WEBSITE SECURITY AGREEMENT AND POWER OF ATTORNEY
Exhibit
10.24
This
WEBSITE SECURITY AGREEMENT AND POWER OF ATTORNEY (this “Agreement”)
is
dated as of June 20, 2008, among SPORT CHALET, INC., a Delaware corporation
(“Grantor”),
and
BANK OF AMERICA, N.A., a national banking association, as administrative agent
for the Lenders (“Agent”)
in
connection with the Loan Agreement described below.
R
E C I T
A L S:
WHEREAS,
Grantor is indebted to Agent and Secured Parties pursuant to that certain Loan
and Security Agreement dated as of even date herewith (as amended, restated,
or
otherwise modified from time to time, the “Loan
Agreement”);
and
WHEREAS,
the parties wish to provide for the terms and conditions upon which the
Obligations shall be secured by the Website Collateral (as defined below);
and
WHEREAS,
this Agreement is made to secure the Secured Obligations (defined below) and
in
consideration of advances, credit or other financial accommodations now or
hereafter being afforded to Grantor by Agent and Secured Parties;
NOW,
THEREFORE, for valuable consideration hereby acknowledged, the parties agree
as
follows:
DEFINITIONS;
RULES OF CONSTRUCTION
1.1. Definitions.
Initially capitalized terms used but not defined herein have the respective
meanings set forth in the Loan Agreement. As used herein, the following terms
have the meanings set forth below:
Secured
Obligations:
all
“Obligations” (as defined in the Loan Agreement).
Websites:
(a) all
internet domain names, domain name registrations, NIC handles, IP addresses,
domains, and any contract rights pertaining to any of the foregoing; and (b)
all
registrations, continuations, and extensions thereof.
1.2. Certain
Matters of Construction.
The
terms “herein”, “hereof”, “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular section, paragraph or
subdivision. Any pronoun used shall be deemed to cover all genders. The terms
“including” and “include” shall mean “including, without limitation” and, for
purposes of each Loan Document, the parties agree that the rule of ejusdem
generis
shall
not be applicable to limit any provision. Section titles appear as a matter
of
convenience only and shall not affect the interpretation hereof. All references
to (a) laws or statutes include all related rules, regulations, interpretations,
amendments and successor provisions; (b) any document, instrument or agreement
include any amendments, waivers and other modifications, extensions or renewals
(to the extent permitted hereby); (c) any section mean, unless the context
otherwise requires, a section of this Agreement; (d) any exhibits or schedules
mean, unless the context otherwise requires, exhibits and schedules attached
hereto, which are hereby incorporated by reference; (e) any Person include
successors and assigns; or (f) unless otherwise specified herein, discretion
of
Agent means the sole and absolute discretion of Agent. Grantor shall have the
burden of establishing any alleged negligence, misconduct or lack of good faith
by Agent or any other Secured Party hereunder. No provision hereof shall be
construed against any party by reason of such party having, or being deemed
to
have, drafted the provision.
1
SECTION
2. WEBSITE
COLLATERAL
2.1. Grant
of Security Interest in Website Collateral.
Grantor
hereby grants to Agent, for the benefit of Secured Parties, a continuing first
priority security interest in all of Grantor’s right, title and interest in, to
and under the following, whether presently existing or hereafter created or
acquired (collectively, the “Website
Collateral”):
all
of
its Websites including those referred to on Schedule
I
hereto;
and
all
products and proceeds of the foregoing, including any claim by Grantor against
third parties for past, present or future (i) infringement or dilution of any
Website or (ii) injury to the goodwill associated with any
Website.
2.2. Loan
and Security Agreement.
The
security interests granted pursuant to this Agreement are granted in conjunction
with the security interests granted to Agent, for the benefit of Secured
Parties, pursuant to the Loan Agreement and any security agreement delivered
in
connection therewith. Grantor hereby acknowledges and affirms that the rights,
remedies and obligations of Agent with respect to the security interest in
the
Website Collateral made and granted hereby are more fully set forth in the
Loan
Agreement and any security agreement delivered in connection therewith, the
terms and provisions of which are incorporated by reference herein as if fully
set forth herein.
2.3. Authorization
to Supplement.
If
Grantor has or obtains rights to any Websites not listed on Schedule
I,
the
provisions of this Agreement shall automatically apply thereto. Grantor shall
give prompt notice in writing to Agent with respect to any such additional
Websites. Without limiting Grantor’s obligations under this Section
2.3,
Grantor
hereby authorizes Agent unilaterally to modify this Agreement by amending
Schedule
I
to
include any such additional Websites. Notwithstanding the foregoing, no failure
to so modify this Agreement or amend Schedule
I
shall in
any way affect, invalidate or detract from Agent’s continuing security interest
in all Website Collateral, whether or not listed on Schedule
I.
SECTION
3. POWER
OF
ATTORNEY
3.1. Grant
of Power of Attorney.
Subject
to Section
3.3
below,
Grantor hereby appoints and constitutes Agent its true and lawful attorney,
with
full power of substitution, and with full power and authority to perform the
following acts on behalf of Grantor:
assigning,
selling, licensing or otherwise disposing of all right, title and interest
of
Grantor in and to any of the Websites,
registering
and filing of, or accomplishing any other formality with respect to, the
Websites;
evidencing
and perfecting Agent’s security interest in the Websites and recording,
registering and filing of, or accomplishing any other formality with respect
to,
the foregoing; and
executing
any and all documents, statements, certificates or other papers and taking
any
and all other action necessary or advisable in order to obtain the purposes
described above as Agent may determine in its discretion.
2
3.2. Irrevocability.
This
power of attorney is made pursuant to the Loan Agreement and is subject to
the
conditions thereof and may not be revoked by Grantor until the Full Payment
of
all Obligations.
3.3. Exercise
of Power of Attorney.
Agent
may exercise the power of attorney granted herein upon the occurrence and during
the continuation of a “Default” or “Event of Default” under and as defined in
the Loan Agreement. Grantor acknowledges and agrees that a written statement
from Agent that a “Default” or “Event of Default” exists shall be conclusive
proof thereof as to third parties, including Network Solutions, LLC, relying
on
this power of attorney. Grantor hereby releases Network Solutions, LLC and
any
other third party relying on this power of attorney from any and all liability
as a result of its acting upon instructions received from Agent which purport
to
be made pursuant to this power of attorney, even if such instructions are
contrary to any instructions or demands of Grantor.
SECTION
4. MISCELLANEOUS
4.1. Miscellaneous.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their heirs, executors, administrators, successors, legal
representatives, and assigns. This Agreement may be executed in any number
of
counterparts, each of which shall be an original and all of which, when taken
together, shall constitute one agreement and shall be considered to be a Loan
Document. This Agreement, together with the Loan Agreement and the other Loan
Documents, embodies the entire agreement among the parties with respect to
the
subject matter hereof and amends and supersedes all prior agreements and
understandings relating to such subject matter. This letter shall be governed
by
the laws of the State of California. To the extent not prohibited by applicable
law, each of the parties hereto waives its right to a trial by jury, if any,
in
any action to enforce, defend, interpret, or otherwise concerning this letter.
Without limiting the applicability of any other provision of the Loan Agreement,
the terms of Sections 14.13 and 14.14 of the Loan Agreement are incorporated
herein, mutatis
mutandis,
and
shall apply to and govern this Agreement.
[Remainder
of Page Intentionally Left Blank]
3
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first written above.
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GRANTOR:
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SPORT
CHALET, INC.,
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a
Delaware corporation
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By:
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/s/
Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Title:
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Executive
Vice President and CFO
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Signature
Page
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AGENT:
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BANK
OF AMERICA, N.A, as Agent
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By:
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/s/
Xxxxxxx Xxxx
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Name:
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Xxxxxxx
X. Xxxx
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Title:
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Vice
President
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Signature
Page
SCHEDULE
I
to
INTERNET
DOMAIN NAME REGISTRATIONS
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DOMAIN NAME
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DOMAIN NAME
REGISTRATION DATE
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DOMAIN NAME
EXPIRATION DATE
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Xxxxxxxxxxx.xxx
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December 23,
1995
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November
17, 2015
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Schedule
I
