EXHIBIT 10.4
GUARANTOR SECURITY AGREEMENT
SECURITY AGREEMENT, dated September 23, 2002, made jointly and
severally by IRON AGE HOLDINGS CORPORATION, a Delaware corporation (the
"Parent"), IRON AGE INVESTMENT COMPANY, a Delaware corporation ("Investment"),
and IA VISION ACQUISITION, CO., a Delaware corporation ("IA Vision" and together
with Investment, the "Subsidiary Grantors", and the Subsidiary Grantors together
with the Parent, each a "Grantor" and collectively, the "Grantors"), in favor of
FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), as agent
for the Lenders (as defined below) party to the Loan Agreement referred to below
(in such capacity, the "Agent").
W I T N E S S E T H :
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WHEREAS, the Parent, Iron Age Corporation, a Delaware
corporation ("Iron Age"), Falcon Shoe Mfg. Co., a Maine corporation ("Falcon"
and, together with Iron Age, each a "Borrower" and collectively, the
"Borrowers"), the financial institutions from time to time party thereto (the
"Lenders"), and the Agent, are parties to a Loan and Security Agreement, dated
as of September 23, 2002 (such Agreement, as amended, restated or otherwise
modified from time to time, being hereinafter referred to as the "Loan
Agreement");
WHEREAS, pursuant to the Loan Agreement, the Lenders have
agreed to make revolving credit loans and term loans (each a "Loan" and
collectively, the "Loans") to the Borrowers and assist the Borrowers in
obtaining the issuance of letters of credit (the "Letters of Credit") in an
aggregate principal amount at any one time outstanding not to exceed the Total
Commitment (as defined in the Loan Agreement);
WHEREAS, the Grantors have guaranteed the repayment of all
obligations under the Loan Agreement pursuant to, in the case of the Parent, the
Loan Agreement, and in the case of the Subsidiary Grantors, the Guaranty dated
the date hereof made by the Subsidiary Grantors in favor of the Agent (such
Guaranty, as amended, restated or otherwise modified from time to time, the
"Guaranty");
WHEREAS, it is a condition precedent to the Lenders making any
Loan to or assisting the Borrowers in obtaining the issuance of any Letter of
Credit pursuant to the Loan Agreement, that each Grantor shall have executed and
delivered to the Agent a security agreement providing for the grant to the Agent
for the benefit of the Lenders of a security interest in all personal property
and fixtures of such Grantor;
WHEREAS, the Borrowers and the Grantors are mutually dependent
on each other in the conduct of their respective businesses as an integrated
operation, with the credit needed from time to time by each Borrower or Grantor
often being provided through financing obtained by the other Borrowers or
Grantors and the ability to obtain such financing being dependent on the
successful operations of all of the Borrowers and Grantors as a whole; and
WHEREAS, each Grantor has determined that the execution,
delivery and performance of this Agreement directly benefit, and are in the best
interest of, such Grantor;
NOW, THEREFORE, in consideration of the premises and the
agreements herein and in order to induce the Lenders to make and maintain the
Loans and to assist the Borrowers in obtaining the issuance of Letters of
Credit, in each case pursuant to the Loan Agreement, the Grantors hereby jointly
and severally agree with the Agent, for the benefit of the Lenders, as follows:
SECTION 1. Definitions.
(a) Reference is hereby made to the Loan Agreement for a
statement of the terms thereof. All terms used in this Agreement and the
recitals hereto which are defined in the Loan Agreement or in Article 9 of the
Uniform Commercial Code (the "Code") as in effect from time to time in the State
of New York and which are not otherwise defined herein shall have the same
meanings herein as set forth therein; provided that terms used herein which are
defined in the Code as in effect in the State of New York on the date hereof
shall continue to have the same meaning notwithstanding any replacement or
amendment of such statute except as the Agent may otherwise determine.
(b) The following terms shall have the respective meanings
provided for in the Code: "Accounts", "Cash Proceeds", "Chattel Paper",
"Commercial Tort Claim", "Commodity Account", "Commodity Contracts", "Deposit
Account", "Documents", "Equipment", "Fixtures", "General Intangibles", "Goods",
"Instruments", "Inventory", "Investment Property", "Letter-of-Credit Rights",
"Noncash Proceeds", "Payment Intangibles", "Proceeds", "Promissory Notes",
"Record", "Security Account", "Software", and "Supporting Obligations."
(c) As used in this Agreement, the following terms shall have
the respective meanings indicated below, such meanings to be applicable equally
to both the singular and plural forms of such terms:
"Copyright Licenses" means all licenses, contracts or other
agreements, whether written or oral, naming any Grantor as licensee or licensor
and providing for the grant of any right to use or sell any works covered by any
copyright (including, without limitation, all Copyright Licenses set forth in
Schedule IV hereto).
"Copyrights" means all domestic and foreign copyrights,
whether registered or not, including, without limitation, all copyright rights
throughout the universe (whether now or hereafter arising) in any and all media
(whether now or hereafter developed), in and to all original works of authorship
fixed in any tangible medium of expression, acquired or used by any Grantor
(including, without limitation, all copyrights described in Schedule IV hereto),
all applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States
Copyright Office or in any similar office or agency of the United States or any
other country or any political subdivision thereof), and all reissues,
divisions, continuations, continuations in part and extensions or renewals
thereof.
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"Licenses" means the Copyright Licenses, the Trademark
Licenses and the Patent Licenses.
"Patent Licenses" means all licenses, contracts or other
agreements, whether written or oral, naming any Grantor as licensee or licensor
and providing for the grant of any right to manufacture, use or sell any
invention covered by any Patent (including, without limitation, all Patent
Licenses set forth in Schedule III hereto).
"Patents" means all domestic and foreign letters patent,
design patents, utility patents, industrial designs, inventions, trade secrets,
ideas, concepts, methods, techniques, processes, proprietary information,
technology, know-how, formulae, rights of publicity and other general
intangibles of like nature, now existing or hereafter acquired (including,
without limitation, all domestic and foreign letters patent, design patents,
utility patents, industrial designs, inventions, trade secrets, ideas, concepts,
methods, techniques, processes, proprietary information, technology, know-how
and formulae described in Schedule III hereto), all applications, registrations
and recordings thereof (including, without limitation, applications,
registrations and recordings in the United States Patent and Trademark Office,
or in any similar office or agency of the United States or any other country or
any political subdivision thereof), and all reissues, divisions, continuations,
continuations in part and extensions or renewals thereof.
"Trademark Licenses" means all licenses, contracts or other
agreements, whether written or oral, naming any Grantor as licensor or licensee
and providing for the grant of any right concerning any Trademark, together with
any goodwill connected with and symbolized by any such trademark licenses,
contracts or agreements and the right to prepare for sale or lease and sell or
lease any and all Inventory now or hereafter owned by any Grantor and now or
hereafter covered by such licenses (including, without limitation, all Trademark
Licenses described in Schedule II hereto).
"Trademarks" means all domestic and foreign trademarks,
service marks, collective marks, certification marks, trade names, business
names, d/b/a's, Internet domain names, trade styles, designs, logos and other
source or business identifiers and all general intangibles of like nature, now
or hereafter owned, adopted, acquired or used by any Grantor (including, without
limitation, all domestic and foreign trademarks, service marks, collective
marks, certification marks, trade names, business names, d/b/a's, Internet
domain names, trade styles, designs, logos and other source or business
identifiers described in Schedule II hereto), all applications, registrations
and recordings thereof (including, without limitation, applications,
registrations and recordings in the United States Patent and Trademark Office or
in any similar office or agency of the United States, any state thereof or any
other country or any political subdivision thereof), and all reissues,
extensions or renewals thereof, together with all goodwill of the business
symbolized by such marks and all customer lists, formulae and other Records of
any Grantor relating to the distribution of products and services in connection
with which any of such marks are used.
SECTION 2. Grant of Security Interest. As collateral security
for all of the Obligations (as defined in Section 3 hereof), each Grantor hereby
pledges and assigns to the Agent, and grants to the Agent for the benefit of the
Lenders a continuing security interest in, all
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personal property and Fixtures of such Grantor, wherever located and whether now
or hereafter existing and whether now owned or hereafter acquired, of every kind
and description, tangible or intangible (the "Collateral"), including, without
limitation, the following:
(a) all Accounts;
(b) all Chattel Paper (whether tangible or electronic);
(c) the Commercial Tort Claims specified on Schedule VIII
hereto;
(d) all Deposit Accounts, all cash, and all other property
from time to time deposited therein and the monies and property in the
possession or under the control of the Agent or any Lender or any affiliate,
representative, agent or correspondent of the Agent or any Lender;
(e) all Documents;
(f) all Equipment;
(g) all Fixtures;
(h) all General Intangibles (including, without limitation,
all Payment Intangibles);
(i) all Goods;
(j) all Instruments (including, without limitation, Promissory
Notes);
(k) all Inventory;
(l) all Investment Property, provided that only 65% of the
shares of capital Stock of each Grantor's Subsidiaries organized outside of the
United States and Canada shall be included in the Collateral;
(m) all Copyrights, Patents and Trademarks, and all Licenses;
(n) all Letter-of-Credit Rights;
(o) all Supporting Obligations;
(p) all other tangible and intangible personal property of
such Grantor (whether or not subject to the Code), including, without
limitation, all bank and other accounts and all cash and all investments
therein, all proceeds, products, offspring, accessions, rents, profits, income,
benefits, substitutions and replacements of and to any of the property of such
Grantor described in the preceding clauses of this Section 2 (including, without
limitation, any proceeds of insurance thereon and all causes of action, claims
and warranties now or hereafter held by such Grantor in respect of any of the
items listed above), and all books, correspondence, files and other Records,
including, without limitation, all tapes, discs, cards, Software, data and
computer programs in the possession or under the control of such Grantor or any
other Person from time to time acting for such Grantor that at any time evidence
or contain information
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relating to any of the property described in the preceding clauses of this
Section 2 or are otherwise necessary or helpful in the collection or realization
thereof; and
(q) all Proceeds, including all Cash Proceeds and Noncash
Proceeds, and products of any and all of the foregoing Collateral; in each case
howsoever such Grantor's interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
SECTION 3. Security for Obligations. The security interest
created hereby in the Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter incurred
(the "Obligations"):
(a) the prompt payment by each Grantor, as and when due and
payable (by scheduled maturity, required prepayment, acceleration, demand or
otherwise), of all amounts from time to time owing by it in respect of the Loan
Agreement, the Guaranty and the other Loan Documents to which such Grantor is a
party, including, without limitation, (i) principal of and interest on the Loans
(including, without limitation, all interest that accrues after the commencement
of any Insolvency Proceeding of any Grantor or Borrower, whether or not the
payment of such interest is unenforceable or is not allowable due to the
existence of such Insolvency Proceeding), and (ii) all fees, commissions,
reimbursement obligations and repayment obligations in respect of all Letters of
Credit and all interest thereon, all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under any Loan
Document; and
(b) the due performance and observance by each Grantor of all
of its other obligations from time to time existing in respect of the Loan
Agreement, the Guaranty and all other Loan Documents to which such Grantor is a
party.
SECTION 4. Representations and Warranties. Each Grantor
jointly and severally represents and warrants as follows:
(a) Schedule I hereto sets forth (i) the exact legal name of
each Grantor and (ii) the organizational identification number of each Grantor
or states that no such organizational identification number exists.
(b) Each Grantor (i) is a corporation, limited liability
company or limited partnership duly organized, validly existing and in good
standing under the laws of the state or jurisdiction of its organization as set
forth on Schedule I hereto, (ii) has all requisite power and authority to
execute, deliver and perform this Agreement and each other Loan Document to be
executed and delivered by it pursuant hereto and to consummate the transactions
contemplated hereby and thereby, and (iii) is duly qualified to do business and
is in good standing in each jurisdiction in which the character of the
properties owned or leased by it or in which the transaction of its business
makes such qualification necessary.
(c) The execution, delivery and performance by each Grantor of
this Agreement and each other Loan Document to which such Grantor is a party or
will be a party (i) have been duly authorized by all necessary action, (ii) do
not and will not contravene its charter or by-laws,
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its limited liability company or operating agreement or its certificate of
partnership or partnership agreement, as applicable, or any applicable law or
any contractual restriction binding on or otherwise affecting such Grantor or
its properties, (iii) do not and will not result in or require the creation of
any Lien upon or with respect to any of its properties and (iv) do not and will
not result in any default, noncompliance, suspension, revocation, impairment,
forfeiture or nonrenewal of any permit, license, authorization or approval
applicable to it or its operations or any of its properties.
(d) This Agreement is, and each other Loan Document to which
any Grantor is or will be a party, when executed and delivered pursuant hereto,
will be, a legal, valid and binding obligation of such Grantor, enforceable
against such Grantor in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws.
(e) There is no pending or, to the best knowledge of any
Grantor, threatened action, suit, proceeding or claim affecting any Grantor or
to which any of the properties of any Grantor is subject, before any
Governmental Authority or any arbitrator, or any order, judgment or award by any
Governmental Authority or arbitrator, that may adversely affect the grant by any
Grantor, or the perfection, of the security interest purported to be created
hereby in the Collateral, or the exercise by the Agent of any of its rights or
remedies hereunder.
(f) All taxes, assessments and other governmental charges
imposed upon any Grantor or any property of such Grantor (including, without
limitation, all federal income and social security taxes on employees' wages)
and which have become due and payable on or prior to the date hereof have been
paid, except to the extent contested in good faith by proper proceedings which
stay the imposition of any penalty, fine or Lien resulting from the non-payment
thereof and with respect to which adequate reserves have been set aside for the
payment thereof on the Financial Statements in accordance with GAAP.
(g) All Equipment, Fixtures, Goods and Inventory now existing
are, and all Equipment, Fixtures, Goods and Inventory hereafter existing will
be, located at, or in transit from or to, the addresses specified therefor in
Schedule V hereto (other than Equipment being repaired at local repair
facilities). Each Grantor's chief place of business and chief executive office,
the place where such Grantor keeps its Records concerning Accounts and all
originals of all Chattel Paper are located at the addresses specified therefor
in Schedule V hereto. None of the Accounts is evidenced by Promissory Notes or
other Instruments except for Promissory Notes evidencing aggregate indebtedness
of not more than $25,000. Set forth in Schedule VI hereto is a complete and
accurate list, as of the date of this Agreement, of each Deposit Account,
Securities Account and Commodities Account of each Grantor, together with the
name and address of each institution at which each such Account is maintained,
the account number for each such Account and a description of the purpose of
each such Account. Set forth in Schedule II hereto is a complete and correct
list of each trade name used by each Grantor and the name of, and each trade
name used by, each person from which such Grantor has acquired any substantial
part of the Collateral.
(h) Each Grantor has delivered to the Agent complete and
correct copies of each Trademark License described in
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Schedule II hereto, each Patent License described in Schedule III hereto and
each Copyright License described in Schedule IV hereto, including all schedules
and exhibits thereto, which represents all of the Licenses existing on the date
of this Agreement. Each such License sets forth the entire agreement and
understanding of the parties thereto relating to the subject matter thereof, and
there are no other agreements, arrangements or understandings, written or oral,
relating to the matters covered thereby or the rights of any Grantor or any of
its affiliates in respect thereof. Each License now existing is, and each other
License will be, the legal, valid and binding obligation of the parties thereto,
enforceable against such parties in accordance with its terms. No default
thereunder by any such party has occurred, nor does any defense, offset,
deduction or counterclaim exist thereunder in favor of any such party.
(i) The Grantors own and control, or otherwise possess
adequate rights to use, all Trademarks, Patents and Copyrights, which are the
only trademarks, patents, copyrights, inventions, trade secrets, proprietary
information and technology, know-how, formulae, rights of publicity necessary to
conduct its business in substantially the same manner as conducted as of the
date hereof. Schedule II hereto sets forth a true and complete list of all
registered Trademarks, all trademarkable materials that are necessary in the
business of, or otherwise material to, each Grantor, and all Trademark Licenses
owned or used by each Grantor as of the date hereof. Schedule III hereto sets
forth a true and complete list of all registered Patents, all patentable
materials that are necessary in the business of, or otherwise material to, each
Grantor, and all Patent Licenses owned or used by each Grantor as of the date
hereof. Schedule IV hereto sets forth a true and complete list of all registered
Copyrights, all copyrightable materials that are necessary in the business of,
or otherwise material to, each Grantor, and all Copyright Licenses owned or used
by each Grantor as of the date hereof. All of such Trademarks, Patents and
Copyrights are subsisting and in full force and effect, have not been adjudged
invalid or unenforceable, are valid and enforceable and have not been abandoned
in whole or in part. Except as set forth in Schedule II, III or IV hereto, none
of such Trademarks, Patents or Copyrights is the subject of any licensing or
franchising agreement. No Grantor has any knowledge of any conflict with the
rights of others to any Trademark, Patent or Copyright and, to the best
knowledge of each Grantor, no Grantor is now infringing or in conflict with any
such rights of others in any material respect, and to the best knowledge of each
Grantor, no other Person is now infringing or in conflict in any material
respect with any such properties, assets and rights owned or used by any
Grantor. No Grantor has received any written notice that it is violating or has
violated the trademarks, patents, copyrights, inventions, trade secrets,
proprietary information and technology, know-how, formulae, rights of publicity
or other intellectual property rights of any third party.
(j) The Grantors are and will be at all times the sole and
exclusive owners of, or otherwise have and will have adequate rights in, the
Collateral free and clear of any Lien except for (i) the Lien created by this
Agreement and (ii) the Permitted Liens. No effective financing statement or
other instrument similar in effect covering all or any part of the Collateral is
on file in any recording or filing office except (A) such as may have been filed
in favor of the Agent relating to this Agreement and (B) such as may have been
filed to perfect or protect any security interests or Liens permitted by the
Loan Agreement.
(k) The exercise by the Agent of any of its rights and
remedies hereunder will not contravene any law or any contractual restriction
binding on or otherwise affecting any
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Grantor or any of its properties and will not result in or require the creation
of any Lien upon or with respect to any of its properties.
(l) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or other regulatory body,
or any other Person, is required for (i) the grant by any Grantor, or the
perfection, of the security interest purported to be created hereby in the
Collateral or (ii) the exercise by the Agent of any of its rights and remedies
hereunder, except (A) for the filing under the Uniform Commercial Code as in
effect in the applicable jurisdiction of the financing statements described in
Schedule VII hereto, all of which financing statements have been duly filed and
are in full force and effect, (B) with respect to the perfection of the security
interest created hereby in the United States Trademarks, United States Patents
and United States Copyrights, for the recording of the Assignment for Security
(Trademarks), substantially in the form of Exhibit A hereto, the Assignment for
Security (Patents), substantially in the form of Exhibit B hereto, or the
Assignment for Security (Copyrights), substantially in the form of Exhibit C
hereto, as applicable, in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, (C) with respect to the
perfection of the security interest created hereby in foreign Trademarks,
Patents and Copyrights, for registrations and filings in jurisdictions located
outside of the United States and covering rights in such jurisdictions relating
to Trademarks, Patents, Copyrights, Trademark Licenses, Patent Licenses and
Copyright Licenses, and (D) with respect to the perfection of the security
interest created hereby in motor vehicles for which the title to such motor
vehicles is governed by a certificate of title or ownership (collectively, the
"Motor Vehicles"), for the submission of an appropriate application requesting
that the Lien of the Agent be noted on the certificate of title or ownership,
completed and authenticated by the applicable Grantor, together with the
certificate of title, with respect to each Motor Vehicle, to the appropriate
state agency.
(m) This Agreement creates in favor of the Agent a legal,
valid and enforceable security interest in the Collateral, as security for the
Obligations. The Agent's having possession of all Instruments and cash
constituting Collateral from time to time, the Agent's having control of the
Deposit Accounts, the recording of the Assignment for Security (Trademarks), the
Assignment for Security (Patents) and the Assignment for Security (Copyrights),
as applicable, executed pursuant hereto in the United States Patent and
Trademark Office and the United States Copyright Office, as applicable, the
submission of an appropriate application requesting that the Lien of the Agent
be noted on the certificate of title or ownership, completed and authenticated
by the applicable Grantor, together with the certificate of title or ownership,
with respect to such Motor Vehicles, to the applicable state agency, and the
filing of the financing statements described in Schedule VII hereto and, with
respect to Trademarks, Patents and Copyrights hereafter existing and not covered
by an Assignment for Security (Trademarks), an Assignment for Security (Patents)
or an Assignment for Security (Copyrights), as applicable, the recording in the
United States Patent and Trademark Office or the United States Copyright Office,
as applicable, of appropriate instruments of assignment, result in the
perfection of such security interests. Such security interests are, or in the
case of Collateral in which any Grantor obtains rights after the date hereof,
will be, perfected, first priority security interests, subject only to the
Permitted Liens and the recording of such instruments of assignment. Such
recordings and filings and all other action necessary or desirable to perfect
and protect such security interest have been duly taken, except for the Agent's
having possession of
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Instruments and cash constituting Collateral after the date hereof and the other
filings and recordations described in Section 4(l) hereof.
(n) No Grantor holds any Commercial Tort Claims or is aware of
any such pending claims, except for such claims described in Schedule VIII.
SECTION 5. Covenants as to the Collateral. So long as any of
the Obligations shall remain outstanding and all Commitments shall not have
expired or terminated, unless the Agent shall otherwise consent in writing:
(a) Further Assurances. Each Grantor will at its expense, at
any time and from time to time, promptly execute and deliver all further
instruments and documents and take all further action that may be reasonably
necessary or desirable or that the Agent may reasonably request in order (i) to
perfect and protect the security interest purported to be created hereby; (ii)
to enable the Agent to exercise and enforce its rights and remedies hereunder in
respect of the Collateral; or (iii) otherwise to effect the purposes of this
Agreement, including, without limitation: (A) marking conspicuously all Chattel
Paper and each License and, at the request of the Agent, each of its Records
pertaining to the Collateral with a legend, in form and substance reasonably
satisfactory to the Agent, indicating that such Chattel Paper, License or
Collateral is subject to the security interest created hereby, (B) if any
Account shall be evidenced by Promissory Notes or other Instruments or Chattel
Paper, in an aggregate face amount exceeding $25,000, delivering and pledging to
the Agent hereunder such Promissory Notes, Instruments or Chattel Paper, duly
endorsed and accompanied by executed instruments of transfer or assignment, all
in form and substance satisfactory to the Agent, (C) executing and filing (to
the extent, if any, that such Grantor's signature is required thereon) or
authenticating the filing of, such financing or continuation statements, or
amendments thereto, as may be necessary or desirable or that the Agent may
request in order to perfect and preserve the security interest purported to be
created hereby, (D) furnishing to the Agent from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Agent may reasonably request,
all in reasonable detail, (E) if any Collateral shall be in the possession of a
third party, notifying such Person of the Agent's security interest created
hereby and obtaining a written acknowledgment from such Person that such Person
holds possession of the Collateral for the benefit of the Agent, which such
written acknowledgement shall be in form and substance satisfactory to the
Agent, (F) if at any time after the date hereof, any Grantor acquires or holds
any Commercial Tort Claim, such Grantor shall immediately notify the Agent in a
writing signed by such Grantor setting forth a brief description of such
Commercial Tort Claim and grant to the Agent a security interest therein and in
the proceeds thereof, which writing shall incorporate the provisions hereof and
shall be in form and substance satisfactory to the Agent, (G) upon the
acquisition after the date hereof by any Grantor of any Motor Vehicle or other
Equipment subject to a certificate of title or ownership (other than a Motor
Vehicle or Equipment that is subject to a purchase money security interest
permitted by Section 7.2 of the Loan Agreement), cause the Agent to be listed as
the lienholder on such certificate of title or ownership and deliver evidence of
the same to the Agent in accordance with the Loan Agreement and (H) taking all
actions required by the Uniform Commercial Code or by other law, as applicable,
in any relevant Uniform Commercial Code jurisdiction, or by other law as
applicable in any foreign jurisdiction.
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(b) Location of Equipment and Inventory. All the Equipment
held by each Grantor is used or held for use in such Grantor's business and is
fit for such purposes. Each Grantor will keep the Equipment and Inventory (other
than used Equipment and Inventory sold in the ordinary course of business in
accordance with Section 5(g) hereof, Equipment and Inventory in transit from or
to such locations and Equipment at local repair facilities) at the locations
specified therefor in Section 4(g) hereof or, upon not less than thirty (30)
days' prior written notice to the Agent accompanied by a new Schedule V hereto
indicating each new location of the Equipment and Inventory, at such other
locations in the continental United States as the Grantors may elect, provided
that (i) all action has been taken to grant to the Agent a perfected, first
priority security interest in such Equipment and Inventory (subject only to
Permitted Liens), and (ii) the Agent's rights in such Equipment and Inventory,
including, without limitation, the existence, perfection and priority of the
security interest created hereby in such Equipment and Inventory, are not
adversely affected thereby.
(c) Condition of Equipment. Each Grantor will maintain or
cause the Equipment to be maintained and preserved in good condition, repair and
working order as when acquired and in accordance with any manufacturer's manual,
ordinary wear and tear excepted, and will forthwith, or in the case of any loss
or damage to any Equipment as quickly as practicable after the occurrence
thereof, make or cause to be made all repairs, replacements and other
improvements in connection therewith which are necessary or desirable,
consistent with past practice, or which the Agent may reasonably request to such
end. Each Grantor will promptly furnish to the Agent a statement describing in
reasonable detail any loss or damage in excess of $250,000 to any Equipment.
(d) Taxes, Etc. Each Grantor jointly and severally agrees to
pay promptly when due all property and other taxes, assessments and governmental
charges or levies imposed upon, and all claims (including claims for labor,
materials and supplies) against, the Equipment and Inventory, except to the
extent the validity thereof is being contested in good faith by proper
proceedings which stay the imposition of any penalty, fine or Lien resulting
from the non-payment thereof and with respect to which adequate reserves in
accordance with GAAP have been set aside for the payment thereof.
(e) Insurance.
(i) Each Grantor will, at its own expense, maintain
insurance (including, without limitation, comprehensive general liability and
property insurance) with respect to the Equipment and Inventory in such amounts,
against such risks, in such form and with responsible and reputable insurance
companies or associations as is required by any Governmental Authority having
jurisdiction with respect thereto or as is carried generally in accordance with
sound business practice by companies in similar businesses similarly situated
and in any event, in amount, adequacy and scope reasonably satisfactory to the
Agent. Each policy for liability insurance shall provide for all losses to be
paid on behalf of the Agent and the Grantors as their respective interests may
appear, and each policy for property damage insurance shall provide for all
losses (except for losses of less than $250,000 per occurrence) to be adjusted
with, and paid directly to, the Agent. Each such policy shall in addition (A)
name each Grantor and the Agent as insured parties thereunder (without any
representation or warranty by or obligation upon the Agent) as their interests
may appear, (B) contain an agreement by the insurer
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that any loss thereunder shall be payable to the Agent on its own account
notwithstanding any action, inaction or breach of representation or warranty by
any Grantor, (C) provide that there shall be no recourse against the Agent for
payment of premiums or other amounts with respect thereto and (D) provide that
at least 30 days' prior written notice of cancellation, lapse, expiration or
other adverse change shall be given to the Agent by the insurer. Each Grantor
will, if so requested by the Agent, deliver to the Agent original or duplicate
policies of such insurance and, as often as the Agent may reasonably request, a
report of a reputable insurance broker with respect to such insurance. Each
Grantor will also, at the request of the Agent, execute and deliver instruments
of assignment of such insurance policies and cause the respective insurers to
acknowledge notice of such assignment.
(ii) Reimbursement under any liability insurance
maintained by any Grantor pursuant to this Section 5(e) may be paid directly to
the Person who shall have incurred liability covered by such insurance. In the
case of any loss involving damage to Equipment or Inventory, any proceeds of
insurance maintained by a Grantor pursuant to this Section 5(e) shall be paid to
the Agent (except as to which paragraph (iii) of this Section 5(e) is not
applicable), such Grantor will make or cause to be made the necessary repairs to
or replacements of such Equipment or Inventory, and any proceeds of insurance
maintained by such Grantor pursuant to this Section 5(e) shall be paid by the
Agent to such Grantor as reimbursement for the costs of such repairs or
replacements.
(iii) Upon the occurrence and during the continuance
of a Default or Event of Default or upon insurance payments (in excess of
$250,000 in the aggregate) in respect of any Equipment or Inventory, all
insurance payments in respect of such Equipment or Inventory shall be paid to
the Agent and applied as specified in Section 7(b) hereof.
(f) Provisions Concerning the Accounts and the Licenses.
(i) Each Grantor will (A) give the Agent at least 30
days' prior written notice of any change in such Grantor's name, identity or
organizational structure, (B) maintain its jurisdiction of incorporation as set
forth in Section 4(b) hereto, (C) immediately notify the Agent upon obtaining an
organizational identification number, if on the date hereof such Grantor did not
have such identification number, and (D) keep adequate records concerning the
Accounts and Chattel Paper and permit representatives of the Agent pursuant to
the terms of the Loan Agreement to inspect and make abstracts from such Records
and Chattel Paper.
(ii) Each Grantor will, except as otherwise provided
in this subsection (f), continue to collect, at its own expense, all amounts due
or to become due under the Accounts. In connection with such collections, each
Grantor may (and, at the Agent's direction, will) take such action as such
Grantor or the Agent may deem reasonably necessary or advisable to enforce
collection or performance of the Accounts; provided, however, that the Agent
shall have the right at any time, upon the occurrence and during the continuance
of an Event of Default, to notify the Account Debtors or obligors under any
Accounts of the assignment of such Accounts to the Agent and to direct such
Account Debtors or obligors to make payment of all amounts due or to become due
to such Grantor thereunder directly to the Agent or its designated agent and,
upon such notification and at the expense of such Grantor and to the extent
permitted by law, to enforce collection of any such Accounts and to adjust,
settle or
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compromise the amount or payment thereof, in the same manner and to the same
extent as such Grantor might have done. After receipt by any Grantor of a notice
from the Agent that the Agent has notified, intends to notify, or has enforced
or intends to enforce a Grantor's rights against the Account Debtors or obligors
under any Accounts as referred to in the proviso to the immediately preceding
sentence, (A) all amounts and proceeds (including Instruments) received by such
Grantor in respect of the Accounts shall be received in trust for the benefit of
the Agent hereunder, shall be segregated from other funds of such Grantor and
shall be forthwith paid over to the Agent in the same form as so received (with
any necessary endorsement) to be held as cash collateral and applied as
specified in Section 7(b) hereof, and (B) such Grantor will not adjust, settle
or compromise the amount or payment of any Account or release wholly or partly
any Account Debtor or obligor thereof or allow any credit or discount thereon.
In addition, upon the occurrence and during the continuance of an Event of
Default, the Agent may (in its sole and absolute discretion) direct any or all
of the banks and financial institutions with which any Grantor either maintains
a Deposit Account or a lockbox or deposits the proceeds of any Accounts to send
immediately to the Agent by wire transfer (to such account as the Agent shall
specify, or in such other manner as the Agent shall direct) all or a portion of
such securities, cash, investments and other items held by such institution. Any
such securities, cash, investments and other items so received by the Agent
shall (in the sole and absolute discretion of the Agent) be held as additional
Collateral for the Obligations or distributed in accordance with Section 7
hereof.
(iii) Upon the occurrence and during the continuance
of any material breach or default under any License referred to in Schedule II,
III or IV hereto by any party thereto other than a Grantor, (A) the relevant
Grantor will, promptly after obtaining knowledge thereof, give the Agent written
notice of the nature and duration thereof, specifying what action, if any, it
has taken and proposes to take with respect thereto, (B) no Grantor will,
without the prior written consent of the Agent (which will not be unreasonably
withheld), declare or waive any such breach or default or affirmatively consent
to the cure thereof or exercise any of its remedies in respect thereof, and (C)
each Grantor will, upon written instructions from the Agent and at such
Grantor's expense, take such action as the Agent may reasonably deem necessary
or advisable in respect thereof.
(iv) Each Grantor will, at its expense, promptly
deliver to the Agent a copy of each notice or other communication received by it
by which any other party to any License referred to in Schedule II, III or IV
hereto purports to exercise any of its rights or affect any of its obligations
thereunder, together with a copy of any reply by such Grantor thereto.
(v) Each Grantor will exercise promptly and
diligently each and every right which it may have under each License (other than
any right of termination) and will duly perform and observe in all respects all
of its obligations under each License and will take all action necessary to
maintain the Licenses in full force and effect. No Grantor will, without the
prior written consent of the Agent, cancel, terminate, amend or otherwise modify
in any respect, or waive any provision of, any License referred to in Schedule
II, III or IV hereto.
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(g) Transfers and Other Liens.
(i) No Grantor will sell, assign (by operation of law
or otherwise), lease, license, exchange or otherwise transfer or dispose of any
of the Collateral, other than Permitted Dispositions.
(ii) No Grantor will create, suffer to exist or grant
any Lien, security interest or other charge or encumbrance upon or with respect
to any Collateral, other than Permitted Liens.
(h) Trademarks, Patents and Copyrights.
(i) If applicable, each Grantor has duly executed and
delivered the Assignment for Security (Trademarks) in the form attached hereto
as Exhibit A, the Assignment for Security (Patents) in the form attached hereto
as Exhibit B and the Assignment for Security (Copyrights) in the form attached
hereto as Exhibit C. Each Grantor (either itself or through licensees) will, and
will cause each licensee thereof to, take all action necessary to maintain all
of the Trademarks, Patents and Copyrights material to its business in full force
and effect, including, without limitation, using the proper statutory notices
and markings and using the Trademarks on each applicable trademark class of
goods in order to so maintain the Trademarks in full force free from any claim
of abandonment for non-use, and no Grantor will (nor permit any licensee thereof
to) do any act or knowingly omit to do any act whereby any Trademark, Patent or
Copyright material to its business may become invalidated; provided, however,
that so long as no Event of Default has occurred and is continuing, no Grantor
shall have an obligation to use or to maintain any Trademark, Patent or
Copyright (A) that relates solely to any product or work, that has been, or is
in the process of being, discontinued, abandoned or terminated, (B) that is
being replaced with a Trademark, Patent or Copyright substantially similar to
the Trademark, Patent or Copyright, as the case may be, that may be abandoned or
otherwise become invalid, so long as the failure to use or maintain such
Trademark, Patent or Copyright, as the case may be does not materially adversely
affect the validity of such replacement Trademark, Patent or Copyright, as the
case may be, and so long as such replacement Trademark, Patent or Copyright, as
the case may be, is subject to the Lien created by this Agreement or (C) that is
substantially the same as another Trademark, Patent or Copyright, as the case
may be, that is in full force, so long as the failure to use or maintain such
Trademark, Patent or Copyright, as the case may be does not materially adversely
affect the validity of such replacement Trademark, Patent or Copyright, as the
case may be, and so long as such other Trademark, Patent or Copyright, as the
case may be, is subject to the Lien and security interest created by this
Agreement. Each Grantor will cause to be taken all necessary steps in any
proceeding before the United States Patent and Trademark Office and the United
States Copyright Office or any similar office or agency in any other country or
political subdivision thereof to maintain each registration of the Trademarks,
the Patents and the Copyrights (other than those Trademarks, Patents or
Copyrights described in the proviso to the immediately preceding sentence),
including, without limitation, filing of renewals, affidavits of use, affidavits
of incontestability and opposition, interference and cancellation proceedings
and payment of maintenance fees, filing fees, taxes or other governmental fees.
If any Trademark, Patent or Copyright is infringed, misappropriated, diluted or
otherwise violated in any material respect by a third party, the Grantors shall
(x) upon learning of such infringement, misappropriation, dilution or other
violation, promptly notify the Agent and (y) to the extent the Grantors shall
deem appropriate
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under the circumstances, promptly ▇▇▇ for infringement, misappropriation,
dilution or other violation, seek injunctive relief where appropriate and
recover any and all damages for such infringement, misappropriation, dilution or
other violation, or take such other actions as the Grantors shall deem
appropriate under the circumstances to protect such Trademark, Patent or
Copyright. Each Grantor shall furnish to the Agent from time to time (but,
unless an Event of Default has occurred and is continuing, no more frequently
than quarterly) statements and schedules further identifying and describing the
Trademarks, Patents or Copyrights and such other reports in connection with the
Trademarks, Patents or Copyrights as the Agent may reasonably request, all in
reasonable detail and promptly upon request of the Agent, following receipt by
the Agent of any such statements, schedules or reports, the Grantors shall
modify this Agreement by amending Schedules II, III or IV hereto, as the case
may be, to include any Trademark, Patent or Copyright, as the case may be, which
becomes part of the Collateral under this Agreement and shall execute and
authenticate such documents and do such acts as shall be necessary or, in the
reasonable judgment of the Agent, desirable to subject such Trademarks, Patents
or Copyrights to the Lien and security interest created by this Agreement.
Notwithstanding anything herein to the contrary, upon the occurrence and during
the continuance of an Event of Default, no Grantor may abandon or otherwise
permit a registered Trademark, Patent or Copyright to become invalid without the
prior written consent of the Agent, and if any Trademark, Patent or Copyright is
infringed, misappropriated, diluted or otherwise violated in any material
respect by a third party, the Grantors will take such action as the Agent shall
deem appropriate under the circumstances to protect such Trademark, Patent or
Copyright.
(ii) In no event shall any Grantor, either itself or
through any agent, employee, licensee or designee, file an application for the
registration of any Trademark or Copyright or the issuance of any Patent with
the United States Patent and Trademark Office or the United States Copyright
Office, as applicable, or in any similar office or agency of the United States
or any country or any political subdivision thereof unless it gives the Agent
prior written notice thereof. Upon request of the Agent, each Grantor shall
execute, authenticate and deliver any and all assignments, agreements,
instruments, documents and papers as the Agent may reasonably request to
evidence the Agent's security interest hereunder in such Trademark, Patent or
Copyright and the General Intangibles of such Grantor relating thereto or
represented thereby, and each Grantor hereby appoints the Agent its
attorney-in-fact to execute and/or authenticate and file all such writings for
the foregoing purposes, all acts of such attorney being hereby ratified and
confirmed, and such power (being coupled with an interest) shall be irrevocable
until the termination of all Commitments, the repayment of all of the
Obligations in full and the termination of each of the Loan Documents.
(i) Deposit, Commodities and Securities Accounts. Prior to the
date hereof, each Grantor shall cause each bank and other financial institution
referred to in Schedule VI hereto to execute and deliver to the Agent a control
agreement, in form and substance reasonably satisfactory to the Agent, duly
executed by such Grantor and such bank or financial institution, or enter into
other arrangements in form and substance reasonably satisfactory to the Agent,
pursuant to which such institution shall irrevocably agree, inter alia, that (i)
it will comply at any time with the instructions originated by the Agent to such
bank or financial institution directing the disposition of cash, Commodity
Contracts, securities, Investment Property and other items from time to time
credited to such account, without further consent of such Grantor, which
instructions the Agent will not give to such bank or other financial institution
in the absence of a
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continuing Event of Default, (ii) all cash, Commodity Contracts, securities,
Investment Property and other items of such Grantor deposited with such
institution shall be subject to a perfected, first priority security interest in
favor of the Agent, (iii) any right of set off, banker's Lien or other similar
Lien, security interest or encumbrance (other than for administrative costs and
fees in an amount agreed upon between such institution and Agent) shall be fully
waived as against the Agent, and (iv) upon receipt of written notice from the
Agent during the continuance of an Event of Default, such bank or financial
institution shall immediately send to the Agent by wire transfer (to such
account as the Agent shall specify, or in such other manner as the Agent shall
direct) all such cash, the value of any Commodity Contracts, securities,
Investment Property and other items held by it. Without the prior written
consent of the Agent, no Grantor shall make or maintain any Deposit Account,
Commodity Account or Securities Account except for the accounts set forth in
Schedule VI hereto. The provisions of this paragraph 5(i) shall not apply to (i)
Deposit Accounts for which the Agent is the depositary and (ii) Deposit Accounts
specially and exclusively used for payroll, payroll taxes and other employee
wage and benefit payments to or for the benefit of a Grantor's salaried
employees.
(j) Motor Vehicles.
(i) Each Grantor shall (a) cause all Motor Vehicles,
now owned or hereafter acquired by any Grantor, which under applicable law are
required to be registered, to be properly registered in the name of such
Grantor, (b) cause all Motor Vehicles, now owned or hereafter acquired by any
Grantor, the ownership of which under applicable law (including without
limitation, any Motor Vehicle Law), is evidenced by a certificate of title or
ownership, to be properly titled in the name of such Grantor, with the Agent's
Lien noted thereon and (c) deliver to the Agent (or its custodian) originals of
all such certificates of title or ownership for such Motor Vehicles owned by it
with the Agent listed as lienholder.
(ii) Upon the acquisition after the date hereof by
any Grantor of any Motor Vehicle or other item of Equipment subject to a
certificate of title or ownership (other than a Motor Vehicle or item of
Equipment to be acquired that is subject to a purchase money security interest
permitted by Section 7.2 of the Loan Agreement), such Grantor shall deliver to
the Agent in accordance with the Loan Agreement, originals of the certificates
of title or ownership for such Motor Vehicle, together with the manufacturer's
statement of origin, and an application duly executed by the appropriate Grantor
to evidence the Agent's Lien thereon.
(iii) Each Grantor hereby appoints the Agent as its
attorney-in-fact, effective the date hereof and terminating upon the termination
of this Agreement, for the purpose of (A) executing on behalf of such Grantor
title or ownership applications for filing with appropriate state agencies to
enable Motor Vehicles now owned or hereafter acquired by such Grantor to be
retitled and the Agent listed as lienholder thereof, (B) filing such
applications with such state agencies, and (C) executing such other documents
and instruments on behalf of, and taking such other action in the name of, such
Grantor as the Agent may reasonably deem necessary or advisable to accomplish
the purposes hereof (including, without limitation, for the purpose of creating
in favor of the Agent a perfected Lien on the Motor Vehicles and exercising the
rights and remedies of the Agent hereunder). This appointment as
attorney-in-fact is coupled with an interest and is irrevocable until all of the
Obligations are paid in full after all Commitments have been terminated.
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(iv) Any certificates of title or ownership delivered
pursuant to the terms hereof shall be accompanied by odometer statements for
each Motor Vehicle covered thereby.
(v) So long as no Event of Default shall have
occurred and be continuing, upon the request of any Grantor, the Agent shall
execute and deliver to such Grantor such instruments as such Grantor shall
reasonably request to remove the notation of the Agent as lienholder on any
certificate of title for any Motor Vehicle; provided that any such instruments
shall be delivered, and the release effective, only upon receipt by the Agent of
a certificate from such Grantor, stating that the Motor Vehicle, the Lien on
which is to be released, is to be sold or has suffered a casualty loss (with
title thereto passing to the casualty insurance company therefor in settlement
of the claim for such loss), the amount that such Grantor will receive as sale
proceeds or insurance proceeds and whether or not such sale proceeds or
insurance proceeds are required by the Loan Agreement to be paid to the Agent to
be applied to the Obligations and, to the extent required by the Loan Agreement,
any proceeds of such sale or casualty loss shall be paid to the Agent hereunder
to be applied to the Obligations then outstanding.
(k) Control. Each Grantor hereby agrees to take any or all
action that may be necessary or desirable or that the Agent may request in order
for the Agent to obtain control in accordance with Sections 9-105 - 9-107 of the
Code with respect to the following Collateral: (i) Electronic Chattel Paper,
(ii) Investment Property and (iii) Letter-of-Credit Rights.
(l) Inspection and Reporting. Each Grantor shall permit the
Agent, or any agents or representatives thereof or such professionals or other
Persons as the Agent may designate (i) to examine and make copies of and
abstracts from such Grantor's records and books of account, (ii) to visit and
inspect its properties, (iii) to verify materials, leases, notes, Accounts,
Inventory and other assets of such Grantor from time to time, (iii) to conduct
audits, physical counts, appraisals and/or valuations, Phase I and Phase II
Environmental Site Assessments or examinations at the locations of such Grantor
and (iv) to discuss such Grantor's affairs, finances and accounts with any of
its directors, officers, managerial employees, independent accountants or any of
its other representatives, in each case from time to time hereafter but, absent
a continuing Event of Default, upon reasonable notice and during normal business
hours.
SECTION 6. Additional Provisions Concerning the Collateral.
(a) Each Grantor hereby (i) authorizes the Agent to file, one
or more financing or continuation statements, and amendments thereto, relating
to the Collateral and (ii) ratifies such authorization to the extent that the
Agent has filed any such financing or continuation statements, or amendments
thereto, prior to the date hereof. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
(b) Each Grantor hereby irrevocably appoints the Agent as its
attorney-in-fact and proxy, with full authority in the place and stead of such
Grantor and in the name of such Grantor or otherwise, from time to time in the
Agent's Permitted Discretion upon the occurrence and during the continuance of
an Event of Default, to take any action and to execute any instrument which the
Agent may deem necessary or advisable to accomplish the purposes of this
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Agreement (subject to the rights of a Grantor under Section 5 hereof),
including, without limitation, (i) to obtain and adjust insurance required to be
paid to the Agent pursuant to Section 5(e) hereof, (ii) to ask, demand, collect,
▇▇▇ for, recover, compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any Collateral, (iii) to receive,
endorse, and collect any drafts or other instruments, documents and chattel
paper in connection with clause (i) or (ii) above, (iv) to file any claims or
take any action or institute any proceedings which the Agent may deem necessary
or desirable for the collection of any Collateral or otherwise to enforce the
rights of the Agent and the Lenders with respect to any Collateral, and (v) to
execute assignments, licenses and other documents to enforce the rights of the
Agent and the Lenders with respect to any Collateral. This power is coupled with
an interest and is irrevocable until all of the Obligations are paid in full
after all Commitments have been terminated.
(c) For the purpose of enabling the Agent to exercise rights
and remedies hereunder, at such time as the Agent shall be lawfully entitled to
exercise such rights and remedies, and for no other purpose, each Grantor hereby
grants to the Agent, to the extent assignable, an irrevocable, non-exclusive
license (exercisable without payment of royalty or other compensation to any
Grantor) to use, assign, license or sublicense any of the Trademarks, Patents or
Copyrights now owned or hereafter acquired by any Grantor, wherever the same may
be located, including in such license reasonable access to all media in which
any of the licensed items may be recorded or stored and to all computer programs
used for the compilation or printout thereof. Notwithstanding anything contained
herein to the contrary, but subject to the provisions of the Loan Agreement that
limit the right of a Grantor to dispose of its property and Section 5(h) hereof,
so long as no Event of Default shall have occurred and be continuing, a Grantor
may exploit, use, enjoy, protect, license, sublicense, assign, sell, dispose of
or take other actions with respect to the Trademarks, Patents or Copyrights in
the ordinary course of its business. In furtherance of the foregoing, unless an
Event of Default shall have occurred and be continuing the Agent shall from time
to time, upon the request of a Grantor, execute and deliver any instruments,
certificates or other documents, in the form so requested, which such Grantor
shall have certified are appropriate (in its judgment) to allow it to take any
action permitted above (including relinquishment of the license provided
pursuant to this clause (c) as to any Trademarks, Patents or Copyrights).
Further, upon the payment in full of all of the Obligations after the
cancellation or termination of the Commitments, the Agent (subject to Section
10(e) hereof) shall release and reassign to the Grantors all of the Agent's
right, title and interest in and to the Trademarks, Patents and Copyrights, and
the Licenses, all without recourse, representation or warranty whatsoever. The
exercise of rights and remedies hereunder by the Agent shall not terminate the
rights of the holders of any licenses or sublicenses theretofore granted by any
Grantor in accordance with the second sentence of this clause (c). Each Grantor
hereby releases the Agent from any claims, causes of action and demands at any
time arising out of or with respect to any actions taken or omitted to be taken
by the Agent under the powers of attorney granted herein other than actions
taken or omitted to be taken through the Agent's gross negligence or willful
misconduct, as determined by a final determination of a court of competent
jurisdiction.
(d) If any Grantor fails to perform any agreement contained
herein, the Agent may itself perform, or cause performance of, such agreement or
obligation, in the name of such Grantor or the Agent, and the expenses of the
Agent incurred in connection therewith shall be
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jointly and severally payable by the Grantors pursuant to Section 8 hereof and
shall be secured by the Collateral.
(e) The powers conferred on the Agent hereunder are solely to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
(f) Anything herein to the contrary notwithstanding (i) each
Grantor shall remain liable under the Licenses and otherwise with respect to any
of the Collateral to the extent set forth therein to perform all of its
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by the Agent of any of its rights hereunder shall
not release any Grantor from any of its obligations under the Licenses or
otherwise in respect of the Collateral, and (iii) the Agent shall not have any
obligation or liability by reason of this Agreement under the Licenses or with
respect to any of the other Collateral, nor shall the Agent be obligated to
perform any of the obligations or duties of any Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
SECTION 7. Remedies Upon Default. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the Collateral, in
addition to any other rights and remedies provided for herein or otherwise
available to it, all of the rights and remedies of a secured party upon default
under the Code (whether or not the Code applies to the affected Collateral), and
also may (i) take absolute control of the Collateral, including, without
limitation, transfer into the Agent's name or into the name of its nominee or
nominees (to the extent the Agent has not theretofore done so) and thereafter
receive, for the benefit of the Agent, all payments made thereon, give all
consents, waivers and ratifications in respect thereof and otherwise act with
respect thereto as though it were the outright owner thereof, (ii) require each
Grantor to, and each Grantor hereby agrees that it will at its expense and upon
request of the Agent forthwith, assemble all or part of the Collateral as
directed by the Agent and make it available to the Agent at a place or places to
be designated by the Agent that is reasonably convenient to both parties, and
the Agent may enter into and occupy any premises owned or leased by any Grantor
where the Collateral or any part thereof is located or assembled for a
reasonable period in order to effectuate the Agent's rights and remedies
hereunder or under law, without obligation to any Grantor in respect of such
occupation, and (iii) without notice except as specified below and without any
obligation to prepare or process the Collateral for sale, (A) sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any of the Agent's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as the Agent may
deem commercially reasonable and/or (B) lease, license or dispose of the
Collateral or any part thereof upon such terms as the Agent may deem
commercially reasonable. Each Grantor agrees that, to the extent notice of sale
or any other disposition of the Collateral shall be required by law, at least
ten (10) days' notice to the Administrative Borrower of the time and place of
any public sale or the time after which any private sale or other disposition of
the Collateral is to be made shall constitute reasonable
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notification. The Agent shall not be obligated to make any sale or other
disposition of Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. Each Grantor hereby
waives any claims against the Agent and the Lenders arising by reason of the
fact that the price at which the Collateral may have been sold at a private sale
was less than the price which might have been obtained at a public sale or was
less than the aggregate amount of the Obligations, even if the Agent accepts the
first offer received and does not offer the Collateral to more than one offeree,
and waives all rights that such Grantor may have to require that all or any part
of the Collateral be marshalled upon any sale (public or private) thereof. Each
Grantor hereby acknowledges that (i) any such sale of the Collateral by the
Agent shall be made without warranty, (ii) the Agent may specifically disclaim
any warranties of title, possession, quiet enjoyment or the like, and (iii) such
actions set forth in clauses (i) and (ii) above shall not adversely effect the
commercial reasonableness of any such sale of the Collateral. In addition to the
foregoing, (i) upon written notice to any Grantor from the Agent, each Grantor
shall cease any use of the Trademarks, Patents and Copyrights or any trademark,
patent or copyright similar thereto for any purpose described in such notice;
(ii) the Agent may, at any time and from time to time, upon 10 days' prior
notice to any Grantor, license, whether general, special or otherwise, and
whether on an exclusive or non-exclusive basis, any of the Trademarks, Patents
or Copyrights, throughout the universe for such term or terms, on such
conditions, and in such manner, as the Agent shall in its sole discretion
determine; and (iii) the Agent may, at any time, pursuant to the authority
granted in Section 6 hereof (such authority being effective upon the occurrence
and during the continuance of an Event of Default), execute and deliver on
behalf of a Grantor, one or more instruments of assignment of the Trademarks,
Patents or Copyrights (or any application or registration thereof), in form
suitable for filing, recording or registration in any country.
(b) Any cash held by the Agent as Collateral and all Cash
Proceeds received by the Agent in respect of any sale of or collection from, or
other realization upon, all or any part of the Collateral may, in the discretion
of the Agent, be held by the Agent as collateral for, and/or then or at any time
thereafter applied (after payment of any amounts payable to the Agent pursuant
to Section 8 hereof) in whole or in part by the Agent against, all or any part
of the Obligations in such order as the Agent shall elect, consistent with the
provisions of the Loan Agreement. Any surplus of such cash or Cash Proceeds held
by the Agent and remaining after payment in full of all of the Obligations after
all Commitments have been terminated shall be paid over to whomsoever shall be
lawfully entitled to receive the same or as a court of competent jurisdiction
shall direct.
(c) In the event that the proceeds of any such sale,
collection or realization are insufficient to pay all amounts to which the Agent
and the Lenders are legally entitled, the Grantors shall be jointly and
severally liable for the deficiency, together with interest thereon at the
highest rate specified in any applicable Loan Document for interest on overdue
principal thereof or such other rate as shall be fixed by applicable law,
together with the costs of collection and the reasonable fees, costs, expenses
and other client charges of any attorneys employed by the Agent to collect such
deficiency.
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(d) Each Grantor hereby acknowledges that if the Agent
complies with any applicable state or federal law requirements in connection
with a disposition of the Collateral, such compliance will not adversely effect
the commercial reasonableness of any sale or other disposition of the
Collateral.
(e) The Agent shall not be required to marshal any present or
future collateral security (including, but not limited to, this Agreement and
the Collateral) for, or other assurances of payment of, the Obligations or any
of them or to resort to such collateral security or other assurances of payment
in any particular order, and all of the Agent's rights hereunder and in respect
of such collateral security and other assurances of payment shall be cumulative
and in addition to all other rights, however existing or arising. To the extent
that any Grantor lawfully may, such Grantor hereby agrees that it will not
invoke any law relating to the marshalling of collateral which might cause delay
in or impede the enforcement of the Agent's rights under this Agreement or under
any other instrument creating or evidencing any of the Obligations or under
which any of the Obligations is outstanding or by which any of the Obligations
is secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, each Grantor hereby irrevocably waives the benefits of all such
laws.
SECTION 8. Indemnity and Expenses.
(a) Each Grantor jointly and severally agrees to defend,
protect, indemnify and hold the Agent harmless from and against any and all
claims, damages, losses, liabilities, obligations, penalties, and reasonable
fees, costs and expenses (including, without limitation, reasonable legal fees,
costs, expenses, and disbursements of Agent's counsel) to the extent that they
arise out of or otherwise result from this Agreement (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting solely and directly from the Agent's gross negligence or willful
misconduct, as determined by a final judgment of a court of competent
jurisdiction.
(b) The Grantors will upon demand pay to the Agent the amount
of any and all reasonable costs and expenses, including the reasonable fees,
costs, expenses and disbursements of counsel for the Agent and of any experts
and agents (including, without limitation, any collateral trustee which may act
as agent of the Agent), which the Agent may incur in connection with (i) the
preparation, negotiation, execution, delivery, recordation, administration,
amendment, waiver or other modification or termination of this Agreement, (ii)
the custody, preservation, use or operation of, or the sale of, collection from,
or other realization upon, any Collateral, (iii) the exercise or enforcement of
any of the rights of the Agent hereunder, or (iv) the failure by any Grantor to
perform or observe any of the provisions hereof.
SECTION 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing and shall be mailed (by certified
mail, postage prepaid and return receipt requested), telecopied or delivered to
the Grantors or to the Agent, if to a Grantor to it at its address specified for
the Administrative Borrower in the Loan Agreement and if to the Agent to it at
its address specified in the Loan Agreement; or as to any such Person, at such
other address as shall be designated by such Person in a written notice to such
other Person complying as to delivery with the terms of this Section 9. All such
notices and other communications shall
-20-
be effective (i) if sent by certified mail, return receipt requested, when
received or three (3) Business Days after mailing, whichever first occurs, (ii)
if telecopied, when transmitted and confirmation is received, provided same is
on a Business Day and, if not, on the next Business Day or (iii) if delivered,
upon delivery, provided same is on a Business Day and, if not, on the next
Business Day.
SECTION 10. Miscellaneous.
(a) No amendment of any provision of this Agreement shall be
effective unless it is in writing and signed by each Grantor and the Agent, and
no waiver of any provision of this Agreement, and no consent to any departure by
any Grantor therefrom, shall be effective unless it is in writing and signed by
the Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No failure on the part of the Agent to exercise, and no
delay in exercising, any right hereunder or under any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of the Agent or any Lender provided herein
and in the other Loan Documents are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law. The rights of the Agent or
any Lender under any Loan Document against any party thereto are not conditional
or contingent on any attempt by such Person to exercise any of its rights under
any other Loan Document against such party or against any other Person,
including but not limited to, any Grantor.
(c) 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 portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest
in the Collateral and shall (i) remain in full force and effect until the latest
of (A) the payment in full of the Obligations, (B) the termination of all of the
Commitments, and (C) the termination or cash collateralization of all of the
Letters of Credit, and (ii) be binding on each Grantor and all other Persons who
become bound as debtor to this Agreement in accordance with Section 9-203(d) of
the Code and shall inure, together with all rights and remedies of the Agent and
the Lenders hereunder, to the benefit of the Agent and the Lenders and their
respective permitted successors, transferees and assigns. Without limiting the
generality of clause (ii) of the immediately preceding sentence, without notice
to the Grantors, the Agent and the Lenders may assign or otherwise transfer
their rights and obligations under this Agreement and any other Loan Document,
to any other Person and such other Person shall thereupon become vested with all
of the benefits in respect thereof granted to the Agent and the Lenders herein
or otherwise. Upon any such assignment or transfer, all references in this
Agreement to the Agent or any such Lender shall mean the assignee of the Agent
or such Lender. None of the rights or obligations of any Grantor hereunder may
be assigned or otherwise transferred without the prior written consent of the
Agent, and any such assignment or transfer shall be null and void.
-21-
(e) Upon the satisfaction in full of the Obligations and the
termination of all of the Commitments, (i) this Agreement and the security
interests created hereby shall terminate and all rights to the Collateral shall
revert to the Grantors and (ii) the Agent will, upon the Grantors' request and
at the Grantors' expense, (A) return to the Grantors such of the Collateral as
shall not have been sold or otherwise disposed of or applied pursuant to the
terms hereof and (B) execute and deliver to the Grantors such documents as the
Grantors shall reasonably request to evidence such termination, all without any
representation, warranty or recourse whatsoever.
(f) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST CREATED HEREBY, OR REMEDIES HEREUNDER,
IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAW OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(g) ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY DOCUMENT RELATED THERETO MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE COUNTY OF NEW YORK OR THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS THEREOF, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH GRANTOR HEREBY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. EACH GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION, SUIT OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND CONSENTS TO
THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT.
(h) EACH OF THE GRANTORS AND (BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS AGREEMENT) THE AGENT WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF THE
PARTIES HERETO.
(i) Each Grantor irrevocably consents to the service of
process of any of the aforesaid courts in any such action, suit or proceeding by
the mailing of copies thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Grantor at its
address provided herein, such service to become effective when received or 10
days after such mailing, whichever first occurs.
-22-
(j) Nothing contained herein shall affect the right of the
Agent to serve process in any other manner permitted by law or commence legal
proceedings or otherwise proceed against any Grantor or any property of any
Grantor in any other jurisdiction.
(k) Each Grantor irrevocably and unconditionally waives any
right it may have to claim or recover in any legal action, suit or proceeding
referred to in this Section any special, exemplary, punitive or consequential
damages.
(l) Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
(m) This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together
constitute one in the same Agreement.
(n) All of the obligations of the Grantors hereunder are joint
and several. The Agent may, in its sole and absolute discretion, enforce the
provisions hereof against any of the Grantors and shall not be required to
proceed against all Grantors jointly or seek payment from the Grantors ratably.
In addition, the Agent may, in its sole and absolute discretion, select the
Collateral of any one or more of the Grantors for sale or application to the
Obligations, without regard to the ownership of such Collateral, and shall not
be required to make such selection ratably from the Collateral owned by all of
the Grantors. The release or discharge of any Grantor by the Agent shall not
release or discharge any other Grantor from the obligations of such Person
hereunder.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-23-
IN WITNESS WHEREOF, each Grantor has caused this Agreement to
be executed and delivered by its officer thereunto duly authorized as of the
date first above written.
PARENT:
IRON AGE HOLDINGS CORPORATION
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Finance, CFO and
Treasurer
SUBSIDIARY GRANTORS:
IRON AGE INVESTMENT COMPANY
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
IA VISION ACQUISITION, CO.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
SCHEDULE I
LEGAL NAMES; ORGANIZATIONAL IDENTIFICATION NUMBERS; STATES OR
JURISDICTION OF ORGANIZATION
Sched. I-1
SCHEDULE II
TRADEMARKS
AND
TRADEMARK LICENSES
Sched. II-1
SCHEDULE III
PATENTS AND PATENT LICENSES
Sched. III-1
SCHEDULE IV
COPYRIGHTS AND COPYRIGHT LICENSES
Sched. IV-1
SCHEDULE V
LOCATIONS OF GRANTORS
LOCATION Description of Location (State if Location
(i) contains Equipment, Fixtures,
Goods or Inventory,
(ii) is chief place of business and
chief executive office, or
(iii) contains Records concerning Accounts
and originals of Chattel Paper)
Sched. V-1
SCHEDULE VI
DEPOSIT ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS
Name and Address
of Institution
Maintaining Account Account Number Type of Account
Sched. VI-1
SCHEDULE VII
UCC-1 FINANCING STATEMENTS
Sched. VII-1
SCHEDULE VIII
COMMERCIAL TORT CLAIMS
Sched. VIII-1
EXHIBIT A
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, Iron Age Holdings Corporation (the "Assignor") has
adopted, used and is using, and holds all right, title and interest in and to,
the trademarks and service marks listed on the annexed Schedule 1A, which
trademarks and service marks are registered or applied for in the United States
Patent and Trademark Office (the "Trademarks");
WHEREAS, the Assignor, has entered into a Trademark Security
Agreement, dated September 23, 2002 (the "Security Agreement"), in favor of
FOOTHILL CAPITAL CORPORATION, as agent for certain lenders (the "Assignee");
WHEREAS, pursuant to the Security Agreement, the Assignor has
assigned to the Assignee and granted to the Assignee for the benefit of the
lenders a continuing security interest in all right, title and interest of the
Assignor in, to and under the Trademarks, together with, among other things, the
good-will of the business symbolized by the Trademarks and the applications and
registrations thereof, and all proceeds thereof, including, without limitation,
any and all causes of action which may exist by reason of infringement thereof
and any and all damages arising from past, present and future violations thereof
(the "Collateral"), to secure the payment, performance and observance of the
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Assignor does
hereby pledge, convey, sell, assign, transfer and set over unto the Assignee and
grants to the Assignee for the benefit of the lenders a continuing security
interest in the Collateral to secure the prompt payment, performance and for the
benefit of the lenders observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that
the rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
Exh. A-1
IN WITNESS WHEREOF, the Assignor has caused this Assignment to
be duly executed by its officer thereunto duly authorized as of September 23,
2002.
[GRANTOR]
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Finance, CFO and
Treasurer
Exh. ▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
ss.:
COUNTY OF Allegheny
On this 23rd day of September, 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
Vice President/Finance, CFO and Treasurer of Iron Age Holdings Corporation, a
Delaware corporation, and that he executed the foregoing instrument in the firm
name of Iron Age Holdings Corporation, and that he had authority to sign the
same, and he acknowledged to me that he executed the same as the act and deed of
said firm for the uses and purposes therein mentioned.
Rose ▇▇▇▇ ▇▇▇▇▇▇▇
Exh. A-3
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(TRADEMARKS AND TRADEMARK APPLICATIONS)
Trademarks and Trademark Applications Owned
by Iron Age Holdings Corporation
Exh. A-4
EXHIBIT B
ASSIGNMENT FOR SECURITY
(PATENTS)
WHEREAS, Iron Age Holdings Corporation (the "Assignor") holds
all right, title and interest in the letter patents, design patents and utility
patents listed on the annexed Schedule 1A, which patents are issued or applied
for in the United States Patent and Trademark Office (the "Patents");
WHEREAS, the Assignor, has entered into a Patent Security
Agreement, dated September 23, 2002 (the "Security Agreement"), in favor of
FOOTHILL CAPITAL CORPORATION, as the agent for certain lenders (the "Assignee");
WHEREAS, pursuant to the Security Agreement, the Assignor has
assigned to the Assignee and granted to the Assignee for the benefit of the
lenders a continuing security interest in all right, title and interest of the
Assignor in, to and under the Patents and the applications and registrations
thereof, and all proceeds thereof, including, without limitation, any and all
causes of action which may exist by reason of infringement thereof (the
"Collateral"), to secure the payment, performance and observance of the
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Assignor does
hereby pledge, convey, sell, assign, transfer and set over unto the Assignee and
grants to the Assignee for the benefit of the lenders a continuing security
interest in the Collateral to secure the prompt payment, performance and
observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that
the rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
Exh. B-1
IN WITNESS WHEREOF, the Assignor has caused this Assignment to
be duly executed by its officer thereunto duly authorized as of September 23,
2002.
[GRANTOR]
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Finance, CFO and
Treasurer
▇▇▇. ▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
ss.:
COUNTY OF Allegheny
On this 23rd day of September, 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
Vice President/Finance, CFO and Treasurer of
Iron Age Holdings Corporation, a Delaware corporation, and
that he executed the foregoing instrument in the firm name of
Iron Age Holdings Corporation, and that he had authority to
sign the same, and he acknowledged to me that he executed the same as the act
and deed of said firm for the uses and purposes therein mentioned.
Rose ▇▇▇▇ ▇▇▇▇▇▇▇
Exh. B-3
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(PATENTS AND PATENT APPLICATIONS)
Patents and Patent Applications Owned
by Iron Age Holdings Corporation
Exh. B-4
EXHIBIT C
ASSIGNMENT FOR SECURITY
(COPYRIGHTS)
WHEREAS, Iron Age Holdings Corporation (the "Assignor") holds
all right, title and interest in the copyrights listed on the annexed Schedule
1A, which copyrights are registered in the United States Copyright Office (the
"Copyrights");
WHEREAS, the Assignor, has entered into a Security Agreement,
dated September 23, 2002 (the "Security Agreement"), in favor of FOOTHILL
CAPITAL CORPORATION, as agent for certain lenders (the "Assignee");
WHEREAS, pursuant to the Security Agreement, the Assignor has
assigned to the Assignee and granted to the Assignee for the benefit of the
lenders a continuing security interest in all right, title and interest of the
Assignor in, to and under the Copyrights and the applications and registrations
thereof, and all proceeds thereof, including, without limitation, any and all
causes of action which may exist by reason of infringement thereof (the
"Collateral"), to secure the payment, performance and observance of the
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Assignor does
hereby pledge, convey, sell assign, transfer and set over unto the Assignee and
grants to the Assignee for the benefit of the lenders a continuing security
interest in the Collateral to secure the prompt payment, performance and
observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that
the rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
Exh. C-1
IN WITNESS WHEREOF, the Assignor has caused this Assignment to
be duly executed by its officer thereunto duly authorized as of September 23,
2002.
[GRANTOR]
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Finance, CFO and
Treasurer
Exh. C-2
STATE OF Pennsylvania
ss.:
COUNTY OF Allegheny
On this 23rd day of September, 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
Vice President/Finance, CFO and Treasurer of Iron Age Holdings Corporation, a
Delaware corporation, and that he executed the foregoing instrument in the firm
name of Iron Age Holdings Corporation, and that he had authority to sign the
same, and he acknowledged to me that he executed the same as the act and deed of
said firm for the uses and purposes therein mentioned.
Rose ▇▇▇▇ ▇▇▇▇▇▇▇
Exh. C-3
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(COPYRIGHTS AND COPYRIGHT APPLICATIONS)
Copyrights and Copyright Applications owned
by Iron Age Holdings Corporation