SECURITY AGREEMENT
(INTELLECTUAL PROPERTY)
THE UNDERSIGNED, SPORT MASKA INC. (the "Corporation"), a corporation
continued and subsisting under the laws of the Province of New Brunswick, hereby
enters into this Security Agreement, made effective as of the 1st day of April,
1997 in favour of The Chase Manhattan Bank of Canada (the "Lender");
WHEREAS the Lender has agreed to make certain credit facilities available
to the Corporation pursuant to a credit agreement dated as of April 1, 1997 made
between the Corporation and the Lender (that credit agreement, as amended,
restated or supplemented from time to time being referred to below as the
"Credit Agreement") on and subject to the terms and conditions thereof,
including without limitation the condition precedent that this Agreement be
entered into to secure repayment of its indebtedness and liability under the
Credit Agreement, now or hereafter existing, absolute or contingent, joint or
several together with all reasonable expenses (including legal fees and
disbursements on a solicitor and his or her own client basis) incurred by the
Lender and/or any agent or receiver or receiver/manager acting on behalf of the
Lender in connection with the preparation, registration, enforcement of rights
under or analysis of rights under the Credit Agreement and this Agreement from
time to time (all of which present and future indebtedness, liabilities,
obligations and expenses, together with all extensions and renewals thereof, are
hereinafter collectively referred to as the "Indebtedness");
NOW THEREFORE, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt, sufficiency and adequacy of
which are hereby acknowledged, the Corporation agrees as follows:
1. Creation of Security Interest. As security for the complete and timely
payment and satisfaction of all of the Indebtedness, the Corporation hereby
grants to the Lender a security interest, and assigns, transfers and conveys to
the Lender, and hypothecates in favour of the Lender (collectively, the
"Security Interest"), with unfettered rights to power of sale, to the extent
permitted by law or by the specific license agreements, if relevant, in and to
all of the right, title and interest of the Corporation in and to all of its now
existing and hereafter created or acquired:
(a) computer programs, application software, hardware and/or software
maintenance support agreements and all documentation relating thereto,
licences of software, copyrights, patents and inventions, industrial
designs, trade secrets, inventor certificates, statutory invention
registrations and all know-how obtained, developed or used by the
Corporation in connection with its business, including, without
limitation
2.
by the Corporation in connection with its business, including, without
limitation the patents, industrial designs and software listed in
Exhibit "A" attached hereto and hereby made a part hereof and (i)
renewals or extensions thereof; (ii) all income, damages and payments
now or hereafter due or payable with respect thereto, including,
without limitation, damages and payments for past or future
infringements thereof; (iii) the right to xxx for past, present and
future infringements thereof; and (iv) all rights corresponding
thereto throughout the world (all of the foregoing computer programs,
application software, hardware and/or software maintenance support
agreements, licenses of software, copyrights, patents and inventions,
industrial designs, trade secrets and know-how, and applications and
registrations thereof, together with the items described in clauses
(i) - (iv) of this subsection 1(a) are sometimes hereinafter
collectively referred to as the "Patents/Designs/Copyrights");
(b) trademarks, trademark registrations, trademark applications, trade
names, business names, trade styles, logos, service marks, and all
other forms of business identifiers, including, without limitation,
the trademarks, trademark registrations, trademark applications, trade
names, business names, trade styles, logos and all other forms of
business identifiers listed on Exhibit "B" attached hereto and hereby
made a part hereof, and (i) renewals or extensions thereof, (ii) all
income, damages and payments now or hereafter due or payable with
respect thereto, including, without limitation, damages and payments
for past or future infringements thereof, (iii) the right to xxx for
past, present and future infringements thereof, and (iv) all rights
corresponding thereto throughout the world (all of the foregoing
trademarks, trade names and trade styles, and applications and
registrations thereof, together with the items described in clauses
(i)-(iv) of this subsection 1(b), are sometimes hereinafter referred
to individually as a "Trademark", and, collectively, as the
"Trademarks");
(c) all license agreements with respect to any of the Trademarks or any
Trademark or any application or registration therefor or any other
trade name or trade style, between the Corporation and any other
party, whether the Corporation is a licensor or licensee under any
such license agreement, including, without limitation, the licenses
listed on Exhibit "C" attached hereto and hereby made a part hereof,
and (i) renewals or extensions thereof, (ii) all income, damages and
payments now or hereafter due or payable with respect thereto,
including, without limitation, damages and payments for past or future
breaches thereof, (iii) the right to xxx for past, present and future
breaches thereof, and (iv) all rights corresponding thereto throughout
the world
3.
(all of the foregoing license agreements and the rights of the
Corporation thereunder, together with the items described in clauses
(i)-(iv) of this subsection 1(c), are sometimes hereinafter referred
to individually as a "License", and, collectively, as the "Licenses");
and
(d) the goodwill of the business of the Corporation connected with and
symbolized by any one or more of the Patents/Designs/Copyrights,
Trademarks and Licences, and (i) all damages and payments now or
hereafter due or payable with respect thereto, including, without
limitation, damages and payments for past or future depreciation
thereof or injury thereto, (ii) the right to xxx for past, present and
future depreciation thereof or injury thereto, and (iii) all rights
corresponding thereto throughout the world (the foregoing goodwill,
together with the items described in clauses (i)-(iii) of this
subsection 1(d), are referred to as the "Goodwill").
(The Patents/Designs/Copyrights, Trademark or Trademarks, License or Licenses
and Goodwill referred to in subparagraphs 1(a), (b), (c) and (d) above are
sometimes collectively referred to below as the "Collateral").
The Corporation and the Lender agree that they have not agreed to
postpone the time for attachment of the Security Interests granted hereby with
respect to the Corporation's presently existing Collateral and that such
Security Interests shall attach to the Collateral acquired after the date hereof
as soon as the Corporation has rights in such Collateral. From time to time, at
the request of the Lender, the Corporation shall make and do all acts and things
and execute and deliver all documents, agreements and instruments as the Lender
reasonably may request by notice in writing to the Corporation in order to
create, preserve, perfect, validate or otherwise protect the Security Interests
to enable the Lender to exercise and enforce its rights and remedies hereunder
(except that nothing hereunder shall constitute a waiver of any rights available
to the Corporation at law to the extent that such rights cannot be lawfully
waived) and generally to carry out the provisions and purposes of this
Agreement. The Lender agrees that it shall have no right to be assigned the
title to any of the Collateral unless and until the Security Interest hereby
constituted shall become enforceable as hereinafter provided.
The amount of the hypothec referred to in this Section 1 is fifty
million dollars ($50,000,000.00) in lawful money of the United States of America
with interest thereon from the date of this Agreement at the rate of twenty-five
percent (25%) per annum.
2. (a) Warranties and Representations. Subject to paragraph 2(b) below, the
Corporation warrants and represents to the Lender that:
4.
(i) all registrations, applications for registration, filings and notices
thereof in respect of the Collateral including, all relevant renewals,
have been duly and properly made, are in full force and effect and are
not subject to dispute by any governmental authority or agency and all
leases, licences and other agreements affecting any right, title or
interest of the Corporation in any of the Collateral (collectively,
the "Third Party Agreements") are in good standing;
(ii) none of the Collateral has been adjudged invalid or unenforceable or
has been cancelled, in whole or in part, and all such Collateral is
presently subsisting, valid, in good standing and enforceable, with
the exception of those set out in the Exhibits hereto and identified
as "pending applications", "cancelled/expunged registrations",
"abandoned applications" or "registrations no longer in name of the
Corporation";
(iii) the Corporation is the exclusive owner or in the case of licensed
Collateral, the sole and exclusive licensee, of the entire and
unencumbered right, title and interest in and to each of the
Collateral (except as otherwise expressly described in the Exhibits
hereto) free and clear of any liens, charges and encumbrances except
for liens permitted under the Credit Agreement or otherwise approved
by the Lender in writing (the "Permitted Encumbrances");
(iv) the Collateral listed on Exhibits "A", "B" and "C", respectively,
constitute all of the Patents/Designs/Copyrights, Trademarks and
Licenses now owned by the Corporation;
(v) the Corporation has adopted, used continuously and currently is using
all of the Patents/Designs/Copyrights, Trademarks and Licences; all
licensees of the Collateral (or all relevant portions thereof) from
the Corporation as licensor have been licensed properly to use such
Collateral and the Corporation has retained under license the direct
or indirect control of the character or quality of the goods or
services in connection with which use of such Collateral has been
licensed by it; all use of such Collateral has been proper both in
form and in relation to the goods or services in connection with which
the Collateral is used by the Corporation or its licensees; and proper
ownership notices have been used by the Corporation or its licensees;
(vi) other than as set forth in SCHEDULE 4.06(a) annexed to the Credit
Agreement, the Corporation has no notice of any suits or actions
commenced or threatened in respect of any of the Collateral,
including, without limitation, any suits or actions which contain
allegations respecting the validity, enforceability, infringement or
ownership of
5.
any of the Collateral, including, without limitation, any of the
Corporation's right, title and interest in the Collateral and no
notice, or knowledge, of any person infringing any of the Collateral;
(vii) the Corporation has the right to execute and deliver this Agreement
and to perform its covenants and obligations hereunder;
(viii) this Agreement is a valid, legal and binding obligation of the
Corporation subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting creditors'
rights and the discretion exercisable by Courts of competent
jurisdiction in respect of the availability of equitable remedies; and
(ix) nothing contained in this Agreement or the Credit Agreement,
including, without limitation, the granting of the Security Interest
by the Corporation in favour of the Lender, constitutes a breach under
any Third Party Agreement.
(b) The foregoing representations and warranties shall be continuing
representations and warranties which, for greater certainty, shall apply at the
date hereof to all Collateral owned or licensed by the Corporation on the date
hereof including, without limitation, the Collateral described in Exhibits "A",
"B" and "C" hereto and shall be deemed to be given by the Corporation and to
apply to all after acquired Collateral immediately upon the Corporation
acquiring the same.
3. Covenants of the Corporation. The Corporation covenants and agrees that until
the Indebtedness shall have been satisfied in full, the Corporation shall:
(a) use the Trademarks only on goods of at least as high quality as the
goods on which the Corporation or its predecessor used the goods as of
the date hereof and maintain the quality of any and all products in
connection with which the Trademarks and other Collateral is used,
consistent with the quality of said products as of the date hereof;
(b) take or cause to be undertaken all steps necessary to protect the
Corporation's interest in and to maintain the Patents/Designs/
Copyrights, Trademarks and Licenses and other Collateral in good
standing, including without limitation, to pursue diligently all
applications through to registration and to renew all registrations
and pay all maintenance fees as applicable, as well as attending to
the filing of all required documentation;
(c) vigorously protect, preserve and maintain all of the Corporation's
right, title and interest in the Collateral including, without
limitation, the prosecution and/or defence against any and all suits
concerning
6.
validity, infringement, enforceability, ownership or other aspects
affecting any of the Collateral (any expenses incurred in protecting,
preserving and maintaining any of the Collateral shall be borne by the
Corporation);
(d) upon written request by the Lender, execute and deliver any and all
agreements, instruments, documents and papers as the Lender may
reasonably request to evidence the Lender's Security Interest in the
Collateral;
(e) perform all covenants required under any Third Party Agreement
including, inter alia, promptly paying all required fees, royalties
and taxes to maintain each and every item of the Collateral in full
force and effect;
(f) if at any time or from time to time, before the Indebtedness shall
have been satisfied in full, the Corporation (i) becomes aware of any
existing Patents/Designs/Copyrights, Trademarks or Licenses of which
the Corporation has not previously informed the Lender, (ii) obtains
rights to any new Patents/Designs/Copyrights, Trademarks or Licenses,
or (iii) becomes entitled to the benefit of any Patents/Designs/
Copyrights, Trademarks, or Licenses not identified on any of Xxxxxxxx
"X", "X" or "C", then the Corporation shall promptly notify the Lender
and regardless of when the Corporation so notifies the Lender,
Exhibits "A", "B" and "C" hereto, as applicable, automatically shall
be modified and amended to include any such
Patents/Designs/Copyrights, Trademarks and Licenses and the provisions
of this Agreement automatically shall apply thereto;
(g) maintain up to date records regarding the Collateral;
(h) provide the Lender with a written report on each anniversary of this
Agreement regarding the status of all Patents/Designs/Copyrights,
Trademarks and Licenses;
(i) provide the Lender, upon request by the Lender from time to time, with
a certificate of an officer of the Corporation certifying the
compliance of the Corporation with this Agreement;
(j) not sell, transfer, assign or dispose of its interest in, or grant any
license or sublicense under any of the Patents/Designs/Copyrights or
Trademarks or the Licenses or the Goodwill, or enter into any other
agreement with respect to any of the Collateral, without the prior
written consent of the Lender, Which consent shall not be unreasonably
withheld;
7.
(k) not abandon any right to file a trademark application or patent
application, or abandon any pending trademark or patent application,
or abandon any of the Patents/Designs/Copyrights, Trademarks, Licenses
or Goodwill or any suits involving any of the Collateral, without the
prior written consent of the Lender, which consent of the Lender shall
not be unreasonably withheld;
(l) not take any action, or permit any action to be taken by any person or
persons subject to its control, including licensees, or fail to take
any action, which would adversely affect the validity, enforceability
or transferability (to the Lender or otherwise) of all or any of the
Collateral; and
(m) not create or permit to exist any mortgage, hypothec, pledge, charge,
lien or other encumbrance upon the Collateral, other than the existing
Permitted Encumbrances, except as expressly consented to in writing by
the Lender.
4. Right of the Lender to Inspect. The Lender shall have the right, at any time
and from time to time upon reasonable notice and upon such terms as are agreed
to in advance by the Corporation and prior to payment in full of the
Indebtedness and release and discharge by the Lender of the Credit Agreement and
this Agreement (collectively, the "Termination"), to inspect the premises of the
Corporation and to examine the books, records and operations of the Corporation,
including, without limitation, the quality control processes of the Corporation.
5. Term of Security Interest; Royalties. The term of the Security Interest
granted herein shall continue until the Termination. The Corporation agrees that
the assignment or transfer to and use by the Lender of all Collateral shall be
worldwide and without any liability on the part of the Lender for royalties or
other related charges from the Lender to the Corporation.
6. Expenses. All expenses incurred by or on behalf of the Lender in connection
with the performance of any of the covenants and agreements set forth herein
shall be borne by the Corporation in accordance with the Credit Agreement.
7. Duties of the Corporation. Until the Termination, the Corporation shall, at
its own expense:
(a) diligently prosecute any and all Patent/Designs/Copyrights and
Trademark applications pending as of the date hereof or thereafter;
(b) make application to register all Patent/Designs/Copyrights and
Trademarks, as appropriate and to the extent commercially reasonable;
8.
(c) protect, preserve and maintain vigorously all of the fight, title and
interest of the Corporation in and to the Collateral, including,
without limitation, the prosecution or defence of all suits concerning
the validity, infringement, breach, enforceability, ownership or other
aspects affecting any of the Collateral; and
(d) ensure generally that the Collateral is and remains valid, in good
standing and enforceable.
8. Default. Without prejudice to the right of the Lender to demand payment of
all or any part of the Indebtedness hereby secured at any time or times,
pursuant to the Credit Agreement, the Indebtedness shall at the option of the
Lender, become payable and the security hereby constituted shall become
enforceable in each and every of the events following:
(a) if the Corporation makes default in the observance or performance of
any written agreement or undertaking heretofore or hereafter given by
the Corporation to the Lender pursuant to or in connection with the
Credit Agreement, whether contained herein or not;
(b) if the Corporation makes default in payment of all or any portion of
the Indebtedness when due whether the same is secured hereby or not;
(c) if an order is made or a resolution passed for the winding-up of the
Corporation, or if a petition is filed for the winding-up of the
Corporation;
(d) if the Corporation ceases or threatens to cease to carry on business
or if the Corporation commits or threatens to commit any act of
bankruptcy or if the Corporation becomes insolvent or makes an
assignment or proposal in bankruptcy or gives notice of its intention
to do so or makes a bulk sale of its assets or if a bankruptcy
petition is filed or presented against the Corporation;
(e) if any proceedings with respect to the Corporation are commenced under
the Companies' Creditors Arrangement Act (Canada) or the Bankruptcy
and Insolvency Act (Canada) or if the Corporation shall seek relief or
consent to the filing of a petition against it under any law which
involves any arrangement with or any compromise of any rights of any
one or more creditors of the Corporation;
(f) if an execution or any other process of any court becomes enforceable
against the Corporation or if a distress or analogous process is
levied upon the property of the Corporation or any part thereof;
9.
(g) if any sum which has been admitted as due by the Corporation or is not
disputed to be due by it and which forms or is capable of being made a
charge upon any of the Collateral in priority to the Security Interest
created by this Agreement is unpaid;
(h) if the Corporation shall default in the observance or performance of
any material provision relating to any material indebtedness or
liability of the Corporation to any creditor other than the Lender;
(i) if any material licences, permits or approvals required by any law,
regulation or governmental policy or any governmental agency or
commission for the operation by the Corporation of its business shall
be withdrawn or cancelled; or
(j) if any representation or warranty made by the Company or any of its
officers, employees or agents to the Lender shall be false or
inaccurate in any material respect.
9. Waivers. No course of dealing between the Corporation and the Lender, nor any
failure to exercise, nor any delay in exercising, on the part of the Lender, any
right, power or privilege hereunder or under the Credit Agreement shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
Lender may waive, in whole or in part, any breach of any provisions of this
Agreement by the Corporation, any breach of any provisions of the Credit
Agreement or any of the rights and remedies of the Lender whether provided
hereunder or otherwise, provided that no such waiver shall be considered to have
been given unless given expressly in writing by the Lender to the Corporation.
No waiver given by the Lender in accordance with this Section 9 shall be
construed as a waiver of any other or subsequent breach or default by the
Corporation.
10. Severability. The provisions of this Agreement are severable, and if any
clause or provision shall be held invalid and unenforceable in whole or in part
in any jurisdiction by a Court of competent jurisdiction, then such invalidity
or unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
11. Modification. This Agreement cannot be altered, amended or modified in any
way, or by any other document or instrument signed by each of the Corporation
and the Lender.
10.
12. Cumulative Remedies. All of the rights and remedies of the Lender with
respect to the Collateral, whether established hereby or by the Credit
Agreement, or by any other agreements or by law shall be cumulative and may be
exercised singularly or concurrently.
13. Irrevocable Power of Attorney. The Corporation irrevocably constitutes and
appoints the Lender and each of its authorized employees from time to time as
the true and lawful attorney of the Corporation with full power of substitution
in the name of the Corporation, with power after the security constituted hereby
shall have become enforceable to:
(a) endorse or sign the name of the Corporation on and execute and deliver
all applications, registrations, recordings, reissues, continuations,
continuations in part, term restorations and extensions thereof,
documents, papers, agreements, assignments and instruments necessary
or desirable for the purpose of recording, registering and filing of,
or accomplishing any other formality with respect to the Collateral or
any part thereof or otherwise regarding the Collateral, or any part
thereof;
(b) take any other actions with respect to the Collateral, or any part
thereof, as the Lender deems to be in the best interest of the Lender,
including without limitation, the realization or collection of all or
any income, damages or payments related thereto;
(c) grant or issue any exclusive or non-exclusive license or sublicense
under or in respect of the Collateral, or any part thereof to anyone;
or
(d) assign, pledge, convey, sell, license, or otherwise transfer title in
or dispose of the Collateral or any part thereof (or the right, title
and interest of the Corporation therein) to anyone by private or
public sale, lease or otherwise upon such terms and conditions as the
Lender may determine as permitted by law and whether or not the Lender
has taken possession of any of the Collateral.
The Corporation and the Lender acknowledge and agree that any disposition
referred to in clause (d) in this Section 13 maybe either a disposition of all
or any of the Collateral and may be by way of public auction, public tender,
private contract or otherwise as permitted by law. The Lender may sell or
dispose of the Collateral for consideration payable by instalments either with
or without taking security for the payment of such instalments and may make and
deliver to any purchaser thereof good and sufficient assignment, documents or
instruments and give receipts for the purchase money, and any such sale or
disposition shall be a perpetual bar, both at law and in equity, against the
Corporation and all those claiming an interest in and to the Collateral by,
from, through or under the Corporation. The Corporation
11.
hereby ratifies all acts of any such attorney taken, done or caused to be taken
or done in accordance with this Section 13. This power of attorney shall be
irrevocable unless and until the Indebtedness shall have been paid in full and
the Termination has occurred. Upon execution of this Agreement, the Corporation
shall execute the power of attorney in the same or substantially the same form
as set forth in Exhibit "D" to this Agreement.
14. Remedies. Whenever the Security Interest granted pursuant to this Agreement
shall have become enforceable, and so long as it shall remain enforceable, the
Lender may, in addition to all other rights and remedies available to it at law
or in equity, proceed to realize upon such security and to enforce its rights
by:
(a) the appointment by instrument in writing of a receiver or receivers of
the Collateral or any part thereof (which receiver or receivers may be
any person or persons, whether an officer or officers or employee or
employees of the Lender or not and the Lender may remove any receiver
or receivers so appointed and appoint another or others in his, her or
their stead);
(b) proceedings in any court of competent jurisdiction for the appointment
of a receiver or receivers or for sale of the Collateral or any part
thereof;
(c) any other action, suit, remedy or proceeding authorized or permitted
hereby or by law or by equity;
(d) exercising all of the rights of the Corporation under all contracts,
agreements or other instruments in writing relating to the Collateral
as fully and effectually as if the Lender were the absolute owner
thereof;
(e) commencing legal proceedings for and on behalf of and in the name of
the Lender and at the expense of the Corporation in order to enforce
the rights of the Corporation under any contracts, agreements, or
other instruments in writing which may relate to the Collateral; or
(f) exercising any of the rights and/or remedies referred to in Section 13
hereof.
Any receiver or receivers appointed pursuant to this Section 14 shall have power
to: (i) take possession of and to use the Collateral or any part thereof; (ii)
borrow money required for the maintenance, preservation or protection of the
Collateral or any part thereof or the carrying on of the business of the
Corporation; (iii) further charge the Collateral in priority to the security
interests of this Agreement as security for money so borrowed; and (iv) sell,
lease or otherwise dispose of the whole or any part of the Collateral on such
terms and conditions and in such manner as the receiver
12.
shall determine as permitted by law. The term "receiver" as used in this
Agreement includes a receiver and manager. The Lender may file such proofs of
claim and other documents as may be necessary or advisable in order to have its
claim lodged in any bankruptcy, winding-up or other judicial proceedings
relating to the Corporation. In addition, the Lender may use and possess the
Collateral or any part thereof, free from all encumbrances, liens and charges
(unless otherwise expressly provided for herein) without hindrance, interruption
or denial of the same by the Corporation or by any other person or persons and
may lease or sell the whole or any part or parts of the Collateral . Any sale
hereunder may be made by public auction, by public tender or by private contract
or as otherwise permitted by applicable law. Such sale shall be on such terms
and conditions as to credit or otherwise and as to upset or reserve bid or price
as to the Lender acting in a commercially reasonable manner may seem
advantageous. Such sale may take place whether or not the Lender has taken
possession of the Collateral. No remedy for the realization of the Security
Interest granted herein or for the enforcement of the rights of the Lender shall
be exclusive of or dependent on any other such remedy, but any one or more of
such remedies may from time to time be exercised independently or in
combination.
15. Effect on Other Agreements. The Corporation acknowledges and agrees that
this Agreement is not intended to limit or restrict in any way the rights and
remedies of the Lender under the Credit Agreement, or any other security granted
by the Corporation to the Lender pursuant thereto, but rather is intended to
facilitate the exercise of such rights and remedies. The Lender shall have, in
addition to all other rights and remedies given to it by the terms of this
Agreement and the Credit Agreement, all rights and remedies allowed by law and
the rights and remedies of a secured party under the Personal Property Security
Act as enacted in any jurisdiction in which the Collateral may be located
(including, without limitation, any of the hypothecary rights provided for under
articles 2748 to 2794 of the Civil Code of Quebec).
16. Binding Effect; Benefits. This Agreement, receipt of a true copy of which is
hereby acknowledged by the Corporation, shall be binding upon the Corporation
and its respective successors and permitted assigns, and shall enure to the
benefit of and be enforceable by the tender, its successors, nominees and
assigns. The Lender may, upon the terms provided in the Credit Agreement,
assign, transfer and deliver to any transferee any or all of the Indebtedness
secured by this Agreement or any security or any documents or instruments held
by the Lender in respect thereof, provided that no such assignment, transfer or
delivery shall release the Corporation from any of the Indebtedness secured by
this Agreement and provided that on or before the completion of such assignment,
transfer or delivery, any assignee, transferee or holder shall enter into an
agreement with the Corporation to the effect that such assignee, transferee or
holder agrees to be bound by and observe the provisions of this Agreement; and
thereafter the Lender shall, to
13.
the extent provided in the Credit Agreement, be fully discharged from any and
all further responsibility with respect to the Indebtedness, including without
limitation all documents and instruments so assigned, transferred or delivered.
Such transferee shall be vested with all powers and rights of the Lender under
such security, documents or instruments but the Lender shall retain all rights
and powers with respect to any such security, documents or instruments not so
assigned, transferred or delivered. The Corporation shall not sell or assign its
interest in, or grant any license or sublicense under the Collateral without the
prior written consent of the Lender.
17. Release of Security Interest. Upon Termination, the Lender shall upon
request in writing by the Corporation and at the expense of the Corporation
execute and deliver to the Corporation all documents and instruments, and shall
take such other actions, as may be necessary or proper to release the lien on
and security interest in the Collateral, subject to any disposition thereof
which may have been made by the Lender pursuant hereto.
18. Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the Province of New Brunswick and the
federal laws of Canada applicable therein. The Corporation agrees that any
lawsuit, action or proceeding arising out of or relating to this Agreement may
be instituted in the Courts of New Brunswick and the Corporation hereby accepts
and irrevocably submits to the non-exclusive jurisdiction of the said Courts and
acknowledges their competence and agrees to be bound by any judgment thereof;
provided that nothing herein shall limit the rights of the Lender to bring or
initiate proceedings against the Corporation or any other person elsewhere.
19. Headings. Paragraph headings used herein are for convenience only and shall
not modify nor interpret the provisions which they precede.
20. Further Assurances. The Corporation agrees to execute and deliver such
further agreements, instruments and documents, and to perform such further acts,
as the Lender reasonably may request from time to time in order to carry out the
purpose of this Agreement and the covenants and agreements set forth herein.
21. Survival of Representations. All representations and warranties of the
Corporation contained in this Agreement shall survive the execution and delivery
of this Agreement and shall be remade on the date of each and every borrowing
made by the Corporation under the Credit Agreement.
22. Counterparts. This Agreement may be executed by the parties in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
14.
23. Inconsistencies. This Agreement is executed pursuant to the Credit Agreement
and is subject to the terms thereof. In the event of any contradiction between
the terms hereof and the comparable terms of the Credit Agreement, the terms of
the Credit Agreement shall prevail.
24. Selection of Language. It is the express wish of the Parties that this
agreement and any related documents be drawn up and executed in English. Les
parties conviennent que la presente convention et tous les documents s'y
rattachant soient rediges et signes en anglais.
IN WITNESS WHEREOF, this Agreement has been executed by the Corporation,
effective as of the date first written above.
SPORT MASKA INC.
By: /s/ D. Xxxxx Xxxxxxx c/s
-----------------------------
Name: D. Xxxxx Xxxxxxx
Title: Secretary
THE CHASE MANHATTAN BANK OF CANADA
By: c/s
-----------------------------
Name: Xxxxxxxxx Xxxx
Title:
