EXHIBIT 10.4
SUPPLEMENTAL SECURITY AGREEMENT
(TRADEMARKS)
THIS SUPPLEMENTAL SECURITY AGREEMENT (the "Supplemental Trademark
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Agreement") is made and dated this 29th day of October, 1999 by and between CPK
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Management Company, a California corporation (each, a "Debtor" and collectively,
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"Debtors"), and BANK OF AMERICA, N.A., a national banking association, as
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Administrative Agent (in such capacity, "Administrative Agent") for itself,
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Issuing Lender, Lenders and Indemnitees under (and as that term and capitalized
terms not otherwise defined herein are defined in) that certain Credit Agreement
dated as of October 29, 1999 among California Pizza Kitchen, Inc., a California
corporation ("Borrower"), Lenders from time to time party thereto, Bank of
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America, N.A., as Administrative Agent, Swing Line Lender and Issuing Lender and
Bankers Trust Company, as Documentation Agent (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
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RECITALS
A. Pursuant to that certain Security Agreement dated as of even date
herewith between each Debtor and Administrative Agent (the "Security
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Agreement"), each Debtor has granted to Administrative Agent a perfected
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security interest in certain assets of each Debtor, including, without
limitation, all patents, trademarks, service marks, trade names, copyrights,
goodwill, licenses and other intellectual property owned by each Debtor or used
in each Debtor's business.
B. The parties hereto desire to supplement the Security Agreement as it
relates to certain of such intellectual property consisting generally of
trademarks and to create hereby a document appropriate for recordation in the
Patent and Trademark Office of the United States (the "PTO").
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NOW, THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Confirmation of Grant of Security Interest. Each Debtor hereby
confirms the grant of security interest, pledge, assignment and mortgage set
forth in the Security Agreement and acknowledges that the Collateral described
therein includes, without limitation, all of each Debtor's right, title and
interest in the following (the "Trademark Collateral"):
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(a) All trademarks, service marks, designs, logos, indicia, tradenames,
corporate names, company names, business names, fictitious business names trade
styles and other source, product and business identifiers pertaining to the
products, services and business of each Debtor in the United States, whether now
owned or hereafter acquired, including, without limitation, the trademarks
specifically described on Schedule I attached hereto, as the same may be amended
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or replaced from time to time with the consent of Administrative Agent;
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(b) All now existing and hereafter arising registrations and applications
for registration relating to any of the foregoing, all renewals and extensions
thereof in the United States in perpetuity, and all rights to make such
applications and to renew and extend the same;
(c) All now existing and hereafter arising rights and licenses to make,
have made, use and/or sell any items disclosed and claimed by any of the
foregoing;
(d) All now existing and hereafter arising right (but not the obligation)
to register claims under any state or federal trademark law or regulation;
(e) All now existing and hereafter arising rights, claims and interests
under licensing or other contracts pertaining to any of the foregoing to the
extent such rights are assignable;
(f) All now existing and hereafter arising documents, instruments and
agreements which reveal the name and address of sources of supply, distribution
methods and all terms of purchase, rental, license or use and delivery for all
materials, products and components used in connection with any of the foregoing;
(g) All now existing and hereafter arising specifications as to and quality
control manuals used in connection with the operations conducted under the name
of or in connection with the foregoing;
(h) All now existing and hereafter arising goodwill associated with any of
the foregoing;
(i) All now existing and hereafter arising right (but not the obligation)
to ▇▇▇ or bring opposition or cancellation proceedings in the name of each
Debtor or Administrative Agent for past, present and future infringements of any
of the foregoing;
(j) All products and proceeds of any of the foregoing.
2. Additional Representation and Warranty and Covenant. In addition to
all representations and warranties, covenants and agreements set forth in the
Security Agreement, each Debtor hereby:
(a) Represents and warrants that Schedule I attached hereto sets forth an
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accurate and complete list of all trademarks owned by each Debtor which are
registered with the PTO as of the date hereof; and
(b) Agrees to promptly notify Administrative Agent in writing of any
additional trademarks registered with the PTO of which each Debtor becomes the
owner and to amend Schedule I accordingly.
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3. No Present Assignment. Neither the Security Agreement, this
Supplemental Trademark Agreement nor any other document, instrument or agreement
creates or is intended to create a present assignment of the Trademark
Collateral. Subject to the rights of Administrative Agent under the Security
Agreement and this Supplemental Trademark Agreement, it is the intention of the
parties hereto that each Debtor continue to own the Trademark Collateral and
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that upon the indefeasible payment and performance in full of each Debtor
Obligations, the rights of Administrative Agent under the Security Agreement and
this Supplemental Trademark Agreement in and to the Trademark Collateral shall
be released and terminated.
4. Relationship to Security Agreement. The Trademark Collateral shall
constitute Collateral for all purposes of the Security Agreement and the other
Loan Documents and after the occurrence and during the continuance of an Event
of Default Administrative Agent shall have all rights, powers and remedies with
respect to the Trademark Collateral to the same extent as they have with respect
to other Collateral. Reference is hereby made to the Security Agreement, the
terms and conditions of which are incorporated herein by this reference.
EXECUTED as of the day and year first above written.
CPK MANAGEMENT COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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▇. ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Chief Financial Officer
and Secretary
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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