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Exhibit 4.4
BORROWER PATENT AND TRADEMARK SECURITY AGREEMENT
BORROWER PATENT AND TRADEMARK SECURITY AGREEMENT, dated as of
April 28, 2000, made by REMINGTON ARMS COMPANY, INC., a Delaware corporation
(the "Grantor"), in favor of THE CHASE MANHATTAN BANK, as administrative agent
(in such capacity, the "Administrative Agent") for the several banks and other
financial institutions (the "Lenders") from time to time parties to the Amended
and Restated Credit Agreement, dated as of April 28, 2000 (as the same may be
amended, supplemented, waived or otherwise modified from time to time, the
"Credit Agreement"), among the Grantor, the Chase Securities Inc. and Banc of
America Securities LLC, as joint lead arrangers, Bank of America, N.A., as
syndication agent. Xxxxxxx Xxxxx Credit Partners, L.P., as documentation agent
collectively the "Other Representatives", the Administrative Agent, and the
Lenders.
W I T N E S S E T H :
WHEREAS, the Grantor is a party to the Borrower Security
Agreement, dated as of April 28, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Borrower Security Agreement"), made by the
Grantor in favor of the Administrative Agent, for the ratable benefit of the
Lenders;
WHEREAS, the Grantor owns certain Trademarks and Trademark
Licenses listed on Schedule I hereto;
WHEREAS, the Grantor owns certain Patents and Patent Licenses
listed on Schedule II;
WHEREAS, pursuant to the Borrower Security Agreement, the
Grantor has granted to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in all right, title and interest of the Grantor in,
to and under the Collateral (as hereinafter defined), including the property
listed on the attached Schedules I and II, together with any renewal or
extension thereof, and all Proceeds thereof, to secure the payment of the
Obligations; and
WHEREAS, it is a condition precedent to the obligations of the
Lenders to make their respective initial Extensions of Credit to the Grantor
under the Credit Agreement that the Grantor shall have executed and delivered
this Agreement to the Administrative Agent, for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Other Representatives and the Lenders to enter
into the Credit Agreement and to make their respective Extensions of Credit to
the Grantor thereunder, the Grantor hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders, as follows:
1 Defined Terms. (a) Unless otherwise defined herein, capitalized terms defined
in the Credit Agreement are used herein as defined therein. The following terms
shall have the following meanings:
"Agreement": this Borrower Patent and Trademark Security
Agreement, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
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"General Intangibles": as defined in Section 9-106 of the
Code, including, without limitation, all Patents and Trademarks now or
hereafter owned by the Grantor to the extent such Patents and
Trademarks would be included in General Intangibles under the Code.
"Obligations": the collective reference to the unpaid
principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to the Grantor whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations and all other obligations and
liabilities of the Grantor to the Administrative Agent, the Other
Representatives and the Lenders, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the Notes, the Letters of Credit, the other Loan
Documents, any Interest Rate Agreement entered into with any Lender,
any Guarantee Obligations of the Grantor referred to in Section 8.4(b)
of the Credit Agreement as to which any Lender is a beneficiary, and
any other document made, delivered or given in connection with any of
the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with a
termination of any transaction entered into pursuant to an Interest
Rate Agreement entered into with any Lender, amounts payable to any
Lender in connection with any such Guarantee Obligation, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent, any Other Representative or any Lender that are
required to be paid by the Grantor pursuant to the terms of the Credit
Agreement or any other Loan Document).
"Patent License": all United States written license agreements
with any unaffiliated Person in connection with any of the Patents or
such other Person's patents, whether the Grantor is a licensor or a
licensee under any such license agreement, including, without
limitation, the license agreements listed on Schedule II attached
hereto and made a part hereof, subject, in each case, to the terms of
such license agreements, and the right to prepare for sale, sell and
advertise for sale, all Inventory (as defined in the Borrower Security
Agreement) now or hereafter covered by such licenses.
"Patents": all United States patents, patent applications and
patentable inventions, including, without limitation, all patents and
patent applications identified in Schedule II attached hereto and made
a part hereof, and including without limitation (a) all inventions and
improvements described and claimed therein, and patentable inventions,
(b) the right to xxx 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 corresponding thereto in the United States and all reissues,
divisions, continuations, continuations-in-part, substitutes, renewals,
and extensions thereof, all improvements thereon, and all other rights
of any kind whatsoever of the Grantor accruing thereunder or pertaining
thereto (Patents and Patent Licenses being, collectively, the "Patent
Collateral").
"Trademark License": all United States written license
agreements with any unaffiliated Person in connection with any of the
Trademarks or such other Person's names or trademarks, whether the
Grantor is a licensor or a licensee under any such license agreement,
including, without limitation, the license agreements listed on
Schedule I attached hereto and made a part hereof, subject, in each
case, to the terms of such license agreements, and the right to prepare
for sale, sell and advertise for sale, all Inventory (as defined in the
Borrower Security Agreement) now or hereafter covered by such licenses.
"Trademarks": all United States trademarks, service marks,
trade names, trade dress or other indicia of trade origin, trademark
and service xxxx registrations, and applications for trademark or
service xxxx registrations (except for "intent to use" applications for
trademark or service xxxx registrations filed pursuant to Section 1(b)
of the Xxxxxx Act, unless and until an Amendment to Allege Use or a
Statement
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of Use under Sections 1(c) and 1(d) of said Act has been filed), and
any renewals thereof, including, without limitation, each registration
and application identified in Schedule I attached hereto and made a
part hereof, and including without limitation (a) the right to xxx or
otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (b) 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 (c) all rights
corresponding thereto in the United States and all other rights of any
kind whatsoever of the 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 xxxx, trade name, trade dress or other indicia of trade origin
(Trademarks and Trademark Licenses being, collectively, the "Trademark
Collateral").
(b) 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.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2 Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations the Grantor hereby
assigns, pledges and grants, subject to existing licenses granted by the Grantor
in the ordinary course of business with respect to the Collateral (as
hereinafter defined), to the Administrative Agent, for the ratable benefit of
the Lenders, a security interest in all of the following property now owned or
at any time hereafter acquired by the Grantor or in which the Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"):
(i) all Trademarks;
(ii) all Trademark Licenses;
(iii) all Patents;
(iv) all Patent Licenses;
(v) all General Intangibles connected with the
use of or symbolized by the Trademarks and Patents; and
(vi) to the extent not otherwise included, all
Proceeds and products of any and all of the foregoing;
provided, that the foregoing grant of a security interest with respect to
General Intangibles, Patent Licenses and Trademark Licenses shall not include a
security interest in, and the Collateral shall not include, any Patent License
or Trademark License with or issued by Persons other than a Subsidiary of the
Grantor that would otherwise be included in the Collateral to the extent that
the grant by the Grantor of such security interest is prohibited by the terms
and provisions of the written agreement or document or instrument creating or
evidencing such license or permit or Patent License or Trademark License, or
gives the other party thereto the right to terminate such Patent License or
Trademark License in the event of the grant of a security interest with respect
thereto. The Grantor shall use its reasonable best efforts to (i) avoid entering
into agreements or contracts which would prohibit the Grantor from granting a
security interest in such Patent Licenses or Trademark Licenses pursuant to the
terms of this Agreement and (ii) cause each such Patent License or Trademark
License entered into, created or made by it after the Effective Date to be
subject to the Lien and security interest created pursuant to this Agreement.
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SECTION 3. Grantor Remains Liable; Limitations on
Administrative Agent's and Lenders' Obligations. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Administrative Agent of
any of the rights hereunder shall not release the Grantor from any of its duties
or obligations under the contracts and agreements included in the Collateral,
and (c) neither the Administrative Agent, the Other Representatives, nor any
Lender shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement, nor shall the
Administrative Agent, the Other Representatives, or any Lender be obligated to
perform any of the obligations or duties of the Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
4 Representations and Warranties. The Grantor represents and
warrants as to itself and its Collateral as follows:
(a) Title; No Other Liens. Except for the Liens granted to the
Administrative Agent, for the ratable benefit of the Lenders, pursuant
to this Agreement and the other Liens permitted to exist on the
Collateral pursuant to the Loan Documents (including without limitation
any Lien permitted to exist pursuant to Section 8.3 of the Credit
Agreement), the Grantor is (or, in the case of after-acquired
Collateral, will be) the sole, legal and beneficial owner of the entire
right, title and interest in and to the Trademarks set forth on
Schedule I hereto and the Patents set forth in Schedule II hereto free
and clear of any and all Liens. No security agreement, financing
statement or other public notice similar in effect 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 Patent and
Trademark Office), except such as may have been filed in favor of the
Administrative Agent, for the ratable benefit of the Lenders, pursuant
to this Agreement or as may be permitted pursuant to the Loan
Documents.
(b) Perfected First Priority Liens. (i) This Agreement is
effective to create, as collateral security for the Obligations, valid
and enforceable Liens on the Collateral in favor of the Administrative
Agent for the ratable benefit of the Lenders, except as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditor's 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.
(ii) Except with regard to Liens (if any) on Specified
Assets, and except with regard to Liens upon Patents and Trademarks and
Patent Licenses and Trademark Licenses, which Liens, to the extent not
otherwise perfected by the filing of financing statements under the
Code in accordance herewith, would in the case of Patents and
Trademarks listed in Schedule I and II hereto, or in the case of Patent
Licenses and Trademark licenses listed in Schedule I and II hereto may,
be perfected upon the filing, acceptance and recordation thereof in the
United States Patent and Trademark Office, upon the completion of the
Filings, the Liens created pursuant to this Agreement will constitute
valid Liens on and (to the extent provided herein) perfected security
interests in the Collateral in favor of the Administrative Agent for
the ratable benefit of the Lenders, and will be prior to all other
Liens of all other Persons other than Permitted Liens, and enforceable
as such as against all other Persons other than Ordinary Course Buyers,
except to the extent that the recording of an assignment or other
transfer of title to the Administrative Agent or the recording of other
applicable documents in the United States Patent and Trademark Office
or United States Copyright Office may be necessary for perfection or
enforceability, and except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) or by an implied covenant of good
faith and fair dealing. As used in this Section 4(b)(ii), the following
terms shall have the following meanings:
"Filings": the filing or recording of the Financing
Statements, any Patent and Trademark Security Agreement as set
forth in Schedule __, and any filings after the Closing Date
in any other jurisdiction as may be necessary under any
Requirement of Law.
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"Financing Statements": the financing statements
delivered to the Administrative Agent by the Borrower on the
Closing Date for filing in the jurisdictions listed in
Schedule 6.1(m) to the Credit Agreement.
"Permitted Liens": Liens permitted pursuant to the
Loan Documents, including without limitation those permitted
to exist pursuant to subsection 8.3 of the Credit Agreement.
"Specified Assets": the following property and assets
of the Borrower:
(1) Patents, Patent Licenses, Trademarks and
Trademark Licenses to the extent that (a) Liens
thereon which cannot be perfected by the filing of
financing statements under the Uniform Commercial
Code or by the filing and acceptance thereof in the
United States Patent and Trademark Office or (b) such
Patents, Patent Licenses, Trademarks and Trademark
Licenses are not, individually or in the aggregate,
material to the business of Grantor and its
Subsidiaries taken as a whole;
(2) Copyrights and Copyright Licenses and
Accounts or receivables arising therefrom to the
extent that the Uniform Commercial Code as in effect
from time to time in the relevant jurisdiction is not
applicable to the creation or perfection of Liens
thereon; and
(3) Collateral for which the perfection of
Liens thereon requires filings in or other actions
under the laws of jurisdictions outside the United
States of America, any State, territory or dependency
thereof or the District of Columbia;
(c) Consents. No consent of any party (other than the Grantor)
to any Patent License or Trademark License constituting Collateral is
required, or purports to be required, to be obtained by or on behalf of
the Grantor in connection with the execution, delivery and performance
of this Agreement that has not been obtained. Each Patent License and
Trademark License constituting Collateral is in full force and effect
and constitutes a valid and legally enforceable obligation of the
Grantor and (to the knowledge of the Grantor) each other party thereto
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor's rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law) and
except to the extent the failure of any such Patent License or
Trademark License constituting Collateral to be in full force and
effect or valid or legally enforceable would not be reasonably
expected, in the aggregate, to have a material adverse effect on the
value of the Collateral (as defined in the Credit Agreement). 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 Patent Licenses or Trademark Licenses constituting Collateral by
any party thereto other than those which have been duly obtained, made
or performed and are in full force and effect and those the failure of
which to make or obtain would not be reasonably expected, in the
aggregate, to have a material adverse effect on the value of the
Collateral (as defined in the Credit Agreement). Neither the Grantor
nor (to the knowledge of the Grantor) any other party to any Patent
License or Trademark License constituting Collateral is in default in
the performance or observance of any of the terms thereof, except for
such defaults as would not reasonably be expected, in the aggregate, to
have a material adverse effect on the value of the Collateral (as
defined in the Credit Agreement). The right, title and interest of the
Grantor in, to and under each Patent License and Trademark License
constituting Collateral are not subject to any defense, offset,
counterclaim or claim which would be reasonably expected, either
individually or in the aggregate, to have a material adverse effect on
the value of the Collateral (as defined in the Credit Agreement).
(d) Schedules I and II are Complete; All Filings Have Been
Made. Set forth in Schedules I and II is a complete and accurate list
of the Trademarks and Patents owned by the Grantor as of the date
hereof. The Grantor has made all necessary filings and recordations to
protect and maintain its interest in the
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Trademarks and Patents set forth in Schedules I and II, including,
without limitation, all necessary filings and recordings, and payments
of all maintenance fees, in the United States Patent and Trademark
Office to the extent such Trademarks and Patents are material to the
Grantor's business. Set forth in Schedules I and II is a complete and
accurate list of all of the material Trademark Licenses and material
Patent Licenses owned by the Grantor as of the date hereof.
(e) The Trademarks and Trademark Licenses are Subsisting and
Not Adjudged Invalid. As of the date hereof, each trademark
registration and trademark application of the Grantor set forth in
Schedule I is subsisting as of the date hereof and has not been
adjudged invalid, unregisterable or unenforceable, in whole or in part,
and, to the best of the Grantor's knowledge, is valid, registrable and
enforceable. As of the date hereof, each of the Trademark Licenses set
forth in Schedule I is validly subsisting and has not been adjudged
invalid or unenforceable, in whole or in part, and, to the best of the
Grantor's knowledge, is valid and enforceable. As of the date hereof,
the Grantor has notified the Administrative Agent in writing of all
uses of any item of Trademark Collateral material to the Grantor's
business of which the Grantor is aware which could reasonably be
expected to lead to such item becoming invalid or unenforceable,
including unauthorized uses by third parties and uses which were not
supported by the goodwill of the business connected with such
Collateral.
(f) The Patent and Patent Licenses are Subsisting and Not
Adjudged Invalid. As of the date hereof, each patent and patent
application of the Grantor set forth in Schedule II is subsisting and
has not been adjudged invalid, unpatentable or unenforceable, in whole
or in part, and, to the best of the Grantor's knowledge, is valid,
patentable and enforceable. As of the date hereof, each of the Patent
Licenses set forth in Schedule II is validly subsisting and has not
been adjudged invalid or unenforceable, in whole or in part, and, to
the best of the Grantor's knowledge, is valid and enforceable. As of
the date hereof, the Grantor has notified the Administrative Agent in
writing of all uses of any item of Patent Collateral material to the
Grantor's business of which the Grantor is aware which could reasonably
be expected to lead to such item becoming invalid or unenforceable.
(g) No Previous Assignments or Releases. As of the date
hereof, the Grantor has not made a previous assignment, sale, transfer
or agreement constituting a present or future assignment, sale,
transfer or encumbrance of any of the Collateral, except with respect
to exclusive licenses granted in the ordinary course of business or as
permitted by this Agreement or the Loan Documents. As of the date
hereof, the Grantor has not granted any license, shop right, release,
covenant not to xxx, or non-assertion assurance to any Person with
respect to any part of the Collateral except in the ordinary course of
business.
(h) Proper Statutory Notice. The Grantor has marked its
products with the trademark registration symbol 7, the numbers of all
appropriate patents, the common law trademark symbol J, or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(i) No Knowledge of Claims Likely to Arise. Except for the
Trademark Licenses and Patent Licenses listed in Schedules I and II
hereto, the Grantor has no knowledge of the existence of any right or
any claim (other than as provided by this Agreement or the Loan
Documents) that is likely to be made under or against any item of
Collateral contained on Schedules I and II which would have a Material
Adverse Effect.
(j) No Knowledge of Existing or Threatened Claims. No claim
has been made and is continuing or, to the best of the Grantor's
knowledge, threatened that the use by the Grantor of any item of
Collateral is invalid or unenforceable or that the use by the Grantor
of any Collateral does or may violate the rights of any Person, which
would have a Material Adverse Effect. To the best of the Grantor's
knowledge, there is currently no infringement or unauthorized use of
any item of Collateral contained on Schedules I and II which would have
a Material Adverse Effect.
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5 Covenants. The Grantor covenants and agrees with the
Administrative Agent, the Other Representatives and the Lenders that, from and
after the date of this Agreement until the payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit:
(a) Further Documentation; Pledge of Instruments and Chattel
Paper. At any time and from time to time, upon the written request of
the Administrative Agent or the Grantor, as the case may be, and at the
sole expense of the Grantor, the Grantor or the Administrative Agent,
as the case may be, will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Administrative Agent or the Grantor 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 Liens created hereby. The Grantor also hereby authorizes
the Administrative Agent to file any such financing or continuation
statement without the signature of the Grantor to the extent permitted
by applicable law. A carbon, photostatic or other reproduction of this
Agreement shall be sufficient as a financing statement for filing in
any jurisdiction. The Administrative Agent agrees to notify the Grantor
and the Grantor agrees to notify the Administrative Agent of any
financing or continuation statement filed by it pursuant to this
Section 5(a), provided that any failure to give any such notice shall
not affect the validity or effectiveness of any such filing.
(b) Indemnification and Expenses. The Grantor agrees to pay,
and to save the Administrative Agent, the Other Representatives and the
Lenders harmless from, any and all liabilities and reasonable costs and
expenses (including, without limitation, reasonable legal fees and
expenses) (i) with respect to, or resulting from, any delay by the
Grantor in complying with any material Requirement of Law applicable to
any of the Collateral, or (ii) in connection with any of the
transactions contemplated by this Agreement, provided that such
indemnity shall not, as to the Administrative Agent, any Other
Representatives or any Lender, be available to the extent that such
liabilities, costs and expenses resulted from the gross negligence or
willful misconduct of the Administrative Agent, any Other
Representative or any Lender. In any suit, proceeding or action brought
by the Administrative Agent, any Other Representative or any Lender
under any of the Collateral for any sum owing thereunder, or to enforce
any of the Collateral, the Grantor will save, indemnify and keep the
Administrative Agent, such Other Representative and such Lender
harmless from and against all expense, loss or damage suffered by
reason of any defense or counterclaim raised in any such suit,
proceeding or action.
(c) Maintenance of Records. (i) The Grantor will keep and
maintain at its own cost and expense reasonably satisfactory and
complete records of the Collateral, and shall xxxx such records to
evidence this Agreement and the Liens and the security interests
created hereby. For the Administrative Agent's and the Lenders' further
security, the Administrative Agent, for the ratable benefit of the
Lenders, shall have a security interest in all of the Grantor's books
and records pertaining to the collateral, and the Grantor shall permit
the Administrative Agent or its representatives to review such books
and records upon reasonable advance notice during normal business hours
at the location where such books and records are kept and at the
reasonable request of the Administrative Agent.
(d) Right of Inspection. Upon reasonable advance notice to the
Grantor and at reasonable intervals, or at any time and from time to
time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent and the Lenders and their respective
representatives shall have reasonable access during normal business
hours to all the books, correspondence and records of the Grantor, and
the Administrative Agent and the Lenders and their respective
representatives may examine the same, and to the extent reasonable take
extracts therefrom and make photocopies thereof, and the Grantor agrees
to render to the Administrative Agent and the Lenders, at the Grantor's
reasonable cost and expense, such clerical and other assistance as may
be reasonable requested with regard thereto.
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(e) Compliance with Laws, etc. The Grantor will comply in all
material respects with all Requirements of Law applicable to the
Collateral or any part thereof, except to the extent that the failure
to so comply would not be reasonably expected to materially adversely
affect in the aggregate the Administrative Agent's or the Lenders'
rights hereunder, the priority of their Liens on the Collateral or the
value of the Collateral (as defined in the Credit Agreement).
(f) Further Identification of Collateral. The Grantor will
furnish to the Administrative Agent and the Lenders from time to time
such statements and schedules further identifying and describing the
Collateral, and such other reports in connection with the Collateral,
as the Administrative Agent may reasonably request, all in reasonable
detail.
(g) Security Interest in Any Newly Acquired Collateral. The
Grantor agrees that, should it obtain an ownership interest in any
Trademark, Patent, Trademark License or Patent License, which is not
now a part of the Collateral, (i) the provisions of Section 2 shall
automatically apply thereto, (ii) any such Trademark, Patent, Trademark
License and Patent License shall automatically become part of the
Collateral, and (iii) with respect to any ownership interest in any
Trademark, Patent, Trademark License or Patent License that the Grantor
should obtain which the Grantor reasonably deems is material to its
business, it shall give notice thereof to the Administrative Agent and
the Lenders in writing, in reasonable detail, at their respective
addresses set forth in the Credit Agreement within 45 days after the
end of the calendar quarter in which such ownership interest is
obtained. The Grantor authorizes the Administrative Agent to modify
this Agreement by amending Schedules I and II (and will cooperate
reasonably with the Administrative Agent in effecting any such
amendment) to include on Schedule I any Trademark and Trademark License
and on Schedule II any Patent or Patent License of which it receives
notice under this Section.
(h) Maintenance of the Trademark Collateral. The Grantor
agrees to take all necessary steps, including, without limitation, in
the United States Patent and Trademark Office or in any court, to (i)
maintain each trademark registration and each Trademark License
identified on Schedule I hereto, and (ii) pursue each trademark
application now or hereafter identified in Schedule I hereto,
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, the filing of affidavits under
Sections 8 and 15 of the United States Trademark Act, and the
participation in opposition, cancellation, infringement and
misappropriation proceedings, except, in each case in which the Grantor
has reasonably determined that any of the foregoing is not of material
economic value to it. The Grantor agrees to take corresponding steps
with respect to each new or acquired trademark registration, trademark
application or any rights obtained under any Trademark License, in each
case, which it is now or later becomes entitled, except in each case in
which the Grantor has reasonably determined that any of the foregoing
is not of material economic value to it. Any expenses incurred in
connection with such activities shall be borne by the Grantor.
(i) Maintenance of the Patent Collateral. The Grantor agrees
to take all necessary steps, including, without limitation, in the
United States Patent and Trademark Office or in any court, to (i)
maintain each patent and each Patent License identified on Schedule II
hereto, and (ii) pursue each patent application, now or hereafter
identified in Schedule II hereto, including, without limitation, the
filing of divisional, continuation, continuation-in-part and substitute
applications, the filing of applications for reissue, renewal or
extensions, the payment of maintenance fees, and the participation in
interference, reexamination, opposition, infringement and
misappropriation proceedings, except, in each case in which the Grantor
has reasonably determined that any of the foregoing is not of material
economic value to it. The Grantor agrees to take corresponding steps
with respect to each new or acquired patent, patent application, or any
rights obtained under any Patent License, in each case, which it is now
or later becomes entitled, except in each case in which the Grantor has
reasonably determined that any of the foregoing is not of material
economic value to it. Any expenses incurred in connection with such
activities shall be borne by the Grantor.
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(j) Grantor Shall Not Abandon any Collateral. The Grantor
shall not abandon any trademark registration, patent or any pending
trademark or patent application, without the written consent of the
Administrative Agent, unless the Grantor shall have previously
determined that such use or the pursuit or maintenance of such
trademark registration, patent or pending trademark or patent
application is not of material economic value to it, in which case, the
Grantor will, at least annually, give notice of any such abandonment to
the Administrative Agent and the Lenders in writing, in reasonable
detail, at their respective addresses set forth in the Credit
Agreement.
(k) Infringement of Any Collateral. In the event that the
Grantor becomes aware that any item of the Collateral which the Grantor
has reasonably determined to be material to its business is infringed
or misappropriated by a third party, the Grantor shall promptly notify
the Administrative Agent and the Lenders promptly and in writing, in
reasonable detail, at their respective addresses set forth in the
Credit Agreement, and shall take such actions as the Grantor or the
Administrative Agent deems reasonably appropriate under the
circumstances to protect such Collateral, including, without
limitation, suing for infringement or misappropriation and for an
injunction against such infringement or misappropriation. Any expense
incurred in connection with such activities shall be borne by the
Grantor. The Grantor will advise the Administrative Agent and the
Lenders promptly and in writing, in reasonable detail, at their
respective addresses set forth in the Credit Agreement, of any adverse
determination or the institution of any proceeding (including, without
limitation, the institution of any proceeding in the United States
Patent and Trademark Office or any court) regarding any item of the
Collateral which has a Material Adverse Effect.
(l) Use of Statutory Notice. The Grantor shall xxxx its
products with the trademark registration symbol 7, the numbers of all
appropriate patents, the common law trademark symbol J, or the
designation "patent pending," as the case may be, to the extent that it
is reasonably and commercially practicable.
(m) Limitation on Liens on Collateral. The Grantor will not
create, incur or permit to exist, will defend the Collateral against,
and will take such other action as is reasonably necessary to remove,
any Lien or material adverse claim on or to any of the Collateral,
other than exclusive licenses granted in the ordinary course of
business and the Liens created by this Agreement and other than as
permitted pursuant to the Loan Documents, and will defend the right,
title and interest of the Administrative Agent and the Lenders in and
to any of the Collateral against the claims and demands of all Persons
whomsoever.
(n) Limitations on Dispositions of Collateral. Without the
prior written consent of the Administrative Agent, the Grantor will not
sell, assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or attempt, offer or contract
to do so, except with respect to exclusive licenses in the ordinary
course of business or as permitted by this Agreement or the Loan
Documents.
(o) Notices. The Grantor will advise the Administrative Agent
and the Lenders promptly, in reasonable detail, at their respective
addresses set forth in the Credit Agreement, (i) of any Lien (other
than Liens created hereby or permitted under the Loan Documents) on, or
material adverse claim asserted against, Patents or Trademarks and (ii)
of the occurrence of any other event which would reasonably be expected
in the aggregate to have a material adverse effect on the aggregate
value of the Collateral or the Liens created hereunder.
6 Administrative Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes and
appoints the Administrative 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 the Grantor and in the
name of the Grantor or in its own name, from time to time in the Administrative
Agent's 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
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may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, the Grantor hereby gives the
Administrative Agent the power and right, on behalf of the Grantor, without
notice to or assent by the Grantor, to do the following at any time when any
Event of Default shall have occurred and be continuing, and to the extent
permitted by law:
(i) to execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent may
reasonably request to evidence the Administrative Agent's, the Other
Representatives' and the Lenders' security interest in any of the
Collateral;
(ii) in the name of the 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 General Intangible (to the extent that any of the
foregoing constitute Collateral) or with respect to any other
Collateral and to file any claim or to take any other action or
institute any proceeding in any court of law or equity or otherwise
deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any such General
Intangible or with respect to any such other Collateral whenever
payable;
(iii) to pay or discharge Liens placed on the Collateral,
other than Liens permitted under this Agreement or the Loan Documents;
and
(iv) (A) to direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (B) to ask for, or demand, 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 of the Collateral; (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; (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
or any thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding brought
against the Grantor with respect to any of the Collateral; (F) to
settle, compromise or adjust any suit, action or proceeding described
in clause (E) above and, in connection therewith, to give such
discharges or releases as the Administrative Agent may deem
appropriate; (G) subject to any pre-existing rights or licenses, to
assign any Patent or Trademark constituting Collateral (along with the
goodwill of the business to which any such Patent or Trademark
pertains), for such term or terms, on such conditions, and in such
manner, as the Administrative 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
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and to do, at the
Administrative Agent's option and the Grantor's expense, at any time,
or from time to time, all acts and things which the Administrative
Agent deems necessary to protect, preserve or realize upon the
Collateral and the Administrative Agent's, the Other Representatives'
and the Lenders' Liens thereon and to effect the intent of this
Agreement, all as fully and effectively as the Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
(b) Other Powers. The Grantor also authorizes the
Administrative Agent, from time to time if an Event of Default shall have
occurred and be continuing, to execute, in connection with any sale provided for
in Section 9 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
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(c) No Duty on the Part of Administrative Agent, Other
Representatives or Lenders. The powers conferred on the Administrative Agent,
the Other Representatives and the Lenders hereunder are solely to protect the
Administrative Agent's, the Other Representatives' and the Lenders' interests in
the Collateral and shall not impose any duty upon the Administrative Agent, any
Other Representative or any Lender to exercise any such powers. The
Administrative Agent, the Other Representatives and the Lenders 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 the Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7 Performance by Administrative Agent of Grantor's
Obligations. If the Grantor fails to perform or comply with any of its
agreements contained herein and the Administrative Agent, as provided for by the
terms of this Agreement, shall itself perform or comply, or otherwise cause
performance or compliance, with such agreement, the reasonable expenses of the
Administrative Agent incurred in connection with such performance or compliance,
together with interest thereon at a rate per annum 2% above the rate applicable
to ABR Loans, shall be payable by the Grantor to the Administrative Agent on
demand and shall constitute Obligations secured hereby.
8 Proceeds. It is agreed that if an Event of Default shall
occur and be continuing, (a) all Proceeds of any Collateral received by the
Grantor consisting of cash, checks and other near-cash items shall be held by
the Grantor in trust for the Administrative Agent and the Lenders, segregated
from other funds of the Grantor, and at the request of the Administrative Agent
shall, forthwith upon receipt by the Grantor, be turned over to the
Administrative Agent in the exact form received by the Grantor (duly indorsed by
the Grantor to the Administrative Agent, if required by the Administrative
Agent), and (b) any and all such Proceeds received by the Administrative Agent
(whether from the Grantor or otherwise) may, in the sole discretion of the
Administrative Agent, be held by the Administrative Agent, for the ratable
benefit of the Lenders, as collateral security for the Obligations (whether
matured or unmatured), and/or then or at any time thereafter may be applied by
the Administrative Agent against, the Obligations then due and owing. Any
balance of such Proceeds remaining after the payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit shall be paid over to the Grantor or to
whomsoever may be lawfully entitled to receive the same.
9 Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise all
rights and remedies of a secured party under the Code, and, to the extent
permitted by law, all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations. Without limiting the generality of the foregoing,
the Administrative 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 the Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances, to the extent permitted by law, forthwith
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), but subject to any pre-existing rights
or licenses, in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent, any Other
Representative or any Lender 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 Administrative
Agent, any Other Representative or any Lender shall have the right, to the
extent permitted by law, upon any such sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Grantor, which right or equity is hereby waived or released. The Grantor
further agrees, at the Administrative Agent's request, upon the occurrence and
during the continuance of an Event of Default, to assemble the Collateral and
make it available to the Administrative Agent at places which the Administrative
Agent shall reasonably select, whether at the Grantor's premises or elsewhere.
In the event of any sale, assignment, or other disposition of any of the
Collateral, the goodwill of the business connected with and symbolized by any
Trademark Collateral subject to such disposition shall be included, and the
Grantor shall supply to the Administrative Agent or its designee the Grantor's
know-how and expertise relating to the Collateral subject to such disposition,
and the Grantor's notebooks, studies, reports,
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records, documents and things embodying the same or relating to the inventions,
processes or ideas covered by, and to the manufacture of any products under or
in connection with, the Collateral subject to such disposition, and the
Grantor's customer's lists, studies and surveys and other records and documents
relating to the distribution, marketing, advertising and sale of products
relating to the Collateral subject to such disposition. The Administrative Agent
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the rights
of the Administrative Agent, the Other Representatives and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations then due
and owing, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the
Administrative Agent account for the surplus, if any, to the Grantor. To the
extent permitted by applicable law, the Grantor waives all claims, damages and
demands it may acquire against the Administrative Agent, any Other
Representative or any Lender arising out of the repossession, retention or sale
of the Collateral, other than any such claims, damages and demands that may
arise from the gross negligence or willful misconduct of any of them. 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. The Grantor shall remain liable for
any deficiency if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay the then outstanding Obligations, including
the reasonable fees and disbursements of any attorneys employed by the
Administrative Agent, any Other Representative or any Lender to collect such
deficiency.
10 Limitation on Duties Regarding Preservation of Collateral.
The Administrative 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 Code or otherwise, shall be to deal with it in the same manner as
the Administrative Agent deals with similar property for its own account. None
of the Administrative Agent, any Other Representative, any Lender, nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon all or any part 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 the Grantor or any other Person.
11 Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are powers coupled with
an interest and are irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Obligations then due and owing, the
termination of the Commitments and the expiration, termination or return to the
Issuing Lender of the Letters of Credit.
12 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.
13 Section Headings. The Section 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.
14 No Waiver; Cumulative Remedies. None of the Administrative
Agent, any Other Representative nor any Lender shall by any act (except by a
written instrument pursuant to Section 15 hereof), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent, any Other Representative or
any Lender, any right, power or 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 Administrative Agent,
any Other Representative or any Lender of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent, such Other Representative or such Lender would otherwise
have on any future occasion. The
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rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
15 Amendments in Writing; No Waiver; Cumulative Remedies;
Successors and Assigns. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Grantor and the Administrative Agent in accordance
with Section 11.1 of the Credit Agreement. This Agreement shall be binding upon
the successors and assigns of the Grantor and shall inure to the benefit of the
Administrative Agent, the Other Representatives and the Lenders and their
respective successors and assigns, except that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this Agreement
without the prior written consent of the Administrative Agent.
16. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be made in accordance with Section 11.2 of the
Credit Agreement.
17. Authority of Administrative Agent. The Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative 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 among the Administrative
Agent, the Other Representatives and the Lenders, be governed by the Loan
Documents and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Grantor, the Administrative Agent shall be conclusively presumed to be acting as
agent for the Lenders with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation to make any inquiry
respecting such authority.
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18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
19. Release of Collateral and Termination. (a) At such time
as the payment in full of the Notes, the Reimbursement Obligations and the other
Obligations then due and owing shall have occurred, the Commitments have been
terminated and the Letters of Credit have expired, terminated or been returned
to the Issuing Lender, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and the Grantor
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Grantor. Upon request of the Grantor following any such termination, the
Administrative Agent shall deliver (at the sole cost and expense of the Grantor)
to the Grantor any Collateral held by the Administrative Agent hereunder, and
execute and deliver (at the sole cost and expense of such Grantor) to the
Grantor such documents as the Grantor shall reasonably request to evidence such
termination.
(b If any of the Collateral shall be sold, transferred or
otherwise disposed of by the Grantor in a transaction permitted by the Credit
Agreement, then the Administrative Agent shall execute and deliver to the
Grantor (at the sole cost and expense of the Grantor) all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
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20. Incorporation of Provisions of Borrower Security
Agreement. The Grantor hereby acknowledges and affirms that the rights and
remedies of the Administrative Agent with respect to the security interest in
the Collateral made and granted hereby are more fully set forth in the Borrower
Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein. Nothing in this Agreement shall
defer or impair the attachment or perfection of any security interest in any
collateral covered by the Borrower Security Agreement which would attach or be
perfected pursuant to the terms thereof without action by the Grantor or any
other Person.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered as of the date first above written.
REMINGTON ARMS COMPANY, INC.
By:
-----------------------------------
Title:
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
THE CHASE MANHATTAN BANK,
, as Administrative Agent
By:
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Title:
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Schedule I
TRADEMARKS AND TRADEMARK LICENSES
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Schedule II
PATENTS AND PATENT LICENSES
