SLM INTERNATIONAL, INC., #1 APPAREL, INC. and MASKA U.S., INC.
DEBENTURE $100,000,000 U.S.
A. PROMISE TO PAY
1. SLM INTERNATIONAL, INC., #1 APPAREL, INC. and MASKA U.S., INC. (the
"Borrowers") and SLM TRADEMARK ACQUISITION CORP. (the "Guarantor" and
collectively with the Borrowers, the "Companies") for value received hereby
jointly and severally agree with THE CHASE MANHATTAN BANK for its own benefit
and for the pro rata benefit of certain Lenders (as hereafter defined) from time
to time (the "Secured Party") that they will, subject to the provisions of that
certain Delivery Agreement made in favour of the Lenders by the Companies of
even date herewith (the "Delivery Agreement") on demand pay to the Secured Party
the principal sum of ONE HUNDRED MILLION UNITED STATES DOLLARS ($100,000,000
U.S.). The Companies will also, subject to the provisions of the Delivery
Agreement, jointly and severally pay to the Secured Party, as and when demanded,
interest on the said principal sum. The Companies will pay jointly and severally
such interest at the rate of 25% per annum calculated and payable monthly not in
advance, both before and after demand and before and after default, judgment and
execution from the date hereof until payment in full of all amounts owing
hereunder.
X. XXXXX OF MORTGAGES, CHARGES AND SECURITY INTERESTS
2. As security for payment of the principal and interest and all other
indebtedness and liability from time to time payable hereunder, the Companies
hereby jointly and severally:
(a) mortgage and charge (subject to the exceptions as to leaseholds
hereinafter contained) as and by way of a fixed and specific mortgage and charge
to and in favour of the Secured Party, and grant to the Secured Party a security
interest in, all real and immovable property (including, by way of sub-lease,
leasehold lands) now or hereafter owned or acquired by the Companies or any of
them and all buildings, erections, improvements, fixtures and plant now or
hereafter owned or acquired by the Companies or any of them (whether the same
form part of the realty or not) and all appurtenances to any of the foregoing
(collectively, the "Lands"); "real and immovable
2.
property" shall include any interest in or right with respect to real and
immovable property;
(b) mortgage and charge to the Secured Party as and by way of a fixed and
specific mortgage and charge, and xxxxx to the Secured Party a security interest
in all present and future:
(i) income, revenues and profits derived from any tenancy, use or
occupation of the Lands and rents and other sums payable to the
Companies or any of them pursuant to the terms of any leases,
licences, subleases, agreements to lease, license or sublease, or
rights to occupy the Lands (each a "lease");
(ii) benefits, advantages and powers to be derived from such leases,
with full power and authority to demand, sue for, recover, receive and
give receipts for all rents and other moneys payable thereunder and
otherwise to enforce the rights of the landlord thereunder on behalf
of and in the name of the Companies or any of them; and
(iii) benefit of all guarantees and indemnities with respect to any
leases and the performance of any obligations of any tenant
thereunder;
(c) mortgage and charge to the Secured Party as and by way of a fixed and
specific mortgage and charge, and grant to the Secured Party a security interest
in, all their present and future equipment, including, without limiting the
generality of the foregoing, all fixtures, plant, machinery, tools and furniture
now or hereafter owned or acquired and any equipment specifically listed or
otherwise described in any schedule hereto;
(d) mortgage and charge to the Secured Party, and grant to the Secured
Party a security interest in, all their present and future inventory, including,
without limiting the generality of the foregoing, all raw materials, goods in
process, finished goods and packaging material and goods acquired or held for
sale or furnished or to be furnished under contracts of rental or service;
(e) mortgage and charge to the Secured Party, and grant to the Secured
Party a security interest in, all their other goods and tangible personal
property;
(f) mortgage and charge to the Secured Party, and grant to the Secured
Party a security interest in all their present and future intangibles,
including, without limiting the generality of the foregoing, all their present
and future book debts, accounts and other amounts receivable, contract rights
and chooses in action of every kind or nature including insurance rights arising
from or out of the assets referred to in subparagraphs (a), (b), (c), (d) or (e)
hereof, goodwill, chattel paper, instruments of title, negotiable documents of
title, investments, money and securities and all dividends, income or
3.
other distributions, whether paid or distributed in cash, securities or other
property, in respect of any of the property described in this section 2;
(g) charge in favour of the Secured Party as and by way of a floating
charge, and grant to the Secured Party a security interest in, their business
and undertaking and all their property and assets, real and personal, moveable
or immovable, of whatsoever nature and kind, both present and future (other than
property and assets hereby validly assigned or subjected to a specific mortgage,
charge or security interest by subparagraphs (a), (b), (c), (d), (e) or (f)
hereof and the exceptions hereinafter contained); and
(h) mortgage and charge in favour of the Secured Party and xxxxx to the
Secured Party a security interest in the proceeds arising from any of the assets
referred to in this paragraph 2;
all of which present and future property and assets of the Companies and each of
them referred to in subparagraphs 2 (a), (b), (c), (d), (e), (f), (g) and (h)
hereof are hereinafter collectively called the "Charged Assets". All rights of
the Secured Party hereunder, the security, and all obligations of the Companies
hereunder, shall be absolute and unconditional irrespective of (i) any lack of
validity or enforceability of any loan document including the Credit Agreement
dated as of April 1, 1997 among the Companies and the Secured Party and certain
lenders named therein (such lenders, and any other lenders from time to time
herein called the "Lenders") (which, as amended, supplemented or restated from
time to time is herein called the "Credit Agreement"), the Guarantee granted by
the Guarantor to the Secured Party of even date herewith (the "Guarantee"), any
other agreement with respect to the indebtedness and liability secured hereby or
any other agreement or instrument relating to the foregoing, (ii) any change in
the time, manner or place of payment of, or in any other term of, all or any of
the indebtedness and liability under the Credit Agreement or the Guarantee or
any indebtedness or liability secured hereby or any other amendment or waiver of
or consent to any departure from any guarantee, any loan document, including the
Credit Agreement and the Guarantee, or any other agreement or instrument, (iii)
any exchange, release or nonperfection of any Charged Asset or any release or
amendment or waiver of or consent to or departure from any guarantee for all or
any of the indebtedness and liability under the Credit Agreement or the
Guarantee or any indebtedness or liability secured hereby, or (iv)any other
circumstance which might otherwise constitute a defence available to, or
discharge of, the Companies, any guarantor or any other obligor in respect of
the indebtedness and liability, secured by or in respect of this debenture.
4.
C. LOCATION OF CHARGED ASSETS
3. Each of the Companies hereby represents and warrants to the Secured Party
that there are no Charged Assets in Ontario.
4. Prior to acquiring any Charged Assets in Ontario or moving any Charged Assets
into Ontario, a Company shall first give ten (10) days prior written notice to
the Secured Party.
D. LIMITED EXCEPTIONS TO GRANT OF CHARGE
5. The last day of any term reserved by any lease or sublease, oral or written,
or any agreement therefor, now held or hereafter acquired by any of the
Companies, and whether falling within the general or particular description of
the Charged Assets, is hereby and shall be excepted out of the mortgage, charge
and security interest hereby or by any other instrument created, but such
Company shall stand possessed of the reversion of one day remaining in such
Company in respect of any such term, for the time being demised, as aforesaid,
upon trust to assign and dispose of the same as any purchaser of such term shall
direct.
E. AGREEMENTS OF THE COMPANY
6. Each of the Companies and the Secured Party covenant and agree that:
(a) they have not agreed to postpone the time for attachment of the
security interests granted hereby with respect to the Charged Assets presently
existing and that such security interests shall attach to the Charged Assets
acquired after the date hereof as soon as any of the Companies has rights in
such assets;
(b) in accordance with subsection 7(3) of the Land Registration Reform Act
(Ontario), the covenants deemed to be included in a charge by subsection 7(1) of
such Act are expressly excluded from this debenture; and
(c) subject to paragraph 30 hereof, the Companies shall not at any time
hereafter make any claim to the Charged Assets, challenge the Secured Party's
rights thereto or make any demands upon the Secured Party with respect to the
Charged Assets and that the Secured Party shall from this time forward be
exonerated and discharged of and from all claims and demands which the Companies
or any of them might or could have against the Secured Party with respect to the
Charged Assets.
5.
7. Each of the Companies represents and warrants to the Secured Party that:
(a) it is the sole legal and beneficial owner of the Charged Assets charged
by it (except for future property), free of encumbrances or other right
whatsoever except for the liens permitted under the Credit Agreement or the
Guarantee or otherwise approved by the Secured Party in writing ("Permitted
Encumbrances");
(b) it is duly incorporated and in good standing under the laws of its
jurisdiction of incorporation;
(c) neither the execution of this debenture nor the performance by it of
its obligations hereunder will result in any breach of or default under any law
or any other agreement or document to which it is a party or by which it may be
bound; and
(d) it has the right, power and lawful authority to charge and mortgage to
the Secured Party, and otherwise grant security interests in all of its right,
title and interest in and to, the Charged Assets charged by it as provided for
in this debenture and this debenture constitutes a legal, valid and binding
obligation enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting creditors' rights and the discretion exercisable by Courts
of competent jurisdiction in respect of the availability of equitable remedies.
8. Each of the Companies agrees with the Secured Party that until all
indebtedness and liability owing by the Companies to the Secured Party are paid
in full:
(a) it will not, without the prior written consent of the Secured Party:
(i) incur, create, assume or permit to exist any further or
additional indebtedness except as permitted under the terms of
the Credit Agreement or the Guarantee;
(ii) create, assume or permit to exist any liens upon, assign,
transfer, mortgage, charge, pledge, hypothecate or otherwise
grant security over or a security interest in any of the Charged
Assets except to the Secured Party and except Permitted
Encumbrances;
(iii) sell, transfer, assign, or otherwise dispose of any of the
Charged Assets or any group of property and assets forming part
of the Charged Assets except for a sale of inventory in the
ordinary course of business and such other sales as permitted
under the Credit Agreement or the Guarantee;
6.
(iv) merge or amalgamate with any other corporation except as
permitted under the Credit Agreement or the Guarantee;
(v) change the location of its chief executive office, place of
business or principal place of residence without providing the
Secured Party with fifteen days' prior written notice;
(vi) take any action (or not take any action) which would result in a
default hereunder or an Event of Default under the Credit
Agreement or the Guarantee; or
(vii) change its name without giving prior written notice to the
Secured Party of the new name and the date upon which such change
of name will take effect; and
(b) it will:
(i) hold the proceeds received from any direct or indirect dealing
with the Charged Assets in trust for the Secured Party after
either the occurrence of a default under the Credit Agreement or
the Guarantee or the security constituted by this debenture
becoming enforceable or any of the Charged Assets charged by it
are sold other than in the ordinary course of its business and
for the purpose of carrying on such business save and except
pursuant to subsection 7.05(b) of the Credit Agreement, and
forthwith remit such proceeds to the Secured Party;
(ii) strictly comply with every covenant and undertaking heretofore or
hereafter given by it to the Secured Party and take any action
that may be necessary to enable any other Company to comply with
its Obligations under the Credit Agreement or, as the case may
be, the Guarantee;
(iii) permit the Secured Party at any time and from time to time, when
the security granted pursuant to this debenture shall have become
enforceable, to require any of its account debtors to make
payment to the Secured Party of any or all amounts owing by such
account debtors and the Secured Party may take control of any
proceeds referred to in subparagraph 2(h) hereof and may hold all
such amounts received from any account debtor and any such
proceeds as cash collateral as part of the Charged Assets and as
security for the indebtedness and liability secured by this
debenture;
(iv) deliver to the Secured Party promptly upon request, any documents
of title, instruments, securities and chattel paper
7.
constituting, representing or relating to the Charged Assets and
all statements of account, bills, invoices and books of account
relating to accounts and all records, ledgers, reports,
correspondence, schedules, documents, statements, lists and other
writings relating to the Charged Assets for the purpose of
inspecting, auditing or copying same;
(v) at the Secured Party's request, cause all securities which
constitute Charged Assets to be registered in the name of the
Secured Party or its nominee and the Secured Party is hereby
authorized to transfer such securities into the name of the
Secured Party or its nominee so that the Secured Party or its
nominee may appear as the sole owner of record of such
securities; at the request of the Secured Party, it shall deliver
to the Secured Party appropriate powers of attorney for transfer
in blank, duly executed and with signatures guaranteed, in
respect of such securities;
(vi) immediately upon becoming aware thereof, notify the Secured Party
of any loss or destruction of, or substantial damage to, any
material portion of the Collateral (as defined in the Credit
Agreement), and any other matters materially affecting the value,
enforceability or collectibility of any of such Collateral;
(vii) promptly notify the Secured Party of the acquisition by it of
receivables or other amounts owing to it from persons located in
any jurisdiction in Canada;
(viii) conduct a physical count of its inventory as provided in the
Credit Agreement.
9. Each of the Companies agrees with the Secured Party that:
(a) it will at all times fully perform and comply with all obligations
imposed on, assumed by or agreed to by it pursuant to any prior encumbrance of
the Lands or any part thereof or its interest therein, that it will pay all
rents and perform all obligations under the leases charged by this debenture and
that, if it shall fail so to do, the Secured Party may (but shall not be obliged
to) take any action the Secured Party deems necessary or desirable acting
reasonably to cure any default by it in the performance of or compliance with
any of its obligations hereunder, under any lease or imposed upon, assumed by or
agreed to by the Companies pursuant to any such prior encumbrance;
8.
(b) upon receipt by the Secured Party in regard to any such prior
encumbrance or any lease of any written notice of default by any of the
Companies, the Secured Party may rely thereon and take any action as aforesaid,
acting reasonably, to cure such default even though the existence of such
default or the nature thereof may be questioned or denied by any of the
Companies or by any party on behalf of any of the Companies;
(c) at its option, the Secured Party may discharge past due taxes, liens,
security interests or other encumbrances (other than Permitted Encumbrances
which are not in default) at any time levied or placed on the Charged Assets and
may pay for the maintenance and preservation of the Charged Assets to the extent
any of the Companies fails to do so, provided, however, that the Secured Party
shall not discharge such taxes, liens, security interests or other encumbrances
or pay for such maintenance or preservation prior to the occurrence and
continuance of an Event of Default under the Credit Agreement or the Guarantee
unless the Secured Party shall have requested the Companies to discharge such
taxes, liens, security interests or other encumbrances or pay such amounts (to
the extent required by the Credit Agreement or the Guarantee) and the Companies
shall have failed or refused to do so within such period of time as shall have
been specified by the Secured Party in such notice; provided that nothing in
this debenture shall excuse any of the Companies from the performance of any
covenants or other promises with respect to taxes, liens, security interests,
hypothecs, mortgages, prior claims or other encumbrances and maintenances;
(d) the Secured Party shall have (and for such purpose hereby expressly
grants to the Secured Party) the absolute and immediate right to enter in and
upon the Lands or any part thereof to such extent and as often as the Secured
Party, in its sole discretion, acting reasonably, deems necessary or desirable,
in order to cure any such default by any of the Companies;
(e) the Secured Party may pay and expend such sums of money as the Secured
Party in its sole discretion, acting reasonably, deems necessary for any purpose
provided for in subparagraphs 9(a), (b), (c) and (d), and each of the Companies
hereby agrees to pay to the Secured Party, immediately upon notification by the
Secured Party and without demand, all such sums so paid and expended by the
Secured Party, together with interest thereon at the Alternate Base Rate plus
the then applicable Interest Margin both as defined in the Credit Agreement
calculated and payable as provided for in the Credit Agreement (the "Interest
Rate");
(f) all sums so paid and expended by the Secured Party and such interest
thereon, shall be secured hereby in addition to all other moneys hereby secured
and in priority to all other mortgages and charges;
9.
(g) if this debenture is or shall be outstanding at the expiration of the
term of any lease (a "material lease") of real property forming part of the
Charged Assets which is material to the conduct of any Company's business and
such Company shall refuse or neglect to exercise its right, if any, to renew
such material lease and to pay the fees, costs, charges and expenses incidental
to and payable upon such renewals, then, and as often as it shall happen, the
Secured Party may, at its sole discretion, effect such renewals in its own name
or otherwise, and in such case every such renewed material lease and the lands
and buildings thereby demised shall remain and be security to the Secured Party
for the indebtedness and liability secured by this debenture and as well for the
payment of all money paid by the Secured Party for every such renewal and the
Secured Party's costs, charges, and expenses and interest thereon at the
Interest Rate;
(h) it will not: (i) surrender any material lease or any rights of renewal
with respect thereto (except for the lease of the premises located at 0 Xxxx
Xxxx Xxxx, Xxxxxxxxxxxx, Xxx Xxxxxxxxx and except in any case where the prior
written consent of the Secured Party has been obtained); subordinate any
material lease to any mortgage of the fee interest of the landlord thereof in
the lands subject to a material lease, unless in connection with any such
subordination it obtains from the holder of such mortgage a non-disturbance
agreement in favour of it and its successors and assigns (including the Secured
Party) in form and substance satisfactory to the Secured Party; (ii) terminate
or cancel any material lease without the prior written consent of the Secured
Party; or (iii) without the prior written consent of the Secured Party, modify,
change, supplement, alter or amend any material lease either orally or in
writing;
(i) no release or forbearance of any of its obligations pursuant to any
material lease or pursuant to any prior encumbrance of its interest in the Lands
or any part thereof including without limitation its obligations with respect to
the payment of rent as provided for in any such lease shall release it from any
of its obligations pursuant to this debenture;
(j) unless the Secured Party shall otherwise expressly consent in writing,
the title in fee simple to the property demised by any material lease and the
leasehold estate shall not merge but shall always remain separate and distinct,
notwithstanding the union of said estates either in the landlord of any such
lease or any Company pursuant to any such lease or in a third party, by purchase
or otherwise; and
(k) if it shall, at any time before payment in full of the indebtedness and
liability secured by this debenture, acquire the freehold title to the lands
demised by any such lease, this mortgage and charge shall attach and extend to,
and constitute a mortgage and charge of such freehold estate; and
10.
(l) it hereby agrees that it will not place the Charged Assets charged by
it or allow the Charged Assets charged by it to be placed on any premises that
are leased unless the lessor of such premises has first agreed in writing with
the Secured Party to subordinate and postpone any and all of its claims,
security and rights to the claims and security of the Secured Party; provided
that this covenant will not prohibit it from selling the Charged Assets charged
by it in the normal course of its business as hereinbefore provided.
10. The Companies hereby agree that they will at all times, both before and
after default, do or cause to be done such additional things and execute and
deliver or cause to be executed and delivered all such further acts and
documents as the Secured Party may reasonably require for the better mortgaging,
charging, confirming and granting of security interests in the present or future
Charged Assets to the Secured Party, including, without limitation, the payment
of any fees and taxes required in connection with the execution and delivery of
this debenture, the granting of the security and the filing, recording, or
registering of any financing statements or other documents in connection
therewith. If any amount payable under, or in connection with, any of the
Charged Assets shall be or become evidenced by any promissory note or other
instrument, such note or instrument shall be promptly pledged and delivered to
the Secured Party, duly endorsed in a manner satisfactory to the Secured Party.
If at any time any of the Companies shall take and perfect a security interest
or hypothec in any property of an account debtor or any other person to secure
payment and performance of an account receivable, it shall promptly assign such
security interest or hypothec to the Secured Party. Such assignment need not be
filed, recorded or registered of public record unless necessary to continue the
perfected status of the security interest or hypothec against creditors of and
transferees from the account debtor or other person granting the security
interest or hypothec.
11. The Companies shall, at their own cost and expense, take any and all actions
reasonably necessary to defend title to the Charged Assets against all persons
and to defend the security of the Secured Party in such Charged Assets, and the
priority thereof, against any adverse lien or encumbrance of any nature
whatsoever, except for such liens or encumbrances permitted by the Secured Party
including, without limitation, the Permitted Encumbrances.
12. The Companies shall remain liable to observe and perform all the conditions
and obligations to be observed and performed by them or any of them under each
contract and agreement, interest or obligation relating to the Charged
11.
Assets, all in accordance with the terms and conditions thereof and shall
indemnify and hold harmless the Secured Party and the Lenders from any and all
such liabilities.
13. The Companies will not, without the Secured Party's prior written consent,
grant any extension of the time of payment of any of their accounts receivable,
or compromise, compound or settle the same for less than the full amount
thereof, or release, in whole or in part, 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. The provisions of Article X of the Credit
Agreement with respect to the collection of receivables and the management of
the Charged Assets are hereby deemed incorporated herein in their entirety and
shall be binding upon the Companies with respect to their accounts receivable as
if set forth herein.
F. DEFAULT
14. All indebtedness and liability owing by the Companies to the Secured Party
and hereby secured shall, at the option of the Secured Party but subject to the
provisions of the Delivery Agreement, become payable and the security hereby
constituted shall become enforceable upon demand by the Secured Party.
15. The Secured Party may in writing (and not otherwise) waive any breach by any
of the Companies of any of the provisions contained in this debenture or any
default by any of the Companies in the observance or performance of any
provision of this debenture; provided always that no waiver by the Secured Party
shall extend to or be taken in any manner whatsoever to affect any subsequent
breach or default, whether of the same or a different nature, or the rights
resulting therefrom.
G. REMEDIES OF THE SECURED PARTY
16. Whenever the security hereby constituted shall have become enforceable, and
so long as it shall remain enforceable, the Companies will have no right to vote
or take any other action with respect to any securities constituting Charged
Assets or receive any dividends or interest (whether declared or payable before
or after the security hereby constituted becoming enforceable) in respect of the
Charged Assets, and the Secured Party may proceed to realize such security and
to enforce its rights by:
(a) entry;
12.
(b) the appointment by instrument in writing of a receiver or receivers of
the Charged Assets or any part thereof (which receiver or receivers may be any
person or persons, whether an officer or officers or employee or employees of
the Secured Party or not and the Secured Party may remove any receiver or
receivers so appointed and appoint another or others in his or their stead);
(c) proceedings in any court of competent jurisdiction for the appointment
of a receiver or receivers or for sale of the Charged Assets or any part
thereof; or
(d) any other action, suit, remedy or proceeding authorized or permitted
hereby or by law or by equity.
In addition, the Secured Party may file such proofs of claim and other
documents as may be necessary or advisable in order to have its claim lodged in
any bankruptcy, insolvency winding-up or other judicial proceedings relative to
any of the Companies.
The Secured Party or any receiver or receivers so appointed shall have
power to:
(i) take possession of and to use the Charged Assets or any part thereof
with power to exclude the Companies and their officers, employees and
agents therefrom;
(ii) carry on the business of the Companies (including, but not limited to,
the taking or defending of any actions or legal proceedings, and the
doing or refraining from doing all other things as to it, acting
reasonably, may seem necessary or desirable in connection with the
business, operations and affairs of the Companies);
(iii) take all such steps as it may consider necessary or desirable for the
purposes of preserving, maintaining and completing all or any part of
the Charged Assets and making such replacements thereof and
improvements and additions thereto as it shall consider expedient;
(iv) receive the rents, incomes and profits of any kind whatsoever from the
Charged Assets and pay therefrom
(A) any expenses of preserving, maintaining and completing the
Charged Assets, of making such replacements thereof and
improvements and additions thereto as it may consider expedient
and of carrying on all or any part of the business of the
Companies relating to the Charged Assets, and
13.
(B) any charges against the Charged Assets ranking in priority to or
pari passu with the security created by this debenture or the
payment of which may be necessary or desirable to preserve or
protect all or any part of the Charged Assets or the interest of
the Secured Party therein;
(v) lease all or any part of the Charged Assets and renew from time to
time all or any of the leases on such terms and conditions as the
Secured Party may determine;
(vi) with or without taking possession, take any action or proceedings to
enforce the performance of any covenant contained in any of the
leases;
(vii) enjoy and exercise all the powers of the Companies or any of them as
it considers necessary or desirable for the exercise of any and all of
the remedies provided for herein, including, without limitation, the
powers to make any arrangement or compromise on behalf and in the name
of the Companies or any of them which it considers expedient, to
purchase on credit and borrow money on behalf and in the name of the
Companies or any of them and to advance its own moneys to the
Companies or any of them, all at such rates of interest as it may
consider reasonable, and to enter into contracts and undertake
obligations on behalf of and in the name of any of the Companies for
any and all of the foregoing purposes or which it considers necessary
or desirable for the exercise of any of the rights, powers and
remedies provided for herein, all of which borrowings, advances and
obligations together with interest thereon shall, at the discretion of
the Secured Party, be entitled to the security hereof in priority to
the payment of the obligations secured by this debenture;
Every receiver appointed by the Secured Party shall be deemed to be an
agent of the Companies or one or more of them and not of the Secured
Party for the purposes of (i) carrying on and managing the business
and affairs of any one or more of such Companies
14.
and (ii) establishing liability for all of the acts or omissions of
the receiver while acting as such and the Secured Party shall not be
in any way responsible for any acts or omissions on the part of any
such receiver, its officers, employees and agents; provided that,
without restricting the generality of the foregoing, each of the
Companies irrevocably authorizes the Secured Party to give
instructions to the receiver relating to the performance of its powers
and discretions. The appointment of a receiver or any thing which may
be done by the receiver shall not have the effect of constituting the
Secured Party a mortgagee in possession.
(viii) borrow money required for the maintenance, preservation or
protection of the Charged Assets or any part thereof or the carrying
on of the business of any of the Companies;
(ix) further charge the Charged Assets in priority to the charge of this
debenture as security for money so borrowed;
(x) vote and take all other action with respect to the securities
constituting Charged Assets and collect all revenues, dividends and
distributions distributed in connection with such securities; and
(xi) sell, lease or otherwise dispose of the whole or any part of the
Charged Assets on such terms and conditions and in such manner as the
receiver shall determine.
The Secured Party shall not be responsible for any actions or errors of omission
by the receiver or receivers in exercising any such powers.
In addition, the Secured Party may enter upon, use, occupy and possess the
Charged Assets or any part thereof, free from all encumbrances, liens and
charges, except for Permitted Encumbrances, without hindrance, interruption or
denial of the same by the Companies or by any other person or persons, and may
lease or sell the whole or any part or parts of the Charged Assets. Any sale
hereunder may be made by public auction, by public tender or by private
contract, with or without notice and with or without advertising and without any
other formality (except as required by law), all of which are hereby waived by
the Companies. Such sale shall be on such terms and conditions as to credit or
otherwise and as to upset or reserve bid or price as to the Secured Party in its
sole discretion may seem advantageous. In the case of any sale on credit or
partly on credit, the Secured Party shall not be accountable for any proceeds
thereof unless and until actually received by the Secured Party in cash. Such
sale may
15.
take place whether or not the Secured Party has taken possession of the Charged
Assets.
The Companies agree to pay to the Secured Party forthwith on demand all
expenses incurred by the Secured Party in the preparation, perfection,
administration and enforcement of this debenture (including without limitation
expenses incurred in considering and protecting or improving the Secured Party's
position, or attempting to do so, whether before or after default), all amounts
borrowed by the receiver from the Secured Party as hereinbefore provided and all
costs, charges, expenses and fees (including, without limiting the generality of
the foregoing, the fees and expenses of any receiver and legal fees on a
solicitor and client basis) of or incurred by the Secured Party and by any
receiver or receivers or agent or agents appointed by the Secured Party in
connection with the recovery or enforcing of payment of any moneys owing
hereunder, whether by realization, by taking possession or otherwise. All such
sums, together with interest thereon at the Interest Rate, shall be secured by
the charges contained herein. To the extent that the aggregate of the principal
and accrued interest secured hereby and such borrowed money, costs, fees and
expenses exceed the principal amount of this debenture, the Companies hereby
mortgage and charge and grant a security interest in the Charged Assets to the
Secured Party to secure payment of such excess amount.
No remedy for the realization of the security hereof or for the enforcement
of the rights of the Secured Party shall be exclusive of or dependent on any
other such remedy, but any one or more of such remedies may from time to time be
exercised independently or in combination; and the exercise of any remedy under
any document in any jurisdiction shall not prejudice or affect the exercise of
any remedy under another document in any jurisdiction. The term "receiver" as
used in this debenture includes a receiver and manager.
The Secured Party shall not, nor shall any receiver appointed by it, be
liable for any failure to exercise its rights, powers or remedies arising
hereunder or otherwise, including without limitation any failure to take
possession of, collect, enforce, realize, sell, lease or otherwise dispose of,
preserve, maintain, complete, protect, replace or improve all or any part of the
Charged Assets, to carry on all or any part of the business of the Companies or
to take any steps or proceedings for any such purposes. Neither the Secured
Party nor any receiver appointed by it shall have any obligation to take any
steps or proceedings to preserve rights against prior parties to or in respect
of all or any part of the Charged Assets, whether or not in its possession and
neither the Secured Party nor any receiver appointed by its shall be liable for
failure to
16.
do so. Subject to the foregoing, the Secured Party shall use reasonable care in
the custody and preservation of the Charged Assets in its possession.
17. Unless the provisions of the Credit Agreement otherwise provide, any and all
payments made in respect of the indebtedness and liability secured by this
debenture from time to time may be applied to such part or parts of the
indebtedness and liability secured by this debenture as the Secured Party may
see fit, and unless the provisions of the Credit Agreement otherwise provide,
the Secured Party shall at all times and from time to time have the right to
change any appropriation as the Secured Party may see fit.
18. The proceeds of any collection or sale of the Charged Assets, as well as any
Charged Asset consisting of cash, shall be applied by the Secured Party as
provided in section 16 of the Security Agreement among the Companies, Sport
Maska Inc., SLM Trademark Acquisition Canada Corporation and the Lenders dated
as of April1, 1997 (the "Security Agreement"). Upon any sale of the Charged
Assets by the Secured Party (including, without limitation, pursuant to a power
of sale granted by statute or under a judicial proceeding) the receipt of the
Secured Party or of the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Charged Assets 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 Secured Party or such officer or be
answerable in any way for the misapplication thereof.
H. RIGHTS OF THE SECURED PARTY
19. The Secured Party may, in accordance with subparagraph 9(c) of this
debenture, pay and satisfy the whole or any part of any liens, taxes, rates,
charges or encumbrances now or hereafter existing in respect of any of the
Charged Assets (other than Permitted Encumbrances which are not in default) and
such payments together with all costs, charges and expenses which may be
incurred in connection with making such payments shall form part of the
indebtedness and liability secured by this debenture and shall be secured by the
mortgages, charges and security interests granted herein. In the event of the
Secured Party satisfying any such lien, charge or encumbrance, it shall be
entitled to all the equities and securities of the person or persons so paid and
is hereby authorized to obtain any discharge thereof and hold such discharge
without registration for so long as it may deem advisable to do so.
17.
20. The Companies grant to the Secured Party the right to set off against any
and all accounts, credits or balances maintained by them with the Secured Party,
the aggregate amount of any of the indebtedness and liability secured by this
debenture provided the same is due.
21. The Secured Party, without exonerating in whole or in part the Companies,
may grant time, renewals, extensions, indulgences, releases and discharges to,
may take securities from and give the same and any or all existing securities up
to, may abstain from taking securities from or from perfecting securities of,
may accept compositions from, and may otherwise deal with the Companies and all
other persons and securities as the Secured Party may see fit.
22. Nothing herein shall obligate the Secured Party to extend or amend any
credit to the Companies.
23. The Secured Party may, upon the terms provided in the Credit Agreement,
assign, transfer and deliver to any transferee any of the indebtedness and
liability secured by this debenture or any security or any documents or
instruments held by the Secured Party in respect thereof provided that no such
assignment, transfer or delivery shall release the Companies from any of the
indebtedness and liability secured by this debenture; and thereafter the Secured
Party shall be fully discharged from all responsibility with respect to the
indebtedness and liability secured by this debenture and security, documents and
instruments so assigned, transferred or delivered. Such transferee shall be
vested with all powers and rights of the Secured Party under such security,
documents or instruments but the Secured Party shall retain all rights and
powers with respect to any such security, documents or instruments not so
assigned, transferred or delivered. The Companies shall not assign any of their
rights or obligations hereunder without the prior written consent of the Secured
Party.
24. The Secured Party is hereby authorized to file, record or register, as the
case may be, one or more financing statements, financing change statements or
other documents in all jurisdictions which the Secured Party deems necessary or
appropriate for the purpose of perfecting, confirming, continuing, enforcing or
protecting the security held by the Secured Party in respect of the indebtedness
and liability secured by this debenture.
18.
25. Each of Companies hereby appoints the Secured Party as its attorney solely
for the purposes of carrying out the provisions of this debenture and taking any
action or executing any instrument which the Secured Party may deem necessary or
advisable to accomplish the purposes herewith, which appointment is irrevocable
and coupled with an interest.
26. The Secured Party and such persons as the Secured Party may designate shall
have the right in the manner provided in the Credit Agreement to inspect the
Charged Assets, all records related thereto (and to make extracts and copies
from such records) and the premises upon which any such Charged Assets are
located, to discuss each of the Companies' affairs with the officers of such
Companies and their independent accountants. Subject to the conditions of the
Credit Agreement, the Secured Party shall have the absolute right to share any
information that it gains from such inspection or verification with any or all
of the Lenders.
I. BENEFIT TO THE LENDERS
27. All grants of mortgages, charges and security interests and all covenants
and agreements herein shall be for the benefit of the Secured Party and for the
pro rata benefit of the Lenders.
J. MISCELLANEOUS
28. If one or more of the provisions contained herein shall be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
29. No amendment of this debenture shall be binding unless executed in writing
by the party to be bound thereby.
30. Until the security hereby constituted shall have become enforceable, the
Companies shall have quiet possession of the Charged Assets. Upon payment by the
Companies, their successors or permitted assigns, of all indebtedness and
liability of the Companies to the Secured Party secured hereby and the
fulfilment of all other obligations of the Companies to the Secured Party
secured hereby and provided that the Secured Party is then under no obligation
(conditional or otherwise) to make any further loan or extend any other type of
credit to the Companies, the Secured Party shall, upon request in writing by the
Companies, delivered to the Secured Party at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, X.X.X. 10017 Attention: Credit Deputy, and at the
19.
Companies' expense, discharge this debenture. The security hereby constituted
and the charges hereunder shall automatically terminate in any of the Charged
Assets when they are sold or disposed of as permitted by the Credit Agreement or
hereunder or with the consent of the Secured Party. The Secured Party shall, at
the expense of the Companies, promptly take such actions, and execute such
releases and financing change statements or other documents, which may be
reasonably requested by an interested party to evidence the termination and
releases contemplated hereby.
31. This debenture shall be construed in accordance with and be governed by the
laws of the Province of Ontario. For the purpose of legal proceedings, this
debenture shall be deemed to have been made in the said Province and to be
performed therein and the courts of that Province shall have jurisdiction over
all disputes which may arise under this debenture. The Companies hereby
irrevocably and unconditionally submit to the non-exclusive jurisdiction of such
courts, provided always that nothing herein contained shall prevent the Secured
Party from proceeding at its election against the Companies in the courts of any
other province, country or jurisdiction.
32. The headings in this debenture are included for convenience of reference
only, and shall not constitute a part of this debenture for any other purpose.
33. This debenture is in addition to and not in substitution for any other
security now or hereafter held by the Secured Party and shall be general and
continuing security notwithstanding that the indebtedness and liability of the
Companies to the Secured Party shall be at any time or from time to time fully
satisfied or paid.
34. This debenture and all its provisions shall enure to the benefit of the
Secured Party, its successors and assigns, and shall be binding on the
Companies, their respective successors and permitted assigns.
35. Any demand or notice by the Secured Party in connection with this debenture
shall be given to the Companies at the place and in accordance with the terms
set out in the Credit Agreement or, as the case may be, the Guarantee, for the
giving of notices thereunder.
36. In construing this debenture, terms herein shall have the same meaning as
defined in the Personal Property Security Act (Ontario), unless the context
otherwise requires. The word "Companies", the personal pronoun "it" or "its" and
any verb
20.
relating thereto and used therewith shall be read and construed as required by
and in accordance with the context in which such words are used depending upon
whether the Companies is one or more individuals, corporations or partnerships
and, if more than one, shall apply and be binding upon each of them jointly and
severally. The term "successors" shall include, without limiting its meaning,
any corporation resulting from the amalgamation of a corporation with another
corporation and, where the Companies is a partnership, any new partnership
resulting from the admission of new partners or any other change in the
Companies, including, without limiting the generality of the foregoing, the
death of any or all of the partners.
IN WITNESS WHEREOF the Companies have executed this debenture as of the 1st
day of April, 1997.
SLM INTERNATIONAL, INC.
By: /s/ D. Xxxxx Xxxxxxx X.X.
-----------------------------------
title - Secretary
#1 APPAREL, INC.
By: /s/ D. Xxxxx Xxxxxxx X.X.
-----------------------------------
title - Secretary
MASKA U.S., INC.
By: /s/ D. Xxxxx Xxxxxxx X.X.
-----------------------------------
title - Secretary
SLM TRADEMARK ACQUISITION CORP.
By: /s/ D. Xxxxx Xxxxxxx X.X.
-----------------------------------
title - Secretary
