Exhibit 10.2
SUPPLEMENTAL SECURITY AGREEMENT
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SUPPLEMENTAL SECURITY AGREEMENT, dated as of October 31, 2000, by WILSONS
LEATHER HOLDINGS INC., a Minnesota corporation ("Borrower") and the other
grantors listed on the signature pages hereto (collectively "Grantors"), in
favor of GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, in its
capacity as Agent for Lenders.
W I T N E S S E T H:
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WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement dated as of the date hereof (including all appendices, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "CREDIT AGREEMENT") by and among Borrower (and certain
of Borrower's corporate Affiliates), Agent and Lenders, Lenders have agreed to
continue to make the Loans and to incur Letter of Credit Obligations and
Eligible Trade L/C Obligations on behalf of Borrower;
WHEREAS, pursuant to Guaranties dated May 25, 1996 (the "Guaranties")
entered into by the Grantors (other than Borrower) in favor of Agent for the
benefit of Lenders, such other Grantors have guaranteed payment of Borrower's
Obligations under the Credit Agreement;
WHEREAS, pursuant to (i) a Security Agreement dated as of May 25, 1996,
(ii) a Supplemental Security Agreement dated May 24, 1999 and (iii) various
additional Supplemental Security Agreements and Joinders, various of the
Grantors granted to Agent a security interest in the Collateral in which they
had an interest (collectively the "Prior Security Agreements");
WHEREAS, pursuant to Joinder Agreements, various Store Guarantors formed or
acquired after May 25, 1996, have joined in and become parties to the
Guaranties;
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations and Eligible Trade L/C Obligations as provided for
in the Credit Agreement, but only upon the condition, among others, that
Grantors shall have executed and delivered this Supplemental Security Agreement
to Agent, for itself and the ratable benefit of Lenders;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantors hereby agree as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meaning given to them in the Credit Agreement or in SCHEDULE A
thereto. All other undefined terms contained in this Supplemental Security
Agreement, unless the context indicates otherwise, have the meanings provided
for by Article 9 of the Commercial Code as in effect in the State of Illinois
(the "CODE") to the extent the same are used or defined therein.
2. GRANT OF SECURITY INTEREST.
(a) Grantors hereby reaffirm the grants of security interests in the
Collateral given by the Grantors pursuant to the Prior Security Agreements,
as amended, and as a supplement to, rather than a substitution for, those
prior grants of security interests and to secure the prompt and complete
payment, performance and observance of all of the Obligations, and to
induce Agent and Lenders to enter into the Credit Agreement and to make the
Loans and incur Letter of Credit Obligations and Eligible Trade L/C
Obligations as provided for therein in accordance with the terms and
conditions thereof, each Grantor hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to Agent, for itself and the
ratable benefit of Lenders, a security interest in its right, title and
interest in, to and under the following, whether now owned by or owing to,
or hereafter acquired by or arising in favor of such Grantor (including
under any trade names, styles or derivations thereof), and whether owned or
consigned by or to, or leased from or to, such Grantor, and regardless of
where located (all of which being hereinafter collectively referred to as
the "COLLATERAL"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all deposit accounts now or hereafter established by
Borrower, all cash deposited therein from time to time and all other
monies, cash, cash equivalents and property of Borrower or any other
Grantor in the possession or under the control of Agent or any
Lenders;
(v) all Documents;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks and related data processing software
that at any time evidence or contain information relating to any of
the property described in (i) through (ix) above or are otherwise
necessary or helpful in the collection thereof or realization thereon;
and
(xi) all Proceeds of and all accessions to, substitutions and
replacements for, and rents, profits and products of all or any of the
property described in (i) through (x) above.
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(b) In addition, to secure the prompt and complete payment,
performance and observance of the Obligations and in order to induce Agent
and Lenders as aforesaid, each Grantor hereby grants to Agent, for itself
and the ratable benefit of Lenders, a security interest in the property of
such Grantor held by Agent or any Lender, consisting of property described
above in SECTION 2(A) now or hereafter in the possession or custody of or
in transit to Agent or any Lender, for any purpose, including safekeeping,
collection or pledge, for the account of such Grantor, or as to which such
Grantor may have any right or power.
3. AGENT'S AND LENDER'S RIGHTS; LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
(a) It is expressly agreed by each Grantor that, anything herein to
the contrary notwithstanding, each Grantor shall remain liable under each
of its Contracts and each of its Licenses to observe and perform all the
conditions and obligations to be observed and performed by it thereunder.
Neither Agent nor any Lender shall have any obligation or liability under
any Contract or License by reason of or arising out of this Supplemental
Security Agreement or the granting herein of a security interest therein or
the receipt by Agent or any Lender of any payment relating to any Contract
or License pursuant hereto. Neither Agent nor any Lender shall be required
or obligated in any manner to perform or fulfill any of the obligations of
any Grantor under or pursuant to any Contract or License, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party
under any Contract or License, or to present or file any claims, or to take
any action to collect or enforce any performance or the payment of any
amounts which may have been assigned to it or to which it may be entitled
at any time or times.
(b) Agent may at any time after an Event of Default shall have
occurred and be continuing, immediately upon notice to Borrower, notify
Account Debtors, parties to the Contracts and obligors in respect of
Instruments and Chattel Paper, that the Accounts and the right, title and
interest of each Grantor in and under such Contracts, Instruments and
Chattel Paper have been assigned to Agent, for itself and the ratable
benefit of Lenders, and that payments shall be made directly to Agent, for
itself and the ratable benefit of Lenders. Upon the request of Agent, if an
Event of Default shall have occurred and is continuing, each Grantor shall
so notify Account Debtors, parties to Contracts and obligors in respect of
Instruments and Chattel Paper.
(c) Subject to the limitations contained in the Credit Agreement,
Agent shall have the right to make test verifications of the Accounts and
physical verifications and appraisals of the Inventory and other
Collateral, at Borrower's expense in any manner and through any medium that
it considers advisable, and each Grantor agrees to furnish all such
information and assistance as Agent may require in connection therewith.
Agent may at any time in Agent's own name (on behalf of itself and
Lenders), or in the name of a Grantor communicate with Account Debtors,
parties to Contracts, obligors in respect of Instruments and obligors in
respect of Chattel Paper to verify with such Persons, to Agent's
satisfaction, the existence, amount and terms of any such Accounts,
Contracts, Instruments or Chattel Paper. If an Event of Default shall have
occurred and be continuing, Borrower or Ultimate Parent Parent, at their
own expense, shall cause the
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certified independent public accountants then engaged by Borrower or
Ultimate Parentrent to prepare and deliver to Agent at any time and from
time to time promptly upon Agent's request (on behalf of itself and
Lenders), the following reports with respect to each Grantor: (i) a
reconciliation of all Accounts; (ii) an aging of all Accounts; (iii) trial
balances; (iv) a test verification of such Accounts as Agent may request;
and (v) a summary of all intercompany accounts. Each Grantor, at its own
expense, shall deliver to Agent the results of each physical verification,
if any, which such Grantor may in its discretion have made, or caused any
other Person to have made on its behalf, of all or any portion of its
Inventory.
4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants
that:
(a) Each Grantor is the sole owner of each item of the Collateral in
which it purports to grant a security interest hereunder, and has good and
marketable title thereto free and clear of any and all Liens other than
Permitted Encumbrances.
(b) No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any
part of the Collateral is on file or of record in any public office, except
such as may have been filed (i) by a Grantor in favor of Agent, for itself
and the ratable benefit of Lenders, pursuant to the Prior Security
Agreements or this Supplemental Security Agreement, (ii) in connection with
any other Permitted Encumbrances; and (iii) to evidence Borrower's interest
as Consignor under the Consignment Agreement.
(c) The Prior Security Agreements, as supplemented by this
Supplemental Security Agreement are effective to create a valid and
continuing Lien on and, upon the filing of the appropriate financing
statements listed on SCHEDULE I hereto, a perfected security interest in
favor of Agent, for itself and the ratable benefit of Lenders, in the
Collateral with respect to which a security interest may be perfected by
filing pursuant to the Code. That Lien is prior to all other Liens, except
Permitted Encumbrances that would be prior to Liens in favor of Agent for
the benefit of Agent and Lenders as a matter of law, and is enforceable as
such as against any and all creditors of and purchasers from any Grantor
(other than purchasers of Inventory in the ordinary course of business).
All actions by each Grantor necessary or desirable to protect and perfect
such security interest in each item of the Collateral have been duly taken.
(d) SCHEDULE II hereto lists all Instruments (other than certificated
securities) and Chattel Paper of each Grantor outstanding on the date
hereof. All actions by each Grantor necessary or desirable to protect and
perfect the security interest of Agent, for the benefit of Agent and
Lenders, in each item set forth on SCHEDULE II (including the delivery of
all originals thereof to Agent (or to a bank or other Person acting as
agent for Agent) and the legending of all Chattel Paper as required by
SECTION 5(B) hereof) has been duly taken. The security interest of Agent,
for the benefit of Agent and Lenders, in the Collateral listed on SCHEDULE
II hereto is prior to all other Liens, except Permitted Encumbrances, and
is enforceable as such against any and all creditors of and purchasers from
each Grantor.
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(e) Each Grantor's chief executive office, principal place of
business, corporate offices, all warehouses and premises where Collateral
is stored or located, and the locations of all of its books and records
concerning the Collateral are set forth on SCHEDULE III-A hereto.
(f) With respect to the Accounts, (i) they represent bona fide sales
of Inventory or rendering of services to Account Debtors in the ordinary
course of any Grantor's business completed in accordance with the terms and
provisions contained in the documents available to Agent with respect
thereto and are not evidenced by a judgment, instrument or Chattel Paper;
(ii) the amounts shown on such deliveries to Agent and on such records and
all invoices, statements and Collateral Reports which may be delivered to
the Agent with respect thereto are actually and absolutely owing to any
Grantor as indicated thereon and are not in any way contingent and (iii) no
payments have been or shall be made thereon except payments immediately
delivered to the applicable Grantor's account and transferred to Borrower's
Concentration Account or the Agent as required pursuant to the terms of
SCHEDULE E to the Credit Agreement.
(g) With respect to any Eligible Inventory, (i) such Inventory is
located at one of the applicable Grantor's locations set forth on SCHEDULE
III-A hereto or constitutes Eligible In-Transit Inventory, (ii) no
Inventory is now, or shall at any time or times hereafter be stored with a
bailee, warehouseman or similar party without Agent's prior consent, and if
Agent gives such consent, each Grantor will concurrently therewith cause
any such bailee, warehouseman or similar party to issue and deliver to
Agent in form and substance acceptable to Agent, warehouse receipts
therefor in Agent's name, (iii) each Grantor has good, indefeasible and
merchantable title to such property and such property is not subject to any
Lien or security interest or document whatsoever except for the perfected,
first priority security interest granted to Agent, for the benefit of Agent
and Lenders, hereunder, and except for Permitted Encumbrances, (iv) except
as specifically disclosed in a Collateral Report delivered to Agent, such
Inventory is Eligible Inventory of good and merchantable quality, free from
any defects, (v) such property is not subject to any licensing, patent,
royalty, trademark, trade name or copyright agreements with any third
parties which would require any consent of any third party upon sale or
disposition of that Inventory or the payment of any monies to any third
party as a precondition of such sale or other disposition, and (vi) the
completion of manufacture, sale or other disposition of such property by
Agent following an Event of Default shall not require the consent of any
Person and shall not constitute a breach or default under any contract or
agreement to which any Grantor is a party or to which such property is
subject. No Inventory shall be moved to any location not listed on SCHEDULE
III-A or disclosed to Agent in advance. No Inventory shall be moved to any
location which would cause Agent to lose its perfected security interest
therein, except that up to 3% of Borrower's finished goods inventory at any
time may be on consignment with retailers other than Store Guarantors. As
to kiosks, holiday stores and other temporary sales locations, Grantors
shall not cause or permit such sales locations (i) to be operated by any
entity other than a Person that is a Grantor hereunder and a party to the
Consignment Agreement with Borrower, or (ii) to be operated in a
jurisdiction in which an effective UCC- I consignment filing in favor of
Borrower (and assigned to Agent) and an effective UCC- 1 filing in favor of
Agent, in each case signed by the applicable Grantor, are not on file in
the appropriate filing offices.
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(h) No Grantor owns any Trademark which is registered or pending in
the United States Patent Office and which is material to its business
except as set forth in SCHEDULE IV hereto. The Prior Security Agreements,
as supplemented by this Supplemental Security Agreement are effective to
create a valid and continuing Lien on and, upon filing of the Trademark
Security Agreements with the United States Patent and Trademark Office,
perfected security interests in favor of Agent, for itself and the ratable
benefit of Lenders, in each Grantor's Trademarks which are registered or
pending in such office, and such perfected security interests are
enforceable as such as against any and all creditors of and purchasers from
each Grantor. Upon filing of the Trademark Security Agreements with the
United States Patent and Trademark Office, and upon filing financing
statements under the Code with respect to General Intangibles, all action
necessary or desirable to protect and perfect Agent's security interest in
each Grantor's Trademarks shall have been duly taken. The foregoing shall
apply only to those Grantors that own Trademarks.
5. COVENANTS. Each Grantor covenants and agrees with Agent, for the benefit
of Agent and Lenders, that from and after the date of this Supplemental Security
Agreement and until the Termination Date:
(a) FURTHER ASSURANCES; PLEDGE OF INSTRUMENTS. At any time and from
time to time, upon the written request of Agent and at the sole expense of
each Grantor, such Grantor shall promptly and duly execute and deliver any
and all such further instruments and documents and take such further
actions as Agent may deem desirable to obtain the full benefits of this
Supplemental Security Agreement and of the rights and powers herein
granted, including (i) using its reasonable efforts to secure all consents
and approvals necessary or appropriate for the assignment to or for the
benefit of Agent, for itself and the ratable benefit of Lenders, of any
License or Contract held by such Grantor or in which such Grantor has any
rights not heretofore assigned, (ii) filing any financing or continuation
statements under the Code with respect to the Liens and security interests
granted hereunder or under any other Loan Document, (iii) transferring
Collateral to Agent's possession (for the benefit of Agent and Lenders) if
such Collateral consists of Chattel Paper, Instruments or if a security
interest in such Collateral can be perfected only by possession, or if
requested by Agent, and (iv) using its reasonable efforts to obtain waivers
of Liens, if any exist, from landlords and mortgagees, but only to the
extent required by the Credit Agreement. Each Grantor also hereby
authorizes Agent, for itself and the ratable benefit of Lenders, to file
any such financing or continuation statements without the signature of any
Grantor to the extent permitted by applicable law. If any amount payable
under or in connection with any of the Collateral is or shall become
evidenced by any Instrument, such Instrument, other than checks and notes
received in the ordinary course of business, shall be duly endorsed in a
manner satisfactory to Agent immediately upon a Grantor's receipt thereof.
(b) MAINTENANCE OF RECORDS. Each Grantor shall keep and maintain, at
its own cost and expense, satisfactory and complete records of the
Collateral, including a record of any and all payments received and any and
all credits granted with respect to the Collateral and all other dealings
with the Collateral. Each Grantor shall xxxx its books and records
pertaining to the Collateral to evidence the Prior Security Agreements, as
supplemented by this Supplemental Security Agreement and the security
interests granted hereby. All Chattel Paper shall be marked
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with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of General Electric
Capital Corporation, as Agent, for the benefit of itself as a Lender and
certain other Lenders." For Agent's further security, each Grantor agrees
that Agent, for itself and the ratable benefit of Lenders, shall have a
special property right and security interest in all of each Grantor's books
and records pertaining to the Collateral and, upon the occurrence and
during the continuance of any Event of Default, each Grantor shall deliver
and turn over any such books and records to Agent or to its representatives
at any time on demand of Agent. Prior to the occurrence of a Default or
Event of Default and upon notice from Agent, each Grantor shall permit any
representative of Agent to inspect such books and records and shall provide
photocopies thereof to Agent, for the benefit of Agent and Lenders, as more
specifically set forth in SECTION 5(C) below.
(c) RIGHT OF INSPECTION. Subject to the limitations contained in the
Credit Agreement, upon reasonable notice to Borrower, Agent and its
employees, officers, agents and representatives shall have the right (and
without any notice to any Grantor upon the occurrence and during the
continuance of any Event of Default) to enter into and upon any premises
where any of the Inventory or other Collateral is located for the purpose
of inspecting the same, observing its use or otherwise protecting Agent's
interests (for the benefit of Agent and Lenders) in the Collateral.
(d) CONTINUOUS PERFECTION. No Grantor shall change its chief executive
office, principal place of business, corporate offices, or warehouses or
other Collateral locations, or remove any such Books and Records from such
locations, other than in compliance with SECTION 6.15 of the Credit
Agreement. In addition, no Grantor shall change its name, identity or
corporate structure in any manner which might make any financing or
continuation statement filed in connection herewith seriously misleading
within the meaning of SECTION 9.402(7) of the Code or any other then
applicable provision of the Code except in compliance with the provisions
of SECTION 6.15 of the Credit Agreement.
(e) COVENANTS REGARDING TRADEMARK COLLATERAL.
(i) Borrower shall notify Agent immediately if it knows that any
application or registration relating to any Trademark material to its
business (now or hereafter existing) may become abandoned, 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 or any court) regarding any
Grantor's ownership of any Trademark material to its business, its
right to register the same, or to keep and maintain the same.
(ii) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for the
registration of any Trademark with the United States Patent and
Trademark Office or any similar office or agency without giving Agent
written notice thereof within twenty (20) days of such filing, and,
upon request of Agent, such Grantor shall execute and deliver any and
all Trademark Security Agreements as Agent may request to evidence
Agent's security interest (for the benefit of
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Agent and Lenders) in such Trademark and the General Intangibles of
any Grantor relating thereto or represented thereby.
(iii) Each Grantor shall take all actions that such Grantor
determines, in its reasonable business judgment, are necessary to
register, protect, maintain and enforce each of the Trademarks that
are material to its business.
(f) INDEMNIFICATION. In any suit, proceeding or action brought by
Agent or any Lender relating to any Account, Chattel Paper, Contract,
Document, General Intangible or Instrument for any sum owing thereunder or
to enforce any provision of any Account, Chattel Paper, Contract, Document,
General Intangible or Instrument, Grantors, jointly and severally, will
save, indemnify and keep Agent and Lenders harmless from and against all
expense, loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the
obligor thereunder, arising out of a breach by any Grantor of any
obligation thereunder or arising out of any other agreement, indebtedness
or liability at any time owing to, or in favor of, such obligor or its
successors from any Grantor, except in the case of Agent or any Lender, to
the extent such expense, loss, or damage is attributable solely to the
gross negligence or willful misconduct of Agent or such Lender as finally
determined by a court of competent jurisdiction. All such obligations of
Grantors shall be and remain enforceable against and only against Grantors
and shall not be enforceable against Agent or any Lender.
(g) COMPLIANCE WITH TERMS OF ACCOUNTS. ETC. In all material respects,
each Grantor will perform and comply with all obligations in respect of its
Accounts, Chattel Paper, Contracts and Licenses and all other agreements to
which it is a party or by which it is bound relating to the Collateral.
(h) LIMITATION ON LIENS ON COLLATERAL. Grantors will not create,
permit or suffer to exist, and each Grantor will defend the Collateral
against, and take such other action as is necessary to remove, any Lien on
the Collateral except Permitted Encumbrances, and will defend the right,
title and interest of Agent and Lenders in and to any of such Grantor's
rights in the Collateral against the claims and demands of all Persons
whomsoever.
(i) LIMITATIONS ON MODIFICATIONS OF ACCOUNTS. Each Grantor shall
promptly notify Agent if such Grantor grants any extension of the time of
payment of any of the Accounts, Chattel Paper or Instruments or
compromises, compounds or settles the same for less than the full amount
thereof, or if such Grantor releases, wholly or partly, any Person liable
for the payment thereof, or allows any credit or discount whatsoever
thereon, in each case, other than any such action taken in the ordinary
course of business of such Grantor.
(j) LIMITATIONS ON DISPOSITION. No Grantor will sell, lease, transfer
or otherwise dispose of any of the Collateral, or attempt or contract to do
so except as permitted by the Credit Agreement.
(k) NOTICES. Each Grantor will advise Agent promptly, in reasonable
detail, (i) of any Lien (other than Permitted Encumbrances) made or
asserted against any of the Collateral,
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and (ii) of the occurrence of any other event which would have a material
adverse effect on the aggregate value of the Collateral or on the security
interests created hereunder.
6. AGENTS APPOINTMENT AS ATTORNEY-IN-FACT.
(a) Each Grantor hereby irrevocably constitutes and appoints Agent,
and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of any Grantor and in the name of such Grantor or in
its own name, from time to time in Agent's sole discretion for the purpose
of carrying out the terms of this Supplemental Security Agreement, to take
any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish
the purposes of this Supplemental Security Agreement and, without limiting
the generality of the foregoing, hereby grants to Agent, the power and
right, on behalf of each Grantor, without notice to or assent by any
Grantor except as otherwise specifically provided for herein or in the
Credit Agreement, and at any time, to do the following (provided, however,
that Agent may only take the actions in CLAUSES (I), (III). (IV), (VI) AND
(VII) THROUGH (XIV) so long as any Event of Default shall have occurred and
be continuing):
(i) in the name of each Grantor, in its own name or otherwise,
take possession of, endorse and receive payment of any checks, drafts,
notes, acceptances, or other Instruments for the payment of monies due
under any Collateral;
(ii) upon Grantor's failure to maintain the insurance required by
the Credit Agreement, continue any insurance existing pursuant to the
terms of this Supplemental Security Agreement, the Credit Agreement or
any other Loan Document, and pay all or any part of the premiums
therefor and the costs thereof;
(iii) receive payment of any and all monies, claims, and other
amounts due or to become due at any time arising out of or in respect
of any Collateral;
(iv) ask, demand, collect, receive and give acquittances and
receipts for any and all money due or to become due under any
Collateral;
(v) upon Grantor's failure to take any such action when required
under the Credit Agreement, pay or discharge taxes, Liens, security
interests or other encumbrances levied or placed on or threatened
against the Collateral to the extent that any such action may be
necessary or desirable to protect or preserve the Collateral or the
first priority, perfected security interest of Agent, in the
Collateral;
(vi) effect any repairs;
(vii) direct any party liable for any payment under or in respect
of any of the Collateral to make payment of any and all monies due or
to become due thereunder, directly to Agent or as Agent shall direct;
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(viii) sign and endorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with
Accounts and other documents constituting or related to the
Collateral.
(ix) settle, compromise or adjust any suit, action, or proceeding
described herein and, in connection therewith, give such discharges or
releases as Agent may deem appropriate;
(x) file any claim or take or commence any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by Agent for the purpose of collecting any and all such
monies due under any Collateral whenever payable;
(xi) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any part thereof and to enforce any other right in
respect of any Collateral;
(xii) defend any suit, action or proceeding brought against any
Grantor with respect to any Collateral if such Grantor does not defend
such suit, action or proceeding or if Agent believes that such Grantor
is not pursuing such defense in a manner that will maximize the
recovery with respect to such Collateral;
(xiii) license or, to the extent permitted by an applicable
license, sublicense whether general, specific or otherwise, and
whether on an exclusive or non-exclusive basis, any Trademark for such
consideration and on such terms and conditions and in such manner as
Agent shall, in its sole discretion, determine; and
(xiv) sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely
as though Agent were the absolute owner thereof for all purposes.
(b) Each Grantor hereby ratifies, to the extent permitted by law, all
that said attorneys shall lawfully do or cause to be done by virtue hereof.
The power of attorney granted pursuant to this SECTION 6 is a power coupled
with an interest and shall be irrevocable until all of the Obligations are
indefeasibly paid or otherwise satisfied in full.
(c) The powers conferred on Agent hereunder are solely to protect
Agent's interests in the Collateral and shall not impose any duty upon
Agent to exercise any such powers. Agent shall not be accountable for any
amount other than amounts that it actually receives as a result of the
exercise of such powers and none of Agent's officers, directors, employees,
agents or representatives shall be responsible to any Grantor for any act
or failure to act, except individually (and not jointly and severally) for
their own gross negligence or willful misconduct as finally determined by a
court of competent jurisdiction after all possible appeals have been
exhausted.
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(d) Each Grantor also authorizes Agent at any time and from time to
time upon the occurrence and during the continuation of any Event of
Default, to (i) communicate in its own name with any party to any Contract
with regard to the assignment of the right, title and interest of any
Grantor in and under the Contracts and other matters relating thereto, and
(ii) execute, in connection with any sale provided for in SECTION 7 hereof,
any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral.
7. REMEDIES; RIGHTS UPON DEFAULT.
(a) If any Event of Default shall have occurred and be continuing,
Agent may exercise in addition to all other rights and remedies granted to
it under this Supplemental Security Agreement, the Credit Agreement, the
other Loan Documents and under any other instrument or agreement securing,
evidencing or relating to any of the Obligations, all rights and remedies
of a secured party under the Code. Without limiting the generality of the
foregoing, each Grantor expressly agrees that in any such event Agent,
without demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon any Grantor or any other Person (all and each of
which demands, advertisements and notices are hereby expressly waived to
the maximum extent permitted by the Code and other applicable law), may
forthwith enter upon the premises of each Grantor where any Collateral is
located through self-help, without judicial process, without first
obtaining a final judgment or giving any Grantor or any other Person notice
and opportunity for a hearing on Agent's claim or action (on behalf of
Agent and Lenders), and may collect, receive, assemble, process,
appropriate and realize upon the Collateral, or any part thereof, and may
forthwith sell, lease, assign, give an option or options to purchase, or
sell or otherwise dispose of and deliver said Collateral (or contract to do
so), or any part thereof, in one or more parcels at a public or private
sale or sales, at any exchange at such prices as it may deem acceptable,
for cash or on credit or for future delivery without assumption of any
credit risk. Agent or any Lender shall have the right upon any such public
sale or sales and, to the extent permitted by law, upon any such private
sale or sales, to purchase for the benefit of Agent or any Lenders, the
whole or any part of said Collateral so sold, free of any right or equity
of redemption, which equity of redemption each Grantor hereby releases.
Such sales may be adjourned and continued from time to time with or without
notice. Agent shall have the right to conduct such sales on each Grantor's
premises or elsewhere and shall have the right to use each Grantor's
premises without charge for such time or times as Agent deems necessary or
advisable.
Each Grantor further agrees, if any Event of Default shall have
occurred and be continuing, at Agent's request, to assemble the Collateral
and make it available to Agent, for the benefit of Agent and Lenders, at
places which Agent shall select, whether at such Grantor's premises or
elsewhere. Until Agent is able to effect a sale, lease, or other
disposition of Collateral, Agent shall have the right to use Collateral, or
any part thereof, to the extent that it deems appropriate for the purpose
of preserving Collateral or its value or for any other purpose deemed
appropriate by Agent. Agent shall have no obligation to any Grantor to
maintain or preserve the rights of such Grantor as against third parties
with respect to Collateral while Collateral is in the possession of Agent.
Agent may, if it so elects, seek the appointment of a receiver or keeper to
take possession of Collateral and to enforce any of Agent's remedies (for
11
the benefit of Agent and Lenders), with respect to such appointment without
prior notice or hearing. Agent shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale to the
Obligations as provided in SECTION 1.11 of the Credit Agreement, and only
after so paying over such net proceeds, and after the payment by Agent of
any other amount required by any provision of law, including SECTION
9-504(L)(C) of the Code (but only after Agent has received what it
considers reasonable proof of a subordinate party's security interest),
need Agent account for the surplus, if any, to any Grantor. To the maximum
extent permitted by applicable law, each Grantor waives all claims,
damages, and demands against Agent or any Lender arising out of the
repossession, retention or sale of the Collateral except such as arise
solely out of the gross negligence or willful misconduct of Agent or such
Lender as finally determined by a court of competent jurisdiction. Each
Grantor agrees that ten (10) days prior notice by Agent of the time and
place of any public sale or of the time after which a private sale may take
place is reasonable notification of such matters. Each Grantor shall remain
liable for any deficiency if the proceeds of any sale or disposition of the
Collateral are insufficient to pay all amounts to which Agent, for itself
and the ratable benefit of Lenders, is entitled, each Grantor also being
liable for any attorneys' fees incurred by Agent or any Lender to collect
such deficiency.
(b) Each Grantor, jointly and severally, agrees to pay any and all
costs of Agent or any Lender, including attorneys' fees and expenses,
incurred in connection with the enforcement of any of its rights and
remedies hereunder.
(c) Except as otherwise specifically provided herein, each Grantor
hereby waives presentment, demand, protest or any notice (to the maximum
extent permitted by applicable law) of any kind in connection with this
Supplemental Security Agreement or any Collateral.
8. GRANT OF LICENSE TO USE PATENT, TRADEMARK AND COPYRIGHT COLLATERAL. For
the purpose of enabling Agent to exercise rights and remedies under SECTION 7
hereof (including, without limiting the terms of SECTION 7 hereof, in order to
take possession of, hold, preserve, process, assemble, prepare for sale, market
for sale, sell or otherwise dispose of Collateral) at such time as Agent, for
itself and the ratable benefit of Lenders, shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to Agent, for the
benefit of Agent and Lenders, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to any Grantor) to use, license
or sublicense any Trademark or trade secret now owned or hereafter acquired by
such Grantor, and wherever the same may be located, and including in such
license 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.
9. LIMITATION ON AGENT'S AND LENDERS' DUTY IN RESPECT OF COLLATERAL. Agent
and each Lender shall use reasonable care with respect to the Collateral in its
possession or under its control. Neither Agent nor any Lender shall have any
other duty as to any Collateral in its possession or control or in the
possession or control of any agent or
12
nominee of Agent or such Lender, or any income thereon or as to the preservation
of rights against prior parties or any other rights pertaining thereto.
10. REINSTATEMENT. This Supplemental Security Agreement shall remain in
full force and effect and continue to be effective should any petition be filed
by or against any Grantor for liquidation or reorganization, should any Grantor
become insolvent or make an assignment for the benefit of any creditor or
creditors or should a receiver or trustee be appointed for all or any
significant part of any Grantor's assets, and shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee of
the Obligations, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
11. NOTICES. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desires to give and serve upon any
other party any communication with respect to this Supplemental Security
Agreement, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be given in the manner, and
deemed received, as provided for in SECTION 11.10 of the Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Supplemental
Security Agreement shall be interpreted in a manner as to be effective and valid
under applicable law, but if any provision of this Supplemental Security
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Supplemental Security Agreement. This Supplemental Security Agreement is to be
read, construed and applied together with the Prior Security Agreements and the
Credit Agreement and the other Loan Documents which, taken together, set forth
the complete understanding and agreement of Agent, Lenders and the Grantors with
respect to the matters referred to herein and therein.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither Agent nor any Lender shall by
any act, delay, omission or otherwise be deemed to have waived any of its rights
or remedies hereunder, and no waiver shall be valid unless in writing, signed by
Agent and then only to the extent therein set forth. A waiver by Agent, for
itself and the ratable benefit of Lenders, of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
Agent would otherwise have had on any future occasion. No failure to exercise
nor any delay in exercising on the part of Agent or any Lender, any right, power
or privilege hereunder, shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege hereunder preclude any
other or future exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies hereunder provided are
13
cumulative and may be exercised singly or concurrently, and are not exclusive of
any rights and remedies provided by law. None of the terms or provisions of this
Supplemental Security Agreement may be waived, altered, modified or amended
except by an instrument in writing, duly executed by Agent and Grantors. Any
such amendment to this Supplemental Security Agreement shall constitute an
amendment of any corresponding provision of the Prior Security Agreements.
14. LIMITATION BY LAW. All rights, remedies and powers provided in this
Supplemental Security Agreement may be exercised only to the extent that the
exercise thereof does not violate any applicable provision of law, and all the
provisions of this Supplemental Security Agreement are intended to be subject to
all applicable mandatory provisions of law that may be controlling and to be
limited to the extent necessary so that they shall not render this Supplemental
Security Agreement invalid, unenforceable, in whole or in part, or not entitled
to be recorded, registered or filed under the provisions of any applicable law.
15. TERMINATION OF THIS SUPPLEMENTAL SECURITY AGREEMENT. Subject to SECTION
10 hereof, this Supplemental Security Agreement shall terminate upon the
Termination Date.
16. SUCCESSORS AND ASSIGNS. This Supplemental Security Agreement and all
obligations of each Grantor hereunder shall be binding upon the successors and
assigns of any Grantor (including any debtor-in-possession on behalf of any
Grantor) and shall, together with the rights and remedies of Agent, for the
benefit of Agent and Lenders, hereunder, inure to the benefit of Agent and
Lenders, all future holders of any instrument evidencing any of the Obligations
and their respective successors and assigns. No sales of participations, other
sales. assignments, transfers or other dispositions of any agreement governing
or instrument evidencing the Obligations or any portion thereof or interest
therein shall in any manner affect the security interest granted to Agent, for
the benefit of Agent and Lenders, hereunder. No Grantor may assign, sell or
otherwise transfer any interest in or obligation under this Supplemental
Security Agreement.
17. COUNTERPARTS. This Supplemental Security Agreement may be executed in
any number of separate counterparts, each of which shall collectively and
separately constitute one and the same agreement.
18. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS SUPPLEMENTAL SECURITY AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICT OF LAW
PROVISIONS), AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH
GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN
XXXX COUNTY, CITY OF CHICAGO, ILLINOIS, SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND
14
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY GRANTOR, AGENT AND LENDERS
PERTAINING TO THIS SUPPLEMENTAL SECURITY AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL
SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED, THAT AGENT,
LENDERS AND EACH GRANTOR ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF XXXX COUNTY, CITY OF CHICAGO,
ILLINOIS, AND, PROVIDED, FURTHER NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT.
EACH GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH GRANTOR HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH GRANTOR AT THE ADDRESS OF BORROWER SET FORTH ON SCHEDULE
J TO THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN
THE U.S. MAILS, PROPER POSTAGE PREPAID.
19. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES
ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, LENDERS, AND ANY
GRANTOR ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED IN CONNECTION WITH, THIS SUPPLEMENTAL SECURITY
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO
OR THERETO.
15
20. SECTION TITLES. The Section titles contained in this Supplemental
Security Agreement are and shall be without substantive meaning or content of
any kind whatsoever and are not a part of the agreement between the parties
hereto.
21. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Supplemental Security Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Supplemental Security Agreement shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Supplemental Security Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each other party
hereto that it has discussed this Supplemental Security Agreement and,
specifically, the provisions of SECTION 18 and SECTION 19, with its counsel.
23. BORROWER AS AGENT. Each Grantor (other than Borrower) hereby appoints
Borrower as its agent and attorney-in-fact for purposes of giving and receiving
notices under this Supplemental Security Agreement and agrees that any notice
hereunder delivered to Borrower shall be deemed to have been delivered to each
Grantor.
24. PRIOR SECURITY AGREEMENTS. Notwithstanding anything to the contrary
contained herein or in the Prior Security Agreements, Grantors' compliance with
the terms hereof, as the same may be amended or further supplemented from time
to time, shall constitute full compliance with all of the terms of the Prior
Security Agreements.
[SIGNATURE PAGES FOLLOW]
16
IN WITNESS WHEREOF, each Grantor has caused this Supplemental Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
WILSONS THE LEATHER EXPERTS INC.
BERMANS THE LEATHER EXPERTS INC.
RIVER HILLS WILSONS, INC.
ROSEDALE WILSONS, INC.
WILSONS INTERNATIONAL INC.
WILSONS LEATHER OF AIRPORTS INC.
WILSONS LEATHER OF ALABAMA INC.
WILSONS LEATHER OF ARKANSAS INC.
WILSONS LEATHER OF CANADA LTD.
WILSONS LEATHER OF CONNECTICUT INC.
WILSONS LEATHER OF DELAWARE INC.
WILSONS LEATHER OF FLORIDA INC.
WILSONS LEATHER OF GEORGIA INC.
WILSONS LEATHER HOLDINGS INC.
WILSONS LEATHER OF INDIANA INC.
WILSONS LEATHER OF IOWA INC.
WILSONS LEATHER OF LOUISIANA INC.
WILSONS LEATHER OF MARYLAND INC.
WILSONS LEATHER OF MASSACHUSETTS INC.
WILSONS LEATHER OF MICHIGAN INC.
WILSONS LEATHER OF MISSISSIPPI INC.
WILSONS LEATHER OF MISSOURI INC.
S-1
WILSONS LEATHER OF NEW JERSEY INC.
WILSONS LEATHER OF NEW YORK INC.
WILSONS LEATHER OF NORTH CAROLINA INC.
WILSONS LEATHER OF OHIO INC.
WILSONS LEATHER OF PENNSYLVANIA INC.
WILSONS LEATHER OF RHODE ISLAND INC.
WILSONS LEATHER OF SOUTH CAROLINA INC.
WILSONS LEATHER OF TENNESSEE INC.
WILSONS LEATHER OF TEXAS INC.
WILSONS LEATHER OF VERMONT INC.
WILSONS LEATHER OF VIRGINIA INC.
WILSONS LEATHER OF WEST VIRGINIA INC.
WILSONS LEATHER OF WISCONSIN INC.
WILSONS LEATHER DIRECT INC.
WWT INC.
EL PORTAL GROUP, INC.
XXXXXXXXXXXXXX.XXX, LLC
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXXX
-----------------------------------
The authorized officer of each of
the foregoing corporations
Accepted and Acknowledged by:
GENERAL ELECTRIC CAPITAL
CORPORATION, AS AGENT
By: /s/ XXXXXXXX X. XXXX
------------------------------
Name: XXXXXXXX X. XXXX
----------------------------
Title: AUTHORIZED SIGNATORY
---------------------------
S-2
SCHEDULE I
----------
FILING JURISDICTIONS
--------------------
[to be completed by Grantors]
SCHEDULE II
-----------
INSTRUMENTS
-----------
[To be completed by Grantors]
SCHEDULE III-A
--------------
SCHEDULES OF OFFICES, LOCATIONS OF COLLATERAL
---------------------------------------------
AND RECORDS CONCERNING GRANTOR'S COLLATERAL
-------------------------------------------
I. Chief Executive Office and principal place of business of each Grantor:
II. Corporate Offices of each Grantor:
III. Warehouses:
IV. Other Premises at which Collateral is Stored or Located:
V. Locations of Records Concerning Collateral:
[To be completed by Grantors]
SCHEDULE IV
-----------
TRADEMARKS
----------
[To be completed by Grantors]
