EXHIBIT 4.12
SUBSIDIARY SECURITY AGREEMENT
(Note Obligations)
SECURITY AGREEMENT, dated as of November 30, 2001, made by
each corporation signatory hereto (each such corporation, a "Grantor";
collectively, the "Grantors") in favor of Wilmington Trust Company, as
collateral agent (in such capacity and as further defined below, the "Note
Collateral Agent") for holders of the Note Obligations (as hereinafter defined).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, each Grantor has guaranteed (the "Indenture
Guarantee") the obligations of Revlon Consumer Products Corporation (the
"Company") under the Indenture, dated as of November 26, 2001, among the
Company, the Guarantors identified on the signature pages thereto and Wilmington
Trust Company, as trustee (in such capacity, the "Trustee"), providing for the
issuance of 12% Senior Secured Notes Due 2005 of the Company; and
WHEREAS, each Grantor is a party to a Subsidiaries Guarantee
(the "Bank Guarantee") referred to in the Second Amended and Restated Credit
Agreement entered into by the Company on the date hereof; and
WHEREAS, (i) to secure each Grantor's guarantee of the Bank
Obligations (as defined below) pursuant to the Bank Guarantee, each Grantor has
granted to the Administrative Agent (as defined below), for the benefit of the
holders of the Bank Obligations, a first priority security interest in the
Collateral (as defined below), and (ii) to secure each Grantor's guarantee of
the Note Obligations pursuant to the Indenture Guarantee, each Grantor now
intends hereby to grant to the Note Collateral Agent, for the benefit of the
holders of the Note Obligations, a second priority security interest in the
Collateral (it being understood that the relative rights and priorities of the
grantees in respect of the Collateral are governed by the Collateral Agency
Agreement referred to herein).
NOW, THEREFORE, each Grantor agrees with the Note Collateral
Agent, for the benefit of the holders of the Note Obligations, as follows:
1. Defined Terms.
(a) Definitions.
(i) The following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof are used
herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, General Intangibles, Instruments, Inventory and Proceeds (other than
(i) those rights or assets which are not located in or created by, and do not
arise or exist under, the laws of the United States or any State or any
political subdivision thereof, with it being understood that Accounts and
General Intangibles shall be deemed to be located in the jurisdiction of the
filing office in which a secured party
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would be required to file a financing statement under the UCC in order to
perfect its security interest therein, and (ii) any interest in any Excluded
Entity).
(ii) The following terms shall have the following
meanings:
"Actionable Event": as defined in the Collateral Agency
Agreement.
"Administrative Agent": as defined in the Collateral Agency
Agreement.
"Agreement": this Security Agreement, as the same may be
amended, modified or otherwise supplemented from time to time.
"Bank Obligations": as defined in the Collateral Agency
Agreement.
"Collateral": as defined in Section 2(a) of this Agreement.
"Collateral Account": as defined in the Collateral Agency
Agreement.
"Collateral Agency Agreement": the Amended and Restated
Collateral Agency Agreement , dated as of May 30, 1997 and as further amended
and restated as of the date hereof, between the Company, JPMorgan Chase Bank, as
bank agent, the Administrative Agent, the Trustee and the Note Collateral Agent,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Contracts": with respect to each Grantor, the license
agreements listed in Schedule 1 attached hereto to which such Grantor has any
rights, as the same may be amended, modified or otherwise supplemented from time
to time, including, without limitation, (a) all rights of such Grantor to
receive moneys due and to become due to it thereunder or in connection
therewith, (b) all rights of such Grantor to receive proceeds of any insurance,
indemnity, warranty or guarantee with respect thereto, (c) all rights of such
Grantor to damages arising out of or for breach or default in respect thereof
and (d) all rights of such Grantor to exercise all remedies thereunder.
"Contractual Obligation": of any Person, any provision of any
material debt security or of any material preferred stock or other equity
interest issued by such Person or of any material indenture, mortgage,
agreement, instrument or undertaking to which such Person is a party or by which
it or any of its material property is bound.
"Controlling Collateral Agent": (i) with respect to Collateral
that is also subject to Liens granted under any First Lien Document: at all
times prior to the First Lien Termination Date, the Administrative Agent and,
thereafter, the Note Collateral Agent; and (ii) with respect to Collateral that
is not subject to any Lien granted under any First Lien Document: at all times,
the Note Collateral Agent.
"Copyrights": with respect to each Grantor, (a) all
copyrights, whether registered or unregistered, and whether or not the
underlying works of authorship have been published, and all works of authorship
and other rights therein or derived therefrom, all copyrights of works based on,
incorporated in, derived from or relating to works covered by such copyrights,
all
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right, title and interest to make and exploit all derivative works based upon or
adopted from works covered by such copyright and all copyright registrations and
copyright applications, and any renewals or extensions thereof, including
without limitation, each copyright registration and copyright application, if
any, identified in Schedule 4 hereto, and including, without limitation, (a) the
right to print, publish and distribute any of the foregoing, (b) the right to
▇▇▇ or otherwise recover for any and all past, present and future infringements
and misappropriations thereof, (c) 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 or future infringements thereof)
and (d) all rights of each Grantor corresponding thereto throughout the United
States and all other rights of any kind whatsoever of such Grantor accruing
thereunder or pertaining thereto; provided that, for purposes hereof, the term
"Copyrights" shall not include those rights which are not created by, or do not
arise or exist under, the laws of the United States or any State or political
subdivision thereof.
"Copyright Licenses": with respect to each Grantor, all
license agreements with any other Person in connection with any of the
Copyrights of such Grantor, or such other Person's copyrights, whether such
Grantor is a licensor or licensee under any such license agreement, including,
without limitation, the license agreements listed on Schedule 4 hereto, subject
in each case to the terms of such license agreements, including, without
limitation, terms requiring consent to a grant of a security interest; provided
that, for purposes hereof, the term "Copyright Licenses" shall not include those
rights which are not created by, or do not arise or exist under, the laws of the
United States or any State or political subdivision thereof.
"Credit Documents": as defined in the Collateral Agency
Agreement.
"Excluded Entities": Madison (Services) Pty. Ltd.; Revlon
(Aust.) Services Pty. Ltd.; Revlon Professional Holding Company LLC; Revlon
Pension Trustee Company (U.K.) Limited; and Revlon (Maesteg) Pension Trustee
Company Limited.
"First Lien Documents": as defined in the Collateral Agency
Agreement.
"First Lien Termination Date": as defined in the Collateral
Agency Agreement.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government (including, without limitation, any governmental department,
commission, board, bureau, agency or instrumentality, or other court or
arbitrator, in each case whether of the United States or foreign) and the
National Association of Insurance Commissioners.
"Guarantee Obligations": with respect to each Grantor, the
obligations of such Grantor under its Indenture Guarantee.
"Intellectual Property Security Agreements": a collective
reference to each Subsidiary Copyright Security Agreement, Subsidiary Patent
Security Agreement and Subsidiary
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Trademark Security Agreement, as applicable, made by certain of the Grantors in
favor of the Note Collateral Agent.
"Liens": as defined in the Indenture.
"Note Collateral Agent": Wilmington Trust Company and any
successors thereof appointed in accordance with the terms of the Collateral
Agency Agreement, in each case as collateral agent for the holders of the Note
Obligations.
"Note Obligation Documents": as defined in the Collateral
Agency Agreement.
"Note Obligations": as defined in the Collateral Agency
Agreement.
"Notice of an Actionable Event": as defined in the Collateral
Agency Agreement.
"Patents": with respect to each Grantor, all patents, patent
applications and patentable inventions, including, without limitation, each
patent and patent application identified in Schedule 2 attached hereto and made
a part hereof, and including without limitation (i) all inventions and
improvements described and claimed therein, (ii) the right to ▇▇▇ or otherwise
recover for any misappropriations 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 and future infringements
thereof), and (iv) all rights corresponding thereto throughout the United States
and all reissues, divisions, continuations, continuations-part, substitutes,
renewals, and extensions thereof, all improvements thereon and all other rights
of any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto; provided that, for purposes hereof, the term "Patents" shall not
include those rights which are not created by, or do not arise or exist under,
the laws of the United States or any State or political subdivision thereof.
"Patent Licenses": with respect to each Grantor, all license
agreements with any other Person in connection with any of the Patents of such
Grantor, or such other Person's patents, whether such Grantor is a licensor or
licensee under any such license agreement, including, without limitation, the
license agreements listed on Schedule 2 hereto, subject, in each case, to the
terms of such license agreements, including, without limitation, terms requiring
consent to the grant of a security interest; provided that, for purposes hereof,
the term "Patent Licenses" shall not include those rights which are not created
by, or do not arise or exist under, the laws of the United States or any State
or political subdivision thereof.
"Permitted Liens": as defined in the Indenture.
"Person": as defined in the Indenture.
"Requirement of Law": the Certificate of Incorporation and
By-Laws or other organizational or governing documents of a Grantor, and any
law, treaty, rule or regulation, or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon a
Grantor or any of its material property or to which such Grantor or any of its
material property is subject.
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"Secured Obligations": as defined in the Collateral Agency
Agreement.
"Subsidiaries Guarantee (Bank Obligations)": as defined in
the recitals hereto.
"Subsidiary": as defined in the Indenture.
"Trademarks": with respect to each Grantor, all trademarks,
service marks, trade names, trade dress or other indicia of trade origin,
trademark and service ▇▇▇▇ registrations, and applications for trademark or
service ▇▇▇▇ registrations and any renewals thereof, including, without
limitation, each registration and application identified in Schedule 3 attached
hereto and made a part hereof, and including without limitation (i) the right to
▇▇▇ or otherwise recover for any and all past, present and future infringements
and misappropriations thereof, (ii) 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 or future infringements thereof),
and (iii) all rights corresponding thereto throughout the United States and all
other rights of any kind whatsoever of such Grantor accruing thereunder or
pertaining thereto, together in each case with the goodwill of the business
connected with the use of, and symbolized by, each such trademark, service ▇▇▇▇,
trade name, trade dress or other indicia of trade origin; provided that, for
purposes hereof, the term "Trademarks" shall not include those rights which are
not created by, or do not arise or exist under, the laws of the United States or
any State or political subdivision thereof.
"Trademark Licenses": with respect to each Grantor, all
license agreements with any other Person in connection with any of the
Trademarks of such Grantor, or such other Person's trademarks, whether such
Grantor is a licensor or licensee under any such license agreement, including,
without limitation, the license agreements listed on Schedule 3 hereto, subject,
in each case, to the terms of such license agreements, including, without
limitation, terms requiring consent to the grant of a security interest;
provided that, for purposes hereof, the term "Trademark Licenses" shall not
include those rights which are not created by, or do not arise or exist under,
the laws of the United States or any State or political subdivision thereof.
"UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
(b) Other Definitional Provisions.
(i) The words "hereof," "herein" and "hereunder" and
words of similar 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 and paragraph references are to this Agreement unless otherwise
specified.
(ii) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
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2. Grant of Security Interest; Collateral Agency Agreement
Controls.
(a) As collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Guarantee Obligations, each Grantor hereby
grants to the Note Collateral Agent, for the benefit of the holders of the Note
Obligations, a security interest in all of the following property 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, which is
located in or exists under the laws of the United States or any State thereof
(collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Copyrights;
(v) all Copyright Licenses;
(vi) all Documents;
(vii) all Equipment;
(viii) all General Intangibles;
(ix) all Instruments;
(x) all Inventory;
(xi) all Patents;
(xii) all Patent Licenses;
(xiii) all Trademarks;
(xiv) all Trademark Licenses;
(xv) all books and records pertaining to the
Collateral; and
(xvi) to the extent not otherwise included, all
Proceeds (including, to the extent not otherwise included therein, all (a)
payments under insurance (whether or not the Note Collateral Agent is the loss
payee thereunder) or any indemnity, warranty or guarantee payable by reason of
loss or damage to or otherwise with respect to any of the foregoing Collateral
and (b) cash) and products of any and all of the foregoing.
Notwithstanding anything to the contrary contained herein, the Collateral
described herein shall constitute collateral security only for those Guarantee
Obligations with respect to which the Proceeds of such Collateral are applied
pursuant to Section 4.2(b) (or, if applicable, 4.8) and
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4.2(e) of the Collateral Agency Agreement and the Lien and security interest
provided hereby shall encumber the Collateral only to the extent of such
Guarantee Obligations.
(b) Collateral Agency Agreement Controls. Notwithstanding
anything to the contrary contained in this Agreement but subject to the last
sentence of this Section 2(b), all of the rights and obligations of the parties
hereto set forth herein are subject to the terms of the Collateral Agency
Agreement, which shall be controlling. Without limiting the generality of the
foregoing, the rights of the Note Collateral Agent and the holders of the Note
Obligations set forth herein relating to (i) the release of or realization upon
Collateral that is subject to Liens granted under the First Lien Documents, (ii)
amendments to or waivers in respect of this Agreement or any other Note
Obligation Document, (iii) the exercise of remedies with respect to Collateral
that is subject to Liens granted under the First Lien Documents, (iv) the right
to receive, hold and apply Proceeds that are subject to Liens granted under the
First Lien Documents and (v) all other matters addressed herein are granted
subject to, and shall be exercised in accordance with the terms of the
Collateral Agency Agreement. The terms of this Section 2(b) shall not prevent
the Note Collateral Agent from taking such actions or reasonably requesting any
Grantor to take such actions as are necessary to perfect or maintain the
perfection of the Note Collateral Agent's security interest in the Collateral,
nor shall such terms mitigate such Grantor's obligations hereunder to take such
actions, provide such information and deliver such documents, instruments and
certificates as may be necessary to perfect or maintain the perfection of such
security interest.
3. Representations and Warranties. Each Grantor hereby
represents and warrants that:
(a) Power and Authority. Such Grantor has the corporate or
other power and authority and the legal right to execute and deliver, to perform
its obligations under, and to grant the security interest in the Collateral
pursuant to, this Agreement and has taken all necessary corporate or other
action to authorize its execution, delivery and performance of, and grant of the
security interest in the Collateral pursuant to, this Agreement.
(b) Title; No Other Liens. Except for (i) the security
interest granted to the Note Collateral Agent pursuant to this Agreement and
(ii) Permitted Liens, such Grantor owns the legal and beneficial interest in
each item of the Collateral free and clear of any and all Liens or claims of
others. No security agreement, financing statement or other public notice with
respect to all or any part of the Collateral is on file or of record in any
public office (including, without limitation, the United States Copyright Office
or the United States Patent and Trademark Office), except such as have been
filed in favor of the Note Collateral Agent pursuant to this Agreement or such
as relate to Permitted Liens.
(c) Enforceable Obligation; Perfected, Second Priority
Security Interests. This Agreement constitutes a legal, valid and binding
obligation of such Grantor, enforceable in accordance with its terms. Upon the
"timely" (as defined in a manner consistent with the provisions of Section 205
of 17 U.S.C., Section 1060 of 15 U.S.C. and Section 261 of 35 U.S.C.) filing
from time to time of the relevant Intellectual Property Security Agreements with
the United States Patent and Trademark Office and the United States Copyright
Office and the filing of all necessary UCC financing statements with the
appropriate Governmental
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Authorities, the security interests (other than those in Proceeds, to the extent
that such security interests may be perfected under the UCC only by possession)
granted pursuant to this Agreement (i) will constitute second priority,
perfected security interests in the Collateral in favor of the Note Collateral
Agent, for the benefit of the holders of the Note Obligations, subject to
Permitted Liens, and (ii) will be enforceable as such against all creditors of
and purchasers from such Grantor (except purchasers of Inventory in the ordinary
course of business), in each case subject to the Collateral Agency Agreement,
and except as enforceability is affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(d) No Violation. The execution, delivery and performance
of this Agreement will not violate any provision of any material Requirement of
Law or Contractual Obligation of such Grantor and will not result in the
creation or imposition of any Lien on any of the properties or revenues of such
Grantor pursuant to any material Requirement of Law or Contractual Obligation of
such Grantor, except the security interests created hereby and Permitted Liens.
(e) No Consents Required. No consent or authorization of,
filing with, or other act by or in respect of, any arbitrator or Governmental
Authority and no consent of any other Person (including, without limitation, any
stockholder or creditor of such Grantor), is required (i) in connection with the
execution, delivery, performance, validity or enforceability of this Agreement
or (ii) for the perfection or maintenance of the pledge, assignment and security
interest created hereby, except for (w) the timely filing of the relevant
Intellectual Property Security Agreement with the United States Patent and
Trademark Office and the United States Copyright Office, (x) the filing of all
necessary UCC financing statements with the appropriate Governmental
Authorities, (y) any such consents the absence of which, in the aggregate, would
not be reasonably likely to have a material adverse effect on the Collateral and
(z) any consents, licenses, permits, approvals or authorizations, exemptions,
registrations, filings or declarations which have already been obtained and
remain in full force and effect.
(f) No Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of such Grantor, threatened by or against it or against any of
its properties or revenues with respect to this Agreement or any of the
transactions contemplated hereby.
(g) Inventory. All Inventory that constitutes Collateral
that is owned by such Grantor has been produced in accordance with all
requirements of the Fair Labor Standards Act.
(h) Chief Executive Office. On the date hereof, the chief
executive office and chief place of business of each Grantor hereunder is set
forth on Schedule 5 hereto.
(i) Farm Products. None of the Collateral constitutes, or
is the Proceeds of, Farm Products.
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4. Covenants. Each Grantor covenants and agrees with the Note
Collateral Agent for the benefit of the holders of the Note Obligations that,
from and after the date of this Agreement until this Agreement is terminated and
the security interests created hereby are released:
(a) Delivery of Instruments and Chattel Paper. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or Chattel
Paper shall be immediately delivered to the Controlling Collateral Agent, duly
indorsed in a manner satisfactory to the Controlling Collateral Agent, to be
held as Collateral pursuant to this Agreement and the Collateral Agency
Agreement.
(b) Maintenance of Property. Such Grantor will keep its
Inventory in good saleable order and condition in accordance with its past
practice.
(c) Inspection of Property; Books and Records; Discussions.
Such Grantor will keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all material Requirements of Law
shall be made of all dealings and transactions in relation to the Collateral.
Upon reasonable advance notice and during normal business hours, such Grantor
will permit representatives of the Note Collateral Agent to visit and inspect
any of such Grantor's properties where any of such Collateral or any of such
Grantor's books and records relating to such Collateral are located and to
inspect such Collateral and to examine and make abstracts from any of its books
and records as often as may reasonably be desired and to discuss the condition
and operation of such Collateral with officers and employees of such Grantor and
with its independent certified public accountants.
(d) Marking of Records. To the extent necessary to provide
the Note Collateral Agent with a perfected security interest in the Collateral,
such Grantor will ▇▇▇▇ its books and records pertaining to the Collateral
granted by it to evidence this Agreement and the security interests created
hereby.
(e) Maintenance of Insurance. Such Grantor will maintain,
with financially sound and reputable companies, insurance on its property and
against such liabilities in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business. All such insurance shall (A) provide
that no cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after receipt by the
Controlling Collateral Agent of written notice thereof, (B) name the
Administrative Agent, for the benefit of the holders of the Bank Obligations,
and the Note Collateral Agent, for the benefit of the holders of the Note
Obligations, as insured parties as their interests may appear (without any
representation or warranty by, or obligation upon, the Administrative Agent, any
holder of the Bank Obligations, the Note Collateral Agent or any holder of the
Note Obligations) and (C) be reasonably satisfactory in all other respects to
the Controlling Collateral Agent. Such Grantor shall at any time and from time
to time upon the reasonable request of the Note Collateral Agent promptly
deliver to the Note Collateral Agent a report of a reputable insurance broker
with respect to such insurance maintained by it.
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(f) Payment of Obligations. Such Grantor will pay and
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all taxes, assessments and governmental charges
or levies (other than maintenance payments for Patents, to the extent that such
Grantor is permitted to abandon such Patent in accordance with the terms of the
Credit Documents) imposed upon the Collateral granted by it or in respect of
income or profits therefrom, as well as all claims of any kind (including,
without limitation, claims for labor, materials and supplies) against or with
respect to such Collateral, except that no such tax, assessment, charge or levy
need be paid if the amount or validity thereof is currently being contested in
good faith by appropriate proceedings, reserves (if required) in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings do not involve any material danger of the sale, forfeiture or
loss of any of such Collateral or any interest therein.
(g) Limitation on Dispositions and Liens; Further
Documentation.
(i) Such Grantor will not sell, transfer, lease or
otherwise dispose of any of the Collateral granted by it in violation of the
terms of the Indenture.
(ii) Such Grantor (A) will not create, incur or permit
to exist any Lien or claim on or to the Collateral granted by it, other than the
Liens created hereby and Permitted Liens, (B) will maintain the security
interest created by this Agreement as a second priority, perfected security
interest, subject to Permitted Liens and (C) will defend such security interest
against claims and demands of all Persons whomsoever, other than in the case of
Permitted Liens.
(iii) At any time and from time to time, upon the
written request of the Note Collateral Agent, and at the sole expense of such
Grantor, such Grantor will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Note Collateral
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code in effect in any jurisdiction with
respect to the security interests created hereby and the filing of the relevant
Intellectual Property Security Agreement with the United States Patent and
Trademark Office and the United States Copyright Office (which financing
statements have been delivered to the Note Collateral Agent in form suitable for
filing prior to or on the date hereof).
(iv) Nothing contained herein shall obligate such
Grantor to pay any maintenance fee, renewal fee, annuity or take any steps to
maintain any Patent, Trademark or Copyright which such Grantor reasonably
determines is of no or negligible value to the Company and its Subsidiaries.
(h) Change of Name, etc. Such Grantor will not change its
name, identity or corporate structure or the jurisdiction of its incorporation
or organization to such an extent that any financing statement filed by the Note
Collateral Agent in connection with this Agreement would become seriously
misleading, unless it shall have given the Note Collateral Agent at least 30
days' prior written notice of such change.
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(i) Further Identification of Collateral. Such Grantor will
furnish to the Note Collateral Agent from time to time statements and schedules
further identifying and describing the Collateral granted by it and such other
reports in connection with such Collateral as the Note Collateral Agent may
reasonably request, all in reasonable detail.
(j) Notices. Such Grantor will advise the Note Collateral
Agent promptly, in reasonable detail, at the Note Collateral Agent's address set
forth in the Collateral Agency Agreement, or at such other address as the Note
Collateral Agent may provide to such Grantor by notice as provided in Section
13, of:
(i) any Lien (other than Liens created hereby and any
Permitted Liens) on, or claim (other than claims arising in the ordinary course
of business which are not reasonably likely to have a material adverse effect on
the value of the Collateral granted by such Grantor) asserted against, any of
the Collateral granted by it; and
(ii) the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the aggregate value
of the Collateral granted by it or on the security interests created hereby.
(k) Indemnification. Such Grantor agrees to pay, and to
save the Note Collateral Agent and the holders of the Note Obligations from, any
and all liabilities, costs and expenses (including, without limitation,
reasonable and documented legal fees, charges and expenses) (A) with respect to,
or resulting from any delay by such Grantor in paying, any and all excise, sales
or other taxes which may be payable or determined to be payable with respect to
any of the Collateral granted by it, (B) with respect to, or resulting from, any
delay by such Grantor in complying with any Requirement of Law applicable to any
of the Collateral granted by it and (C) in connection with any of the
transactions contemplated by this Agreement (including, without limitation, the
enforcement of this Agreement in accordance with the Collateral Agency
Agreement).
5. Provisions Relating to Accounts.
(a) Grantor Remains Liable under Accounts. Anything herein
to the contrary notwithstanding, each Grantor shall remain liable under each of
the Accounts to which it is a party to observe and perform all the conditions
and obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to each such Account. Neither the
Note Collateral Agent nor any holder of the Note Obligations shall have any
obligation or liability under any such Account (or any agreement giving rise
thereto) by reason of or arising out of this Agreement or the receipt by the
Note Collateral Agent or such holder of the Note Obligations of any payment
relating to such Account pursuant hereto, nor shall the Note Collateral Agent or
any holder of the Note Obligations be obligated in any manner to perform any of
the obligations of such Grantor under or pursuant to any Account to which such
Grantor is a party (or any agreement giving rise thereto), to make any payment,
to make any inquiry as to the nature or the sufficiency of any payment received
by it or as to the sufficiency of any performance by any party under any such
Account (or any agreement giving rise thereto), to present or file any claim, to
take any action to enforce any performance or to collect the
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payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times.
(b) Analysis of Accounts. After the First Lien Termination
Date, the Note Collateral Agent shall have the right to make test verifications
of the Accounts in any manner and through any medium that it reasonably
considers advisable, and each Grantor shall furnish all such assistance and
information as the Note Collateral Agent reasonably may require in connection
with such test verifications. At any time and from time to time, upon the Note
Collateral Agent's request (at reasonable intervals) and at the expense of such
Grantor, each Grantor shall furnish to the Note Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Accounts to which such Grantor is a party. After the First Lien Termination
Date, the Note Collateral Agent in its own name or in the name of others may
communicate with account debtors on the Accounts to verify with them to the Note
Collateral Agent's reasonable satisfaction the existence, amount and terms of
any Accounts; provided that, during such time as no Notice of an Actionable
Event has been given and remains outstanding, the Note Collateral Agent may
communicate with any such account debtors only in coordination with the relevant
Grantor (or the Company as its agent) and such Grantor hereby agrees to
coordinate and effectuate any such communication which reasonably is requested
by the Note Collateral Agent within 15 days following the Note Collateral
Agent's request therefor.
(c) Collections on Accounts.
(i) The Grantor is authorized to collect the Accounts
to which such Grantor is a party, subject to the Controlling Collateral Agent's
direction and control, and the Controlling Collateral Agent may curtail or
terminate said authority at any time after a Notice of an Actionable Event has
been given and remains outstanding and may direct that payments on the Accounts
be made directly to the Controlling Collateral Agent in accordance with the
provisions of Section 8(a) hereof. If required by the Controlling Collateral
Agent at any time after a Notice of an Actionable Event has been given and
remains outstanding, any payments of Accounts, when collected by a Grantor, (A)
shall be forthwith (and, in any event, within two Business Days) deposited by
such Grantor in the exact form received, duly indorsed by such Grantor to the
Controlling Collateral Agent, if required, in the Collateral Account, subject to
withdrawal by the Controlling Collateral Agent only as provided in subsection 8
(c), and (B) until so turned over, shall be held by such Grantor in trust for
the Controlling Collateral Agent and the other holders of the Secured
Obligations (or, if the Note Collateral Agent is the Controlling Collateral
Agent, the Note Obligations), segregated from other funds of such Grantor.
(ii) Each such deposit of Proceeds of Accounts shall be
accompanied by a report identifying in reasonable detail the nature and source
of the payments included in the deposit.
(iii) At the Controlling Collateral Agent's request at
any time when a Notice of an Actionable Event has been given and remains
outstanding, each Grantor shall deliver to the Controlling Collateral Agent all
original and other documents evidencing, and relating to, the agreements and
transactions which gave rise to the Accounts to which such
13
Grantor is a party, including, without limitation, all original orders, invoices
and shipping receipts.
(d) Representations and Warranties. Each Grantor hereby
represents and warrants that:
(i) No amount payable to such Grantor under or in
connection with any Account is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Controlling Collateral Agent.
(ii) The place where such Grantor keeps its records
concerning the Accounts on the date hereof is the location set forth on Schedule
5 hereto with respect to such Grantor.
(iii) None of the obligors on any Accounts to which
such Grantor is a party is a Governmental Authority, other than as set forth on
Schedule 7.
(e) Covenants. Each Grantor covenants and agrees with the
Note Collateral Agent for the benefit of the holders of the Note Obligations
that, from and after the date of this Agreement until this Agreement is
terminated and the security interests created hereby are released:
(i) The amount represented by such Grantor to the
Controlling Collateral Agent from time to time in any report required to be
delivered hereunder by each account debtor or by all account debtors in respect
of the Accounts to which such Grantor is a party will at such time be the
correct amount actually owing by such account debtor or debtors thereunder.
(ii) Such Grantor will not amend, modify, terminate or
waive any agreement giving rise to an Account to which it is a party in any
manner which could reasonably be expected to materially adversely affect the
value of such Account as Collateral.
(iii) Such Grantor will not fail to exercise promptly
and diligently each and every material right which it may have under each
agreement giving rise to an Account to which it is a party (other than any right
of termination and other than such rights as such Grantor might reasonably elect
to forego in the ordinary course of business in accordance with past practice
when all such failures to exercise such rights would not, in the aggregate, be
reasonably likely to materially impair the value of the Collateral provided by
such Grantor hereunder).
(iv) Such Grantor will not fail to deliver to the
Controlling Collateral Agent a copy of each material demand, notice or document
received by it relating in any way to any agreement giving rise to an Account to
which such Grantor is a party, except to the extent that the matters contained
in such demand, notice or document would not be reasonably likely to have a
material adverse effect on the Collateral provided by such Grantor hereunder.
14
(v) Other than in the ordinary course of business as
generally conducted by such Grantor over a period of time, such Grantor will not
grant any extension of the time of payment of any of the Accounts to which it is
a party, compromise, compound or settle the same for less than the full amount
thereof, release, wholly or partially, any Person liable for the payment
thereof, or allow any credit or discount whatsoever thereon.
(vi) Such Grantor will not remove its books and records
from the location specified in paragraph 5(d)(ii), unless such Grantor shall
have provided 30 days' prior written notice to the Note Collateral Agent and
duly completed UCC financing statements shall have been filed in any filing
offices necessary to provide the Note Collateral Agent with a second priority,
perfected security interest, subject to Permitted Liens, in such books and
records in the jurisdiction to which they have been removed.
(vii) In any suit, proceeding or action brought by the
Note Collateral Agent pursuant to Section 8 or 9 hereof under any Account to
which such Grantor is a party for any sum owing thereunder, or to enforce any
provisions of any Contract to which it is a party, such Grantor will save,
indemnify and keep the Note Collateral Agent and the holders of the Note
Obligations harmless from and against all expense (including, without
limitation, the reasonable and documented fees, charges and expenses of
counsel), loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction or liability whatsoever of the account
debtor thereunder, arising out of a breach by such Grantor of any obligation
thereunder or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of such account debtor or its successors from such
Grantor.
6. Provisions Relating to Contracts.
(a) Grantor Remains Liable under Contracts. Anything herein
to the contrary notwithstanding, each Grantor shall remain liable under each of
the Contracts to which it is a party to observe and perform all the conditions
and obligations to be observed and performed by it thereunder, all in accordance
with and pursuant to the terms and provisions of each such Contract. Neither the
Note Collateral Agent nor any holder of the Note Obligations shall have any
obligation or liability under any Contract by reason of or arising out of this
Agreement or the receipt by the Note Collateral Agent or any such holder of the
Note Obligations of any payment relating to such Contract pursuant hereto, nor
shall the Note Collateral Agent or any holder of the Note Obligations be
obligated in any manner to perform any of the obligations of such Grantor under
or pursuant to any such Contract, to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party under any such Contract, to present
or file any claim, to take any action to enforce any performance or to collect
the payment of any amounts which may have been assigned to it or to which it may
be entitled at any time or times.
(b) Communication With Contracting Parties. After the First
Lien Termination Date, the Note Collateral Agent in its own name or in the name
of others may communicate with parties to the Contracts to verify with them to
the Note Collateral Agent's satisfaction the existence, amount and terms of any
Contracts; provided that, during such time after the First Lien, Termination
Date as no Notice of an Actionable Event has been given and remains outstanding,
the Note Collateral Agent may communicate with any such parties only in
15
coordination with the Grantor party to such Contract and such Grantor hereby
agrees to coordinate and effectuate any such communication which reasonably is
requested by the Note Collateral Agent within 15 days following the Note
Collateral Agent's request therefor.
(c) Representations and Warranties. Each Grantor hereby
represents and warrants that:
(i) No consent of any party (other than such Grantor)
to any Contract to which such Grantor is a party is required, or purports to be
required, in connection with the execution, delivery and performance of this
Agreement.
(ii) Except to the extent permitted pursuant to Section
6(d)(ii), each Contract to which such Grantor is a party is in full force and
effect and constitutes a valid and legally enforceable obligation of such
Grantor and (to the knowledge of such Grantor) the other parties thereto, except
as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(iii) No consent or authorization of, filing with or
other act by or in respect of any Governmental Authority is required in
connection with the execution, delivery, performance, validity or enforceability
of any of the Contracts to which such Grantor is a party by such Grantor or (to
the knowledge of such Grantor) any other party thereto other than those which
have been duly obtained, made or performed, are in full force and effect and do
not subject the scope of any such Contract to any material adverse limitation,
either specific or general in nature.
(iv) Neither such Grantor nor (to the best of its
knowledge) any other party to any Contract to which such Grantor is a party is
in default or is reasonably likely to become in default in the performance or
observance of any of the terms thereof, except to the extent that such default
would not be reasonably likely to have a material adverse effect on the
Collateral provided by such Grantor hereunder.
(v) Such Grantor has performed in all material respects
in accordance with the terms thereof all obligations of such Grantor under each
Contract to which it is a party.
(vi) The right, title and interest of such Grantor in,
to and under each Contract to which such Grantor is a party are not subject to
any defense, offset, counterclaim or claim which would materially adversely
affect the value of the Collateral provided by such Grantor hereunder.
(vii) No amount payable to such Grantor under or in
connection with any Contract to which such Grantor is a party is evidenced by
any Instrument or Chattel Paper which has not been delivered to the Controlling
Collateral Agent.
(viii) None of the parties to any Contracts to which
such Grantor is a party is a Governmental Authority.
16
(d) Covenants. Each Grantor covenants and agrees with the
Note Collateral Agent for the benefit of the holders of the Note Obligations
that, from and after the date of this Agreement until this Agreement is
terminated and the security interests created hereby are released:
(i) Such Grantor will perform and comply in all
material respects with all its obligations under the Contracts to which it is a
party and all its other Contractual Obligations relating to the Collateral.
(ii) Except in the ordinary course of its business in
accordance with past practice, such Grantor will not amend, modify, terminate or
waive any provision of any Contract to which it is a party in any manner which
could reasonably be expected to materially adversely affect the value of such
Contract as Collateral.
(iii) Such Grantor will not fail to exercise promptly
and diligently each and every material right which it may have under each
Contract to which it is a party (other than any right of termination and other
than such rights as such Grantor might reasonably elect to forego in the
ordinary course of business in accordance with past practice when all such
failures to exercise such rights would not, in the aggregate, be reasonably
likely to materially impair the value of the Collateral provided by such Grantor
hereunder).
(iv) Such Grantor will not fail to deliver to the
Controlling Collateral Agent a copy of (A) each Contract of which the
Controlling Collateral Agent reasonably has so requested, including all
amendments, supplements and other modifications thereto (subject to any
confidentiality or other similar restrictions contained therein) and (B) each
material demand, notice or document received by it relating in any way to any
Contract to which it is a party, except (in the case of this clause (B) only) to
the extent that the matters contained in such demand, notice or document would
not be reasonably likely to have a material adverse effect on the Collateral
provided by such Grantor hereunder.
(v) In any suit, proceeding or action brought by the
Note Collateral Agent pursuant to Section 8 or 9 hereof under any Contract to
which such Grantor is a party for any sum owing thereunder, or to enforce any
provisions of any such Contract, such Grantor will save, indemnify and keep the
Note Collateral Agent and the holders of the Note Obligations harmless from and
against all expense (including, without limitation, the reasonable and
documented fees, charges and expenses of counsel), loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the obligor thereunder, arising out of a breach by such
Grantor of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to or in favor of such obligor or
its successors from such Grantor.
7. Provisions Relating to Patents, Trademarks and Copyrights.
(a) Representations and Warranties. Each Grantor hereby
represents and warrants that:
(i) Schedule 2 hereto includes all registered Patents
and Patent applications, and all Patent Licenses, owned by such Grantor in its
own name as of the date
17
hereof. Such Grantor has made all necessary filings and recordations to protect
and maintain its interest in the Patents set forth in Schedule 2, including,
without limitation, all necessary filings and recordings, and payment of all
maintenance fees, in the United States Patent and Trademark Office.
(ii) Schedule 3 hereto includes all registered
Trademarks, Trademark applications, and Trademark Licenses, owned by such
Grantor in its own name as of the date hereof (other than the registered
Trademarks and Trademark applications which have been abandoned as of the date
hereof). Such Grantor has made all necessary filings and recordations to protect
and maintain its interest in the Trademarks set forth in Schedule 3, including,
without limitation, all necessary filings and recordings in the United States
Patent and Trademark Office.
(iii) Schedule 4 hereto includes all Copyright
registrations owned by such Grantor in its own name as of the date hereof which
are in use on the date hereof or have been in use at any time during the
immediately preceding four years. Such Grantor has made all necessary filings
and recordations to protect and maintain its interest in the Copyrights set
forth in Schedule 4, including, without limitation, all necessary filings and
recordings in the United States Copyright Office.
(iv) Except to the extent disclosed in Schedules 2, 3
or 4, respectively, as of the date hereof, each such Patent, Trademark and
Copyright set forth in Schedule 2, 3, or 4, respectively (but other than any
applications listed on such Schedules), is subsisting and has not been
abandoned, and, to the best of such Grantor's knowledge, is valid and
enforceable.
(v) As of the date hereof, except for the Patent
Licenses, Trademark Licenses and Copyright Licenses set forth in Schedule 2, 3,
or 4, respectively, such Grantor has not made a previous assignment, license,
sale, transfer or agreement constituting a present or future assignment or
encumbrance of any of or on any of the Patents, Trademarks or Copyrights, except
for Permitted Liens. Except to the extent disclosed in Schedule 2, 3, or 4,
respectively, such Grantor has not granted any release, covenant not to ▇▇▇, or
non-assertion assurance to any Person with respect to any material Patent,
Patent License, Trademark, Trademark License, Copyright or Copyright License.
(vi) No holding, decision or judgment has been rendered
by any Governmental Authority which would limit, cancel or question the
validity, registrability or enforceability of any material Patent, Trademark or
Copyright.
(vii) Such Grantor has no knowledge of the existence of
any right or any claim that is likely to be made under or against any material
Patent, Trademark or Copyright set forth in Schedule 2, 3 or 4.
(viii) To the best knowledge of such Grantor, no claim
has been made and is continuing or threatened that the use by such Grantor of
any material Patent, Trademark or Copyright is invalid or unenforceable or that
the use by such Grantor of any Patent, or any Trademark or Copyright which
constitutes a material portion of the Collateral of
18
such Grantor, does or may violate the rights of any Person. To the best of such
Grantor's knowledge, there is currently no infringement or unauthorized use of
any material Patent, Trademark or Copyright set forth in Schedule 2, 3 or 4,
other than any such infringement or unauthorized use which is set forth in
Schedule 2, 3 or 4.
(ix) No action or proceeding is pending (A) seeking to
limit, cancel or question the validity of any such material Patent, Trademark or
Copyright set forth in Schedule 2, 3 or 4, or (B) which, if adversely
determined, would be reasonably likely to have a material adverse effect on the
value of any such Patent, Trademark or Copyright.
(b) Covenants. Each Grantor covenants and agrees with the
Note Collateral Agent for the benefit of the holders of the Note Obligations
that, from and after the date of this Agreement until this Agreement is
terminated and the security interests created hereby are released:
(i) Such Grantor (either itself or through licensees)
will, except with respect to any Trademark that such Grantor shall reasonably
determine is of negligible economic value to it or (during such time as no
Notice of an Actionable Event has been given and remains outstanding) to the
extent consistent with its ordinary course of business in accordance with past
practice, (A) continue to use each Trademark on each and every trademark class
of goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (B) maintain as in the past the
quality of products and services offered under such Trademark, (C) employ such
Trademark with any appropriate notice of registration, (D) not adopt or use any
▇▇▇▇ in the United States which is confusingly similar or a colorable imitation
of such Trademark unless the Note Collateral Agent, for the benefit of the
holders of the Note Obligations, shall obtain a perfected security interest in
such ▇▇▇▇ pursuant to this Agreement, and (E) not (and not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do any act whereby
any Trademark would be reasonably likely to become invalid or unenforceable.
(ii) Such Grantor will not, except with respect to any
Patent that such Grantor shall reasonably determine is of negligible economic
value to it, do any act, or omit to do any act, whereby any Patent may become
invalid, unenforceable, abandoned or dedicated.
(iii) Such Grantor will not, except with respect to any
registered Copyright that such Grantor shall reasonably determine is of
negligible economic value to it, do any act, or omit to do any act, whereby any
registered Copyright may become invalid, unenforceable, abandoned or dedicated.
(iv) Such Grantor will notify the Note Collateral Agent
promptly if it knows, or has reason to know, that any application or
registration relating to any material Patent, Trademark or Copyright may become
abandoned or dedicated, and of any adverse determination or material adverse
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal)
19
regarding such Grantor's ownership of any Patent, Trademark or Copyright or its
right to register the same or to keep and maintain the same.
(v) Such Grantor agrees that, in the event that it
shall at any time and from time to time obtain an ownership interest in any
Patent, Trademark or Copyright, the provisions of Section 2 shall automatically
apply thereto and any such Patent, Trademark or Copyright, as the case may be,
shall automatically become part of the Collateral.
(vi) Whenever (A) such Grantor, either by itself or
through any agent, employee, licensee or designee, shall file an application for
the registration of any Patent or Trademark with the United States Patent and
Trademark Office, or for the registration of any Copyright with the United
States Copyright Office, or shall acquire any Patent, Trademark or Copyright,
and (B) if the First Lien Termination Date has not occurred, the Grantor
executes and delivers any agreements, instruments, documents or papers to
evidence the Administrative Agent's security interest in any such application,
Patent, Trademark or Copyright, such Grantor shall report such filing or
acquisition to the Note Collateral Agent within 20 Business Days after the last
day of the fiscal quarter in which such filing or acquisition occurs and shall
execute and deliver any and all agreements, instruments, documents, and papers
as may be necessary (or as the Note Collateral Agent otherwise may reasonably
request) to evidence the Note Collateral Agent's security interest in any
Patent, Trademark or Copyright, and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby, which security interest shall
be subject to the terms of the Collateral Agency Agreement.
(vii) Except with respect to any Patent, Trademark or
Copyright which such Grantor reasonably determines is of negligible economic
value, such Grantor will take all reasonable and necessary steps, including,
without limitation, in any proceeding before the United States Patent and
Trademark Office or the United States Copyright Office, or any court or
tribunal, to maintain and pursue each application (and to obtain the relevant
registration) and to maintain each registration of the Patents, Trademarks and
Copyrights, including, without limitation, the filing of responses to office
actions issued by the United States Patent and Trademark Office, the filing of
applications for renewal, reissue or extension, affidavits of use and affidavits
of incontestability and the participation in opposition, cancellation,
interference, reexamination, infringement and misappropriation proceedings, and
the payment of maintenance fees.
(viii) In the event that any material Patent, Trademark
or Copyright included in the Collateral is infringed or misappropriated by a
third party, such Grantor shall promptly notify the Note Collateral Agent of
such infringement or misappropriation and shall, unless such Grantor shall
reasonably determine that such Patent, Trademark or Copyright is of negligible
economic value to such Grantor (which determination such Grantor shall promptly
report to the Note Collateral Agent), promptly ▇▇▇ for infringement or
misappropriation, to seek injunctive relief where appropriate and seek to
recover any and all damages for such infringement or misappropriation, or take
such other actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Patent, or Trademark or Copyright.
20
(ix) Notwithstanding anything to the contrary contained
in this Section 7(b), each Grantor shall have the right to license its Patents
and Trademarks to third parties on an arms' length basis (and, during such time
as no Notice of an Actionable Event has been given and remains outstanding, to
retain the proceeds thereof); provided, except with respect to Trademarks and
Patents which constitute an asset permitted to be sold, transferred or otherwise
disposed of pursuant to the Credit Documents or with respect to which the only
substantial use by such Grantor and its Subsidiaries is in connection with a
business permitted to be sold, transferred or otherwise disposed of pursuant to
the Credit Documents, that any such license of (i) a Trademark shall be for use
with respect to products which are not reasonably likely to be competitive with
those produced and/or marketed by the Company and its Subsidiaries and (ii) a
Patent shall be for applications which would not be reasonably likely to
diminish the value of any product line of the Company and its Subsidiaries. The
Note Collateral Agent and each holder of a Note Obligation by its acceptance of
such Note Obligation acknowledges and agrees that any security interest held by
the Note Collateral Agent hereunder in any Patent or Trademark which is licensed
in accordance with the provisions of this clause (ix) shall be subordinate to
such license agreement.
8. Remedies.
(a) Notice to Account Debtors and Contract Parties. Upon
the request of the Controlling Collateral Agent at any time after a Notice of an
Actionable Event has been given and remains outstanding, each Grantor shall
notify account debtors on the Accounts to which such Grantor is a party and
parties to the Contracts to which such Grantor is a party that such Accounts and
Contracts have been assigned to the Controlling Collateral Agent and that
payments in respect thereof shall be made directly to the Controlling Collateral
Agent.
(b) Proceeds to be Turned Over To Controlling Collateral
Agent. In addition to the rights specified in subsection 5(c) with respect to
payments of Accounts, if a Notice of an Actionable Event shall have been given
and remain outstanding, all Proceeds consisting of cash, checks and other
near-cash items received by each Grantor on account of any Collateral shall be
held by such Grantor in trust for the Controlling Collateral Agent and the
holders of the Secured Obligations (or, if the Note Collateral Agent is the
Controlling Collateral Agent, the Note Obligations), segregated from other funds
of such Grantor, and shall, forthwith upon receipt by such Grantor, be turned
over to the Controlling Collateral Agent in the exact form received by such
Grantor (duly indorsed by such Grantor to the Controlling Collateral Agent, if
required) and held by the Controlling Collateral Agent in the Collateral
Account. All Proceeds while held by the Controlling Collateral Agent in the
Collateral Account (or by such Grantor in trust for the Controlling Collateral
Agent and the holders of the Secured Obligations (or, if the Note Collateral
Agent is the Controlling Collateral Agent, the Note Obligations)) shall continue
to be held as collateral security for all the Secured Obligations (or, if the
Note Collateral Agent is the Controlling Collateral Agent, the Note Obligations)
and shall not constitute payment thereof until applied as provided in subsection
8(c).
(c) Application of Proceeds. The application of Proceeds
held in the Collateral Account shall be made in accordance with and governed by
the terms of the Collateral Agency Agreement.
21
(d) UCC Remedies. If a Notice of an Actionable Event has
been given and remains outstanding, the Controlling Collateral Agent, on behalf
of the holders of the Secured Obligations (or, if the Note Collateral Agent is
the Controlling Collateral Agent, the Note Obligations), may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Guarantee Obligations, but subject to the terms of the Collateral Agency
Agreement, all rights and remedies of a secured party under the UCC. Without
limiting the generality of the foregoing, the Controlling Collateral Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), when a Notice
of an Actionable Event has been given and remains outstanding, subject to the
terms of the Collateral Agency Agreement, forthwith may collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Controlling Collateral Agent or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Controlling Collateral Agent or any holder of
the Secured Obligations (or, if the Note Collateral Agent is the Controlling
Collateral Agent, the Note Obligations) shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in any Grantor, which right or equity is
hereby waived or released. Each Grantor further agrees, at the Controlling
Collateral Agent's request, to assemble the Collateral and make it available to
the Controlling Collateral Agent at places which the Controlling Collateral
Agent shall reasonably select, whether at a Grantor's premises or elsewhere. The
Controlling Collateral Agent shall apply the proceeds of any such collection,
recovery, receipt, appropriation, realization or sale in accordance with the
Collateral Agency Agreement. To the extent permitted by applicable law, each
Grantor waives all claims, damages and demands it may acquire against the
Controlling Collateral Agent arising out of the exercise by them of any rights
hereunder, except to the extent arising out of the gross negligence or willful
misconduct of the Controlling Collateral Agent. If any notice of a proposed sale
or other disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least 10 days before such sale or
other disposition. All waivers by any Grantor of rights (including rights to
notice), and all rights and remedies afforded the Controlling Collateral Agent
herein, and all other provisions of this Agreement, are expressly made subject
to any applicable mandatory provisions of law limiting, or imposing conditions
(including conditions as to reasonableness) upon, such waivers or the
effectiveness thereof or any such rights and remedies.
(e) Intellectual Property. In the event of any sale,
assignment or other disposition of any of the Patents, Patent Licenses,
Trademarks, Trademark Licenses, Copyrights or Copyright Licenses of any Grantor
pursuant to this Section 8, the goodwill of the business connected with and
symbolized by any Trademarks subject to such disposition shall be included, and
such Grantor shall supply to the Controlling Collateral Agent or its designee
such Grantor's know-how and expertise, and any documents and things embodying
the same, relating to the manufacture, distribution, advertising and sale of
products or the provision of services relating to
22
any Patent, Patent License, Trademark, Trademark License, Copyright or Copyright
License subject to such disposition, and such Grantor's customer lists and other
records and documents relating to such Patent, Patent License, Trademark,
Trademark License, Copyright or Copyright License and to the manufacture,
distribution, advertising and sale of such products and services.
(f) Deficiency. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
granted by it are insufficient to pay its Guarantee Obligations and the
reasonable and documented fees, charges and disbursements of any attorneys
employed by the Note Collateral Agent to collect such deficiency.
9. Note Collateral Agent's Appointment as Attorney-in-Fact;
Note Collateral Agent's Performance of Grantor's Obligations.
(a) Powers. Each Grantor hereby irrevocably constitutes and
appoints the Note Collateral Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Grantor and in
the name of such Grantor or in its own name, from time to time in the Note
Collateral Agent's reasonable discretion, for the purpose of carrying out the
terms of this Agreement, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the generality
of the foregoing, each Grantor hereby gives the Note Collateral Agent the power
and right, on behalf of such Grantor, without notice to or assent by such
Grantor, to do the following, subject to the terms of the Collateral Agency
Agreement:
(i) at any time when a Notice of an Actionable Event
has been given and remains outstanding, in the name of such Grantor or its own
name, or otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of moneys due
under any Account, Instrument, General Intangible or Contract or with respect to
any other Collateral and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise reasonably deemed
appropriate by the Note Collateral Agent for the purpose of collecting any and
all such moneys due under any Account, Instrument, General Intangible or
Contract or with respect to any other Collateral whenever payable;
(ii) in the case of any Patents, Trademarks or
Copyrights, to execute and deliver any and all agreements, instruments,
documents, and papers as the Note Collateral Agent reasonably may request to
evidence the Note Collateral Agent's security interest in any Patent, Trademark
or Copyright and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby;
(iii) to pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral granted by such Grantor, to
effect any repairs or any insurance called for by the terms of this Agreement
and to pay all or any part of the premiums therefor and the costs thereof;
23
(iv) to execute, in connection with the sale provided
for in Section 8(d) hereof, any indorsements, assignments or other instruments
of conveyance or transfer with respect to the Collateral granted by such
Grantor; and
(v) at any time when a Notice of an Actionable Event
has been given and remains outstanding, (A) to direct any party liable for any
payment under any of the Collateral granted by such Grantor to make payment of
any and all moneys due or to become due thereunder directly to the Note
Collateral Agent or as the Note Collateral Agent shall direct; (B) to ask or
demand for, collect, receive payment of and receipt for, any and all moneys,
claims and other amounts due or to become due at any time in respect of or
arising out of any Collateral granted by such Grantor; (C) to sign and indorse
any invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral granted by such Grantor; (D)
to commence and prosecute any suits, actions or proceedings at law or in equity
in any court of competent jurisdiction to collect the Collateral granted by such
Grantor or any thereof and to enforce any other right in respect of any such
Collateral; (E) to defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral granted by it; (F) to settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith, to
give such discharges or releases as the Note Collateral Agent may deem
appropriate; (G) to assign any Patent, Trademark or Copyright (along with the
goodwill of the business to which any such Patent, Trademark or Copyright
pertains), for such term or terms, on such conditions, and in such manner, as
the Note Collateral Agent shall in its sole discretion determine; and (H)
generally, to sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral granted by such Grantor as fully and
completely as though the Note Collateral Agent were the absolute owner thereof
for all purposes, and to do, at the Note Collateral Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and things which
the Note Collateral Agent reasonably deems necessary to protect, preserve or
realize upon the Collateral granted by such Grantor and the Note Collateral
Agent's security interests therein and to effect the intent of this Agreement,
all as fully and effectively as such Grantor might do.
(b) Performance by Note Collateral Agent of Grantor's
Obligations. If any Grantor fails to perform or comply with any of its
agreements contained herein, the Note Collateral Agent, at its option, but
without any obligation so to do and subject to the terms of the Collateral
Agency Agreement, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) Grantor's Reimbursement Obligation. The reasonable and
documented expenses of the Note Collateral Agent incurred in connection with
actions undertaken as provided in this Section, together with interest thereon
at a rate per annum equal to 5-3/4% above the Alternate Base Rate (as defined in
the Credit Agreement) (or, if the Credit Agreement is not in effect, 12%), from
the date of payment by the Note Collateral Agent to the date reimbursed by a
Grantor, shall be payable by the Grantors to the Note Collateral Agent on
demand.
(d) Ratification; Power Coupled With An Interest. Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof. All
24
powers, authorizations and agencies contained in this Agreement are coupled
with an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
10. Duty of Note Collateral Agent. The Note Collateral Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the UCC or otherwise,
shall be to deal with it in the same manner as the Note Collateral Agent deals
with similar property for its own account. Neither the Note Collateral Agent,
any holder of the Note Obligations nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Note Collateral Agent and the holders of the Note Obligations
hereunder are solely to protect the Note Collateral Agent's and the holders of
the Note Obligations' interests in the Collateral and shall not impose any duty
upon the Note Collateral Agent or any holder of the Note Obligations to exercise
any such powers. The Note Collateral Agent and the holders of the Note
Obligations shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
11. Execution of Financing Statements. Pursuant to Section
9-509 of the UCC, each Grantor authorizes the Note Collateral Agent to file
financing statements and continuations thereof with respect to the Collateral
granted by such Grantor without the signature of such Grantor in such form and
in such filing offices as the Note Collateral Agent reasonably determines
appropriate to perfect the security interests of the Note Collateral Agent under
this Agreement. A carbon, photographic or other reproduction of this Agreement
shall be sufficient as a financing statement for filing in any jurisdiction.
During such time as no Notice of an Actionable Event has been given and remains
outstanding, the Note Collateral Agent shall provide to such Grantor a
file-stamped copy of such financing statement or continuation thereof promptly
following its return to the Note Collateral Agent by the relevant filing
officer; provided that the failure to provide such financing statement or
continuation thereof shall not impair the validity thereof and shall not subject
the Note Collateral Agent to any liability to such Grantor.
12. Authority of Note Collateral Agent. Each Grantor
acknowledges that the rights and responsibilities of the Note Collateral Agent
under this Agreement with respect to any action taken by the Note Collateral
Agent or the exercise or non-exercise by the Note Collateral Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
holders of the Note Obligations, be governed by the Indenture, the Collateral
Agency Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Note Collateral Agent and the
Grantors, the Note Collateral Agent shall be conclusively presumed to be acting
as agent for the holders of the Note Obligations with full and valid authority
so to act or refrain from acting, and such Grantor shall be under no obligation,
or entitlement, to make any inquiry respecting such authority.
25
13. Notices. All notices, consents, requests and demands to or
upon the Note Collateral Agent or any Grantor to be effective shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand or by mail, or, in the case of
telecopy notice, when sent, addressed to the Note Collateral Agent or the
Grantor, as the case may be, as follows:
if to any Grantor:
at its address or facsimile number set forth on the signature
page to this Agreement;
if to the Note Collateral Agent:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Note Collateral Agent and the Grantors may change their addresses and
transmission numbers for notices by notifying the other parties hereto of such
change in the manner provided in this Section.
14. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Amendments; No Waiver; Cumulative Remedies.
(a) Amendments. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with the terms of the Indenture and the Collateral Agency Agreement.
Without limiting the generality of the foregoing, amendments, waivers and
consents effected in respect of certain provisions of the First Lien Documents
shall, upon their effectiveness but only to the extent provided in the
Collateral Agency Agreement, apply with equal force to the comparable provisions
of this Agreement and become effective with respect thereto without the consent
of or any other action on the part of any Person.
(b) No Waiver by Course of Conduct. Neither the Note
Collateral Agent nor any holder of the Note Obligations shall by any act, delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Actionable Event or in any breach of any
of the terms and conditions hereof, except as otherwise provided in subsection
15(a) hereof. No failure to exercise, nor any delay in exercising, on the part
of the Note Collateral Agent or any holder of the Note Obligations, any right,
power or
26
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Note Collateral Agent or any holder of the Note Obligations of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Note Collateral Agent or such holder of the
Note Obligations would otherwise have on any future occasion.
(c) Remedies Cumulative. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
16. Section Headings. The section and subsection headings used
in this Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
17. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Controlling Collateral Agent, the Note Collateral Agent and the holders
of the Note Obligations and their successors and assigns.
18. SUBMISSION TO JURISDICTION; WAIVERS.
(A) EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(I) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT HEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(II) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(III) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION
OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO
IT AT ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS
OF WHICH THE NOTE COLLATERAL AGENT SHALL HAVE BEEN NOTIFIED PURSUANT TO
PARAGRAPH 13 HEREOF;
27
(IV) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT
TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
(V) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS PARAGRAPH ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
(B) EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH
(A) ABOVE.
19. Release of Collateral and Termination. Collateral shall be
released from the Lien created hereby, and this Security Agreement and all
obligations of the Note Collateral Agent and each of the Grantors hereunder
shall terminate, in accordance with the provisions of Sections 8 and 10.6 of the
Collateral Agency Agreement.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
28
IN WITNESS WHEREOF, each of the undersigned has caused this
Security Agreement to be duly executed and delivered as of the date first above
written.
ALMAY, INC.
▇▇▇▇▇▇▇▇▇▇ PARFUMS, LTD.
▇▇▇▇▇▇▇ OF THE RITZ GROUP LTD.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
COSMETICS & MORE, INC.
NORTH AMERICA REVSALE INC.
PACIFIC FINANCE & DEVELOPMENT CORP.
PPI TWO CORPORATION
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LTD.
REVLON CONSUMER CORP. (f/k/a Inspirations Inc.)
REVLON GOVERNMENT SALES, INC.
REVLON INTERNATIONAL CORPORATION
REVLON PRODUCTS CORP.
REVLON REAL ESTATE CORPORATION
RIROS CORPORATION
RIROS GROUP INC.
RIT INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
Address for Notices:
-------------------
c/o Revlon Consumer Products Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President and
General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
WILMINGTON TRUST COMPANY,
as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President