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SECURITY AGREEMENT AND MORTGAGE - TRADEMARKS
Agreement made as of this ___ day of May, 1998, between THE CALDOR
CORPORATION, a Delaware corporation having a principal business address at 00
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx, 00000 (the "Company"), and BANKBOSTON
RETAIL FINANCE, INC. as collateral agent (in such capacity, the "Collateral
Agent") and as managing agent for BankBoston, N.A., individually and as
Administrative Agent and Issuing Bank (each as defined in the Credit Agreement
referred to below) and the other financial institutions (collectively, the
"Lenders") party to the Credit Agreement.
RECITALS
A. The Company has adopted and is the owner of the trademarks and
service marks described in Schedule A annexed hereto and made a part hereof;
B. As a condition to the Lenders making the loans or advances to the
Company pursuant to the Revolving Credit and Guaranty Agreement dated as of the
date hereof (as amended, supplemented or restated from time to time, the "Credit
Agreement") among the Company and the Lenders, among others, the Lenders have
required the execution and delivery hereof by the Company;
NOW, THEREFORE, IT IS AGREED that, for and in consideration of the
loans and advances to be made under the Credit Agreement and other good and
valuable consideration, the receipt of which is hereby acknowledged, and as
collateral security for the full and prompt payment and performance of all
Obligations (as defined below), the Company does hereby mortgage and pledge to
the Collateral Agent, for its benefit and the benefit of the other Agents, the
Issuing Bank and the Lenders, and grant the Collateral Agent, for its benefit
and the benefit of the other Agents, the Issuing Bank and the Lenders, a
security interest in, all of its right, title and interest in and to each of the
Trademarks (as defined below) described in Schedule A (collectively, the
"Collateral").
1. Definitions: Terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings set forth in the Credit Agreement. As
used in this Agreement, unless the context otherwise requires "Trademarks" shall
mean (i) all trademarks, trade names, trade styles, service marks, prints and
labels on which said trademarks, trade names, trade styles and service marks
have appeared or appear, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all right, title and interest therein
and thereto, and all registration 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, all whether now owned or hereafter acquired by the Company, including,
but not limited to, those described in Schedule A annexed hereto and made a part
hereof, and (ii) all reissues, extensions or renewals thereof and all licenses
thereof.
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2. Representations and Covenants: The Company hereby represents,
warrants, covenants and agrees as follows:
(a) The Company has the sole, full and clear title to the Trademarks in
the United States for the goods and services covered by the registration thereof
and such registrations are valid and subsisting and in full force and effect,
except as could not reasonably be expected to have a material adverse effect on
the value of the Collateral, taken as a whole, or on the financial condition,
operations, business, properties or assets of the Borrower and the Guarantors,
taken as a whole.
(b) The Company will perform all acts and execute all documents,
including, without limitation, assignments for security in form suitable for
filing with the United States Patent and Trademark Office, requested by the
Collateral Agent at any time to evidence, perfect, maintain, record and enforce
the Lenders' interest in the Collateral or otherwise in furtherance of the
provisions of this Agreement, and the Company hereby authorizes the Collateral
Agent to execute and file one or more financing statements (and similar
documents) or copies thereof or of this Agreement with respect to the Collateral
signed only by the Collateral Agent.
(c) The Company has the right and power to make the assignment and to
grant the security interest herein granted; and the Collateral is not now, and
at all times hereafter will not be, subject to any liens, mortgages, the
assignments, security interests or encumbrances of any nature whatsoever, except
in favor of the Collateral Agent, and to the best knowledge of the Company none
of the Collateral is subject to any claim.
(d) Except to the extent that the Collateral Agent, upon prior written
notice from the Company, shall consent in writing, the Company will not assign,
sell, mortgage, lease, transfer, pledge, hypothecate, grant a security interest
in or lien upon, grant an exclusive or non-exclusive license, or otherwise
dispose of any of the Collateral, and nothing in this Agreement shall be deemed
a consent by the Collateral Agent to any such action except as expressly
permitted herein.
3. Events of Default and Remedies: Upon the occurrence and during the
continuance of an Event of Default (as defined in the Credit Agreement), the
Collateral Agent and the Lenders shall have the rights set forth in the Credit
Agreement and the Security Agreement, also dated as of the date hereof, with
respect to all collateral pledged by the Company (the "General Security
Agreement").
4. Miscellaneous:
(a) No provision hereof shall be modified, altered or limited
except by a written instrument expressly referring to this Agreement and
executed by the party to be charged.
(b) In the event that any provision hereof shall be deemed to
be invalid by any Court, such invalidity shall not affect the remainder of this
Agreement.
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(c) Any failure or delay by the Collateral Agent or the
Lenders to require strict performance by the Company of any of the provisions,
warranties, terms, and conditions contained herein or in any other agreement,
document, or instrument, shall not affect the Collateral Agent's or the Lenders'
right to demand strict compliance and performance therewith, and any waiver of
any default shall not waive or affect any other default, whether prior or
subsequent thereto, and whether of the same or of a different type. None of the
warranties, conditions, provisions, and terms contained herein or in any other
agreement, document, or instrument shall be deemed to have been waived by any
act or knowledge of Agents, the Issuing Bank, the Lenders, or any of their
respective agents, officers, or employees, but only by an instrument in writing,
signed by an officer of the Collateral Agent and directed to the Company,
specifying such waiver.
(d) In the event of any conflict between the terms of this
Agreement and the terms of either the Credit Agreement or the General Security
Agreement, the terms of the Credit Agreement or the General Security Agreement,
as the case may be, shall govern.
(e) This Agreement shall be governed by and construed 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 or
perfection of the security interest hereunder, or remedies hereunder, in respect
of any particular Collateral are governed by the laws of a jurisdiction other
than the State of New York and by Federal law (including, without limitation,
the Bankruptcy Code) to the extent the same has preempted the law of the State
of New York or such other jurisdiction.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Collateral Agent have caused
this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
THE CALDOR CORPORATION
BY:
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TITLE:
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BANKBOSTON RETAIL FINANCE, INC.,
as Collateral Agent
BY:
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TITLE:
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