Exhibit 10.5
EXECUTION COPY
SECURITY AGREEMENT dated as of November 28, 2001, among
ADVANCE STORES COMPANY, INCORPORATED, a Virginia corporation (the
"Borrower"), ADVANCE AUTO PARTS, INC., a Delaware corporation
("Holdings"), each subsidiary of the Borrower listed on Schedule
I hereto (each such subsidiary individually a "Subsidiary
Guarantor" and collectively, the "Subsidiary Guarantors"; the
Subsidiary Guarantors, Holdings and the Borrower are referred to
collectively herein as the "Grantors") and JPMORGAN CHASE BANK, a
New York banking corporation ("Chase"), as collateral agent (in
such capacity, the "Collateral Agent") for the Secured Parties
(as defined herein).
Reference is made to (a) the Credit Agreement dated as of November 28, 2001
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, Holdings, the lenders from time to time party
thereto (the "Lenders"), Chase, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), Collateral Agent and as issuing bank (in
such capacity, the "Issuing Bank"), Credit Suisse First Boston, as syndication
agent, and Lehman Commercial Paper Inc., as syndication agent, and (b) the
Guarantee Agreement dated as of November 28, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement"), among the
Subsidiary Guarantors, Holdings and the Collateral Agent.
The Lenders have agreed to make Loans to the Borrower, and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower, pursuant
to, and upon the terms and subject to the conditions specified in, the Credit
Agreement. Each of Holdings and the Subsidiary Guarantors has agreed to
guarantee, among other things, all the obligations of the Borrower under the
Credit Agreement. The obligations of the Lenders to make Loans and of the
Issuing Bank to issue Letters of Credit are conditioned upon, among other
things, the execution and delivery by the Grantors of an agreement in the form
hereof to secure (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for
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prepayment or otherwise, (ii) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral, and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Secured Parties under
the Credit Agreement and the other Loan Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all obligations
in respect of overdrafts and related liabilities owed to Chase, any Affiliate
thereof, the Administrative Agent or the Collateral Agent arising from or in
connection with treasury, depositary or cash management services or in
connection with any automated clearinghouse transfer of funds and (d) unless
otherwise agreed to in writing by the applicable Lender party thereto, the due
and punctual payment and performance of all monetary obligations of the Borrower
under each Hedging Agreement entered into with any counterparty that was a
Lender (or an Affiliate of a Lender) at the time such Hedging Agreement was
entered into (all the monetary obligations described in the preceding clauses
(a) through (d) being collectively called the "Obligations").
Accordingly, the Grantors and the Collateral Agent, on behalf of itself and
each Secured Party (and each of their respective successors or assigns), hereby
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Capitalized terms used in
this Agreement and not otherwise defined herein shall have the meanings
specified in the Credit Agreement. All terms defined in the New York UCC (as
defined herein) and not defined in this Agreement shall have the meanings
specified therein; the term "instrument" shall have the meaning specified in
Article 9 of the New York UCC.
SECTION 1.02. Definition of Certain Terms Used Herein. As used herein, the
following terms shall have the following meanings:
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"Account Debtor" shall mean any Person who is or who may become obligated
to any Grantor under, with respect to or on account of an Account.
"Cash Concentration Account" shall mean the cash concentration account
maintained by the Borrower with the Cash Concentration Bank in Roanoke, Virginia
(account number 2001000059003), to which the Borrower will cause to be
transferred, on each Business Day, amounts deposited in the Collection Deposit
Accounts on such Business Day.
"Cash Concentration Bank" shall mean the "Cash Concentration Bank" as
defined in the Cash Concentration Letter Agreement.
"Cash Concentration Letter Agreement" shall mean the agreement among the
Cash Concentration Bank, the Borrower and the Collateral Agent, in substantially
the form of Annex 1-A hereto, pursuant to which the Borrower shall maintain the
Cash Concentration Account, as such Cash Concentration Letter Agreement may be
amended, modified or supplemented from time to time.
"Collateral" shall mean all right, title or interest now owned or at
anytime hereafter acquired by any Grantor or in which such Grantor now has or at
any time in the future may acquire any right, title or interest in all (a)
Accounts, (b) Chattel Paper, (c) Deposit Accounts (including the Cash
Concentration Account and the Collection Deposit Accounts), (d) Documents, (e)
Equipment, (f) General Intangibles, (g) Instruments, (h) Inventory, (i)
Investment Property, (j) all books and records pertaining to the foregoing and
(k) to the extent not otherwise included, all Proceeds and products of any of
the foregoing and all collateral security and guarantees given by any Person
with respect to any of the foregoing; provided that the term "Collateral" shall
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not include any property of the type specified in clauses (c) and (f) above if
the assignment, granting, creation, mortgage, pledge, hypothecation or transfer
thereof by such Grantor hereunder, would violate the terms of, or otherwise
constitute a default or termination or similar event under any document or
instrument to which any Loan Party is a party (other than those documents or
instruments between or among the Loan Parties and/or their Affiliates only)
relating to the ownership of, or pertaining to any rights or interests held in
such property, provided that (i) the terms to be violated or default or
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termination or similar event that would result in the event of the granting of
the Lien hereunder, are consistent with such Loan Party's current business
practice in connection with the type of document or instrument to which they
relate and (ii) each Loan Party shall use its best
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efforts to ensure that the assignment, granting, creation, mortgage, pledge,
hypothecation or transfer of any such property by any Grantor will not violate
the terms of, or otherwise constitute a default or termination or similar event
under any document or instrument to which such Loan Party is a party.
"Collection Deposit Account" shall mean each collection deposit account
maintained by the Borrower and the Subsidiary Guarantors pursuant to a
Collection Deposit Letter Agreement (and prior to the execution of a Collection
Deposit Letter Agreement with respect to such account, any other collection
deposit accounts maintained by the Borrower and the Subsidiary Guarantors) into
which the Borrower and the Subsidiary Guarantors will deposit all Daily
Receipts.
"Collection Deposit Letter Agreement" shall mean an agreement among the
Borrower, any Lender or other bank and the Collateral Agent, in substantially
the form of Annex 1-B hereto, pursuant to which, the Borrower and the Subsidiary
Guarantors shall maintain a Collection Deposit Account, as such Collection
Deposit Agreement may be amended, modified or supplemented from time to time.
"Copyright License" shall mean any written agreement, now or hereafter in
effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule II.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Daily Receipts" shall mean all amounts received by the Borrower and the
Subsidiary Guarantors, whether in the form of cash, checks, any moneys received
or receivable in respect of charges made by means of credit cards, and other
negotiable
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instruments, in each case as a result of the sale of Inventory.
"Documents" shall mean all instruments, files, records, ledger sheets and
documents covering or relating to any of the Collateral.
"General Intangibles" shall mean all choses in action and causes of action
and all other assignable intangible personal property of any Grantor of every
kind and nature (other than Accounts) now owned or hereafter acquired by any
Grantor, including limited partnership or limited liability company interests,
corporate or other business records, indemnification claims, contract rights
(including rights under leases, whether entered into as lessor or lessee,
Hedging Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.
Notwithstanding the foregoing, the term "General Intangibles" shall not include
any accounts receivable sold or created pursuant to any Receivables Program,
except to the extent the same are transferred back or charged back to a Grantor
pursuant to the applicable documents governing such Receivables Program.
"Intellectual Property" shall mean all intellectual and similar property of
any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those license agreements in
existence on the date hereof and listed on Schedule III and those license
agreements entered into after the date hereof, which by their terms prohibit
assignment or a grant of a security interest by such Grantor as licensee
thereunder).
"New York UCC" shall mean the Uniform Commercial Code as from time to time
in effect in the State of New York.
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"Obligations" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Patent License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" shall mean all of the following now owned or hereafter acquired
by any Grantor: (a) all letters patent of the United States or any other
country, all registrations and recordings thereof, and all applications for
letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States Patent
and Trademark Office or any similar offices in any other country, including
those listed on Schedule IV, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" shall mean a certificate substantially in the form
of Annex 2 hereto, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Financial Officer of the Borrower.
"Proceeds" shall have the meaning specified in Section 9-102 of the New
York UCC.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative Agent,
(c) the Collateral Agent, (d) the Issuing Bank, (e) each counterparty to a
Hedging Agreement entered into with the Borrower if such counterparty was a
Lender (or an affiliate of a Lender) at the time the Hedging Agreement was
entered into, (f) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Loan Document and (g) the successors and
assigns of each of the foregoing.
"Security Interest" shall have the meaning assigned to such term in Section
2.01.
"Trademark License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right
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to use any Trademark now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, or granting to any Grantor any right to use
any Trademark now or hereafter owned by any third party, and all rights of any
Grantor under any such agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office,
any State of the United States or any similar offices in any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule V, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
grants, mortgages, pledges, hypothecates and transfers to the Collateral Agent,
its successors and assigns, for the ratable benefit of the Secured Parties, and
hereby grants to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, a security interest in, all of such
Grantor's right, title and interest now owned or at any time hereafter acquired
by such Grantor or in which such Grantor now has or any time in the future may
acquire any right, title or interest, in, to and under the Collateral (the
"Security Interest"). Each Grantor hereby irrevocably authorizes the Collateral
Agent at any time and from time to time to file in any relevant jurisdiction any
initial financing statements (including fixture filings), and amendments thereto
that contain the information required by Article 9 of the Uniform Commercial
Code of each applicable jurisdiction for the filing of any
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financing statement or amendment, including (a) whether the Grantor is an
organization, the type of organization and any organizational identification
number issued to the Grantor and (b) in the case of a financing statement filed
as a fixture filing or covering Collateral constituting minerals or the like to
be extracted or timber to be cut, a sufficient description of the real property
to which such Collateral relates. The Grantor agrees to provide such information
to the Collateral Agent promptly upon request. Each Grantor also ratifies its
authorization for the Collateral Agent to file in any relevant jurisdiction any
initial financing statements or amendments thereto if filed prior to the date
hereof.
The Collateral Agent is further authorized to file filings with the
United States Patent and Trademark Office or United States Copyright Office (or
any successor office or any similar office in any other country) or other
documents for the purpose of perfecting, confirming, continuing, enforcing or
protecting the Security Interest granted by each Grantor, without the signature
of any Grantor, and naming any Grantor or the Grantors as debtors and the
Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is granted
as security only and shall not subject the Collateral Agent or any other Secured
Party to, or in any way alter or modify, any obligation or liability of any
Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the Collateral
Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid rights
in and title to the Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to the
Collateral Agent the Security Interest in such Collateral pursuant hereto and to
execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other Person other than
any consent or approval which has been obtained.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein,
including the exact legal name of each Grantor, is correct and complete in all
material
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respects. Fully executed Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations containing a description of the Collateral have been delivered to
the Collateral Agent for filing in each governmental, municipal or other office
specified in Schedule 6 to the Perfection Certificate, which are all the
filings, recordings and registrations (other than filings required to be made in
the United States Patent and Trademark Office and the United States Copyright
Office in order to perfect the Security Interest in Collateral consisting of
United States Patents, Trademarks and Copyrights) that are necessary to publish
notice of and protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Collateral Agent (for the ratable
benefit of the Secured Parties) in respect of all Collateral in which the
Security Interest may be perfected by filing, recording or registration in the
United States (or any political subdivision thereof) and its territories and
possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements or amendments.
(b) Each Grantor represents and warrants that fully executed security
agreements in the form hereof and containing a description of all Collateral
consisting of Intellectual Property with respect to United States Patents and
United States registered Trademarks (and Trademarks for which United States
registration applications are pending) and United States registered Copyrights
have been delivered to the Collateral Agent for recording by the United States
Patent and Trademark Office and the United States Copyright Office pursuant to
35 U.S.C. (S) 261, 15 U.S.C. (S) 1060 or 17 U.S.C. (S) 205 and the regulations
thereunder, as applicable, and otherwise as may be required pursuant to the laws
of any other necessary jurisdiction, to protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral Agent
(for the benefit of the Secured Parties) in respect of all Collateral consisting
of Patents, Trademarks and United States registered Copyrights in which a
security interest may be perfected by filing, recording or registration in the
United States (or any political subdivision thereof) and its territories and
possessions, or in any other necessary jurisdiction, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary (other than the financing statements referred to
above in Section 3.02(a) and such actions as are necessary to perfect the
Security Interest with respect to any Collateral consisting of Patents,
Trademarks
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and Copyrights (or registration or application for registration thereof)
acquired or developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
any political subdivision thereof) and its territories and possessions pursuant
to the Uniform Commercial Code or other applicable law in such jurisdictions and
(c) a security interest that shall be perfected in all Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable, within the three month period
(commencing as of the date hereof) pursuant to 35 U.S.C. (S) 261, 15 U.S.C. (S)
1060 or 17 U.S.C. (S) 205 and otherwise as may be required pursuant to the laws
of any other necessary jurisdiction. The Security Interest is and shall be prior
to any other Lien on any of the Collateral, other than Liens expressly permitted
to be prior to the Security Interest pursuant to Section 6.02 of the Credit
Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.02 of the Credit Agreement. The Grantor has not filed or
consented to the filing of (a) any financing statement or analogous document
under the Uniform Commercial Code or any other applicable laws covering any
Collateral, (b) any assignment in which any Grantor assigns any Collateral or
any security agreement or similar instrument covering any Collateral with the
United States Patent and Trademark Office or the United States Copyright Office
or (c) any assignment in which any Grantor assigns any Collateral or any
security agreement or similar instrument covering any Collateral with any
foreign governmental, municipal or other office, which financing statement or
analogous document, assignment, security agreement or similar instrument is
still in effect, except, in each case, for Liens expressly permitted pursuant to
Section 6.02 of the Credit Agreement. None of the Grantors holds any commercial
tort claim except as indicated on the Perfection Certificate.
ARTICLE IV
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Covenants
SECTION 4.01. Change of Name; Location of Collateral; Records; Place of
Business. (a) Each Grantor agrees promptly to notify the Collateral Agent in
writing of any change (i) in its corporate name, (ii) in the location of its
chief executive office, its principal place of business, any office in which it
maintains books or records relating to Collateral owned by it or any office or
facility at which Collateral owned by it is located (including the establishment
of any such new office or facility) other than with respect to Collateral (A)
consisting of goods in transit between facilities, whether in vehicles owned by
the applicable Grantor or on common carriers and (B) located in temporary
warehousing which will remain in such warehousing for no longer than one month,
(iii) in its identity or type of organization or corporate structure, (iv) in
its Federal Taxpayer Identification Number or organizational identification
number, as applicable, or (v) in its jurisdiction of organization. Each Grantor
agrees promptly to provide the Collateral Agent with certified organizational
documents reflecting any of the changes described in the preceding sentence.
Each Grantor agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Collateral Agent
to continue at all times following such change to have a valid, legal and
perfected first priority security interest in all the Collateral. Each Grantor
agrees promptly to notify the Collateral Agent if any material portion of the
Collateral owned or held by such Grantor is damaged or destroyed.
(b) Each Grantor agrees to maintain, at its own cost and expense, such
complete and accurate records with respect to the Collateral owned by it as is
consistent with its current practices and in accordance with such prudent and
standard practices used in industries that are the same as or similar to those
in which such Grantor is engaged, but in any event to include complete
accounting records indicating all payments and proceeds received with respect to
any part of the Collateral, and, at such time or times as the Collateral Agent
may reasonably request, promptly to prepare and deliver to the Collateral Agent
a duly certified schedule or schedules in form and detail satisfactory to the
Collateral Agent showing the identity, amount and location of any and all
Collateral.
SECTION 4.02. Periodic Certification. Each year, at the time of delivery of
annual financial statements with respect to the preceding fiscal year pursuant
to Section 5.01 of the Credit Agreement, the Borrower shall deliver to the
Collateral Agent a certificate executed by a Financial Officer of the
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Borrower (a) setting forth the information required pursuant to this Section 2
of the Perfection Certificate or confirming that there has been no change in
such information since the date of such certificate or the date of the most
recent certificate delivered pursuant to this Section 4.02 and (b) certifying
that all Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (a) above to the extent necessary to protect and
perfect the Security Interest for a period of not less than 18 months after the
date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period). Each certificate
delivered pursuant to this Section 4.02 shall identify in the format of Schedule
II, III, IV or V, as applicable, all Patents, Trademarks, Copyrights and
Licenses of any Grantor in existence on the date thereof and not then listed on
such Schedules or previously so identified to the Collateral Agent.
SECTION 4.03. Protection of Security. Each Grantor shall, at its own cost
and expense, take any and all actions necessary to defend title to the
Collateral against all Persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien not
expressly permitted pursuant to Section 6.02 of the Credit Agreement.
SECTION 4.04. Further Assurances. Each Grantor agrees, at its own expense,
to execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Collateral Agent may
from time to time reasonably request to better assure, preserve, protect and
perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the
execution and delivery of this Agreement, the granting of the Security Interest
and the filing of any financing statements (including fixture filings) or other
documents in connection herewith or therewith. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be promptly
pledged and delivered to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt
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notice thereof to the Grantors, to supplement this Agreement by supplementing
Schedule II, III, IV or V hereto or adding additional schedules hereto to
specifically identify any asset or item that may constitute Copyrights,
Licenses, Patents or Trademarks; provided, however, that any Grantor shall have
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the right, exercisable within 10 days after it has been notified by the
Collateral Agent of the specific identification of such Collateral, to advise
the Collateral Agent in writing of any inaccuracy of the representations and
warranties made by such Grantor hereunder with respect to such Collateral. Each
Grantor agrees that it will use its best efforts to take such action as shall be
necessary in order that all representations and warranties hereunder shall be
true and correct with respect to such Collateral within 30 days after the date
it has been notified by the Collateral Agent of the specific identification of
such Collateral.
SECTION 4.05. Inspection and Verification. The Collateral Agent and such
Persons as the Collateral Agent may reasonably designate shall have the right,
subject to compliance with Section 5.09 of the Credit Agreement, to inspect the
Collateral, all records related thereto (and to make extracts and copies from
such records) and the premises upon which any of the Collateral is located, to
discuss the Grantors' affairs with the officers of the Grantors and their
independent accountants and to verify under reasonable procedures the validity,
amount, quality, quantity, value, condition and status of, or any other matter
relating to, the Collateral, including, in the case of Accounts or Collateral in
the possession of any third person, by contacting Account Debtors or the third
person possessing such Collateral for the purpose of making such a verification;
provided, however, that representatives of the Grantors shall be entitled to
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participate in such discussions. The Collateral Agent shall have the absolute
right to share any information it gains from such inspection or verification
with any Secured Party.
SECTION 4.06. Taxes; Encumbrances. At its option and after notice to the
applicable Grantor, the Collateral Agent may discharge past due taxes,
assessments, charges, fees, Liens, security interests or other encumbrances at
any time levied or placed on the Collateral and not permitted pursuant to
Section 6.02 of the Credit Agreement, and may pay for the maintenance and
preservation of the Collateral to the extent any Grantor fails to do so as
required by the Credit Agreement or this Agreement, and each Grantor jointly and
severally agrees to reimburse the Collateral Agent on demand for any payment
made or any expense incurred by the Collateral Agent pursuant to the foregoing
authorization; provided, however, that nothing in this Section 4.06 shall be
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interpreted as excusing any Grantor from the performance of, or imposing any
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obligation on the Collateral Agent or any Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments,
charges, fees, liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Loan Documents.
SECTION 4.07. Assignment of Security Interest. If at any time any Grantor
shall take a security interest in any property of an Account Debtor or any other
Person to secure payment and performance of an Account, such Grantor shall
promptly assign such security interest to the Collateral Agent. Such assignment
need not be filed of public record unless necessary to continue the perfected
status of the security interest against creditors of and transferees from the
Account Debtor or other Person granting the security interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each Grantor shall
remain liable to observe and perform all the conditions and obligations to be
observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and each Grantor jointly and severally agrees to indemnify and hold
harmless the Collateral Agent and the Secured Parties from and against any and
all liability for such performance.
SECTION 4.09. Use and Disposition of Collateral. None of the Grantors shall
make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral, except as
expressly permitted by Section 6.02 of the Credit Agreement. None of the
Grantors shall make or permit to be made any transfer of the Collateral and each
Grantor shall remain at all times in possession of the Collateral owned by it,
except that (a) Inventory, obsolete or worn out assets, Permitted Investments
and other assets having a fair market value (alone or together with other
related assets sold or to be sold) of less than $25,000 may be sold, in each
case in the ordinary course of business and (b) unless and until the Collateral
Agent shall notify the Grantors that an Event of Default shall have occurred and
be continuing and that during the continuance thereof the Grantors shall not
sell, convey, lease, assign, transfer or otherwise dispose of any Collateral
(which notice may be given by telephone if promptly confirmed in writing), the
Grantors may use and dispose of the Collateral in any lawful manner not
inconsistent with the provisions of this Agreement, the Credit Agreement or any
other Loan Document. Without limiting the generality of the foregoing, each
Grantor agrees that it shall not permit any
15
Inventory to be in the possession or control of any warehouseman, bailee, agent
or processor at any time unless such warehouseman, bailee, agent or processor
shall have been notified of the Security Interest and shall have agreed in
writing to hold the Inventory subject to the Security Interest and the
instructions of the Collateral Agent and to waive and release any Lien held by
it with respect to such Inventory, whether arising by operation of law or
otherwise.
SECTION 4.10. Limitation on Modification of Accounts. None of the Grantors
will, without the Collateral Agent's prior written consent, grant any extension
of the time of payment of any of the Accounts included in the Collateral,
compromise, compound or settle the same for less than the full amount thereof,
release, wholly or partly, any Person liable for the payment thereof or allow
any credit or discount whatsoever thereon, other than extensions, credits,
discounts, compromises or settlements granted or made in the ordinary course of
business and consistent with its current practices and in accordance with such
prudent and standard practices used in industries that are the same as or
similar to those in which such Grantor is engaged.
SECTION 4.11. Insurance. The Grantors, at their own expense, shall maintain
or cause to be maintained insurance covering physical loss or damage to the
Inventory and Equipment in accordance with Section 5.07 of the Credit Agreement.
Each Grantor irrevocably makes, constitutes and appoints the Collateral Agent
(and all officers, employees or agents designated by the Collateral Agent) as
such Grantor's true and lawful agent (and attorney-in-fact) for the purpose,
during the continuance of an Event of Default, of making, settling and adjusting
claims in respect of Collateral under policies of insurance, endorsing the name
of such Grantor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and
decisions with respect thereto. In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance required
hereby or to pay any premium in whole or part relating thereto, the Collateral
Agent may, without waiving or releasing any obligation or liability of the
Grantors hereunder or any Event of Default, in its sole discretion, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this Section 4.11,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Obligations secured hereby.
16
SECTION 4.12. Legend. Each Grantor shall legend, in form and manner
satisfactory to the Collateral Agent, its Chattel Paper and its books, records
and documents evidencing or pertaining thereto with an appropriate reference to
the fact that such Chattel Paper have been assigned to the Collateral Agent for
the benefit of the Secured Parties and that the Collateral Agent has a security
interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, nor will it permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which is
material to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to mark any products
covered by a Patent with the relevant patent number as necessary and sufficient
to establish and preserve its maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of Federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(c) Each Grantor (either itself or through licensees) will, for each work
covered by a material Copyright, continue to publish, reproduce, display, adopt
and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately if it knows
or has reason to know that any Patent, Trademark or Copyright material to the
conduct of its business may become abandoned, lost or dedicated to the public,
or of any adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United States
Patent and Trademark Office, United States Copyright Office or any court or
similar office of any country) regarding such Grantor's ownership of any Patent,
Trademark or Copyright, its right to register the same, or to keep and maintain
the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an
17
application for any Patent, Trademark or Copyright (or for the registration of
any Trademark or Copyright) with the United States Patent and Trademark Office,
United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, unless it promptly informs the Collateral Agent, and, upon
request of the Collateral Agent, executes and delivers any and all agreements,
instruments, documents and papers as the Collateral Agent may request to
evidence the Collateral Agent's security interest in such Patent, Trademark or
Copyright, and each Grantor hereby appoints the Collateral Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes,
all acts of such attorney being hereby ratified and confirmed; such power, being
coupled with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material application relating
to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly sue for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its best efforts to obtain all requisite consents or approvals
by the licensor of each Copyright License, Patent License or Trademark License
to effect the assignment of all of such Grantor's right, title
18
and interest thereunder to the Collateral Agent or its designee.
(i) Each Grantor shall ensure that fully executed security agreements
in the form hereof and containing a description of all Collateral consisting of
Intellectual Property shall have been received and recorded within three months
after the execution of this Agreement with respect to United States Patents,
United States registered Trademarks (and Trademarks for which United States
registration applications are pending) and United States registered Copyrights
have been delivered to the Collateral Agent for recording by the United States
Patent and Trademark Office and the United States Copyright Office pursuant to
35 U.S.C. (S) 261, 15 U.S.C. (S) 1060 or 17 U.S.C. (S) 205 and the regulations
thereunder, as applicable, and otherwise as may be required pursuant to the laws
of any other necessary jurisdiction, to protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral Agent
(for the ratable benefit of the Secured Parties) in respect of all Collateral
consisting of Patents, Trademarks and registered Copyrights in which a security
interest may be perfected by filing, recording or registration in the United
States (or any political subdivision thereof) and its territories and
possessions, or in any other necessary jurisdiction, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary (other than such actions as are necessary to perfect
the Security Interest with respect to any Collateral consisting of Patents,
Trademarks and Copyrights (or registration or application for registration
thereof) acquired or developed after the date of this amendment and
restatement).
SECTION 4.14. Other Actions. In order to further insure the attachment,
-------------
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Collateral Agent's security interest in the Collateral, each Grantor agrees,
in each case at such Grantor's own expense, to take the following actions with
respect to the following Collateral:
(a) Instruments and Tangible Chattel Paper. If any Grantor shall at any
--------------------------------------
time hold or acquire any Instruments or Tangible Chattel Paper (other than such
Instruments or Tangible Chattel Paper held in the ordinary course of such
Grantor's business and in an aggregate amount not exceeding $100,000), such
Grantor shall forthwith endorse, assign and deliver the same to the Collateral
Agent, accompanied by such instruments of transfer or assignment duly executed
in blank as the Collateral Agent may from time to time specify.
19
(b) Investment Property. If any Grantor shall at any time hold or acquire
-------------------
any certificated securities (other than any such certificated securities having
an aggregate fair market value not in excess of $50,000 and held in the ordinary
course of such Grantor's business), such Grantor shall forthwith endorse, assign
and deliver the same to the Collateral Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Collateral Agent may from
time to time specify. If any securities now or hereafter acquired by any Grantor
are uncertificated and are issued to such Grantor or its nominee directly by the
issuer thereof, such Grantor shall promptly notify the Collateral Agent thereof
and, at the Collateral Agent's request and option, pursuant to an agreement in
form and substance satisfactory to the Collateral Agent, either (a) cause the
issuer to agree to comply with instructions from the Collateral Agent as to such
securities, without further consent of any Grantor or such nominee, or (b)
arrange for the Collateral Agent to become the registered owner of the
securities. If any securities, whether certificated or uncertificated, or other
investment property now or hereafter acquired by any Grantor are held by such
Grantor or its nominee through a securities intermediary or commodity
intermediary, such Grantor shall promptly notify the Collateral Agent thereof
and, at the Collateral Agent's request and option, pursuant to an agreement in
form and substance reasonably satisfactory to the Collateral Agent, either (i)
cause such securities intermediary or (as the case may be) commodity
intermediary to agree to comply with entitlement orders or other instructions
from the Collateral Agent to such securities intermediary as to such securities
or other investment property, or (as the case may be) to apply any value
distributed on account of any commodity contract as directed by the Collateral
Agent to such commodity intermediary, in each case without further consent of
any Grantor or such nominee, or (ii) in the case of Financial Assets or other
Investment Property held through a securities intermediary, arrange for the
Collateral Agent to become the entitlement holder with respect to such
investment property, with the Grantor being permitted, only with the consent of
the Collateral Agent, to exercise rights to withdraw or otherwise deal with such
investment property. The Collateral Agent agrees with each of the Grantors that
the Collateral Agent shall not give any such entitlement orders or instructions
or directions to any such issuer, securities intermediary or commodity
intermediary, and shall not withhold its consent to the exercise of any
withdrawal or dealing rights by any Grantor, unless an Event of Default has
occurred and is continuing, or, after giving effect to any such investment and
withdrawal rights would occur. The provisions of this
20
paragraph shall not apply to any financial assets credited to a securities
account for which the Collateral Agent is the securities intermediary.
(c) Electronic Chattel Paper and Transferable Records. If any Grantor at
-------------------------------------------------
any time holds or acquires an interest in any electronic chattel paper or any
"transferable record," as that term is defined in Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act, or in (S)16 of the
Uniform Electronic Transactions Act as in effect in any relevant jurisdiction,
such Grantor shall promptly notify the Collateral Agent thereof and, at the
request of the Collateral Agent, shall take such action as the Collateral Agent
may reasonably request to vest in the Collateral Agent control under UCC
(S)9-105 of such electronic chattel paper or control under Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or, as the
case may be, (S)16 of the Uniform Electronic Transactions Act, as so in effect
in such jurisdiction, of such transferable record. The Collateral Agent agrees
with such Grantor that the Collateral Agent will arrange, pursuant to procedures
satisfactory to the Collateral Agent and so long as such procedures will not
result in the Collateral Agent's loss of control, for the Grantor to make
alterations to the electronic chattel paper or transferable record permitted
under UCC (S)9-105 or, as the case may be, Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or (S)16 of the Uniform
Electronic Transactions Act for a party in control to allow without loss of
control, unless an Event of Default has occurred and is continuing or would
occur after taking into account any action by such Grantor with respect to such
electronic chattel paper or transferable record.
(d) Letter-of-credit Rights. If any Grantor is at any time a beneficiary
-----------------------
(other than in the ordinary course of its business and in respect of letters of
credit in an aggregate amount not exceeding $150,000) under a letter of credit
now or hereafter issued in favor of such Grantor, such Grantor shall promptly
notify the Collateral Agent thereof and, at the request and option of the
Collateral Agent, such Grantor shall, pursuant to an agreement in form and
substance reasonably satisfactory to the Collateral Agent, either (i) arrange
for the issuer and any confirmed of such letter of credit to consent to an
assignment to the Collateral Agent of the proceeds of any drawing under the
letter of credit or (ii) arrange for the Collateral Agent to become the
transferee beneficiary of the letter of credit, with the Collateral Agent
agreeing, in each case, that the proceeds of any drawing under the letter of
credit are to be applied as provided in the Credit Agreement.
21
(e) Commercial Tort Claims. If any Grantor shall at any time hold or
----------------------
acquire a commercial tort claim for an amount exceeding $100,000, the Grantor
shall promptly notify the Collateral Agent in a writing signed by such Grantor
of the brief details thereof and grant to the Collateral Agent in such writing a
security interest therein and in the proceeds thereof, all upon the terms of
this Agreement, with such writing to be in form and substance satisfactory to
the Collateral Agent.
ARTICLE V
Collections
SECTION 5.01. Collection Deposit Accounts. (a) From and after the
---------------------------
Effective Date, each Grantor agrees to deposit all Daily Receipts into the
Collection Deposit Accounts on a daily basis.
(b) From and after the Effective Date, the Grantors agree to
transfer, or cause to be transferred, on each Business Day, all amounts on
deposit in any Collection Deposit Account to the Cash Concentration Account
other than amounts necessary (i) for the payment of routine bank service fees,
(ii) for change orders and (iii) to reconcile deposit balances.
(c) Unless and until the happening of an Event of Default, the
Borrower may at any time withdraw any of the funds contained in the Cash
Concentration Account for use, subject to the provisions of the Credit
Agreement, for general corporate purposes.
(d) Upon the occurrence of an Event of Default, each Collection
Deposit Account and the Cash Concentration Account will, without any further
action taken on the part of any Grantor or the Collateral Agent, automatically
convert into a closed account under the exclusive dominion and control of the
Collateral Agent in which funds are held subject to the rights of the Collateral
Agent hereunder. No Grantor shall thereafter have any right or power to withdraw
any funds from any Collection Deposit Account or the Cash Concentration Account
without the prior written consent of the Collateral Agent.
(e) In the event that a Grantor directly receives any remittances
on Accounts included in the Collateral, notwithstanding the arrangements for
payment directly into the Collection Deposit Accounts pursuant to Section 5.02,
such remittances shall be held for the benefit of the Collateral
22
Agent and the Lenders and shall be segregated from other funds of such Grantor,
subject to the Security Interest granted hereby, and such Grantor shall cause
such remittances and payments to be deposited into a Collection Deposit Account
or the Cash Concentration Account as soon as practicable after such Grantor's
receipt thereof.
(f) All payments by any Grantor into any Cash Deposit Account or
the Cash Collateral Account pursuant to this Section 5.01, whether in the form
of cash, checks, notes, drafts, bills of exchange, money orders or otherwise, in
the relevant Cash Deposit Account or Cash Collateral Account in precisely the
form in which received (but with any endorsements of such Grantor necessary for
deposit or collection), and until they are so deposited such payments shall be
held in trust by such Grantor for and as the property of the Collateral Agent.
SECTION 5.02. Collections. From and after the Effective Date, each
-----------
Grantor agrees to notify and direct promptly each Account Debtor and every other
Person obligated to make payments with respect to the Accounts included in the
Collateral to make all such payments to a Collection Deposit Account established
by it. Each Grantor shall use all reasonable efforts to cause each Account
Debtor and every other Person identified in the preceding sentence to make all
payments with respect to the Accounts included in the Collateral directly to
such Collection Deposit Account.
(b) Without the prior written consent of the Collateral Agent, no
Grantor shall, in a manner adverse to the Lenders, change the general
instructions given to Account Debtors in respect of payment on Accounts to be
deposited in any Collection Deposit Account. Until the Collateral Agent shall
have advised the Grantors to the contrary, each Grantor shall, and the
Collateral Agent hereby authorizes each Grantor to, enforce and collect all
amounts owing on the Inventory and Accounts included in the Collateral, for the
benefit and on behalf of the Collateral Agent and the other Secured Parties;
provided, however, that such privilege may at the option of the Collateral Agent
- -------- -------
be terminated upon the occurrence and during the continuance of any Event of
Default.
SECTION 5.03. Power of Attorney. Each Grantor irrevocably makes,
constitutes and appoints the Collateral Agent (and all officers, employees or
agents designated by the Collateral Agent) as such Grantor's true and lawful
agent and attorney-in-fact, and in such capacity the Collateral Agent shall have
the right, with power of substitution for each Grantor and in each Grantor's
name or otherwise, for the use and benefit of the Collateral Agent and the
Secured Parties,
23
upon the occurrence and during the continuance of an Event of Default (a) to
receive, endorse, assign and/or deliver any and all notes, acceptances, checks,
drafts, money orders or other evidences of payment relating to the Collateral or
any part thereof; (b) to demand, collect, receive payment of, give receipt for
and give discharges and releases of all or any of the Collateral; (c) to sign
the name of any Grantor on any invoice or bill of lading relating to any of the
Collateral; (d) to send verifications of Accounts included in the Collateral to
any Account Debtor; (e) to commence and prosecute any and all suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect or otherwise realize on all or any of the Collateral or to enforce any
rights in respect of any Collateral; (f) to settle, compromise, compound, adjust
or defend any actions, suits or proceedings relating to all or any of the
Collateral; (g) to notify, or to require any Grantor to notify, Account Debtors
to make payment directly to the Collateral Agent; and (h) to use, sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with all
or any of the Collateral, and to do all other acts and things necessary to carry
out the purposes of this Agreement, as fully and completely as though the
Collateral Agent were the absolute owner of the Collateral for all purposes;
provided, however, that nothing herein contained shall be construed as requiring
- -------- -------
or obligating the Collateral Agent or any Secured Party to make any commitment
or to make any inquiry as to the nature or sufficiency of any payment received
by the Collateral Agent or any Secured Party, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken or omitted to be taken by the Collateral Agent or
any Secured Party with respect to the Collateral or any part thereof shall give
rise to any defense, counterclaim or offset in favor of any Grantor or to any
claim or action against the Collateral Agent or any Secured Party. It is
understood and agreed that the appointment of the Collateral Agent as the agent
and attorney-in-fact of the Grantors for the purposes set forth above is coupled
with an interest and is irrevocable. The provisions of this Section shall in no
event relieve any Grantor of any of its obligations hereunder or under any other
Loan Document with respect to the Collateral or any part thereof or impose any
obligation on the Collateral Agent or any Secured Party to proceed in any
particular manner with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Collateral Agent or any Secured Party of any other
or further right which it may have on the date of this Agreement or hereafter,
whether hereunder, under any other Loan Document, by law or otherwise.
24
ARTICLE VI
Remedies
SECTION 6.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Collateral
consisting of Intellectual Property, on demand, to cause the Security Interest
to become an assignment, transfer and conveyance of any of or all such
Collateral by the applicable Grantors to the Collateral Agent, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or non-exclusive basis, any such Collateral throughout the world on such terms
and conditions and in such manner as the Collateral Agent shall determine (other
than in violation of any then-existing licensing arrangements to the extent that
waivers cannot be obtained), and (b) with or without legal process and with or
without prior notice or demand for performance, to take possession of the
Collateral and without liability for trespass to enter any premises where the
Collateral may be located for the purpose of taking possession of or removing
the Collateral and, generally, to exercise any and all rights afforded to a
secured party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral, at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Collateral Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of any Grantor, and each Grantor hereby waives
(to the extent permitted by law) all rights of redemption, stay and appraisal
which such Grantor now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted.
25
The Collateral Agent shall give the Grantors 10 days' written notice (which
each Grantor agrees is reasonable notice within the meaning of Section 9-504(3)
of the Uniform Commercial Code as in effect in the State of New York or its
equivalent in other jurisdictions) of the Collateral Agent's intention to make
any sale of Collateral. Such notice, in the case of a public sale, shall state
the time and place for such sale and, in the case of a sale at a broker's board
or on a securities exchange, shall state the board or exchange at which such
sale is to be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall
be held at such time or times within ordinary business hours and at such place
or places as the Collateral Agent may fix and state in the notice (if any) of
such sale. At any such sale, the Collateral, or portion thereof, to be sold may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any Collateral if it shall determine
not to do so, regardless of the fact that notice of sale of such Collateral
shall have been given. The Collateral Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of any Grantor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to such Secured Party from any Grantor as a credit against the
purchase price, and such Secured Party may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to any Grantor therefor. For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of
26
the Collateral or any portion thereof subject thereto, notwithstanding the
fact that after the Collateral Agent shall have entered into such an agreement
all Events of Default shall have been remedied and the Obligations paid in full.
As an alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose
this Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 6.01 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-504(3) of the Uniform Commercial
Code as in effect in the State of New York or its equivalent in other
jurisdictions.
SECTION 6.02. Application of Proceeds. The Collateral Agent shall apply the
proceeds of any collection or sale of the Collateral, as well as any Collateral
consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent or the Collateral Agent (in its capacity as such
hereunder or under any other Loan Document) in connection with such
collection or sale or otherwise in connection with this Agreement, any
other Loan Document or any of the Obligations, including all court costs
and the fees and expenses of its agents and legal counsel, the repayment of
all advances made by the Collateral Agent hereunder or under any other Loan
Document on behalf of any Grantor and any other costs or expenses incurred
by the Collateral Agent or the Administrative Agent in connection with the
exercise of any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial
27
proceeding), the receipt of the purchase money by the Collateral Agent or of the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 6.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable, non-exclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sub-license
any of the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral Agent
shall be exercised, at the option of the Collateral Agent, upon the occurrence
and during the continuation of an Event of Default; provided that any license,
sub-license or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Guarantor shall be given to it at its address or
telecopy number set forth on Schedule I, with a copy to the Borrower.
SECTION 7.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement, any other Loan Document, any
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the
28
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument, (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, or (d) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Grantor in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any notes evidencing such Loans,
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the Credit Agreement. This Agreement
shall be construed as a separate agreement with respect to each Grantor and may
be amended, modified, supplemented, waived or released with respect to any
Grantor without the approval of any other Grantor and without affecting the
obligations of any other Grantor hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and
29
inure to the benefit of their respective successors and assigns.
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification. (a)
Each Grantor jointly and severally agrees to pay upon demand to the Collateral
Agent the amount of any and all reasonable expenses, including the reasonable
fees, disbursements and other charges of its counsel and of any experts or
agents, which the Collateral Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody or preservation of, or the
sale of, collection from or other realization upon any of the Collateral, (iii)
the exercise, enforcement or protection of any of the rights of the Collateral
Agent hereunder or (iv) the failure of any Grantor to perform or observe any of
the provisions hereof.
(b) Without limitation of its indemnification obligations under the other
Loan Documents, each Grantor jointly and severally agrees to indemnify the
Collateral Agent and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable fees, disbursements and other charges of counsel,
incurred by or asserted against any of them arising out of, in any way connected
with, or as a result of, the execution, delivery or performance of this
Agreement or any claim, litigation, investigation or proceeding relating hereto
or to the Collateral, whether or not any Indemnitee is a party thereto; provided
--------
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Collateral Agent or any Lender. All amounts due under this Section 7.06
shall be payable on written demand therefor.
30
SECTION 7.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Waivers; Amendment. (a) No failure or delay of the Collateral
Agent in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Agent hereunder and of
the Collateral Agent, the Issuing Bank, the Administrative Agent and the Lenders
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provisions
of this Agreement or any other Loan Document or consent to any departure by any
Grantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Grantor in any case shall entitle such Grantor or any
other Grantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Collateral Agent and the Grantor or Grantors with respect to which
such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 9.02 of the Credit Agreement.
SECTION 7.09. WAIVER OF JURY TRIAL; APPOINTMENT OF RECEIVER. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.09.
SECTION 7.10. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the
31
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract (subject to Section 7.04), and
shall become effective as provided in Section 7.04. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 7.12. Headings. Article and Section headings used herein are for
the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.13. Jurisdiction; Consent to Service of Process. (a) Each Grantor
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent, the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or the other Loan Documents
against any Grantor or its properties in the courts of any jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively
32
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 7.01. Nothing in this Agreement
will affected the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 7.14. Termination. (a) This Agreement and the Security Interest
shall terminate when all the Obligations (other than inchoate indemnification
and reimbursement rights) have been indefeasibly paid in full, the Lenders have
no further commitment to lend, the LC Exposure has been reduced to zero and the
Issuing Bank has no further commitment to issue Letters of Credit under the
Credit Agreement, at which time the Collateral Agent shall execute and deliver
to the Grantors, at the Grantors' expense, all Uniform Commercial Code
termination statements and similar documents which the Grantors shall reasonably
request to evidence such termination. Any execution and delivery of termination
statements or documents pursuant to this Section 7.14 shall be without recourse
to or warranty by the Collateral Agent.
(b) A Subsidiary Guarantor shall automatically be released from its
obligations hereunder and the Security Interest in the Collateral of such
Subsidiary Guarantor shall be automatically released in the event that all the
capital stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of to a Person that is not an Affiliate of the Borrower in
accordance with the terms of the Credit Agreement; provided that the Lenders
--------
shall have consented to such sale, transfer or other disposition (to the extent
required by the Credit Agreement) and the terms of such consent did not provide
otherwise.
(c) Upon any sale or other transfer by any Grantor of any Collateral that
is permitted under the Credit Agreement to any Person that is not a Grantor, or,
upon the effectiveness of any written consent to the release of the security
interest granted hereby in any Collateral pursuant to Section 9.02(b) of the
Credit Agreement, the security interest in such Collateral shall be
automatically released.
(d) The Collateral Agent shall, in connection with a financing contemplated
by Section 6.01(a)(vi) and 6.02(a)(v)
33
of the Credit Agreement, at the request of the lender providing the financing,
(i) subordinate the security interest under this Agreement on the specific
assets or improvement being financed to the security interest of such lender
pursuant to an intercreditor and/or subordination agreement in form and
substance reasonably satisfactory to such lender, the Administrative Agent and
the Grantor or (ii) release the Lien and security interest under this Agreement
on the specific assets or improvement being financed; provided that such Lien
--------
and security interest shall be reinstated upon the repayment in full of the
loans of such lender and the obligations of the Grantor to such lender arising
from or related to such financing secured by such assets or improvement and, in
connection with such reinstatement, the Grantors shall execute and deliver, at
the Grantors' expense, any Uniform Commercial Code financing statements or other
documents necessary to effect and evidence such reinstatement as may be
reasonably requested by the Collateral Agent. In connection with any
subordination or release of Lien and security interest pursuant to this Section
7.14(d), the Collateral Agent shall execute and deliver, at the Grantors'
expense, any documents necessary to effect and evidence such subordination as
may be reasonably requested by the Grantors.
SECTION 7.15. Additional Grantors. Upon execution and delivery by the
Collateral Agent and a Subsidiary of Holdings of an instrument in the form of
Annex 3 hereto, such Subsidiary shall become a Grantor hereunder with the same
force and effect as if originally named as a Grantor herein. The execution and
delivery of any such instrument shall not require the consent of any Grantor
hereunder. The rights and obligations of each Grantor hereunder shall remain in
full force and effect notwithstanding the addition of any new Grantor as a party
to this Agreement.
34
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
ADVANCE STORES COMPANY,
INCORPORATED,
by /s/ Eric M. Margolin
--------------------
Name:
Title:
ADVANCE AUTO PARTS, INC.,
by /s/ Eric M. Margolin
--------------------
Name:
Title:
EACH SUBSIDIARY GUARANTOR
LISTED ON SCHEDULE I HERETO,
by /s/ Eric M. Margolin
--------------------
Name:
Title:
/s/ [ILLEGIBLE]
--------------------
Name:
Title:
JPMORGAN CHASE BANK, as Collateral Agent,
by /s/ Robert Anastasio
--------------------
Name: Robert Anastasio
Title: Vice President
SCHEDULE I
SUBSIDIARY GUARANTORS
Name Address
---- -------
LARALEV, INC. 103 Foulk Road
Suite 270
Wilmington, DE 19899
Advance Trucking Corporation 5673 Airport Road
Roanoke, VA 24012
Western Auto Supply Company 5673 Airport Road
Roanoke, VA 24012
Western Auto of Puerto Rico, Inc. 5673 Airport Road
Roanoke, VA 24012
Western Auto of St. Thomas, Inc. 5673 Airport Road
Roanoke, VA 24012
WASCO Insurance Agency, Inc. 5673 Airport Road
Roanoke, VA 24012
Advance Merchandising Company, 5673 Airport Road
Inc. Roanoke, VA 24012
Advance Aircraft Company, Inc. 5673 Airport Road
Roanoke, VA 24012
Discount Auto Parts, Inc. 4900 Frontage Road South
Lakeland, FL 33815
DAP Acceptance Corporation 4900 Frontage Road South
Lakeland, FL 33815
SCHEDULE II
COPYRIGHTS
None.
SCHEDULE III
LICENSES
None.
SCHEDULE IV
PATENTS
None.
SCHEDULE V
TRADEMARKS
- --------------------------------------------------------------------------------
Serial Number Registration
Description Registration Number Date
----------- ------------- ------------ ----
- --------------------------------------------------------------------------------
Laralev
1. ADV 74/698,134 2,049,823 04/01/97
- --------------------------------------------------------------------------------
2. Advance Auto Parts 74/377,916 1,815,267 01/04/94
- --------------------------------------------------------------------------------
3. Advance Auto Parts and 74/676,448 1,484,796 04/12/88
Triangle Design
- --------------------------------------------------------------------------------
4. Advance Auto Parts and 74/436,327 1,847,137 07/26/94
Design
- --------------------------------------------------------------------------------
5. American Spirit* 1,242,721 06/21/83
- --------------------------------------------------------------------------------
6. Autocraft 1,622,118 11/13/90
- --------------------------------------------------------------------------------
7. Autocraft Castaway 76/237,170 04/09/01
- --------------------------------------------------------------------------------
8. Benny's Carports Outlet** 1,164,988 08/11/81
- --------------------------------------------------------------------------------
10. Guarantee Auto** 1,180,032 12/01/81
- --------------------------------------------------------------------------------
11. Low Price Good Advice** 1,310,585 12/18/84
- --------------------------------------------------------------------------------
12. Low Price Good Advice** 1,404,476 08/05/86
- --------------------------------------------------------------------------------
13. Midland** 895,483 07/28/70
- --------------------------------------------------------------------------------
14. Midland 927,193 01/18/72
- --------------------------------------------------------------------------------
15. More Parts, Lower Prices 76/081875 06/30/00
- --------------------------------------------------------------------------------
16. Nationwise** 1,322,659 2/26/85
- --------------------------------------------------------------------------------
17. Nationwise** 1,323,970 03/12/85
- --------------------------------------------------------------------------------
18. Nationwise (And Design)** 1,322,658 02/26/85
- --------------------------------------------------------------------------------
19. Parts America 2,280,955 09/28/99
- --------------------------------------------------------------------------------
20. Patriot** 1,261,662 12/20/83
- --------------------------------------------------------------------------------
21. PDQ 73/470,816 1,395,226 04/27/86
- --------------------------------------------------------------------------------
22. Pro-Control** 2,046,221 03/18/97
- --------------------------------------------------------------------------------
23. Revelation** 754,867 08/20/63
- --------------------------------------------------------------------------------
24. Sentry* 255,631 04/30/29
- --------------------------------------------------------------------------------
25. Taking Care of People Who 1,471,052 12/29/87
Take Care of Cars**
- --------------------------------------------------------------------------------
26. The Best Part Is Our 75/282,626 2,167,375 06/23/98
People
- --------------------------------------------------------------------------------
27. The Front Runner 74/330,068 1,850,319 08/16/94
- --------------------------------------------------------------------------------
29. Tire America 1,249,311 08/23/83
- --------------------------------------------------------------------------------
30. Tire Source* 1,956,753 02/13/96
- --------------------------------------------------------------------------------
31. Tough One* 1,715,139 09/15/92
- --------------------------------------------------------------------------------
32. Toughmaster** 2,009,154 10/15/96
- --------------------------------------------------------------------------------
33. Wearever 74/032,924 1,650,703 07/16/91
- --------------------------------------------------------------------------------
34. Wearever 74/698,135 2,044,917 03/11/97
- --------------------------------------------------------------------------------
35. Western Flyer** 289,563 12/01/31
- --------------------------------------------------------------------------------
36. Western Flyer** 440,857 10/05/48
- --------------------------------------------------------------------------------
37. Wheels Discount Auto 1,395,360 05/27/86
Supply Store**
- --------------------------------------------------------------------------------
38. Wizard* Western Auto (And 837,072 10/17/67
Design) Without My Wheels
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ----------
* Current recorded owner is Western Auto Supply Company. We have submitted a
recordation of assignment to Laralev to the USPTO.
** Owner is Laralev, however, current recorded owner is Advance Acquisition
Corporation. To the extent the mark is not in use and will not be used it
will become abandoned.
Western Auto Supply Company
Serial Number Registration
Description Registration Number Date
----------- ------------ ------ ----
1. Western Auto 883,524 12/30/69
2. Western Auto 883,548 12/30/69
5. Design Only 555,127 02/19/52
6. Design Only 1,209,010 09/14/82
7. Design Only 1,652,836 08/06/91
Discount Auto Parts, Inc.
Serial Number Registration
Description Registration Number Date
----------- ------------ ------ ----
1 Store Design 75-915,740 11/16/99 Reg. Pending
2 Do It Yourself And Save 76-060,219
3 Store Design 76-060,218 Suspended
12/07/00
DAP Asset Management, Inc.*
Serial Number Registration
Description Registration Number Date
----------- ------------ ------ ----
1 Driving Force Net Yet Filed
2 Stopping Force Net Yet Filed
3 Power Force Net Yet Filed
4 Hydro Force Net Yet Filed
5 Lube Force Net Yet Filed
6 The Place to Start When 75/606,291 Suspended Abandoned
You Need Parts 03/13/00 09/09/01
7 Discount Auto Parts 75/849,398 2,415,619 12/26/00
8 CarCare 101 2,391,747 10/03/00
9 Car Care 101 2,391,746 10/03/00
10 Parts express 75/778,546 2,381,242 08/29/00
11 Spark Force 75/646,744 2,361,786 06/27/00
12 Go With The Pros You Know 1,999,164 09/10/96
13 PRO2CALL 2,228,513 03/02/99
- ----------
* Owner is Advance Merchandising Company, Inc. by virtue of the merger of DAP
Asset Management, Inc. into Advance Merchandising Company, Inc., however,
current recorded owner is DAP Asset Management, Inc.
State Registered Marks
State Marks Ser./Reg. No. Filing/Reg. Date Goods/Services
----------- ------------- ---------------- --------------
Discount Auto Parts Florida Reg. Filed 4/11/80 (15) oils and greases;
922243 Renewed 4/11/90 (23) cutlery,
machinery and tools,
and parts thereof;
(50) merchandise not
otherwise classified
Rose Auto Stores Florida Reg. Filed 03/09/93 Retail/wholesale
T95000000171 services and sale of
automotive parts and
accessories
Driving Home The Florida Reg. Filed 06/13/95 Retail services in the
Savings T95000000733 Automotive Parts Field
Mr. DO-IT Florida Reg. Retail/wholesale
925778 services sale of
automotive parts and
accessories
Design of Smiling T93000000161 Filed 03/09/1993 Retail/wholesale
Man Carrying Tools services sale of
And Walking automotive parts and
accessories
Common Law Marks
Common Law Marks Goods/Services
---------------- --------------
Discount Auto Parts Distributorship services in the field of
automotive parts. The mark is also placed on
a variety of private label automotive parts
Store Design Store design used in connection with
distributorship services in the field of
automotive parts
Car Care 101 Educational Services
Car Care 101 Educational Services
Hydro Force Water Pumps
Power Force Vehicle batteries
Stopping Force Brakes, brake pad, and other related items
Driving Force Belts
WOW Pricing and Design Distributorship services in the field of
automotive parts
Annex 1-A to
the Security Agreement
CASH CONCENTRATION LETTER AGREEMENT dated as of [ ],
2001, among ADVANCE STORES COMPANY, INCORPORATED a Virginia
corporation (the "Borrower"), FIRST UNION NATIONAL BANK, a
national banking corporation (the "Cash Concentration
Bank"), JPMORGAN CHASE BANK, a New York banking corporation
("Chase") as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as defined in the
Security Agreement referred to below).
Reference is made to the Credit Agreement dated as of November
28, 2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, Advance Auto Parts, Inc., a Delaware
corporation ("Holdings"), the lenders from time to time party thereto and Chase,
as administrative agent for the Secured Parties.
A. The Borrower, Holdings, the Subsidiary Guarantors (as
defined therein) (the Subsidiary Guarantors, the Borrower and Holdings being
collectively referred to as the "Grantors") and the Collateral Agent are parties
to a Security Agreement dated as of November 28, 2001 (as amended, supplemented
or otherwise modified from time to time, the "Security Agreement"). Pursuant to
the terms of the Security Agreement, the Grantors have granted to the Collateral
Agent, for the benefit of the Lenders, a security interest in the Grantors=
Accounts and other Collateral, to secure the payment and performance of the
Obligations. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Security Agreement.
B. The Cash Concentration Bank has agreed to act as collection
sub-agent of the Collateral Agent to receive (a) amounts transferred to the Cash
Concentration Account (as defined below) (such amounts, the "Transferred
Receipts") and (b) payments on the Accounts included in the Collateral.
C. The parties hereto desire to define hereunder certain
rights and obligations among them with respect to the appointment of the Cash
Concentration Bank.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
2
1. The Collateral Agent hereby appoints the Cash Concentration
Bank as its collection sub-agent under the Security Agreement and authorizes the
Cash Concentration Bank, on the terms and subject to the conditions set forth
herein, to receive and hold on deposit (a) Transferred Receipts and (b) payments
on the Accounts included in the Collateral.
2. Prior to or contemporaneously with the execution and
delivery by the Cash Concentration Bank of this Agreement, and for the purposes
of this Agreement, the Cash Concentration Bank has established and will (except
as otherwise provided in paragraph 12 below) maintain a cash concentration
account in First Union National Bank (account number 2001000059003) in the name
of the Borrower (the "Cash Concentration Account"). The Cash Concentration Bank
shall deposit in the Cash Concentration Account all Transferred Receipts
received by the Cash Concentration Bank and all payments received by the Cash
Concentration Bank in respect of the Accounts included in the Collateral. The
Cash Concentration Bank agrees to give the Collateral Agent prompt notice if the
Cash Concentration Bank receives notice that the Cash Concentration Account is
subject to any writ, judgment, warrant of attachment, execution or similar
process. As security for the payment and performance of the Obligations, the
Borrower hereby pledges, assigns and transfers to the Cash Concentration Bank,
for the benefit of the Collateral Agent, and hereby creates and grants to the
Cash Concentration Bank, for the benefit of the Collateral Agent, a security
interest in the Cash Concentration Account and all property and assets held
therein. The Cash Concentration Bank acknowledges the security interest of the
Collateral Agent for the benefit of the Lenders in the Cash Concentration
Account.
3. [The Cash Concentration Bank shall transmit all funds, if
any, then on deposit in the Cash Concentration Account at the end of each
Business Day to the cash concentration account maintained by the Borrower
with First Union National Bank (account number 2001000059003); provided that
--------
funds on deposit which are subject to collection shall be transmitted promptly
upon collection.] The Collateral Agent hereby authorizes the Cash Concentration
Bank to permit the Borrower to make withdrawals from the Cash Concentration
Account, so long as the Cash Concentration Bank has not received prior written
notice from the Collateral Agent pursuant to the next succeeding sentence.
Promptly upon receipt of written, telex or telecopy notice from the Collateral
Agent so directing the Cash Concentration Bank at any time (which direction
shall be given by the Collateral Agent only upon the occurrence and
3
during the continuation of an Event of Default and which notice shall be
sent simultaneously to the Borrower), except to the extent and subject to such
terms as may be specified in such notice, the Cash Concentration Bank shall no
longer permit withdrawals from the Cash Concentration Account to be made by the
Borrower without the written consent of the Collateral Agent, and, if so
directed in such notice, shall promptly transmit to the Collateral Agent, at the
office specified in such notice, all funds, if any, then on deposit in the Cash
Concentration Account (provided that funds on deposit that are subject to
collection shall be transmitted promptly upon collection). If so directed in
such notice, the Cash Concentration Bank shall deliver directly to the
Collateral Agent at the office specified in such notice all checks, drafts and
other instruments for the payment of money relating to the Transferred Receipts
or Accounts included in the Collateral in the possession of the Cash
Concentration Bank without depositing such checks, drafts or other instruments
in the Cash Concentration Account.
4. Upon the occurrence and during the continuation of an Event
of Default, the Cash Concentration Bank shall, if requested by the Collateral
Agent, furnish the Collateral Agent with monthly statements, in the form and
manner typical for the Cash Concentration Bank, of amounts on deposit in, and
amounts withdrawn from, the Cash Concentration Account and such other
information relating to the Cash Concentration Account at such times as shall be
reasonably requested by the Collateral Agent.
5. For purposes of this Agreement, any officer of the
Collateral Agent shall be authorized to act, and to give instructions and
notice, for the purposes set forth in this Agreement on behalf of the Collateral
Agent hereunder.
6. The fees for the services of the Cash Concentration Bank
shall be mutually agreed upon between the Borrower and the Cash Concentration
Bank. The Collateral Agent shall not have any responsibility or liability for
the payment of any such fee.
7. The Cash Concentration Bank may perform any of its duties
hereunder by or through its agents, officers or employees and shall be entitled
to rely upon the advice of counsel as to its duties. The Cash Concentration Bank
shall not be liable to the Collateral Agent for any action required of the Cash
Concentration Bank under the terms of this Agreement, if such action was taken
or omitted to be taken by it in the absence of gross negligence or willful
misconduct, nor shall the Cash Concentration Bank be responsible to the
Collateral Agent or the Borrower for the
4
consequences of any oversight or error of judgment or be answerable to the
Collateral Agent for the same unless the same shall happen through its gross
negligence or wilful misconduct.
8. The Borrower consents to the appointment of the Cash
Concentration Bank and agrees that it will not withdraw, or request to withdraw,
funds from the Cash Concentration Account upon the occurrence and during the
continuation of an Event of Default unless such withdrawal is consented to in
writing by the Collateral Agent.
9. The Cash Concentration Bank undertakes to perform only
such duties as are expressly set forth in this Agreement.
10. The Cash Concentration Bank accepts its obligations as set
forth in this Agreement upon the terms and conditions hereof, including the
following, to all of which the Borrower and the Collateral Agent agree:
(a) The Borrower shall promptly pay the Cash Concentration
Bank the compensation, if any, to be mutually agreed upon with the
Borrower for all services rendered by the Cash Concentration Bank in
connection with this Agreement and to reimburse the Cash Concentration
Bank for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Cash Concentration Bank in connection with the services
rendered hereunder by the Cash Concentration Bank.
(b) The Borrower agrees to and does hereby indemnify and hold
harmless the Cash Concentration Bank from and against any loss,
liability, claim, action, cost or expense incurred hereunder or arising
directly from its action as Cash Concentration Bank hereunder, except
for any action or omission caused by its gross negligence or wilful
misconduct (collectively, a "Loss"), as well as the costs and expenses
of defending against any such claim. The Cash Concentration Bank shall
promptly notify the Borrower of the commencement of any claim giving
rise to a potential Loss and of the proceedings relating thereto. The
Borrower may, at its option, undertake to defend any such claim against
the Cash Concentration Bank.
(c) The Cash Concentration Bank may consult with one or more
legal counsel satisfactory to it, and in no event shall it be liable
for action taken, suffered or omitted by it hereunder in good faith and
in accordance with the opinion of such counsel.
5
(d) The Cash Concentration Bank shall be protected from and
shall incur no liability for or in respect of any action taken or
damage suffered by it in reliance upon any certification, notice,
direction, consent, affidavit, statement, or other paper or document
reasonably believed by it to be genuine and to have been presented or
signed by the proper parties, and the Cash Concentration Bank shall be
under no duty whatsoever to inquire into or investigate the
authenticity, validity, accuracy or content of any such item.
(e) The Cash Concentration Bank shall have no responsibility,
and shall incur no liability, with respect to the validity of this
Agreement or any document related hereto.
(f) The Cash Concentration Bank shall not be under any duty to
give the items held by it hereunder any greater degree of care than it
gives its own similar property, shall not, unless separately agreed to
with the Borrower, be required to invest any funds held hereunder, and
shall be under no duty to take any action with respect to the funds
held in the Cash Concentration Account, except to keep the same safe
and to release and deliver same in accordance with this Agreement.
Funds held hereunder shall not earn or accrue interest, unless
separately agreed to with the Borrower. The Cash Concentration Bank's
duties and responsibilities shall be limited to the specific duties
stated in this Agreement.
(g) The Cash Concentration Bank shall act hereunder as a
depository only and shall not be liable or responsible in any manner
for the sufficiency, correctness, genuineness or validity of any
certificate or information delivered to it, or for the identity or
authority of any Person making any deposit hereunder.
11. The Cash Concentration Bank shall be entitled to rely on
the information furnished to it for all purposes in connection with carrying out
its duties and obligations as Cash Concentration Bank hereunder, notwithstanding
any knowledge that the Cash Concentration Bank may have (in any capacity) that
conflicts with the information so provided.
12. (a) The Cash Concentration Bank may at any time resign as
such by giving written notice to the Borrower and the Collateral Agent of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall
-------- -------
6
not be less than 45 days after the date on which such notice is given unless the
Borrower and the Collateral Agent agree to accept less notice.
(b) In the event that the Cash Concentration Bank shall resign
or the Borrower shall replace the Cash Concentration Bank (of which the Borrower
shall notify the Collateral Agent in advance), the Cash Concentration Bank or
the Borrower, as applicable, will (i) immediately upon the effectiveness of such
resignation or replacement transmit to a successor collection subagent (which
may be the Collateral Agent and which, if other than the Collateral Agent, shall
be a Lender and be reasonably acceptable to the Collateral Agent) specified in
writing by the Borrower to the Collateral Agent and the Cash Concentration Bank
(such successor collection sub-agent, the "Successor Cash Concentration Bank"),
at the office specified in writing by the Borrower to the Collateral Agent and
the Cash Concentration Bank, all funds, if any, then on deposit in, or otherwise
to the credit of, the Cash Concentration Account, provided that funds on deposit
--------
which are subject to collection shall be transmitted promptly upon collection,
(ii) deliver directly to the Successor Cash Concentration Bank at the office
specified in writing by the Borrower to the Collateral Agent and the Cash
Concentration Bank all Transferred Receipts and all checks, drafts and other
instruments for the payment of money relating to the Accounts included in the
Collateral in the possession of the Cash Concentration Bank, without depositing
such Transferred Receipts or checks, drafts or other instruments in the Cash
Concentration Account or any other account and (iii) deliver any Transferred
Receipts or payments relating to the Accounts included in the Collateral
received by the Cash Concentration Bank after such replacement, in whatever form
received, directly to the Successor Cash Concentration Bank at the office
specified in writing to the Collateral Agent and the Cash Concentration Bank.
13. The Collateral Agent agrees with the Borrower that it will
provide the Cash Concentration Bank with notice as specified in paragraph 3 of
this Agreement only if an Event of Default has occurred and is continuing under
this Agreement or any other Loan Document.
14. The term of this Agreement shall extend from the date
hereof until the earlier of (a) the date on which all Obligations have been paid
in full and (b) any date on which the Cash Concentration Bank shall not be
serving in its capacity hereunder as provided in paragraph 12 above. The
obligations of the Cash Concentration Bank contained in
7
clause (b)(iii) of paragraph 12 shall survive the termination of this Agreement.
15. All notices and communications hereunder shall be in
writing (except where telephonic instructions or notices are authorized
herein) and shall be deemed to have been received and shall be
effective on the day on which delivered (including delivery by telex or
facsimile) (a) in the case of the Collateral Agent, addressed to
JPMorgan Chase Bank, Loan and Agency Services Group, One Chase
Manhattan Plaza, 8th Floor, New York, New York 10081, to the attention
of Janet Belden (Telecopy No. (212) 552-5658) with a copy to JPMorgan
Chase Bank, 270 Park Avenue, New York, New York 10017, to the attention
of Neil Boylan, (Telecopy No. (212) 552-5658); (b) in the case of the
Cash Concentration Bank, addressed to First Union National Bank, 301 S.
College Street, DC-5, Charlotte, N.C. 28288-0757 to the attention of
[ ] (Telecopy No. (704) 374-3300); and (c) in the case of the
Borrower, addressed to Advance Stores Company, Incorporated, 5673
Airport Road, Roanoke, Virginia 24012 to the attention of Chief
Financial Officer (Telecopy No. (540) 561-1699).
16. The Cash Concentration Bank will not (except as expressly
permitted hereby) assign or transfer any of its rights or obligations hereunder
(other than to the Collateral Agent) without the prior written consent of the
other parties hereto.
17. This Agreement may be amended only by a written instrument
executed by the Collateral Agent, the Cash Concentration Bank and the Borrower,
acting by their representative officers thereunto duly authorized.
18. Except as otherwise provided in the Credit Agreement with
respect to rights of set-off available to the Cash Concentration Bank in the
event that it is also a Lender under the Credit Agreement, the Cash
Concentration Bank hereby irrevocably waives, effective upon the occurrence and
during the continuation of an Event of Default, any right to set-off against, or
otherwise deduct from, any funds then or at any time thereafter held in the Cash
Concentration Account for any indebtedness or other claim then or at any time
thereafter owed by the Borrower to the Cash Concentration Bank.
19. Except to the extent the laws of the state of Virginia
govern the Cash Concentration Account, this
8
Agreement shall be construed in accordance with and governed by the laws of the
State of New York.
20. This Agreement (a) shall inure to the benefit of and be
binding upon the Collateral Agent, the Cash Concentration Bank, the Borrower and
their respective successors and assigns and (b) may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first above
written.
ADVANCE STORES COMPANY, INCORPORATED,
by _________________________________
Title:
JPMORGAN CHASE BANK, as Collateral Agent,
by _________________________________
Title:
FIRST UNION NATIONAL BANK, as Cash
Concentration Bank,
by _________________________________
Title:
Annex 1-B to
the Security Agreement
COLLECTION DEPOSIT LETTER AGREEMENT dated as of [ ],
2001, among ADVANCE STORES COMPANY, INCORPORATED, a
Virginia Corporation (the "Borrower"), JPMORGAN CHASE
BANK, a New York banking corporation ("Chase"), as
collateral agent (the "Collateral Agent") for the Secured
Parties (as defined in the Security Agreement referred to
below) and [ ], a [ ] (the "Collection Deposit Bank").
Reference is made to the Credit Agreement dated as of November
28, 2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, Advance Auto Parts, Inc., a Delaware
corporation ("Holdings"), the Lenders from time to time party thereto and Chase,
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
A. The Borrower, Holdings, the Subsidiary Guarantors (as
defined therein) (the Subsidiary Guarantors, the Borrower and Holdings being
collectively referred to herein as the "Grantors") and the Collateral Agent are
parties to a Security Agreement dated as of November 28, 2001 (the "Security
Agreement"). Pursuant to the terms of the Security Agreement, the Grantors have
granted to the Collateral Agent, for the benefit of the Secured Parties, a
security interest in the Grantors' Accounts and other Collateral, to secure the
payment and performance of the Obligations. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Security Agreement.
B. The Collection Deposit Bank has agreed to receive on behalf
of the Grantors (a) Daily Receipts and (b) payments on the Accounts included in
the Collateral.
C. The parties hereto desire to define hereunder certain
rights and obligations among them with respect to the appointment of the
Collection Deposit Bank.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. The Collateral Agent hereby authorizes the Collection
Deposit Bank, on the terms and subject to the conditions set forth herein, to
receive (a) Daily Receipts and (b) payments on the Accounts included in the
Collateral.
2
2. Contemporaneously with the execution and delivery by the
Collection Deposit Bank of this Agreement, and for the purposes of this
Agreement, the Collection Deposit Bank has established and shall maintain
(except as otherwise provided in paragraph 8 below) for the benefit of the
Collateral Agent upon the occurrence of an Event of Default one or more
collection accounts in the name of the Borrower (all such accounts,
collectively, the "Collection Deposit Account"). All Daily Receipts received by
the Collection Deposit Bank and all payments received by the Collection Deposit
Bank in respect of the Accounts included in the Collateral shall be deposited by
the Borrower in the Collection Deposit Account, and such Daily Receipts and
payments shall not be commingled with other funds of the Borrower. All funds at
any time on deposit in the Collection Deposit Account shall be held by the
Collection Deposit Bank subject to the terms of this Agreement. The Collection
Deposit Bank agrees to give the Collateral Agent prompt notice if the Collection
Deposit Bank receives notice that the Collection Deposit Account is subject to
any writ, judgment, warrant of attachment, execution or similar process. As
security for the payment and performance of the Obligations, the Borrower hereby
pledges, assigns and transfers to the Collection Deposit Bank, for the benefit
of the Collateral Agent, and hereby creates and grants to the Collection Deposit
Bank, for the benefit of the Collateral Agent, a security interest in the
Collection Deposit Account and all property and assets held therein. The
Collection Deposit Bank acknowledges the security interest of the Collateral
Agent for the benefit of the Lenders in the Collection Deposit Account.
3. The Collateral Agent hereby authorizes the Collection
Deposit Bank to permit the Borrower to make withdrawals from the Collection
Deposit Account, so long as the Collection Deposit Bank has not received notice
from the Collateral Agent pursuant to the next succeeding sentence. Upon receipt
of written, telex, facsimile or telephonic notice (which, in the case of
telephonic notice, shall be promptly confirmed in writing) from the Collateral
Agent so directing the Collection Deposit Bank at any time (which direction
shall be given by the Collateral Agent only upon the occurrence and during the
continuation of an Event of Default and which notice shall be sent
simultaneously to the Borrower), except to the extent and subject to such terms
as may be specified in such notice, the Collection Deposit Bank shall no longer
permit withdrawals from the Collection Deposit Account to be made by the
Borrower, and, if so directed in such notice, shall promptly transmit to the
cash concentration account maintained by the Borrower with First Union National
Bank (account number 2001000059003) (the
3
"Borrower Cash Concentration Account") all funds, if any, then on deposit in, or
otherwise to the credit of, the Collection Deposit Account (provided that funds
--------
on deposit that are subject to collection shall be transmitted promptly upon
collection). If so directed in such notice, the Collection Deposit Bank shall
transmit directly to the Borrower Cash Concentration Account all Daily Receipts
and all checks, drafts and other instruments for the payment of money relating
to the Accounts included in the Collateral in the possession of the Collection
Deposit Bank without depositing such Daily Receipts or such checks, drafts or
other instruments in the Collection Deposit Account or any other account.
4. Upon the occurrence and during the continuation of an Event of
Default, the Collection Deposit Bank shall, if requested by the Collateral
Agent, furnish the Collateral Agent with monthly statements, in the form and
manner typical for the Collection Deposit Bank, of amounts of deposits in, and
amounts withdrawn from, the Collection Deposit Account and such other
information relating to the Collection Deposit Account at such times as shall be
reasonably requested by the Collateral Agent.
5. For purposes of this Agreement, any officer of the Collateral Agent
shall be authorized to act, and to give instructions and notice, for the
purposes set forth in this Agreement on behalf of the Collateral Agent
hereunder.
6. The fees for the services of the Collection Deposit Bank shall be
mutually agreed upon between the Borrower and the Collection Deposit Bank. The
Collateral Agent shall not have any responsibility or liability for the payment
of any such fee.
7. The Collection Deposit Bank may perform any of its duties hereunder
by or through its agents, officers or employees and shall be entitled to rely
upon the advice of counsel as to its duties. The Collection Deposit Bank shall
not be liable to the Collateral Agent for any action required of the Collection
Deposit Bank under the terms of this Agreement, if such action was taken or
omitted to be taken by it in good faith, nor shall the Collection Deposit Bank
be responsible to the Collateral Agent or the Borrower for the consequences of
any oversight or error of judgment or be answerable to the Collateral Agent for
the same unless the same shall happen through its gross negligence or willful
misconduct.
8. In the event that the Borrower shall replace the Collection Deposit
Bank (of which the Borrower shall
4
notify the Collateral Agent in advance), the Collection Deposit Bank or the
Borrower, as applicable, will (a) immediately transmit to the Borrower Cash
Concentration Account all funds, if any, then on deposit in, or otherwise to the
credit of, the Collection Deposit Account, (b) deliver directly to the successor
collection deposit bank at the office specified in writing by the Borrower to
the Collateral Agent all subsequently received Daily Receipts and all checks,
drafts and other instruments for the payment of money relating to the Accounts
included in the Collateral that would have been deposited with the Collection
Deposit Bank and (c) deliver any Daily Receipts or payments relating to the
Accounts included in the Collateral by the Collection Deposit Bank after such
replacement, in whatever form received, directly to the successor collection
deposit bank at the office specified in writing by the Borrower to the
Collateral Agent.
9. The Borrower consents to the appointment of the Collection
Deposit Bank and agrees that it will not withdraw, or request to withdraw, funds
from the Collection Deposit Account upon the occurrence and during the
continuation of an Event of Default unless such withdrawal is consented to in
writing by the Collateral Agent. The Borrower acknowledges that the Collection
Deposit Bank shall incur no liability to the Borrower as a result of any action
taken pursuant to an instruction given by the Collateral Agent in accordance
with the provisions of this Agreement.
10. The Collateral Agent agrees that it will provide the
Collection Deposit Bank with notice as specified in paragraph 3 of this
Agreement only if an Event of Default has occurred and is continuing under this
Agreement or any other Loan Document.
11. The term of this Agreement shall extend from the date
hereof until the earlier of (a) the date on which all Obligations and (b) any
date on which the Collection Deposit Bank shall not be serving in its capacity
as collection deposit bank hereunder as provided in paragraph 8 above. The
obligations of the Collection Deposit Bank contained in the third sentence of
paragraph 8 shall survive the termination of this Agreement.
12. All notices and communications hereunder shall be in
writing (except where telephonic instructions or notices are authorized herein)
and shall be deemed to have been received and shall be effective on the day on
which delivered (including delivery by telex or facsimile) (a) in the case of
the Collateral Agent, addressed to JPMorgan Chase Bank, Loan and Agency Services
Group, One Chase
5
Manhattan Plaza, 8th Floor, New York, New York 10081, to the attention of Janet
Belden (Telecopy No. (212) 552-5658) with a copy to JPMorgan Chase Bank, 270
Park Avenue, New York, New York 10017, to the attention of Neil Boylan,
(Telecopy No. (212) 552-5658), and (b) in the case of the Collection Deposit
Bank, addressed to [ ], to the attention of [ ].
13. The Collection Deposit Bank will not (except as
contemplated in paragraph 8 above) assign or transfer any of its rights or
obligations hereunder (other than to the Collateral Agent) without the prior
written consent of the other parties hereto.
14. This Agreement may be amended only by a written instrument
executed by the Collateral Agent, the Collection Deposit Bank and the Borrower,
acting by their representative officers thereunto duly authorized.
15. Except as otherwise provided in the Credit Agreement with
respect to rights of set-off available to the Collection Deposit Bank in the
event that it is also a Lender under the Credit Agreement, the Collection
Deposit Bank hereby irrevocably waives, effective upon the occurrence and during
the continuation of an Event of Default, any right to set-off against, or
otherwise deduct from, any funds (with the exception of service fees and
deposited items which have been returned) then or at any time thereafter held in
the Collection Deposit Account for any indebtedness or other claim then or at
any time thereafter owed by the Borrower to the Collection Deposit Bank.
16. Except to the extent the laws of the state of [ ]
govern the Collection Deposit Account, this Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
17. This Agreement (a) shall inure to the benefit of and be
binding upon the Collateral Agent, the Collection Deposit Bank, the Borrower and
their respective successors and assigns and (b) may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
ADVANCE STORES COMPANY INCORPORATED,
by
____________________________________
Title:
JPMORGAN CHASE BANK, as Collateral Agent,
by ____________________________________
Title:
[ ],
as Collection Deposit Bank,
by
____________________________________
Title:
Annex 2 to the
Security Agreement
[Form Of]
PERFECTION CERTIFICATE
Reference is made to (a) the Credit Agreement dated as of November 28,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Advance Auto Parts, Inc. ("Holdings"), Advance Stores
---------------- --------
Company, Incorporated (the "Borrower"), the lenders from time to time party
--------
thereto (the "Lenders"), JPMorgan Chase Bank, as administrative agent for the
-------
Lenders, Collateral Agent and issuing bank, Credit Suisse First Boston, as
syndication agent, and Lehman Commercial Paper Inc., as syndication agent, (b)
the Guarantee Agreement dated as of November 28, 2001, among the Subsidiary
Guarantors (as defined therein), Holdings and the Collateral Agent and (c) the
Security Agreement dated as of November 28, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Security Agreement"), among the
------------------
Borrower, Holdings, the Subsidiary Guarantors and the Collateral Agent. All
capitalized terms used but not defined herein shall have the meanings given such
terms in the Credit Agreement or the Security Agreement, as applicable.
The undersigned, a Financial Officer of Borrower, hereby certifies to
the Collateral Agent and each other Secured Party as follows:
1. Names. (a) The exact corporate name of each Grantor, as such name
appears in its respective certificate of incorporation, is as follows:
(b) Set forth below is each other corporate name each Grantor has had
in the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers, consolidations
and acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, include in Schedule 1
the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names
or similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years:
2
(e) Set forth below is the Federal Taxpayer Identification Number of
each Grantor:
(f) Set forth below is the organizational number of each Grantor that
is a registered organization:
2. Current Locations. (a) The chief executive office of each Grantor
is located at the address set forth opposite its name below:
Grantor Mailing Address County State
- ------- --------------- ------ -----
(b) Set forth below opposite the name of each Grantor are all
locations where such Grantor maintains any books or records relating to any
Accounts (with each location at which chattel paper, if any, is kept being
indicated by an "*"):
Grantor Mailing Address County State
- ------- --------------- ------ -----
(c) The jurisdiction of formation of each Grantor that is a registered
organization is set forth opposite its name below:
Grantor Jurisdiction
- ------- ------------
(d) Set forth below opposite the name of each Grantor are all the
places of business of such Grantor not identified in paragraph (a), (b) or (c)
above:
Grantor Mailing Address County State
- ------- --------------- ------ -----
(e) Set forth below opposite the name of each Grantor are all the
locations where such Grantor maintains any Collateral not identified above:
Grantor Mailing Address County State
- ------- --------------- ------ -----
3
(f) Set forth below opposite the name of each Grantor are the names and
addresses of all Persons other than such Grantor
that have possession of any of the Collateral of such Grantor:
Grantor Mailing Address County State
- ------- --------------- ------ -----
3. Unusual Transactions. All Accounts have been originated by the
Grantors and all Inventory has been acquired by the Grantors in the ordinary
course of business.
4. File Search Reports. File search reports have been obtained from
each Uniform Commercial Code filing office identified with respect to such
Grantor in Section 2 hereof, and such search reports reflect no liens against
any of the Collateral other than those permitted under the Credit Agreement.
5. UCC Filings. Duly [authenticated] [signed] financing statements on
Form UCC-1 in substantially the form of Schedule 5 hereto have been prepared for
filing in the Uniform Commercial Code filing office in each jurisdiction
identified with respect to such Grantor in [Section 2] [Section 2(a) or 2(b)]
hereof.
6. Schedule of Filings. Attached hereto as Schedule 5 is a schedule
setting forth, with respect to the filings described in Section 5 above, each
filing and the filing office in which such filing is to be made.
7. Filing Fees. All filing fees and taxes payable in connection with
the filings described in Section 5 above have been or will be paid.
8. Stock Ownership. Attached hereto as Schedule 8 is a true and
correct list of all the duly authorized, issued and outstanding stock,
partnership interests, limited liability company membership interests or other
equity interests in the Borrower and of each Subsidiary and the record and
beneficial owners of such stock, partnership interests, limited liability
company membership interests or other equity interests. Also set forth on
Schedule 8 is each equity investment of Holdings and each Subsidiary that
represents 50% or less of the equity of the entity in which such investment was
made.
9. Debt Indebtedness. Attached hereto as Schedule 9 is a true and
correct list of all instruments, including promissory notes and other evidence
of indebtedness, held by
4
Holdings and each Subsidiary, including all intercompany notes between Holdings
and each Subsidiary of Holdings and between each Subsidiary of Holdings and each
other such Subsidiary.
10. Advances. Attached hereto as Schedule 10 is (a) a true and correct
list of all advances made by Holdings to any Subsidiary of Holdings or made by
any Subsidiary of Holdings to Holdings or any other Subsidiary of Holdings,
which advances will be on and after the date hereof evidenced by one or more
intercompany notes pledged to the Collateral Agent under the Pledge Agreement,
and (b) a true and correct list of all unpaid intercompany transfers of goods
sold and delivered by or to Holdings or any Subsidiary of Holdings.
11. Mortgage Filings. Attached hereto as Schedule 11 is a schedule
setting forth, with respect to each Mortgaged Property, (a) the exact corporate
name of the corporation that owns such property as such name appears in its
certificate of incorporation, (b) if different from the name identified pursuant
to clause (a), the exact name of the current record owner of such property
reflected in the records of the filing office for such property identified
pursuant to the following clause and (c) the filing office in which a Mortgage
with respect to such property must be filed or recorded in order for the
Collateral Agent to obtain a perfected security interest therein.
12. Intellectual Property. Attached hereto as Schedule 12(A) in
----------------------
proper form for filing with the United States Patent and Trademark Office is a
schedule setting forth all of each Grantor's Patents, Patent Licenses,
Trademarks and Trademark Licenses, including the name of the registered owner,
the registration number and the expiration date of each Patent, Patent License,
Trademark and Trademark License owned by any Grantor. Attached hereto as
Schedule 12(B) in proper form for filing with the United States Copyright Office
is a schedule setting forth all of each Grantor's Copyrights and Copyright
Licenses, including the name of the registered owner, the registration number
and the expiration date of each Copyright or Copyright License owned by any
Grantor.
13. Commercial Tort Claims. Attached hereto as Schedule 13 is a true
-----------------------
and correct list of commercial tort claims held by any Grantor, including a
brief description thereof.
5
IN WITNESS WHEREOF, the undersigned has duly executed this certificate on
this 28th day of November 2001.
ADVANCE STORES COMPANY, INCORPORATED,
by
_______________________________
Name:
Title:[Financial Officer]
Annex 3 to the
Security Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the
Security Agreement dated as of November 28, 2001,
among ADVANCE STORES COMPANY, INCORPORATED, a
Virginia corporation (the "Borrower"), ADVANCE AUTO
PARTS, INC., a Delaware corporation ("Holdings"),
each subsidiary of the Borrower listed on Schedule I
thereto (each such subsidiary individually a
"Subsidiary Guarantor" and collectively, the
"Subsidiary Guarantors"; the Subsidiary Guarantors,
Holdings and the Borrower are referred to
collectively herein as the "Grantors") and JPMORGAN
CHASE BANK, a New York banking corporation ("Chase"),
as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined therein).
A. Reference is made to (a) the Credit Agreement dated as of November
28, 2001 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, Holdings, the lenders from time to time
party thereto (the "Lenders"), Chase, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), Collateral Agent and as issuing
bank (in such capacity, the "Issuing Bank"), Credit Suisse First Boston, as
syndication agent, and Lehman Commercial Paper Inc., as syndication agent, and
(b) the Guarantee Agreement dated as of November 28, 2001 (as amended,
supplemented or otherwise modified from time to time, the "Guarantee
Agreement"), among the Subsidiary Guarantors, Holdings and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement or the Credit
Agreement, as applicable.
C. The Grantors have entered into the Security Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Section 7.15 of Security Agreement provides that additional Subsidiaries
of Holdings may become Grantors under the Security Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "New Grantor") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Grantor under the Security
Agreement in order to induce the Lenders to make additional Loans and the
Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
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Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 7.15 of the Security Agreement,
the New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as a
Grantor, and the New Grantor hereby (a) agrees to all the terms and provisions
of the Security Agreement applicable to it as a Grantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Grantor, as security for the payment and
performance in full of the Obligations (as defined in the Security Agreement),
does hereby create and grant to the Collateral Agent, its successors and
assigns, for the benefit of the Secured Parties, their successors and assigns, a
security interest in and lien on all of the New Grantor's right, title and
interest in and to the Collateral (as defined in the Security Agreement) of the
New Grantor. Each reference to a "Grantor" in the Security Agreement shall be
deemed to include the New Grantor. The Security Agreement is hereby incorporated
herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor other than Collateral (i)
consisting of goods in transit between facilities, whether in vehicles owned by
the applicable Grantor or on common carriers and (ii) located in temporary
warehousing which will remain in such warehousing for no longer than one month
and (b) set forth under its signature hereto, is the true and correct location
of the
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chief executive office of the New Grantor and its jurisdiction of formation.
SECTION 5. Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
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IN WITNESS WHEREOF, the New Grantor and the Collateral Agent
have duly executed this Supplement to the Security Agreement as of the day and
year first above written.
[Name of New Grantor]
by
______________________________
Name:
Title:
Address:
JPMORGAN CHASE BANK, as
Collateral Agent,
by
______________________________
Name:
Title:
SCHEDULE I
to Supplement No. [ ] to the
Security Agreement
LOCATION OF COLLATERAL
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Description Location
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