EVENT OF DEFAULT WITH RESPECT TO (AMONG OTHER
THINGS) ANY TANGIBLE ASSET OF DEBTOR IN WHICH COLLATERAL AGENT HAS A SECURITY
INTEREST, INCLUDING COLLATERAL AGENT'S RIGHTS TO SELL INVENTORY, TOOLING OR
PACKAGING WHICH IS ACQUIRED BY DEBTOR (OR ITS SUCCESSOR, ASSIGNEE OR TRUSTEE IN
BANKRUPTCY).
IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, UPON THE
OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, COLLATERAL AGENT
SHALL HAVE THE RIGHT BUT SHALL IN NO WAY BE OBLIGATED TO BRING SUIT, OR TO TAKE
SUCH OTHER ACTION AS COLLATERAL AGENT, IN THE EXERCISE OF ITS REASONABLE
DISCRETION, DEEMS NECESSARY, IN THE NAME OF DEBTOR OR COLLATERAL AGENT, TO
ENFORCE OR PROTECT ANY OF THE TRADEMARK COLLATERAL, IN WHICH EVENT DEBTOR SHALL,
AT THE REQUEST OF COLLATERAL AGENT, DO ANY AND ALL LAWFUL ACTS AND EXECUTE ANY
AND ALL DOCUMENTS REQUIRED BY COLLATERAL AGENT NECESSARY TO SUCH ENFORCEMENT.
TO THE EXTENT THAT COLLATERAL AGENT SHALL ELECT NOT TO BRING SUIT TO ENFORCE
SUCH TRADEMARK COLLATERAL, DEBTOR, IN THE EXERCISE OF ITS REASONABLE BUSINESS
JUDGMENT, AGREES TO USE ALL REASONABLE MEASURES AND ITS DILIGENT EFFORTS,
WHETHER BY ACTION, SUIT, PROCEEDING OR OTHERWISE, TO PREVENT THE INFRINGEMENT,
MISAPPROPRIATION OR VIOLATION THEREOF BY OTHERS AND FOR THAT PURPOSE AGREES
DILIGENTLY TO MAINTAIN ANY ACTION, SUIT OR PROCEEDING AGAINST ANY PERSON
NECESSARY TO PREVENT SUCH INFRINGEMENT, MISAPPROPRIATION OR
8
VIOLATION.
NOTHING HEREIN SHALL PERMIT THE COLLATERAL AGENT TO ASSERT ANY OF
THE RIGHTS, CLAIMS OR CAUSES OF ACTION, OR TAKE ANY OF THE ACTIONS, CONTEMPLATED
BY THE LAST SIX (6) FULL LINES OF SECTION 2(A)(I) OR SECTION 2(A)(II), EXCEPT
AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT.
10.
BINDING EFFECT.
THIS AGREEMENT SHALL BE BINDING UPON, INURE TO THE
BENEFIT OF AND BE ENFORCEABLE BY DEBTOR AND COLLATERAL AGENT FOR THE BENEFIT OF
THE LENDER GROUP AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
11.
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE IN
WRITING AND SHALL BE MAILED, SENT OR DELIVERED IN ACCORDANCE WITH THE FINANCING
AGREEMENT.
12.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA
AND THE LAWS OF THE STATE OF NEW YORK.
13.
ENTIRE AGREEMENT; AMENDMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
TOGETHER WITH THE SCHEDULES HERETO AND THERETO, CONTAINS THE ENTIRE AGREEMENT OF
THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR
DRAFTS AND COMMUNICATIONS RELATING TO SUCH SUBJECT MATTER.
NEITHER THIS
AGREEMENT NOR ANY PROVISION HEREOF MAY BE MODIFIED, AMENDED OR WAIVED EXCEPT BY
THE WRITTEN AGREEMENT OF THE PARTIES TO THIS AGREEMENT.
NOTWITHSTANDING THE
FOREGOING, COLLATERAL AGENT MAY REEXECUTE THIS AGREEMENT OR MODIFY, AMEND OR
SUPPLEMENT THE SCHEDULES HERETO AS PROVIDED IN SECTION 6 HEREOF.
14.
SEVERABILITY.
IF ONE OR MORE PROVISIONS CONTAINED IN THIS AGREEMENT SHALL
BE INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT IN ANY JURISDICTION OR WITH
RESPECT TO ANY PARTY, SUCH INVALIDITY, ILLEGALITY OR UNENFORCEABILITY IN SUCH