EXECUTION
PLEDGE AGREEMENT
AND
IRREVOCABLE PROXY
PLEDGE AGREEMENT dated as of April 1, 1997 among SLM International, Inc., a
Delaware corporation (the "Company"), #1 Apparel, Inc., a Delaware corporation
("#1 Apparel"), Maska U.S., Inc., a Vermont corporation ("Maska U.S."),SLM
Trademark Acquisition Corp., a Delaware corporation ("Acquisition"), Sport Maska
Inc., a corporation under the New Brunswick Business Corporations Act ("Maska"),
#1 Apparel Canada Inc., a corporation under the New Brunswick Business
Corporations Act ("#1 Apparel Canada"), SLM Trademark Acquisition Canada
Corporation/Corporation D'Acquisition De Marque De Commerce SLM Canada, a
corporation under the New Brunswick Business Corporations Act ("TACC"; TACC, the
Company, #1 Apparel, Maska X.X., Xxxxxxxxxxx, #0 Xxxxxxx Xxxxxx and Maska are
each sometimes referred to herein as a "Grantor" and collectively as the
"Grantors") and The Bank of New York, a banking corporation organized and
existing under the laws of the State of New York, as trustee and collateral
agent (the "Trustee") for the Holders referred to in the Senior Secured Note
Indenture dated as of the date hereof, among the Company, as issuer, the
Guarantors named therein, as guarantors, and the Trustee (as supplemented or
modified from time to time in accordance with its terms, the "Indenture"). All
capitalized terms used herein and not defined herein shall have the meanings set
forth in the Indenture.
The Holders have agreed to acquire the Securities pursuant to, and subject
to the terms and conditions of, the Indenture. Pursuant to the terms of the
Indenture, the Grantors are required to execute and deliver a pledge 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 Securities (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 the Company, would accrue on such
obligations, whether or not a claim is allowed against the Company for such
interest in the related bankruptcy proceeding), when and as due, whether at
maturity, by acceleration, upon one or more dates set for redemption or
otherwise, (b) all obligations of the Grantors at any time and from time to time
under this Pledge Agreement and (c) all other obligations of the Grantors at any
time and from time to time under the Indenture and the Collateral Documents).
Accordingly, the Grantors and the Trustee hereby agree as follows:
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1. Pledge. As security for the payment and performance in full of the
Secured Obligations, each Grantor hereby transfers, grants, bargains, sells,
conveys, pledges, sets over, endorses over, and, subject to the Intercreditor
Agreement, delivers unto the Trustee, and grants to the Trustee, for its own
benefit and for the benefit of the Holders, a security interest in all of such
Grantor's right, title and interest in and to, and hypothecates to the Trustee
(the "Hypothec") all of its interest in, (a) the shares of capital stock owned
by such Grantor, which shares are listed in Part A of Schedule I annexed hereto
next to such Grantor's name (the "Initial Pledged Stock") and any additional
shares of, and all securities convertible into and warrants, options and other
rights to purchase or otherwise acquire, capital stock of the issuers listed in
Part A of Schedule I annexed hereto, or any corporation successor thereto
pursuant to an amalgamation or other reorganization, obtained in the future by
any of the Grantors (collectively, the Initial Pledged Stock together with all
such additional shares and securities pledged in the future, the "Pledged
Stock"), (b) all instruments of indebtedness naming (whether now existing or
hereinafter arising) any Grantor as payee thereunder, which indebtedness shall
be listed in Part B of Schedule I annexed hereto next to such Grantor's name
(the "Pledged Debt") and (c) subject to Section 5 below, all proceeds of the
Pledged Stock and Pledged Debt, including, without limitation, all cash,
dividends, securities or other property at any time and from time to time
receivable or otherwise distributed in respect of or in exchange for pursuant to
a purchase, redemption, conversion or cancellation or other transformation any
of or all such Pledged Stock or Pledged Debt, all renewals thereof, and all
accessions and substitutions thereto (the items referred to in clauses (a)
through (c) being collectively called the "Collateral"). Upon delivery to the
Trustee, all securities now or notes now or hereafter included in the Collateral
including, without limitation, the Pledged Stock and the Pledged Debt (the
"Pledged Securities") shall be accompanied by undated stock or note powers, as
the case may be, duly executed in blank or other instruments of transfer
satisfactory to the Trustee and by such other instruments and documents as the
Trustee may reasonably request. Each delivery of Pledged Securities shall be
accompanied by a schedule showing a description of the securities theretofore
and then being pledged hereunder, which schedule shall be attached hereto as
Schedule I and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered.
To the extent that the Civil Code of Quebec should be found to apply, the
amount of the Hypothec granted hereby shall be Cdn $75,000,000 with interest
thereon, from the date hereof at the rate of 25% per annum.
2. Delivery of Collateral. Subject to the Intercreditor Agreement, each
Grantor agrees to deliver promptly or cause to be delivered promptly to the
Trustee, for its own benefit and for the benefit of the Holders, any and all
Pledged Securities, and any and all certificates or other instruments or
documents representing any of the Collateral (together with any necessary stock
power, note power or endorsement).
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3. Representations, Warranties and Covenants. Each Grantor hereby
represents, warrants and covenants as to itself and the Collateral pledged by it
hereunder to and with the Trustee that:
(a) except for the security interest and the Hypothec granted to the
Trustee and Liens permitted under the Indenture, each Grantor (i) is and,
subject to the provisions of the Indenture, will at all times continue to be the
direct owner, beneficially and of record, of the Pledged Stock that it is
pledging hereunder and is and will continue to be the holder of the Pledged Debt
that it is pledging hereunder (provided that the Company may transfer its shares
of #1 Apparel Canada to Maska so long as the Trustee's Lien attaches thereto and
there is executed and delivered a revised Schedule I in form satisfactory to the
Trustee), (ii) holds the Collateral that it is pledging hereunder free and clear
of all Liens, charges, encumbrances and security interests of every kind and
nature, and (iii) will make no assignment, pledge, hypothecation or, subject to
the provisions of the Indenture, transfer of, grant any option or similar right
with respect to, or create or suffer to exist any security interest in, the
Collateral (or any part thereof) that it is pledging hereunder including,
without limitation, by virtue of becoming bound by any agreement which restricts
in any manner the rights of any present or future holder of any Pledged Stock
with respect thereto, and (iv) subject to Section 5 below and the Intercreditor
Agreement, will cause any and all Collateral, whether for value paid by a
Grantor or otherwise, to be forthwith deposited with the Trustee and pledged or
assigned hereunder;
(b) each Grantor (i) has the requisite power and authority to pledge the
Collateral it is pledging hereunder in the manner hereby done or contemplated,
(ii) will not amend, modify or supplement any Pledged Debt without the prior
written consent of the Trustee, nor forgive any Indebtedness evidenced by any
Pledged Debt, and (iii) will defend its title or interest thereto or therein
against any and all Liens, however arising, of all Persons whomsoever (other
than the Liens permitted by the Indenture);
(c) no consent or approval not obtained of any governmental body or
regulatory authority or any securities exchange was or is necessary to the
validity of the pledge, and security interests effected hereby;
(d) by virtue of the execution and delivery by each Grantor of this
Agreement, when the certificates, instruments or other documents representing or
evidencing the Collateral are delivered to the Trustee in accordance with this
Agreement, the Trustee will obtain a valid and perfected first priority security
interest and Hypothec in such Collateral as security for the repayment of the
Secured Obligations;
(e) the pledge effected hereby is effective to vest in the Trustee the
rights of the Trustee in the Collateral as set forth herein;
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(f) all of the Pledged Stock has been duly authorized and validly issued
and as at the date hereof, (A) the Initial Pledged Stock constitutes (i) all of
the issued and outstanding shares of capital stock of the issuers listed on Part
A of Schedule I annexed hereto, (ii) 50% of the issued and outstanding shares of
capital stock of CCM Holdings (1983) Inc., and (iii) all outstanding warrants,
options or other rights to purchase, or other agreements outstanding with
respect to, or property that is now or hereafter convertible into, or that
requires the issuance or sale of, any Initial Pledged Stock and such Pledged
Stock has been validly pledged to the Trustee pursuant hereto;
(g) the Pledged Debt constitutes all of the issued and outstanding
intercompany Indebtedness, evidenced by a promissory note of the respective
issuers thereof owing to such Grantor;
(h) pledge hereunder, immediately upon its acquisition (directly of
indirectly) thereof, any and all shares of stock of any Person that, after the
date of this Agreement, becomes, as a result of any occurrence, a direct
Subsidiary of such Grantor; and
(i) (i) pledge hereunder, immediately upon their issuance, any and all
instruments or other evidences of additional Indebtedness from time to time owed
to such Grantor by any obligor on the Pledged Debt, and (ii) pledge hereunder,
immediately upon their issuance, any and all instruments or other evidences of
Indebtedness from time to time owed to such Grantor by any Person that after the
date of this Agreement becomes, as a result of any occurrence, a direct or
indirect Subsidiary of such Grantor.
All representations, warranties and covenants 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 14 hereof.
4. Registration in Nominee Name; Denominations. Subject to the
Intercreditor Agreement, upon the occurrence and during the continuance of an
Event of Default, the Trustee shall have the right (in its sole and absolute
discretion with subsequent notice to the Grantors) to hold the Pledged
Securities in its own name or the name of its nominee. In addition, the Trustee
shall at all times have the right to exchange the certificates representing any
of the Pledged Securities for certificates of smaller or larger denominations
for any purpose consistent with this Agreement.
5. Voting Rights; Dividends; Irrevocable Proxy; etc. (a) Unless and until
an Event of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all voting and/or
consensual rights and powers accruing to an owner of Pledged Securities or any
part thereof for any purpose not inconsistent with the terms of this Agreement,
the Indenture, and the other
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Collateral Documents, provided that such action would not adversely affect the
rights and remedies inuring to the Trustee or the Holders under this Agreement
or the Indenture or the ability of the Trustee or the Holders to exercise the
same.
(ii) The Trustee shall execute and deliver to each Grantor, or cause to be
executed and delivered to each Grantor, all such proxies, powers of attorney,
and other instruments as such Grantor may reasonably request for the purpose of
enabling such Grantor to exercise the voting and/or consensual rights and powers
which it is entitled to exercise pursuant to subparagraph (i) above and to
receive the cash dividends it is entitled to receive pursuant to subparagraph
(iii) below.
(iii) Each Grantor shall be entitled to receive and retain any and all cash
dividends, principal and interest paid on the Pledged Securities only to the
extent that such cash dividends, principal and interest are permitted by, and
otherwise paid in accordance with the terms and conditions of the Indenture, the
Collateral Documents and applicable laws. Any and all
x noncash dividends,
y. return of capital, capital surplus or paid-in surplus, dividends paid or
payable in cash or otherwise in connection with a partial or total liquidation
or dis- solution, principal, interest and
z. other distributions made on or in respect of Pledged Securities (other
than distributions described in the initial sentence in (a)(iii) above), whether
paid or payable in cash or otherwise, whether resulting from a subdivision,
combination or reclassification of the outstanding capital stock of the issuer
of any Pledged Securities or received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer may
be a party or otherwise,
shall be and become part of the Collateral, and, if received by any Grantor,
shall not be commingled by such Grantor with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in trust for the
benefit of the Trustee and the Holders and, subject to the Intercreditor
Agreement, shall be forthwith delivered to the Trustee in the same form as so
received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Grantor to receive any dividends, principal, interest, stock,
instruments, securities, and other distributions which such Grantor is
authorized to receive pursuant to paragraph (a)(iii) of this Section 5 shall
cease, and all such rights shall thereupon become vested in the Trustee, which
shall have the sole and exclusive right and authority to receive and retain such
dividends, principal, interest, stock, instruments, securities and other
distributions which Grantor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 5. All dividends, principal, interest, stock,
instruments, securities and other distributions which Grantor is
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authorized to receive pursuant to paragraph (a)(iii) of this Section 5 which are
received by any Grantor contrary to the provisions of this Section 5(b) shall be
received in trust for the benefit of the Trustee, shall be segregated from other
property or funds of such Grantor and shall be forthwith delivered to the
Trustee as Collateral in the same form as so received (with any necessary
endorsement). Any and all money and other property paid over to or received by
the Trustee pursuant to the provisions of this Section 5(b) shall be retained by
the Trustee in an account to be established by the Trustee upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 9 hereof. After all Events of Default have been cured or waived, the
Trustee shall, within five Business Days after all such Events of Default have
been cured or waived, each Grantor shall again be entitled to receive dividends,
principal, interest, stock instruments, securities and other distributions which
such Grantor is entitled to receive pursuant to paragraph (a)(iii) of this
Section 5.
(c) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Grantor to exercise the voting and consensual rights and
powers which it is entitled to exercise pursuant to Section 5(a)(i) shall cease,
and pursuant to the irrevocable proxy granted herein, all such rights shall
thereupon become vested in the Trustee, which shall have the sole and exclusive
right and authority to exercise such voting and consensual rights and powers;
provided that, unless otherwise directed by the Requisite Holders, the Trustee
shall have the right from time to time following and during the continuance of
an Event of Default to permit the applicable Grantors to exercise such rights.
After all Events of Default have been cured or waived, each Grantor shall have
the right to exercise the voting and consensual rights and powers that it would
otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i)
above and the obligations of the Trustee pursuant to the terms of paragraph
(a)(ii) of this Section 5 shall be reinstated.
(d) As long as the Indenture remains in effect and until all of the Secured
Obligations have been paid fully and indefeasibly, any payments made in respect
of the Pledged Debt shall be and become part of the Collateral, and, if received
by any Grantor, shall not be commingled by such Grantor with any of its other
funds or property but shall be held separate and apart therefrom, shall be held
in trust for the benefit of the Trustee and the Holders and shall be forthwith
delivered to the Trustee in the same form as so received.
(e) In order to permit the Trustee to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section 5(c)
and to receive all dividends and other distributions which it may be entitled to
receive under Section 5(a)(iii) or Section 5(b), each Grantor shall promptly
execute and deliver (or cause to be executed and delivered) to the Trustee all
such proxies, dividend payment orders and other instruments as the Trustee may
from time to time reasonably request.
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Without limiting the effect of the foregoing, each Grantor does hereby
constitute and appoint the Trustee as its proxy, and the Trustee shall have the
right, upon the occurrence and during the continuance of an Event of Default, to
exercise all rights, benefits, privileges and powers accruing to such Grantor,
as owner of the Pledged Securities, including, without limitation, giving or
withholding consent, calling and attending shareholders meetings to be held from
time to time with full power to vote and act for and in the name, place and
stead of such Grantor and in the same manner, to the same extent, and with the
same effect that such Grantor would if personally present at such meetings,
giving to the Trustee full power of substitution and revocation, which proxy
shall be effective, automatically and without the necessity of any action
(including any transfer of any Pledged Stock on the record books of the issuer
thereof) by any Person (including the issuer of the Pledged Stock or any officer
or agent thereof).
THIS PROXY IS IRREVOCABLE
Other than the proxies given by the Grantors to the Agent, any proxy of
proxies heretofore given by any Grantor to any Person or Persons whatsoever are
hereby revoked. THIS PROXY SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL SUCH
TIME AS ALL SECURED OBLIGATIONS ARE PAID AND SATISFIED IN FULL IN ACCORDANCE
WITH THE TERMS OF THE INDENTURE.
6. Issuance of Additional Stock. Except as may be permitted by the
Indenture, each Grantor agrees that it will cause each of its Subsidiaries not
to issue any stock or other securities, whether in addition to, by stock
dividend or other distribution upon, or in substitution for, the Pledged
Securities or otherwise.
7. Supplemental Documentation. In connection with the execution and
delivery of this Agreement each Grantor shall furnish or cause to be furnished
to the Trustee on or prior to the Closing Date a certificate, substantially in
the form of Annex A hereto, signed by an Authorized 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 3 hereof are true and
correct and that such Grantor is in compliance with all conditions, agreements
and covenants to be observed or performed hereunder.
8. Remedies upon Event of Default. Subject to the Intercreditor Agreement,
if an Event of Default shall have occurred and be continuing, the Trustee may,
in addition to all other rights and remedies provided for herein or otherwise
available to it, including all the rights and remedies of a secured party under
the UCC as in effect in any relevant jurisdiction (whether or not the UCC
applies to the affected Pledged Securities), sell or otherwise dispose of all or
any part of the Collateral, at public or private sale or at any broker's board
or on any securities exchange, for cash, upon credit or for future delivery as
the Trustee 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
any Grantor, and each Grantor hereby waives (to the extent permitted by law)
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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 Trustee 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 UCC as in effect in New York) of the Trustee'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 Trustee 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 Trustee may (in its sole and
absolute discretion) determine. The Trustee 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 Trustee
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 Trustee until the sale price is paid in full by
the purchaser or purchasers thereof, but the Trustee 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
8, the Trustee 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 Trustee may make payment on account thereof by using any claim then due and
payable to the Trustee or any Lender from such Grantor as a credit against the
purchase price, and the Trustee may, upon compliance with the terms of sale,
hold, retain and dispose of such property without further accountability to such
Grantor therefor. Grantors, jointly and severally, shall remain liable for any
deficiency. For purposes hereof, a written agreement to purchase the Collateral
or any portion thereof shall be treated as a sale thereof; the Trustee 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 Trustee shall have entered into such an
agreement all Events of Default shall have been remedied and the Secured
Obligations paid in full. As an alternative to exercising the power of sale
herein conferred upon it, the Trustee may proceed by a suit or suits at law or
in equity to foreclose this Agreement and to sell the Collateral or any portion
thereof pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.
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9. Application of Proceeds of Sale. The proceeds of any sale of Collateral,
as well as any Collateral consisting of cash, shall be applied by the Trustee in
accordance with Section 506 of the Indenture.
10. Trustee Appointed Attorney-in-Fact. Each Grantor hereby appoints the
Trustee 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 Trustee may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Trustee shall have the right, upon
the occurrence and during the continuance of an Event of Default, with full
power of substitution either in the Trustee's name or in the name of such
Grantor, to ask for, demand, xxx for, collect, receive receipt and give
acquittance for any and all moneys due or to become due and under and by virtue
of any Collateral, to endorse checks, drafts, orders and other instruments for
the payment of money payable to the applicable Grantor representing any interest
or dividend, or other distribution payable in respect of the Collateral or any
part thereof or on account thereof and to give full discharge for the same, to
settle, compromise, prosecute or defend any action, claim or proceeding with
respect thereto, and to sell, assign, endorse, pledge, transfer and make any
agreement respecting, or otherwise deal with, the same; provided, however, that
nothing herein contained shall be construed as requiring or obligating the
Trustee or the Holders to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by the Trustee or the Holders, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby, and no action taken by the Trustee or
the Holders or omitted to be taken with respect to the Collateral or any part
thereof shall give rise to any defense, counterclaim or offset in favor of any
Grantor or to any claim or action against the Trustee or the Holders in the
absence of the gross negligence or wilful misconduct of the Trustee or the
Holders.
11. No Waiver. No failure on the part of the Trustee 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 the Trustee 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
Trustee and the Holders 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.
12. Security Interest Absolute. All rights of the Trustee hereunder, the
grant of a security interest and Hypothec in the Collateral and all obligations
of the Grantors hereunder, shall be absolute and unconditional irrespective of
(i) any lack of validity or enforceability of the Indenture, any guarantee or
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
time, manner
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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 any consent to any departure
from the Indenture 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 a discharge of, any Grantor in
respect of the Secured Obligations or in respect of this Agreement (other than
the indefeasible payment in full of all of the Secured Obligations and subject
to Section 14 of this Agreement).
13. Trustee's Fees and Expenses. The provisions of Sections 503 and 607 of
the Indenture 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 Trustee 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 Trustee 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 Trustee hereunder or (iv)
the failure by any Grantor to perform or observe any of the provisions hereof,
and (y) indemnify the Trustee and the Holders. Any such amounts payable as
provided hereunder or thereunder shall be additional Secured Obligations secured
hereby and by the other Security Documents. The obligations contained in this
Section 13 shall survive the termination of this Agreement or the resignation or
removal of the Trustee.
14. Termination. This Agreement shall terminate when all the Secured
Obligations have been fully and indefeasibly paid in cash, at which time the
Trustee shall reassign without any representations or warranties and deliver, to
the Grantors, or to such Person or Persons as the Grantors shall designate,
against receipt, such of the Collateral (if any) as shall not have been sold or
otherwise still be held by it hereunder, together with appropriate instruments
of reassignment and release; 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. Any such
reassignment shall be without recourse to or warranty by the Trustee and at the
expense of the Grantors. The security interest hereunder shall automatically
terminate in any Collateral that is permitted to be sold or disposed of by the
Indenture or as otherwise released pursuant to Section 1103 of the Indenture.
The Trustee shall promptly take such action, and execute such releases,
termination statements or other documents as may be reasonably requested by an
interested party, at the expense of the Grantors, to evidence the termination
and releases contemplated hereby.
15. Notices. All communications and notices hereunder shall be in writing
and shall be given (i) in the case of any Grantor organized 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,
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Vermont, 05033 (Telecopy No.: 802-222-5781), Attention: Xxxxxxx Xxxxx, Vice
President-Finance, 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 New
Brunswick Business Corporations Act, in care of SLM International, Inc. at 0000
Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xx. Xxxxxxx Xxxxxx X0X 0X0, Xxxxxx (Telecopy
No. (000) 000-0000), Attention: Xxxxxxx Xxxxx, Vice President-Finance, with a
copy to Xxxxxx, Xxxxx & Bockius, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxx X. Xxxxxx, Esq. (Telecopy No. (000) 000-0000), and
(iii) in the case of the Trustee, The Bank of New York at 000 Xxxxxxx Xxxxxx, 00
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, (Telecopy No.: 212-815-5915) Attention:
Corporate Trust Administrator.
16. Further Assurances. Each Grantor agrees at its expense to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Trustee may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Trustee its rights and remedies hereunder.
17. 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
no Grantor shall be permitted to assign this Agreement or any interest herein or
in the Collateral, or any part thereof, or otherwise pledge, encumber or grant
any option with respect to the Collateral, or any part thereof, or any cash or
property held by the Trustee as Collateral under this Agreement, except as
contemplated or permitted by this Agreement or the Indenture.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (INCLUDING ITS CONFLICTS OF LAWS
PRINCIPLES).
19. Severability. In case any one or more of the provisions contained in
this Agreement should 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.
20. 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 Trustee, and the Trustee shall have executed this
Agreement.
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21. Section Headings. Section headings used herein are for convenience only
and are not to affect the construction of, or be taken into consideration in
interpreting, this Agreement.
22. English Language. The parties hereto confirm that it is their wish that
this Agreement as well as any other documents relating thereto, including
notices, have been and shall be drawn up in the English language only.
Les parties aux presentes confirment leur volonte que cette convention de
meme que tous les documents, y compris tous avis, s'y rattachant, solent rediges
en langue anglaise seulement.
23. Intercreditor Agreement. This Agreement, including the right of Trustee
to exercise remedies hereunder, shall be subject to the terms and conditions of
the Intercreditor Agreement. Notwithstanding the foregoing or any reference to
the Intercreditor Agreement herein, each Grantor agrees and acknowledges that
neither this Agreement nor the Intercreditor Agreement provides such Grantor
with any rights as a third party beneficiary or otherwise.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Pledge
Agreement as of the day and year first above written.
SLM INTERNATIONAL, INC.
By:______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
#1 APPAREL, INC.
By:______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
MASKA U.S., INC.
By:______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
SLM TRADEMARK ACQUISITION CORP.
By:______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
SPORT MASKA INC.
By:______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
NY1-497088 EXECUTION
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SLM TRADEMARK ACQUISITION
CANADA CORPORATION
CORPORATION D'ACQUISITION DE
MARQUE DE COMMERCE SLM CANADA
By:______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
#1 APPAREL CANADA INC.
By:_______________________________
Name: Xxxxxxx Xxxxx
Title: Vice President-Finance
THE BANK OF NEW YORK, as Trustee
By_____________________________
Name:
Title:
NY1-497088 EXECUTION
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