SPORT MASKA INC.
(Continued under the laws of the Province of New Brunswick)
DEBENTURE $50,000,000 U.S.
A. PROMISE TO PAY
1. SPORT MASKA INC. (the "Company") for value received hereby agrees with THE
CHASE MANHATTAN BANK OF CANADA from time to time (the "Secured Party") that it
will, subject to the provisions of that certain Delivery Agreement made in
favour of the Secured Party by the Company of even date herewith (the "Delivery
Agreement") on demand pay to the Secured Party the principal sum of FIFTY
MILLION UNITED STATES DOLLARS ($50,000,000 U.S.). The Company will also, subject
to the provisions of the Delivery Agreement, pay to the Secured Party, as and
when demanded, interest on the said principal sum. The Company will pay such
interest at the rate of 25% per annum calculated and payable monthly not in
advance, both before and after demand and before and after default, judgment and
execution from the date hereof until payment in full of all amounts owing
hereunder.
X. XXXXX OF MORTGAGES, CHARGES AND SECURITY INTERESTS
2. As security for payment of the principal and interest and all other
indebtedness and liability from time to time payable hereunder, the Company
hereby:
(a) mortgages and charges (subject to the exceptions as to leaseholds
hereinafter contained) as and by way of a fixed and specific mortgage and charge
to and in favour of the Secured Party, and grants to the Secured Party a
security interest in, all real and immovable property (including, by way of
sublease, leasehold lands) now or hereafter owned or acquired by the Company
and all buildings, erections, improvements, fixtures and plant now or hereafter
owned or acquired by the Company (whether the same form part of the realty or
not) and all appurtenances to any of the foregoing including without limiting
the generality of the foregoing the property described in Appendix "A" hereto
(collectively, the "Lands"); "real and immovable
2.
property" shall include any interest in or right with respect to real and
immovable property;
(b) mortgages and charges to the Secured Party as and by way of a fixed and
specific mortgage and charge, and grants to the Secured Party a security
interest in all present and future:
(i) all income, revenues and profits derived from any tenancy, use or
occupation of the Lands and all rents and other sums payable to the
Company pursuant to the terms of any leases, licences, subleases,
agreements to lease, license or sublease, or rights to occupy the
Lands (each a "lease");
(ii) benefits, advantages and powers to be derived from such leases,
with full power and authority to demand, sue for, recover, receive and
give receipts for all rents and other moneys payable thereunder and
otherwise to enforce the rights of the landlord thereunder on behalf
of and in the name of the Company; and
(iii) benefit of all guarantees and indemnities with respect to any
leases and the performance of any obligations of any tenant
thereunder;
(c) mortgages and charges to the Secured Party as and by way of a fixed and
specific mortgage and charge, and grants to the Secured Party a security
interest in, all its present and future equipment, including, without limiting
the generality of the foregoing, all fixtures, plant, machinery, tools and
furniture now or hereafter owned or acquired and any equipment specifically
listed or otherwise described in Appendix "B" hereto;
(d) mortgages and charges to the Secured Party, and grants to the Secured
Party a security interest in, all its present and future inventory, including,
without limiting the generality of the foregoing, all raw materials, goods in
process, finished goods and packaging material and goods acquired or held for
sale or furnished or to be furnished under contracts of rental or service;
(e) mortgages and charges to the Secured Party, and grants to the Secured
Party a security interest in, all its other goods and tangible personal
property;
(f) mortgages and charges to the Secured Party, and grants to the Secured
Party a security interest in all its present and future intangibles, including,
without limiting the generality of the foregoing, all its present and future
book debts, accounts and other amounts receivable, contract rights and chooses
in action of every kind or nature including insurance rights arising from or out
of the assets referred to in subparagraphs (a), (b), (c), (d) or (e) hereof,
goodwill, chattel paper, instruments of title, negotiable documents of title,
investments, money and securities and all
3.
dividends, income or other distributions, whether paid or distributed in cash,
securities or other property, in respect of any of the property described in
this section 2;
(g) charges in favour of the Secured Party as and by way of a floating
charge, and grants to the Secured Party a security interest in, its business and
undertaking and all its property and assets, real and personal, moveable or
immovable, of whatsoever nature and kind, both present and future (other than
property and assets hereby validly assigned or subjected to a specific mortgage,
charge or security interest by subparagraphs (a), (b), (c), (d), (e) or (f)
hereof and the exceptions hereinafter contained); and
(h) mortgages and charges in favour of the Secured Party and grants to the
Secured Party a security interest in the proceeds arising from any of the assets
referred to in this paragraph 2;
all of which present and future property and assets of the Company referred to
in subparagraphs 2 (a), (b), (c), (d), (e), (f), (g) and (h) hereof are
hereinafter collectively called the "Charged Assets". All rights of the Secured
Party hereunder, the security, and all obligations of the Company hereunder,
shall be absolute and unconditional irrespective of (i) any lack of validity or
enforceability of any loan document including the credit agreement dated as of
April 1, 1997 between Sport Maska Inc. (the "Borrower") and the Secured Party
(which, as amended, supplemented or restated from time to time is herein called
the "Credit Agreement") any other agreement with respect to the indebtedness and
liability secured hereby or any other agreement or instrument relating to the
foregoing, (ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the indebtedness and liability under the Credit
Agreement or any indebtedness or liability secured hereby or any other amendment
or waiver of or consent to any departure from any guarantee, any loan document,
including the Credit Agreement, or any other agreement or instrument, (iii) any
exchange, release or nonperfection of any Charged Asset or any release or
amendment or waiver of or consent to or departure from any guarantee for all or
any of the indebtedness and liability under the Credit Agreement or any
indebtedness or liability secured hereby, or (iv) any other circumstance which
might otherwise constitute a defence available to, or discharge of, the Company,
any guarantor or any other obligor in respect of the indebtedness and liability,
secured by or in respect of this debenture.
C. LOCATION OF CHARGED ASSETS
3. The Company hereby represents and warrants to the Secured Party that:
4.
(a) its chief executive office is presently at:
0000 XxxxxXxxxxx Xxxxxxx
Xxxxx 000
Xx.-Xxxxxxx, Xxxxxx
X0X 0X0;
(b) all of its ledgers, books of account and other financial records are
presently at the location set out in subparagraph 3(a) and at:
0000 Xxxxxx Xxxxxx
Xx.-Xxxxxxxxx, Xxxxxx
X0X 0X0;
(c) the Charged Assets (other than the assets described in subparagraph
3(b)) are presently at the locations set out in subparagraphs 3(a) and
(b) and in Appendix "C" hereto.
4. The Charged Assets now situate in the Provinces of Ontario and Quebec are on
the date hereof primarily situate or located at the location(s) set out in
paragraph 3 hereof but may from time to time be located at other premises of the
Company in Ontario or Quebec. The tangible personal property constituting the
Charged Assets may also be located at other places in Ontario or Quebec while in
transit to and from such locations and premises and may, from time to time, be
situate or located at any other place in Ontario or Quebec when on lease or
consignment to any lessee or consignee from the Company.
D. LIMITED EXCEPTIONS TO GRANT OF CHARGE
5. The last day of any term reserved by any lease or sublease, oral or written,
or any agreement therefor, now held or hereafter acquired by the Company, and
whether falling within the general or particular description of the Charged
Assets, is hereby and shall be excepted out of the mortgage, charge and security
interest hereby or by any other instrument created, but the Company shall stand
possessed of the reversion of one day remaining in the Company in respect of any
such term, for the time being demised, as aforesaid, upon trust to assign and
dispose of the same as any purchaser of such term shall direct.
E. AGREEMENTS OF THE COMPANY
6. The Company and the Secured Party covenant and agree that:
5.
(a) they have not agreed to postpone the time for attachment of the
security interests granted hereby with respect to the Charged Assets presently
existing and that such security interests shall attach to the Charged Assets
acquired after the date hereof as soon as the Company has rights in such assets;
(b) in accordance with subsection 7(3) of the Land Registration Reform Act
(Ontario), the covenants deemed to be included in a charge by subsection 7(1) of
such Act are expressly excluded from this debenture; and
(c) subject to paragraph 29 hereof, the Company shall not at any time
hereafter make any claim to the Charged Assets, challenge the Secured Party's
rights thereto or make any demands upon the Secured Party with respect to the
Charged Assets and that the Secured Party shall from this time forward be
exonerated and discharged of and from all claims and demands which the Company
might or could have against the Secured Party with respect to the Charged
Assets.
7. The Company represents and warrants to the Secured Party that:
(a) the Company is the sole registered, legal and beneficial owner of an
estate in fee simple in the Lands described in Appendix "A" hereto with good and
marketable title thereto, and the Company is the sole legal and beneficial owner
of the remainder of the Charged Assets, free of encumbrances or other right
whatsoever except for the liens permitted under the Credit Agreement or
otherwise approved by the Secured Party in writing ("Permitted Encumbrances");
(b) the Company is the sole owner of the Charged Assets (except for future
property);
(c) the Company is duly incorporated and in good standing under the laws of
its jurisdiction of incorporation;
(d) neither the execution of this debenture nor the performance by the
Company of its obligations hereunder will result in any breach of or default
under any law or any other agreement or document to which the Company is a party
or by which it may be bound; and
(e) the Company has the right, power and lawful authority to charge and
mortgage to the Secured Party, and otherwise grant security interests in all of
its right, title and interest in and to, the Charged Assets as provided for in
this debenture and this debenture constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting creditors' rights and the discretion
exercisable by Courts of competent jurisdiction in respect of the availability
of equitable remedies.
6.
8. The Company agrees with the Secured Party that until all indebtedness and
liability owing by the Company to the Secured Party are paid in full:
(a) it will not, without the prior written consent of the Secured Party:
(i) incur, create, assume or permit to exist any further or
additional indebtedness except as permitted under the terms of
the Credit Agreement;
(ii) create, assume or permit to exist any liens upon, assign,
transfer, mortgage, charge, pledge, hypothecate or otherwise
grant security over or a security interest in any of the Charged
Assets except to the Secured Party and except Permitted
Encumbrances;
(iii) sell, transfer, assign, or otherwise dispose of any of the
Charged Assets or any group of property and assets forming part
of the Charged Assets except for a sale of inventory in the
ordinary course of business and such other sales as permitted
under the Credit Agreement;
(iv) merge or amalgamate with any other corporation except as
permitted under the Credit Agreement;
(v) change the location of its chief executive office, place of
business or principal place of residence without providing the
Secured Party with fifteen days' prior written notice;
(vi) take any action (or not take any action) which would result in a
default hereunder or an Event of Default under the Credit
Agreement;
(vii) remove the Charged Assets from the locations referred to in
paragraph 3 hereof unless such removal is a permitted sale of the
Charged Assets or keep the Charged Assets at a location other
than the locations referred to in paragraph 3 hereof provided
that the Company may also remove Charged Assets to another
location upon the condition that it provide the Secured Party
with at least 14 days prior written notice of its intention to do
so and provides to the Secured Party prior to such removal an
agreement from any lessor of such location as provided in
subparagraph 9(1) hereof; or
(viii) change its name without giving prior written notice to the
Secured Party of the new name and the date upon which such change
of name will take effect; and
(b) it will:
7.
(i) hold the proceeds received from any direct or indirect dealing
with the Charged Assets in trust for the Secured Party after
either the occurrence of a default under the Credit Agreement or
the security constituted by this debenture becoming enforceable
or any of the Charged Assets are sold other than in the ordinary
course of business of the Company and for the purpose of carrying
on such business save and except as otherwise permitted by the
Credit Agreement, and forthwith remit such proceeds to the
Secured Party;
(ii) strictly comply with every covenant and undertaking heretofore or
hereafter given by it to the Secured Party and take any action
that may be necessary to enable any Borrower under the Credit
Agreement to comply with its Obligations thereunder;
(iii) permit the Secured Party at any time and from time to time, when
the security granted pursuant to this debenture shall have become
enforceable, to require any account debtor of the Company to make
payment to the Secured Party of any or all amounts owing by the
account debtor to the Company and the Secured Party may take
control of any proceeds referred to in subparagraph 2(h) hereof
and may hold all such amounts received from any account debtor
and any such proceeds as cash collateral as part of the Charged
Assets and as security for the indebtedness and liability secured
by this debenture;
(iv) deliver to the Secured Party promptly upon request, any documents
of title, instruments, securities and chattel paper constituting,
representing or relating to the Charged Assets and all statements
of account, bills, invoices and books of account relating to
accounts and all records, ledgers, reports, correspondence,
schedules, documents, statements, lists and other writings
relating to the Charged Assets for the purpose of inspecting,
auditing or copying same;
(v) at the Secured Party's request, cause all securities which
constitute Charged Assets to be registered in the name of the
Secured Party or its nominee and the Company hereby authorizes
the Secured Party to transfer such securities into the name of
the Secured Party or its nominee so that the Secured Party or its
nominee may appear as the sole owner of record of such
securities; the Company shall, at
8.
the request of the Secured Party, deliver to the Secured Party
appropriate powers of attorney for transfer in blank, duly
executed and with signatures guaranteed, in respect of such
securities;
(vi) immediately upon becoming aware thereof, notify the Secured Party
of any loss or destruction of, or substantial damage to, any
material portion of the Collateral (as defined in the Credit
Agreement), and any other matters materially affecting the value,
enforceability or collectibility of any of such Collateral;
(vii) promptly notify the Secured Party of the acquisition by it of
receivables or other amounts owing to it from persons located in
any jurisdiction other than Ontario or Quebec;
(viii) conduct a physical count of its inventory as provided in the
Credit Agreement.
9. The Company agrees with the Secured Party that:
(a) it will at all times fully perform and comply with all obligations
imposed on, assumed by or agreed to by it pursuant to any prior encumbrance of
the Lands or any part thereof or its interest therein, that it will pay all
rents and perform all obligations under the leases charged by this debenture and
that, if the Company shall fail so to do, the Secured Party may (but shall not
be obliged to) take any action the Secured Party deems necessary or desirable
acting reasonably to cure any default by the Company in the performance of or
compliance with any of the Company's obligations hereunder, under any lease or
imposed upon, assumed by or agreed to by the Company pursuant to any such prior
encumbrance;
(b) upon receipt by the Secured Party in regard to any such prior
encumbrance or any lease of any written notice of default by the Company, the
Secured Party may rely thereon and take any action as aforesaid, acting
reasonably, to cure such default even though the existence of such default or
the nature thereof may be questioned or denied by the Company or by any party on
behalf of the Company;
(c) at its option, the Secured Party may discharge past due taxes, liens,
security interests or other encumbrances (other than Permitted Encumbrances
which are not in default) at any time levied or placed on the Charged Assets and
may pay for the maintenance and preservation of the Charged Assets to the extent
the Company fails to do so, provided, however, that the Secured Party shall not
discharge such taxes, liens, security interests or other encumbrances or pay for
such maintenance or preservation prior to the occurrence and continuance of an
Event of Default under the Credit Agreement unless the Secured Party shall have
requested the Company to
9.
discharge such taxes, liens, security interests or other encumbrances or pay
such amounts (to the extent required by the Credit Agreement) and the Company
shall have failed or refused to do so within such period of time as shall have
been specified by the Secured Party in such notice; provided that nothing in
this debenture shall excuse the Company from the performance of any covenants or
other promises with respect to taxes, liens, security interests, hypothecs,
mortgages, prior claims or other encumbrances and maintenances;
(d) the Company hereby expressly grants to the Secured Party, and agrees
that the Secured Party shall have the absolute and immediate right to enter in
and upon the Lands or any part thereof to such extent and as often as the
Secured Party, in its sole discretion, acting reasonably, deems necessary or
desirable, in order to cure any such default by the Company;
(e) the Secured Party may pay and expend such sums of money as the Secured
Party in its sole discretion, acting reasonably, deems necessary for any purpose
provided for in subparagraphs 9(a), (b), (c) and (d), and the Company hereby
agrees to pay to the Secured Party, immediately upon notification by the Secured
Party and without demand, all such sums so paid and expended by the Secured
Party, together with interest thereon at the rate applicable to Prime Rate Loans
as defined in the Credit Agreement calculated and payable as provided for in the
Credit Agreement (the "Interest Rate");
(f) all sums so paid and expended by the Secured Party and such interest
thereon, shall be secured hereby in addition to all other moneys hereby secured
and in priority to all other mortgages and charges;
(g) if this debenture is or shall be outstanding at the expiration of the
term of any lease (a "material lease") of real property forming part of the
Charged Assets which is material to the conduct of the Company's business and
the Company shall refuse or neglect to exercise its right, if any, to renew such
material lease and to pay the fees, costs, charges and expenses incidental to
and payable upon such renewals, then, and as often as it shall happen, the
Secured Party may, at its sole discretion, effect such renewals in its own name
or otherwise, and in such case every such renewed material lease and the lands
and buildings thereby demised shall remain and be security to the Secured Party
for the indebtedness and liability secured by this debenture and as well for the
payment of all money paid by the Secured Party for every such renewal and the
Secured Party's costs, charges, and expenses and interest thereon at the
Interest Rate;
(h) it will not: (i) surrender any material lease or any rights of renewal
with respect thereto (except for the leases of premises located at 0000 Xx.
Xxxx, Xx.-Xxxxxxxxx, Xxxxxx and 0000 Xxx. Xxxx Boulevard, Beauport, Quebec);
subordinate any material
10.
lease to any mortgage of the fee interest of the landlord thereof in the lands
subject to a material lease, unless in connection with any such subordination
the Company obtains from the holder of such mortgage a non-disturbance agreement
in favour of the Company and its successors and assigns (including the Secured
Party) in form and substance satisfactory to the Secured Party (save and except
that with respect to existing leases, the Company shall only be required to use
commercially reasonable efforts to obtain such a non-disturbance agreement);
(ii) terminate or cancel any material lease without the prior written consent of
the Secured Party; or (iii) without the prior written consent of the Secured
Party, modify, change, supplement, alter or amend any material lease either
orally or in writing;
(i) no release or forbearance of any of the Company's obligations pursuant
to any material lease or pursuant to any prior encumbrance of the Company's
interest in the Lands or any part thereof including without limitation the
Company's obligations with respect to the payment of rent as provided for in any
such lease shall release the Company from any of the Company's obligations
pursuant to this debenture;
(j) unless the Secured Party shall otherwise expressly consent in writing,
the title in fee simple to the property demised by any material lease and the
leasehold estate shall not merge but shall always remain separate and distinct,
notwithstanding the union of said estates either in the landlord of any such
lease or the Company pursuant to any such lease or in a third party, by purchase
or otherwise; and
(k) if the Company shall, at any time before payment in full of the
indebtedness and liability secured by this debenture acquire the freehold title
to the Lands demised by any such lease, this mortgage and charge shall attach
and extend to, and constitute a mortgage and charge of such freehold estate; and
(l) the Company hereby agrees that it will not place the Charged Assets or
allow the Charged Assets to be placed on any premises that are leased unless the
lessor of such premises has first agreed in writing with the Secured Party to
subordinate and postpone any and all of its claims, security and rights to the
claims and security of the Secured Party; provided that this covenant will not
prohibit the Company from selling the Charged Assets in the normal course of the
Company's business as hereinbefore provided.
10. The Company hereby agrees that it will at all times, both before and after
default, do or cause to be done such additional things and execute and deliver
or cause to be executed and delivered all such further acts and documents as the
Secured Party may reasonably require for the better mortgaging, charging,
confirming and granting of security interests in the present or future Charged
Assets to the Secured Party,
11.
including, without limitation, the payment of any fees and taxes required in
connection with the execution and delivery of this debenture, the granting of
the security and the filing, recording, or registering of any financing
statements or other documents in connection therewith. If any amount payable
under, or in connection with, any of the Charged Assets shall be or become
evidenced by any promissory note or other instrument, such note or instrument
shall be promptly pledged and delivered to the Secured Party, duly endorsed in a
manner satisfactory to the Secured Party. If at any time the Company shall take
and perfect a security interest or hypothec in any property of an account debtor
or any other person to secure payment and performance of an account receivable,
the Company shall promptly assign such security interest or hypothec to the
Secured Party. Such assignment need not be filed, recorded or registered of
public record unless necessary to continue the perfected status of the security
interest or hypothec against creditors of and transferees from the account
debtor or other person granting the security interest or hypothec.
11. The Company shall, at its own cost and expense, take any and all actions
reasonably necessary to defend title to the Charged Assets against all persons
and to defend the security of the Secured Party in such Charged Assets, and the
priority thereof, against any adverse lien or encumbrance of any nature
whatsoever, except for such liens or encumbrances permitted by the Secured Party
including, without limitation, the Permitted Encumbrances.
12. The Company shall remain liable to observe and perform all the conditions
and obligations to be observed and performed by it under each contract and
agreement, interest or obligation relating to the Charged Assets, all in
accordance with the terms and conditions thereof and shall indemnify and hold
harmless the Secured Party from any and all such liabilities.
13. The Company will not, without the Secured Party's prior written consent,
grant any extension of the time of payment of any of its accounts receivable, or
compromise, compound or settle the same for less than the full amount thereof,
or release, in whole or in part, any person liable for the payment thereof, or
allow any credit or discount whatsoever thereon other than extensions, credits,
discounts, compromises or settlements granted or made in the ordinary course of
business. The provisions of Article IX of the Credit Agreement with respect to
the collection of receivables and the management of the Charged Assets are
hereby deemed incorporated herein in their entirety and shall be binding upon
the Company with respect to its accounts receivable as if set forth herein.
12.
F. DEFAULT
14. All indebtedness and liability owing by the Company to the Secured Party and
hereby secured shall, at the option of the Secured Party but subject to the
provisions of the Delivery Agreement, become payable and the security hereby
constituted shall become enforceable upon demand by the Secured Party.
15. The Secured Party may in writing (and not otherwise) waive any breach by the
Company of any of the provisions contained in this debenture or any default by
the Company in the observance or performance of any provision of this debenture;
provided always that no waiver by the Secured Party shall extend to or be taken
in any manner whatsoever to affect any subsequent breach or default, whether of
the same or a different nature, or the rights resulting therefrom.
G. REMEDIES OF THE SECURED PARTY
16. Whenever the security hereby constituted shall have become enforceable, and
so long as it shall remain enforceable, the Company will have no right to vote
or take any other action with respect to any securities constituting Charged
Assets or receive any dividends or interest (whether declared or payable before
or after the security hereby constituted becoming enforceable) in respect of the
Charged Assets and the Secured Party may proceed to realize such security and to
enforce its rights by:
(a) entry;
(b) the appointment by instrument in writing of a receiver or
receivers of the Charged Assets or any part thereof (which receiver or
receivers may be any person or persons, whether an officer or officers or
employee or employees of the Secured Party or not and the Secured Party may
remove any receiver or receivers so appointed and appoint another or others
in his or their stead);
(c) proceedings in any court of competent jurisdiction for the
appointment of a receiver or receivers or for sale of the Charged Assets or
any part thereof; or
(d) any other action, suit, remedy or proceeding authorized or
permitted hereby or by law or by equity.
In addition, the Secured Party may file such proofs of claim and other
documents as may be necessary or advisable in order to have its claim lodged in
any bankruptcy, insolvency winding-up or other judicial proceedings relative to
the Company.
13.
The Secured Party or any receiver or receivers so appointed shall have
power to:
(i) take possession of and to use the Charged Assets or any part thereof
with power to exclude the Company and its officers, employees and
agents therefrom;
(ii) carry on the business of the Company (including, but not limited to,
the taking or defending of any actions or legal proceedings, and the
doing or refraining from doing all other things as to it, acting
reasonably, may seem necessary or desirable in connection with the
business, operations and affairs of the Company);
(iii) take all such steps as it may consider necessary or desirable for the
purposes of preserving, maintaining and completing all or any part of
the Charged Assets and making such replacements thereof and
improvements and additions thereto as it shall consider expedient;
(iv) receive the rents, incomes and profits of any kind whatsoever from the
Charged Assets and pay therefrom
(A) any expenses of preserving, maintaining and completing the
Charged Assets, of making such replacements thereof and
improvements and additions thereto as it may consider expedient
and of carrying on all or any part of the business of the Company
relating to the Charged Assets, and
(B) any charges against the Charged Assets ranking in priority to or
pari passu with the security created by this debenture or the
payment of which may be necessary or desirable to preserve or
protect all or any part of the Charged Assets or the interest of
the Secured Party therein;
(v) lease all or any part of the Charged Assets and renew from time to
time all or any of the leases on such terms and conditions as the
Secured Party may determine;
(vi) with or without taking possession, take any action or proceedings to
enforce the performance of any covenant contained in any of the
leases;
14.
(vii) enjoy and exercise all the powers of the Company as it considers
necessary or desirable for the exercise of any and all of the remedies
provided for herein, including, without limitation, the powers to make
any arrangement or compromise on behalf and in the name of the Company
which it considers expedient, to purchase on credit and borrow money
on behalf and in the name of the Company and to advance its own moneys
to the Company, all at such rates of interest as it may consider
reasonable, and to enter into contracts and undertake obligations on
behalf of and in the name of the Company for any and all of the
foregoing purposes or which it considers necessary or desirable for
the exercise of any of the rights, powers and remedies provided for
herein, all of which borrowings, advances and obligations together
with interest thereon shall, at the discretion of the Secured Party,
be entitled to the security hereof in priority to the payment of the
obligations secured by this debenture;
Every receiver appointed by the Secured Party shall be deemed to be an
agent of the Company and not of the Secured Party for the purposes of
(i) carrying on and managing the business and affairs of the Company
and (ii) establishing liability for all of the acts or omissions of
the receiver while acting as such and the Secured Party shall not be
in any way responsible for any acts or omissions on the part of any
such receiver, its officers, employees and agents; provided that,
without restricting the generality of the foregoing, the Company
irrevocably authorizes the Secured Party to give instructions to the
receiver relating to the performance of its powers and discretions.
The appointment of a receiver or any thing which may be done by the
receiver shall not have the effect of constituting the Secured Party a
mortgagee in possession.
(viii) borrow money required for the maintenance, preservation or
protection of the Charged Assets or any part thereof or the carrying
on of the business of the Company;
(ix) further charge the Charged Assets in priority to the charge of this
debenture as security for money so borrowed;
15.
(x) vote and take all other action with respect to the securities
constituting Charged Assets and collect all revenues, dividends and
distributions distributed in connection with such securities; and
(xi) sell, lease or otherwise dispose of the whole or any part of the
Charged Assets on such terms and conditions and in such manner as the
receiver shall determine.
The Secured Party shall not be responsible for any actions or errors of omission
by the receiver or receivers in exercising any such powers.
In addition, the Secured Party may enter upon, use, occupy and possess the
Charged Assets or any part thereof, free from all encumbrances, liens and
charges, except for Permitted Encumbrances, without hindrance, interruption or
denial of the same by the Company or by any other person or persons, and may
lease or sell the whole or any part or parts of the Charged Assets. Any sale
hereunder may be made by public auction, by public tender or by private
contract, with or without notice and with or without advertising and without any
other formality (except as required by law), all of which are hereby waived by
the Company. Such sale shall be on such terms and conditions as to credit or
otherwise and as to upset or reserve bid or price as to the Secured Party in its
sole discretion may seem advantageous. In the case of any sale on credit or
partly on credit, the Secured Party shall not be accountable for any proceeds
thereof unless and until actually received by the Secured Party in cash. Such
sale may take place whether or not the Secured Party has taken possession of the
Charged Assets.
The Company agrees to pay to the Secured Party forthwith on demand all
expenses incurred by the Secured Party in the preparation, perfection,
administration and enforcement of this debenture (including without limitation
expenses incurred in considering and protecting or improving the Secured Party's
position, or attempting to do so, whether before or after default), all amounts
borrowed by the receiver from the Secured Party as hereinbefore provided and all
costs, charges, expenses and fees (including, without limiting the generality of
the foregoing, the fees and expenses of any receiver and legal fees on a
solicitor and client basis) of or incurred by the Secured Party and by any
receiver or receivers or agent or agents appointed by the Secured Party in
connection with the recovery or enforcing of payment of any moneys owing
hereunder, whether by realization, by taking possession or otherwise. All such
sums, together with interest thereon at the Interest Rate, shall be secured by
the charges contained herein. To the extent that the aggregate of the principal
and accrued interest secured hereby and such borrowed money, costs, fees and
expenses exceed the
16.
principal amount of this debenture, the Company hereby mortgages and charges and
grants a security interest in the Charged Assets to the Secured Party to secure
payment of such excess amount.
No remedy for the realization of the security hereof or for the enforcement
of the rights of the Secured Party shall be exclusive of or dependent on any
other such remedy, but any one or more of such remedies may from time to time be
exercised independently or in combination; and the exercise of any remedy under
any document in any jurisdiction shall not prejudice or affect the exercise of
any remedy under another document in any jurisdiction. The term "receiver" as
used in this debenture includes a receiver and manager.
The Secured Party shall not, nor shall any receiver appointed by it, be
liable for any failure to exercise its rights, powers or remedies arising
hereunder or otherwise, including without limitation any failure to take
possession of, collect, enforce, realize, sell, lease or otherwise dispose of,
preserve, maintain, complete, protect, replace or improve all or any part of the
Charged Assets, to carry on all or any part of the business of the Company or to
take any steps or proceedings for any such purposes. Neither the Secured Party
nor any receiver appointed by it shall have any obligation to take any steps or
proceedings to preserve rights against prior parties to or in respect of all or
any part of the Charged Assets, whether or not in its possession and neither the
Secured Party nor any receiver appointed by its shall be liable for failure to
do so. Subject to the foregoing, the Secured Party shall use reasonable care in
the custody and preservation of the Charged Assets in its possession.
17. Unless the provisions of the Credit Agreement otherwise provide any and all
payments made in respect of the indebtedness and liability secured by this
debenture from time to time may be applied to such part or parts of the
indebtedness and liability secured by this debenture as the Secured Party may
see fit, and unless the provisions of the Credit Agreement otherwise provide,
the Secured Party shall at all times and from time to time have the right to
change any appropriation as the Secured Party may see fit.
18. The proceeds of any collection or sale of the Charged Assets, as well as any
Charged Asset consisting of cash, shall be applied by the Secured Party as
provided in section 8.01 of the Credit Agreement.
Upon any sale of the Charged Assets by the Secured Party (including,
without limitation, pursuant to a power of sale granted by statute or under a
judicial proceeding) the receipt of the Secured Party or of the officer making
the sale shall be a
17.
sufficient discharge to the purchaser or purchasers of the Charged Assets so
sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Secured Party or
such officer or be answerable in any way for the misapplication thereof.
H. RIGHTS OF THE SECURED PARTY
19. The Secured Party may, in accordance with subparagraph 9(c) of this
debenture, pay and satisfy the whole or any part of any liens, taxes, rates,
charges or encumbrances now or hereafter existing in respect of any of the
Charged Assets (other than Permitted Encumbrances which are not in default) and
such payments together with all costs, charges and expenses which may be
incurred in connection with making such payments shall form part of the
indebtedness and liability secured by this debenture and shall be secured by the
mortgages, charges and security interests granted herein. In the event of the
Secured Party satisfying any such lien, charge or encumbrance, it shall be
entitled to all the equities and securities of the person or persons so paid and
is hereby authorized to obtain any discharge thereof and hold such discharge
without registration for so long as it may deem advisable to do so.
20. The Company grants to the Secured Party the right to set off against any and
all accounts, credits or balances maintained by it with the Secured Party, the
aggregate amount of any of the indebtedness and liability secured by this
debenture provided the same is due.
21. The Secured Party, without exonerating in whole or in part the Company, may
grant time, renewals, extensions, indulgences, releases and discharges to, may
take securities from and give the same and any or all existing securities up to,
may abstain from taking securities from or from perfecting securities of, may
accept compositions from, and may otherwise deal with the Company and all other
persons and securities as the Secured Party may see fit.
22. Nothing herein shall obligate the Secured Party to extend or amend any
credit to the Company.
23. The Secured Party may, upon the terms provided in the Credit Agreement,
assign, transfer and deliver to any transferee any of the indebtedness and
liability secured by this debenture or any security or any documents or
instruments
18.
held by the Secured Party in respect thereof provided that no such assignment,
transfer or delivery shall release the Company from any of the indebtedness and
liability secured by this debenture; and thereafter the Secured Party shall be
fully discharged from all responsibility with respect to the indebtedness and
liability secured by this debenture and security, documents and instruments so
assigned, transferred or delivered. Such transferee shall be vested with all
powers and rights of the Secured Party under such security, documents or
instruments but the Secured Party shall retain all rights and powers with
respect to any such security, documents or instruments not so assigned,
transferred or delivered. The Company shall not assign any of its rights or
obligations hereunder without the prior written consent of the Secured Party.
24. The Secured Party is hereby authorized to file, record or register, as the
case may be, one or more financing statements, financing change statements or
other documents in all jurisdictions which the Secured Party deems necessary or
appropriate for the purpose of perfecting, confirming, continuing, enforcing or
protecting the security held by the Secured Party in respect of the indebtedness
and liability secured by this debenture.
25. The Company hereby appoints the Secured Party the attorney of such Company
solely for the purposes of carrying out the provisions of this debenture and
taking any action or executing any instrument which the Secured Party may deem
necessary or advisable to accomplish the purposes herewith, which appointment is
irrevocable and coupled with an interest.
26. The Secured Party and such persons as the Secured Party may designate shall
have the right in the manner provided as provided in the Credit Agreement to
inspect the Charged Assets, all records related thereto (and to make extracts
and copies from such records) and the premises upon which any such Charged
Assets are located, to discuss the Company's affairs with the officers of the
Company and its independent accountants.
I. MISCELLANEOUS
27. If one or more of the provisions contained herein shall be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
19.
28. No amendment of this debenture shall be binding unless executed in writing
by the party to be bound thereby.
29. Until the security hereby constituted shall have become enforceable, the
Company shall have quiet possession of the Charged Assets. Upon payment by the
Company, its successors or permitted assigns, of all indebtedness and liability
of the Company to the Secured Party secured hereby and the fulfilment of all
other obligations of the Company to the Secured Party secured hereby and
termination of the Credit Agreement and provided that the Secured Party is then
under no obligation (conditional or otherwise) to make any further loan or
extend any other type of credit to the Company, the Secured Party shall, upon
request in writing by the Company, delivered to the Secured Party at 0 Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx X0X 0X0 Attention: Xxxxxxxxx Xxxx,
and at the Company's expense, discharge this debenture. The security hereby
constituted and the charges hereunder shall automatically terminate in any of
the Charged Assets when they are sold or disposed of as permitted by the Credit
Agreement or hereunder or with the consent of the Secured Party. The Secured
Party shall, at the expense of the Company, promptly take such actions, and
execute such releases and financing change statements or other documents, which
may be reasonably requested by an interested party to evidence the termination
and releases contemplated hereby.
30. This debenture shall be construed in accordance with and be governed by the
laws of the Province of New Brunswick. For the purpose of legal proceedings,
this debenture shall be deemed to have been made in the said Province and to be
performed therein and the courts of that Province shall have jurisdiction over
all disputes which may arise under this debenture. The Company hereby
irrevocably and unconditionally submits to the non-exclusive jurisdiction of
such courts, provided always that nothing herein contained shall prevent the
Secured Party from proceeding at its election against the Company in the courts
of any other province, country or jurisdiction.
31. The headings in this debenture are included for convenience of reference
only, and shall not constitute a part of this debenture for any other purpose.
32. This debenture is in addition to and not in substitution for any other
security now or hereafter held by the Secured Party and shall be general and
continuing security notwithstanding that the indebtedness and liability of the
Company to the Secured Party shall be at any time or from time to time fully
satisfied or paid.
33. This debenture and all its provisions shall enure to the benefit of the
Secured Party, its successors and assigns, and shall be binding on the Company,
its successors and permitted assigns.
20.
34. Any demand or notice by the Secured Party in connection with this debenture
shall be given to the Company at the place and in accordance with the terms set
out in the Credit Agreement for the giving of notices thereunder.
35. In construing this debenture, terms herein shall have the same meaning as
defined in the Personal Property Security Act (Ontario), unless the context
otherwise requires. The word "Company", the personal pronoun "it" or "its" and
any verb relating thereto and used therewith shall be read and construed as
required by and in accordance with the context in which such words are used
depending upon whether the Company is one or more individuals, corporations or
partnerships and, if more than one, shall apply and be binding upon each of them
severally. The term "successors" shall include, without limiting its meaning,
any corporation resulting from the amalgamation of a corporation with another
corporation and, where the Company is a partnership, any new partnership
resulting from the admission of new partners or any other change in the Company,
including, without limiting the generality of the foregoing, the death of any or
all of the partners.
IN WITNESS WHEREOF the Company has executed this debenture as of the 1st
day of April, 1997.
SPORT MASKA INC.
By: /s/ D. Xxxxx Xxxxxxx X.X.
--------------------
X. Xxxxx Xxxxxxx
Secretary
APPENDIX "A"
[intentionally blank]
APPENDIX "B"
List of Equipment
[intentionally blank]
APPENDIX "C"
Locations where Charged Property Located
#1 APPAREL CANADA INC. XXXX MANUFACTURING CO., INC.
000 Xxxxx Xxxx Xxxx X.X. Box 2017
P.O .Box 850 0000 Xxx Xxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx, X.X. 00000
X0X 0X0 XXX
COMDYE INC. KEBEC SUBLIME INC.
00 Xxxxxxx Xxxxxx Xxxx 0000 Xxx-Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxx
X0X 0X0 H1J 1K6
CONFECTION ST-MATHIEU KNITRAMA FABRICS
3125 Xxxxxxx Xxxxx 7801 Xxxxx East
Loc. H-0 Xxxxx, Xxxxxx
Xx-Xxxxxxx xx Xxxxxxx, Xxxxxx X0X 0X0
J3G 4S5
CORALTEX INC. PETE'S CRESTING LTD.
000 Xxxxxxxx 0 Xxxxxxxx Xx.X., Xxxx 00
Xxxxxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
X0X 0X0 N6B 3P8
CREATION JADE INC. PRIMOTEX KNITTING INC.
0000, xxx Xxxxxxxxxx 000 Xxxxxx
Xxxxx Xxxxxx, Xxxxxx Xx-Xxxxxxx, Xxxxxx
X0X 0X0 H4T 1V3
DANSK XXX-XXX
Xxxxxxx 0-0 000 Xxxxxxxxx Xxxx
XX-0000, XXXXX Xxxxxx, Xxxxxxx
XXXXXXX X0X 0X0
FIN-PRINT INC. TRICOTS J.T.S.
000 Xxxxxxxxx Xxxx 000 Xxxxx Xxxx #000X
Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx
X0X 0X0 H3L 1Z8
XXXXXXXX XXXXX INC. LAMINATED TEXTILES LTD.
1145 Xxxxxxxx (LAMTEX)
Sherbrooke, Quebec 000 Xxxxxx Xxxxx
X0X 0X0 Xxxxxx, Xxxxxxx
X0X 0X0
SONATEX LAMINATING INC. TEXTILES M.T.C. LTEE
0000 Xxxxx Xxxxxxx Xxxx 0000 Xxxxxxxx
Xxxx 0-0 Xxxxxxxx, Xxxxxx
Xxxxxxxxxx, Xxxxxxx X0X 0X0
L7N 3G2
0000 Xxx-Xxxx Xxxxxxxxx 00000 Xxxxxx
Xxxxxxxx, Xxxxxx Xx-Xxxxxxxxx, Xxxxxx
X0X 0X0 J2T 4C9
0000 Xx-Xxxx 000 Xxxxxxxxxx
Xx-Xxxxxxxxx, Xxxxxx Xx-Xxxx-xxx-Xxxxxxxxx, Xxxxxx
J2T 2A2 J3B 4S7
175 Xxxxxxxxxxx 0000X Xxxxxxxx Xxxx
Xxx-xx-xx-Xxxxxxxxx, Xxxxxx Xxxxxxxxxx, Xxxxxxx
X0X 0X0 L5N 1A6
