Exhibit 10.8
EXECUTION COPY
------------------------------------------------------------------------
INTERCREDITOR AGREEMENT
Made as of April 3, 2002
Between
GENERAL ELECTRIC CAPITAL CORPORATION
and
GENERAL ELECTRIC CAPITAL CANADA INC.
and
THE BANK OF NEW YORK, AS US COLLATERAL AGENT
and
BNY TRUST COMPANY OF CANADA, AS CANADIAN COLLATERAL AGENT
and
THE BANK OF NEW YORK, AS INDENTURE TRUSTEE
and
SPORT MASKA INC., THE HOCKEY COMPANY, SPORTS HOLDINGS CORP.,
MASKA U.S., INC., SLM TRADEMARK ACQUISITION CANADA CORPORATION,
SLM TRADEMARK ACQUISITION CORP. AND WAP HOLDINGS INC.
------------------------------------------------------------------------
EXECUTION COPY
SECTION 1 - INTERPRETATION
1.1 Definitions..................................................3
1.2 Headings....................................................12
1.3 References..................................................12
1.4 Number and Gender...........................................12
1.5 Time of the Essence.........................................12
SECTION 2
INTERCREDITOR AGREEMENT..............................................12
2.1 Lien Priorities.............................................12
2.2 Distribution of Proceeds of Collateral......................15
2.3 Enforcement Actions.........................................17
2.4 Liquidation Periods.........................................19
2.5 Use of Collateral Agent Senior Collateral...................20
2.6 Collateral Agent's Rights During Liquidation Periods........21
2.7 Availability and Delivery of Books, Records Etc.............21
2.8 Expenses During Liquidation Periods.........................22
2.9 Release of Liens............................................22
2.10 Release of Pledged Share Documents..........................23
2.11 Intellectual Property Licence...............................23
2.12 Use of Intellectual Property................................24
2.13 Amounts to be Received in Trust.............................24
2.14 Additional Credit Extensions; Amendments....................24
2.15 Accounting..................................................25
2.16 Notice of Defaults..........................................25
2.17 Insurance...................................................25
2.18 Notices of Sale.............................................27
2.19 Agents for each of the Secured Parties......................27
2.20 Collateral Agent Obligations................................27
SECTION 3 - MISCELLANEOUS
28
3.1 Notices.....................................................28
3.2 Contesting Liens or Security Interests......................28
3.3 The Debtors Acknowledgement on Insolvency Proceedings.......28
3.4 No Additional Rights for the Debtors Hereunder..............28
3.5 Independent Credit Investigations...........................29
3.6 Limitation on Liability of Agents to Each Other.............29
3.7 Amendments to this Agreement................................29
3.8 Entire Agreement............................................29
3.9 Further Assurances..........................................29
3.10 No Waiver...................................................29
3.11 Severability................................................30
3.12 Successors and Assigns; Counterparts........................30
3.13 Governing Law...............................................30
3.14 Attornment..................................................30
i
3.15 Information.................................................30
3.16 Termination.................................................30
3.17 Agreement Does Not Apply to Certain Property................31
ii
INTERCREDITOR AGREEMENT
This lntercreditor Agreement (as amended, supplemented. restated or otherwise
modified from time to time, this "AGREEMENT") is made as of April 3, 2002,
between
GENERAL ELECTRIC CAPITAL CORPORATION., a Delaware corporation (in
its capacity as agent for itself and the other US Lenders (as
defined in Recital A), together with its successors and assigns in
such capacity, "GECC")
and
GENERAL ELECTRIC CAPITAL CANADA INC., a Canada corporation (in its
capacity as agent for itself and the other Canadian Lenders (as
defined in Recital B), together with its successors and assigns in
such capacity, "GE CAPITAL CANADA")
and
THE BANK OF NEW YORK, a New York banking corporation (solely in
its capacity as US collateral agent for the Holders and the
Indenture Trustee (each as defined in Recital C) together with its
successors and assigns, "US COLLATERAL AGENT")
and
BNY TRUST COMPANY OF CANADA, a trust company incorporated pursuant
to the laws of Canada (solely in its capacity as Canadian
collateral agent and as fonde de pouvoir for the Indenture Trustee
and the Holders (each as defined in Recital C) together with its
successors and assigns, "CANADIAN COLLATERAL AGENT")
and
THE BANK OF NEW YORK, a New York banking corporation (solely in
its capacity as indenture trustee for the Holders, together with
its successors and assigns, "INDENTURE TRUSTEE")
and
THE HOCKEY COMPANY, a Delaware corporation (together with its
successors and assigns, "THC")
and
SPORTS HOLDINGS CORP., a Delaware corporation (together with its
successors and assigns, "SHC")
and
SLM TRADEMARK ACQUISITION CANADA CORPORATION, a New Brunswick
corporation (together with its successors and assigns, "TRADEMARK
CANADA")
and
SLM TRADEMARK ACQUISITION CORP., a Delaware corporation (together
with its successors and assigns, "TRADEMARK US")
and
MASKA U.S., INC., a Vermont corporation (together with its
successors and assigns, "US BORROWER")
and
SPORT MASKA INC., a New Brunswick corporation (together with its
successors and assigns "CANADIAN BORROWER")
and
WAP HOLDINGS INC., a Delaware corporation (together with its
successors and assigns, "WAP")
RECITALS
A. US Borrower, THC, SHC, Canadian Borrower, Trademark US, Trademark Canada,
WAP and the other credit parties signatory thereto (collectively, the "US
FACILITY CREDIT PARTIES"), the lender or lenders thereunder from time to
time (the "US LENDERS", and together with GECC, the "GECC SECURED
PARTIES") and GECC are parties to a Credit Agreement made November 19,
1998 (as amended, supplemented, restated or otherwise modified from time
to time, the "US CREDIT AGREEMENT") under which GECC and the US Lenders
have agreed to provide to US Borrower revolving credit facilities of up
to the aggregate principal amount of US$35,000,000.
B. Canadian Borrower, THC, SHC, US Borrower, Trademark US, Trademark Canada,
WAP and the other credit parties signatory thereto (collectively, the
"CANADIAN FACILITY CREDIT PARTIES"), the lender or lenders thereunder
from time to time (the "CANADIAN LENDERS", and together with GE Capital
Canada, the "GE CAPITAL CANADA SECURED PARTIES") and GE Capital Canada
are parties to a Credit Agreement dated as of November 19, 1998 (as
amended, supplemented, restated or otherwise modified from time to time,
the "CANADIAN CREDIT AGREEMENT") under which GE Capital Canada and the
Canadian Lenders have agreed to provide to Canadian Borrower revolving
credit facilities of up to the aggregate principal amount of
US$35,000,000.
C. THC, Sport Maska Inc., the other Canadian Facility Credit Parties, and
Indenture Trustee are parties to an Indenture dated as of April 3, 2002
(as amended, supplemented restated
2
or otherwise modified from time to time, the "INDENTURE") under which THC
and Sport Maska Inc. have issued units ("UNITS") in the aggregate
principal amount of $125,000,000 consisting of $ 62,500,000 principal
amount of 11.25% senior secured notes, due 2009, of THC and $62,500,000
principal amount of 11.25% senior secured notes, due 2009, of Sport Maska
Inc. (collectively, the "SENIOR NOTES").
D. US Collateral Agent is the US collateral agent on behalf of the holders
of the Units ("HOLDERS") and the Indenture Trustee in accordance with the
Indenture and Canadian Collateral Agent is the Canadian collateral agent
on behalf of the Holders and the Indenture Trustee, in accordance with an
agreement between Canadian Collateral Agent, Canadian Borrower, THC, the
other Canadian Facility Credit Parties and Indenture Trustee (as amended,
supplemented restated or otherwise modified from time to time, the
"COLLATERAL AGENCY AGREEMENT; and Holders, Indenture Trustee, US
Collateral Agent and Canadian Collateral Agent are collectively referred
to herein as the "COLLATERAL AGENT SECURED PARTIES").
E. The GECC Secured Parties, the GE Capital Canada Secured Parties and the
Collateral Agent Secured Parties have each obtained, and may hereafter
obtain, assignments, security interests, hypothecs, charges, pledges and
other liens (collectively, the "LIENS") in certain assets of the US
Facility Credit Parties and the Canadian Facility Credit Parties
(collectively the "DEBTORS") under the assignments, deeds of hypothec,
security agreements, pledges, mortgages and other security documents
entered into now and hereafter under, by virtue of, or otherwise in
connection with, the US Credit Agreement, the Canadian Credit Agreement
and the Indenture (collectively, the "SECURITY DOCUMENTS").
F. GECC, GE Capital Canada, Indenture Trustee, US Collateral Agent and
Canadian Collateral Agent desire to agree on the relative priority of the
respective Liens of the GECC Secured Parties, the GE Capital Canada
Secured Parties and the Collateral Agent Secured Parties and certain
other rights, priorities and interests.
FOR VALUE RECEIVED, the parties agree as follows:
SECTION 1 - INTERPRETATION
1.1 DEFINITIONS.
In this Agreement, including the Recitals, the following words and phrases shall
have the following meanings:
(1) "ACCOUNTS" shall mean:
(a) all of the Debtors' accounts and book debts and generally
all debts, dues, claims, choses in action and demands of
every nature and kind howsoever arising or secured,
including letters of credit and advices of credit, which
are now due, owing or accruing or growing due to or owned
by or which may hereafter become due, owing or accruing or
growing due to or owned by the Debtors including, without
limitation, all amounts due from other Debtors and all
deposit and other accounts held in a Debtor's name or a
3
trade or business name of a Debtor or for the benefit of a
Debtor with a financial institution or other deposit-taking
entity and all deposits therein;
(b) all deeds, documents, writings, papers, books of account
and other books relating to or being records of any other
Accounts referred to in this Section 1.1(1);
(c) all instruments, chattel paper, documents of title,
contractual rights and other intangibles or incorporeal
property evidencing, securing or otherwise relating to any
other Accounts referred to in this Section 1.1; and
(d) all books and records and software pertaining to any of the
foregoing,
except to the extent that the property described in paragraphs (a)
through (d) above constitutes Collateral Agent Bank Accounts or
amounts deposited therein, or arises as a result of the
disposition of Equipment, Real Property or Collateral Agent
Intangibles, including Intellectual Property.
(2) "ACCOUNTS LIQUIDATION PERIOD" shall have the meaning given to it
in Section 2.4(1).
(3) "AGREEMENT" shall have the meaning given to it in the first
paragraph of this Agreement.
(4) "CANADIAN BORROWER" shall have the meaning given to it in the
first paragraph of this Agreement.
(5) "CANADIAN BORROWER AND TRADEMARK CANADA ACCOUNTS" shall mean all
Accounts of the Canadian Borrower and Trademark Canada.
(6) "CANADIAN BORROWER AND TRADEMARK CANADA INVENTORY" shall mean all
Inventory of the Canadian Borrower and Trademark Canada.
(7) "CANADIAN COLLATERAL AGENT" shall have the meaning given to it in
the first paragraph of this Agreement.
(8) "CANADIAN CREDIT AGREEMENT" shall have the meaning given to it in
Recital B.
(9) "CANADIAN FACILITY CREDIT PARTIES" shall have the meaning given to
it in Recital B.
(10) "CANADIAN LENDERS" shall have the meaning given to it in Recital
B.
(11) "COLLATERAL" shall mean all the assets, rights, property or
interests in property described in Sections 1.1(1), 1.1(16),
1.1(23), 1.1(29), 1.1(36), 1.1(40), 1.1(46), 1.1(47), 1.1(53),
1.1(54) and 1.1(56) and includes the Proceeds and products
thereof, and where applicable, the Proceeds of insurance or escrow
accounts covering any such property.
(12) "COLLATERAL AGENCY AGREEMENT" shall have the meaning given to it
in Recital D.
4
(13) "COLLATERAL AGENT" shall mean, as the context requires, the
Canadian Collateral Agent and/or the US Collateral Agent.
(14) "COLLATERAL AGENT BANK ACCOUNTS" means any deposit or other bank
account of which Collateral Agent has given each of GECC and GE
Canada prior written notice and into which Proceeds of other
Collateral Agent Senior Collateral have been deposited but shall
exclude any depository or other bank accounts of the Debtors used
in connection with the cash management arrangements between the
Debtors, their relationship banks or similar entities and GECC or
the Debtors, their relationship banks or similar entities and GE
Capital Canada.
(15) "COLLATERAL AGENT CLAIM" shall mean all obligations and
liabilities of THC, Sport Maska Inc. and the other Debtors that
are party to the Indenture, to the Collateral Agent Secured
Parties pursuant to the Collateral Agency Agreement, the Indenture
and the Senior Notes, including, without limitation, all sums
loaned or disbursed to or for the benefit of THC and Sport Maska
Inc. at any time, all interest and fees with respect thereto, and
all costs of collection or enforcement, including legal expenses
and all amounts due under, and obligations owing in respect of,
guarantees given by the Debtors to the Collateral Agent Secured
Parties.
(16) "COLLATERAL AGENT INTANGIBLES" shall mean all of the Debtors' now
owned or hereafter acquired (i) contract rights, choses in action,
causes of action, and rights to refunds or indemnification
relating to other Collateral Agent Senior Collateral, including,
without limitation, claims for tax or other refunds against any
city, county, province, state or federal government, or any agency
or authority or other subdivision thereof relating to other
Collateral Agent Senior Collateral, (ii) corporate or other
business records, ledgers and computer programs relating to other
Collateral Agent Senior Collateral and (iii) all other general
intangibles and incorporeal property relating to other Collateral
Agent Senior Collateral.
(17) "COLLATERAL AGENT SECURED PARTIES" shall have the meaning given to
it in Recital D.
(18) "COLLATERAL AGENT SENIOR COLLATERAL" shall mean the Collateral in
which Collateral Agent on behalf of the Collateral Agent Secured
Parties have a senior Lien, as described in and provided by
Section 2.1(1)(d).
(19) "DEBTORS" shall have the meaning given to it in Recital E.
(20) "ENFORCEMENT ACTIONS" shall mean, collectively or individually,
after an Event of Default has occurred that is continuing under
the US Credit Agreement, the Canadian Credit Agreement and/or the
Indenture, as applicable, for all or any of GECC, GE Capital
Canada and Collateral Agent (and/or any Receiver(s)) to take any
action to repossess or realize upon any material amount of
Collateral, to exercise rights of set-off or commence the judicial
or non-judicial enforcement of any of the rights and remedies
(including hypothecary remedies under the Civil Code of Quebec)
under any Security Document, or pursuant to the Liens, including
the withdrawal of an authorization to collect claims (as
contemplated by
5
Article 2745 of the CIVIL CODE OF QUEBEC). For greater certainty,
applications of amounts received by GECC or GE Capital Canada
under cash management arrangements implemented in connection with
the US Credit Agreement or the Canadian Credit Agreement shall not
constitute Enforcement Actions.
(21) "ENFORCEMENT NOTICE" shall mean a written notice delivered by any
of GECC, GE Capital Canada or Collateral Agent to each of the
others following acceleration of the GECC Claim, the GE Capital
Canada Claim or the Collateral Agent Claim, as applicable, stating
that immediately after the giving of such notice it will be taking
one or more Enforcement Actions and such notice shall specify the
relevant Event of Default and the current balance of the GECC
Claim, the GE Capital Canada Claim or the Collateral Agent Claim,
as applicable.
(22) "ENFORCEMENT PERIOD" shall mean the period of time following the
date of receipt by two of GECC, GE Capital Canada or Collateral
Agent of an Enforcement Notice from the other until either (i) the
final payment or satisfaction in full of two of the GECC Claim,
the GE Capital Canada Claim and the Collateral Agent Claim, or
(ii) GECC, GE Capital Canada and Collateral Agent, agree in
writing to terminate the Enforcement Period.
(23) "EQUIPMENT" shall mean all of the Debtors' machinery and equipment
(other than Inventory), including, without limitation, processing
equipment, conveyors, machine tools, data processing and computer
equipment with software and peripheral equipment and all
engineering, processing and manufacturing equipment, office
machinery, furniture, materials handling equipment, tools,
attachments, accessories, automotive equipment, trailers, trucks,
forklifts, molds, dies, stamps, motor vehicles, rolling stock and
other equipment of every kind and nature, and fixtures, all
whether now owned or hereafter acquired, and wherever situated,
together with all additions and accessions thereto, replacements
therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions,
warranties and rights with respect thereto.
(24) "EVENT OF DEFAULT" shall mean an "EVENT OF DEFAULT" as such term
is defined in the US Credit Agreement, the Canadian Credit
Agreement and/or the Indenture.
(25) "FINISHED GOODS LIQUIDATION PERIOD" shall have the meaning given
to it in Section 2.4(1).
(26) "GE CAPITAL CANADA" shall have the meaning given to it in the
first paragraph of this Agreement.
(27) "GE CAPITAL CANADA CLAIM" shall mean all "Obligations" of the
Debtors to the GE Capital Canada Secured Parties as defined in the
Canadian Credit Agreement, including, without limitation, all sums
loaned or advanced to or for the benefit of the Debtors and all
letter of credit obligations incurred for the account of the
Debtors at any time, all interest and fees with respect thereto,
all future advances and all costs of collection or enforcement,
including legal expenses and all amounts due under, and
obligations owing in respect of, guarantees given by the Debtors
to the GE Capital Canada Secured Parties.
6
(28) "GE CAPITAL CANADA COMMITMENT" shall mean the commitment of the GE
Capital Canada Secured Parties, or any of them, to make revolving
loans to the Canadian Borrower or to incur letter of credit
obligations for the accounts of the Canadian Borrower under the
Canadian Credit Agreement.
(29) "GE CAPITAL CANADA INTANGIBLES" shall mean:
(a) all of the Canadian Borrower and Trademark Canada's now
owned or hereafter acquired (i) contract rights (other than
contractual rights relating to Intellectual Property),
choses in action, causes of action, and rights to refunds
or indemnification relating to other GE Capital Canada
Senior Collateral, including, without limitation, claims
for tax or other refunds against any city, county, state,
province or federal government, or any agency or authority
or other subdivision thereof relating to other GE Capital
Canada Senior Collateral, (ii) corporate or other business
records, ledgers and computer programs relating to other GE
Capital Canada Senior Collateral and (iii) all other
general intangibles and incorporeal property (excluding
Intellectual Property) relating to other GE Capital Canada
Senior Collateral;
(b) all deeds, documents, writings, papers, books of account
and other books relating to or being records of any other
GE Capital Canada Intangibles referred to in this Section
1.1(29);
(c) all instruments, chattel paper, documents of title,
contractual rights and other intangibles or incorporeal
property evidencing, securing or otherwise relating to any
other GE Capital Canada Intangibles referred to in this
Section 1.1(29); and
(d) all books and records and software pertaining to any of the
foregoing.
(30) "GE CAPITAL CANADA SECURED PARTIES" shall have the meaning
assigned to in Recital B.
(31) "GE CAPITAL CANADA SENIOR COLLATERAL" shall mean Collateral in
which GE Capital Canada on behalf of the GE Capital Canada Secured
Parties, or the GE Capital Canada Secured Parties, as applicable,
have a senior Lien, as described in and provided by Section
2.1(1)(b).
(32) "GE CAPITAL CANADA SUBORDINATED COLLATERAL" shall have the meaning
given to it in Section 2.1(2)(b).
(33) "GECC" shall have the meaning given to it in the first paragraph
of this Agreement.
(34) "GECC CLAIM" shall mean all "Obligations" of the Debtors to the
GECC Secured Parties as defined in the US Credit Agreement,
including, without limitation, all sums loaned or advanced to or
for the benefit of the Debtors and all letter of credit
obligations incurred for the account of the Debtors at any time,
all interest and fees with respect thereto, all future advances
and all costs of
7
collection or enforcement, including legal expenses and all
amounts due under, and obligations owing in respect of, guarantees
given by the Debtors to the GECC Secured Parties.
(35) "GECC COMMITMENT" shall mean the commitment of the GECC Secured
Parties, or any or them, to make revolving loans to the US
Borrower or to incur letter of credit obligations for the accounts
of the US Borrower under the US Credit Agreement.
(36) "GECC INTANGIBLES" shall mean:
(a) all of the US Borrower's and Trademark US's now owned or
hereafter acquired (i) contract rights (other than
contractual rights relating to Intellectual Property),
choses in action, causes of action, and rights to refunds
or indemnification relating to other GECC Senior
Collateral, including, without limitation, claims for tax
or other refunds against any city, county, state, province
or federal government, or any agency or authority or other
subdivision thereof relating to other GECC Senior
Collateral, (ii) corporate or other business records,
ledger and computer programs relating to other GECC Senior
Collateral and (iii) all other general intangibles and
incorporeal property (other than Intellectual Property)
relating to other GECC Senior Collateral;
(b) all deeds, documents, writings, papers, books of account
and other books relating to or being records of any other
GECC Intangibles referred to in this Section 1.1(36);
(c) all instruments, chattel paper, documents of title,
contractual rights and other intangibles or incorporeal
property evidencing, securing or otherwise relating to any
other GECC Intangibles referred to in this Section 1.1(36);
and
(d) all books and records and software pertaining to any of the
foregoing.
(37) "GECC SECURED PARTIES" shall have the meaning assigned to in
Recital A.
(38) "GECC SENIOR COLLATERAL" shall mean Collateral in which GECC, on
behalf of the GECC Secured Parties, or the GECC Secured Parties,
as applicable, have a senior Lien, as described in and provided by
Section 2.l(1)(a).
(39) "GECC SUBORDINATED COLLATERAL" shall have the meaning given to it
in Section 2.1 (2)(a).
(40) "GE JOINT INTANGIBLES" shall mean:
(a) all of the SHC's, THC's and WAP's now owned or hereafter
acquired (i) contract rights (other than contractual tights
relating to Intellectual Property), choses in action,
causes of action, and rights to refunds or indemnification
relating to other GE Joint Senior Collateral, including,
without limitation, claims for tax or other refunds against
any city, county,
8
state, province or federal government, or any agency or
authority or other subdivision thereof relating to other GE
Joint Senior Collateral, (ii) corporate or other business
records, ledgers and computer programs relating to other GE
Joint Senior Collateral and (iii) all other general
intangibles and incorporeal property (excluding
Intellectual Property) relating to other GE Joint Senior
Collateral;
(b) all deeds, documents, writings, papers, books of account
and other books relating to or being records of any other
GE Joint Intangibles referred to in this Section 1.1(40);
(c) all instruments, chattel paper, documents of title,
contractual rights and other intangibles or incorporeal
property evidencing, securing or otherwise relating to any
other GE Joint Intangibles referred to in this Section
1.1(40); and
(d) all books and records and software pertaining to any of the
foregoing.
(41) "GE JOINT SENIOR COLLATERAL" shall have the meaning given to it in
Section 2.1(1) (c).
(42) "HOLDERS" shall have the meaning given to it in Recital D.
(43) "INDENTURE" shall have the meaning given to it in Recital C.
(44) "INSOLVENCY LAW" shall mean any of the BANKRUPTCY AND INSOLVENCY
ACT (Canada), the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada),
the WINDING-UP AND RESTRUCTURING ACT (Canada), and Title 11 of the
United States Code entitled "Bankruptcy", each as now and
hereafter in effect, any successors to such statutes and any other
applicable insolvency or other similar law of any jurisdiction
including, without limitation, any law of any jurisdiction
permitting a debtor to obtain a stay or a compromise of the claims
of its creditors against it.
(45) "INSOLVENCY PROCEEDINGS" shall mean any dissolution, bankruptcy,
receivership, winding-up, liquidation or other similar proceedings
in respect of the Debtors (whether voluntary or involuntary), any
proposal or other proceeding seeking a stay of proceedings,
reorganization or compromise of the claims of creditors made or
commenced by the Debtors or others under any Insolvency Law or any
distribution of assets of the Debtors among their creditors in any
manner whatever.
(46) "INTELLECTUAL PROPERTY" shall mean all intellectual and industrial
property, including, without limitation, all patents, industrial
designs, copyrights, trademarks, trade names, trade secrets, and
options and rights to use any of the foregoing and, when the
context permits, all registrations and applications that have been
made or shall be made or filed in any office in any jurisdiction
in respect of the foregoing, and all reissues, extensions and
renewals thereof.
(47) "INVENTORY" shall mean:
9
(a) all inventory of whatever kind and wherever situate,
whether now owned or hereafter acquired by the Debtors,
including, without limitation, all inventory, merchandise,
goods and other personal property which are held by or on
behalf of any Debtor for sale or lease or are furnished or
are to be furnished under a contract of service, or which
constitute raw materials, work in process or materials used
or consumed or to be used or consumed in such Debtor's
business or in the processing, production, packaging,
promotion, delivery or shipping of the same, including
other supplies;
(b) all deeds, documents, writings, papers, books of account
and other books relating to or being records of any other
Inventory referred to in this Section 1.1(47);
(c) all instruments, chattel paper, documents of title,
contractual rights and other intangibles or incorporeal
property evidencing, securing or otherwise relating to any
other Inventory referred to in this Section 1.1(47); and
(d) all books and records and software pertaining to any of the
foregoing.
(48) "LIENS" shall have the meaning given to it in Recital E.
(49) "LIQUIDATION PERIODS" shall have the meaning given to it in
Section 2.4(1).
(50) "OFFICES" shall mean the offices of the Debtors where the ledgers,
books, records, computers, books of account, computer programs,
disks, tape files, printout runs, and other computer-prepared
information with respect to Accounts and Inventory, including data
regarding accounts and claims and collections with respect thereto
and any other Proceeds thereof, are maintained and where mail
(including payments of any Accounts) is received.
(51) "PERSON" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association,
corporation, limited liability company, company, institution,
public benefit corporation, investment or other fund, government
(whether federal, provincial, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof) or other entity of
any nature.
(52) "PLEDGED SHARE DOCUMENTS" means all original share certificates,
proxies and powers of attorney relating to the Pledged Shares.
(53) "PLEDGED SHARES" means any and all shares, warrants, options,
general or limited partnership interests or other similar rights
(regardless how designated) issued by any Debtor to another Debtor
and pledged or hypothecated in favour of any of the GECC Secured
Parties, the GE Capital Canada Secured Parties or the Collateral
Agent Secured Parties, other than such property as constitutes
Proceeds of other Collateral.
(54) "PROCEEDS" means identifiable or traceable property in any form
derived directly or indirectly from any dealing with the
Collateral or the proceeds therefrom, including any payment or
right to a payment or insurance representing an
10
indemnity or compensation for loss of or damage to the Collateral
or any part thereof or Proceeds therefrom.
(55) "RAW/WIP LIQUIDATION PERIOD" shall have the meaning given to it in
Section 2.4(1).
(56) "REAL PROPERTY" shall mean all of the real and immoveable property
now owned or hereafter acquired by the Debtors, all leasehold
interests and rights under leases of the Debtors, and all
improvements and fixtures attached thereto and the Debtors' rights
to leases, rents and profits with respect thereto.
(57) "RECEIVER" shall mean any receiver, manager, receiver-manager,
receiver and manager or other person exercising similar powers
appointed by or at the request of GECC, GE Capital Canada or
Collateral Agent as the context requires.
(58) "SECURITY DOCUMENTS" shall have the meaning given to it in Recital
E.
(59) INTENTIONALLY LEFT BLANK.
(60) "SHC" shall have the meaning given to it in the first paragraph of
this Agreement.
(61) "SHC, THC AND WAP ACCOUNTS" shall mean all Accounts of SHC, THC
and WAP.
(62) "SHC, THC AND WAP INVENTORY" shall mean all Inventory of SHC, THC
and WAP.
(63) "THC" shall have the meaning given to it in the first paragraph of
this Agreement.
(64) "TRADEMARK CANADA" shall have the meaning given to it in the first
paragraph of this Agreement.
(65) "TRADEMARK US" shall have the meaning given to it in the first
paragraph of this Agreement.
(66) "US BORROWER" shall have the meaning given to it in the first
paragraph of this Agreement.
(67) "US BORROWER AND TRADEMARK US ACCOUNTS" shall mean all Accounts of
the US Borrower and Trademark US.
(68) "US BORROWER AND TRADEMARK US INVENTORY" shall mean all Inventory
of the US Borrower and Trademark US.
(69) "US COLLATERAL AGENT" shall have the meaning given to it in the
first paragraph of this Agreement.
(70) "US CREDIT AGREEMENT" shall have the meaning given to it in
Recital A.
11
(71) "US FACILITY CREDIT PARTIES" shall have the meaning given to it in
Recital A.
(72) "US LENDERS" shall have the meaning given to it in Recital A.
1.2 HEADINGS.
The insertion of headings and the provision of a table of contents are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
1.3 REFERENCES.
Unless otherwise specifically provided, all references to Sections and Recitals
are to Sections and Recitals of this Agreement. The words "hereto", "herein",
"hereof', "hereunder" and similar expressions refer to this Agreement.
1.4 NUMBER AND GENDER.
Unless otherwise specifically provided, words importing the singular include the
plural and vice versa and words importing gender include all genders.
1.5 TIME OF THE ESSENCE.
Time shall be of the essence of this Agreement.
SECTION 2
INTERCREDITOR AGREEMENT
2.1 LIEN PRIORITIES.
(1) As between the GECC Secured Parties, the GE Capital Canada Secured
Parties and the Collateral Agent Secured Parties, the Liens of the
GECC Secured Parties, the GE Capital Canada Secured Parties and
the Collateral Agent Secured Parties in the Collateral shall have
the following relative priorities:
(a) the GECC Secured Parties shall have a first ranking Lien in
or on all US Borrower and Trademark US Accounts, US
Borrower and Trademark US Inventory, GECC Intangibles and
all Proceeds of all of the foregoing in any form derived
directly or indirectly from any dealing with the foregoing
or the Proceeds therefrom, including, without limitation,
insurance Proceeds, other than, but subject to the proviso
in Section 2.13, Proceeds of the Collateral Agent Senior
Collateral,
(collectively, "GECC SENIOR COLLATERAL"), and the GE Capital
Canada Secured Parties shall have a second ranking Lien in the
GECC Senior Collateral and the Collateral Agent Secured Parties
shall have a third ranking Lien in the GECC Senior Collateral;
(b) the GE Capital Canada Secured Parties shall have a first
ranking Lien in or on all Canadian Borrower and Trademark
Canada Accounts, Canadian Borrower and Trademark Canada
Inventory, GE Capital Canada Intangibles and all Proceeds
of all of the foregoing in any form derived
12
directly or indirectly from any dealing with the foregoing
or the Proceeds therefrom, including, without limitation,
insurance Proceeds, other than, but subject to the proviso
in Section 2.13, Proceeds of the Collateral Agent Senior
Collateral,
(collectively, "GE CAPITAL CANADA SENIOR COLLATERAL"), and the
GECC Secured Parties shall have a second ranking Lien in the GE
Capital Canada Senior Collateral and the Collateral Agent Secured
Parties shall have a third ranking Lien in the GE Capital Canada
Senior Collateral;
(c) the GECC Secured Parties and the GE Capital Canada Secured
Parties shall have a first ranking PARI PASSU Lien in or on
all SHC, THC and WAP Accounts, SHC, THC and WAP Inventory,
GE Joint Intangibles and all Proceeds of all of the
foregoing in any form derived directly or indirectly from
any dealing with the foregoing or the Proceeds therefrom,
including, without limitation, insurance Proceeds other
than, but subject to the proviso in Section 2.13, Proceeds
of the Collateral Agent Senior Collateral;
(collectively, "GE JOINT SENIOR COLLATERAL") and the Collateral
Agent Secured Parties shall have a second ranking Lien in the GE
Joint Senior Collateral;
(d) the Collateral Agent Secured Parties shall have a first
ranking Lien in or on all Real Property, Equipment,
Intellectual Property and other assets of the Debtors other
than GECC Senior Collateral, GE Capital Canada Senior
Collateral and GE Joint Senior Collateral and all Proceeds
of all of such assets in any form derived directly or
indirectly from any dealing with such assets or the
Proceeds therefrom, including, without limitation,
insurance Proceeds, ("COLLATERAL AGENT SENIOR COLLATERAL"),
and the GECC Secured Parties and the GE Capital Canada
Secured Parties shall have a second or third ranking Lien
therein, as set out in subsection 2.1(2).
(2) As between the GECC Secured Parties and the GE Capital Canada
Secured Parties, the Liens of the GECC Secured Parties and the GE
Capital Canada Secured Parties in the Collateral Agent Senior
Collateral shall have the following relative priorities:
(a) the GECC Secured Parties shall have a second ranking Lien
in or on all Collateral Agent Senior Collateral, other than
Pledged Shares and Collateral Agent Senior Collateral
consisting of assets and property of Canadian Borrower,
Trademark Canada, THC, SHC and WAP (the "GECC SUBORDINATED
COLLATERAL"), and the GE Capital Canada Secured Parties
shall have a third ranking Lien therein; and
(b) the GE Capital Canada Secured Parties shall have a second
ranking Lien in or on all Collateral Agent Senior
Collateral, other than the GECC Subordinated Collateral,
Pledged Shares and Collateral Agent Senior Collateral
consisting of assets and property of THC, SHC and WAP (the
"GE CAPITAL CANADA SUBORDINATED COLLATERAL"), and the GECC
13
Secured Parties shall have a third ranking Lien in the GE
Capital Canada Subordinated Collateral;
(c) the GECC Secured Parties and the GE Capital Canada Secured
Parties shall have a second ranking PARI PASSU Lien on the
Pledged Shares and Collateral Agent Senior Collateral
consisting of assets and property of THC, SHC and WAP.
(3) The priorities provided for in this Agreement shall apply
notwithstanding:
(a) the priorities otherwise accorded to the Liens on the GECC
Senior Collateral, GE Capital Canada Senior Collateral, GE
Joint Senior Collateral and the Collateral Agent Senior
Collateral under applicable law;
(b) the time of creation, granting, execution, delivery,
attachment, registration, publication, perfection or
enforcement of the Liens on the GECC Senior Collateral, the
GE Capital Canada Senior Collateral, the GE Joint Senior
Collateral and the Collateral Agent Senior Collateral;
(c) that any of the Liens on the GECC Senior Collateral, the GE
Capital Canada Senior Collateral, the GE Joint Senior
Collateral and the Collateral Agent Senior Collateral shall
be defective, unperfected, unpublished, or unenforceable
for any reason whatsoever;
(d) the time of crystallization of any floating charge or
floating hypothec in or on the GECC Senior Collateral, the
GE Capital Canada Senior Collateral, the GE Joint Senior
Collateral and the Collateral Agent Senior Collateral;
(e) the provisions of the US Credit Agreement, the Canadian
Credit Agreement, the Collateral Agency Agreement, the
Indenture or the Security Documents;
(f) any forbearance whatsoever, whether as to time, performance
or otherwise or any release, discharge, loss or alteration
in or dealing with all or any part of the Liens on the GECC
Senior Collateral, the GE Capital Canada Senior Collateral,
the GE Joint Senior Collateral and the Collateral Agent
Senior Collateral or any part thereof;
(g) any failure or delay in giving any notice required under
this Agreement;
(h) any invalidity or unenforceability of, or any limitation
on, the liability of the Debtors;
(i) any defence, compensation, set-off or counterclaim which
the Debtors may have or assert;
(j) any Insolvency Proceedings;
(k) the date of incurrence of the GECC Claim, the GE Capital
Canada Claim or the Collateral Agent Claim or any portion
thereof;
14
(l) any priority granted by any principle of law or any
statute; or
(m) any other matter whatsoever.
2.2 DISTRIBUTION OF PROCEEDS OF COLLATERAL.
As between the GECC Secured Parties, the GE Capital Canada Secured Parties and
the Collateral Agent Secured Parties:
(1) All Proceeds of GECC Senior Collateral shall be paid first, to
GECC for application to the GECC Claim and, after the full and
irrevocable payment of the GECC Claim and termination of the GECC
Commitment, any residual of the GECC Senior Collateral shall be
paid second to GE Capital Canada for application to the GE Capital
Canada Claim and, after the full and irrevocable payment of the GE
Capital Canada Claim and termination of the GE Capital Canada
Commitment, any residual of the GECC Senior Collateral, if any,
shall be paid third, to Collateral Agent for application to the
Collateral Agent Claim in accordance with the Indenture and the
Collateral Agreements (as defined therein), unless an Event of
Default is not continuing under the Indenture, and then, in those
circumstances, to the appropriate Debtor.
(2) All Proceeds of GE Capital Canada Senior Collateral shall be paid
first, to GE Capital Canada for application to the GE Capital
Canada Claim and, after the full and irrevocable payment of the GE
Capital Canada Claim and termination of the GE Capital Canada
Commitment, any residual of the GE Capital Canada Senior
Collateral shall be paid second to GECC for application to the
GECC Claim and, after full and irrevocable payment of the GECC
Claim and termination of the GECC Commitment, any residual of the
GE Capital Canada Senior Collateral, if any, shall be paid third
to Collateral Agent for application to the Collateral Agent Claim
in accordance with the Indenture and the Collateral Agreements (as
defined therein), unless an Event of Default is not continuing
under the Indenture, and then, in those circumstances, to the
appropriate Debtor.
(3) All Proceeds of GE Joint Senior Collateral shall be paid first to
GECC and GE Capital Canada pro rata in accordance with the GECC
Claim and GE Capital Canada Claim for application to such claims,
and after the full and irrevocable payment of the GECC Claim and
the GE Capital Canada Claim and termination of the GECC Commitment
and the GE Capital Canada Commitment, any residual of the GE Joint
Senior Collateral, if any, shall be paid second to Collateral
Agent for application to the Collateral Agent Claim in accordance
with the Indenture and the Collateral Agreements (as defined
therein), unless an Event of Default is not continuing under the
Indenture, and then, in those circumstances, to the appropriate
Debtor.
(4) Provided an Event of Default has occurred and is continuing under
the Indenture , all Proceeds of Collateral Agent Senior Collateral
shall be paid to Collateral Agent for application to the
Collateral Agent Claim in accordance with the Indenture and the
Collateral Agreements (as defined therein) and, after the full
15
and irrevocable payment of the Collateral Agent Claim, any
residual of the Collateral Agent Senior Collateral shall:
(i) subject to paragraph (iii) below, with respect to
the GE Capital Canada Subordinated Collateral, be
paid to GE Capital Canada for application to the GE
Capital Canada Claim, if any, and, after the full
and irrevocable payment of the GE Capital Canada
Claim and termination of the GE Capital Canada
Commitment, any residual of the GE Capital Canada
Subordinated Collateral shall be paid to GECC for
application to the GECC Claim, if any,
(ii) subject to paragraph (iii) below, with respect to
the GECC Subordinated Collateral, be paid to GECC
for application to the GECC Claim and, after the
full and irrevocable payment of the GECC Claim and
termination of the GECC Commitment, any residual of
the GECC Subordinated Collateral shall be paid to GE
Capital Canada for application to the GE Capital
Canada Claim, if any, and
(iii) with respect to Pledged Shares and Collateral Agent
Senior Collateral consisting of assets and property
of THC, SHC and WAP, be paid to GECC and GE Capital
Canada pro rata in accordance with the GECC Claim
and GE Capital Canada Claim for application to the
GECC Claim and GE Capital Canada Claim if any.
(5) After the GECC Claim, the GE Capital Canada Claim and the
Collateral Agent Claim, if any, have been irrevocably paid and
satisfied in full and the GECC Commitment and the GE Capital
Canada Commitment are terminated, the balance of Proceeds of the
Collateral, if any, shall be paid as required by applicable law.
(6) If the GECC Secured Parties, the GE Capital Canada Secured Parties
or the Collateral Agent Secured Parties have any Lien on any of
the Debtors' Collateral as security for payment of any
indebtedness of the Debtors, or of any other party, other than
indebtedness incurred pursuant to or in connection with the US
Credit Agreement, the Canadian Credit Agreement or the Indenture
and the Senior Notes, then GECC, GE Capital Canada or Collateral
Agent, as the case may be, may not apply the Proceeds of any of
the Collateral to satisfy such other indebtedness until the GECC
Claim, the GE Capital Canada Claim and the Collateral Agent Claim,
if any, are irrevocably paid in full or otherwise satisfied.
2.3 ENFORCEMENT ACTIONS.
GECC, GE Capital Canada and Collateral Agent agree not to commence any
Enforcement Action until an Enforcement Notice has been given to the others.
During an Enforcement Period, GECC, GE Capital Canada and Collateral Agent agree
that:
(1) GECC and its Receiver may, at GECC's option, take any action to
foreclose or realize upon or enforce any of the GECC Secured
Parties' rights and remedies with respect to the GECC Senior
Collateral without the prior written consent of
16
GE Capital Canada or Collateral Agent. GECC and its Receiver shall
have the sole and exclusive right to take Enforcement Actions with
respect to the GECC Senior Collateral and, accordingly, GE Capital
Canada, Collateral Agent and their Receivers shall not take any
action to foreclose or realize upon or to otherwise enforce any of
the GE Capital Canada Secured Parties' or Collateral Agent Secured
Parties' rights and remedies with respect to any GECC Senior
Collateral without GECC's prior written consent; provided,
however, that the exclusive rights of GECC and its Receiver with
respect to GECC Senior Collateral shall not extend beyond the
periods provided in Section 2.4 (1) (ii) with respect to Inventory
and 2.4 (1) (iii) with respect to Accounts unless (and only for so
long as) GECC and its Receiver are diligently proceeding beyond
such periods with Enforcement Actions with respect to the
applicable Collateral.
(2) GE Capital Canada and its Receiver may, at GE Capital Canada's
option, take any action to foreclose or realize upon or enforce
any of the GE Capital Canada Secured Parties' rights and remedies
with respect to the GE Capital Canada Senior Collateral without
the prior written consent of GECC or Collateral Agent. GE Capital
Canada and its Receiver shall have the sole and exclusive right to
take Enforcement Actions with respect to the GE Capital Canada
Senior Collateral and, accordingly, GECC, Collateral Agent and
their Receivers shall not take any action to foreclose or realize
upon or to otherwise enforce any of the GECC Secured Parties' or
Collateral Agent Secured Parties' rights and remedies with respect
to any GE Capital Canada Senior Collateral without GE Capital
Canada's prior written consent, provided, however, that the
exclusive rights of GE Capital Canada and its Receiver with
respect to GE Capital Canada Senior Collateral shall not extend
beyond the periods provided in Section 2.4 (1) (ii) with respect
to Inventory and 2.4 (1) (iii) with respect to Accounts unless
(and only for so long as) GE Capital Canada and its Receiver are
diligently proceeding beyond such periods with Enforcement Actions
with respect to the applicable Collateral.
(3) GECC and GE Capital Canada and their Receivers may, at GECC's and
GE Capital Canada's option, take any action to foreclose or
realize upon or enforce any of the GECC Secured Parties' and GE
Capital Canada Secured Parties' rights and remedies with respect
to the GE Joint Senior Collateral without the prior written
consent of Collateral Agent. GECC and GE Capital Canada and their
Receivers shall have the sole and exclusive right to take
Enforcement Actions with respect to the GE Joint Senior Collateral
and, accordingly, Collateral Agent and its Receiver shall not take
any action to foreclose or realize upon or to otherwise enforce
any of the Collateral Agent Secured Parties' rights and remedies
with respect to any GE Joint Senior Collateral without GECC's and
GE Capital Canada's prior written consent; provided, however, that
the exclusive rights of GECC and GE Capital Canada and their
Receivers with respect to GE Joint Senior Collateral shall not
extend beyond the periods provided in Section 2.4 (1) (ii) with
respect to Inventory and 2.4 (1) (iii) with respect to Accounts
unless (and only for so long as) either GECC and its Receiver or
GE Capital Canada and its Receiver, as the case may be, are
diligently proceeding beyond such periods with Enforcement Actions
with respect to the applicable Collateral.
17
(4) Collateral Agent and its Receiver may, if an Event of Default has
occurred and is continuing under the Indenture, at Collateral
Agent's option, take any action to foreclose or realize upon or
otherwise enforce any of the Collateral Agent Secured Parties'
rights with respect to the Collateral Agent Senior Collateral
without the prior written consent of GECC or GE Capital Canada.
For so long as Collateral Agent and its Receiver are diligently
proceeding with an Enforcement Action, Collateral Agent and its
Receiver shall have the sole and exclusive right to take
Enforcement Actions with respect to Collateral Agent Senior
Collateral and, accordingly, GECC, GE Capital Canada and their
Respective Receivers shall not take any action to foreclose or
realize upon or to otherwise enforce any of the GECC Secured
Parties' or GE Capital Canada Secured Parties' rights and remedies
with respect to any Collateral Agent Senior Collateral without the
prior written consent of Collateral Agent; provided, that until
the expiration of the relevant Liquidation Period, if Collateral
Agent receives an Enforcement Notice from GECC or GE Capital
Canada or if, upon receipt of an Enforcement Notice from
Collateral Agent, either GECC or GE Capital Canada informs
Collateral Agent of its intention to also take Enforcement Action,
GECC, GE Capital Canada and their respective Receivers shall have
the rights afforded by Sections 2.4, 2.5 and 2.7 and Collateral
Agent's and its Receiver's rights and remedies in respect of the
Collateral Agent Senior Collateral shall be subject thereto and to
Collateral Agent's obligations under clause (ii) of Section 2.6
and under Section 2.7.
(5) If two or more of GECC, GE Capital Canada and Collateral Agent
elect to proceed with Enforcement Actions, then each of the
enforcing parties and its Receiver shall proceed in accordance
with the provisions of this Agreement with Enforcement Actions
with respect to the Collateral in which it has a first ranking
Lien under this Section 2.
(6) GECC and GE Capital Canada agree with each other that, unless they
agree otherwise after the date hereof, all decisions by GECC and
GE Capital Canada in respect of Collateral on which they have a
first or second ranking PARI PASSU Lien shall be taken jointly,
including any decision to take any action to foreclose, realize
upon or otherwise enforce rights with respect to such Collateral;
provided, that Collateral Agent and the Debtors agree that any
notice, consent or instruction given by either GECC or GE Capital
Canada to Collateral Agent or any Debtor in respect to such
Collateral shall be sufficient and binding upon GECC, GE Capital
Canada, Collateral Agent and such Debtor.
2.4 LIQUIDATION PERIODS.
(1) Each of GECC and GE Capital Canada, as applicable, and its
respective Receiver may occupy and use the Collateral Agent Senior
Collateral, for the purposes set out in Section 2.5, including
Collateral Agent Senior Collateral consisting of or located within
(i) manufacturing facilities leased by each Debtor for up to
ninety (90) days, manufacturing facilities owned by Sport
Maska Inc. in Xxxxx Xxxxxx, Xxxxxxx for up to ninety (90)
days and all other
18
manufacturing facilities for up to sixty (60) days (the
"RAW/WIP LIQUIDATION PERIOD"),
(ii) each Debtor's warehouse and distribution facilities which
are owned by the Debtor for up to sixty (60) days, unless
such Debtor's warehouse and distribution facilities are
located at premises referred to in Section 2.4 (1) (i) or
are owned by Maska US in Bradford, Vermont, and then for up
to ninety (90) days in each case, or in all other cases for
up to one hundred and fifty (150) days, if the relevant
Enforcement Notice is delivered on or after January 1 and
on or before June 30 in any year, and one hundred and
twenty (120) days, if the relevant Enforcement Notice is
delivered on or after July 1 and on or before December 31
in any year (the "FINISHED GOODS LIQUIDATION PERIOD"), and
(iii) each Debtor's Offices for up to ninety (90) days in respect
of Offices located at facilities referred to in Section 2.4
(1) (i), for up to sixty (60) days in respect of other
Offices located at facilities owned by Debtors, or in all
other cases for one hundred and eighty (180) days, which
latter period may be extended by ninety (90) days if GECC
or GE Capital Canada, as applicable, is unable to sell,
liquidate or otherwise dispose of Accounts of the Debtors
during such 180-day period (the "ACCOUNTS LIQUIDATION
PERIOD") (the Raw/WIP Liquidation Period, the Finished
Goods Liquidation Period and the Accounts Liquidation
Period, collectively, the "LIQUIDATION PERIODS"),
following the earlier to occur of the commencement of an
Enforcement Action by GECC in respect of the GECC Senior
Collateral, by GE Capital Canada in respect of the GE Capital
Canada Senior Collateral or by GECC and GE Capital Canada in
respect of the GE Joint Senior Collateral, as applicable, or
receipt by GECC and GE Capital Canada of an Enforcement Notice
from Collateral Agent and, in each and every case, following the
expiration of any period during which either of GECC or GE Capital
Canada or its respective Receiver is stayed or enjoined or
precluded by statute or otherwise (through no fault of GECC or GE
Capital Canada. as applicable, or its Receiver) from taking one or
more Enforcement Actions in respect of the GECC Senior Collateral,
the GE Capital Canada Senior Collateral or the GE Joint Senior
Collateral, as applicable. During the applicable Liquidation
Periods provided above, GECC and its Receiver and GE Capital
Canada and its Receiver may use and occupy the Collateral Agent
Senior Collateral, in each case, without force or process of law
and without any obligation to pay rents, royalties, fees or other
amounts to Collateral Agent, except for payment or reimbursement
of direct expenses as set forth in Section 2.8.
(2) The license or lease to use and occupy the Collateral Agent Senior
Collateral during the applicable Liquidation Periods shall apply
to and for the benefit of GECC, GE Capital Canada and their
Receivers and any agents, brokers,
19
appraisers, auctioneers or liquidators retained by GECC, GE
Capital Canada or their Receivers.
(3) Within a reasonable time after the expiration of the Liquidation
Periods, each of GECC or GE Capital Canada or their respective
Receivers may make copies of all books, records, books of account,
computer disks, printouts and tapes and other computer-generated
information under the control of Collateral Agent and its Receiver
and relating to GECC Senior Collateral, the GE Capital Canada
Senior Collateral or the GE Joint Senior Collateral, as
applicable, provided that the provisions of this paragraph shall
not be construed as obliging Collateral Agent or its Receiver to
keep control of any of the foregoing.
2.5 USE OF COLLATERAL AGENT SENIOR COLLATERAL.
The Liquidation Periods, as they relate to GECC or GE Capital Canada, as the
case may be, shall commence on the same date and run concurrently. During a
Raw/WIP Liquidation Period, GECC or GE Capital Canada, as applicable and its
Receiver shall have access to and use and occupancy of each Debtors'
manufacturing facilities and other Collateral Agent Senior Collateral located
therein to convert raw materials and complete the manufacturing of work in
process. At the conclusion of such Raw/WIP Liquidation Period, Collateral Agent
shall have exclusive use and occupancy of each Debtor's manufacturing
facilities.
During a Finished Goods Liquidation Period, GECC or GE Capital Canada, as
applicable and its Receiver may use each Debtors' warehouse and distribution
facilities and other Collateral Agent Senior Collateral located therein and in
the Offices to package, ship, sell, liquidate or otherwise dispose of Inventory.
At the conclusion of such Finished Goods Liquidation Period, Collateral Agent
shall have exclusive use and occupancy of each Debtor's warehouse and
distribution facilities.
During an Accounts Liquidation Period, GECC or GE Capital Canada, as applicable
and its Receiver shall have access to and use and occupancy of the Offices of
each Debtor as provided in Section 2.4(1)(iii) and the Collateral Agent Senior
Collateral located therein, including. without limitation, computers and
computer programs and all other office equipment and supplies, to collect, sell
or otherwise dispose of Accounts. At the conclusion of such Accounts Liquidation
Period, Collateral Agent shall have exclusive use and occupancy of each Debtor's
Office.
If GECC or GE Capital Canada or its respective Receiver is unable (i) during any
Raw/WIP Liquidation Period, to substantially complete the conversion of raw
materials and the manufacturing of work in process, or (ii) during any
applicable Finished Goods Liquidation Period, to substantially complete the
packaging, shipping, sale, liquidation or disposition of Inventory, it may
continue to use and occupy the applicable Collateral Agent Senior Collateral for
an additional period of 60 days from the end of the applicable Liquidation
Period, provided a 10-day prior notice to that effect is given to Collateral
Agent prior to the expiry of such Liquidation Period, except with respect to any
Collateral Agent Senior Collateral which Collateral Agent would have undertaken
to deliver or grant access to a third party in the course of any Enforcement
Action and GECC's, GE Capital Canada's and its respective Receiver's use and
occupation of the applicable Collateral Agent Senior Collateral would interfere
in any respect material to Collateral Agent, acting reasonably, with Collateral
Agent's ability to fulfill
20
such undertaking or with such third party's access. Except for any such
Collateral Agent Senior Collateral, each of GECC and GE Capital Canada and their
respective Receivers shall benefit from the same rights and be subject to the
same obligations during any such additional 60-day period as if such additional
period were a Liquidation Period.
2.6 COLLATERAL AGENT'S RIGHTS DURING LIQUIDATION PERIODS.
During the Liquidation Periods commenced by it, GECC's or GE Capital Canada's
(as applicable) use and occupancy of the Collateral Agent Senior Collateral
shall not be exclusive and, provided that none of the following interfere in any
respect material to GECC or GE Capital Canada, as applicable, acting reasonably,
in connection with the exercise by it or its Receiver of the rights afforded by
Sections 2.4 and 2.5, including the liquidation, sale or other disposition by it
of the GECC Senior Collateral, the GE Capital Canada Senior Collateral or GE
Joint Senior Collateral, as applicable: (i) Collateral Agent shall have access
to the Collateral Agent Senior Collateral to preserve, protect, appraise and
evaluate the Collateral Agent Senior Collateral, to show it to potential
purchasers and to offer it for sale, and (ii) Collateral Agent may sell some or
all of the Collateral Agent Senior Collateral, provided that each purchaser of
such Collateral shall have expressly agreed in writing to be bound by the
Collateral Agent's obligations under this Agreement with respect to the
purchased Collateral until the expiration of the Liquidation Periods and that
the items purchased shall remain in place and shall remain subject to the rights
of use and occupancy of GECC, GE Capital Canada and their Receivers, in
accordance with this Agreement.
2.7 AVAILABILITY AND DELIVERY OF BOOKS, RECORDS ETC.
For the purposes of the sale or other disposal of the GECC Senior Collateral,
the GE Capital Canada Senior Collateral, GE Joint Senior Collateral and the
Collateral Agent Senior Collateral, GECC, GE Capital Canada and Collateral Agent
shall co-operate during the Liquidation Periods in assembling the Debtors'
assets. During the Liquidation Periods, Collateral Agent and the Debtors shall
make available to GECC and GE Capital Canada and their Receivers copies of all
books, records, books of account, computer disks, printouts, tapes and other
computer prepared information and other information with respect to GECC Senior
Collateral, GE Capital Canada Senior Collateral, GE Joint Senior Collateral and
the Collateral Agent Senior Collateral and Collateral Agent shall deliver to
GECC and GE Capital Canada copies of all ledgers and documents, if any held by
it and related to GECC Senior Collateral, GE Capital Canada Senior Collateral
and GE Joint Senior Collateral. After the Raw/WIP Liquidation Period and
Finished Goods Liquidation Period, GE Capital Canada and GECC may remove from
Debtors' facilities and Offices hardware and software containing records and
other information related to Accounts to premises selected by them and use them
during the Accounts Liquidation Period for the purposes of collecting Accounts.
2.8 EXPENSES DURING LIQUIDATION PERIODS.
In the event that either GECC or GE Capital Canada or its Receiver elects to use
some or all of the Debtors' premises as set forth in this Section 2, to the
extent and for so long as GECC or GE Capital Canada, as applicable, or its
Receiver occupies a manufacturing, warehouse or distribution facility or Office
owned by the Debtors, GECC or GE Capital Canada, as applicable, agrees with
Collateral Agent that it shall be responsible for all direct expenses related to
its use and occupation including, without limitation, costs with respect to
heat, light, electricity, water
21
and real property taxes with respect to that portion of any building so used or
occupied. Each of GECC and GE Capital Canada agrees to hold Collateral Agent
harmless concerning any third party liability resulting from its, or its
Receiver's gross negligence or wilful misconduct in its operation of such
facilities. In the case of facilities leased to the Debtors and used or occupied
by GECC or GE Capital Canada, as applicable, or its Receiver, GECC or GE Capital
Canada, as applicable, agrees with Collateral Agent that it shall pay the rental
and other payments required to be paid to the lessor in accordance with the
terms of such lease for the period of such use and occupancy of the subject
facility, unless the applicable lessor, bankruptcy trustee or other
representative of the applicable Debtor shall have otherwise agreed, or such
amounts are otherwise paid. GECC or GE Capital Canada, as applicable, agrees
with Collateral Agent to promptly repair, at its own expense, any physical
damage to the Collateral Agent Senior Collateral actually caused by it or its
Receiver or any other person acting under its direction during the use or
occupancy of the premises or the Equipment by it or on its behalf or any sale,
removal or other disposition of its Collateral (ordinary wear and tear
excluded). The Collateral Agent Senior Collateral so used or occupied shall be
left in the same state of repair (ordinary wear and tear excluded) by GECC or GE
Capital Canada, as applicable and its Receiver, at the expiration of the
applicable term of the Liquidation Periods commenced by it as existed upon the
commencement of the Liquidation Periods. GECC and GE Capital Canada shall not be
liable for any diminution in value of the Collateral Agent Senior Collateral
caused by the absence of GECC Senior Collateral, GE Capital Canada Senior
Collateral or GE Joint Senior Collateral, as the case may be, actually removed
or by any necessity of replacing the GECC Senior Collateral, GE Capital Canada
Senior Collateral or GE Joint Senior Collateral, as applicable, or, subject to
the immediately preceding sentence, for any other reason. To the extent that the
Debtors have not maintained liability insurance naming GECC, GE Capital Canada
and Collateral Agent as additional insureds, so long as and to the extent that
either GECC or GE Capital Canada uses and occupies a Debtor's manufacturing,
warehouse and distribution facilities, GECC or GE Capital Canada, as applicable,
agrees with Collateral Agent that it shall use its best efforts to maintain
liability insurance with respect thereto naming GECC or GE Capital Canada, as
applicable, and Collateral Agent (to the extent that Collateral Agent has an
insurable interest) as additional insureds in such amounts and with such
coverages as were previously maintained by the Debtors.
2.9 RELEASE OF LIENS.
Each of Collateral Agent and GE Capital Canada shall release and discharge, as
applicable, all or a portion (as requested by GECC) of its Liens on the GECC
Senior Collateral following receipt of a request by GECC or its Receiver, upon
the sale or other disposition of such Collateral by GECC or its Receiver. Each
of Collateral Agent and GECC shall release and discharge, as applicable, all or
a portion (as requested by GE Capital Canada) of its Liens on the GE Capital
Canada Senior Collateral following receipt of a request by GE Capital Canada or
its Receiver, upon the sale or other disposition of such Collateral by GE
Capital Canada or its Receiver. Collateral Agent shall release and discharge all
or a portion (as requested by GECC and/or GE Capital Canada) of its Liens on the
GE Joint Senior Collateral following a request by GECC and/or GE Capital Canada
or a Receiver for either, upon the sale or other disposition of such Collateral
by GECC, GE Capital Canada and/or its respective Receiver. Each of GECC and GE
Capital Canada shall release and discharge, as applicable, all or a portion (as
requested by Collateral Agent) of its Liens or their Liens, as applicable, on
the Collateral Agent Senior Collateral following receipt of a request by
Collateral Agent or its Receiver, upon the sale or other disposition of such
Collateral by Collateral Agent or its Receiver.
22
Upon and after the full and irrevocable payment of the GECC Claim and the
termination of the GECC Commitment, the GECC Secured Parties shall release and
discharge all of their Liens on Collateral following receipt of a request by GE
Capital Canada or Collateral Agent or its Receiver and upon the sale or other
disposition of such Collateral by GE Capital Canada or Collateral Agent, as
applicable, or its Receiver. Upon and after the full and irrevocable payment of
the GE Capital Canada Claim and the termination of the GE Capital Canada
Commitment, the GE Capital Canada Secured Parties shall release and discharge
all of their Liens on Collateral following receipt of a request by GECC or
Collateral Agent or its Receiver and upon the sale or other disposition of the
such Collateral by GECC or Collateral Agent, as applicable, or its Receiver.
Upon and after the full and irrevocable payment of the Collateral Agent Claim,
the Collateral Agent Secured Parties shall release and discharge all of their
Liens on Collateral following receipt of a request by GECC or GE Capital Canada
or its Receiver and upon the sale or other disposition of such Collateral by
GECC or GE Capital Canada, as applicable, or its Receiver.
2.10 RELEASE OF PLEDGED SHARE DOCUMENTS.
Collateral Agent shall deliver to GECC or GE Capital Canada or if they otherwise
jointly direct, then in the manner so directed, all Pledged Share Documents held
by Collateral Agent upon payment in full of the Collateral Agent Claim.
Collateral Agent agrees to act as GECC's and GE Capital Canada's mandatary or
agent for the purpose of perfecting and publishing GECC's and GE Capital
Canada's Liens in the Pledged Shares. Collateral Agent agrees that it will not
discharge its Lien in the Pledged Shares without providing prior written notice
to each of GECC and GE Capital Canada.
2.11 INTELLECTUAL PROPERTY LICENCE.
The Debtors hereby grant to GECC, GE Capital Canada, Collateral Agent and any of
their Receivers an irrevocable licence and right to use, without charge, the
Debtors' Intellectual Property and advertising material, or any property of a
similar nature, as it pertains to the Collateral, in converting any raw
materials, completing work in process, shipping Collateral, packaging
Collateral, advertising for sale and selling any Collateral or collecting
Accounts in connection with an enforcement of the Liens thereon and the rights
of the Debtors under all licences shall enure to the benefit of GECC, GE Capital
Canada, Collateral Agent and their Receivers.
2.12 USE OF INTELLECTUAL PROPERTY.
In addition to the rights given to GECC and GE Capital Canada under the other
provisions of Section 2, Collateral Agent agrees that each of GECC, GE Capital
Canada and their Receivers shall have the full use of the Collateral Agent
Senior Collateral comprising Intellectual Property, without any cost to GECC or
GE Capital Canada, as applicable, for the purposes (but only for such purposes)
of converting any raw materials, completing work in process, shipping
Collateral, packaging Collateral, advertising for sale and selling any
Collateral or collecting Accounts in connection with an enforcement of the Liens
thereon for the duration of the Liquidation Periods. Collateral Agent may sell
some or all of such Intellectual Property, provided that each purchaser of such
Collateral shall have expressly agreed in writing to be bound by the Collateral
Agent's obligations under this Agreement for the duration of the Liquidation
Periods. For greater certainty, GECC's, GE Capital Canada's and their respective
Receivers' rights to use Collateral
23
Agent Senior Collateral comprising Intellectual Property shall extend for the
full 120-day or 150-day (as applicable) duration of the Finished Goods
Liquidation Period provided in Section 2.4(1)(ii) notwithstanding that Section
2.4(1)(ii) provides for the use and occupation of certain facilities for shorter
periods of time.
2.13 AMOUNTS TO BE RECEIVED IN TRUST.
If GECC, GE Capital Canada or Collateral Agent accepts or receives Proceeds of
Collateral contrary to the provisions of this Agreement, it shall receive the
same in trust and shall not commingle such Proceeds with any of its own funds
and shall hold such Proceeds in a separate account as mandatary or agent on
behalf of GECC, GE Capital Canada or Collateral Agent, as applicable, to be
applied and to be promptly paid over to the party entitled to receive same in
accordance with this Agreement; provided, that the foregoing and the provisions
of the first sentence of Section 2.17(4) shall not apply to Proceeds that are
received by, or are payable to, GECC and GE Capital Canada as a result of cash
management arrangements between the US Facility Credit Parties, their
relationship banks or similar entities and GECC or Canadian Facility Credit
Parties, their relationship banks and GE Capital Canada, unless, prior to
receipt by GECC or GE Capital Canada, as applicable, GECC or GE Capital Canada,
as applicable, has received written notice from Collateral Agent that the money
to be received by GECC or GE Capital Canada is Proceeds of Collateral Agent
Senior Collateral and an Event of Default has occurred and is continuing under
the Indenture.
2.14 ADDITIONAL CREDIT EXTENSIONS; AMENDMENTS.
Each of (i) GECC and the US Lenders and (ii) GE Capital Canada and the Canadian
Lenders and (iii) Collateral Agent, Indenture Trustee and the Holders, shall
have the right, without the other parties' consent, to make amendments and
modifications to, and to extend credit to the Debtors in excess of the maximum
amounts set forth in, the US Credit Agreement, the Canadian Credit Agreement and
the Indenture, respectively, as of the date of this Agreement, secured by the
GECC Senior Collateral, the GE Capital Canada Senior Collateral, the GE Joint
Senior Collateral and the Collateral Agent Senior Collateral. Any such
extensions of credit shall become part of the GECC Claim, the GE Capital Canada
Claim or the Collateral Agent Claim, as applicable, up to an amount in each case
not to exceed 10% of (a) US$35,000,000 in the case of the US Credit Agreement,
(b) US$35,000,000 or the equivalent amount thereof in Canadian dollars in the
case of the Canadian Credit Agreement and (c) US $125,000,000 in the case of the
Indenture and the Senior Notes and, to such extent, shall be accorded their
respective priorities under this Agreement.
Each of GECC, GE Capital Canada and Indenture Trustee or Collateral Agent, as
applicable shall use reasonable efforts to give to the others notice of the
intent to extend additional credit or amend or modify the US Credit Agreement,
the Canadian Credit Agreement, the Indenture or the Collateral Agency Agreement,
as applicable, including, without limitation, the amendment or modification of
the applicable financial covenants contained therein, but the failure to do so
shall not affect the validity of the extension of credit, amendment or
modification, create any claim or right on behalf of any third party, or subject
to the preceding sentence, create a cause of action against the party failing to
give such notice. GECC, GE Capital Canada, Indenture Trustee and Collateral
Agent shall, upon request of each other, provide copies of all such
modifications or amendments and copies of all other documentation relevant to
the Collateral.
24
2.15 ACCOUNTING.
After the commencement of an Enforcement Action and on a continuing basis, as
determined by GECC, GE Capital Canada or Collateral Agent, acting reasonably,
each of GECC, GE Capital Canada and Collateral Agent agrees to account fully to
the others as to the nature and amount of the GECC Claim, the GE Capital Canada
Claim or the Collateral Agent Claim, as applicable, the Proceeds of any
Collateral sold or otherwise disposed of and the manner and effect of the
application of any Proceeds against the GECC Claim, the GE Capital Canada Claim
or the Collateral Agent Claim, as applicable.
2.16 NOTICE OF DEFAULTS.
GECC, GE Capital Canada and Indenture Trustee or Collateral Agent, as the case
may be, agree to use their best efforts to give to the other copies of any
notice of the occurrence or existence of an Event of Default sent to the Debtors
simultaneously with the sending of such notice to the Debtors, provided that
failure to do so shall not affect the validity of such notice or create a cause
of action against the party failing to give such notice or create any claim or
right on behalf of any third party. None of GECC, GE Capital Canada, Indenture
Trustee or Collateral Agent shall incur any liability nor shall it have any
obligation to cure any Event of Default as a result of receipt of any notice
required under this Section 2.16.
2.17 INSURANCE.
GECC, GE Capital Canada and Collateral Agent each agree as follows:
(1) GECC shall have the sole and exclusive right to adjust settlement
of the relevant insurance policy in the event of any loss with
respect to GECC Senior Collateral and the Proceeds of each
insurance policy covering GECC Senior Collateral shall be paid to
GECC. With respect to any Proceeds of insurance relating to GECC
Senior Collateral after full and irrevocable payment of the GECC
Claim, including, without limitation, all collection, enforcement
and legal expenses, and termination of the GECC Commitment, any
remaining Proceeds shall be promptly paid in accordance with
Section 2.2.
(2) GE Capital Canada shall have the sole and exclusive right to
adjust settlement of the relevant insurance policy in the event of
any loss with respect to GE Capital Canada Senior Collateral and
that the Proceeds of each insurance policy covering GE Capital
Canada Senior Collateral shall be paid to GE Capital Canada. With
respect to any Proceeds of insurance relating to GE Capital Canada
Senior Collateral after full and irrevocable payment of the GE
Capital Canada Claim, including, without limitation, all
collection, enforcement and legal expenses, and termination of the
GE Capital Canada Commitment, any remaining Proceeds shall be
promptly paid in accordance with Section 2.2.
(3) GECC and GE Capital Canada jointly shall have the sole and
exclusive right to adjust settlement of the relevant insurance
policy in the event of any loss with respect to GE Joint Senior
Collateral and the Proceeds of each insurance policy covering GE
Joint Senior Collateral shall be paid to GECC and GE Capital
Canada jointly. With respect to any Proceeds of insurance relating
to GE Joint Senior Collateral after full and irrevocable payment
of the GECC Claim and the
25
GE Canada Claim, including, without limitation, all collection,
enforcement and legal expenses, and termination of the GECC
Commitment and the GE Canada Commitment, any remaining Proceeds
shall be promptly paid in accordance with Section 2.2.
(4) The Debtors, or if an Event of Default has occurred and is
continuing under the Indenture, Collateral Agent, shall have the
sole and exclusive right to adjust settlement of the relevant
insurance policy in the event of any loss with respect to
Collateral Agent Senior Collateral and the Proceeds of each
insurance policy covering Collateral Agent Senior Collateral shall
be paid to Collateral Agent for application to the Collateral
Agent Claim, in accordance with the Indenture and the Collateral
Agreements (as defined therein), unless an Event of Default is not
continuing under the Indenture, and then, in those circumstances,
to the appropriate Debtor. With respect to any Proceeds of
insurance relating to Collateral Agent Senior Collateral after
full and irrevocable payment of the Collateral Agent Claim,
including, without limitation, all collection, enforcement and
legal expenses, any remaining Proceeds shall be promptly paid in
accordance with Section 2.2.
(5) From the occurrence of an Event of Default and provided that such
Event of Default is continuing, any payment received in respect of
proceeds of the Debtors' business interruption insurance shall be
applied pro rata to the GECC Claim, the GE Capital Canada Claim
and, unless an Event of Default is not continuing under the
Indenture, the Collateral Agent Claim in accordance with the
Indenture and the Collateral Agreements (as defined therein), as
of the date of receipt of the payment (but without taking into
account the amount of same). Any payment in respect of proceeds of
the Debtors' business interruption insurance received at a time
where no Event of Default has occurred and is continuing shall be
applied as agreed on between the Debtors and GECC and the Debtors
and GE Capital Canada.
2.18 NOTICES OF SALE.
In the event that the GECC Secured Parties, the GE Capital Canada Secured
Parties, the Collateral Agent Secured Parties or any of their Receivers shall be
required by the UNIFORM COMMERCIAL CODE, Insolvency Law or by any other
applicable law to give notice to the other of an intended disposition of
Collateral, such notice shall be given in accordance with Section 3.1 and,
subject to applicable law, fifteen (15) days or more prior notice shall be
deemed to be commercially reasonable.
2.19 AGENTS FOR EACH OF THE SECURED PARTIES.
For purposes of this Agreement, GECC and GE Capital Canada shall be entitled to
rely upon any consent or agreement of Collateral Agent, as agent acting on
behalf of the Collateral Agent Secured Parties, and such approval and agreement
shall be binding upon each Collateral Agent Secured Party. In the event that the
Collateral Agent is not acting as "fonde de pouvoir" or collateral agent of the
Indenture Trustee and/or Holders for the purpose of the Liens on the Collateral
located in Quebec or elsewhere, the Collateral Agent and/or the Indenture
Trustee shall cause such "fonde de pouvoir" or collateral agent, as applicable,
to agree in writing to be
26
bound by the provisions hereof in the same manner as the Collateral Agent prior
to or contemporaneous with such Person acting as such "fonde de pouvoir" or
collateral agent. Each of the Debtors shall not issue any debentures to any
Person other than Collateral Agent unless that Person has delivered to GECC and
GE Capital Canada an agreement to be bound by this Agreement in the same manner
as the Collateral Agent Secured Parties. Collateral Agent shall be entitled to
rely upon any consent or agreement of GECC, as agent acting on behalf of the
GECC Secured Parties, and such approval and agreement shall be binding upon each
of the GECC Secured Parties. Collateral Agent shall be entitled to rely upon any
consent or agreement of GE Capital Canada, as agent acting on behalf of the GE
Capital Canada Secured Parties and such approval and agreement shall be binding
upon each of the GE Capital Canada Secured Parties. Each of the Collateral
Agent, GECC and GE Capital Canada agree and acknowledge that, to the extent a
security interest or Lien in any of the Collateral has been perfected or
published by possession or control of such Collateral by or on behalf of such
Person, such Person so possessing or controlling shall hold such Collateral as
agent and mandatary for each of the Collateral Agent Secured Parties, the GECC
Secured Parties and the GE Capital Canada Secured Parties, as the case may be,
in accordance with the priorities set forth in this Agreement. Furthermore, each
of Collateral Agent, GECC and GE Capital Canada agree and acknowledge that, to
the extent that any agreement to which they are a party with any Debtor requires
that such Debtor deliver to or provide control of any Collateral to such Person,
the requirement of delivering to or the providing of control of such Collateral
to such Person shall be deemed to be met if the Debtor has delivered or provided
control of such Collateral to any of Collateral Agent, GECC and GE Capital
Canada.
2.20 COLLATERAL AGENT OBLIGATIONS
Solely with reference to Sections 2.4, 2.5, 2.7 and 2.12, Collateral Agent shall
not be obligated to take any action in respect of any Collateral Agent Secured
Collateral, in order to facilitate the GECC Secured Parties' or GE Capital
Canada Secured Parties' exercise of their rights under such sections in respect
of such Collateral, of which Collateral Agent does not have possession or
control, provided however that Collateral Agent shall not take any action which
would interfere in any respect with the rights of GECC Secured Parties or GE
Capital Canada Secured Parties.
SECTION 3 - MISCELLANEOUS
3.1 NOTICES.
Except as otherwise expressly provided herein, any notice required or desired to
be served, given or delivered hereunder shall be in writing, and shall be deemed
to have been validly served, given or delivered three (3) days after deposit in
the mails, with proper postage prepaid. or upon delivery by courier or upon
transmission by telecopy to the addresses set out in Schedule 3.1.
3.2 CONTESTING LIENS OR SECURITY INTERESTS.
Each of GECC, GE Capital Canada and Collateral Agent agrees that it shall not
contest the validity, perfection, publication, priority or enforceability of any
Lien in the Collateral granted to the GECC Secured Parties, the GE Capital
Canada Secured Parties and the Collateral Agent Secured Parties.
27
3.3 THE DEBTORS ACKNOWLEDGEMENT ON INSOLVENCY PROCEEDINGS.
The Debtors each acknowledge that the interests of the GECC Secured Parties, the
GE Capital Canada Secured Parties and the Collateral Agent Secured Parties are
distinct, having regard to the nature of the obligations owed by the Debtors,
the nature and priority of their respective security and the remedies available
to them. In the event of the commencement of any Insolvency Proceedings, the
Debtors each acknowledge and agree that the GECC Secured Parties, the GE Capital
Canada Secured Parties and the Collateral Agent Secured Parties, shall be
treated as unaffected creditors or, alternatively, shall be placed in separate
classes for all purposes related to such proceedings including, without
limitation, for the purposes of voting on or approving any plan of arrangement,
proposal, compromise, reorganization plan or other agreement or document with
similar effect.
3.4 NO ADDITIONAL RIGHTS FOR THE DEBTORS HEREUNDER.
If the GECC Secured Parties, the GE Capital Canada Secured Parties or the
Collateral Agent Secured Parties enforce their rights or remedies in violation
of the terms of this Agreement, the Debtors shall not be entitled to use such
violation as a defense to any Enforcement Action under the US Credit Agreement,
the Canadian Credit Agreement, the Indenture, the Collateral Agency Agreement or
under any Security Document, nor shall the Debtors assert such violation as a
counterclaim or basis for set-off or recoupment against the GECC Secured
Parties, the GE Capital Canada Secured Parties or the Collateral Agent Secured
Parties. The Debtors each agree that nothing in this Agreement shall relieve any
Debtor of any of its obligations under any of the US Credit Agreement, the
Canadian Credit Agreement, the Indenture, the Collateral Agency Agreement, the
Security Documents or any other document, agreement or instrument that any
Debtor may be a party to with any of the GECC Secured Parties, the GE Capital
Canada Secured Parties or the Collateral Agent Secured Parties.
3.5 INDEPENDENT CREDIT INVESTIGATIONS.
Neither GECC, GE Capital Canada nor Collateral Agent nor any of their respective
directors, officers, agents or employees shall be responsible to each other or
to any other person, firm or corporation, for the Debtors' solvency, financial
condition or ability to repay the GECC Claim, the GE Capital Canada Claim or the
Collateral Agent Claim or for statements of the Debtors, oral or written, or for
the validity, sufficiency or enforceability of the GECC Claim, the GE Capital
Canada Claim or the Collateral Agency Agreement Claim, the US Credit Agreement,
the Canadian Credit Agreement, the Indenture or any Liens granted by the Debtors
to the GECC Secured Parties, the GE Capital Canada Secured Parties or the
Collateral Agent Secured Parties in connection therewith. Each of GECC, GE
Capital Canada and Collateral Agent makes no warranty or representation to the
other nor does it rely upon any representation of the other with respect to
matters identified or referred to in this Section 3.5.
3.6 LIMITATION ON LIABILITY OF AGENTS TO EACH OTHER.
Except as provided in this Agreement, GECC, GE Capital Canada and Collateral
Agent shall have no liability to each other, except for wilful misconduct or
breach of this Agreement.
28
3.7 AMENDMENTS TO THIS AGREEMENT.
All modifications or amendments of this Agreement must be in writing and duly
executed by an authorized officer of each of GECC, GE Capital Canada, Collateral
Agent, Indenture Trustee and, to the extent that such modification or amendment
would increase the obligations of a Debtor under this Agreement, by an
authorized officer of such Debtor, to be binding and enforceable.
3.8 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter and supersedes all prior negotiations, undertakings,
representations and understandings with respect to the subject matter.
3.9 FURTHER ASSURANCES.
Each party hereto shall do, perform, execute and deliver all acts, deeds and
documents as may be necessary from time to time to give full effect to the terms
and intent of this Agreement including, without limitation, such further
instruments as may be necessary or advisable under any statute to perfect,
publish, record or otherwise give effect to the rights of priority, the
postponements and subordinations and rights of use and occupancy and cessions of
ranks provided for in this Agreement.
3.10 NO WAIVER.
No waiver by a party or failure or delay in exercising any right, power or
remedy (whether in whole or in part) under this Agreement shall take effect or
be binding upon the party unless in writing and signed by such party or shall
limit or affect the rights of such party with respect to any other right, power
or remedy.
3.11 SEVERABILITY.
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, the illegality, invalidity or
unenforceability of that provision will not affect:
(1) the legality, validity or enforceability of the remaining
provisions of this Agreement; or
(2) the legality, validity or enforceability of that provision in any
other jurisdiction.
3.12 SUCCESSORS AND ASSIGNS; COUNTERPARTS.
This Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of each of the parties hereto, but does not otherwise
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement. This Agreement may be executed in any
number of separate counterparts, each of which shall, collectively and
separately, constitute one Agreement. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as a manually
signed counterpart of this Agreement.
29
3.13 GOVERNING LAW.
This Agreement shall be governed as to validity, interpretations, enforcement
and effect by the internal laws (as opposed to conflicts of law provisions) of
the Province of Ontario; provided that to the extent that the laws of any
jurisdiction in which Collateral is located govern the priority, attachment,
perfection, and enforcement of Liens in or upon such Collateral, the local laws
of such jurisdiction shall continue to govern.
3.14 ATTORNMENT.
Each of the parties irrevocably attorns to the non-exclusive jurisdiction of the
courts of the Provinces of Quebec and Ontario.
3.15 INFORMATION.
Upon the request of any of GECC, GE Capital Canada or Collateral Agent and/or
Indenture Trustee, GECC, GE Capital Canada and Collateral Agent and/or Indenture
Trustee agree to use their best efforts to provide to each other all information
relating to the transactions contemplated by the US Credit Agreement, the
Canadian Credit Agreement, the Indenture and the Collateral Agency Agreement and
with any credit or other information with respect to any of the Collateral or
the Debtors.
3.16 TERMINATION.
This Agreement shall terminate and be of no further force and effect as to all
the parties hereto at such time as the GECC Claim, the GE Capital Canada Claim
and the Collateral Agency Agreement Claim have been irrevocably paid in full and
the GECC Commitment and the GE Capital Canada Commitment have been terminated.
3.17 AGREEMENT DOES NOT APPLY TO CERTAIN PROPERTY.
Notwithstanding any other provision of this Agreement, none of the provisions of
this Agreement shall apply to or affect in any manner whatsoever under any
circumstances (1) any interest and rights of GECC or GE Capital Canada or any of
their respective affiliates in respect of any equipment or other personal or
movable property (whether or not such property becomes attached to any real or
immoveable property) or any real or immoveable property that GECC or GE Capital
Canada, as applicable, or any of their respective affiliates may lease or sell
from time to time to the Debtors, and such property shall in all cases be
subject to the terms of the lease(s) or sale agreement(s) relating thereto or
(2) the indebtedness and other obligations of the Debtors to GECC or GE Capital
Canada or any of its affiliates under each such lease or sale agreement, as
applicable.
[INTENTIONALLY LEFT BLANK]
30
The parties have executed this Agreement.
GENERAL ELECTRIC CAPITAL CORPORATION, as
agent for the US Lenders
By: /s/ Xxxxxxxxxxx Xxx
----------------------------------------
Name: Xxxxxxxxxxx Xxx
Title: Duly authorized Signatory
GENERAL ELECTRIC CAPITAL CANADA INC., as
agent for the Canadian Lenders
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly authorized Signatory
THE BANK OF NEW YORK, solely in its capacity
as US Collateral Agent for the Holders and
the Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
BNY TRUST COMPANY OF CANADA, solely in its
capacity as Canadian Collateral Agent for
the Holders and the Indenture Trustee
By: /s/ Xxxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
31
THE BANK OF NEW YORK, solely in its capacity
as Indenture Trustee for the Holders
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
SPORT MASKA INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
MASKA U.S. INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
THE HOCKEY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
and Vice President,
Finance and Administration
32
SPORTS HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
----------------------------------------
Name:
Title:
SLM TRADEMARK ACQUISITION CANADA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
----------------------------------------
Name:
Title:
SLM TRADEMARK ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
----------------------------------------
Name:
Title:
WAP HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
and Administration
----------------------------------------
Name:
Title:
33
SCHEDULE 3.1
NOTICE ADDRESSES
(1) If to GECC, at
General Electric Capital Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx
00000
Attention: Portfolio - The Hockey Company
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx
00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier No. (000) 000-0000
Telephone No.: (000) 000-0000
Weil, Gotshal & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx,
00000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(2) if to GE Capital Canada, at
General Electric Capital Canada Inc.
c/o GE Capital Commercial Finance, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx
00000
Attention: Portfolio - The Hockey Company
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
1
with copies to:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx
00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and:
Osler, Xxxxxx & Xxxxxxxx XXX
Xxx 00, 0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxx/Xxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(3) if to US Collateral Agent, at:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration--Global Finance Unit
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(4) if to Canadian Collateral Agent, at:
BNY Trust Company of Canada
0 Xxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X0X0
Attention: Senior Trust Officer
Telecopier No.: (000) 000-0000/1727
Telephone No.: (000) 000-0000
(5) if to Indenture Trustee, at:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration--Global Finance Unit
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
2
(6) if to The Hockey Company, at
0000 Xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx
X0X0X0
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(7) if to any Debtor other than The Hockey Company, at
c/o The Hockey Company
0000 Xx Xxxxxxxxxxx Xxxx. Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxx
X0X0X0
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as each party designates to the other in the manner
herein prescribed.
3
