Exhibit 10.10
COPYRIGHT AND COPYRIGHT
APPLICATIONS SECURITY AGREEMENT BankBoston Retail Finance Inc.
October 29, 1997
This Copyright and Copyright Application Security Agreement (the
"Copyright Security Agreement") is made as of the 29th day of October by County
Seat Stores, Inc. a Minnesota corporation with its principal executive offices
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Obligor"), and BankBoston
Retail Finance Inc. (in such capacity, the "Agent"), a Delaware corporation
with its principal executive offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, as Agent for the Lenders under and as defined in that certain Loan and
Security Agreement, dated as of October 29, 1997 amongst the Obligor on the one
hand, and the Agent and the Lenders on the other, as such Loan and Security
Agreement is amended from time to time (hereafter, the "Loan Agreement").
RECITALS
WHEREAS, pursuant to the Loan Agreement the Agent and the Lenders from
time to time a party thereto have agreed to make certain loans and other
financial accommodations (hereinafter, the "Loans") available to the Obligor,
subject to, and in accordance with the provisions of, the Loan Agreement;
WHEREAS, under the Loan Agreement, the Obligor has created a security
interest in the Obligor's assets to secure the Liabilities (as defined in the
Loan Agreement and used herein as so defined);
WHEREAS, as a condition, among others, to the establishment of the
credit facility contemplated by the Loan Agreement, the Obligor has executed
this Copyright Security Agreement.
NOW THEREFORE, For good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Obligor and the Agent agree as
follows:
1. Terms used herein which are defined the Loan Agreement are used
as so defined.
2. To secure the Liabilities, the Obligor hereby grants to the Agent
for the ratable benefit of the Lenders, a continuing security interest in and
to, and assigns for security to the Agent for the ratable benefit of the Lenders
(with power of sale exercisable upon the occurrence of an Event of Default as
defined in the Loan Agreement), the following, and each item thereof, whether
now owned or in which the Obligor has an existing interest or hereafter acquired
or arising and all products, proceeds, substitutions, and accessions of or to
any of the following:
(a) All copyrights and copyright applications including, without
limitation, those listed on EXHIBIT A annexed hereto and made a part
hereof.
(b) All renewals of any of the foregoing.
(c) All income, royalties, damages and payments now and
hereafter due and/or payable under and with respect to any of the
foregoing, including, without limitation, payments under all licenses
entered into in connection therewith and damages and payments for past
or future infringements thereof.
(d) The right to xxx for past, present and future infringements
of any of the foregoing.
(e) All of Obligor's rights corresponding to any of the
foregoing throughout the world.
All of the foregoing copyrights and copyright applications described in
Subsection 2.(a), together with the items respectively described in Subsections
2.(b) through and including 2.(e) are hereinafter individually and/or
collectively referred to as the "Copyrights".
3. Until this Copyright Security Agreement is terminated in writing
by a duly authorized officer of the Agent, the Obligor shall undertake the
following with
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respect to each Copyright which is material to its business as then being
conducted:
(a) Pay all renewal fees and other fees and costs associated
with maintaining the Copyrights and with the processing of the
Copyrights.
(b) At the Obligor's sole cost, expense, and risk, pursue the
prompt, diligent, processing of each Application for Registration
which is the subject of the security interest created herein.
(c) At the Obligor's sole cost, expense, and risk, take any and
all action which Obligor deems desirable to protect the Copyrights,
including, without limitation, but subject to Obligor's discretion,
the prosecution and defense of infringement actions.
4. In the event of
(a) the Obligor's failure, within Five (5) days of written
notice from the Agent, to cure any failure by the Obligor to perform
any of the Obligor's obligations set forth in Section 3, above; and/or
(b) the occurrence and continuance of any Event of Default
beyond applicable grace periods as provided for in the Loan Agreement,
the Agent acting in its own name or in that of the Obligor may (but
shall not be required to) act in the Obligor's place and stead and/or
in the Agents' own right in connection therewith.
5. The Obligor represents and warrants that:
(a) EXHIBIT A includes all of the registered United States
copyrights and copyright applications now owned by the Obligor.
(b) No liens, claims or security interests which are still in
effect have been granted in any Copyright by the Obligor to any Person
other than to the Agent.
6. In order to further secure the Liabilities:
(a) The Obligor shall give the Agent written notice (with
reasonable detail) within Ten (10) days following the occurrence of
any of the following:
(i) The Obligor obtains rights to, and files applications
for registration of, any new copyrights, or otherwise acquires
ownership of any newly registered copyrights or copyright
applications.
(ii) The Obligor becomes entitled to the benefit of any
registered copyrights, copyright applications, copyright
licenses, copyright license renewals as licensee.
(b) The provisions of this Copyright Security Agreement shall
automatically apply to any such additional property or rights
described in 6.(a), above, all of which shall be deemed to be and
treated as "Copyrights" within the meaning of this Copyright Security
Agreement.
(c) The Obligor hereby authorizes the Agent to modify this
agreement by amending EXHIBIT A to include any future registered
copyrights, copyright applications, written notice of which is so
given, provided, however, the modification of said EXHIBIT shall not
be a condition to the creation or perfection of the security interest
created hereby.
7. Upon the occurrence of any Event of Default, and only if such
default shall be continuing beyond applicable grace periods as provided for in
the Loan Agreement, the Agent may exercise all rights and remedies of a secured
party upon default under the Uniform Commercial Code as adopted in Massachusetts
(Massachusetts General Laws, Chapter 106), with respect to the Copyrights, in
addition to which the Agent, subject to the terms of the Loan Agreement, may
sell, license, assign, transfer, or otherwise dispose of the Copyrights. Any
person may conclusively rely upon an affidavit of an officer of the Agent that
an Event of Default has occurred and that the Agent is authorized to exercise
such rights and remedies.
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8. The Obligor hereby irrevocably constitutes and designates the
Agent as and for the Obligor's attorney in fact, effective with and upon the
Agent's first exercise (the "First Exercise") of such powers following the
occurrence of any Event of Default continuing beyond applicable grace periods as
provided for in the Loan Agreement:
(a) To exercise any of the rights and powers referenced in
Section 7.
(b) To execute all and singular such instruments, documents, and
papers as the Agent determines to be appropriate in connection with
the exercise of such rights and powers and to cause the sale, license,
assignment, transfer, or other disposition of the Copyrights.
The within grant of a power of attorney, being coupled with an interest, shall
be irrevocable until the within Copyright Security Agreement is terminated by a
duly authorized officer of the Agent, but shall be exercisable only following
the occurrence of an Event of Default.
9. Any use by the Agent of the Copyrights as authorized hereunder in
connection with the exercise of the Agents' rights and remedies under the within
Copyright Security Agreement and the Loan Agreement shall be coextensive with
Obligor's rights thereunder and with respect thereto and without any liability
for royalties or other related charges from the Agent to the Obligor. Such use
by the Agent shall be permitted only with and upon the First Exercise following
the occurrence of an Event of Default continuing beyond applicable grace periods
as provided for in the Loan Agreement.
10. Agent hereby acknowledges that the Obligor shall continue to have
the exclusive right, prior to notice from the Agent following the occurrence of
an Event of Default continuing beyond applicable grace periods as provided for
in the Loan Agreement, to xxx for past, present and future infringement of the
Copyrights including the right to seek injunctions and/or money damages, in an
effort by Obligor to protect the Copyrights against encroachment by third
parties; provided, however, that Obligor must promptly notify Agent in writing
of its filing of a lawsuit for enforcement of the Copyrights against a
particular party. All costs arising in connection with any infringement shall be
borne by Obligor.
11. Following the payment and satisfaction of all Liabilities, and
the termination of any obligation of the Agent to provide loans or financial
accommodations under the credit facility contemplated by the Loan Agreement,
this Copyright Security Agreement shall terminate and the Agent shall execute
and deliver to Obligor all such instruments as the Obligor reasonably may
request to release any Encumbrance in favor of the Agent created hereby or
pursuant hereto, subject, however, to any disposition thereof which may have
been made by Agent pursuant hereto or pursuant to the Loan Agreement. The Agent
will also execute and deliver to the Obligor such releases as Obligor shall
reasonably request in connection with any disposition permitted hereunder or
under the Loan Agreement of any Xxxx or other collateral pledged hereunder.
12. Neither anything contained in the within Copyright Security
Agreement or in the Loan Agreement nor any act, omission, or circumstance may
be construed as directly or indirectly conveying to the Agent any rights in and
to the Copyrights (except the grant of security pursuant to Section 2 hereof,
and Section 8.1 of the Loan Agreement) which rights are effective except
following the occurrence and continuance of any Event of Default beyond
applicable grace periods as provided for in the Loan Agreement (and in such
circumstances, only with and upon the First Exercise).
13. This Copyright Security Agreement is intended to be supplemental
of the Loan Agreement. All provisions of the Loan Agreement shall apply to the
Copyrights and the Agent shall have the same rights with respect to any and all
security interests in the Copyrights granted the Agent to secure the Liabilities
hereunder as thereunder. Notwithstanding the foregoing in the event of a
conflict between this Copyright Security Agreement and the Loan Agreement, the
terms of this Copyright Security Agreement shall control with respect to the
Copyrights and the Loan Agreement with respect to all other collateral.
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14. This Agreement and all rights and oblgations hereunder, including
matters of construction, validity, and performance, shall be governed by the
laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Obligor and the Agent respectively have caused
this Loan Agreement to be executed by officers duly authorized so to do on the
date first above written.
COUNTY SEAT STORES, INC. BANKBOSTON RETAIL FINANCE INC.
(The "Obligor") (The "Agent")
By By
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Title: Title:
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............................
County of .........., ss
Then personally appeared before me ...................... who
acknowledged that such person is the duly authorized ................... of
County Seat Stores, Inc. and that such person had executed the foregoing
instrument on its behalf.
Witness my hand and seal this ..... day of .................
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, Notary Public
My Commission Expires:
The ........ of .................
County of .............
Then personally appeared before me ...................., who
acknowledged that such person is the duly authorized .........................
of BankBoston Retail Finance Inc.; and that such person executed the foregoing
instrument on its behalf.
Witness my hand and seal this ...day of .................
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, Notary Public
My Commission Expires:
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EXHIBIT A
Obligor's now owned or existing or hereafter acquired or arising registered
copyrights and Federal copyright applications:
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