EXHIBIT 4.16
SUBSIDIARY TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of November 30, 2001,
made by the corporation signatory hereto (the "Grantor") in favor of Wilmington
Trust Company, as collateral agent (in such capacity and as further defined
below, the "Note Collateral Agent") for holders of the Note Obligations (as
hereinafter defined).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Grantor has guaranteed (the "Indenture
Guarantee") the obligations of Revlon Consumer Products Corporation (the
"Company") under the Indenture, dated as of November 26, 2001 among the Company,
the guarantors identified on the signature pages thereto and Wilmington Trust
Company, as trustee (in such capacity, the "Trustee"), providing for the
issuance of 12% Senior Secured Notes Due 2005 of the Company;
WHEREAS, the Grantor is a party to a Subsidiaries Guarantee
(the "Bank Guarantee") referred to in the Second Amended and Restated Credit
Agreement, entered into by the Company on the date hereof;
WHEREAS, (i) to secure the Pledgor's guarantee of the Bank
Obligations (as defined below) pursuant to the Bank Guarantee, the Pledgor has
granted to the Administrative Agent (as defined below), for the benefit of the
holders of the Bank Obligations, a first priority security interest in the
Collateral (as defined below) (the "First Pledge Lien") and (ii) to secure the
Pledgor's guarantee of the Note Obligations pursuant to the Indenture Guarantee,
the Pledgor now intends hereby to grant to the Note Collateral Agent, for the
benefit of the holders of the Note Obligations, a second priority security
interest in the Collateral (it being understood that the relative rights and
priorities of the grantees in respect of the Collateral are governed by the
Collateral Agency Agreement referred to herein); and
WHEREAS, the Grantor has executed and delivered a Security
Agreement, dated as of the date hereof, in favor of the Note Collateral Agent,
for the benefit of the holders of the Note Obligations (as amended, supplemented
or otherwise modified from time to time, the "Subsidiary Security Agreement").
NOW, THEREFORE, the Grantor agrees for the benefit of the
holders of the Note Obligations as follows:
1. Defined Terms.
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(a) Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Agreement, including its preamble
and recitals, have the meanings provided in the Subsidiary Security Agreement.
(b) Other Definitional Provisions. (i) The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(ii) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Guarantee Obligations, the
Grantor hereby grants to the Note Collateral Agent, for the benefit of the
holders of the Note Obligations, a security interest in all of the following
property now owned or at any time hereafter acquired by the Grantor or in which
the Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Trademark Collateral"):
(a) all trademarks, service marks, trade names, trade dress or other
indicia of trade origin, trademark and service xxxx registrations, and
applications for trademark or service xxxx registrations and any
renewals thereof, including, without limitation, each registration and
application identified in Schedule 1 attached hereto and made a part
hereof, and including without limitation (i) the right to xxx or
otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (ii) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all licenses entered into in connection therewith, and damages
and payments for past or future infringements thereof), and (iii) all
rights corresponding thereto throughout the United States and all other
rights of any kind whatsoever of the Grantor accruing thereunder or
pertaining thereto, together in each case with the goodwill of the
business connected with the use of, and symbolized by, each such
trademark, service xxxx, trade name, trade dress or other indicia of
trade origin (the "Trademarks"); provided that, for purposes hereof,
the term "Trademarks" shall not include those rights which are not
created by, or do not arise or exist under, the laws of the United
States or any State or political subdivision thereof;
(b) all license agreements with any other Person in connection with any
of the Trademarks of the Grantor, or such other Person*s trademarks,
whether the Grantor is a licensor or licensee under any such license
agreement, including, without limitation, the license agreements listed
on Schedule 3 to the Subsidiary Security Agreement, subject, in each
case, to the terms of such license agreements, including, without
limitation, terms requiring consent to the grant of a security interest
(the "Trademark Licenses"); provided that, for purposes hereof, the
term "Trademark Licenses" shall not include those rights which are not
created by, or do not arise or exist under, the laws of the United
States or any State or political subdivision thereof; and
(c) to the extent not otherwise included, all Proceeds (including, to
the extent not otherwise included therein, cash) and products of any
and all of the foregoing.
Notwithstanding anything to the contrary contained herein, the Trademark
Collateral described herein shall constitute collateral security only for those
Guarantee Obligations with respect to which the Proceeds of such Trademark
Collateral are applied pursuant to Section 4.2(b) (or, if applicable 4.8) and
4.2(e) of the Collateral Agency Agreement and the Lien and security interest
provided hereby shall encumber the Trademark Collateral only to the extent of
such Guarantee Obligations.
3. Security Agreement. This Agreement has been executed and
delivered by the Grantor for the purpose of recording the security interest of
the Note Collateral Agent in the Trademark Collateral with the United States
Patent and Trademark Office. The security interest granted hereby has been
granted as a supplement to, and not in limitation of, the security interest
granted to the Note Collateral Agent, for the benefit of the holders of the Note
Obligations, under the Subsidiary Security Agreement. The Subsidiary Security
Agreement (and all rights and remedies of the Note Collateral Agent and the
holders of the Note Obligations thereunder) shall remain in full force and
effect in accordance with its terms.
4. Release of Collateral and Termination. The Note Collateral
Agent shall release the Trademark Collateral from the Lien created hereby, and
this Agreement and all obligations of the Note Collateral Agent and the Grantor
hereunder shall terminate, in accordance with the provisions of Sections 8 and
10.6 of the Collateral Agency Agreement.
5. Acknowledgment. The Grantor does hereby further acknowledge
and affirm that the rights and remedies of the Note Collateral Agent with
respect to the security interest in the Trademark Collateral granted hereby are
more fully set forth in the Subsidiary Security Agreement, the terms and
provisions of which (including the remedies provided for therein) are
incorporated by reference herein as if fully set forth herein.
6. Note Obligation, etc. This Agreement is a Note Obligation
Document executed pursuant to the Indenture and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in accordance
with the terms and provisions of the Indenture.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
XXXXXXX XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Assistant Secretary
SCHEDULE I
A. Trademark Registrations
SUPER LUSCIOUS LIPSTICK
Reg. No.: 989,731 Registered: 07/30/1974 Renewed: 07/30/1994
Serial No.: 72-449825 Filed: 02/26/1973 Published: 05/07/1974
IVORIE BISQUE (IVORY)
Reg. No.: 984,761 Registered: 05/21/1974 Renewed: 05/21/1994
Serial No.: 72-453740 Filed: 04/06/1973 Published: 05/21/1974
BRONZE UMBER
Reg. No.: 984,762 Registered: 05/21/1974 Renewed: 05/21/1994
Serial No.: 72-453768 Filed: 04/06/1973 Published: 05/21/1974
C.H.R.
Reg. No.: 976,988 Registered: 01/15/1974 Renewed: 01/15/1994
Serial No.: 72-455387 Filed: 04/23/1973 Published: 10/23/1973
XXXXX (Stylized)
Reg. No.: 994,239 Registered: 10/01/1974 Renewed: 10/01/1994
Serial No.: 73-008679 Filed: 12/12/1973 Published: 07/09/1974
'LIPOPHYTE'
Reg. No.: 1,099,178 Registered: 08/15/1978
Serial No.: 73-148735 Filed: 11/16/1977 Published: 05/23/1978
'ULTIMA' II
Reg. No.: 1,148,585 Registered: 03/24/1981
Serial No.: 73-180274 Filed: 07/31/1978 Published: 01/22/1980
ULTIMA II
Reg. No.: 1,407,258 Registered: 09/02/1986
Serial No.: 73-306379 Filed: 04/17/1981 Published: 06/10/1986
MAROC and Design
Reg. No.: 1,387,189 Registered: 03/25/1986
Serial No.: 73-543925 Filed: 06/19/1985 Published: 12/31/1985
MAROC (Stylized)
Reg. No.: 1,381,988 Registered: 02/11/1986
Serial No.: 73-543927 Filed: 06/19/1985 Published: 11/19/1985
NIGHT ENERGIZER
Reg. No.: 1,410,049 Registered: 09/23/1986
Serial No.: 73-553673 Filed: 08/15/1985 Published: 07/01/1986
MEGADOSE
Reg. No.: 1,520,449 Registered: 01/17/1989
Serial No.: 73-730019 Filed: 05/19/1988 Published: 10/25/1988
LIPCHROME
Reg. No.: 1,592,696 Registered: 04/24/1990
Serial No.: 73-821295 Filed: 08/24/1989 Published: 01/30/1990
EYESEXXXY
Reg. No.: 1,891,597 Registered: 04/25/1995
Seral No.: 74-433025 Filed: 09/07/1993 Published: 03/22/1994
ALPHA 15
Reg. No.: 1,978,700 Registered: 06/04/1996
Serial No.: 74-455625 Filed: 11/09/1993 Published: 08/09/1994
2
LIPSEXXXY
Reg. No.: 1,929,055 Registered: 10/24/1995
Serial No.: 74-464878 Filed: 12/02/1993 Published: 10/04/1994
BRIGHTEN UP, TIGHTEN UP
Reg. No. 1,869,187 Registered: 12/27/94
Serial No.: 74-484961 Filed: 01/31/1994 Published: 10/04/1994
BALMSHELL
Reg. No.: 1,975,309 Registered: 05/21/1996
Serial No.: 74-527098 Filed: 05/10/1994 Published: 01/17/1995
WONDERWEAR
Registration No. 2,029,152 Registered: 01/07/1997 First Use: 06/07/1995
Serial No.: 74-568827 Filed: 09/01/1994 Publication: 06/27/1995
GLOWTION
Reg. No.: 1,928,248 Registered: 10/17/1995
Serial No.: 75-597790 Filed: 11/14/1994 Published: 07/25/1995
3
FLUTTERS
Reg. No.: 1,996,162 Registered: 08/20/1996
Serial No.: 74-607150 Filed: 12/05/1994 Published: 07/25/1995
XXXXX FEMME FATALE
Reg. No.: 2,180,900 Registered: 08/11/1998 First Use: 09/30/1997
Serial No. 74-609109 Filed: 12/09/1994 Published: 10/03/1995
NEVER WETTER
Reg. No. 2,021,368 Registered: 12/03/1996
Serial No. 74-641220 Filed: 03/02/1995 Published: 12/19/1995
GOING, GOING, GONE
Reg. No. 2,079,718 Registered: 07/15/1997 First Use: 08/18/1995
Serial No. 74-643090 Filed: 03/06/1995 Published: 01/16/1996
MADLY
Reg. No. 2,026,048 Registered: 12/24/1996 First Use: 09/14/1995
Serial No. 74-663968 Filed: 04/20/1995 Published: 11/21/1995
BALANCED STATE
Reg. No. 2,026,108 Registered: 12/24/1996
Serial No. 74-697020 Filed: 07/03/1995 Published: 03/12/1996
BOOSTER SHOT
Reg. No. 2,044,905 Registered: 03/11/1997 First Use: 12/22/1995
Serial No. 74-697021 Filed: 07/03/1995 Published: 03/12/1996
CLEAN TEAM
Reg. No. 2,026,107 Registered: 12/24/1996
Serial No. 74-697019 Filed: 07/03/1995 Published: 04/09/1996
4
NIGHT CAP
Reg. No. 2,034,502 Registered: 01/28/1997 First Use: 12/23/1995
Serial No. 74-702349 Filed: 07/17/1995 Published: 03/19/1996
THIRST BUSTER
Reg. No. 2,034,503 Registered: 01/28/1997 First Use: 12/23/1995
Serial No. 74-702350 Filed: 07/17/1995 Published: 03/19/1996
EYE SITE
Reg. No.: 2,112,940 Registered: 11/11/1997 First Use: 07/23/1996
Serial No. 75-078439 Filed: 03/25/1996 Published: 11/26/1996
BROWSEXXXY BROWLINER
Reg. No.: 2,081,454 Registered: 07/22/1997 First Use: 09/28/1995
Serial No.: 75-144121 Filed: 07/18/1996 Published: 04/29/1997
PROCOLLAGEN
Reg. No.: 2,128,930 Registered: 01/13/1998 Published: 10/21/1997
Serial No.: 75-227331 Filed: 01/17/1997 First Use: 12/15/1984
VITAL RADIANCE
Reg. No.: 2,177,561 Registered: 07/28/1998 First Use: 09/28/1997
Serial No.: 75-237754 Filed: 02/03/1997 Published: 12/02/1997
BEAUTIFUL NUTRIENT
Reg. No. 2248694 Registered: 6/1/99 First Use: 10/13/1974
Serial No. 75-308086 Filed: 06/12/1997
SKINDICATOR
Reg. No.: 2322230 Registered: 2/22/00 First Use: 10/23/1997
5
Serial No.: 75-378278 Filed: 10/22/1997 Published: 03/02/1999
UII
Reg. No.: 2,274,662 Registered: 08/31/1999 First Use: 11/30/1989
Serial No.: 75-976844 Filed: 11/01/1996 Published: 07/21/1998
BALMSHELL
Reg. No.: 2226136 Registered: 2/23/99 First Use: 09/7/1994
Serial No.: 75-443186 Filed: 03/02/1998 Published: 02/09/1999
UNDER IT ALL
Reg. No.: 2425501 Registered: 1/30/01
Serial No.: 75-453049 Filed: 03/19/1998
XXXXX FEMME FATALE
Reg. No.: 2,170,481 Registered: 06/30/1998 Published:10/3/95
Serial No.: 75-977322 Filed: 09/12/1994 First Use: 05/02/1995
DOUBLE ACTION
Reg. No.: 2336768 Registered: 3/28/00
Serial No.: 75-527315 Filed: 07/29/1998
FADE NOT, CREASE NOT
Reg. No.: 2385745 Registered: 9/12/00
Serial No.: 75-847027 Filed: 11/12/1999
B. Trademark Applications
UII
6
Serial No.: 75-191285 Filed: 11/01/1996 Published: 05/05/1998
Amendment to Allege
Use Filed
USE WONDERWEAR SMUDGE
NOT MASCARA
Serial No.: 75-834496 Filed: 10/28/99
BIOFEELING
Serial No.: 78-070401 Filed: 6/21/01
XXXXXXX XXXXXX
Serial No.: 76-070288 Filed: 6/14/00
7
EXPECT THE UNEXPECTED
Serial No.: 76-071343 Filed: 6/15/00
GLOWTION
Serial No.: 76-206350 Filed: 2/7/01
GLOWTION HIGHLIGHTING SOUFFLE
Serial No.: 76-105976 Filed: 8/8/00
GOTTA BLUSH
Serial No.: 78-088752 Filed: 10/17/01
LASHFINDER
Serial No.: 78-070857 Filed: 6/25/01
LIGHTCAPTOR-C
Serial No.: Filed: 10/16/01
PEEPERS
Serial No.: 78-086398 Filed: 10/1/01
PUCKER & POUT
Serial No.: 76-089073 Filed: 7/13/00
RE-FLEKTIVE
Serial No.: 78-088764 Filed: 10/17/01
8
SHADY
Serial No.: 78-086394 Filed: 10/1/01
SHEER SCENT
Serial No.: 76-183300 Filed: 12/19/00
SWIRLSATIONAL
Serial No.: 78-088774 Filed: 10/17/01
ULTIMA TOO
Serial No.: 78-068645 Filed: 6/12/01
ULTIMATE EDITION
Serial No.: 78-074942 Filed: 7/20/01
ULTIMATELY U
Serial No.: 78-070800 Filed: 6/25/01
9
