EXECUTION COPY
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of April 1, 1997, among SLM International,
Inc., a Delaware corporation, #1 Apparel, Inc., a Delaware corporation, and
Maska U.S., Inc., a Vermont corporation (collectively, the "Borrowers"),SLM
Trademark Acquisition Corp., a Delaware corporation ("Acquisition"), #1 Apparel
Canada Inc., a corporation under the Business Corporations Act (New Brunswick)
("Apparel"), Sport Maska Inc., a corporation under the Business Corporations Act
(New Brunswick) ("Maska"), SLM Trademark Acquisition Canada
Corporation/Corporation D'Acquisition De Marque De Commerce SLM Canada, a
corporation under the Business Corporations Act (New Brunswick) ("TACC"; TACC,
Acquisition, Apparel, Maska and the Borrowers are each sometimes referred to
herein as a "Grantor" and collectively as the "Grantors") and The Chase
Manhattan Bank, a New York banking corporation, as agent (the "Agent") for (i)
the lenders (the "Lenders") referred to in the Credit Agreement dated as of the
date hereof, among the Borrowers, the Lenders and the Agent (as amended,
modified or supplemented from time to time in accordance with its terms, the
"Credit Agreement") and (ii) for itself as issuer of the Letters of Credit. All
capitalized terms used herein and not defined herein shall have the meanings set
forth in the Credit Agreement.
The Agent and the Lenders have agreed to extend Credits to or for the
account of the Borrowers pursuant to, and subject to the terms and conditions
of, the Credit Agreement. The obligation of the Lenders to extend such Credits
under the Credit Agreement is conditioned on the execution and delivery by the
Grantors of a security agreement in the form hereof to secure the following
(collectively, the "Secured Obligations"): all Obligations (such Obligations to
include, without limitation, the due and punctual payment and performance of (a)
the principal of and interest on the Loans (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a), and interest that, but for
the filing of a petition in bankruptcy with respect to any Borrower, would
accrue on such obligations, whether or not a claim is allowed against such
Borrower for such interest in the related bankruptcy proceeding), when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (b) Indebtedness at any time and from time to time
under the Letters of Credit, (c) all obligations of the Grantors at any time and
from time to time under this Agreement and (d) all other obligations of the
Grantors and Guarantors at any time and from time to time under the Credit
Agreement and the other Loan Documents).
Accordingly, the Grantors and the Agent hereby agree as follows:
1. Definitions of Terms Used Herein. As used herein, the following terms
shall have the following meanings:
(a) "Accounts Receivable" shall mean (i) all of any Grantor's present and
future accounts, general intangibles, chattel paper and instruments, as such
terms are defined in the Uniform Commercial Code as in effect in the State of
New York ("NYUCC"), (ii) all moneys, securities and other property and the
proceeds thereof, now or hereafter held or received by, or in transit to, the
Agent from or for any Grantor, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, and all of the deposits (general or
special) of any Grantor, balances, sums and credits with, and all of the
Grantors' claims against the Agent at any time existing, (iii) all of any
Grantor's right, title and interest, and all of any Grantor's rights, remedies,
security and Liens, in, to and in respect of any accounts receivable, including,
without limitation, rights of stoppage in transit, replevin, repossession and
reclamation and other rights and remedies of an unpaid vendor, lienor or secured
party, guaranties or other contracts of suretyship with respect to accounts
receivable, deposits or other security for the obligation of any account debtor,
and credit and other insurance, (iv) all of any Grantor's right, title and
interest in, to and in respect of all goods relating to, or which by sale have
resulted in, accounts receivable, including, without limitation, all goods
described in invoices or other documents or instruments with respect to, or
otherwise representing or evidencing, any account receivable, and all returned,
reclaimed or repossessed goods, and (v) all claims, demands, loans and advances
at any time existing, and all interest accrued or that may hereafter accrue
thereon, of any Grantor against any other Grantor.
(b) "Collateral" shall mean all (i) Accounts Receivable, (ii) Contract
Rights, (iii) Documents, (iv) Equipment, (v) General Intangibles, (vi)
Inventory, (vii) Proceeds, (viii) Investment Property, and (ix) Deposit
Accounts, in each case, wherever located and whether now owned or hereafter
acquired or existing.
(c) "Contract Rights" shall mean all agreements to which any Grantor is a
party, as each such agreement may be amended, supplemented or otherwise modified
from time to time, including without limitation (i) all rights of such Grantor
to receive moneys due under or pursuant to the Contract Rights, (ii) all rights
of such Grantor to receive proceeds of any insurance, indemnity, warranty or
guaranty with respect to the Contract Rights, (iii) all claims of such Grantor
for damages arising out of any breach of or default under the Contract Rights,
and (iv) all rights of such Grantor to terminate, amend, supplement, modify or
exercise rights or options under the Contract Rights, to perform thereunder and
to compel performance and otherwise exercise all remedies thereunder, but
excluding those license agreements between each of Maska U.S., Inc., #1 Apparel,
Inc. and Maska with National Hockey League Enterprises, Inc., its Canadian
counterpart and their affiliates.
(d) "Deposit Accounts" shall mean all deposit accounts of any Grantor,
including without limitation all deposit accounts maintained with Agent.
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(e) "Documents" shall mean all instruments, files, records, ledger sheets,
documents, computer programs, tapes, disks and related data processing software
covering or relating to any of the Collateral.
(f) "Equipment" shall mean all of the Grantors' machinery, equipment,
vehicles, furniture and fixtures and all attachments, accessories and equipment
now or hereafter owned or acquired in the Grantors' business or used in
connection therewith, and all substitutions and replacements thereof, wherever
located, whether now owned or hereafter acquired by any Grantor.
(g) "General Intangibles" shall mean all of the Grantors' present and
future general intangibles of every kind and description, including (without
limitation) patents, patent applications, trade names and trademarks and the
goodwill of the business symbolized thereby, national, provincial, Federal,
state and local tax refund claims of all kinds.
(h) "Inventory" shall mean all of the Grantors' right, title and interest
in and to raw materials, work in process, finished goods and other goods and all
other inventory (as such term is defined in the NYUCC), whether now owned or
hereafter acquired, all wrapping, packaging, advertising and shipping materials,
and any documents relating thereto and all negotiable documents of title
(including without limitation warehouse receipts, dock receipts and bills of
lading) issued by any person covering any Inventory (any such negotiable
document of title being a "Negotiable Document of Title").
(i) "Investment Property" shall mean all of the Grantors' right, title and
interest in and to all present and future securities, security entitlements and
securities accounts.
(j) "Proceeds" shall mean any consideration received from the sale,
exchange, lease or other disposition of any asset or property which constitutes
Collateral, any other value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other person or entity
as a result of the destruction, loss, theft or other involuntary conversion of
whatever nature of any asset or property that constitutes Collateral, and shall
include, without limitation, all cash and negotiable instruments received or
held by any of the Lenders pursuant to any lockbox or similar arrangement
relating to the payment of Accounts Receivable.
2. Security Interests. As security for the payment or performance,
as the case may be, of the Secured Obligations, the Grantors hereby create and
grant to the Agent, its successors and its assigns, for its own benefit and for
the pro rata benefit of the Lenders, their successors and their assigns, a
security interest in the Collateral (the "Security Interest"). Without limiting
the foregoing, to the extent permitted by law, the Agent is hereby authorized to
file one or more financing statements, continuation
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statements or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest, naming the Grantors
as debtors and the Agent as secured party, without the signature of any Grantor.
The Grantors agree at all times to keep in all material respects accurate
and complete accounting records with respect to the Collateral, including, but
not limited to, a record of all payments and Proceeds received.
3. Further Assurances. Each Grantor jointly and severally agrees, at its
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents, xxxx conspicuously each item of chattel paper
included in the Accounts Receivable, each agreement related thereto, and, at the
request of the Agent, each of its records pertaining to the Collateral, with a
legend, in form and substance satisfactory to the Agent indicating that such
Collateral is subject to the security interest granted hereby and take all such
other actions as the Agent may from time to time reasonably request for the
assuring and preserving of the Security Interest and the rights and remedies
created hereby, including, without limitation, the payment of any reasonable
fees and taxes required in connection with the execution and delivery of this
Agreement, the granting of the Security Interest and the filing of any financing
statements or other documents in connection herewith. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any promissory note or other instrument, such note or instrument shall be
promptly pledged and delivered to the Agent, accompanied by a note power undated
and executed in blank in form and substance reasonably satisfactory to the
Agent. Each Grantor agrees to notify the Agent prior to any change in its
corporate name or in the location of its chief executive office, its chief place
of business or the office where it keeps its records relating to the Accounts
Receivable or any chattel paper evidencing the Accounts Receivable owned by it
and the location of any other Collateral. Each Grantor agrees promptly to notify
the Agent if any material portion of the Collateral is damaged or destroyed.
4. Inspection and Verification. In accordance with Section 6.08 of the
Credit Agreement, the Agent and any authorized representatives designated by the
Agent shall have the right, upon reasonable notice (which may be telephonic), at
all reasonable times and at Agent's expense where so provided in Section 6.08 of
the Credit Agreement, to inspect the Collateral owned by such Grantor, all
records related thereto (and to make extracts and copies from such records at
Agent's expense where so provided in Section 6.08 of the Credit Agreement), and
the premises upon which any such Collateral is located, to discuss such
Grantor's affairs with the appropriate Financial Officer and such other officers
as such Grantor shall deem appropriate and such Grantor's independent public
accountants, as applicable, and to verify under reasonable procedures the
validity, amount, quality, quantity, value, and condition of or any other matter
relating to, such Collateral, including, in the case of Accounts Receivable or
other Collateral in the possession of a third person, upon the occurrence
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and during the continuance of an Event of Default contacting account debtors and
third persons possessing such Collateral. Subject to the provisions of Section
11.11 of the Credit Agreement, the Agent shall have the absolute right to share
any information it gains from such inspection or verification with any or all of
the Lenders.
5. Taxes; Encumbrances. At its option, the Agent may discharge past due
taxes, liens, security interests or other encumbrances at any time levied or
placed on the Collateral and not permitted under the Credit Agreement, and may
pay for the maintenance and preservation of the Collateral to the extent a
Grantor fails to do so as required by the Credit Agreement, and each Grantor
agrees to reimburse the Agent on demand for any payment made or any expense
incurred by it pursuant to the foregoing authorization; provided, however, that
the Agent 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 unless the Agent shall have requested the
applicable Grantor to discharge such taxes, liens, security interest or other
encumbrances or pay such amounts (to the extent required by this Agreement or
the Credit Agreement) and such Grantor shall have failed or refused to do so
within such period of time as shall have been specified by the Agent in such
notice; and provided, further, that nothing in this Section 5 shall be
interpreted as excusing a Grantor from the performance of any covenants or other
promises with respect to taxes, liens, security interests or other encumbrances
and maintenances as set forth herein or in the Credit Agreement.
6. Assignment of Security Interest. If at any time a Grantor shall take and
perfect a security interest in any property of an account debtor or any other
person to secure payment and performance of an Account Receivable, such Grantor
shall promptly assign such security interest to the Agent. Such assignment need
not be filed of public record unless necessary to continue the perfected status
of the security interest against creditors of and transferees from the account
debtor or other person granting the security interest.
7. Representations and Warranties. Each Grantor represents and warrants to
the Agent, as to itself and the Collateral owned by it , that:
(a) Title and Authority. It has (i) rights in and good title to the
Collateral in which it is granting a security interest hereunder and (ii) the
requisite power and authority to grant to the Agent the Security Interest in
such Collateral pursuant hereto and to execute, deliver and perform its
obligations in accordance with the terms of this Agreement, without the consent
or approval of any other person other than any consent or approval which has
been obtained.
(b) Filing. Fully executed Uniform Commercial Code financing statements
containing a description of the Collateral shall have been, or shall be
delivered to the Agent in a form such that they can be, filed of record in each
applicable
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governmental, municipal or other office in every jurisdiction in which any
portion of the Collateral is located as may be necessary to publish notice of
and protect the validity of and to establish a valid, legal and perfected
security interest in favor of the Agent, for the benefit of the Lenders, in
respect of the Collateral in which a security interest may be perfected by
filing a Uniform Commercial Code Financing Statement in the United States and
its territories and possessions or any other jurisdictions, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided under
applicable law with respect to the filing of Uniform Commercial Code
continuation statements.
(c) Validity of Security Interest. Except as otherwise permitted under the
Credit Agreement, the Security Interest constitutes a valid, legal and, upon the
filing of applicable UCC Financing Statements in the applicable jurisdictions,
perfected first priority security interest in all of the Collateral in which a
security interest may be perfected by filing a UCC Financing Statement in the
United States for payment and performance of the Secured Obligations.
(d) Information Regarding Names. It has disclosed in writing to the Agent
any trade names used to identify it in its business or in the ownership of its
properties.
(e) Absence of Other Liens. The Collateral is owned by it free and clear of
any Lien of any nature whatsoever, except as granted pursuant to this Agreement
and as permitted by the Credit Agreement, and, except as provided by paragraph
(b) of this Section 7, no financing statement has been filed, under the Uniform
Commercial Code as in effect in any state or otherwise, covering any Collateral
except as indicated on Schedule 7.01 to the Credit Agreement.
(f) Additional Representations for Accounts Receivable. The representations
and warranties with respect to Receivables contained in Article X of the Credit
Agreement are hereby incorporated herein in their entirety and shall be deemed
made by each Grantor hereunder with respect to the Accounts Receivable of such
Grantor.
(g) Survival of Representations and Warranties. All representations and
warranties of the Grantors contained in this Agreement shall survive the
execution, delivery and performance of this Agreement until the termination of
this Agreement pursuant to Section 28.
8. Records of Accounts Receivable; Physical Count of Inventory; Etc.. (a)
Each Grantor will provide the Agent with such further schedules and/or
information respecting each Account Receivable as the Agent may reasonably
require.
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(b) Each Grantor shall conduct a physical count of its Inventory not less
than once each Fiscal Year and, upon the occurrence and during the continuance
of an Event of Default, at such intervals as the Agent may reasonably request,
and promptly supply the Agent with a copy of such counts accompanied by a report
of the value (based on the lower of cost (on a FIFO basis) or market value) of
such Inventory.
(c) Each Grantor shall cause the Equipment to be maintained and preserved
in good repair, working order and condition, reasonable wear and tear excepted,
and shall from time to time make or cause to be made all needful and proper
repairs, replacements and other improvements in connection therewith.
(d) Each Grantor shall promptly upon the issuance and delivery to such
Grantor of any Negotiable Document of Title (other than Inventory which, in the
ordinary course of business, is in transit either (A) from a supplier to such
Grantor, (B) between the locations specified in Schedule I hereto, or (C) to
customers of such Grantor), deliver such Negotiable Document of Title to the
Agent.
(e) Each Grantor shall, at its own expense, maintain insurance with respect
to the Equipment and Inventory in accordance with the terms of the Credit
Agreement.
9. Supplemental Documentation. In connection with the execution and
delivery of this Agreement, each Grantor shall furnish or cause to be furnished
to the Agent on or prior to the Closing Date a certificate, substantially in the
form of Annex A hereto, signed by a Responsible Officer of such Grantor dated
the Closing Date, certifying that, as of the date of such certificate, all
representations and warranties of such Grantor in Section 7 are true and correct
and that such Grantor is in compliance with all conditions, agreements and
covenants to be observed or performed hereunder.
10. Protection of Security. Each Grantor shall, at its own cost and
expense, take any and all actions reasonably necessary to defend title to the
Collateral owned by it against all persons and to defend the Security Interest
of the Agent in such Collateral, and the priority thereof, against any adverse
Lien of any nature whatsoever except for Liens permitted pursuant to Section
7.01 of the Credit Agreement.
11. Continuing Obligations of the Grantors. Each Grantor shall remain
liable to observe and perform all the conditions and obligations to be observed
and performed by it under each contract, agreement, interest or obligation
relating to the Collateral, all in accordance with the terms and conditions
thereof, and shall indemnify and hold harmless the Agent, and the Lenders from
any and all such liabilities.
12. Use and Disposition of Collateral. Except as permitted by the Credit
Agreement, no Grantor shall make or permit to be made any assignment, pledge
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or hypothecation of the Collateral, or grant any security interest in the
Collateral except for the Security Interest. No Grantor shall make or permit to
be made any transfer of any Collateral, except Inventory in the ordinary course
of business and as otherwise permitted by the Credit Agreement or the Pledge
Agreement dated as of the date hereof among the Grantors and the Agent for the
Lenders and for itself as issuer of the Letters of Credit (as amended, modified
or supplemented from time to time in accordance with its terms), and each
Grantor shall remain at all times in possession of the Collateral owned by it
other than transfers to the Agent pursuant to the provisions hereof and as
otherwise provided in this Agreement or the Credit Agreement. The Security
Interest granted herein shall automatically terminate with respect to any item
of Collateral that is permitted to be sold, transferred, disposed or pledged
pursuant to this Section 12. Subject to Article IX of the Credit Agreement, the
Agent shall promptly take such actions, and execute such releases, termination
statements or other instruments as may be reasonably requested by the applicable
Grantor to evidence the termination and release contemplated hereby.
13. Limitation on Modifications of Accounts Receivable. No Grantor will,
without the Agent's prior written consent, grant any extension of the time of
payment of any of its Accounts Receivable, compromise, compound or settle the
same for less than the full amount thereof, 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,
releases or settlements or releases granted or made in the ordinary course of
business.
14. Collections. The provisions of Article X of the Credit Agreement with
respect to the collection of Receivables and the management of Collateral are
hereby deemed incorporated herein in their entirety and shall be binding upon
each of the Grantors with respect the Accounts Receivable of such Grantor as if
set forth herein.
15. Remedies upon Default. Upon the occurrence and during the continuance
of an Event of Default, each Grantor agrees to deliver each item of Collateral
to the Agent on demand, and it is agreed that the Agent shall have the right to
take any or all of the following actions at the same or different times: with or
without legal process and with or without previous notice or demand for
performance, to take possession of the Collateral and without liability for
trespass (except for actual damage caused by the Agent's gross negligence or
willful misconduct) to enter any premises where the Collateral may be located
for the purpose of taking possession of or removing the Collateral and,
generally, to exercise any and all rights afforded to a secured party under, and
subject to its obligations contained in, the Uniform Commercial Code as in
effect in any state or other applicable law. Without limiting the generality of
the foregoing, each Grantor agrees that the Agent shall have the right, subject
to the mandatory requirements of applicable law, to sell or otherwise dispose of
all or any part of the Collateral, at public or private sale or at any broker's
board or on
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any securities exchange, for cash, upon credit or for future delivery as the
Agent shall deem appropriate. Each such purchaser at any such sale shall hold
the property sold absolutely free from any claim or right on the part of the
applicable Grantor, and such Grantor hereby waives (to the extent permitted by
law) all rights of redemption, stay and appraisal which such Grantor now has or
may at any time in the future have under any rule of law or statute now existing
or hereafter enacted.
The Agent shall give the applicable Grantor 10 days' written notice (which
each Grantor agrees is reasonable notice within the meaning of Section 9-504(3)
of the NYUCC) of the Agent's intention to make any sale of such Grantor's
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Agent may fix and state in the notice of such sale. At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Agent may (in its sole and absolute discretion)
determine. The Agent shall not be obligated to make any sale of any Collateral
if it shall determine not to do so, regardless of the fact that notice of sale
of such Collateral shall have been given. The Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Agent until the sale price is paid in full by the purchaser
or purchasers thereof, but the Agent shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral so
sold and, in case of any such failure, such Collateral may be sold again upon
like notice. At any public sale made pursuant to this Section 15, the Agent may
bid for or purchase, free (to the extent permitted by law) from any right of
redemption, stay or appraisal on the part of any Grantor (all said rights being
also hereby waived and released to the extent permitted by law), with respect to
the Collateral or any part thereof offered for sale and the Agent may make
payment on account thereof by using any claim then due and payable to the Agent
or any Lender from such Grantor as a credit against the purchase price, and the
Agent may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to such Grantor therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Agent shall be free to carry out
such sale pursuant to such agreement, and no Grantor shall be entitled to the
return of the Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Agent shall have entered into such an agreement all
Events of Default shall have been remedied and the Secured Obligations paid in
full. Grantors, jointly and severally, shall remain liable for any deficiency.
As an alternative to exercising the power of sale herein conferred upon it, the
Agent may
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proceed by a suit or suits at law or in equity to foreclose this Agreement and
to sell the Collateral or any portion thereof pursuant to a judgment or decree
of a court or courts having competent jurisdiction or pursuant to a proceeding
by a court-appointed receiver.
Upon the occurrence and during the continuation of an Event of Default, the
Agent may exercise dominion and control over, and refuse to permit further
withdrawals (whether of money, securities, instruments or other property) from,
any deposit accounts maintained with the Agent constituting part of the
Collateral.
16. Application of Proceeds. The proceeds of any collection or sale of
Collateral, as well as any Collateral consisting of cash, shall be applied by
the Agent as follows:
FIRST, to the Agent to reimburse the Agent for that portion of the
payments, if any, made by it with respect to Letters of Credit for which a
Lender, as a participant in such Letter of Credit pursuant to Section 2.18 of
the Credit Agreement, failed to pay its pro rata share thereof as required
pursuant to such Section 2.18;
SECOND, to the payment of all reasonable costs and expenses incurred by the
Agent in connection with such collection or sale or otherwise in connection with
this Agreement or any of the Secured Obligations, including, but not limited to,
all court costs and the reasonable fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Agent hereunder on behalf of
the Grantors and any other reasonable costs or expenses incurred in connection
with the exercise of any right or remedy hereunder;
THIRD, to the Agent to be held as cash collateral to the extent of the
undrawn amounts, if any, of outstanding Letters of Credit;
FOURTH, pro rata to the payment in full of principal and interest in
respect of any Loans outstanding (pro rata as among the Lenders in accordance
with the amounts of the Loans made by them pursuant to the Credit Agreement);
FIFTH, to the payment in full of all Secured Obligations (other than those
referred to above) owed to the Lenders (pro rata as among the Lenders in
accordance with the amounts of Secured Obligations owed to each Lender on the
date of any such distribution); and
SIXTH, to the Indenture Trustee for the Senior Secured Notes, to the
appropriate Grantors, their successors and assigns, or to whosoever may be
lawfully entitled to receive same or as a court of competent jurisdiction may
otherwise direct.
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Upon any sale of the Collateral by the Agent (including, without limitation,
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Agent or such officer or be
answerable in any way for the misapplication thereof.
17. Locations of Collateral; Place of Business. (a) Each Grantor hereby
represents and warrants as to itself and the Collateral owned by it that all the
Collateral is located at the locations listed on Schedule I hereto and that its
federal employer identification number is as set forth on said Schedule. The
Grantors agree not to establish, or permit to be established, any other location
for Collateral unless all filings have been made under the Uniform Commercial
Code or similar filings as in effect in any state or other jurisdiction or
otherwise which are required for the Agent to continue to have a valid, legal
and perfected first priority security interest in the Collateral in which a
security interest may be perfected by such filing.
(b) Each Grantor confirms that its chief executive office, other offices
and the places where Inventory and Equipment are maintained are located as
indicated on Schedule I hereto. Each Grantor agrees not to change, or permit to
be changed, any such location unless all filings have been made under the
Uniform Commercial Code or similar filings or otherwise for the Agent to
continue to have a valid, legal and perfected first priority security interest
in the Collateral in which a security interest may be perfected by such filing.
18. Security Interest Absolute. All rights of the Agent hereunder, the
Security Interest, and all obligations of the Grantors hereunder, shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any other
agreement with respect to any of the Secured Obligations or any other agreement
or instrument relating to any of 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
Secured Obligations, or any other amendment or waiver of or consent to any
departure from the Credit Agreement, any other Loan Document or any other
agreement or instrument, (iii) any exchange, release or nonperfection of any
Lien on other Collateral, or any release or amendment or waiver of or consent to
or departure from any guarantee, for all or any of the Secured Obligations, or
(iv) any other circumstance which might otherwise constitute a defense available
to, or discharge of, the Grantors, any of the Guarantors or any other obligor in
respect of the Secured Obligations or in respect of this Agreement (other than
the indefeasible payment in full of the Secured Obligations and subject to
Section 28 hereof).
19. No Waiver. No failure on the part of the Agent to exercise, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy by
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the Agent preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law. The Agent and the Lenders shall
not be deemed to have waived any rights hereunder or under any other agreement
or instrument unless such waiver shall be in writing and signed by such parties.
20. Agent Appointed Attorney-in-Fact. Each Grantor hereby appoints the
Agent the attorney-in-fact of such Grantor upon the occurrence and during the
continuance of an Event of Default solely for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest.
21. Agent's Fees and Expenses. The provisions of Section 11.04 of the
Credit Agreement with respect to the reimbursement of fees and expenses and
indemnification are hereby deemed incorporated herein in their entirety and
shall be binding upon each of the Grantors as if set forth herein, and each
Grantor, jointly and severally shall be obligated to, (x) upon demand, pay to
the Agent the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts or agents which
the Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody or preservation of, or the sale or other disposition of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Agent hereunder or (iv) the
failure by any Grantor to perform or observe any of the provisions hereof, and
(y) indemnify the Agent and the Lenders, in each case to the same extent set
forth in Section 11.04 of the Credit Agreement. Any such amounts payable as
provided hereunder or thereunder shall be additional Secured Obligations secured
hereby and by the other Security Documents.
22. Binding Agreement; Assignments. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
the Grantors shall not be permitted to assign this Agreement or any interest
herein or in the Collateral, or any part thereof, or any cash or property held
by the Agent as Collateral under this Agreement, except as contemplated or
permitted by this Agreement or the Credit Agreement.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING NEW YORK CONFLICTS
PRINCIPLES).
12
24. Notices. All communications and notices hereunder shall be in writing
and shall be given (i) in the case of any Grantor incorporated under the laws of
any state of the United States of America, in care of Maska U.S., Inc. at 00
Xxxxx 00, Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000 Attention: Xxxxxxx
Xxxxx, Vice President-Finance (Telecopy No. (000) 000-0000), with a copy to
Xxxxxx Xxxxx & Xxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxx X. Xxxxxx, Esq. (Telecopy No. (000) 000-0000), (ii) in the case
of any Grantor organized under the Business Corporations Act (New Brunswick), in
care of SLM International, Inc. at 7405 Trans Canada Highway, Suite 300, St.
Laurent, Quebec H4T 1Z2, Canada, Attention: Xxxxxxx Xxxxx, Vice
President-Finance (Telecopy No. (000) 000-0000), with a copy to Xxxxxx, Xxxxx &
Bockius, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000- 0060, Attention: Xxxxx
X. Xxxxxx, Esq. (Telecopy No. (000) 000-0000), and (iii) in the case of any
other person, as provided in the Credit Agreement.
25. Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable the remaining
provisions contained herein shall not in any way be affected or impaired.
26. Section Headings. Section headings used herein are for convenience only
and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
27. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Agreement shall be
effective when a counterpart which bears the signature of the Grantors shall
have been delivered to the Agent, and the Agent shall have executed this
Agreement.
28. Termination. This Agreement and the Security Interest shall terminate
when (a) all the Secured Obligations have been fully and indefeasibly paid in
cash, (b) the Lenders have no further commitment to make any Loans under the
Credit Agreement, and (c) the Agent shall have no further obligation to issue
any Letters of Credit, at which time the Agent shall execute and deliver to the
Grantors all Uniform Commercial Code termination statements and similar
documents which the Grantor shall reasonably request to evidence such
termination; provided, however, that all indemnities of the Grantors contained
in this Agreement shall survive, and remain operative and in full force and
effect regardless of, the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Security
Agreement as of the day and year first above written.
SLM INTERNATIONAL, INC.
By:______________________________
Name:
Title:
#1 APPAREL, INC.
By:______________________________
Name:
Title:
MASKA U.S., INC.
By:______________________________
Name:
Title:
#1 APPAREL CANADA INC.
By:______________________________
Name:
Title:
SLM TRADEMARK ACQUISITION CORP.
By:______________________________
Name:
Title:
SLM TRADEMARK ACQUISITION CANADA
CORPORATION
CORPORATION D'ACQUISITION DE
MARQUE DE COMMERCE SLM CANADA
By:______________________________
Name:
Title:
SPORT MASKA INC.
By:______________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Agent
By:______________________________
Name:
Title:
