TRADEMARK SECURITY AGREEMENT
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EX-10.10 5 ex1010.htm EXHIBIT 10.10 - TRADEMARK SECURITY AGREEMENT, DATED AS OF JULY 12, 2010, AMONG THE GRANTORS IDENTIFIED THEREIN AND MORGAN STANLEY SENIOR FUNDING, INC., AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT ex1010.htm
ACKNOWLEGDEMENT
Exhibit 10.10
TRADEMARK SECURITY AGREEMENT
TRADEMARK 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 (the “Grantors”) in favor of Morgan Stanley Senior Funding, Inc. as administrative agent and collateral agent (in such capacity, the “Agent”) for the Secured Parties (as defined in the Security Agreement defined below).
Reference is made to (a) the Guarantee and Collateral Agreement, dated as of July 12, 2010 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Security Agreement”), by and among Columbia Lake Acquisition Corp., a Delaware corporation (“Merger Sub”, with references to the “Borrower” herein being to Merger Sub, prior to the Merger (as defined in the Credit Agreement (defined below)), and to CKE Restaurants, Inc., following the Merger), each Subsidiary Party (as defined therein) and the Agent and (b) the Credit Agreement dated as of July 12, 2010 (as amended, restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), among Columbia Lake Acquisition Holdings, Inc., a Delaware corporation, the Borrower, the Lenders party thereto from time to time, the Agent and the other parties party thereto.
The Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement. The Grantors are affiliates of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Lenders to extend such credit.
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 Credit Agreement. The rules of construction specified in Section 1.02 of the Credit Agreement 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 Obligations, each Grantor, pursuant to the Security Agreement, did and hereby does grant to the Agent, its successors and assigns, for the benefit of the Secured Parties, 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 such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Trademark Collateral”):
a. | all trademarks, service marks, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted oracquired, all registrations thereof (if any), and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office (but excluding “intent to use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051), and all renewals thereof, including those listed on Schedule I attached hereto (the “Trademarks”); |
b. | all goodwill associated with or symbolized by the Trademarks; |
c. | all claims for, and rights to sue 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. Security 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 Security Agreement. Each Grantor hereby acknowledges and affirms that the rights and remedies of the Agent generally and with respect to the Trademark Collateral are more fully set forth in the Security Agreement, the terms and provisions of which are hereby incorporated herein by reference as if fully set forth herein.
SECTION 4. Credit Agreement. In the event of any conflict between the terms of this Agreement and the Credit Agreement, the terms of the Credit Agreement 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 PRINCIPLES OF CONFLICT OF LAWS.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have duly executed this Trademark 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 AEROWAYS, LLC |
CARL KARCHER ENTERPRISES, INC. |
HARDEE’S FOOD SYSTEMS, INC. |
FLAGSTAR ENTERPRISES, INC. |
SPARDEE’S REALTY, INC. |
HED, INC. |
BURGER CHEF SYSTEMS, INC. |
SANTA BARBARA RESTAURANT GROUP, INC. |
GB FRANCHISE CORPORATION |
CHANNEL ISLANDS ROASTING COMPANY |
CARL'S JR. REGION VIII, INC. |
CKE REIT II, INC. |
By: /s/ THEODORE ABAJIAN
Name: Theodore Abajian
Title: Executive Vice President and Chief Financial Officer
Signature Page to Trademark Security Agreement
ACKNOWLEGDEMENT
STATE OF CALIFORNIA | ) |
) ss. | |
COUNTY OF SANTA BARBARA | ) |
On July 8, 2010, before me, Martha Aragon, Notary Public, personally appeared Theodore Abajian who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person 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 /s/ MARTHA ARAGON
ACCEPTED:
MORGAN STANLEY SENIOR FUNDING, INC., as Administrative Agent and as Collateral Agent
By: /s/ EMILY JOHNSON
Name: Emily Johnson
Title: Vice President
Signature Page to Trademark Security Agreement
Schedule I
Schedule to Trademark Security Agreement
CARL KARCHER ENTERPRISES, INC.
FEDERAL TRADEMARK REGISTRATIONS
Mark | Class | App. No. App. Date | Reg. No. Reg. Date |
42 | 72/334,588 08/06/69 | 914,469 06/08/71 | |
32 | 74/044,288 03/29/90 | 1,631,819 01/15/91 | |
42 | 72/423,039 05/01/72 | 965,266 07/31/73 | |
42 | 75/406,528 12/17/97 | 2,220,433 01/26/99 | |
29, 30 & 31 | 73/391,494 09/28/82 | 1,297,845 09/25/84 | |
42 | 75/433,545 02/12/98 | 2,423,698 01/23/01 | |
42 | 75/555,439 09/18/98 | 2,281,660 09/28/99 | |
42 | 75/555,225 09/18/98 | 2,290,206 11/02/99 | |
42 | 75/556,437 09/23/98 | 2,288,997 10/26/99 | |
16, 20 & 21 | 73/502,849 | 1,383,339 02/18/86 | |
42 | 73/173,129 | 1,112,013 01/23/79 | |
42 | 73/220,022 06/18/79 | 1,151,330 04/14/81 | |
BACON SWISS CRISPY CHICKEN | 30 | 77/068,334 12/20/06 | 3,328,058 10/30/07 |
BREAKFAST AS BIG AS OUR BURGERS | 43 | 77/507,193 06/24/08 | 3,628,566 05/26/09 |
CARL’S CATCH FISH SANDWICH | 30 | 77/068,329 12/20/06 | 3,619,807 05/12/09 |
43 | 77/169,214 04/30/07 | 3,489,655 08/19/08 | |
CARL’S JR. | 42 | 72/334,587 08/06/69 | 901,315 10/20/70 |
CARL’S JR. | 16, 20 & 21 | 73/504,895 10/22/84 | 1,400,272 07/08/86 |
CARL’S JR. JR. | 42 | 75/135,837 07/18/96 | 2,141,498 03/03/98 |
43 | 77/004,737 09/21/06 | 3,524,587 10/28/08 | |
43 | 77/007,123 09/25/06 | 3,550,634 12/23/08 | |
43 | 77/007,125 09/25/06 | 3,807,406 06/22/2010 | |
43 | 77/665,551 02/06/09 | 3,791,079 05/18/2010 | |
43 | 77/470,877 05/09/08 | 3,719,412 12/01/09 | |
COOL COMBOS FOR KIDS | 42 | 75/504,661 06/18/98 | 2,272,061 08/24/99 |
COOL KIDS COMBOS | 30 | 76/329,542 10/23/01 | 2,773,975 10/14/03 |
DON’T BOTHER ME, I’M EATING | 42 | 75/923,187 02/18/00 | 2,625,830 09/24/02 |
FAMOUS STAR | 30 | 77/068,396 12/20/06 | 3,612,923 04/28/09 |
FRENCH TOAST DIPS | 42 | 73/551,361 08/02/85 | 1,475,407 02/02/88 |
FRENCH TOAST DIPS | 30 | 73/602,432 08/02/85 | 1,424,179 01/06/87 |
HAPPY STAR | 42 | 73/105,777 11/08/76 | 1,084,351 01/31/78 |
IF IT DOESN’T GET ALL OVER THE PLACE IT DOESN’T BELONG IN YOUR FACE | 42 | 74/701,374 07/14/95 | 2,002,665 09/24/96 |
LOW CARB BREAKFAST BOWL | 30 | 78/361,639 02/03/04 | 3,042,947 01/10/06 |
MORE THAN JUST A PIECE OF MEAT | 43 | 77/665,571 08/25/09 | 3,773,116 04/06/10 |
SOME GUYS WOULD STARVE WITHOUT US | 42 | 75/923,125 02/18/00 | 2,613,177 08/27/02 |
STAR DINER | 42 | 75/741,941 07/01/99 | 2,716,876 05/20/03 |
SUNRISE CROISSANT | 30 | 77/068,405 12/20/06 | 3,395,496 03/11/08 |
SUNRISE SANDWICH | 30 | 73/359,281 04/12/82 | 1,247,828 08/09/83 |
SUPER STAR | 42 | 73125,696 05/09/77 | 1,099,039 08/08/78 |
THE BACON CHEESE SIX DOLLAR BURGER | 30 | 77/068,351 12/20/06 | 3,573,079 02/10/09 |
THE DOUBLE SIX DOLLAR BURGER | 30 | 77/068,342 12/20/06 | 3,573,078 02/10/09 |
THE FOOD IS THE FRANCHISE | 35 | 77/276,306 09/11/07 | 3,522,036 10/21/08 |
THE GUACAMOLE BACON SIX DOLLAR BURGER | 30 | 77/068,375 12/20/06 | 3,573,081 02/10/09 |
THE LOW CARB SIX DOLLAR BURGER | 30 | 77/068,364 12/20/06 | 3,573,080 02/10/09 |
THE ORIGINAL SIX DOLLAR BURGER | 30 | 77/068,385 12/20/06 | 3,573,082 02/10/09 |
THE PRIME RIB SIX DOLLAR BURGER | 30 | 77/537,266 08/01/08 | 3,697,646 10/20/09 |
THE SIX DOLLAR BURGER | 30 | 76/319,349 09/28/01 | 2,980,088 07/26/05 |
THE SIX DOLLAR BURGER | 30 | 77/221,824 07/03/07 | 3,369,114 01/15/08 |
THE WESTERN BACON SIX DOLLAR BURGER | 30 | 78/260,526 06/10/03 | 2,912,799 12/21/04 |
WESTERN BACON CHEESEBURGER | 42 | 73/457,446 12/15/83 | 1,456,922 09/08/87 |
WESTERN BACON CHEESEBURGER | 30 | 73/636,886 12/22/86 | 1,481,762 03/22/88 |
CARL KARCHER ENTERPRISES, INC.
PENDING FEDERAL TRADEMARK APPLICATIONS
Mark | Class | App. No. App. Date |
BURGER SLAYER | 43 | 77/571,463 09/16/08 |
43 | 77/470,916 05/09/08 | |
DOUBLE WESTERN BACON CHEESEBURGER | 30 | 77/837,693 09/29/09 |
FIRING ON ALL CYLINDERS | 43 | 77/566,683 09/10/08 |
GREAT BURGERS DEMAND GREAT FLAVORS | 43 | 77/474,270 05/14/08 |
LITTLE CARL | 30, 43 | 85/018,661 4/20/2010 |
MONSTER BREAKFAST SANDWICH | 43 | 77/476,701 05/16/08 |
30 | 77/836,598 09/02/09 | |
THE BIG CARL | 30 | 77/772,629 07/01/09 |
THE GUY GAMES | 43 | 77/591,635 10/13/08 |
THE JALAPENO SIX DOLLAR BURGER | 30 | 77/837,710 09/29/09 |
THE PORTOBELLO MUSHROOM SIX DOLLAR BURGER | 30 | 77/837,704 09/29/09 |
THE WHEEL OF AWESOME | 9, 41 | 85/007756 04/06/10 |
CHANNEL ISLANDS ROASTING COMPANY
FEDERAL TRADEMARK REGISTRATIONS
Mark | App. No. App. Date | Reg. No. Reg. Date |
CHANNEL ISLANDS ROASTING COMPANY | 78/394,317 03/31/04 | 3,026,862 12/13/05 |
78/395,785 04/02/04 | 3,026,879 12/13/05 |
HARDEE’S FOOD SYSTEMS, INC.
FEDERAL TRADEMARK REGISTRATIONS
Trademark | Reg. No. | Registration Date |
BIG COUNTRY | 1957006 | 2/20/1996 |
BIG TWIN | 2650355 | 11/12/2002 |
BISCUIT HOLES | 3739930 | 1/19/2010 |
BURGER CHEF | 1776896 | 6/15/1993 |
BURGER CHEF and Design | 1832980 | 4/26/1994 |
COME ON HOME | 2562539 | 4/16/2002 |
FRISCO BREAKFAST SANDWICH | 3049236 | 1/24/2006 |
HAND SCOOPED ICE CREAM SHAKES & MALTS and Design | 3040986 | 1/10/2006 |
HARDEE’S | 1825221 | 3/8/1994 |
HARDEE’S | 1729627 | 11/3/1992 |
HARDEE’S | 0741048 | 11/20/1962 |
HARDEE’S and Design | 1774336 | 6/1/1993 |
HARDEE’S and Design | 1817990 | 1/25/1994 |
HARDEE’S FRISCO | 1872913 | 1/10/1995 |
HOME OF THE THICKBURGER | 3276896 | 8/7/2007 |
HOT MELTS | 1998838 | 9/3/1996 |
MONSTER BURGER | 1716175 | 9/15/1992 |
MONSTER THICKBURGER | 3672671 | 8/25/2009 |
PRIME RIB THICKBURGER | 3583173 | 3/3/2009 |
RISE AND SHINE | 1932512 | 11/7/1995 |
SLAMMERS | 2830916 | 4/6/2004 |
TAILGATE PACK | 1815228 | 1/4/1994 |
THE FRISCO and Design | 0758506 | 10/15/1963 |
THICKBURGER | 3026394 | 12/13/2005 |
THICKBURGERS | 3362346 | 1/1/2008 |
WHERE AMERICA GOES FOR BREAKFAST | 2037209 | 2/11/1997 |
GLUTEN-FREE IT | 3784437 | 5/4/2010 |
HASH ROUNDS | 3789824 | 5/18/2010 |
LOW CARB IT | 3784436 | 5/4/2010 |
THE BIG HARDEE | 3784022 | 5/4/2010 |
TRIM IT | 3784438 | 5/4/2010 |
VEG IT | 3784435 | 5/4/2010 |
JOINTLY REGISTERED: HARDEE’S FOOD SYSTEMS, INC. AND CARL KARCHER ENTERPRISES, INC
FEDERAL TRADEMARK REGISTRATIONS
Trademark | Reg. No. | Registration Date |
HARDEE’S CHARBROILED BURGERS and Design | 2417015 | 1/2/2001 |
HARDEE’S CHARBROILED BURGERS and Design | 2292781 | 11/16/1999 |
HARDEE’S CHARBROILED THICKBURGERS and Design | 3295053 | 9/18/2007 |
THE FOOD IS THE FRANCHISE | 3522036 | 10/21/2008 |
HARDEE'S FOOD SYSTEMS, INC.
PENDING FEDERAL TRADEMARK APPLICATIONS
Trademark | Ser. No. | App. Date |
MADE FROM SCRATCH BISCUITS and Design | 85/013693 | 04/14/2010 |
THERE'S NOTHING FRESH ABOUT PRE-COOKED CHICKEN | 85054231 | 03-JUN-2010 |
BECAUSE THERE'S NOTHING FRESH ABOUT PRE-COOKED CHICKEN | 85054235 | 03-JUN-2010 |
MONSTER BISCUIT | 85047496 | 25-MAY-2010 |
CKE RESTAURANTS, INC. FEDERAL TRADEMARK REGISTRATIONS
STAR BUFFET | 42 | 75/236,939 02/05/97 | 2,265,351 07/27/99 |
CKE RESTAURANTS | 43 | 78/487,859 09/22/04 | 3,070,410 03/21/06 |
SANTA BARBARA RESTAURANT GROUP
FEDERAL TRADEMARK REGISTRATIONS
Mark | Class(es) | Application No. Filing Date | Registration No. Registration Date |
42 | 74/165,474 5/10/91 | 1,689,454 05/26/92 | |
43 | 78/154,779 08/15/02 | 2,924,101 02/10/05 | |
43 | 78/154,781 08/15/02 | 2,846,557 05/25/04 | |
BIG ED BURRITO | 30 | 74/108,931 10/22/90 | 1,707,040 08/11/92 |
GREEN BURRITO | 43 | 78/480,525 09/08/04 | 3,015,454 11/15/05 |
THE AUTHENTIC ALTERNATIVE | 43 | 77/101,561 02/07/07 | 3,412,372 04/15/08 |
THE GREEN BURRITO | 29, 30 | 77/068,306 12/20/06 | 3,526,233 11/04/08 |
RED BURRITO | 43 | 78/645,336 06/07/05 | 3,263,524 07/10/07 |