EXHIBIT 10.3
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of December 29,
2005 (as amended, supplemented or otherwise modified from time to time, the
"INTELLECTUAL PROPERTY SECURITY AGREEMENT"), is made by each of the signatories
hereto (collectively, the "GRANTORS") in favor of JPMorgan Chase Bank, N.A., as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Secured Parties (as defined in the Credit Agreement referred to below).
A. Del Laboratories, Inc., a Delaware corporation (the "BORROWER") and
DLI Holding II Corp., a Delaware corporation, ("HOLDINGS"), have entered into a
Credit Agreement, dated as of December 29, 2005 (as amended, supplemented, or
otherwise modified from time to time, the "CREDIT AGREEMENT"), with the banks,
financial institutions and other entities (the "LENDERS") from time to time
party thereto, ▇.▇. ▇▇▇▇▇▇ Securities Inc., as sole lead arranger and sole
bookrunner, and the Administrative Agent.
B. It is a condition precedent to the obligation of the Lenders to make
their respective extensions of credit to the Borrower under the Credit Agreement
that the Grantors shall have executed and delivered that certain Guarantee and
Collateral Agreement, dated as of December 29, 2005 in favor of the
Administrative Agent (as amended, supplemented, replaced or otherwise modified
from time to time, the "GUARANTEE AND COLLATERAL AGREEMENT"). Capitalized terms
used and not defined herein have the meanings given such terms in the Credit
Agreement or the Guarantee and Collateral Agreement, as applicable.
C. Under the terms of the Guarantee and Collateral Agreement, the
Grantors have granted a security interest in certain Property, including,
without limitation, certain Intellectual Property of the Grantors to the
Administrative Agent for the benefit of the Secured Parties, and have agreed as
a condition thereof to execute this Intellectual Property Security Agreement for
recording with the United States Patent and Trademark Office, the United States
Copyright Office, and other applicable Governmental Authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantors agree as follows:
SECTION 1. GRANT OF SECURITY. Each Grantor hereby grants to the
Administrative Agent for the benefit of the Secured Parties a security interest
in all of the following property now owned or 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, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations (as defined in the
Guarantee and Collateral Agreement):
(a) (i) all United States trademarks, service marks, trade names,
domain names, corporate names, company names, business names, trade dress, trade
styles, logos, or other indicia of origin or source identification, and all
registrations of and applications to register the foregoing (except for
"intent-to-use" applications for trademark or service ▇▇▇▇ registrations filed
pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. ss. 1051, unless and until
an Amendment to Allege Use or a Statement of Use under Sections 1(c) and 1(d) of
said Act has been filed, to the extent that any assignment of an "intent-to-use"
application prior to such filing would violate the ▇▇▇▇▇▇ Act) and any new
renewals thereof, including each registration and application identified in
Schedule 1, (ii) the right to ▇▇▇ or otherwise recover for any and all past,
present and future infringements and dilutions thereof, (iii) all income,
royalties, damages and other payments now and hereafter due and/or payable with
respect thereto (including payments under all licenses entered into in
connection therewith, and damages and payments for past, present or future
infringements and dilutions thereof), and (iv) all other rights of any kind
whatsoever accruing thereunder or pertaining thereto, together in each case with
the goodwill of the business connected with the use of, and symbolized by, each
of the above (collectively, the "TRADEMARKS");
(b) (i) all United States patents, patent applications and patentable
inventions, including, without limitation, each issued patent and patent
application identified on Schedule 1, (ii) all inventions and improvements
described and claimed therein, (iii) the right to ▇▇▇ or otherwise recover for
any and all past, present and future infringements thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or payable with
respect thereto (including payments under all licenses entered into in
connection therewith, and damages and payments for past, present or future
infringements thereof), and (v) all reissues, divisions, continuations,
continuations-in-part, substitutes, renewals, and extensions thereof, all
improvements thereon and all other rights of any kind whatsoever accruing
thereunder or pertaining thereto (collectively, the "PATENTS");
(c) (i) all United States copyrights, whether or not the underlying
works of authorship have been published, and all copyright registrations and
copyright applications, and any renewals or extensions thereof, including each
registration identified on Schedule 1, (ii) the right to ▇▇▇ or otherwise
recover for any and all past, present and future infringements thereof, (iii)
all income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements thereof), and (iv) all other rights of any
kind whatsoever accruing thereunder or pertaining thereto (collectively, the
"COPYRIGHTS");
(d) any and all proceeds of the foregoing.SECTION 2. RECORDATION. Each
Grantor authorizes and requests that the United States Register of Copyrights or
the United States Commissioner of Patents and Trademarks, as applicable, record
this Intellectual Property Security Agreement.
SECTION 3. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts (including by telecopy), 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.
SECTION 4. GOVERNING LAW. This Intellectual Property Security Agreement
shall be governed by, and construed and interpreted in accordance with, the law
of the State of New York.
SECTION 5. CONFLICT PROVISION. This Intellectual Property Security
Agreement has been entered into in conjunction with the provisions of the
Guarantee and Collateral Agreement and the Credit Agreement. The rights and
remedies of each party hereto with respect to the security interest granted
herein are without prejudice to, and are in addition to those set forth in the
Guarantee and Collateral Agreement and the Credit Agreement, all terms and
provisions of which are incorporated herein by reference. In the event that any
provisions of this Intellectual Property Security Agreement are in conflict with
the Guarantee and Collateral Agreement or the Credit Agreement, the provisions
of the Guarantee and Collateral Agreement or the Credit Agreement shall govern.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Intellectual Property Security Agreement to be duly executed and delivered as of
the date first above written.
DEL LABORATORIES, INC.
By:
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Name:
Title:
DEL PHARMACEUTICALS, INC.
By:
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Name:
Title:
DEL PROFESSIONAL PRODUCTS, INC.
By:
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Name:
Title:
PARFUMS SCHIAPARELLI, INC.
By:
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Name:
Title:
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STATE OF )
: ss.:
COUNTY OF )
On this __ day of ________________, 20__, before me personally
appeared ________________, 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/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the entity upon behalf of which the person
acted executed the instrument.
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Notary Public
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My commission expires:
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
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Name:
Title:
SCHEDULE ▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇ COPYRIGHTS