EXHIBIT 4.4
EXECUTION VERSION
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SECURITY AGREEMENT
made by
FRENCH FRAGRANCES, INC.
and certain of its Subsidiaries
in favor of
HSBC BANK USA,
as Collateral Agent
Dated as of January 23, 2001
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TABLE OF CONTENTS
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SECTION 1. DEFINED TERMS...............................................................................1
1.1. Definitions.....................................................................................1
1.2. Other Definitional Provisions...................................................................6
SECTION 2. GRANT OF SECURITY INTEREST..................................................................6
2.1. Grant of Security...............................................................................6
2.2. Security for Obligations........................................................................7
2.3. Continuing Security Interest....................................................................7
2.4. Security Interest Absolute......................................................................7
2.5. Grantors Remain Liable..........................................................................8
SECTION 3. REPRESENTATIONS AND WARRANTIES..............................................................8
3.1. Title; No Other Liens...........................................................................9
3.2. Perfected First Priority Liens..................................................................9
3.3. Chief Executive Office..........................................................................9
3.4. Equipment and Books and Records.................................................................9
3.5. Intellectual Property...........................................................................9
SECTION 4. COVENANTS..................................................................................11
4.1. Covenants in Indenture.........................................................................11
4.2. Maintenance of Insurance.......................................................................11
4.3. Payment of Obligations.........................................................................11
4.4. Maintenance of Perfected Security Interest; Further Documentation..............................11
4.5. Sales of Collateral............................................................................12
4.6. Changes in Locations, Name, etc................................................................12
4.7. Notices. 12
4.8. Intellectual Property..........................................................................13
4.9. Post Closing Covenants.........................................................................15
SECTION 5. REMEDIAL PROVISIONS........................................................................16
5.1. Proceeds to be Turned Over to Collateral Agent.................................................16
5.2. Application of Proceeds........................................................................17
5.3. Code and Other Remedies........................................................................17
5.4. Waiver; Deficiency.............................................................................18
SECTION 6. THE COLLATERAL AGENT.......................................................................18
6.1. Collateral Agent's Appointment as Attorney-in-Fact, etc........................................18
6.2. Duty of Collateral Agent.......................................................................20
6.3. Rights of Collateral Agent.....................................................................20
6.4. Execution of Financing Statements..............................................................21
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6.5. Authority of Collateral Agent..................................................................21
6.6. Replacement of Collateral Agent................................................................22
SECTION 7. MISCELLANEOUS..............................................................................22
7.1. Amendments in Writing..........................................................................22
7.2. Notices. 22
7.3. No Waiver by Course of Conduct; Cumulative Remedies............................................23
7.4. Enforcement Expenses; Indemnification..........................................................23
7.5. Successors and Assigns.........................................................................24
7.6. Set-Off. 24
7.7. Counterparts...................................................................................24
7.8. Severability...................................................................................25
7.9. Section Headings...............................................................................25
7.10. GOVERNING LAW..................................................................................25
7.11. Submission To Jurisdiction; Waivers............................................................25
7.12. Acknowledgments................................................................................26
7.13. Additional Grantors............................................................................26
7.14. Releases 26
7.15. WAIVER OF JURY TRIAL...........................................................................26
7.16. Intercreditor Agreement........................................................................27
7.17. Consent to Jurisdiction and Service of Process.................................................27
7.18. Effectiveness..................................................................................27
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SECURITY AGREEMENT, dated as of January 23, 2001, made by
French Fragrances, Inc., a Florida corporation (the "Company"), and each of the
signatories hereto (together with the Company and any other entity that may
become a party hereto as provided herein, the "Grantors"), in favor of HSBC BANK
USA, as Collateral Agent (in such capacity, the "Collateral Agent") for the
benefit of the Secured Parties (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Grantors and HSBC Bank USA, as trustee (the
"Trustee"), have entered into that certain Indenture, dated as of January 23,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Indenture"), pursuant to which the Company issued $160,000,000 in aggregate
principal amount of 11 3/4% Series A Senior Secured Notes due 2011 (the "Series
A Notes") and contemplates exchanging such Series A Notes for $160,000,000 in
aggregate principal amount of 11 3/4% Series B Senior Secured Notes due 2011
(the "Series B Notes" and together with the Series A Notes, the "Notes") upon
the terms and subject to the conditions set forth therein;
WHEREAS, the Company is a member of an affiliated group of
companies that includes each other Grantor;
NOW, THEREFORE, in consideration of the premises and to induce
the Holders (as defined in the Indenture) to purchase the Notes and the Trustee
to enter into the Indenture, each Grantor hereby agrees with the Collateral
Agent, for the benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1. Definitions. (a) Unless otherwise defined herein, terms
defined in the Indenture and used herein shall have the meanings given to them
in the Indenture.
(b) The following terms shall have the following meanings:
"Agreement": this Security Agreement, as the same may be
amended, supplemented, replaced or otherwise modified from time to
time.
"Arden Acquisition": the acquisition of the Xxxxxxxxx Xxxxx
Business, pursuant to a Purchase Agreement, dated as of October 30,
2000, as amended, modified or supplemented to the date hereof, between
the Company and Unilever, N.V., a Netherlands corporation, and its
subsidiaries, including Conopco, Inc., a New York corporation.
"Collateral": as defined in Section 2 hereof.
"Collateral Account": (i) any collateral account established
by the Collateral Agent as provided in Section 5.1 hereof or (ii) any
cash collateral account established as provided in Section 4.11 of the
Indenture.
"Copyright Licenses": any written agreement naming any Grantor
as licensor, sublicensor or the equivalent (including, without
limitation, those listed in Schedule 5), granting any right under any
Copyright, including, without limitation, the grant of rights to
manufacture, distribute, exploit and sell materials derived from any
Copyright.
"Copyrights": (i) all copyrights, whether or not the
underlying works of authorship have been published, and all works of
authorship and other intellectual property rights therein, all
copyrights of works based on, incorporated in, derived from or relating
to works covered by such copyrights, all right, title and interest to
make and exploit all derivative works based on or adopted from works
covered by such copyrights, and all copyright registrations and
copyright applications, and any renewals or extensions thereof,
including, without limitation, each registration and application
identified in Schedule 5, (ii) the rights to print, publish and
distribute any of the foregoing, (iii) the right to xxx or otherwise
recover for any and all past, present and future infringements and
misappropriations thereof, (iv) all income, royalties, damages and
other payments now and hereafter due and/or payable with respect
thereto (including, without limitation, payments under all Copyright
Licenses entered into in connection therewith, and damages and payments
for past, present or future infringements thereof), and (v) all other
rights of any kind whatsoever accruing thereunder or pertaining
thereto.
"Credit Agreement": means that certain Credit Agreement, dated
as of the date hereof, among the Company, the banks party thereto,
Fleet National Bank as Administrative Agent, Issuing Bank and Swingline
Lender, Credit Suisse First Boston, as Syndication Agent, and Fleet
Securities, Inc. and Credit Suisse First Boston, as Joint Lead
Arrangers and Joint Book Managers
"Designated Permitted Liens": (i) mechanics', carriers',
landlords', workmen's, repairmen's and other like Liens arising or
incurred in the ordinary course of business and are for amounts not yet
overdue or that are being contested in good faith by appropriate
proceedings, (ii) other imperfections of title or encumbrances that do
not materially impair the continued use and operation of the assets to
which they relate in the conduct of the business as conducted on the
date hereof, (iii) Liens for Taxes, assessments and other governmental
charges not yet due and payable or Liens for Taxes, assessments and
governmental charges that may hereafter be paid without penalty or that
are being contested in good faith by appropriate proceedings and (iv)
Liens arising by operation of law in connection with judgments, which
do not give rise to an Event of Default with respect thereto.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
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"Xxxxxxxxx Xxxxx Business": the Xxxxxxxxx Xxxxx brands of skin
treatment, cosmetics and fragrance products, the Xxxxxxxxx Xxxxxx
brands of fragrance products and the White Shoulders brand of fragrance
products and related assets and liabilities.
"Equipment": all of the Grantors' machinery, equipment and
furniture, and all attachments, accessories and equipment, acquired in
the Arden Acquisition located at (i) the Grantors' distribution center
at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, (ii) the Grantors' storage
facility at 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx and (iii)
at the Grantors' business offices at 000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx.
"Excluded Assets": collectively, Copyright Licenses, Trademark
Licenses, Patent Licenses or Trade Secret Licenses to the extent the
grant by such Grantor of a security interest therein pursuant to this
Agreement in its right, title and interest therein (A) is prohibited by
the terms of any contract, agreement, instrument, license or permit
governing the terms of such Intellectual Property without the consent
of any other party thereto (other than any Grantor), (B) would give any
other party (other than any Grantor) to such contract, agreement,
instrument, license or permit the right to terminate its obligations
thereunder, or (C) is permitted only upon obtaining consents from the
other parties thereto (other than any Grantor) which have not been
obtained; provided, that the foregoing limitation shall not affect,
limit, restrict or impair the grant by such Grantor of a security
interest pursuant to this Agreement in any money or other amounts due
or to become due under any such contract, agreement, instrument,
license or permit, or in the Proceeds from the Disposition of any such
contract, agreement, instrument, license or permit.
"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.
"Intellectual Property": the collective reference to (i) the
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses, Trade Secrets and Trade Secret Licenses listed on
Schedule 5, (ii) all other rights, priorities and privileges relating
to intellectual property, including, without limitation, any other
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks,
Trademark Licenses, Trade Secrets and Trade Secret Licenses, and (iii)
all rights to xxx at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and
damages therefrom; provided, however, that Intellectual Property shall
exclude (A) intangible assets related to such Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses,
Trade Secrets and Trade Secret Licenses owned by third parties, (B) any
intangible assets related to such Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks, Trademark Licenses, Trade Secrets
and Trade Secret Licenses associated with Xxxxxxxxx Xxxxxx fragrances
and cosmetics and (C) products of the Company and/or its Subsidiaries
sold in Colombia under the "Xxxxxxxxx Xxxxx," "Xxxxx for Men" and "Body
Clear" brand names, in each case with respect to deodorant and
antiperspirant products; provided, further, that, with respect to
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clauses (i) and (ii) above only, such rights, priorities and privileges
shall be deemed to be Intellectual Property hereunder only,
(a) to the extent acquired in the Arden Acquisition,
(b) to the extent a perfected lien (or its equivalent) may be
created therein,
(c) to the extent products related to such Intellectual
Property are manufactured by any Grantor (or its predecessor) at the
time the Notes are issued, and
(d) to the extent registered, registrable, used or useful in:
(i) the United States;
(ii) member states of the European Union;
(iii) Argentina, Australia, Brazil, Canada,
Indonesia, Japan, Korea, Mexico, New Zealand, Puerto Rico,
Saudi Arabia, Singapore, South Africa, Switzerland and Taiwan;
or
(iv) in any other jurisdiction in which the Company
or any Subsidiary of the Company avails itself of such
jurisdiction's laws to register, file, preserve or otherwise
protect or evidence its interest in such Intellectual Property
within 90 days of the Arden Acquisition.
"New York UCC": the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations": as defined in Section 2.3(a) hereof.
"Patent License": all agreements, whether written or oral,
providing for the grant by any Grantor of any right to manufacture, use
or sell any invention covered in whole or in part by a Patent,
including, without limitation, any of the foregoing referred to in
Schedule 5.
"Patents": (i) all patents, patent applications and patentable
inventions, including, without limitation, each patent and patent
application identified in Schedule 5, (ii) all inventions and
improvements described and claimed therein, (iii) the right to xxx or
otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all Patent Licenses entered into in connection therewith, and
damages and payments for past, present or future infringement thereof),
and (v) all reissues, divisions, continuations, continuations-in-part,
substitutes, renewals, and extensions thereof, all improvements thereon
and all other rights of any kind whatsoever accruing thereunder or
pertaining thereto.
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"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the New York UCC as in effect on the date hereof and, to
the extent such definition is no less expansive or inclusive, in any
future version of the New York UCC.
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, 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 such Person or
any of its Property or to which such Person or any of its Property is
subject.
"Satisfaction Date": the date on which all Obligations have
been paid in full in cash.
"Secured Parties": collectively, the Collateral Agent, the
Trustee and the Holders of the Notes.
"Securities Act": the Securities Act of 1933, as amended.
"Tax" or "Taxes" shall mean all federal, state, local and
foreign taxes, charges, fees, levies, imposts, duties or other
assessments, including income, gross receipts, excise, unemployment,
sales, use, transfer, license, payroll, franchise, severance, stamp,
occupation, windfall profits, environmental (including taxes under the
Internal Revenue Code of 1986, as amended, section 59A), premium,
federal highway use, commercial rent, customs duties, capital stock,
paid-up capital, profits, withholding, social security, single business
and unemployment, disability, real property, personal property,
registration, ad valorem, value added, alternative or add-on minimum,
estimated or estimable, or other tax or governmental fee of any kind
whatsoever, imposed or required to be withheld by the United States or
any state, local, foreign government or subdivision or agency thereof,
including any interest, penalties or additions thereto, and shall
include any liability in respect of Taxes as a transferee or as an
indemnitor, guarantor, surety or in a similar capacity under any
contract, arrangement, understanding or commitment (whether oral or
written).
"Trademark License": any agreement, whether written or oral,
providing for the grant by any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in Schedule 5.
"Trademarks": (i) all trademarks, service marks, trade names,
corporate names, company names, business names, trade dress, trade
styles, logos, or other indicia of origin or source identification,
trademark and service xxxx registrations, and applications for
trademark or service xxxx registrations and any renewals thereof, in
all forms and formatives, including composites, and any use or xxxx
that includes any of the foregoing or any use or xxxx that is
confusingly similar to, or likely to be confused with, any of the
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foregoing, including, without limitation, each registration and
application and identified in Schedule 5, (ii) the right to xxx or
otherwise recover for any and all past, present and future
infringements and 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 Trademark Licenses entered into in connection therewith, and
damages and payments for past, present or future infringements
thereof), and (iv) all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together in each case with the
goodwill of the business connected with the use of, and symbolized by,
each of the above.
"Trade Secret License": any agreement, whether written or
oral, providing for the grant by any Grantor of any right to use any
Trade Secret, including, without limitation, any of the foregoing
referred to in Schedule 5.
"Trade Secrets": (i) all trade secrets and all confidential
and proprietary information, including know-how, customer lists,
manufacturing and production processes and techniques, inventions,
research and development information, technical data, financial,
marketing and business data, pricing and cost information, business and
marketing plans, and customer and supplier lists and information
acquired in the Arden Acquisition, (ii) the right to xxx or otherwise
recover for any and all past, present and future infringements and
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, present or future infringements thereof), and (iv) all other
rights of any kind whatsoever of any Grantor accruing thereunder or
pertaining thereto.
1.2. Other Definitional Provisions. (a) The words "hereof",
"herein", "hereto" 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 Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
(d) The expressions "payment in full," "paid in full" and any
other similar terms or phrases when used herein with respect to any Grantor's
Obligations shall mean the payment in full, in immediately available funds, of
all of such Grantor's Obligations.
SECTION 2. GRANT OF SECURITY INTEREST
2.1. Grant of Security. Each Grantor hereby assigns and
transfers to the Collateral Agent, and hereby grants to the Collateral Agent,
for the ratable benefit of the Secured Parties, a security interest (and for the
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purposes of Quebec, Canada, a hypothec) in, all of the following property now
owned or used, or useful to the Grantor by such Grantor (collectively, the
"Collateral"), as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor's Obligations (including, but not limited to,
$160,000,000 initial aggregate principal amount of the Notes together with
accrued and unpaid interest thereon):
(a) all Equipment;
(b) all Intellectual Property;
(c) all books and records pertaining to the Collateral; and
(d) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding anything to the contrary in this Agreement,
none of the Excluded Assets shall constitute Collateral.
2.2. Security for Obligations. This Agreement secures the
payment in full in cash of all Obligations under the Indenture and the Notes.
2.3. Continuing Security Interest. This Agreement shall create
a continuing security interest in the Collateral and shall:
(a) remain in full force and effect until the satisfaction of
all obligations of the Grantors under the Indenture, the Security Documents and
the Notes (collectively, the "Obligations");
(b) be binding upon the Grantors, their successors,
transferees and assigns; and
(c) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent, the Trustee
and the Holders.
2.4. Security Interest Absolute. All rights of the Collateral
Agent and the security interests granted to the Collateral Agent hereunder, and
all obligations of the Grantors hereunder, shall be absolute and unconditional,
irrespective of:
(a) any lack of validity or enforceability of the Indenture or
any other document or agreement;
(b) the failure of the Collateral Agent, the Trustee or any
Holder:
(i) to assert any claim or demand or to enforce any right or
remedy against any Grantor or any other Person under the provisions of
the Indenture or any other document or agreement or otherwise, or
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(ii) to exercise any right or remedy against any guarantor of,
or collateral securing, any Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations or any other extension,
compromise or renewal of any Obligations;
(d) any reduction, limitation, impairment or termination of
any Obligations for any reason (other than the repayment in full and in cash of
all Obligations), including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to (and Assignor hereby waives any right
to or claim of) any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise or unenforceability of, or any other event or
occurrence affecting, any Obligations or otherwise;
(e) any amendment to, rescission, waiver or other modification
of, or any consent to departure from, any of the terms of the Indenture or any
other document or agreement;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral (including the Collateral), or any amendment to
or waiver or release of or addition to or consent to departure from any
guaranty, for any of the Obligations; or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any Grantor, any
surety or any guarantor.
2.5. Grantors Remain Liable. Anything herein to the contrary
notwithstanding:
(a) Each Grantor will remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein, and will
perform all of its duties and obligations under such contracts and agreements to
the same extent as if this Agreement had not been executed;
(b) the exercise by the Collateral Agent of any of its rights
hereunder will not release Grantors from any of their duties or obligations
under any such contracts or agreements included in the Collateral; and
(c) neither the Collateral Agent nor any Holder will have any
obligation or liability under any such contracts or agreements included in the
Collateral by reason of this Agreement, nor will the Collateral Agent or any
other Collateral Agent or any Holder be obligated to perform any of the
obligations or duties of Grantors thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Holders to purchase the Notes and the Trustee to
enter into the Indenture, each Grantor hereby represents and warrants to the
Secured Parties that:
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3.1. Title; No Other Liens. Such Grantor owns each item of the
Collateral free and clear of any and all Liens or claims, except for Designated
Permitted Liens. No 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,
except such as have been filed in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, pursuant to this Agreement or as are permitted
by the Indenture.
3.2. Perfected First Priority Liens. The security interests
granted pursuant to this Agreement (a) constitute valid perfected security
interests in all of the Collateral in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, as collateral security for such
Grantor's Obligations, enforceable in accordance with the terms hereof against
all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor and (b) are prior to all other Liens on the
Collateral except for Designated Permitted Liens.
3.3. Chief Executive Office. On the date hereof, such
Grantor's jurisdiction of organization and the location of such Grantor's chief
executive office or sole place of business are specified on Schedule 3.
3.4. Equipment and Books and Records. On the date hereof, the
Equipment (other than mobile goods) and the books and records pertaining to the
Collateral are kept at the locations listed on Schedule 4.
3.5. Intellectual Property. (a) Except as set forth in
Schedule 5, such Grantor is the owner of or has the right to use (or, in the
case of patents and patent applications, to exclude others from using) all of
such Intellectual Property free and clear of any Liens (other than Designated
Permitted Liens), and is otherwise entitled to use all such Intellectual
Property, without limitation, subject only to the license terms of the licensing
or franchise agreements referred to in paragraph (c) below.
(b) To such Grantor's knowledge, on the date hereof, all
Intellectual Property is valid, subsisting, unexpired and enforceable and has
not been abandoned.
(c) Except as set forth in Schedule 5, on the date hereof (i)
none of the Intellectual Property is the subject of any licensing or franchise
agreement pursuant to which such Grantor is the licensor or franchisor, and (ii)
there are no other agreements, obligations, orders or judgments which affect the
use of any Intellectual Property.
(d) To such Grantor's knowledge, the rights of such Grantor in
or to the Intellectual Property do not conflict with or infringe upon the rights
of any third party, and, except as set forth on Schedule 5, no claim has been
asserted that the use of such Intellectual Property does or may infringe upon
the rights of any third party. To such Grantor's knowledge, there is currently
no infringement or unauthorized use of any item of Intellectual Property.
(e) To such Grantor's knowledge, no holding, decision or
judgment has been rendered by any Governmental Authority which would limit,
cancel or question the validity or enforceability of, or such Grantor's rights
in, any Intellectual Property in any respect that could reasonably be expected
to have a material adverse effect on the value of the Intellectual Property
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taken as a whole. Except as set forth on Schedule 5, such Grantor is not aware
of any uses of any item of material Intellectual Property that could reasonably
be expected to lead to such item becoming invalid or unenforceable including,
without limitation, unauthorized uses by third parties and uses which were not
supported by the goodwill of the business connected with Trademarks and
Trademark Licenses.
(f) Except as set forth on Schedule 5, no action or proceeding
is pending, or, to the knowledge of such Grantor, threatened, on the date hereof
(i) seeking to limit, cancel or question the validity of any Intellectual
Property or such Grantor's ownership interest therein, (ii) alleging that
Grantor's operation of the Xxxxxxxxx Xxxxx Business infringes any patent,
trademark, copyright, or any other right of any third party, (iii) alleging that
any material Intellectual Property is being licensed, sublicensed or used in
violation of any patent, trademark, copyright or any other right of any third
party, or (iv) which, if adversely determined, would have a material adverse
effect on the value of the Intellectual Property taken as a whole. To the
knowledge of such Grantor and except as set forth on Schedule 5, no Person is
engaging in any activity that infringes upon the Intellectual Property or upon
the rights of such Grantor therein. Except as set forth on Schedule 5 and except
with respect to the licenses granted to Conopco, Inc., such Grantor has not
granted any license, release, covenant not to xxx, non-assertion assurance or
other similar right to any Person with respect to any part of the Intellectual
Property. The consummation of the transactions contemplated by this Agreement
will not result in the termination or impairment of any of the Intellectual
Property.
(g) Except as set forth on Schedule 5, with respect to each
Copyright License, Trademark License and Patent License: (i) such license is
valid and binding and in full force and effect and represents the complete and
correct agreement between the respective licensor and licensee with respect to
the subject matter of such license; (ii) such Grantor has not received any
notice of termination or cancellation under such license; (iii) such Grantor has
not received any notice of a breach or default under such license, which breach
or default has not been cured; (iv) such Grantor has not granted to any other
third party any rights, adverse or otherwise, under such license; and (v) such
Grantor is not in material default, and no event has occurred that, with notice
and/or lapse of time, would constitute such a material default or permit
termination, modification or acceleration under such license.
(h) To such Grantor's knowledge, (i) none of the Trade Secrets
of such Grantor has been used, divulged, disclosed or appropriated to the
detriment of such Grantor for the benefit of any other Person, and (ii) no
employee, independent contractor or agent of such Grantor is in default or
breach of any term of any employment agreement, non-disclosure agreement,
assignment of inventions agreement or similar agreement or contract relating in
any way to the protection, ownership, development, use or transfer of such
Grantor's Intellectual Property.
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SECTION 4. COVENANTS
Each Grantor covenants and agrees with the Secured Parties
that, from and after the date of this Agreement until the Obligations shall have
been paid in full in cash:
4.1. Covenants in Indenture. Each Grantor shall take, or shall
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by such Grantor or any of its Subsidiaries.
4.2. Maintenance of Insurance. (a) Such Grantor will maintain,
with financially sound and reputable insurance companies, insurance on all
Collateral and, to the extent customary, on all of its other property 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; and furnish to the Collateral Agent, upon written request, full
information as to the insurance carried.
(b) Such Grantor will deliver to the Collateral Agent on
behalf of the Secured Parties, (i) on the Closing Date, a certificate dated such
date showing the amount and types of insurance coverage as of such date, and
(ii) upon request of the Collateral Agent from time to time, full information as
to the insurance carried. Each of the Collateral Agent and the Trustee for the
benefit of the Secured Parties shall be named as additional insured on all such
liability insurance policies of such Grantor and the Collateral Agent shall be
named as loss payee on all property and casualty insurance policies of such
Grantor with respect to the Collateral.
4.3. 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 imposed upon the Collateral 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 the
Collateral, except that no such charge need be paid if (i) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings, (ii) reserves in conformity with GAAP with respect thereto have
been provided on the books of such Grantor and (iii) such proceedings could not
reasonably be expected to result in the sale, forfeiture or loss of any material
portion of the Collateral or any interest therein; provided, however, that if
such Collateral is no longer used or useful and there is no intention to use
such Collateral in the future, this paragraph shall not apply.
4.4. Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall take whatever actions are necessary or
desirable to maintain the security interest created by this Agreement as a
perfected security interest having at least the priority described in Section
3.2, including but not limited to recording the same in recordal offices of the
United States Patent and Trademark Office and the United States Copyright Office
and in the appropriate recordal offices of foreign jurisdictions (including
payment of all fees) and shall defend such security interest against the claims
and demands of all Persons whomsoever.
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(b) Such Grantor will furnish to the Secured Parties from time
to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the assets and property of
such Grantor as the Collateral Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of such Grantor, such
Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as the
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 (or other similar
laws) or the laws governing Intellectual Property in effect in any jurisdiction
with respect to the security interests created hereby.
4.5. Sales of Collateral. Such Grantor will not consummate the
sale of any Collateral, except as permitted by the Indenture. Notwithstanding
the foregoing, such Grantor will not transfer any portion of the Collateral to
the Company or any Affiliate of the Company that is not a Guarantor under the
Indenture and a party to this Agreement.
4.6. Changes in Locations, Name, etc. Such Grantor will not,
except (i) upon 30 days' prior written notice to the Collateral Agent and (ii)
(a) the filing of all additional executed financing statements and other
documents as may be required by applicable law or reasonably requested by the
Collateral Agent to maintain the validity, perfection and priority of the
security interests provided for herein and (b) if applicable, the delivery to
the Collateral Agent of a written supplement to Schedule 4 showing any
additional location at which Equipment (other than mobile goods) or books and
records pertaining to the Collateral shall be kept:
(i) permit any of the Equipment (other than mobile goods) or
books and records pertaining to the Collateral to be kept at a location
other than those listed on Schedule 4;
(ii) change its jurisdiction of organization or the location
of its chief executive office or sole place of business from that
referred to in Section 3.3; or
(iii) change its name, identity or structure to such an extent
that any financing statement or other document filed by the Collateral
Agent in connection with this Agreement would become misleading;
provided, however, that in the case of the initial name change of the Company,
the Company must provide at least two (2) business days prior written notice to
the Collateral Agent of such change and satisfy the requirements of clause
(ii)(a) above on or prior to the effective date of such name change.
4.7. Notices. Such Grantor will advise the Secured Parties
promptly, in reasonable detail, of:
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(a) any Lien (other than any Designated Permitted Lien) on any
of the Collateral which would adversely affect the ability of the Collateral
Agent to exercise any of its remedies hereunder; and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the aggregate value
of the Collateral or on the security interests created hereby.
4.8. Intellectual Property. (a) Such Grantor (either itself or
through licensees) will (i) continue to use each material 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, (ii) use
such Trademark with the appropriate notice of registration and all other notices
and legends required by applicable Requirements of Law, and (iii) not (and not
permit any licensee or sublicensee thereof to) do any act or knowingly omit to
do any act whereby such Trademark may become invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not
do any act, or omit to do any act, whereby any material Patent may become
forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will
employ each material Copyright and (ii) will not (and will not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby any material portion of the Copyrights may become invalidated or
otherwise impaired. Such Grantor will not (either itself or through licensees)
do any act whereby any material portion of the Copyrights may fall into the
public domain.
(d) Such Grantor (either itself or through licensees) will not
do any act that knowingly uses any material Intellectual Property to infringe
the intellectual property rights of any other Person.
(e) Such Grantor (either itself or through licensees) will use
proper statutory notice in connection with the use of each material Patent,
Trademark and Copyright included in the Intellectual Property.
(f) Such Grantor will notify the Collateral Agent immediately
if it knows, or has reason to know, that any application or registration
relating to any material Intellectual Property may become forfeited, abandoned
or dedicated to the public, or of any adverse determination or 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 in any country)
regarding such Grantor's ownership of, or the validity of, any material
Intellectual Property or such Grantor's right to register the same or to own and
maintain the same.
(g) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent and
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Xxxxxxxxx Xxxxxx, xxx Xxxxxx Xxxxxx Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, such Grantor
shall report such filing to the Collateral Agent within five Business Days after
the last day of the fiscal quarter in which such filing occurs. Upon request of
the Collateral Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Collateral
Agent may request to evidence the Secured Parties' security interest in any
Copyright, Patent, Trademark or other Intellectual Property and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby.
(h) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of material Intellectual Property, including, without
limitation, the payment of required fees and taxes, the filing of responses to
office actions issued by the United States Patent and Trademark Office and the
United States Copyright Office, the filing of applications for renewal or
extension, the filing of affidavits of use and affidavits of incontestability,
the filing of divisional, continuation, continuation-in-part, reissue, and
renewal applications or extensions, the payment of maintenance fees, and the
participation in interference, reexamination, opposition, cancellation,
infringement and misappropriation proceedings.
(i) Such Grantor (either itself or through licensees) will not
discontinue use of or otherwise abandon any Intellectual Property, or abandon
any application or any right to file an application for letters patent,
trademark, or copyright, unless such Grantor shall have previously determined
that such use or the pursuit or maintenance of such Intellectual Property is no
longer desirable in the conduct of such Grantor's business and that the loss
thereof could not reasonably be expected to have a material adverse effect on
the value of the Collateral as a whole.
(j) In the event that any material Intellectual Property is
infringed, misappropriated or diluted by a third party, such Grantor shall (i)
take such actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) promptly notify the
Collateral Agent after it learns thereof and xxx for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
(k) If the Company or any Subsidiary of the Company, either by
itself or through any agent, employee, licensee or designee, avails itself of
the laws of any jurisdiction not listed in the definition of Intellectual
Property above to any other jurisdiction's laws to register, file, preserve or
otherwise protect or evidence in such jurisdiction its interest in any
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark
Licenses, Trade Secrets or Trade Secret Licenses included in the Arden
Acquisition within 90 days of the Arden Acquisition (for purposes of this
Section 4.8(k), the above-described interest is referred to herein as the
"Additional-Acquired Intellectual Property"), then (x) to the extent such
Additional Acquired Intellectual Property is already Collateral hereunder, the
Company or such Subsidiary shall work in good faith with the Collateral Agent to
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cause the Collateral Agent's security interest in such Additional Acquired
Intellectual Property promptly to be perfected (or its equivalent) in such
jurisdiction or (y) to the extent such Additional-Acquired Intellectual Property
is not already Collateral hereunder, the Company or such Subsidiary agrees that
(i) the provisions of Section 2 shall automatically apply thereto, (ii) any such
Additional-Acquired Intellectual Property, and in the case of trademarks, the
goodwill of the business connected therewith or symbolized thereby, shall
automatically become part of the Collateral, (iii) it shall give prompt (and, in
any event within 15 days after the date of such acquisition) written notice
thereof to the Collateral Agent in accordance herewith, and (iv) it shall
provide the Collateral Agent promptly (and, in any event within 15 days after
the date of such acquisition) with an amended Schedule 5 hereto and amended
schedules to the Intellectual Property Security Agreement reflecting the
acquisition of such Additional-Acquired Intellectual Property. Such Grantor
authorizes the Collateral Agent to modify this Agreement by amending Schedule 5
hereto and to modify the schedules to the Intellectual Property Security
Agreement if such Grantor fails to provide the Collateral Agent with
satisfactory amended schedules hereto or thereto within the time period required
hereunder (and will cooperate with the Collateral Agent in effecting any such
amendment) to include any Additional-Acquired Intellectual Property which
becomes part of the Collateral under this Section, and to record any such
modified agreement with the applicable Governmental Authorities.
(l) Such Grantor agrees to execute an Intellectual Property
Security Agreement with respect to its Intellectual Property in substantially
the form of Exhibit A in order to record the security interest granted herein to
the Collateral Agent for the ratable benefit of the Secured Parties with the
United States Patent and Trademark Office, the United States Copyright Office,
and any other applicable Governmental Authority.
(m) On the Closing Date, such Grantor shall use commercially
reasonable efforts to furnish to the Collateral Agent opinions of special
foreign counsel duly qualified to practice in the area of intellectual property
in each jurisdiction listed on Schedule 7 (the "Primary Jurisdictions") hereto,
which opinions shall be dated the date hereof and shall be addressed to the
Collateral Agent, in respect of all Collateral secured or purported to be
secured pursuant to the Security Agreement in each such jurisdiction,
substantially as to the matters set forth in Exhibit B hereto, with such changes
as may be required by local law.
4.9. Post Closing Covenants(a) . (a) Such Grantor shall
promptly perform all acts and pay all required fees and taxes to maintain each
and every item of material Intellectual Property in full force and effect and to
protect and maintain its interest therein. Such Grantor shall use proper
statutory notice in connection with its use of each material Patent, Trademark
and Copyright included in the Intellectual Property.
(b) Such Grantor shall promptly make all filings and
recordations necessary to adequately protect its interest in its material
Intellectual Property including, without limitation, recordation of its
interests in the Patents and Trademarks with the United States Patent and
Trademark Office and in corresponding national and international patent offices
in the jurisdictions listed on Schedule 7 and Schedule 8, and recordation of any
of its interests in the Copyrights with the United States Copyright Office and
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in corresponding national and international copyright offices in the
jurisdictions listed on Schedule 7 and Schedule 8.
(c) Such Grantor will take all steps to use consistent
standards of quality in the manufacture, distribution and sale of all products
sold and provision of all services to be provided under or in connection with
any item of Intellectual Property and will take all steps to ensure that all
licensed users of any kind of Intellectual Property use such consistent
standards of quality.
(d) Within 90 days after the date hereof, such Grantor shall
furnish to the Collateral Agent opinions of special foreign counsel duly
qualified to practice in the area of intellectual property in each jurisdiction
listed on Schedule 7 hereto, in respect of all Collateral secured or purported
to be secured pursuant to this Agreement in each such jurisdiction,
substantially as to the matters set forth in Exhibit B hereto (but only to the
extent such matters were not opined to by any such special foreign counsel in
its opinion delivered pursuant to Section 4.8(m) hereto), with such changes as
may be required by local law; provided, however, that if such counsel is unable
to provide such opinion with respect to any item of Collateral, the Company
shall use its commercially reasonable efforts to correct the defect preventing
such counsel from providing such opinion; provided, further, that if the Company
is unable to correct such defect on commercially reasonable terms, such opinion
will nevertheless satisfy the provisions of this clause (d) if and only if the
Company delivers an Officers' Certificate certifying that the failure of such
Grantor to grant a valid security interest hereunder, and/or the failure to
perfect such security interest, in any item of Collateral excepted from such
opinion will not materially adversely affect the value of the Collateral.
(e) Within 90 days after the date hereof, such Grantor shall
furnish to the Collateral Agent certificates of filing of special foreign
counsel duly qualified to practice in the area of intellectual property in each
jurisdiction listed on Schedule 8 hereto (the "Secondary Jurisdictions"), in
respect of all Collateral secured or purported to be secured pursuant to this
Agreement in each such jurisdiction, evidencing perfection of all Collateral
secured or purported to be secured pursuant to this Agreement in each such
jurisdiction; provided, however, that if such counsel is unable to provide such
certificate of filing with respect to any item of Collateral, the Company shall
use its commercially reasonable efforts to correct the defect preventing such
counsel from providing such certificate of filing; provided, further, that if
the Company is unable to correct such defect on commercially reasonable terms,
such certificate of filing will nevertheless satisfy the provisions of this
clause (e) if and only if the Company delivers an Officers' Certificate
certifying that the failure of such Grantor to grant a valid security interest
hereunder, and/or the failure to perfect such security interest, in any item of
Collateral excepted from such certificate of filing will not materially
adversely affect the value of the Collateral.
SECTION 5. REMEDIAL PROVISIONS
5.1. Proceeds to be Turned Over to Collateral Agent. If an
Event of Default shall occur and be continuing, all Proceeds received by any
Grantor consisting of cash, Cash Equivalents, checks and other near-cash items
shall be held by such Grantor in trust for the Secured Parties, segregated from
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other funds of such Grantor, and shall, forthwith upon receipt by such Grantor,
be turned over to the Collateral Agent in the exact form received by such
Grantor (duly endorsed by such Grantor to the Collateral Agent, if required).
All Proceeds received by the Collateral Agent hereunder or under the Indenture
shall be held by the Collateral Agent in a Collateral Account maintained under
its sole dominion and control. All Proceeds while held by the Collateral Agent
in a Collateral Account (or by such Grantor in trust for the Secured Parties)
shall continue to be held as collateral security for all the Obligations and
shall not constitute payment thereof until applied as provided under the
Indenture or under Section 5.2 hereof.
5.2. Application of Proceeds. At any time after an Event of
Default has occurred and is continuing, at the written direction of the Trustee
pursuant to Section 10.06 of the Indenture, the Collateral Agent shall apply all
or any part of Proceeds constituting Collateral realized through the exercise by
the Collateral Agent of its remedies hereunder, whether or not held in any
Collateral Account in payment of the Obligations in the following order:
First, to pay incurred and unpaid fees and expenses of the
Collateral Agent under Section 7.4; and
Second, to pay to the Trustee for distribution pursuant to
Section 6.10 of the Indenture.
5.3. Code and Other Remedies. (a) If an Event of Default shall
occur and be continuing, the Collateral Agent, at the written direction of the
Trustee pursuant to Section 10.06 of the Indenture and on behalf of the Secured
Parties, shall exercise, in addition to all other rights and remedies granted to
them in this Agreement, the Indenture and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the New York UCC (whether or not the New York UCC applies
to the affected Collateral) or any other applicable law. Without limiting the
generality of the foregoing, the 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), may in such circumstances 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), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of any Secured Party 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. Each Secured Party 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 and released. Each Grantor further agrees, at the
Collateral Agent's request, to assemble the Collateral and make it available to
the Collateral Agent at places which the Collateral Agent shall reasonably
select, whether at such Grantor's premises or elsewhere. The Collateral Agent
17
shall apply the net proceeds of any action taken by it pursuant to this Section
5.3, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith 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 Secured
Parties hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in the
order set forth in Section 5.2 hereof, and only after such application and after
the payment by the Collateral Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(l)(c) of the New
York UCC, need the Collateral Agent account for the surplus, if any, to any
Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against any Secured Party arising out
of the exercise by them of any rights hereunder. 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.
(b) In the event of any Disposition of any of the Intellectual
Property, the goodwill of the business connected with and symbolized by any
Trademarks subject to such Disposition shall be included, and the applicable
Grantor shall supply the Collateral Agent or its designee with such Grantor's
know-how and expertise, and with documents and things embodying the same,
relating to the manufacture, distribution, advertising and sale of products or
the provision of services relating to any Intellectual Property subject to such
Disposition, and such Grantor's customer lists and other records and documents
relating to such Intellectual Property and to the manufacture, distribution,
advertising and sale of such products and services.
5.4. Waiver; Deficiency. Each Grantor waives and agrees not to
assert any rights or privileges which it may acquire under Section 9-112 of the
New York UCC. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay its Obligations and the fees and disbursements of any attorneys employed by
any Secured Party to collect such deficiency.
SECTION 6. THE COLLATERAL AGENT
6.1. Collateral Agent's Appointment as Attorney-in-Fact, etc.
(a) Each Grantor hereby irrevocably constitutes and appoints the 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, 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 Collateral Agent the power and right, on behalf of such
Grantor, without notice to or assent by such Grantor, to do any or all of the
following:
(i) in the name of such Grantor or its own name, or otherwise,
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under
any Intellectual Property or with respect to any other Collateral and
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file any claim or take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Collateral Agent
for the purpose of collecting any and all such moneys due under any
Intellectual Property or with respect to any other Collateral whenever
payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Collateral Agent may request to evidence
the Secured Parties' security interest in such Intellectual Property
and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of
the premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in
Section 5.3, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral; and
(v) (1) 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 Collateral Agent or as the Collateral
Agent shall direct; (2) ask for or demand, collect, and 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; (3) sign and endorse 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; (4) 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 portion thereof
and to enforce any other right in respect of any Collateral; (5) defend
any suit, action or proceeding brought against such Grantor with
respect to any Collateral; (6) settle, compromise or adjust any such
suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Collateral Agent may deem appropriate;
(7) assign any Copyright, Patent or Trademark (along with the goodwill
of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such
conditions, and in such manner, as the Collateral Agent shall in its
sole discretion determine; and (8) generally, 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 Collateral Agent
were the absolute owner thereof for all purposes, and do, at the
Collateral Agent's option and such Grantor's expense, at any time, or
from time to time, all acts and things which the Collateral Agent deems
necessary to protect, preserve or realize upon the Collateral and the
Secured Parties' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.
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Anything in this Section 6.1(a) to the contrary
notwithstanding, the Collateral Agent agrees that it will not exercise any
rights under the power of attorney provided for in this Section 6.1(a) unless an
Event of Default shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Collateral Agent, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such agreement.
(c) The expenses of the Collateral Agent incurred in
connection with actions undertaken as provided in this Section 6.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Notes, from the date of payment by
the Collateral Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All 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.
6.2. Duty of Collateral Agent. The 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 New York UCC or
otherwise, shall be to deal with it in the same manner as the Collateral Agent
deals with similar property for its own account. Neither the Collateral Agent,
nor any other Secured Party nor any of their respective officers, directors,
partners, employees, agents, attorneys and other advisors, attorneys-in-fact or
affiliates 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 Secured Parties
hereunder are solely to protect the Secured Parties' interests in the Collateral
and shall not impose any duty upon any Secured Party to exercise any such
powers. The Secured Parties 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, partners, employees, agents, attorneys and
other advisors, attorneys-in-fact or affiliates shall be responsible to any
Grantor for any act or failure to act hereunder, except to the extent that any
such act or failure to act is found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted solely and proximately from
their own gross negligence or willful misconduct in breach of a duty owed to
such Grantor.
6.3. Rights of Collateral Agent(a) . (a) The Collateral Agent
agrees to perform the duties and responsibilities set forth herein, but only
such duties and responsibilities and only on the terms and conditions herein
stated, and no implied duties or obligations shall be read herein against the
Collateral Agent.
(b) The Collateral Agent shall not be required to use its own
funds in the performance of any of its obligations or duties, or in the exercise
20
of any rights or powers, and shall not be required to take any action which, in
the Collateral Agent's sole reasonable judgment, could involve it in expense or
liability unless furnished with security and indemnity which the Collateral
Agent deems, in its reasonable discretion, to be satisfactory. In no event shall
the Collateral Agent be liable for any amount in excess of the Collateral.
(c) The Collateral Agent shall not be responsible in any
manner for the validity or sufficiency of any property delivered hereunder, or
for the value or collectability of any note, check or other instrument so
delivered, or for any representations made or obligations assumed by any party
other than the Collateral Agent. Nothing herein contained shall be deemed to
obligate the Collateral Agent to deliver any cash, instruments, documents or any
other property referred to herein, unless the same shall have first been
received by the Collateral Agent pursuant to this Agreement.
(d) The Collateral Agent may consult with counsel and the
advice subsequently confirmed in writing or opinion of counsel shall be full and
complete authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such advice or opinion of
counsel.
(e) The Collateral Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent entitlement
order, approval or other paper or document furnished to the Collateral Agent
pursuant to any provision of this Agreement.
(f) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Collateral Agent has been advised of
the likelihood of such loss or damage regardless of the form of action.
6.4. Execution of Financing Statements. Pursuant to the New
York UCC and any other applicable law, each Grantor authorizes the Collateral
Agent to file or record financing statements and other filing or recording
documents or instruments with respect to the Collateral without the signature of
such Grantor in such form and in such offices as the Collateral Agent reasonably
determines appropriate to perfect or maintain the perfection of the security
interests of the Collateral Agent under this Agreement. A photographic or other
reproduction of this Agreement shall be sufficient as a financing statement or
other filing or recording document or instrument for filing or recording in any
jurisdiction; provided, however, that this instrument or a photographic or other
reproduction of this instrument may not be filed in the State of Florida.
6.5. Authority of Collateral Agent. Each Grantor acknowledges
that the rights and responsibilities of the Collateral Agent under this
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the 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 Collateral Agent and the
other Secured Parties, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Collateral Agent and the Grantors, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Secured Parties with full
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and valid authority so to act or refrain from acting, and no Grantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
6.6. Replacement of Collateral Agent(a) . (a) A resignation or
removal of the Collateral Agent and appointment of a successor Collateral Agent
shall become effective only upon the successor Collateral Agent's acceptance of
appointment as provided in this Section 6.6.
(b) The Collateral Agent may resign in writing at any time and
be discharged from the trust hereby created by so notifying the Trustee and the
Company. The Trustee may remove the Collateral Agent by so notifying the
Collateral Agent and the Company in writing.
(c) If the Collateral Agent resigns or is removed or if a
vacancy exists in the office of Collateral Agent for any reason, the Trustee
shall promptly appoint a successor Collateral Agent (which may be the Trustee,
unless the Trustee has resigned or has been removed pursuant to Section 7.08 of
the Indenture).
(d) If a successor Collateral Agent does not take office
within 60 days after the retiring Collateral Agent resigns or is removed, the
retiring Collateral Agent, the Trustee, the Company, or the Holders of at least
10% in principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Collateral Agent.
A successor Collateral Agent shall deliver a written
acceptance of its appointment to the retiring Collateral Agent, the Trustee and
the Company. Thereupon, the resignation or removal of the retiring Collateral
Agent shall become effective, and the successor Collateral Agent shall have all
the rights, powers and duties of the Collateral Agent under this Agreement, the
other Security Documents and the Indenture. The retiring Collateral Agent shall
promptly transfer all Collateral and other property held by it as Collateral
Agent to the successor Collateral Agent, provided that all sums owing to the
Collateral Agent hereunder have been paid and subject to the Lien provided for
in Section 7.4 hereof. Notwithstanding replacement of the Collateral Agent
pursuant to this Section 6.6, the Grantors' obligations under Section 7.4 hereof
shall continue for the benefit of the retiring Collateral Agent. The Grantors
shall take such actions as are necessary or desirable, in the opinion of counsel
to the successor Collateral Agent to maintain the perfection of the Liens
created by the Security Documents, all at the expense of the Grantors.
SECTION 7. MISCELLANEOUS
7.1. Amendments in Writing. None of the terms or provisions of
this Agreement may be waived, amended, supplemented or otherwise modified except
by a written instrument executed by each affected Grantor and the Collateral
Agent in accordance with Article 9 of the Indenture, provided that any provision
of this Agreement imposing obligations on any Grantor may be waived by the
Collateral Agent in a written instrument executed by the Collateral Agent in
accordance with Section 9.02 of the Indenture.
7.2. Notices. All notices, requests and demands to or upon the
Collateral Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 13.02 of the Indenture; provided that any such notice,
22
request or demand to or upon any Grantor shall be addressed to such Grantor at
its notice address set forth on Schedule 1.
7.3. No Waiver by Course of Conduct; Cumulative Remedies. No
Secured Party shall by any act (except by a written instrument pursuant to
Section 7.1), 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. No failure to exercise, nor any delay in exercising, on the part of any
Secured Party, 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 any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy that such Secured Party would otherwise have on any future
occasion. 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.
7.4. Enforcement Expenses; Indemnification. (a) Each Grantor
agrees to pay or reimburse the Collateral Agent for all its disbursements,
advances and expenses incurred in enforcing or preserving any rights under this
Agreement, the Indenture and the Notes including, without limitation, the
reasonable disbursements and expenses of the Collateral Agent's agents and
counsel.
(b) Each Grantor agrees to pay, and to save the Collateral
Agent harmless from, any and all losses, liabilities or expenses with respect
to, or resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect to any
of the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) The Company shall pay to the Collateral Agent from time to
time reasonable compensation for its services hereunder. The Company shall
reimburse the Collateral Agent promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Collateral Agent's agents and
counsel.
(d) The Grantors jointly and severally shall indemnify the
Collateral Agent against any and all losses, liabilities or expenses incurred by
it arising out of or in connection with the acceptance or administration of its
duties under this Agreement or the other Security Documents, and defending
itself against any claim (whether asserted by any Grantor or any Holder or any
other person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder except to the extent any such loss, liability
or expense may be attributable to its gross negligence or bad faith. The
Collateral Agent shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Collateral Agent to so notify the Company shall
not relieve the Grantors of their obligations hereunder. The Grantors shall
defend the claim and the Collateral Agent shall cooperate in the defense. The
23
Collateral Agent may have separate counsel and the Grantors shall pay the
reasonable fees and expenses of such counsel. The Grantors need not pay for any
settlement made without their consent, which consent shall not be unreasonably
withheld.
(e) To secure the Grantor's payment obligations in this
Section 7.4, the Collateral Agent shall have a Lien prior to the Notes on all
money or property held or collected by the Collateral Agent, except that held in
trust to pay principal, interest and Liquidated Damages, if any, on particular
Notes. Such Lien shall survive the satisfaction and discharge of the Indenture
and the resignation or removal of the Collateral Agent.
(f) When the Collateral Agent incurs expenses or renders
services after an Event of Default specified in Section 6.01(ix) or (x) of the
Indenture occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.
(g) The agreements in this Section shall survive the
resignation or removal of the Collateral Agent and repayment of the Obligations
and all other amounts payable under the Indenture and the Notes.
7.5. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Secured Parties and their successors and assigns; provided that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Collateral Agent.
7.6. Set-Off. Each Grantor hereby irrevocably authorizes each
Secured Party at any time and from time to time while an Event of Default shall
have occurred and be continuing, without notice to such Grantor or any other
Grantor, any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Secured
Party to or for the credit or the account of such Grantor, or any part thereof
in such amounts as such Secured Party may elect, against and on account of the
obligations and liabilities of such Grantor to such Secured Party hereunder and
claims of every nature and description of such Secured Party against such
Grantor, in any currency, whether arising hereunder, under the Indenture, the
Notes or otherwise, as such Secured Party may elect, whether or not any Secured
Party has made any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured. Each Secured Party shall notify such
Grantor promptly of any such set-off and the application made by such Secured
Party of the proceeds thereof; provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Secured Party under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Secured Party may have.
7.7. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
24
deemed to constitute one and the same instrument. This Agreement shall become
effective as of the date first above written and be binding upon a Grantor when
a counterpart hereof executed on behalf of such Grantor shall have been received
by the Collateral Agent.
7.8. 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.
7.9. 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.
7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS.
7.11. Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, the other Security Documents,
the Indenture and the Notes, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) 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;
(c) 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 such Grantor at its address referred to in Section 7.2 or
at such other address of which the Collateral Agent shall have been
notified pursuant thereto;
(d) 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 xxx in any other jurisdiction; and
25
(e) 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 Section any special, exemplary, punitive or
consequential damages.
7.12. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the other Security Documents, the
Indenture and the Notes;
(b) no Secured Party has any fiduciary relationship with or
duty to any Grantor arising out of or in connection with this Agreement, the
other Security Documents, the Indenture or the Notes, and the relationship
between the Grantors, on the one hand, and the Secured Parties, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other
Security Documents, the Indenture or the Notes or otherwise exists by virtue of
the transactions contemplated hereby among the Secured Parties or among the
Grantors and the Secured Parties.
7.13. Additional Grantors. Each Subsidiary of the Company that
is required to become a party to this Agreement shall become a Grantor for all
purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex 1 hereto.
7.14. Releases. (a) Subject to Sections 4.11 and 10.03 of the
Indenture, at such time as the Notes and the other Obligations shall have been
paid in full in cash, 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 Collateral Agent and each 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
Grantors. At the request and sole expense of any Grantor following any such
termination, the Collateral Agent shall deliver to such Grantor any Collateral
held by the Collateral Agent hereunder, and execute and deliver to such Grantor
such documents as such Grantor shall reasonably request to evidence such
termination.
(b) Subject to Sections 4.11 and 10.03 of the Indenture, if
any of the Collateral shall be Disposed of by any Grantor in a transaction
permitted by the Indenture, then the Collateral Agent, at the request and sole
expense of such Grantor, shall execute and deliver to such Grantor all releases
or other documents reasonably necessary or desirable for the release of the
Liens created hereby on such Collateral.
(c) In connection with any release of Collateral hereunder,
the Collateral Agent shall be entitled to receive an Officers' Certificate, each
stating that all conditions precedent to the release of such Collateral have
been complied with by the Grantors.
7.15. WAIVER OF JURY TRIAL. EACH GRANTOR AND THE COLLATERAL
AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
26
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER SECURITY DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
7.16. Intercreditor Agreement. The Collateral Agent is hereby
directed to execute and deliver the Intercreditor Agreement, dated as of the
date hereof, by and between the Collateral Agent and Fleet National Bank, a
national banking association, as Administrative Agent, for the banks and other
financial institutions from time to time parties to the Credit Agreement, as
accepted and consented to by the Company, and to perform its obligations
thereunder.
7.17. Consent to Jurisdiction and Service of Process. FFI GmbH
irrevocably consents to the jurisdiction of the courts of the State of New York
and the courts of the United States of America located in the Borough of
Manhattan, City and State of New York over any suit, action or proceeding with
respect to this Agreement or the transactions contemplated hereby. FFI GmbH
waives any objection that it may have to the venue of any suit, action or
proceeding with respect to this Agreement, the Indenture, Subsidiary Guarantee
or the transactions contemplated thereby in the courts of the State of New York
or the courts of the United States of America, in each case, located in the
Borough of Manhattan, City and State of New York, or that such suit, action or
proceeding brought in the courts of the State of New York or the United States
of America, in each case, located in the Borough of Manhattan, City and State of
New York was brought in an inconvenient court and agrees not to plead or claim
the same. FFI GmbH irrevocably appoints French Fragrances, Inc., 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent in the State of
New York upon which process may be served in any such suit or proceedings, and
agrees that service of process upon such agent, and written notice of said
service to FFI GmbH (Attention: Secretary), by the person serving the same to
the address provided in Section 7.2, shall be deemed in every respect effective
service of process upon FFI GmbH in any such suit or proceeding. FFI GmbH
further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of 10 years from the date hereof.
7.18. Effectiveness. As to FFI GmbH, the effectiveness of this
Agreement is subject to the Articles of Association of FFI GmbH, as amended on
January 22, 2001, being registered with the commercial registry of the Canton of
Zug and published with the Swiss Official Gazette ("Schweizerisches
Handelsamtsblatt").
27
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.
FRENCH FRAGRANCES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Marina
Title: Senior Vice President
DF ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Marina
Title: Secretary
FD MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Marina
Title: Secretary
FFI INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Marina
Title: Secretary
FFI GMBH
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Marina
Title: Attorney-in-fact
HSBC BANK USA,
as Collateral Agent on behalf of the Secured Parties
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
