SECURITY AGREEMENT
(INTELLECTUAL PROPERTY)
THE UNDERSIGNED, SPORT MASKA INC. (the "Corporation"), a corporation
continued and subsisting under the laws of the Province of New Brunswick, hereby
enters into this Security Agreement, made effective as of the 1st day of April
1, 1997 in favour of The Chase Manhattan Bank (the "Agent") as collateral and
security agent for the benefit of the lenders named in a credit agreement dated
as of April 1, 1997 between SLM International, Inc., Maska U.S., Inc. and #1
Apparel, Inc., as borrowers (collectively, the "Borrowers"), the lenders named
therein (hereinafter collectively referred to as the "Lenders") and the Agent
(that credit agreement, as amended, restated or supplemented from time to time
being referred to below as the "Credit Agreement");
WHEREAS the Lenders have agreed to make certain credit facilities
available to the Borrowers pursuant to the Credit Agreement on and subject to
the terms and conditions thereof, including without limitation the condition
precedent that this Agreement be entered into;
AND WHEREAS the Corporation has entered into a guarantee dated as of
April 1, 1997 in favour of the Agent in which the undersigned has guaranteed
repayment of the indebtedness and liability of the Borrowers under the Credit
Agreement on, and subject to, the terms and conditions thereof (that guarantee,
as it may be amended, restated, or supplemented from time to time being referred
to below as the "Guarantee") and has agreed to enter into this Agreement to
secure repayment of its indebtedness and liability under the Guarantee, now or
hereafter existing, absolute or contingent, joint or several together with all
reasonable expenses (including legal fees and disbursements on a solicitor and
his or her own client basis) incurred by the Agent or any of the Lenders and/or
any agent or receiver or receiver/manager acting on behalf of the Agent or any
of the Lenders in connection with the preparation, registration, enforcement of
rights under or analysis of rights under the Guarantee and this Agreement from
time to time (all of which present and future indebtedness, liabilities,
obligations and expenses, together with all extensions and renewals thereof, are
hereinafter collectively referred to as the "Indebtedness");
NOW THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the receipt, sufficiency and adequacy
of which are hereby acknowledged, the Corporation agrees as follows:
1. Creation of Security Interest. As security for the complete and timely
payment and satisfaction of all of the Indebtedness, the Corporation hereby
grants to the Agent a security interest, and assigns, transfers and conveys to
the Agent, and
2.
hypothecates in favour of the Agent (collectively, the "Security Interest"),
with unfettered rights to power of sale, to the extent permitted by law or by
the specific license agreements, if relevant, in and to all of the right, title
and interest of the Corporation in and to all of its now existing and hereafter
created or acquired:
(a) computer programs, application software, hardware and/or software
maintenance support agreements and all documentation relating
thereto, licences of software, copyrights, patents and inventions,
industrial designs, trade secrets, inventor certificates, statutory
invention registrations and all know-how obtained, developed or used
by the Corporation in connection with its business, including,
without limitation the patents, industrial designs and software
listed in Exhibit "A" attached hereto and hereby made a part hereof
and (i) renewals or extensions thereof; (ii) all income, damages and
payments now or hereafter due or payable with respect thereto,
including, without limitation, damages and payments for past or
future infringements thereof; (iii) the right to ▇▇▇ for past,
present and future infringements thereof; and (iv) all rights
corresponding thereto throughout the world (all of the foregoing
computer programs, application software, hardware and/or software
maintenance support agreements, licenses of software, copyrights,
patents and inventions, industrial designs, trade secrets and
know-how, and applications and registrations thereof, together with
the items described in clauses (i) - (iv) of this subsection 1(a)
are sometimes hereinafter collectively referred to as the
"Patents/Designs/Copyrights");
(b) trademarks, trademark registrations, trademark applications, trade
names, business names, trade styles, logos, service marks, and all
other forms of business identifiers, including, without limitation,
the trademarks, trademark registrations, trademark applications,
trade names, business names, trade styles, logos and all other forms
of business identifiers listed on Exhibit "B" attached hereto and
hereby made a part hereof, and (i) renewals or extensions thereof,
(ii) all income, damages and payments now or hereafter due or
payable with respect thereto, including, without limitation, damages
and payments for past or future infringements thereof, (iii) the
right to ▇▇▇ for past, present and future infringements thereof, and
(iv) all rights corresponding thereto throughout the world (all of
the foregoing trademarks, trade names and trade styles, and
applications and registrations thereof, together with the items
described in clauses (i)-(iv) of this subsection 1(b), are sometimes
hereinafter referred to individually as a "Trademark", and,
collectively, as the "Trademarks");
3.
(c) all license agreements with respect to any of the Trademarks or any
Trademark or any application or registration therefor or any other
trade name or trade style, between the Corporation and any other
party, whether the Corporation is a licensor or licensee under any
such license agreement, including, without limitation, the licenses
listed on Exhibit "C" attached hereto and hereby made a part hereof,
and (i) renewals or extensions thereof, (ii) all income, damages and
payments now or hereafter due or payable with respect thereto,
including, without limitation, damages and payments for past or
future breaches thereof, (iii) the right to ▇▇▇ for past, present
and future breaches thereof, and (iv) all rights corresponding
thereto throughout the world (all of the foregoing license
agreements and the rights of the Corporation thereunder, together
with the items described in clauses (i)-(iv) of this subsection
1(c), are sometimes hereinafter referred to individually as a
"License", and, collectively, as the "Licenses"); and
(d) the goodwill of the business of the Corporation connected with and
symbolized by any one or more of the Patents/Designs/Copyrights,
Trademarks and Licences, and (i) all damages and payments now or
hereafter due or payable with respect thereto, including, without
limitation, damages and payments for past or future depreciation
thereof or injury thereto, (ii) the right to ▇▇▇ for past, present
and future depreciation thereof or injury thereto, and (iii) all
rights corresponding thereto throughout the world (the foregoing
goodwill, together with the items described in clauses (i)-(iii) of
this subsection 1(d), are referred to as the "Goodwill").
(The Patents/Designs/Copyrights, Trademark or Trademarks, License or Licenses
and Goodwill referred to in subparagraphs 1(a), (b), (c) and (d) above are
sometimes collectively referred to below as the "Collateral").
The Corporation and the Agent agree that they have not agreed to
postpone the time for attachment of the Security Interests granted hereby with
respect to the Corporation's presently existing Collateral and that such
Security Interests shall attach to the Collateral acquired after the date hereof
as soon as the Corporation has rights in such Collateral. From time to time, at
the request of the Agent, the Corporation shall make and do all acts and things
and execute and deliver all documents, agreements and instruments as the Agent
reasonably may request by notice in writing to the Corporation in order to
create, preserve, perfect, validate or otherwise protect the Security Interests
to enable the Agent to exercise and enforce its rights and remedies hereunder
(except that nothing hereunder shall constitute a waiver of any rights available
to the Corporation at law to the extent that such rights cannot be lawfully
waived) and generally to carry out the provisions and purposes of this
Agreement. The Agent agrees that it shall have no right to be
4.
assigned the title to any of the Collateral unless and until the Security
Interest hereby constituted shall become enforceable as hereinafter provided.
The amount of the hypothec referred to in this Section 1 is one
hundred million dollars ($100,000,000.00) in lawful money of the United States
of America with interest thereon from the date of this Agreement at the rate of
twenty-five percent (25%) per annum.
2. (a) Warranties and Representations. Subject to paragraph 2(b) below, the
Corporation warrants and represents to the Agent that:
(i) all registrations, applications for registration, filings and
notices thereof in respect of the Collateral, including all relevant
renewals, have been duly and properly made, are in full force and
effect and are not subject to dispute by any governmental authority
or agency and all leases, licences and other agreements affecting
any right, title or interest of the Corporation in any of the
Collateral (collectively, the "Third Party Agreements") are in good
standing;
(ii) none of the Collateral has been adjudged invalid or unenforceable or
has been cancelled, in whole or in part, and all such Collateral is
presently subsisting, valid, in good standing and enforceable, with
the exception of those set out in the Exhibits hereto and identified
as "pending applications", "cancelled/expunged registrations",
"abandoned applications" or "registrations no longer in name of the
Corporation";
(iii) the Corporation is the exclusive owner or in the case of licensed
Collateral, the sole and exclusive licensee, of the entire and
unencumbered right, title and interest in and to each of the
Collateral (except as otherwise expressly described in the Exhibits
hereto) free and clear of any liens, charges and encumbrances except
for liens permitted under the Credit Agreement or otherwise approved
by the Agent in writing (the "Permitted Encumbrances");
(iv) the Collateral listed on Exhibits "A", "B" and "C", respectively,
constitute all of the Patents/Designs/Copyrights, Trademarks and
Licenses now owned by the Corporation;
(v) the Corporation has adopted, used continuously and currently is
using all of the Patents/Designs/Copyrights, Trademarks and
Licences; all licensees of the Collateral (or all relevant portions
thereof) from the Corporation as licensor have been licensed
properly to use such Collateral and the Corporation has retained
under license the direct or indirect control of the character or
quality of the goods or services in
5.
connection with which use of such Collateral has been licensed by
it; all use of such Collateral has been proper both in form and in
relation to the goods or services in connection with which the
Collateral is used by the Corporation or its licensees; and proper
ownership notices have been used by the Corporation or its
licensees;
(vi) other than as set forth in Schedule 4.06(a) annexed to the Credit
Agreement, the Corporation has no notice of any suits or actions
commenced or threatened in respect of any of the Collateral,
including, without limitation, any suits or actions which contain
allegations respecting the validity, enforceability, infringement or
ownership of any of the Collateral, including, without limitation,
any of the Corporation's right, title and interest in the Collateral
and no notice, or knowledge, of any person infringing any of the
Collateral;
(vii) the Corporation has the right to execute and deliver this Agreement
and to perform its covenants and obligations hereunder;
(viii) this Agreement is a valid, legal and binding obligation of the
Corporation 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; and
(ix) nothing contained in this Agreement, the Guarantee or the Credit
Agreement, including, without limitation, the granting of the
Security Interest by the Corporation in favour of the Agent,
constitutes a breach under any Third Party Agreement.
(b) The foregoing representations and warranties shall be continuing
representations and warranties which, for greater certainty, shall apply at the
date hereof to all Collateral owned or licensed by the Corporation on the date
hereof including, without limitation, the Collateral described in Exhibits "A",
"B" and "C" hereto and shall be deemed to be given by the Corporation and to
apply to all after acquired Collateral immediately upon the Corporation
acquiring the same.
3. Covenants of the Corporation. The Corporation covenants and agrees that until
the Indebtedness shall have been satisfied in full, the Corporation shall:
(a) use the Trademarks only on goods of at least as high quality as the
goods on which the Corporation or its predecessor used the goods as
of the date hereof and maintain the quality of any and all products
in connection with which the Trademarks and other Collateral is
used, consistent with the quality of said products as of the date
hereof;
6.
(b) take or cause to be undertaken all steps necessary to protect the
Corporation's interest in and to maintain the
Patents/Designs/Copyrights, Trademarks and Licenses and other
Collateral in good standing, including without limitation, to pursue
diligently all applications through to registration and to renew all
registrations and pay all maintenance fees as applicable, as well as
attending to the filing of all required documentation;
(c) vigorously protect, preserve and maintain all of the Corporation's
right, title and interest in the Collateral, including, without
limitation, the prosecution and/or defence against any and all suits
concerning validity, infringement, enforceability, ownership or
other aspects affecting any of the Collateral (any expenses incurred
in protecting, preserving and maintaining any of the Collateral
shall be borne by the Corporation);
(d) upon written request by the Agent, execute and deliver any and all
agreements, instruments, documents and papers as the Agent may
reasonably request to evidence the Agent's Security Interest in the
Collateral;
(e) perform all covenants required under any Third Party Agreement
including, inter alia, promptly paying all required fees, royalties
and taxes to maintain each and every item of the Collateral in full
force and effect;
(f) if at any time or from time to time, before the Indebtedness shall
have been satisfied in full, the Corporation (i) becomes aware of
any existing Patents/Designs/Copyrights, Trademarks or Licenses of
which the Corporation has not previously informed the Agent, (ii)
obtains rights to any new Patents/Designs/Copyrights, Trademarks or
Licenses, or (iii) becomes entitled to the benefit of any
Patents/Designs/Copyrights, Trademarks, or Licenses not identified
on any of ▇▇▇▇▇▇▇▇ "▇", "▇" or "C", then the Corporation shall
promptly notify the Agent and regardless of when the Corporation so
notifies the Agent, Exhibits "A", "B" and "C" hereto, as applicable,
automatically shall be modified and amended to include any such
Patents/Designs/Copyrights, Trademarks and Licenses and the
provisions of this Agreement automatically shall apply thereto;
(g) maintain up to date records regarding the Collateral;
(h) provide the Agent with a written report on each anniversary of this
Agreement regarding the status of all Patents/Designs/Copyrights,
Trademarks and Licenses;
7.
(i) provide the Agent, upon request by the Agent from time to time, with
a certificate of an officer of the Corporation certifying the
compliance of the Corporation with this Agreement;
(j) not sell, transfer, assign or dispose of its interest in, or grant
any license or sublicense under any of the
Patents/Designs/Copyrights or Trademarks or the Licenses or the
Goodwill, or enter into any other agreement with respect to any of
the Collateral, without the prior written consent of the Agent,
which consent shall not be unreasonably withheld;
(k) not abandon any right to file a trademark application or patent
application, or abandon any pending trademark or patent application,
or abandon any of the Patents/Designs/Copyrights, Trademarks,
Licenses or Goodwill or any suits involving any of the Collateral,
without the prior written consent of the Agent, which consent of the
Agent shall not be unreasonably withheld;
(l) not take any action, or permit any action to be taken by any person
or persons subject to its control, including licensees, or fail to
take any action, which would adversely affect the validity,
enforceability or transferability (to the Agent or otherwise) of all
or any of the Collateral; and
(m) not create or permit to exist any mortgage, hypothec, pledge,
charge, lien or other encumbrance upon the Collateral, other than
the existing Permitted Encumbrances, except as expressly consented
to in writing by the Agent.
4. Right of the Agent to Inspect. The Agent shall have the right, at any time
and from time to time upon reasonable notice and upon such terms as are agreed
to in advance by the Corporation and prior to payment in full of the
Indebtedness and release and discharge by the Agent of the Guarantee and this
Agreement and termination of the Commitments (as defined under the Credit
Agreement) (collectively, the "Termination"), to inspect the premises of the
Corporation and to examine the books, records and operations of the Corporation,
including, without limitation, the quality control processes of the Corporation.
5. Term of Security Interest; Royalties. The term of the Security Interest
granted herein shall continue until the Termination. The Corporation agrees that
the assignment or transfer to and use by the Agent of all Collateral shall be
worldwide and without any liability on the part of the Agent or any of the
Lenders for royalties or other related charges from the Agent or any of the
Lenders to the Corporation.
8.
6. Expenses. All expenses incurred by or on behalf of the Agent or any of the
Lenders in connection with the performance of any of the covenants and
agreements set forth herein shall be borne by the Corporation in accordance with
the Credit Agreement.
7. Duties of the Corporation. Until the Termination, the Corporation shall, at
its own expense:
(a) diligently prosecute any and all Patent/Designs/Copyrights and
Trademark applications pending as of the date hereof or thereafter;
(b) make application to register all Patent/Designs/Copyrights and
Trademarks, as appropriate and to the extent commercially
reasonable;
(c) protect, preserve and maintain vigorously all of the right, title
and interest of the Corporation in and to the Collateral, including,
without limitation, the prosecution or defence of all suits
concerning the validity, infringement, breach, enforceability,
ownership or other aspects affecting any of the Collateral; and
(d) ensure generally that the Collateral is and remains valid, in good
standing and enforceable.
8. Default. Without prejudice to the right of the Agent to demand payment of all
or any part of the Indebtedness hereby secured at any time or times, pursuant to
the Guarantee, the Indebtedness shall, at the option of the Agent, become
payable and the security hereby constituted shall become enforceable in each and
every of the events following:
(a) if the Corporation makes default in the observance or performance of
any written agreement or undertaking heretofore or hereafter given
by the Corporation to the Agent or the Lenders pursuant to or in
connection with the Credit Agreement, whether contained herein or
not;
(b) if the Corporation makes default in payment of all or any portion of
the Indebtedness when due whether the same is secured hereby or not;
(c) if an order is made or a resolution passed for the winding-up of the
Corporation, or if a petition is filed for the winding-up of the
Corporation;
(d) if the Corporation ceases or threatens to cease to carry on business
or if the Corporation commits or threatens to commit any act of
bankruptcy or if the Corporation becomes insolvent or makes an
assignment or
9.
proposal in bankruptcy or gives notice of its intention to do so or
makes a bulk sale of its assets or if a bankruptcy petition is filed
or presented against the Corporation;
(e) if any proceedings with respect to the Corporation are commenced
under the Companies' Creditors Arrangement Act (Canada) or the
Bankruptcy and Insolvency Act (Canada) or if the Corporation shall
seek relief or consent to the filing of a petition against it under
any law which involves any arrangement with or any compromise of any
rights of any one or more creditors of the Corporation;
(f) if an execution or any other process of any court becomes
enforceable against the Corporation or if a distress or analogous
process is levied upon the property of the Corporation or any part
thereof;
(g) if any sum which has been admitted as due by the Corporation or is
not disputed to be due by it and which forms or is capable of being
made a charge upon any of the Collateral in priority to the Security
Interest created by this Agreement is unpaid;
(h) if the Corporation shall default in the observance or performance of
any material provision relating to any material indebtedness or
liability of the Corporation to any creditor other than the Agent or
the Lenders;
(i) if any material licences, permits or approvals required by any law,
regulation or governmental policy or any governmental agency or
commission for the operation by the Corporation of its business
shall be withdrawn or cancelled; or
(j) if any representation or warranty made by the Company or any of its
officers, employees or agents to the Agent shall be false or
inaccurate in any material respect.
9. Waivers. No course of dealing between the Corporation and the Agent, nor any
failure to exercise, nor any delay in exercising, on the part of the Agent, any
right, power or privilege hereunder or under the Guarantee or the Credit
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The Agent may waive, in whole or in part, any breach of any
provisions of this Agreement by the Corporation, any breach of any provisions of
the Guarantee or the Credit Agreement or any of the rights and remedies of the
Agent whether provided hereunder or otherwise, provided that no such waiver
shall be considered to have been given unless given expressly in writing by the
Agent to the Corporation. No
10.
waiver given by the Agent in accordance with this Section 9 shall be construed
as a waiver of any other or subsequent breach or default by the Corporation.
10. Severability. The provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction by a Court of competent jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
11. Modification. This Agreement cannot be altered, amended or modified in any
way, or by any other document or instrument signed by each of the Corporation
and the Agent.
12. Cumulative Remedies. All of the rights and remedies of the Agent with
respect to the Collateral, whether established hereby or by the Guarantee or the
Credit Agreement, or by any other agreements or by law shall be cumulative and
may be exercised singularly or concurrently.
13. Irrevocable Power of Attorney. The Corporation irrevocably constitutes and
appoints the Agent and each of its authorized employees from time to time as the
true and lawful attorney of the Corporation with full power of substitution in
the name of the Corporation, with power after the security constituted hereby
shall have become enforceable to:
(a) endorse or sign the name of the Corporation on and execute and
deliver all applications, registrations, recordings, reissues,
continuations, continuations in part, term restorations and
extensions thereof, documents, papers, agreements, assignments and
instruments necessary or desirable for the purpose of recording,
registering and filing of, or accomplishing any other formality with
respect to the Collateral or any part thereof or otherwise regarding
the Collateral, or any part thereof;
(b) take any other actions with respect to the Collateral, or any part
thereof, as the Agent deems to be in the best interest of the Agent
or the Lenders, including without limitation, the realization or
collection of all or any income, damages or payments related
thereto;
(c) grant or issue any exclusive or non-exclusive license or sublicense
under or in respect of the Collateral, or any part thereof to
anyone; or
(d) assign, pledge, convey, sell, license, or otherwise transfer title
in or dispose of the Collateral or any part thereof (or the right,
title and
11.
interest of the Corporation therein) to anyone by private or public
sale, lease or otherwise upon such terms and conditions as the Agent
may determine as permitted by law and whether or not the Agent has
taken possession of any of the Collateral.
The Corporation and the Agent acknowledge and agree that any disposition
referred to in clause (d) in this Section 13 may be either a disposition of all
or any of the Collateral and may be by way of public auction, public tender,
private contract or otherwise as permitted by law. The Agent may sell or dispose
of the Collateral for consideration payable by instalments either with or
without taking security for the payment of such instalments and may make and
deliver to any purchaser thereof good and sufficient assignment, documents or
instruments and give receipts for the purchase money, and any such sale or
disposition shall be a perpetual bar, both at law and in equity, against the
Corporation and all those claiming an interest in and to the Collateral by,
from, through or under the Corporation. The Corporation hereby ratifies all acts
of any such attorney taken, done or caused to be taken or done in accordance
with this Section 13. This power of attorney shall be irrevocable unless and
until the Indebtedness shall have been paid in full and the Termination has
occurred. Upon execution of this Agreement, the Corporation shall execute the
power of attorney in the same or substantially the same form as set forth in
Exhibit "D" to this Agreement.
14. Remedies. Whenever the Security Interest granted pursuant to this Agreement
shall have become enforceable, and so long as it shall remain enforceable, the
Agent may, in addition to all other rights and remedies available to it at law
or in equity, proceed to realize upon such security and to enforce its rights
by:
(a) the appointment by instrument in writing of a receiver or receivers
of the Collateral 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 Agent or not and the Agent may remove
any receiver or receivers so appointed and appoint another or others
in his, her or their stead);
(b) proceedings in any court of competent jurisdiction for the
appointment of a receiver or receivers or for sale of the Collateral
or any part thereof;
(c) any other action, suit, remedy or proceeding authorized or permitted
hereby or by law or by equity;
(d) exercising all of the rights of the Corporation under all contracts,
agreements or other instruments in writing relating to the
Collateral as fully and effectually as if the Agent were the
absolute owner thereof;
12.
(e) commencing legal proceedings for and on behalf of and in the name of
the Agent and at the expense of the Corporation in order to enforce
the rights of the Corporation under any contracts, agreements, or
other instruments in writing which may relate to the Collateral; or
(f) exercising any of the rights and/or remedies referred to in Section
13 hereof.
Any receiver or receivers appointed pursuant to this Section 14 shall have power
to: (i) take possession of and to use the Collateral or any part thereof; (ii)
borrow money required for the maintenance, preservation or protection of the
Collateral or any part thereof or the carrying on of the business of the
Corporation; (iii) further charge the Collateral in priority to the security
interests of this Agreement as security for money so borrowed; and (iv) sell,
lease or otherwise dispose of the whole or any part of the Collateral on such
terms and conditions and in such manner as the receiver shall determine as
permitted by law. The term "receiver" as used in this Agreement includes a
receiver and manager. The Agent 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, winding-up or other judicial proceedings relating to the
Corporation. In addition, the Agent may use and possess the Collateral or any
part thereof, free from all encumbrances, liens and charges (unless otherwise
expressly provided for herein) without hindrance, interruption or denial of the
same by the Corporation or by any other person or persons and may lease or sell
the whole or any part or parts of the Collateral . Any sale hereunder may be
made by public auction, by public tender or by private contract or as otherwise
permitted by applicable law. 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 Agent
acting in a commercially reasonable manner may seem advantageous. Such sale may
take place whether or not the Agent has taken possession of the Collateral. No
remedy for the realization of the Security Interest granted herein or for the
enforcement of the rights of the Agent 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.
15. Effect on Other Agreements. The Corporation acknowledges and agrees that
this Agreement is not intended to limit or restrict in any way the rights and
remedies of the Agent under the Guarantee or the Credit Agreement, or any other
security granted by the Corporation to the Agent pursuant thereto, but rather is
intended to facilitate the exercise of such rights and remedies. The Agent shall
have, in addition to all other rights and remedies given to it by the terms of
this Agreement, the Guarantee and the Credit Agreement, all rights and remedies
allowed by law and the rights and remedies of a secured party under the Personal
Property Security Act as enacted in any jurisdiction in which the Collateral may
be located (including, without limitation, any of the hypothecary rights
provided for under articles 2748 to 2794 of the Civil Code of Quebec).
13.
16. Binding Effect; Benefits. This Agreement, receipt of a true copy of which is
hereby acknowledged by the Corporation, shall be binding upon the Corporation
and its respective successors and permitted assigns, and shall enure to the
benefit of and be enforceable by the Agent, its successors, nominees and
assigns. The Agent may, upon the terms provided in the Credit Agreement, assign,
transfer and deliver to any transferee any or all of the Indebtedness secured by
this Agreement or any security or any documents or instruments held by the Agent
in respect thereof, including, without limitation, the Guarantee, provided that
no such assignment, transfer or delivery shall release the Corporation from any
of the Indebtedness secured by this Agreement and provided that on or before the
completion of such assignment, transfer or delivery, any assignee, transferee or
holder shall enter into an agreement with the Corporation to the effect that
such assignee, transferee or holder agrees to be bound by and observe the
provisions of this Agreement; and thereafter the Agent shall, to the extent
provided in the Credit Agreement, be fully discharged from any and all further
responsibility with respect to the Indebtedness, including without limitation
all documents and instruments so assigned, transferred or delivered. Such
transferee shall be vested with all powers and rights of the Agent under such
security, documents or instruments but the Agent shall retain all rights and
powers with respect to any such security, documents or instruments not so
assigned, transferred or delivered. The Corporation shall not sell or assign its
interest in, or grant any license or sublicense under the Collateral without the
prior written consent of the Agent.
17. Release of Security Interest. Upon Termination, the Agent shall upon request
in writing by the Corporation and at the expense of the Corporation execute and
deliver to the Corporation all documents and instruments, and shall take such
other actions, as may be necessary or proper to release the lien on and security
interest in the Collateral, subject to any disposition thereof which may have
been made by the Agent pursuant hereto.
18. Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the Province of New Brunswick and the
federal laws of Canada applicable therein. The Corporation agrees that any
lawsuit, action or proceeding arising out of or relating to this Agreement may
be instituted in the Courts of New Brunswick and the Corporation hereby accepts
and irrevocably submits to the non-exclusive jurisdiction of the said Courts and
acknowledges their competence and agrees to be bound by any judgment thereof;
provided that nothing herein shall limit the rights of the Agent to bring or
initiate proceedings against the Corporation or any other person elsewhere.
19. Headings. Paragraph headings used herein are for convenience only and shall
not modify nor interpret the provisions which they precede.
14.
20. Further Assurances. The Corporation agrees to execute and deliver such
further agreements, instruments and documents, and to perform such further acts,
as the Agent reasonably may request from time to time in order to carry out the
purpose of this Agreement and the covenants and agreements set forth herein.
21. Survival of Representations. All representations and warranties of the
Corporation contained in this Agreement shall survive the execution and delivery
of this Agreement and shall be remade on the date of each and every borrowing
made by the Borrowers under the Credit Agreement.
22. Counterparts. This Agreement may be executed by the parties in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
23. Inconsistencies. This Agreement is executed pursuant to the Guarantee and
the Credit Agreement and is subject to the terms thereof. In the event of any
contradiction between the terms hereof and the comparable terms of the Guarantee
or the Credit Agreement, the terms of the Guarantee or the Credit Agreement
shall prevail.
24. Selection of Language. It is the express wish of the Parties that this
agreement and any related documents be drawn up and executed in English. Les
parties conviennent que la presente convention et tous les documents s'y
rattachant soient rediges et signes en anglais.
IN WITNESS WHEREOF, this Agreement has been executed by the Corporation,
effective as of the date first written above.
SPORT MASKA INC.
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------- c/s
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
THE CHASE MANHATTAN BANK, as Agent for
the Lenders
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- c/s
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
