EXHIBIT 10.16.1
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, made as of August 21, 1997 ("AGREEMENT"), by and
between GENERAL ELECTRIC CAPITAL CORPORATION, a NEW YORK corporation with an
address at 0000 XXXXXXXXX XXXX X.X. XXXXX 000, XXXXXXX, XX ("SECURED PARTY"),
and JUST FOR FEET, INC., a CORPORATION organized and existing under the laws of
the State of ALABAMA with its chief executive offices located at 000 XXXXXX
XXXXXX XXXXXXX XXXXX, XXXXXXXXXX, XXXXXXX ("DEBTOR").
In consideration of the promises herein contained and of certain other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor and Secured Party hereby agree as follows:
1. CREATION OF SECURITY INTEREST: Debtor hereby gives, grants and assigns to
Secured Party, its successors and assigns forever, a security interest in and
against any and all property listed on the collateral schedule annexed hereto or
made a part hereof ("COLLATERAL SCHEDULE"), and in and against any and all
additions, attachments, accessories and accessions thereto, any and all
substitutions, replacements or exchanges therefor, and any and all insurance
and/or other proceeds thereof (all of the foregoing being hereinafter
individually and collectively referred to as the "COLLATERAL"). The foregoing
security interest is given to secure the payment and performance of any and all
debts, obligations and liabilities of any kind, nature or description whatsoever
(whether due or to become due) of Debtor to Secured Party under that certain
Promissory Note identified on the Collateral Schedule ("NOTE"), this Agreement,
and/or any related documents (the Note, this Agreement and all such related
documents being hereinafter collectively referred to as the "DEBT DOCUMENTS"),
and any renewals, extensions and modifications of such debts, obligations and
liabilities (all of the foregoing being hereinafter referred to as the
"INDEBTEDNESS").
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR: Debtor hereby
represents, warrants and covenants that: (a) Debtor is, and will remain, duly
organized, existing and in good standing under the laws of the State set forth
in the first paragraph of this Agreement, has its chief executive offices at the
location set forth in such paragraph, and is, and will remain, duly qualified
and licensed in every jurisdiction wherever necessary to carry on its business
and operations; (b) Debtor has adequate power and capacity to enter into, and
to perform its obligations, under each of the Debt Documents; (c) the Debt
Documents have been duly authorized, executed and delivered by Debtor and
constitute legal, valid and binding agreements enforceable under all applicable
laws in accordance with their terms, except to the extent that the enforcement
of remedies may be limited under applicable bankruptcy and insolvency laws; (d)
no approval, consent or withholding of objections is required from any
governmental authority or instrumentality with respect to the entry into, or
performance by, Debtor of any of the Debt Documents, except such as may have
already been obtained; (e) the entry into, and performance by, Debtor of the
Debt Documents will not (i) violate any of the organizational documents of
Debtor or any judgment, order, law or regulation applicable to Debtor, or (ii)
result in any breach of, constitute a default under, or result in the creation
of any lien, claim or encumbrance on any of Debtor's property (except for liens
in favor of Secured Party) pursuant to, any indenture mortgage, deed of trust,
bank loan, credit agreement, or other agreement or instrument to which Debtor is
a party; (f) there are no suits or proceedings pending or threatened in court
or before any commission, board or other administrative agency against or
affecting Debtor which could, in the aggregate, have a material adverse effect
on Debtor, its business or operations, or its ability to perform its obligations
under the Debt Documents; (g) all financial statements delivered to Secured
Party in connection with the Indebtedness have been prepared in accordance with
generally accepted accounting principles, and since the date of the most recent
financial statement, there has been no material adverse change; (h) the
Collateral is not, and will not be, used by Debtor for personal, family or
household purposes; (i) the Collateral is, and will remain, in good condition
and repair and Debtor will not be negligent in the care and use thereof; (j)
Debtor is, and will remain, the sole and lawful owner, and in possession of, the
Collateral, and has the sole right and lawful authority to grant the security
interest described in this Agreement; and (k) the Collateral is, and will
remain, free and clear of all liens, claims and encumbrances of every kind,
nature and description (except for liens in favor of Secured Party).
3. COLLATERAL: (a) Until the declaration of any default hereunder, Debtor
shall remain in possession of the Collateral; provided, however, that Secured
Party shall have the right to possess (i) any chattel paper or instrument that
constitutes a part of the Collateral, and (ii) any other Collateral which
because of its nature may require that Secured Party's security interest therein
be perfected by possession. Secured Party, its successors and assigns, and
their respective agents, shall, upon reasonable notice to Debtor, have the right
to examine and inspect any of the Collateral at any time during normal business
hours. Upon any request from Secured Party, Debtor shall provide Secured Party
with notice of the then current location of the Collateral. (b) Debtor shall
(i) use the Collateral only in its trade or business, (ii) maintain all of the
Collateral in good condition and working order, (iii) use and maintain the
Collateral only in compliance with all applicable laws, and (iv) keep all of
the Collateral free and clear of all liens, claims and encumbrances (except for
liens in favor of Secured Party). (c) Debtor shall not, without the prior
written consent of Secured Party, (i) part with possession of any of the
Collateral (except to Secured Party or for maintenance and repair), (ii) remove
any of the Collateral from the continental United States, or (iii) sell, rent,
lease, mortgage, grant a security interest in or otherwise transfer or encumber
(except for liens in favor of Secured Party) any of the Collateral. (d) Debtor
shall pay promptly when due all taxes, license fees, assessments and public and
private charges levied or assessed on any of the Collateral, on the use thereof,
or on this Agreement or any of the other Debt Documents. At its option, Secured
Party may discharge taxes, liens, security interests or other encumbrances at
any time levied or placed on the Collateral and may pay for the maintenance,
insurance and preservation of the Collateral or to effect compliance with the
terms of this Agreement or any of the other Debt Documents. Debtor shall
reimburse Secured Party, on demand, for any and all costs and expenses incurred
by Secured Party in connection therewith and agrees that such reimbursement
obligation shall be secured hereby. (e) Debtor shall, at all times, keep
accurate and complete records of the Collateral, and Secured Party, its
successors and assigns, and their respective agents, shall have the right to
examine, inspect, and make extracts from all of Debtor's books and records
relating to the Collateral at any time during normal business hours. (f) Any
third person at any time and from time to time holding all or any portion of the
Collateral shall be deemed to, and shall, hold the Collateral as the agent of,
and as pledge holder for, Secured Party. At any time and from time to time,
Secured Party may give notice to any third person holding all or any portion of
the Collateral that such third person is holding the Collateral as the agent of,
and as pledge holder for, the Secured Party.
4. INSURANCE: The Collateral shall at all times be held at Debtor's risk, and
Debtor shall keep it insured against loss or damage by fire and extended
coverage perils, theft, burglary, and for any or all Collateral which are
vehicles, for risk of loss by collision, and where requested by Secured Party,
against other risks as required thereby, for the full replacement value thereof,
with companies, in amounts and under policies acceptable to Secured Party.
Debtor shall, if Secured Party so requires, deliver to Secured Party policies or
certificates of insurance evidencing such coverage. Each policy shall name
Secured Party as loss payee thereunder, shall provide for coverage to Secured
Party regardless of the breach by Debtor of any warranty or representation made
therein, shall not be subject to co-insurance, and shall provide for thirty (30)
days written notice to Secured Party of the cancellation or material
modification thereof. Debtor hereby appoints Secured Party as its attorney in
fact to make proof of loss, claim for insurance and adjustments with insurers,
and to execute or endorse all documents, checks or drafts in connection with
payments made as a result of any such insurance policies. Proceeds of insurance
shall be applied, at the option of Secured Party, to repair or replace the
Collateral or to reduce any of the Indebtedness secured hereby.
5. REPORTS: (a) Debtor shall promptly notify Secured Party in the event of
(i) any change in the name of Debtor, (ii) any relocation of its chief
executive offices, (iii) any relocation of any of the Collateral, (iv) any of
the Collateral being lost, stolen, missing, destroyed, materially damaged or
worn out, or (v) any lien, claim or encumbrance attaching or being made against
any of the Collateral (other than liens in favor of Secured Party). (b) Should,
for any reason, the Debtor cease to file reports pursuant to section 13 or 15(d)
of the Securities and Exchange Act of 1934 as a publicly traded company, Debtor
agrees to furnish its annual financial statements and such interim statements as
Secured Party may require in form satisfactory to Secured Party. Any and all
financial statements submitted and to be submitted to Secured Party have and
will have been prepared on a basis of generally accepted accounting principles,
and are and will be complete and correct and fairly present Debtor's financial
condition as at the date thereof.
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6. FURTHER ASSURANCES: (a) Debtor shall, upon request of Secured Party,
furnish to Secured Party such further information, execute and deliver to
Secured Party such documents and instruments (including, without limitation,
Uniform Commercial Code financing statements) and do such other acts and things,
as Secured Party may at any time reasonably request relating to the perfection
or protection of the security interest created by this Agreement or for the
purpose of carrying out the intent of this Agreement. Without limiting the
foregoing, Debtor shall cooperate and do all acts deemed necessary or advisable
by Secured Party to continue in Secured Party a perfected first security
interest in the Collateral, and shall obtain and furnish to Secured Party any
subordinations, releases, landlord, lessor, or mortgagee waivers, and similar
documents as may be from time to time requested by, and which are in form and
substance satisfactory to, Secured Party. (b) Debtor shall, upon reasonable
request of Secured Party, execute and file applications for title, transfers of
title, financing statements, notices of lien and other documents pertaining to
any or all of the Collateral. Debtor shall, if any certificate of title be
required or permitted by law for any of the Collateral, obtain such certificate
showing the lien hereof with respect to the Collateral and promptly deliver same
to Secured Party. (c) Debtor shall indemnify and defend the Secured Party, its
successors and assigns, and their respective directors, officers and employees,
from and against any and all claims, actions and suits (including, without
limitation, related attorneys' fees) of any kind, nature or description
whatsoever arising, directly or indirectly, in connection with any of the
Collateral.
7. EVENTS OF DEFAULT: Debtor shall be in default under this Agreement and
each of the other Debt Documents upon the occurrence of any of the following
"EVENT(S) OF DEFAULT": (a) Debtor fails to pay any installment or other amount
due or coming due under any of the Debt Documents within ten (10) days after
written notice thereof; (b) any attempt by Debtor, without the prior written
consent of Secured Party, to sell, rent, lease, mortgage, grant a security
interest in, or otherwise transfer or encumber (except for liens in favor of
Secured Party) any of the Collateral; (c) Debtor fails to procure, or maintain
in effect at all times, any of the insurance on the Collateral in accordance
with Section 4 of this Agreement; (d) Debtor breaches any of its other
obligations under any of the Debt Documents and fails to cure the same within
thirty (30) days after written notice thereof; (e) any warranty, representation
or statement made by Debtor in any of the Debt Documents or otherwise in
connection with any of the Indebtedness shall be false or misleading in any
material respect; (f) any of the Collateral being subjected to attachment,
execution, levy, seizure or confiscation in any legal proceeding or otherwise;
(g) any default by Debtor under any other agreement between Debtor and Secured
Party; (h) any dissolution, termination of existence, insolvency, or business
failure of Debtor, or any merger, consolidation or change in controlling
ownership which causes a material adverse change in Debtor's financial
condition; (i) the appointment of a receiver for all or of any part of the
property of Debtor or any Guarantor, or any assignment for the benefit of
creditors by Debtor or any Guarantor; (j) the filing of a petition by Debtor or
any Guarantor under any bankruptcy, insolvency or similar law, or the filing of
any such petition against Debtor or any Guarantor if the same is not dismissed
within thirty (30) days of such filing, or if the Debtor is not actively
defending against such petition, or (k) Debtor fails to maintain (i) a net worth
of $75 million, (ii) a cash flow to debt service ratio of 1.5 to 1, or (iii)
either, a $10 million cash balance, a $10 million availability under their bank
facility, or a $10 million combination thereof. As used herein, "net worth"
shall mean the total shareholders equity reported on any financial statements
provided or obtained pursuant to section 13 or 15(d) of the Securities and
Exchange Act of 1934 or Section 5 herein; "cash flow" shall mean the sum of net
income plus depreciation reported on any financial statements provided or
obtained pursuant to section 13 or 15(d) of the Securities and Exchange Act of
1934 or Section 5 herein; and "bank facility" shall mean that Revolving Credit
and Security Agreement dated ___________, 19__ between the Debtor and Compass
Bank.
8. REMEDIES ON DEFAULT: (a) Upon the occurrence of an Event of Default under
this Agreement, the Secured Party, at its option, may declare any or all of the
Indebtedness (including, without limitation, the Note) to be immediately due and
payable, without demand or notice to Debtor or any Guarantor. The obligations
and liabilities accelerated thereby shall bear interest (both before and after
any judgment) until paid in full at the lower of eighteen percent (18%) per
annum or the maximum rate not prohibited by applicable law. (b) Upon such
declaration of default, Secured Party shall have all of the rights and remedies
of a Secured Party under the Uniform Commercial Code, and under any other
applicable law. Without limiting the foregoing, Secured Party shall have
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the right to (i) notify any account debtor of Debtor or any obligor on any
instrument which constitutes part of the Collateral to make payment to the
Secured Party, (ii) with or without legal process, enter any premises where the
Collateral may be and take possession and/or remove said Collateral from said
premises, (iii) sell the Collateral at public or private sale, in whole or in
part, and have the right to bid and purchase at said sale, and/or (iv) lease or
otherwise dispose of all or part of the Collateral, applying proceeds therefrom
to the obligations then in default. If requested by Secured Party, Debtor shall
promptly assemble the Collateral and make it available to Secured Party at a
place to be designated by Secured Party which is reasonably convenient to both
parties. Secured Party may also render any or all of the Collateral unusable at
the Debtor's premises and may dispose of such Collateral on such premises
without liability for rent or costs. Any notice which Secured Party is required
to give to Debtor under the Uniform Commercial Code of the time and place of any
public sale or the time after which any private sale or other intended
disposition of the Collateral is to be made shall be deemed to constitute
reasonable notice if such notice is given to the last known address of Debtor at
least five (5) days prior to such action. (c) Proceeds from any sale or lease or
other disposition shall be applied: first, to all costs of repossession,
storage, and disposition including without limitation attorneys', appraisers',
and auctioneers' fees; second, to discharge the obligations then in default;
third, to discharge any other Indebtedness of Debtor to Secured Party, whether
as obligor, endorsor, guarantor, surety or indemnitor; fourth, to expenses
incurred in paying or settling liens and claims against the Collateral; and
lastly, to Debtor, if there exists any surplus. Debtor shall remain fully liable
for any deficiency. (d) In the event that any of the Debt Documents are placed
in the hands of an attorney for collection of money due or to become due or to
obtain performance of any provision hereof, Debtor agrees to pay all reasonable
attorneys' fees incurred by Secured Party, and further agrees that payment of
such fees is secured hereunder. (e) Secured Party's rights and remedies
hereunder or otherwise arising are cumulative and may be exercised singularly or
concurrently. Neither the failure nor any delay on the part of the Secured Party
to exercise any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. Secured Party shall not be deemed to have
waived any of its rights hereunder or under any other agreement, instrument or
paper signed by Debtor unless such waiver be in writing and signed by Secured
Party. A waiver on any one occasion shall not be construed as a bar to or waiver
of any right or remedy on any future occasion. (f) DEBTOR HEREBY UNCONDITIONALLY
WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY OF THE OTHER DEBT
DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED HEREBY, ANY DEALINGS BETWEEN DEBTOR
AND SECURED PARTY RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY
RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
DEBTOR AND SECURED PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING,
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
9. MISCELLANEOUS: (a) This Agreement, the Note and/or any of the other Debt
Documents may be assigned, in whole or in part, by Secured Party without notice
to Debtor, and Debtor hereby waives any defense, counterclaim or cross-complaint
by Debtor against any assignee, agreeing that Secured Party shall be solely
responsible therefor. (b) All notices to be given in connection with this
Agreement shall be in writing, shall be addressed to the parties at their
respective addresses set forth hereinabove (unless and until a different address
may be specified in a written notice to the other party), and shall be deemed
given (i) on the date of receipt if delivered in hand or by facsimile
transmission, (ii) on the next business day after being sent by express mail,
and (iii) on the fourth business day after being sent by regular, registered or
certified mail. As used herein, the term "business
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day" shall mean and include any day other than Saturdays, Sundays, or other days
on which commercial banks in New York, New York are required or authorized to be
closed. (c) Secured Party may correct patent errors herein and fill in all
blanks herein or in the Collateral Schedule consistent with the agreement of the
parties. (d) Time is of the essence hereof. This Agreement shall be binding,
jointly and severally, upon all parties described as the "Debtor" and their
respective heirs, executors, representatives, successors and assigns, and shall
inure to the benefit of Secured Party, its successors and assigns. (e) This
Agreement and its Collateral Schedule constitute the entire agreement between
the parties with respect to the subject matter hereof and supersede all prior
understandings (whether written, verbal or implied) with respect thereto. This
Agreement and its Collateral Schedule shall not be changed or terminated orally
or by course of conduct, but only by a writing signed by both parties hereto.
Section headings contained in this Agreement have been included for convenience
only, and shall not affect the construction or interpretation hereof. (f) This
Agreement shall continue in full force and effect until all of the Indebtedness
has been indefeasibly paid in full to Secured Party. This Agreement shall
automatically be reinstated in the event that Secured Party is ever required to
return or restore the payment of all or any portion of the Indebtedness (all as
though such payment had never been made).
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally bound
hereby, have duly executed this Agreement in one or more counterparts, each of
which shall be deemed to be an original, as of the day and year first aforesaid.
SECURED PARTY: DEBTOR:
GENERAL ELECTRIC CAPITAL CORPORATION JUST FOR FEET, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx Xxxx
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Title: Region Credit Analyst Title: Executive Vice President
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