any instrument which
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, from and after the occurrence of an Event of Default and the giving
by Agent of notice to Borrower of Agent's intention to enforce its rights and
claims against Borrower, to (i) endorse Borrower's name on all applications,
documents, papers and instruments necessary or desirable for Agent in the use of
the Trademarks or the Licenses, (ii) assign, pledge, convey or otherwise
transfer title in or dispose of the Trademarks or the Licenses to anyone on
commercially reasonable terms, (iii) grant or issue any exclusive or
nonexclusive license under the Trademarks or, to the extent permitted, under the
Licenses, to anyone on commercially reasonable terms, and (iv) take any other
actions with respect to the Trademarks or the Licenses as Agent deems in its own
best interest. Borrower hereby ratifies all that such attorney shall lawfully do
or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until all of the Obligations shall have been
paid in full in cash and the Loan Agreement shall have been terminated. Borrower
acknowledges and agrees that this Agreement is not intended to limit or restrict
in any way the rights and remedies of Agent under the Loan Agreement, but rather
is intended to facilitate the exercise of such rights and remedies.
Agent shall have, in addition to all other rights and remedies given
it by the terms of this Agreement, all rights and remedies allowed by law and
the rights and remedies of a secured party under the Uniform Commercial Code as
enacted in any jurisdiction in which the Trademarks or the Licenses may be
located or deemed located. Upon the occurrence of an Event of Default and the
election by Agent, during the continuance of such Event of Default, to exercise
any of its remedies under Section 9-504 or Section 9-505 of the Uniform
Commercial Code with respect to the Trademarks and Licenses, Borrower agrees to
assign, convey and otherwise transfer title in and to the Trademarks and the
Licenses to Agent or any transferee of Agent and to execute and deliver to Agent
or any such transferee all such agreements, documents and instruments as may be
necessary, in Agent's sole discretion, to effect such assignment, conveyance and
transfer. All of Agent's rights and remedies with respect to the Trademarks and
the Licenses, whether established hereby, by the Loan Agreement, by any other
agreements or by law, shall be cumulative and may be exercised separately or
concurrently. Notwithstanding anything set forth herein to the contrary, it is
hereby expressly agreed that upon the occurrence of an Event of Default, Agent
may exercise any of the rights and remedies provided in this Agreement, the Loan
Agreement and any of the other Loan Documents.
15. Successors and Assigns. This Agreement shall be binding upon
Borrower and its successors and assigns, and shall inure to the benefit of Agent
and its nominees, successors and assigns. Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor-in-possession
of or for Borrower; provided, however, that Borrower
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shall not voluntarily assign or transfer its rights or obligations hereunder
without Agent's prior written consent.
16. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
AND THE RIGHTS AND DUTIES OF THE PARTIES SHALL BE GOVERNED BY IN ALL RESPECTS IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS)
AND DECISIONS OF THE STATE OF ILLINOIS.
17. Notices. All notices or other communications hereunder shall be
given in the manner and to the addresses set forth in the Loan Agreement.
18. Section Titles. The section titles herein are for convenience of
reference only, and shall not affect in any way the interpretation of any of the
provisions hereof.
19. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in 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 agreement.
20. Conflict with Loan Agreement. Should any term or provision of
the Loan Agreement expressly conflict with the terms or provisions of this
Agreement, such term or provision of the Loan Agreement shall govern and
control.
[Signature Page Immediately Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
COUNTRY STAR RESTAURANTS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: CEO
Accepted and agreed to as of the day and year
first above written.
CAMERON CAPITAL LTD.,
as Agent
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: CEO
[Signature Page to Trademark Security Agreement]
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Schedule A
to
Trademark Security Agreement
Dated as of February 12, 1997
Trademarks
None, except:
Trademark Registration Date Registration No.
--------- ----------------- ----------------
COUNTRY STAR January 26, 1971 906,886
COUNTRY STAR July 18, 1995 1,906,211
COUNTRY STAR January 9, 1996 1,947,489
and Design
COUNTRY STAR April 16, 1996 1,967,853
COUNTRY STAR August 20, 1996 1,994,709
and Design
DESIGN August 27, 1996 1,997,347
Trademark and Service Xxxx Applications
None, except:
Trademark Application Date Serial No.
--------- ----------------- ----------------
RATTLESNAKE BARBECUE June 24, 1994 74/541828
SAUCE
COUNTRY STAR September 23, 1994 74/577440
COWBOY MAGI C June 30, 1995 74/695979
COWBOY SALT July 7, 1995 74/699555
RODEO OUTLAW July 21, 1995 74/703926
BRIMSTONE October 6 1995 75/002183
IT AIN'T COUNTRY May 23, 1996 75/108862
'TIL IT COOKS
AMERICAN MUSIC GRILL June 13, 1996 75/118348
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Schedule B
to
Trademark Security Agreement
Dated as of February 12,
License Agreements
None, except:
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STATE OF NEW YORK )
) SS
COUNTY OF NEW YORK )
The foregoing Trademark Security Agreement was acknowledged before
me this 12th day of February, 1997, by Xxxxxx X. Xxxxxxxx, a CEO and Secretary
of Country Star Restaurants, Inc., a Delaware corporation, on behalf of such
corporation.
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Notary Public
________ County, _________
My commission expires:_______
XXXXXX X. XXXXXX
Notary Public, State of New York
No. 02LE5045171
Certificate filed in New York County
Commission Expires June 12, 1997
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