[DEL]
Exhibit 10.33
EXHIBIT 10.33
TRADEMARK COLLATERAL ASSIGNMENT
AND SECURITY AGREEMENT
THIS TRADEMARK COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT is entered
into as of this 25th day of February, 2000, between DEL LABORATORIES, INC. (the
"Assignor" or the "Company"), a Delaware corporation having a mailing address at
000 XXX Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 and THE CHASE MANHATTAN BANK ("Chase"),
in its capacity as Collateral Agent (the "Assignee" or the "Collateral Agent")
for The Chase Manhattan Bank, as the agent under the Credit Agreement described
below (together with its permitted successors, transferees and assigns, the
"Agent"), for each of the lenders which is a party to the Credit Agreement and
each lender which may, after the date of this Agreement, become a party to the
Credit Agreement (together with their permitted successors, transferees and
assigns, the "Lenders") and for each of the Noteholders (as defined in the
Intercreditor Agreement) (together with their permitted successors, transferees
and assigns, the "Noteholders") (the Lenders and the Noteholders, collectively,
the "Secured Parties").
WHEREAS:
A. Pursuant to the Amended and Restated Loan Agreement, dated as of
February 25, 2000 (as such may be amended, restated, refinanced, replaced,
renewed, modified or otherwise supplemented from time to time, the "Loan
Agreement"), entered into by Del Laboratories, Inc., Del Pharmaceuticals, Inc.
("DPI"), Parfums Schiaparelli, Inc. ("Parfums"), Royce & Xxxxx, Inc. ("Royce")
and 565 Broad Hollow Realty Corp. ("565") (DPI, Parfums, Royce and 565
collectively, the "Guarantors"), with the Noteholders, the Noteholders have
amended and restated the Loan Agreement dated as of May 26, 1993, as amended,
under and pursuant to which the Noteholders have purchased $40,000,000 9.5%
Senior Notes, Due May 31, 2005 (collectively, the "Senior Notes") from the
Company;
B. The Company and the Guarantors have entered into that certain
Amended and Restated Loan Agreement, dated February 25, 2000 (as such may be
amended, restated, refinanced, replaced, renewed, modified or otherwise
supplemented from time to time, the "Credit Agreement"), with the Lenders and
the Agent, pursuant to which the Lenders are providing to the Company various
credit facilities;
C. The obligations of the Company to the Noteholders under the Loan
Agreement and under the Senior Note Documents (as defined in the Intercreditor
Agreement) including, without limitation, the obligations evidenced by the
Senior Notes, and the obligations of the Company to the Lenders under the Credit
Agreement and under the loan documents relating thereto including, without
limitation, the obligations evidenced by the promissory notes issued under the
Credit Agreement (together with amendments, modifications, and replacements
thereof, the "Credit Agreement Notes") are to be secured pari passu pursuant to
this Agreement and a certain Security Agreement of even date herewith between
the Collateral Agent and the Company (the "Security Agreement"), and pursuant to
the Intercreditor Agreement (as defined herein), the Noteholders, the Agent and
the Lenders have appointed Chase as Collateral Agent to act on their behalf
regarding the Collateral (as hereinafter defined); and
D. Assignor wishes to grant further collateral security and assurance
to the Assignee and the other Secured Parties in order to secure the performance
by Assignor of the Obligations (as defined herein), and to that effect Assignor
agrees to collaterally assign to Assignee certain tradenames and trademark
rights.
NOW, THEREFORE, in consideration of the premises, Assignor hereby
agrees with Assignee as follows:
1. As used in this Agreement, the following term shall have the
following meaning:
"Obligations" shall mean any and all liabilities and obligations of the
Company to the Collateral Agent, the Agent and the Secured Parties of every kind
whether arising under this Agreement, the Loan Agreement, the Senior Notes, the
Credit Agreement Notes, the Credit Agreement or any of the agreements,
instruments and documents executed in connection herewith or therewith
(including, without limitation, any and all costs and reasonable attorneys' fees
incurred by the Collateral Agent, the Agent or any of the Secured Parties in the
collection, whether by suit or by any other means of any of such Obligations
hereunder or thereunder) and any amendment, modification, extension or renewal
of any of the foregoing. The Obligations shall include interest accruing thereon
before or after the commencement of any insolvency, bankruptcy or reorganization
proceeding in respect of the Company or any guarantor of the Obligations whether
or not such interest is an allowable claim in any such proceeding and
irrespective of the discharge or release of the Company or any other guarantor
in such proceeding.
"Intercreditor Agreement" shall mean that certain Intercreditor
Agreement dated of even date herewith among each of
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the Secured Parties, the Agent and the Collateral Agent relating to the relative
interests of such parties in and to the Collateral and the distribution of
proceeds thereof.
2. To secure the complete and timely satisfaction of all Obligations,
Assignor hereby grants, assigns and conveys to Assignee a continuing security
interest in and to the trademarks and trademark applications and tradenames and
tradename applications listed in Schedule A hereto (as the same may be amended
pursuant hereto from time to time), all proceeds thereof (including but not
limited to license royalties and proceeds of infringement suits thereon), claims
for past, present and future infringements, all rights corresponding thereto
throughout the world, all reissues, divisions, continuations, renewals,
extensions and continuations in part thereof, and all trademarks and
applications for trademarks and all tradenames and applications for tradenames
of Assignor hereafter filed or acquired, together with all goodwill associated
with any and all of the foregoing and all proceeds of any and all of the
foregoing (collectively called the "Collateral" or the "Trademarks").
3. This security interest is granted in conjunction with the security
interests granted to the Collateral Agent pursuant to the Security Agreement.
The Company does hereby further acknowledge and affirm that the rights and
remedies of the Collateral Agent with respect to the security interest in the
Trademarks made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
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4. Assignor authorizes Assignee to modify this Agreement by amending
Schedule A to include any future trademarks and trademark applications which are
Trademarks under paragraph 2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DEL LABORATORIES, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Collateral Agent for the Agent and
the Secured Parties
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxxxx
Title: Vice President
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XXXXX XX XXX XXXX
XXXXXX XX XXXXXX ss.:
On the 25th day of February, in the year 2000 before me, the
undersigned, a notary public in and for said State, personally appeared Xxxx
Xxxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
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Notary Public
STATE OF NEW YORK
COUNTY OF NASSAU ss.:
On the 25th day of February, in the year 2000 before me, the
undersigned, a notary public in and for said State, personally appeared
Xxxxxxxxxxx X. Xxxxxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
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Notary Public
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SCHEDULE A
TRADEMARKS AND TRADEMARK APPLICATIONS
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