EXHIBIT 10.2
EXECUTION COPY
GENERAL SECURITY AGREEMENT
THIS AGREEMENT is made as of the 3rd day of April, 2002,
BY: SPORT MASKA INC., a corporation organized
under the laws of the Province of New Brunswick
and having its chief executive office at 0000
xxxx. xx Xxxxxxxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxx, Xxxxxx X0X 0X0
(the "Corporation")
IN FAVOUR OF: BNY TRUST COMPANY OF CANADA, having an office at 0
Xxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
(the "Collateral Agent")
RECITALS:
A. The Corporation has entered into the Indenture with the Trustee.
B. It is a condition of the Indenture that the Corporation enter into this
Agreement.
NOW THEREFORE in consideration of the sum of $1.00 and for other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Corporation agrees with the Collateral Agent as follows:
ARTICLE 1.
INTERPRETATION
1.1. DEFINITIONS
In this Agreement:
1.1.1. "ACCESSIONS" means Goods that are installed in or affixed to other
Goods;
1.1.2. "ACCOUNT" means any monetary obligation not evidenced by Chattel
Paper, an Instrument or a Security, whether or not it has been earned by
performance;
1.1.3. "THIS AGREEMENT", "HERETO", "HEREIN", "HEREOF", "HEREBY", "HEREUNDER"
and any similar expressions refer to this Agreement and the Schedule hereto
as amended, supplemented or replaced from time to time, and not to any
particular Article, section or other portion hereof or thereof;
1.1.4. "BUSINESS DAY" has the meaning attributed to such term in the
Indenture;
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1.1.5. "CANADIAN COLLATERAL AGENCY AGREEMENT" means the Canadian collateral
agency agreement dated as of April 3, 2002 between, among others, The Hockey
Company, Sport Maska Inc., the Trustee and the Collateral Agent, as amended,
supplemented or replaced from time to time;
1.1.6. "CHATTEL PAPER" means one or more than one writing that evidences
both a monetary obligation and a security interest in or a lease of specific
Goods;
1.1.7. "COLLATERAL" means all of the undertaking, property and assets of the
Corporation subject to, or intended to be subject to, the Security Interest,
and any reference to "COLLATERAL" shall be deemed to be a reference to
"COLLATERAL OR ANY PART THEREOF" except where otherwise specifically
provided;
1.1.8. "COLLATERAL AGENT" means BNY Trust Company of Canada, and its
successors and assigns;
1.1.9. "CORPORATION" means Sport Maska Inc., a corporation organized under
the laws of New Brunswick, and its successors and assigns;
1.1.10. "DOCUMENT OF TITLE" means any writing that purports to be issued by
or addressed to a bailee and purports to cover such Goods in the bailee's
possession as are identified or fungible portions of an identified mass, and
that in the ordinary course of business is treated as establishing that the
Person in possession of it is entitled to receive, hold and dispose of the
document and the Goods it covers;
1.1.11. "EVENT OF DEFAULT" has the meaning attributed to such term in the
Indenture;
1.1.12. "GOODS" means tangible personal property other than Chattel Paper,
Documents of Title, Instruments, Money and Securities, and includes
fixtures, growing crops, the unborn young of animals, timber to be cut, and
minerals and hydrocarbons to be extracted;
1.1.13. "HOLDER" has the meaning attributed to such term in the Indenture;
1.1.14. "INDENTURE" means the indenture dated as of April 3, 2002 between,
among others, The Hockey Company, Sport Maska Inc., and the Trustee, as
amended, supplemented or replaced from time to time;
1.1.15. "INSTRUMENT" means,
1.1.15.1. a xxxx, note or cheque within the meaning of the BILLS OF
EXCHANGE ACT (Canada) or any other writing that evidences a right to
the payment of Money and is of a type that in the ordinary course of
business is transferred by delivery with any necessary endorsement
or assignment, or
1.1.15.2. a letter of credit and an advice of credit if the letter
or advice states that it must be surrendered upon claiming payment
thereunder,
but does not include a writing that constitutes part of Chattel Paper, a
Document of Title or a Security;
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1.1.16. "INTANGIBLE" means all personal property, including choses in action
and Intellectual Property, that is not Goods, Chattel Paper, Documents of
Title, Instruments, Money or Securities;
1.1.17. "INTELLECTUAL PROPERTY" means trademarks and trademark applications,
trade names, certification marks, patents and patent applications,
copyrights, know-how, formulae, processes, inventions, technical expertise,
research data, trade secrets, industrial designs, domain names and other
similar property, whether registered or unregistered, and includes computer
software and including without limitation the property described in Schedule
1.1.17 hereto;
1.1.18. "INTERCREDITOR AGREEMENT" means the intercreditor agreement dated as
of April 3, 2002 between General Electric Capital Corporation, General
Electric Capital Canada Inc., the Collateral Agent, the Trustee, The Hockey
Company, the Corporation and others, as amended, supplemented or replaced
from time to time;
1.1.19. "LIEN" means any mortgage, pledge, charge, assignment, security
interest, hypothec, lien or other encumbrance, including, without
limitation, any agreement to give any of the foregoing, or any conditional
sale or other title retention agreement;
1.1.20. "MONEY" means a medium of exchange authorized or adopted by the
Parliament of Canada as part of the currency of Canada or by a foreign
government as part of its currency, including, without limitation, U.S.
Legal Tender;
1.1.21. "NOTES" has the meaning attributed to such term in the Indenture;
1.1.22. "OBLIGATIONS" means all of the obligations, liabilities and
indebtedness of the Corporation to the Holders, the Trustee or the
Collateral Agent from time to time, whether present or future, absolute or
contingent, liquidated or unliquidated, as principal or as surety, alone or
with others, of whatsoever nature or kind, in any currency or otherwise,
under:
1.1.22.1. the Notes;
1.1.22.2. the Indenture;
1.1.22.3. the Security Agreements (including this Agreement); and
1.1.22.4. the Canadian Collateral Agency Agreement;
or any one or more of the foregoing as the same may be amended, supplemented
or replaced from time to time; and any other document or agreement executed
by the Corporation in connection therewith;
1.1.23. "PERMITTED LIENS" has the meaning attributed to such term in the
Indenture;
1.1.24. "PERSON" means any individual, partnership, limited partnership,
joint venture, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative, regulatory
body or agency, government or governmental agency, authority or entity
however designated or constituted;
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1.1.25. "PPSA" means the PERSONAL PROPERTY SECURITY ACT (Ontario) as amended
from time to time and any Act substituted therefor and amendments thereto;
1.1.26. "PROCEEDS" means identifiable or traceable personal property in any
form derived directly or indirectly from any dealing with property or the
proceeds therefrom, and includes any payment representing indemnity or
compensation for loss of or damage to property or proceeds therefrom;
1.1.27. "RECEIVER" means any of a receiver, manager, receiver-manager and
receiver and manager;
1.1.28. "SECURITY" means a document that is,
1.1.28.1. issued in bearer, order or registered form,
1.1.28.2. of a type commonly dealt in upon securities exchanges or
markets or commonly recognized in any area in which it is issued or
dealt in as a medium for investment,
1.1.28.3. one of a class or series or by its terms is divisible into
a class or series of documents, and
1.1.28.4. evidence of a share, participation or other interest in
property or in an enterprise or is evidence of an obligation of the
issuer,
and includes an uncertificated security within the meaning of Part VI
(Investment Securities) of the BUSINESS CORPORATIONS ACT (Ontario);
1.1.29. "SECURITY AGREEMENTS" has the meaning attributed to such term in the
Indenture;
1.1.30. "SECURITY INTEREST" has the meaning attributed to such term in
section 2.1;
1.1.31. "TRUSTEE" means The Bank of New York, as trustee under the
Indenture, and its successors and assigns; and
1.1.32. "U.S. LEGAL TENDER" has the meaning attributed to such term in the
Indenture.
1.2. HEADINGS
The inclusion of headings in this Agreement is for convenience of
reference only and shall not affect the construction or interpretation hereof.
1.3. REFERENCES TO ARTICLES AND SECTIONS
Whenever in this Agreement a particular Article, section or other
portion thereof is referred to then, unless otherwise indicated, such reference
pertains to the particular Article, section or portion thereof contained herein.
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1.4. CURRENCY
Except where otherwise expressly provided, all amounts in this
Agreement are stated and shall be paid in U.S. Legal Tender.
1.5. GENDER AND NUMBER
In this Agreement, unless the context otherwise requires, words
importing the singular include the plural and vice versa and words importing
gender include all genders.
1.6. INVALIDITY OF PROVISIONS
Each of the provisions contained in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision or part thereof by a court of competent jurisdiction shall not affect
the validity or enforceability of any other provision hereof. To the extent
permitted by applicable law, the parties waive any provision of law which
renders any provision of this Agreement invalid or unenforceable in any respect.
1.7. AMENDMENT, WAIVER
No amendment or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any provision
of this Agreement shall constitute a waiver of any other provision nor shall any
waiver of any provision of this Agreement constitute a continuing waiver unless
otherwise expressly provided.
1.8. GOVERNING LAW, ATTORNMENT
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario and the laws of Canada applicable therein
and the Corporation hereby irrevocably attorns to the jurisdiction of the courts
of Ontario.
ARTICLE 2.
SECURITY INTEREST
2.1. CREATION OF SECURITY INTEREST
Subject to sections 2.2 and 2.3 hereof, the Corporation hereby
grants to the Collateral Agent, for and on behalf of the Trustee, by way of
security interest, pledge, charge and hypothec, a security interest (the
"Security Interest") in the undertaking of the Corporation and in:
2.1.1. all Goods (including without limitation all parts, accessories,
attachments, additions and Accessions thereto) whether or not such Goods are
now or hereafter become fixtures, all Accounts, all Chattel Paper, all
Documents of Title (whether negotiable or not), all Instruments, all
Intangibles, all Money and all Securities, and all other personal property,
if any, in each case now owned or hereafter acquired by or on behalf of the
Corporation or in respect of which the Corporation now or hereafter has any
right, title or interest (including, without limitation, such as may be
returned to or repossessed by the Corporation) and including, without
limitation, all contracts, licenses, computer software, warranties,
ownership certificates, manuals, publications, books, statements of account,
bills, invoices, letters and other documents or records in any form
evidencing or relating to any of the foregoing property;
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2.1.2. all renewals of, accretions to and substitutions for any of the
property described in section 2.1.1; and
2.1.3. all Proceeds (including Proceeds of Proceeds) of any of the property
described in sections 2.1.1 and 2.1.2.
2.2. EXCEPTION FOR LAST DAY OF LEASES
The Security Interest granted hereby does not and shall not extend
to, and the Collateral shall not include, the last day of the term of any lease
or sub-lease, oral or written, or any agreement therefor, now held or hereafter
acquired by the Corporation, but upon the sale of the leasehold interest or any
part thereof the Corporation shall stand possessed of such last day in trust to
assign the same as the Collateral Agent shall direct.
2.3. EXCEPTION FOR CONTRACTUAL RIGHTS
The Security Interest granted hereby does not and shall not extend
to, and the Collateral shall not include, any agreement, right, franchise,
license or permit (the "contractual rights") to which the Corporation is a party
or of which the Corporation has the benefit, to the extent that the creation of
the Security Interest therein would constitute a breach of the terms of or
permit any Person to terminate the contractual rights, but the Corporation shall
hold its interest therein in trust for the benefit of the Collateral Agent and
shall assign such contractual rights to the Collateral Agent, for and on behalf
of the Trustee, forthwith upon obtaining the consent of the other party thereto.
The Corporation agrees that it shall, upon the request of the Collateral Agent,
use all commercially reasonable efforts to obtain any consent required to permit
any contractual rights to be subjected to the Security Interest.
2.4. ATTACHMENT
The attachment of the Security Interest has not been postponed and
the Security Interest shall attach to any particular Collateral as soon as the
Corporation has rights in such Collateral.
ARTICLE 3.
OBLIGATIONS SECURED
3.1. OBLIGATIONS SECURED
The Security Interest granted hereby secures payment, performance
and satisfaction of the Obligations.
ARTICLE 4.
CERTAIN AGREEMENTS OF THE CORPORATION
4.1. RESTRICTIONS ON DEALING WITH COLLATERAL
The Corporation shall not, except in accordance with the Indenture,
without the prior consent in writing of the Collateral Agent:
4.1.1. sell, assign, transfer, exchange, lease, consign or otherwise dispose
of any Goods or all or any material part of the Collateral as a whole; or
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4.1.2. create, assume or suffer to exist any Lien upon the Collateral.
No provision hereof shall be construed as a subordination or
postponement of the Security Interest to or in favour of any other Lien, whether
or not such Lien is permitted hereunder or otherwise.
The Corporation shall keep its chief executive office at the address
set out on the first page of this Agreement and the Collateral at such locations
set forth in Schedule 2.1.1 hereto, or, upon 20 Business Days prior notice to
the Collateral Agent, at such other location in a jurisdiction where all actions
required by section 9.5 hereof shall have been taken with respect to the
Collateral.
4.2. VERIFICATION OF COLLATERAL
The Collateral Agent shall have the right at any time and from time
to time to verify the existence and state of the Collateral in any manner the
Collateral Agent may consider appropriate and the Corporation agrees to furnish
all assistance and information and to perform all such acts as the Collateral
Agent may reasonably request in connection therewith and for such purpose to
grant to the Collateral Agent or its agents access to all places where
Collateral may be located and to all premises occupied by the Corporation.
4.3. EXPENSES
The Corporation shall pay to the Collateral Agent on demand all of
the Collateral Agent's reasonable costs, charges and expenses (including,
without limitation, legal fees on a solicitor and his own client basis and
Receiver's fees) in connection with the preparation, registration or amendment
of this Agreement, the perfection or preservation of the Security Interest, the
enforcement by any means of any of the provisions hereof or the exercise of any
rights, powers or remedies hereunder, including, without limitation, all such
costs, charges and expenses in connection with taking possession of Collateral,
carrying on the Corporation's business, collecting the Corporation's accounts
and taking custody of, preserving, repairing, processing, preparing for
disposition and disposing of Collateral, together with interest on such costs,
charges and expenses from the dates incurred to the date of payment at the rate
normally charges by the Collateral Agent on similar accounts.
4.4. FURTHER ASSURANCES
4.4.1. The Corporation shall at its own expense do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, mortgages, pledges, charges, assignments, security
agreements, hypothecs and assurances (including instruments supplemental or
ancillary hereto) and such financing statements as the Collateral Agent may
from time to time reasonably request to better assure and perfect its
security on the Collateral.
4.4.2. At such time as the Collateral Agent may reasonably request, the
Corporation shall cause to be delivered to the Agent an opinion of counsel
stating that, in the opinion of such counsel, all such action has been taken
including, but not limited to, the execution and delivery and the
registration, filing, re-registration, refiling or re-recording of this
Agreement and all instruments supplemental or ancillary hereto, as is
necessary to validly give to the Collateral Agent, for and on behalf of the
Trustee, and to maintain, the Security Interest granted hereby.
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4.5. SPECIFIC ADDITIONAL ASSURANCES
4.5.1. The Corporation shall use commercially reasonable efforts to pursue
and complete the sale of the of property owned by the Corporation located on
Xxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx as further described in Schedule
4.5.1 hereto (the "Property") within 180 days of the date hereof (the
"Required Charge Date").
4.5.2. In the event the sale of the Property has not been fully completed by
the Required Charge Date, the Corporation will execute and deliver a
mortgage/charge against the Property (the "Charge") in favour of the
Collateral Agent on such terms and conditions as are satisfactory to the
Trustee and the Collateral Agent acting reasonably. The Charge will be
registered against the title to the Property on the Required Charge Date and
will only be subject to a mortgage/charge in favour of General Electric
Capital Corporation and/or General Electric Capital Canada Inc., liens
permitted under the Indenture and such other prior liens as may be agreed to
by the Trustee acting reasonably. On the Required Charge Date, the
Corporation will also cause its legal counsel to provide the Trustee and the
Collateral Agent with a title opinion in respect of the Property and the
Charge in form and substance satisfactory to the Trustee acting reasonably.
4.5.3. Forthwith after search certificates in the Ontario personal property
security registration system again becoming available to the general public,
the Corporation shall use commercially reasonable efforts to provide the
Collateral Agent with such acknowledgements and subordinations with respect
to existing registrations made under the PERSONAL PROPERTY SECURITY ACT
(Ontario) against the Corporation and its predecessors as the Trustee may
reasonably request.
4.5.4. Forthwith after the Ontario personal property security registration
system again becomes available to the general public and registrations have
been made under the PERSONAL PROPERTY SECURITY ACT (Ontario) to perfect the
security interests granted by the Corporation to the Collateral Agent in
Ontario, the Corporation shall cause its Ontario legal counsel to provide
the Trustee and the Collateral Agent with an opinion as to perfection by
registration in form and substance satisfactory to the Trustee acting
reasonably.
4.5.5. As soon as reasonably possible after the date hereof, the Corporation
shall cause all security interests recorded in the Canadian Intellectual
Property Office against the intellectual property of the Corporation, other
than those in favour of General Electric Capital Corporation, General
Electric Capital Canada Inc. and the Collateral Agent, to be discharged.
4.5.6. As soon as reasonably possible after the date hereof, the Corporation
shall discharge or cause to be discharged all of the registrations and
filings against the property, assets and undertaking of the Corporation made
by or in favour of Caisse de depot et placement du Quebec and/or Montreal
Trust Company.
4.5.7. The Corporation shall use commercially reasonable efforts to provide
the Canadian Collateral Agent with an agreement substantially in the form
attached as Schedule 4.5.7 hereto forthwith after the date hereof from each
of the landlords of the following properties leased by the Corporation:
(a) 700, 710, 000 Xxxxxxx Xxxxxx, in the City of Granby, Province of
Quebec (landlord is Societe Immobiliere Enertech Inc., Sport Maska
Inc. is sublessee and Xxxx Sports Canada Inc is sublessor);
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(b) 8th and 12th floors (suites 802 and 1210), 3500 de Maisonneuve
Boulevard West, Westmount (now Montreal), Province of Quebec
(landlord is Place Alexis Nihon Management Services Inc., property
manger is Mandatary for Pan Management Montreal (1997) Inc. and
Sport Maska Inc. is tenant); and
(c) 170 rue Xxxxx et 000 Xxxxxx Xxxxxx, in the City of Richmond,
Province of Quebec, J0B 2HO (landlord is Comite de promotion
industrielle de la zone de Richmond and Sport Maska Inc. is tenant).
4.5.8. As soon as reasonably possible after the date hereof, the Corporation
shall provide answers to the environmental questions raised in the
memorandum from Xxxxxxxxxx Xxxxxxxx Xxxxx Xxxxxx dated March 26, 2002
attached as Schedule 4.5.8 hereto in a manner satisfactory to the Trustee
acting reasonably.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
5.1. REPRESENTATIONS AND WARRANTIES
5.1.1. The Corporation represents and warrants that this Agreement is
granted in accordance with a resolution of the directors of the Corporation
and all matters and things have been done and performed so as to authorize
and make the execution and delivery of this Agreement, and the performance
of the Corporation's obligations hereunder, legal, valid and binding.
5.1.2. The Corporation represents and warrants that, with the exception of
goods in transit from time to time, all of the Collateral is located in the
Provinces of Quebec, Ontario and New Brunswick at the locations set out in
Schedule 2.1.1 hereto.
5.1.3. The Corporation represents and warrants that the Corporation's chief
executive office is located at 0000 xxxx. xx Xxxxxxxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxx Xxxxxx X0X 0X0.
5.1.4. The Corporation represents and warrants that the Corporation has not
been known by any legal name different from the one set forth on the
signature page hereto and CCM, Koho and Jofa.
ARTICLE 6.
COLLECTION OF DEBTS
6.1. COLLECTION OF DEBTS
After the occurrence and during the continuance of an Event of
Default, the Collateral Agent may give notice of the Security Interest to any
Person obligated to pay any debt or liability constituting Collateral and may
also direct such Person to make all payments on account of any such debt or
liability to the Collateral Agent. The Corporation acknowledges that any
payments received by the Corporation from such Persons, whether before or after
notification of the Security Interest to such Persons and after the occurrence
and during the continuance of an Event of Default, shall be received and held by
the Corporation in trust, or as agent in the Province of Quebec, for the
Collateral Agent and shall be turned over to the Collateral Agent upon request.
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ARTICLE 7.
REMEDIES
7.1. APPOINTMENT OF RECEIVER
7.1.1. After the occurrence and during the continuance of an Event of
Default, the Collateral Agent may appoint by instrument any Person, whether
an officer or an employee of the Collateral Agent or not, to be a Receiver
of Collateral and may remove any Receiver so appointed and appoint another
in place of such Receiver in the same manner. Any such Receiver shall be
deemed the agent of the Corporation and not of the Collateral Agent for the
purpose of (i) carrying on and managing the business and affairs of the
Corporation, and (ii) establishing liability for all acts or omissions of
the Receiver while acting as such, and the Collateral Agent shall not be in
any way responsible for any acts or omissions on the part of any such
Receiver, its officers, employees and agents. The Corporation hereby
irrevocably authorizes the Collateral Agent to give instructions to the
Receiver relating to the performance of its duties. The Corporation hereby
irrevocably waives any right it may have now or in the future under any
applicable law, including, without limitation, the PPSA, to make application
to a court for the removal, replacement or discharge of the Receiver or for
directions on any matter relating to the duties of the Receiver (unless such
duties are not being performed in a commercially reasonable manner) or in
respect of the Receiver's accounts or remuneration or in respect of any
other matter.
7.1.2. Subject to the provisions of the instrument appointing it, any such
Receiver shall have the power to take possession of Collateral, to preserve
Collateral or its value in such manner as it considers appropriate, to carry
on or concur in carrying on all or any part of the business of the
Corporation and to sell, lease or otherwise dispose of or concur in selling,
leasing or otherwise disposing of Collateral in such manner and on such
terms as it considers to be commercially reasonable. To facilitate the
foregoing powers, any such Receiver may enter upon, use and occupy all
premises owned or occupied by the Corporation wherein Collateral may be
situate to the exclusion of all others to the extent permitted by law,
including the Corporation, maintain Collateral upon such premises, borrow
money on a secured or unsecured basis, incur reasonable expenses in the
exercise of the rights, powers and remedies set out in this Agreement and
use Collateral directly in carrying on the Corporation's business or as
security for loans or advances to enable it to carry on the Corporation's
business or otherwise, as such Receiver shall, in its discretion, determine.
In addition, the Receiver shall have the following rights, powers and
remedies:
7.1.2.1. to make payments to Persons having prior rights or Liens on
properties on which the Corporation may hold a Lien and to Persons
having prior rights or Liens on the Collateral; and
7.1.2.2. to demand, commence, continue or defend proceedings in the
name of the Collateral Agent or of the Receiver or in the name of
the Corporation for the purpose of protecting, seizing, collecting,
realizing or obtaining possession or payment of the Collateral and
to give effectual receipts and discharges therefor.
7.1.3. Except as may be otherwise directed by the Collateral Agent, all
Proceeds received from time to time by such Receiver in carrying out its
appointment shall be received in trust, or as agent in the Province of
Quebec, for and paid over to the Collateral Agent. Every such Receiver may,
in the discretion of the Collateral Agent, be vested with all or any of the
rights and powers of the Collateral Agent.
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7.2. EXERCISE OF REMEDIES BY COLLATERAL AGENT
After the occurrence and during the continuance of an Event of
Default, the Collateral Agent may, either directly or through its agents or
nominees, exercise all the powers and rights available to a Receiver by virtue
of section 7.1. In addition to the rights granted in this Agreement and in any
other agreement now or hereafter in effect between the Corporation and the
Collateral Agent and in addition to any other rights the Collateral Agent may
have at law or in equity or otherwise, the Collateral Agent shall have, both
before and after the occurrence of an Event of Default, all rights and remedies
of a secured party under the PPSA.
7.3. POSSESSION OF COLLATERAL
The Corporation acknowledges that, after the occurrence and during
the continuance of an Event of Default, the Collateral Agent or any Receiver
appointed by it may take possession of Collateral wherever it may be located and
by any method permitted by law and the Corporation agrees upon request from the
Collateral Agent or any such Receiver to assemble and deliver possession of
Collateral at such place or places as directed.
7.4. REMEDIES NOT EXCLUSIVE
All rights, powers and remedies of the Collateral Agent under this
Agreement may be exercised separately or in combination and shall be in addition
to, and not in substitution for, any other security now or hereafter held by the
Collateral Agent and any other rights, powers and remedies of the Collateral
Agent however created or arising. No single or partial exercise by the
Collateral Agent of any of the rights, powers and remedies under this Agreement
or under any other security now or hereafter held by the Collateral Agent shall
preclude any other and further exercise of any other right, power or remedy
pursuant to this Agreement or any other security or at law, in equity or
otherwise. After the occurrence of and during the continuance of an Event of
Default, the Collateral Agent shall have the right to proceed against Collateral
or any other security in such order and in such manner as it shall determine
without waiving any rights, powers or remedies which the Collateral Agent may
have with respect to this Agreement or any other security or at law, in equity
or otherwise. No delay or omission by the Collateral Agent in exercising any
right, power or remedy hereunder or otherwise shall operate as a waiver thereof
or of any other right, power or remedy.
7.5. CORPORATION LIABLE FOR DEFICIENCY
The Corporation shall remain liable to the Collateral Agent for any
deficiency after the proceeds of any sale, lease or disposition of Collateral
are received by the Collateral Agent.
7.6. EXCLUSION OF LIABILITY OF COLLATERAL AGENT AND RECEIVER
Except as required by law or in the event of gross negligence or
wilful misconduct by the Collateral Agent or any Receiver appointed by it, the
Collateral Agent 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 or
protect the Collateral, to carry on all or any part of the business of the
Corporation relating to the Collateral or to take any steps or proceedings for
any such purposes. Neither the Collateral Agent 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 Collateral including without
limitation any Instrument, Chattel Paper or Securities, whether or not in the
Collateral Agent's or the
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Receiver's possession, and neither the Collateral Agent nor any Receiver
appointed by it shall be liable for failure to do so. Subject to the foregoing,
the Collateral Agent shall use reasonable care in the custody and preservation
of the Collateral in its possession.
7.7. NOTICE OF SALE
Unless required by law, neither the Collateral Agent nor any
Receiver appointed by it shall be required to give the Corporation any notice of
any sale, lease or other disposition of the Collateral, the date, time and place
of any public sale of Collateral or the date after which any private disposition
of Collateral is to be made.
7.8. CURRENCY CONVERSION
In the event that from time to time any of the Collateral, or any
portion of any of the Collateral, is in a currency different from the currency
of any of the Obligations, the Collateral Agent may convert the Collateral, or
any portion thereof, from U.S. Legal Tender into currency of Canada ("Canadian
Legal Tender") or Canadian Legal Tender into U.S. Legal tender, or, if for the
purpose of obtaining or enforcing judgment against the Corporation in any Court
in any jurisdiction, it becomes necessary to convert U.S. Legal Tender into
Canadian Legal Tender or Canadian Legal Tender into U.S. Legal Tender, then the
conversion shall be made at the rate of exchange quoted by The Bank of New York
as its spot rate of exchange for the conversion of U.S. Legal Tender or Canadian
Legal Tender, as applicable (the "First Currency"), to the other (the "Second
Currency") at approximately noon (New York time) on such day (the "Conversion
Rate") that is the first Business Day prior to the day on which payment is
received.
If the conversion is not able to be made in the manner contemplated
by the preceding paragraph in the jurisdiction in which the action or proceeding
is brought, then the conversion shall be made at the Conversion Rate on the day
on which the judgment is given.
If the Conversion Rate on the date of payment is different from the
Conversion Rate on such first Business Day or on the date of judgment, as the
case may be, the Corporation shall pay such additional amount (if any) in the
Second Currency as may be necessary to ensure that the amount paid on such
payment date is the aggregate amount in the Second Currency which, when
converted at the Conversion Rate on the date of payment, is the amount due in
the First Currency, together with all costs, charges and expenses of conversion.
Any additional amount owing by the Corporation pursuant to the provisions of
this section shall be due as a separate debt and shall give rise to a separate
cause of action and shall not be affected by or merged into any judgment
obtained for any other amounts due under or in respect of the Notes, the
Indenture or any of the Security Agreements (including this Agreement).
ARTICLE 8.
APPLICATION OF PROCEEDS
8.1. APPLICATION OF PROCEEDS
The Proceeds arising from the enforcement of the Security Interest
as a result of the possession by the Collateral Agent or the Receiver of the
Collateral or from any sale, lease or other disposition of, or realization of
security on, the Collateral (except following acceptance of Collateral in
satisfaction of the Obligations) shall be applied by the Collateral Agent or the
Receiver in the following order, except to the extent otherwise required by law
or the Indenture:
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8.1.1. first, in payment of the Collateral Agent's reasonable costs, charges
and expenses (including legal fees on a solicitor and his own client basis)
incurred in the exercise of all or any of the rights, powers or remedies
granted to it under this Agreement, and in payment of the reasonable
remuneration of the Receiver (if any), the reasonable costs, charges and
expenses incurred by the Receiver (if any) in the exercise of all or any of
the rights, powers or remedies granted under this Agreement and any amounts
due to the Collateral Agent under the Canadian Collateral Agency Agreement;
8.1.2. second, in payment of amounts paid by the Collateral Agent or the
Receiver pursuant to section 7.1.2.1;
8.1.3. third, in payment of all money borrowed or advanced by the Collateral
Agent or the Receiver, if any, pursuant to the exercise of the rights,
powers or remedies set out in this Agreement and any interest thereon;
8.1.4. fourth, in payment of the remainder of the Obligations; and
8.1.5. last, to the Corporation or otherwise as required by applicable law.
8.2. MONIES ACTUALLY RECEIVED
The Corporation shall be entitled to be credited only with the
actual Proceeds arising from the possession, sale, lease or other disposition
of, or realization of security on, the Collateral when received by the
Collateral Agent or the Receiver and such actual Proceeds shall mean all amounts
received in cash by the Collateral Agent or the Receiver upon such possession,
sale, lease or other disposition of, or realization of security on, the
Collateral.
ARTICLE 9.
GENERAL
9.1. POWER OF ATTORNEY
After the occurrence and during the continuance of an Event of
Default, the Corporation hereby appoints the Collateral Agent as the
Corporation's attorney, with full power of substitution, in the name and on
behalf of the Corporation, to execute, deliver and do all such acts, deeds,
leases, documents, transfers, demands, conveyances, assignments, contracts,
assurances, consents, financing statements and things as the Corporation has
herein agreed to execute, deliver and do or as may be required by the Collateral
Agent or any Receiver to give effect to this Agreement or in the exercise of any
rights, powers or remedies hereby conferred on the Collateral Agent, and
generally to use the name of the Corporation in the exercise of all or any of
the rights, powers or remedies hereby conferred on the Collateral Agent. This
appointment, coupled with an interest, shall not be revoked by the insolvency,
bankruptcy, dissolution, liquidation or other termination of the existence of
the Corporation.
9.2. SET-OFF
After the occurrence and during the continuance of an Event of
Default, the Collateral Agent may, without notice to the Corporation or to any
other Person, set-off, appropriate and apply any and all deposits, general or
special, matured or unmatured, held by or for the benefit of the Corporation
with the Collateral Agent, and any other indebtedness and liability of the
Collateral Agent to the
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Corporation, matured or unmatured, against and on account of the Obligations
when due, in such order of application as the Collateral Agent may from time to
time determine.
9.3. DEALINGS WITH OTHERS
The Collateral Agent may grant extensions of time and other
indulgences, take and give up security, accept compositions, make settlements,
grant releases and discharges and otherwise deal with the Corporation, debtors
of the Corporation, sureties and other Persons and with Collateral and other
security as the Collateral Agent sees fit, without prejudice to the liability of
the Corporation to the Collateral Agent or the rights, powers and remedies of
the Collateral Agent under this Agreement.
9.4. NO OBLIGATION TO ADVANCE
Nothing herein contained shall in any way obligate the Collateral
Agent to advance any funds, or otherwise make or continue to make any credit
available, to the Corporation.
9.5. PERFECTION OF SECURITY
The Corporation authorizes the Collateral Agent to file such
financing statements and other documents and do such acts, matters and things as
the Collateral Agent may consider appropriate to perfect and continue the
Security Interest, to protect and preserve the interest of the Collateral Agent
in Collateral and to realize upon the Security Interest.
9.6. COMMUNICATION
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Corporation:
Sport Maska Inc.
0000 xxxx. xx Xxxxxxxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxx Xxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
if to the Collateral Agent:
BNY Trust Company of Canada
0 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
Each of the Corporation and the Collateral Agent by written notice
to each other such Person may designate additional or different addresses for
notices to such Person. Any notice or communication to the Corporation or the
Collateral Agent shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledges, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail,
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postage prepaid (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee).
Notwithstanding the foregoing, if the PPSA requires that a notice or
other communication be given in a specified manner, then any such notice or
communication shall be given in such manner.
9.7. NO MERGER
This Agreement shall not operate so as to create any merger or
discharge of any of the Secured Obligations, or of any assignment, transfer,
guarantee, lien, contract, promissory note, xxxx of exchange or security
interest of any form held or which may hereafter be held by the Collateral Agent
from the Corporation or from any other person whomsoever. The taking of a
judgement with respect to any of the Secured Obligations will not operate as a
merger of any of the covenants contained in this Agreement.
9.8. SUCCESSORS AND ASSIGNS
This Agreement shall be binding on the Corporation and its
successors and shall enure to the benefit of the Collateral Agent and its
successors and assigns. This Agreement shall be assignable by the Collateral
Agent free of any set-off, counter-claim or equities between the Corporation and
the Collateral Agent, and the Corporation shall not assert against an assignee
of the Collateral Agent any claim or defence that the Corporation has against
the Collateral Agent.
9.9. AMALGAMATION OF CORPORATION
The Corporation hereby acknowledges and agrees that, subject to
compliance with the Security Agreements, in the event it amalgamates with any
other corporation or corporations, it is the intention of the parties hereto
that the term "Corporation", when used herein, shall apply to each of the
amalgamating corporations and to the amalgamated corporation, such that the
security interest granted hereby:
9.9.1. shall extend to "Collateral" (as that term is herein defined) owned
by each of the amalgamating corporations and the amalgamated corporation at
the time of amalgamation and to any "Collateral" thereafter owned or
acquired by the amalgamated corporation;
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9.9.2. shall secure the Corporation's "Secured Obligations" (as that term is
herein defined) of each of the amalgamating corporations and the amalgamated
corporation to the Collateral Agent, for and on behalf of the Trustee, at
the time of amalgamation and any "Secured Obligations" of the amalgamated
corporation to the Collateral Agent, for and on behalf of the Trustee,
thereafter arising; and
9.9.3. shall attach to "Collateral" owned by each corporation amalgamating
with the Corporation and by the amalgamated corporation, at the time of
amalgamation, and shall attach to any "Collateral" thereafter owned or
acquired by the amalgamated corporation when such becomes owned or is
acquired.
9.10. COPY RECEIVED
The Corporation hereby acknowledges receipt of a copy of this
Agreement and a copy of the financing statement/verification statement
registered under the PPSA in respect of the Security Interest. The receipt by
the Corporation's legal counsel of a financing statement or financing change
statement, or a copy thereof, shall be deemed to be receipt of same by the
Corporation.
9.11. INTERCREDITOR AGREEMENT
Notwithstanding any provision herein to the contrary, in case of any
conflict or inconsistency between the provisions of this Agreement and those of
the Intercreditor Agreement, including, without limitation, with respect to the
rights and obligations of the parties and the conditions and terms on which
security interests may be enforced, the provisions of the Intercreditor
Agreement shall prevail and be paramount.
IN WITNESS WHEREOF the Corporation has executed this Agreement as of
the day first above written.
SPORT MASKA INC.
by: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
by:_______________________________________
Name:
Title:
