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EXHIBIT 10.1.7
TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of May 15, 1996,
made by A.P.S. MANAGEMENT SERVICES, INC., a Delaware corporation (the
"Grantor"), in favor of CHEMICAL BANK, as agent (in such capacity, the "Agent")
for the several banks and other financial institutions (the "Lenders") from
time to time parties to the Amended and Restated Credit Agreement, dated as of
January 25, 1996 (as the same may be amended, supplemented, waived or otherwise
modified from time to time, the "Credit Agreement"), among A.P.S., Inc. (the
"Borrower"), the Agent and the Lenders.
W I T N E S S E T H :
WHEREAS, the Grantor is a party to the Amended and Restated
Security Agreement, dated as of January 25, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Subsidiaries' Security Agreement"),
made by the grantors named therein in favor of the Agent, for the benefit of
the Lenders;
WHEREAS, the Grantor has acquired from the Borrower all of the
Trademarks listed on Schedule 1 hereto; and
WHEREAS, pursuant to the Subsidiaries' Security Agreement, the
Grantor is required, and has agreed, to enter into this Trademark Security
Agreement and to grant to the Agent for the ratable benefit of the Lenders a
security interest in all right, title and interest of the Grantor in, to and
under the Collateral, including all of the property listed on the attached
Schedule 1, together with any renewal or extension thereof, and all Proceeds
thereof, to secure the Secured Obligations;
NOW, THEREFORE, in consideration of the premises, the Grantor
hereby agrees with the Agent, for the ratable benefit of the Lenders, as
follows:
1. Defined Terms. (a) Unless otherwise defined herein,
capitalized terms which are defined in the Credit Agreement and used herein
are so used as so defined; and the following terms shall have the following
meanings:
"Agreement": this Trademark Security Agreement, as the same
may be amended, supplemented, waived or otherwise modified from time
to time.
"Code": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Collateral": as defined in Section 2 of this Agreement.
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"General Intangibles": as defined in Section 9-106 of the
Code, including, without limitation, all Trademarks now or hereafter
owned by the Grantor to the extent such Trademarks would be included
in General Intangibles under the Code.
"Obligations": the collective reference to the unpaid principal
of and interest on (including, without limitation, interest accruing
after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of
the Borrower to the Agent and the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, the Notes, the Letters of Credit, any
Interest Rate Agreement entered into with any Lender, the other Loan
Documents or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with a
termination of any transaction entered into pursuant to an Interest
Rate Agreement entered into with any Lender, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all reasonable
fees and disbursements of counsel to the Agent or any Lender that are
required to be paid by the Borrower pursuant to the terms of the
Credit Agreement or any other Loan Document).
"Secured Obligations": the collective reference to (a) the
Obligations and (b) all obligations and liabilities of the Grantor
which may arise under or in connection with this Agreement or any
other Loan Document to which the Grantor is a party, whether on
account of reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all reasonable
fees and disbursements of counsel to the Agent or to the Lenders that
are required to be paid by the Grantor pursuant to the terms of this
Agreement or any other Loan Document), provided that anything herein
or in any other Loan Document to the contrary notwithstanding, the
maximum liability of the Grantor hereunder and under the Loan
Documents shall in no event exceed an amount which, under applicable
federal and state laws, including those relating to the insolvency of
debtors, would result in the avoidance or illegality of the
obligations of the Grantor hereunder and under the Loan Documents.
"Trademark License": any written agreement providing for the
grant by the Grantor of any right to use any
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Trademark, including, without limitation, those listed in Schedule 1
hereto, but excluding the grant of any such right to any automotive
parts store or warehouse (i) to which the Borrower or any of its
Subsidiaries sells goods in connection with the Borrower's Big A(R)
program or which otherwise participates in the Borrower's Big A(R)
program or (ii) in connection with the Installers' Service Warehouse
or Installers Express programs or (iii) any other similar programs
that may be created by the Borrower or any Restricted Subsidiary after
the date hereof.
"Trademarks": (a) all United States trademarks, trade names,
corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos and other source or business
identifiers, and the goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the
United States Patent and Trademark Office or in any similar office or
agency of the United States or any State thereof, including, without
limitation, those listed in Schedule 1 hereto but excluding the trade
name "Prince Oracle", and (b) all renewals thereof.
(b) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
2. Grant of Security Interest. As collateral security
for the prompt and complete payment and performance when due (whether at the
stated maturity, by acceleration or otherwise) of the Secured Obligations, the
Grantor hereby grants to the Agent for the ratable benefit of the Lenders a
security interest in all of the following property now owned or at any time
hereafter acquired by the Grantor or in which the Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"):
(i) all Trademarks;
(ii) all Trademark Licenses;
(iii) all General Intangibles; and
(iv) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing;
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provided that in the case of any Trademark Licenses with or issued by Persons
other than a Subsidiary of the Borrower that would otherwise be included in the
foregoing Collateral, the foregoing will not be deemed to grant a security
interest therein under this Agreement (and such Trademark License shall not be
deemed to constitute a part of the Collateral) for so long as the granting of a
security interest pursuant to the terms hereof would result in a breach,
default or termination of such Trademark License. The Grantor shall use its
reasonable best efforts to cause each Trademark License entered into, created
or made after the date hereof to be subject to the Lien and security interest
created pursuant to this Agreement.
3. Representations and Warranties Concerning Trademarks.
Schedule 1 hereto includes all Trademark Licenses (other than immaterial
non-commercial permissions) to which the Grantor is a party as of the date
hereof which are material to the business of the Borrower and its Restricted
Subsidiaries, taken as a whole, and the Grantor has no material oral or
otherwise unexecuted and binding Trademark Licenses, other than the grant of
the right to use certain of the Grantor's Trademarks (i) to automotive parts
stores and warehouses to which the Borrower or any of its Subsidiaries sells
goods in connection with the Borrower's Big A(R) program or which otherwise
participates in the Borrower's Big A(R) program, (ii) in connection with the
Installers' Service Warehouse or Installers Express programs, (iii) in
connection with any other similar programs that may be created by the Borrower
or any Restricted Subsidiary after the date hereof, and (iv) to Big A
Technologies in connection with the provision of goods and services to
automotive parts stores and warehouses associated with the Borrower and its
Subsidiaries. Schedule 1 hereto includes all registered Trademarks owned by the
Grantor in its own name as of the date hereof which are material to the
business of the Borrower and its Restricted Subsidiaries, taken as a whole. To
the Grantor's knowledge, each such Trademark is valid, subsisting, unexpired,
enforceable and has not been abandoned, except to the extent that any failure
to be valid, subsisting, unexpired or enforceable or any abandonment would not
be reasonably expected to have a Material Adverse Effect, or, in the case of
any abandonment, would be permitted under subsection 8.6 of the Credit
Agreement. Except (i) as set forth in such Schedule, (ii) for immaterial oral
or written non-commercial permissions and settlement agreements, (iii) for the
grant of the right to use certain of the Grantor's Trademarks (w) to automotive
parts stores and warehouses to which the Borrower or any of its Subsidiaries
sells goods in connection with the Borrower's Big A(R) program or which
otherwise participates in the Borrower's Big A(R) program, (x) in connection
with the Installers' Service Warehouse or Installers Express programs, (y) in
connection with any other similar programs that may be created by the Borrower
or any Restricted Subsidiary after the Effective Date, and (z) to Big A
Technologies in connection with the provision of goods and services to
automotive parts stores and warehouses associated
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with the Borrower and its Subsidiaries, and (iv) agreements entered into the
ordinary course of business, none of such Trademarks is the subject of any
licensing or franchise agreement. No holding, decision or judgment has been
rendered by any Governmental Authority in any litigation, action, investigation
or like proceeding to which the Grantor was or is a party which would be
reasonably expected to limit, cancel or question the validity of any material
Trademark owned by the Grantor and which has had or would reasonably be
expected to have a Material Adverse Effect. No action or proceeding is pending
with respect to any Trademark owned by the Grantor which would be reasonably
expected to have a Material Adverse Effect.
4. Covenants. The Grantor covenants and agrees with the
Agent and the Lenders that, from and after the date of this Agreement until the
payment in full of the Notes, the Reimbursement Obligations and the other
Secured Obligations then due and owing, the termination of the Commitments and
the expiration, termination or return to the Issuing Lender of the Letters of
Credit:
(a) Further Documentation; Pledge of Instruments and
Chattel Paper. At any time and from time to time, upon the written
request of the Agent or the Grantor, as the case may be, and at the
sole expense of the Grantor, the Grantor or the Agent, as the case may
be, will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Agent or
the Grantor may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and
powers herein granted to the Agent, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code in effect in any jurisdiction with respect to the
Liens created hereby. The Grantor also hereby authorizes the Agent to
file any such financing or continuation statement without the
signature of the Grantor to the extent permitted by applicable law. A
carbon, photographic or other reproduction of this Agreement shall be
sufficient as a financing statement for filing in any Jurisdiction.
The Agent agrees to notify the Grantor and the Grantor agrees to not
notify the Agent of any financing or continuation statement filed by
it pursuant to this Section 5(a), provided that any failure to give
any such notice shall not affect the validity or effectiveness of any
such filing.
(b) Limitation on Liens on Collateral. The Grantor will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is reasonably necessary to
remove, any Lien or material adverse claim on or to any of the
Collateral, other than the Liens created hereby and other than as
permitted pursuant to the Loan Documents, and will defend the right,
title and interest of the Agent and the Lenders in and to any of the
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Collateral against the claims and demands of all Persons whomsoever.
(c) Limitations on Dispositions of Collateral. Without
the prior written consent of the Agent, the Grantor will not sell,
assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral, or attempt, offer or contract
to do so, except as permitted by this Agreement, the Subsidiaries'
Security Agreement or the Credit Agreement.
(d) Notices. The Grantor will advise the Agent and the
Lenders promptly, in reasonable detail, at their respective addresses
set forth in the Credit Agreement, (i) of any Lien (other than Liens
created hereby or permitted under the Loan Documents) on, or material
adverse claim asserted against, Trademarks owned by the Grantor and
(ii) of the occurrence of any other event which would reasonably be
expected in the aggregate to have a material adverse effect on the
aggregate value of the Collateral or the Liens created hereunder.
(e) Trademarks. (i) Except as permitted by subsection 8.6
of the Credit Agreement, the Grantor (either itself or through
licensees) will, except with respect to any Trademark owned by the
Grantor that the Grantor shall reasonably determine is not material to
the business of the Borrower and its Subsidiaries, taken as a whole,
(A) continue to use, and maintain in full force (free from any claim
of abandonment for non-use) each Trademark owned by the Grantor and
(B) not (and not permit any licensee to) do any act or knowingly omit
to do any act whereby any Trademark owned by the Grantor may become
invalidated or abandoned.
(ii) The Grantor either itself or through any agent,
employee, licensee or designee, shall, at the request of the Agent,
provide to the Agent a document confirming the Lenders' security
interest in any Trademark with respect to which the Grantor has filed
an application for registration with the United States Patent and
Trademark Office.
(iii) The Grantor will promptly notify the Agent and the
Lenders of any material infringement of any material Trademark owned
by it of which it becomes aware and will take such actions as it shall
reasonably deem appropriate under the circumstances, in accordance
with its reasonable business judgment, to protect such Trademark
including, where appropriate, the bringing of suit or the settling of
actual or potential suits for infringement, misappropriation or
dilution, seeking injunctive relief and seeking to recover any and all
damages for such infringement, misappropriation or dilution.
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5. Agent's Appointment as Attorney-in-Fact.
(a) Powers. The Grantor hereby irrevocably constitutes
and appoints the Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Grantor and in the name of
the Grantor or in its own name, from time to time in the Agent's discretion,
for the purpose of carrying out the terms of this Agreement, to take any and
all appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing, the Grantor
hereby gives the Agent the power and right, on behalf of the Grantor, without
notice to or assent by the Grantor, to do the following at any time when any
Event of Default shall have occurred and be continuing, and to the extent
permitted by law:
(i) in the name of the Grantor or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any General Intangible (to the extent that the
foregoing constitute Collateral) or with respect to any other
Collateral and to file any claim or to take any other action or
institute any proceeding in any court of law or equity or otherwise
deemed appropriate by the Agent for the purpose of collecting any and
all such moneys due under any such General Intangible or with respect
to any such other Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied or placed
on the Collateral, other than Liens permitted under this Agreement or
the other Loan Documents; and
(iii) upon the occurrence and during the continuance of any
Event of Default (A) to direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Agent or as the Agent shall
direct; (B) to ask for, or demand, collect, receive payment of and
receipt for, any and all moneys, claims and other amounts due or to
become due at any, time in respect of or arising out of any of the
Collateral; (C) to sign And indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (D) to commence and prosecute
any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any thereof and to
enforce any other right in respect of any Collateral; (E) to defend
any suit, action or proceeding brought against the Grantor with
respect to any of the Collateral; (F) to settle, compromise or adjust
any suit, action or proceeding described in clause (E) above and, in
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connection therewith, to give such discharges or releases as the
Agent may deem appropriate; (G) to assign any Trademark (along with
the goodwill of the business to which any such Trademark pertains),
for such term or terms, on such conditions, and in such manner, as the
Agent shall in its sole discretion determine; and (H) generally, to
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as
though the Agent were the absolute owner thereof for all purposes, and
to do, at the Agent's option and the Grantor's expense, at any time,
or from time to time, all acts and things which the Agent deems
necessary to protect, preserve or realize upon the Collateral and the
Agent's and the Lenders' Liens thereon and to effect the intent of
this Agreement, all as fully and effectively as the Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Secured Obligations then due and owing,
the termination of the Commitments and the expiration, termination or return to
the Issuing Lender of the Letters of Credit.
(b) Other Powers. The Grantor also authorizes the Agent,
from time to time if an Event of Default shall have occurred and be continuing,
to execute, in connection with any sale provided for in Section 8 hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
(c) No Duty on the Part of Agent or Lenders. The powers
conferred on the Agent and the Lenders hereunder are solely to protect the
Agent's and the Lenders' interests in the Collateral and shall not impose any
duty upon the Agent or any Lender to exercise any such powers. The Agent and
the Lenders shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to the Grantor
for any act or failure to act hereunder, except for their own gross negligence
or willful misconduct.
6. Performance by Agent of Grantor's Obligations. If the
Grantor fails to perform or comply with any of its agreements contained herein
and the Agent, as provided for by the terms of this Agreement, shall itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the reasonable expenses of the Agent incurred in connection with
such performance or compliance, together with interest thereon at a rate per
annum 2% above the rate applicable to ABR Loans, shall
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be payable by the Grantor to the Agent on demand and shall constitute Secured
Obligations secured hereby.
7. Proceeds. It is agreed that if an Event of Default
shall occur and be continuing, (a) all Proceeds of any Collateral received
by the Grantor consisting of cash, checks and other near-cash items shall be
held by the Grantor in trust for the Agent and the Lenders, segregated from
other funds of the Grantor, and at the request of the Agent shall, forthwith
upon receipt by the Grantor, be turned over to the Agent in the exact form
received by the Grantor (duly indorsed by the Grantor to the Agent, if
required), and (b) any and all such Proceeds received by the Agent (whether
from the Grantor or otherwise) may, in the sole discretion of the Agent, be
held by the Agent for the ratable benefit of the Lenders as collateral security
for the Secured Obligations (whether matured or unmatured), and/or then or at
any time thereafter may be applied by the Agent against, the Secured
Obligations then due and owing. Any balance of such Proceeds remaining after
the payment in full of the Notes, the Reimbursement Obligations and the other
Secured Obligations then due and owing, the termination of the Commitments and
the expiration, termination or return to the Issuing Lender of the Letters of
Credit shall be paid over to the Grantor or to whomsoever may be lawfully
entitled to receive the same.
8. Remedies. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Lenders, may exercise all rights and
remedies of a secured party under the Code, and, to the extent permitted by
law, all other rights and remedies granted to them in this Agreement and in any
other instrument or agreement securing, evidencing or relating to the Secured
Obligations. Without limiting the generality of the foregoing, the Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances, to the extent permitted by law, forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do
any of the foregoing), in one or more parcels at public or private sale or
sales, at any exchange, broker's board or office of the Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Agent or any Lender shall have the
right, to the extent permitted by law, upon any such sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in the Grantor, which right or equity is hereby waived or
released. The Grantor further agrees, at the Agent's request, upon the
occurrence and during the continuance of an Event of Default, to assemble the
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Collateral and make it available to the Agent at places which the Agent shall
reasonably select, whether at the Grantor's premises or elsewhere. The Agent
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred therein or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements, to the payment in
whole or in part of the Secured Obligations then due and owing, and only after
such application and after the payment by the Agent of any other amount
required by any provision of law, including, without limitation, Section
9504(l)(c) of the Code, need the Agent account for the surplus, if any, to the
Grantor. To the extent permitted by applicable law, the Grantor waives all
claims, damages and demands it may acquire against the Agent or any Lender
arising out of the repossession, retention or sale of the Collateral, other
than any such claims, damages and demands that may arise from the gross
negligence or willful misconduct of any of them. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such
sale or other disposition. The Grantor shall remain liable for any deficiency
if the proceeds of any sale or other disposition of the Collateral are
insufficient to pay the then outstanding Secured Obligations, including the
reasonable fees and disbursements of any attorneys employed by the Agent or any
Lender to collect such deficiency.
9. Limitation on Duties Regarding Preservation of
Collateral. The Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall he to deal with it in the same manner as the
Agent deals with similar property for its own account. Neither the Agent, any
Lender, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon all or any part
of the Collateral or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Collateral upon the request of the Grantor
or any other Person.
10. Powers Coupled with an Interest. All authorizations
and agencies herein contained with respect to the Collateral are powers coupled
with an interest and are irrevocable until payment in full of the Notes, the
Reimbursement Obligations and the other Secured Obligations then due and owing,
the termination of the Commitments and the expiration, termination or return to
the Issuing Lender of the Letters of Credit.
11. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
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prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
12. Section Headings. The Section Headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
13. No Waiver; Cumulative Remedies. Neither the Agent nor
any Lender shall by any act (except by a written instrument pursuant to Section
14 hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Agent or such Lender would otherwise have
on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
14. Waivers and Amendments; Successors and Assigns. None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Grantor and the Agent, provided that, if requested by the Grantor, any
provision of this Agreement for the benefit of the Agent and/or the Lenders may
be waived by the Agent in a written letter or agreement executed by the Agent
or by telex or facsimile transmission from the Agent. This Agreement shall be
binding upon the successors and assigns of the Grantor and shall inure to the
benefit of the Agent and the Lenders and their respective successors and
assigns, except that the Grantor may not assign, transfer or delegate any of
its rights or obligations under this Agreement without the prior written
consent of the Agent.
15. Notices. All notices, requests and demands to or upon
the respective parties hereto shall be made in accordance with Section 16 of
the Subsidiaries' Security Agreement.
16. Authority of Agent. The Grantor acknowledges that the
rights and responsibilities of the Agent under this Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between the
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Agent and the Lenders, be governed by the Loan Documents and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and the Grantor, the Agent shall be conclusively presumed
to be acting as agent for the Lenders with full and valid authority so to act
or refrain from acting, and the Grantor shall not be under any obligation to
make any inquiry respecting such authority.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
18. Release of Collateral and Termination. (a) At such
time as the payment in full of the Notes, the Reimbursement Obligations and the
other Secured Obligations then due and owing shall have occurred, the
Commitments have been terminated and the Letters of Credit have expired,
terminated or been returned to the Issuing Lender, the Collateral shall be
released from the Liens created hereby, and this Agreement and all obligations
(other than those expressly stated to survive such termination) of the Agent
and the Grantor hereunder shall terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the Grantor. Upon request of the Grantor following
any such termination, the Agent shall deliver (at the sole cost and expense of
the Grantor) to the Grantor any Collateral held by the Agent hereunder, and
execute and deliver (at the sole cost and expense of the Grantor) to the
Grantor such documents as the Grantor shall reasonably request to evidence such
termination.
(b) If any of the Collateral shall be sold, transferred
or otherwise disposed of by the Grantor in a transaction permitted by the
Credit Agreement, then the Agent shall execute and deliver to the Grantor (at
the sole cost and expense of the Grantor) all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby
on such Collateral.
13
13
IN WITNESS WHEREOF, the Grantor has caused this Agreement to
be duly executed and delivered as of the date first above written.
A.P.S. MANAGEMENT SERVICES, INC.
By: /s/ E. XXXXXX XXXXXX
-------------------------------------
Title: Vice President
ACKNOWLEDGED AND AGREED AS OF
THE DATE HEREOF BY:
CHEMICAL BANK, as Agent
By: /s/ XXXXX X. XXXX
-------------------------------------
Title: Vice-President
14
Schedule 1
TRADEMARK AND TRADEMARK LICENSES
XXXX REGISTRATION NO. REGISTRATION DATE
---- ---------------- -----------------
Husky 559,898 June 10, 1952
Renewed June 10, 1972
Renewed June 10, 1992
A design 776,950 Sept. 15, 1964
American Parts Renewed Sept. 15, 1984
Valu-Test 864,239 Jan. 28, 1969
Renewed Jan. 28, 1989
Big A 1,140,510 Oct. 14, 1980
Carryall 1,041,720 June 22, 1976
Trail Blazer 1,042,721 June 22, 1976
General Service Line 1,088,954 April 4, 1978
Poweready 1,332,869 April 30, 0000
Xxxxxxxx X Xxx 1,541,510 May 30, 1989
Big A and Design 1,388,039 April 1, 1986
The First Letter In 1,374,295 Dec. 3, 1985
Auto Parts
Autopro 1,122,026 July 10, 1979
Autopro 1,069,546 July 12, 1977
(Professional Parts
People and design)
APS 1,342,411 June 11, 1985
Installers' Express 1,840,109 June 14, 1994
Autopro 1,869,237 Dec. 27, 1994
A design 1,014,372 June 24, 1975
Renewed June 24, 1995
15
2
XXXX APPLICATION NO. FILING DATE
---- --------------- -----------
Installers' Service 74/351,877 Jan. 25, 1993
Warehouse
Installers' Service 74/489,631 Feb. 14, 1994
Warehouse and design
Big A Stylized 74/591,656 Oct. 27, 1994
ISW-Undercar Parts 74/631,895 Feb. 9, 1995
Specialists and
design
Time Is The New 74/591,099 Oct. 27, 1994
Money
America's Parts Pros 74/591,655 Oct. 27, 1994
I S W 74/592,119 Oct. 28, 1994
Hero Team 75/004,182 Oct. 11, 1995
Freez-Test 882,122 Dec. 9, 1969
Renewed Dec. 9, 1989
Powerx 90 1,653,852 August 13, 1991
Big A Plus 1,709,036 August 18, 1992
CANADIAN REGISTERED:
Val-U-Test 170045
Husky 105716
