SECURITY AGREEMENT
(INTELLECTUAL PROPERTY)
THE UNDERSIGNED, SPORT MASKA INC. (the "Corporation"), a corporation
continued and subsisting under the laws of the Province of New Brunswick, hereby
enters into this Security Agreement, made effective as of April 1st , 1997 in
favour of The Bank of New York (the "Trustee") as trustee for the benefit of the
Holders of Securities issued pursuant to a Senior Secured Note Indenture dated
as of April 1, 1997 among SLM International, Inc. (the "Borrower"), Maska U.S.,
Inc., #1 Apparel, Inc., #1 Apparel Canada Inc., Sport Maska Inc., SLM Trademark
Acquisition Canada Corporation, SLM Trademark Acquisition Corp. and the Trustee
(that agreement, as amended, restated or supplemented from time to time being
referred to below as the "Indenture");
WHEREAS it is a condition precedent to the Indenture that this
Agreement be entered into;
AND WHEREAS pursuant to Article 10 of the Indenture, the Corporation
has guaranteed in favour of the Trustee the repayment of all indebtedness and
liability of the Borrower under the Indenture, the Securities (as defined in the
Indenture) and the Collateral Documents (as defined in the Indenture) (that
guarantee, as it may be amended, restated, or supplemented from time to time
being referred to below as the "Guarantee") and has agreed to enter into this
Agreement to secure repayment of its indebtedness and liability under the
Guarantee, now or hereafter existing, absolute or contingent, joint or several
together with all reasonable expenses (including legal fees and disbursements on
a solicitor and his or her own client basis) incurred by the Trustee or any of
the Holders (as defined in the Indenture) and/or any agent or receiver or
receiver/manager acting on behalf of the Trustee or any of the Holders in
connection with the preparation, registration, enforcement of rights under or
analysis of rights under the Guarantee and this Agreement from time to time (all
of which present and future indebtedness, liabilities, obligations and expenses,
together with all extensions and renewals thereof, are hereinafter collectively
referred to as the "Indebtedness");
NOW THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the receipt, sufficiency and adequacy
of which are hereby acknowledged, the Corporation agrees as follows:
1. Creation of Security Interest. As security for the complete and
timely payment and satisfaction of all of the Indebtedness, the Corporation
hereby grants to the Trustee a security interest and hypothecates in favour of
the Trustee (collectively, the "Security Interest"), with unfettered rights to
power of sale, to the extent permitted by law or by the specific license
agreements, if relevant, in and to all of the right, title
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and interest of the Corporation in and to all of its now existing and hereafter
created or acquired:
(a) computer programs, application software, hardware and/or software
maintenance support agreements and all documentation relating
thereto, licences of software, copyrights, patents and
inventions, industrial designs, trade secrets, inventor
certificates, statutory invention registrations and all know-how
obtained, developed or used by the Corporation in connection with
its business, including, without limitation the patents,
industrial designs and software listed in Exhibit "A" attached
hereto and hereby made a part hereof and (i) renewals or
extensions thereof; (ii) all income, damages and payments now or
hereafter due or payable with respect thereto, including, without
limitation, damages and payments for past or future infringements
thereof; (iii) the right to xxx for past, present and future
infringements thereof; and (iv) all rights corresponding thereto
throughout the world (all of the foregoing computer programs,
application software, hardware and/or software maintenance
support agreements, licenses of software, copyrights, patents and
inventions, industrial designs, trade secrets and know-how, and
applications and registrations thereof, together with the items
described in clauses (i) - (iv) of this subsection 1(a) are
sometimes hereinafter collectively referred to as the
"Patents/Designs/Copyrights");
(b) trademarks, trademark registrations, trademark applications,
trade names, business names, trade styles, logos, service marks,
and all other forms of business identifiers, including, without
limitation, the trademarks, trademark registrations, trademark
applications, trade names, business names, trade styles, logos
and all other forms of business identifiers listed on Exhibit "B"
attached hereto and hereby made a part hereof, and (i) renewals
or extensions thereof, (ii) all income, damages and payments now
or hereafter due or payable with respect thereto, including,
without limitation, damages and payments for past or future
infringements thereof, (iii) the right to xxx for past, present
and future infringements thereof, and (iv) all rights
corresponding thereto throughout the world (all of the foregoing
trademarks, trade names and trade styles, and applications and
registrations thereof, together with the items described in
clauses (i)-(iv) of this subsection 1(b), are sometimes
hereinafter referred to individually as a "Trademark", and,
collectively, as the "Trademarks");
(c) all license agreements with respect to any of the Trademarks or
any Trademark or any application or registration therefor or any
other trade name or trade style, between the Corporation and any
other party, whether the Corporation is a licensor or licensee
under any such license
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agreement, including, without limitation, the licenses listed on
Exhibit "C" attached hereto and hereby made a part hereof, and (i)
renewals or extensions thereof, (ii) all income, damages and
payments now or hereafter due or payable with respect thereto,
including, without limitation, damages and payments for past or
future breaches thereof, (iii) the right to xxx for past, present
and future breaches thereof, and (iv) all rights corresponding
thereto throughout the world (all of the foregoing license
agreements and the rights of the Corporation thereunder, together
with the items described in clauses (i)-(iv) of this subsection
1(c), are sometimes hereinafter referred to individually as a
"License", and, collectively, as the "Licenses"); and
(d) the goodwill of the business of the Corporation connected with
and symbolized by any one or more of the
Patents/Designs/Copyrights, Trademarks and Licences, and (i) all
damages and payments now or hereafter due or payable with respect
thereto, including, without limitation, damages and payments for
past or future depreciation thereof or injury thereto, (ii) the
right to xxx for past, present and future depreciation thereof or
injury thereto, and (iii) all rights corresponding thereto
throughout the world (the foregoing goodwill, together with the
items described in clauses (i)-(iii) of this subsection 1(d), are
referred to as the "Goodwill").
(The Patents/Designs/Copyrights, Trademark or Trademarks, License or Licenses
and Goodwill referred to in subparagraphs 1(a), (b), (c) and (d) above are
sometimes collectively referred to below as the "Collateral").
The Corporation and the Trustee agree that they have not agreed to
postpone the time for attachment of the Security Interests granted hereby with
respect to the Corporation's presently existing Collateral and that such
Security Interests shall attach to the Collateral acquired after the date hereof
as soon as the Corporation has rights in such Collateral. From time to time, at
the request of the Trustee, the Corporation shall make and do all acts and
things and execute and deliver all documents, agreements and instruments as the
Trustee reasonably may request by notice in writing to the Corporation in order
to create, preserve, perfect, validate or otherwise protect the Security
Interests to enable the Trustee to exercise and enforce its rights and remedies
hereunder (except that nothing hereunder shall constitute a waiver of any rights
available to the Corporation at law to the extent that such rights cannot be
lawfully waived) and generally to carry out the provisions and purposes of this
Agreement. The Trustee agrees that it shall have no right to be assigned the
title to any of the Collateral unless and until the Security Interest hereby
constituted shall become enforceable as hereinafter provided.
4.
The amount of the hypothec referred to in this Section 1 is
seventy-five million dollars ($75,000,000.00) with interest thereon from the
date of this Agreement at the rate of twenty-five percent (25%) per annum.
2. (a) Warranties and Representations. Subject to paragraph 2(b) below,
the Corporation warrants and represents to the Trustee that:
(i) all registrations, applications for registration, filings and
notices thereof in respect of the Collateral, including all
relevant renewals, have been duly and properly made, are in full
force and effect and are not subject to dispute by any
governmental authority or agency and all leases, licences and
other agreements affecting any right, title or interest of the
Corporation in any of the Collateral (collectively, the "Third
Party Agreements") are in good standing;
(ii) none of the Collateral has been adjudged invalid or unenforceable or
has been cancelled, in whole or in part, and all such Collateral is
presently subsisting, valid, in good standing and enforceable, with
the exception of those set out in the Exhibits hereto and identified
as "pending applications", "cancelled/expunged registrations",
"abandoned applications" or "registrations no longer in name of the
Corporation";
(iii) the Corporation is the exclusive owner or in the case of licensed
Collateral, the sole and exclusive licensee, of the entire and
unencumbered right, title and interest in and to each of the
Collateral (except as otherwise expressly described in the Exhibits
hereto) free and clear of any liens, charges and encumbrances except
for liens, charges and encumbrances permitted under the Indenture or
otherwise consented to by the Trustee in writing (the "Permitted
Encumbrances");
(iv) the Collateral listed on Exhibits "A", "B" and "C", respectively,
constitute all of the Patents/Designs/Copyrights, Trademarks and
Licenses now owned by the Corporation;
(v) the Corporation has adopted, used continuously and currently is
using all of the Patents/Designs/Copyrights, Trademarks and
Licences; all licensees of the Collateral (or all relevant
portions thereof) from the Corporation as licensor have been
licensed properly to use such Collateral and the Corporation has
retained under license the direct or indirect control of the
character or quality of the goods or services in connection with
which use of such Collateral has been licensed by it; all use of
such Collateral has been proper both in form and in relation to
the goods or services in connection with which the Collateral is
used by the
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Corporation or its licensees; and proper ownership notices have been
used by the Corporation or its licensees;
(vi) the Corporation has no notice of any suits or actions commenced
or threatened in respect of any of the Collateral, including,
without limitation, any suits or actions which contain
allegations respecting the validity, enforceability, infringement
or ownership of any of the Collateral, including, without
limitation, any of the Corporation's right, title and interest in
the Collateral and no notice, or knowledge, of any person
infringing any of the Collateral;
(vii) the Corporation has the right to execute and deliver this
Agreement and to perform its covenants and obligations hereunder;
(viii) this Agreement is a valid, legal and binding obligation of the
Corporation subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting
creditors' rights and the discretion exercisable by Courts of
competent jurisdiction in respect of the availability of equitable
remedies; and
(ix) nothing contained in this Agreement or the Indenture, including,
without limitation, the granting of the Security Interest by the
Corporation in favour of the Trustee, constitutes a breach under any
Third Party Agreement.
(b) The foregoing representations and warranties shall be continuing
representations and warranties which, for greater certainty, shall apply at the
date hereof to all Collateral owned or licensed by the Corporation on the date
hereof including, without limitation, the Collateral described in Exhibits "A",
"B" and "C" hereto and shall be deemed to be given by the Corporation and to
apply to all after acquired Collateral immediately upon the Corporation
acquiring the same.
3. Covenants of the Corporation. The Corporation covenants and
agrees that until the Indebtedness shall have been satisfied in full, the
Corporation shall:
(a) use the Trademarks only on goods of at least as high quality as the
goods on which the Corporation or its predecessor used the goods as
of the date hereof and maintain the quality of any and all products
in connection with which the Trademarks and other Collateral is
used, consistent with the quality of said products as of the date
hereof;
(b) take or cause to be undertaken all steps necessary to protect the
Corporation's interest in and to maintain the
Patents/Designs/Copyrights, Trademarks and Licenses and other
Collateral in good standing, including without limitation, to
pursue
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diligently all applications through to registration and to renew all
registrations and pay all maintenance fees as applicable, as well as
attending to the filing of all required documentation;
(c) vigorously protect, preserve and maintain all of the
Corporation's right, title and interest in the Collateral,
including, without limitation, the prosecution and/or defence
against any and all suits concerning validity, infringement,
enforceability, ownership or other aspects affecting any of the
Collateral (any expenses incurred in protecting, preserving and
maintaining any of the Collateral shall be borne by the
Corporation);
(d) upon written request by the Trustee, execute and deliver any and all
agreements, instruments, documents and papers as the Trustee may
reasonably request to evidence the Trustee's Security Interest in
the Collateral;
(e) perform all covenants required under any Third Party Agreement
including, inter alia, promptly paying all required fees, royalties
and taxes to maintain each and every item of the Collateral in full
force and effect;
(f) if at any time or from time to time, before the Indebtedness
shall have been satisfied in full, the Corporation (i) becomes
aware of any existing Patents/Designs/Copyrights, Trademarks or
Licenses of which the Corporation has not previously informed the
Trustee, (ii) obtains rights to any new
Patents/Designs/Copyrights, Trademarks or Licenses, or (iii)
becomes entitled to the benefit of any
Patents/Designs/Copyrights, Trademarks, or Licenses not
identified on any of Xxxxxxxx "X", "X" or "C", then the
Corporation shall promptly notify the Trustee and regardless of
when the Corporation so notifies the Trustee, Exhibits "A", "B"
and "C" hereto, as applicable, automatically shall be modified
and amended to include any such Patents/Designs/Copyrights,
Trademarks and Licenses and the provisions of this Agreement
automatically shall apply thereto;
(g) maintain up to date records regarding the Collateral;
(h) provide the Trustee with a written report on each anniversary of
this Agreement regarding the status of all
Patents/Designs/Copyrights, Trademarks and Licenses;
(i) provide the Trustee, upon request by the Trustee from time to time,
with a certificate of an officer of the Corporation certifying the
compliance of the Corporation with this Agreement;
7.
(j) not sell, transfer, assign or dispose of its interest in, or grant
any license or sublicense under any of the
Patents/Designs/Copyrights or Trademarks or the Licenses or the
Goodwill, or enter into any other agreement with respect to any of
the Collateral, without the prior written consent of the Trustee,
which consent shall not be unreasonably withheld;
(k) not abandon any right to file a trademark application or patent
application, or abandon any pending trademark or patent application,
or abandon any of the Patents/Designs/Copyrights, Trademarks,
Licenses or Goodwill or any suits involving any of the Collateral,
without the prior written consent of the Trustee, which consent of
the Trustee shall not be unreasonably withheld;
(l) not take any action, or permit any action to be taken by any person
or persons subject to its control, including licensees, or fail to
take any action, which would adversely affect the validity,
enforceability or transferability (to the Trustee or otherwise) of
all or any of the Collateral; and
(m) not create or permit to exist any mortgage, hypothec, pledge,
charge, lien or other encumbrance upon the Collateral, other than
the existing Permitted Encumbrances, except as expressly consented
to in writing by the Trustee.
4. Right of the Trustee to Inspect. The Trustee shall have the right,
at any time and from time to time upon reasonable notice and upon such terms as
are agreed to in advance by the Corporation and prior to payment in full of the
Indebtedness and release and discharge by the Trustee of the Guarantee and this
Agreement (collectively, the "Termination"), to inspect the premises of the
Corporation and to examine the books, records and operations of the Corporation,
including, without limitation, the quality control processes of the Corporation.
5. Term of Security Interest; Royalties. The term of the Security
Interest granted herein shall continue until the Termination. The Corporation
agrees that the assignment or transfer to and use by the Trustee of all
Collateral shall be worldwide and without any liability on the part of the
Trustee or any of the Holders for royalties or other related charges from the
Trustee or any of the Holders to the Corporation.
6. Expenses. All expenses incurred by or on behalf of the Trustee
or any of the Holders in connection with the performance of any of the
covenants and agreements set forth herein shall be borne by the Corporation
in accordance with the Indenture.
7. Duties of the Corporation. Until the Termination, the Corporation
shall, at its own expense:
8.
(a) diligently prosecute any and all Patent/Designs/Copyrights and
Trademark applications pending as of the date hereof or
thereafter;
(b) make application to register all Patent/Designs/Copyrights and
Trademarks, as appropriate and to the extent commercially
reasonable;
(c) protect, preserve and maintain vigorously all of the right, title
and interest of the Corporation in and to the Collateral, including,
without limitation, the prosecution or defence of all suits
concerning the validity, infringement, breach, enforceability,
ownership or other aspects affecting any of the Collateral; and
(d) ensure generally that the Collateral is and remains valid, in
good standing and enforceable.
8. Default. Without prejudice to the right of the Trustee to demand
payment of all or any part of the Indebtedness hereby secured at any time or
times, pursuant to the Guarantee, the Indebtedness shall, at the option of the
Trustee, become payable and the security hereby constituted shall become
enforceable in each and every of the events following (each a "Default"):
(a) if the Corporation makes default in the observance or performance of
any written agreement or undertaking heretofore or hereafter given
by the Corporation to the Trustee or the Holders pursuant to or in
connection with the Indenture, whether contained herein or not;
(b) if the Corporation makes default in payment of all or any portion
of the Indebtedness when due whether the same is secured hereby
or not;
(c) if an order is made or a resolution passed for the winding-up of the
Corporation, or if a petition is filed for the winding-up of the
Corporation, provided, however, the Corporation may at any time be
wound up into the Borrower or any Subsidiary (as defined in the
Indenture) of the Borrower;
(d) if the Corporation ceases or threatens to cease to carry on business
(except as is permitted pursuant to section 8(c) hereof) or if the
Corporation commits or threatens to commit any act of bankruptcy or
if the Corporation becomes insolvent or makes an assignment or
proposal in bankruptcy or gives notice of its intention to do so or
makes a bulk sale of its assets or if a bankruptcy petition is filed
or presented against the Corporation;
(e) if any proceedings with respect to the Corporation are commenced
under the Companies' Creditors Arrangement Act (Canada) or the
Bankruptcy and
9.
Insolvency Act (Canada) or if the Corporation shall seek relief or
consent to the filing of a petition against it under any law which
involves any arrangement with or any compromise of any rights of any
one or more creditors of the Corporation;
(f) if an execution or any other process of any court becomes
enforceable against the Corporation or if a distress or analogous
process is levied upon the property of the Corporation or any part
thereof;
(g) if any sum which has been admitted as due by the Corporation or is
not disputed to be due by it and which forms or is capable of being
made a charge upon any of the Collateral in priority to the Security
Interest created by this Agreement is unpaid;
(h) if the Corporation shall default in the observance or performance of
any material provision relating to any material indebtedness or
liability of the Corporation to any creditor other than the Trustee
or the Holders;
(i) if any material licences, permits or approvals required by any law,
regulation or governmental policy or any governmental agency or
commission for the operation by the Corporation of its business
shall be withdrawn or cancelled; or
(j) if any representation or warranty made by the Company or any of its
officers, employees or agents to the Trustee shall be false or
inaccurate in any material respect.
9. Waivers. No course of dealing between the Corporation and the
Trustee, nor any failure to exercise, nor any delay in exercising, on the part
of the Trustee, any right, power or privilege hereunder or under the Guarantee
or the Indenture shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The Trustee may waive, in whole or in part, any
breach of any provisions of this Agreement by the Corporation, any breach of any
provisions of the Guarantee or the Indenture or any of the rights and remedies
of the Trustee whether provided hereunder or otherwise, provided that no such
waiver shall be considered to have been given unless given expressly in writing
by the Trustee to the Corporation. No waiver given by the Trustee in accordance
with this Section 9 shall be construed as a waiver of any other or subsequent
breach or default by the Corporation.
10. Severability. The provisions of this Agreement are severable, and if
any clause or provision shall be held invalid and unenforceable in whole or in
part in any jurisdiction by a Court of competent jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or
part thereof, in such
10.
jurisdiction, and shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
11. Modification. This Agreement cannot be altered, amended or
modified in any way, or by any other document or instrument signed by each of
the Corporation and the Trustee.
12. Cumulative Remedies. All of the rights and remedies of the
Trustee with respect to the Collateral, whether established hereby or by the
Guarantee or the Indenture, or by any other agreements or by law shall be
cumulative and may be exercised singularly or concurrently.
13. Irrevocable Power of Attorney. The Corporation irrevocably
constitutes and appoints the Trustee and each of its authorized employees from
time to time as the true and lawful attorney of the Corporation with full power
of substitution in the name of the Corporation, with power after the security
constituted hereby shall have become enforceable to:
(a) endorse or sign the name of the Corporation on and execute and
deliver all applications, registrations, recordings, reissues,
continuations, continuations in part, term restorations and
extensions thereof, documents, papers, agreements, assignments
and instruments necessary or desirable for the purpose of
recording, registering and filing of, or accomplishing any other
formality with respect to the Collateral or any part thereof or
otherwise regarding the Collateral, or any part thereof;
(b) take any other actions with respect to the Collateral, or any part
thereof, as the Trustee deems to be in the best interest of the
Trustee or the Lenders, including without limitation, the
realization or collection of all or any income, damages or payments
related thereto;
(c) grant or issue any exclusive or non-exclusive license or
sublicense under or in respect of the Collateral, or any part
thereof to anyone; or
(d) assign, pledge, convey, sell, license, or otherwise transfer title
in or dispose of the Collateral or any part thereof (or the right,
title and interest of the Corporation therein) to anyone by private
or public sale, lease or otherwise upon such terms and conditions as
the Trustee may determine as permitted by law and whether or not the
Trustee has taken possession of any of the Collateral.
The Corporation and the Trustee acknowledge and agree that any disposition
referred to in clause (d) in this Section 13 may be either a disposition of all
or any of the Collateral and may be by way of public auction, public tender,
private contract or otherwise as permitted by law. The Trustee may sell or
dispose of the Collateral for
11.
consideration payable by instalments either with or without taking security for
the payment of such instalments and may make and deliver to any purchaser
thereof good and sufficient assignment, documents or instruments and give
receipts for the purchase money, and any such sale or disposition shall be a
perpetual bar, both at law and in equity, against the Corporation and all those
claiming an interest in and to the Collateral by, from, through or under the
Corporation. The Corporation hereby ratifies all acts of any such attorney
taken, done or caused to be taken or done in accordance with this Section 13.
This power of attorney shall be irrevocable unless and until the Indebtedness
shall have been paid in full and the Termination has occurred. Upon execution of
this Agreement, the Corporation shall execute the power of attorney in the same
or substantially the same form as set forth in Exhibit "D" to this Agreement.
14. Remedies. Whenever the Security Interest granted pursuant to this
Agreement shall have become enforceable, and so long as it shall remain
enforceable, the Trustee may, in addition to all other rights and remedies
available to it at law or in equity, proceed to realize upon such security and
to enforce its rights by:
(a) the appointment by instrument in writing of a receiver or receivers
of the Collateral or any part thereof (which receiver or receivers
may be any person or persons, whether an officer or officers or
employee or employees of the Trustee or not and the Trustee may
remove any receiver or receivers so appointed and appoint another or
others in his, her or their stead);
(b) proceedings in any court of competent jurisdiction for the
appointment of a receiver or receivers or for sale of the
Collateral or any part thereof;
(c) any other action, suit, remedy or proceeding authorized or
permitted hereby or by law or by equity;
(d) exercising all of the rights of the Corporation under all contracts,
agreements or other instruments in writing relating to the
Collateral as fully and effectually as if the Trustee were the
absolute owner thereof;
(e) commencing legal proceedings for and on behalf of and in the name of
the Trustee and at the expense of the Corporation in order to
enforce the rights of the Corporation under any contracts,
agreements, or other instruments in writing which may relate to the
Collateral; or
(f) exercising any of the rights and/or remedies referred to in
Section 13 hereof.
Any receiver or receivers appointed pursuant to this Section 14 shall have power
to: (i) take possession of and to use the Collateral or any part thereof; (ii)
borrow money required for the maintenance, preservation or protection of the
Collateral or any part
12.
thereof or the carrying on of the business of the Corporation; (iii) further
charge the Collateral in priority to the security interests of this Agreement as
security for money so borrowed; and (iv) sell, lease or otherwise dispose of the
whole or any part of the Collateral on such terms and conditions and in such
manner as the receiver shall determine as permitted by law. The term "receiver"
as used in this Agreement includes a receiver and manager. The Trustee may file
such proofs of claim and other documents as may be necessary or advisable in
order to have its claim lodged in any bankruptcy, winding-up or other judicial
proceedings relating to the Corporation. In addition, the Trustee may use and
possess the Collateral or any part thereof, free from all encumbrances, liens
and charges (unless otherwise expressly provided for herein) without hindrance,
interruption or denial of the same by the Corporation or by any other person or
persons and may lease or sell the whole or any part or parts of the Collateral .
Any sale hereunder may be made by public auction, by public tender or by private
contract or as otherwise permitted by applicable law. Such sale shall be on such
terms and conditions as to credit or otherwise and as to upset or reserve bid or
price as to the Trustee acting in a commercially reasonable manner may seem
advantageous. Such sale may take place whether or not the Trustee has taken
possession of the Collateral. No remedy for the realization of the Security
Interest granted herein or for the enforcement of the rights of the Trustee
shall be exclusive of or dependent on any other such remedy, but any one or more
of such remedies may from time to time be exercised independently or in
combination.
15. Effect on Other Agreements. The Corporation acknowledges and agrees
that this Agreement is not intended to limit or restrict in any way the rights
and remedies of the Trustee under the Guarantee, the Collateral Documents (as
defined in the Indenture) or the Indenture, or any other security granted by the
Corporation to the Trustee pursuant thereto, but rather is intended to
facilitate the exercise of such rights and remedies. The Trustee shall have, in
addition to all other rights and remedies given to it by the terms of this
Agreement, the Guarantee, the Collateral Documents and the Indenture, all rights
and remedies allowed by law and the rights and remedies of a secured party under
the Personal Property Security Act as enacted in any jurisdiction in which the
Collateral may be located (including, without limitation, any of the hypothecary
rights provided for under articles 2748 to 2794 of the Civil Code of Quebec).
16. Binding Effect; Benefits. This Agreement, receipt of a true copy of
which is hereby acknowledged by the Corporation, shall be binding upon the
Corporation and its respective successors and permitted assigns, and shall enure
to the benefit of and be enforceable by the Trustee, its successors, nominees
and assigns. The Trustee may, upon the terms provided in the Indenture, assign,
transfer and deliver to any transferee any or all of the Indebtedness secured by
this Agreement or any security or any documents or instruments held by the
Trustee in respect thereof, provided that no such assignment, transfer or
delivery shall release the Corporation from any of the Indebtedness secured by
this Agreement; and thereafter the Trustee shall, to the extent
13.
provided in the Indenture, be fully discharged from any and all further
responsibility with respect to the Indebtedness, including without limitation
all documents and instruments so assigned, transferred or delivered. Such
transferee shall be vested with all powers and rights of the Trustee under such
security, documents or instruments but the Trustee shall retain all rights and
powers with respect to any such security, documents or instruments not so
assigned, transferred or delivered. The Corporation shall not sell or assign its
interest in, or grant any license or sublicense under the Collateral without the
prior written consent of the Trustee.
17. Release of Security Interest. Upon Termination, the Trustee shall
upon request in writing by the Corporation and at the expense of the Corporation
execute and deliver to the Corporation all documents and instruments, and shall
take such other actions, as may be necessary or proper to release the lien on
and security interest in the Collateral, subject to any disposition thereof
which may have been made by the Trustee pursuant hereto.
18. Governing Law and Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the Province of New Brunswick and
the federal laws of Canada applicable therein. The Corporation agrees that any
lawsuit, action or proceeding arising out of or relating to this Agreement may
be instituted in the Courts of New Brunswick and the Corporation hereby accepts
and irrevocably submits to the jurisdiction of the said Courts and acknowledges
their competence and agrees to be bound by any judgment thereof; provided that
nothing herein shall limit the rights of the Trustee to bring or initiate
proceedings against the Corporation or any other person elsewhere.
19. Headings. Paragraph headings used herein are for convenience
only and shall not modify nor interpret the provisions which they precede.
20. Further Assurances. The Corporation agrees to execute and deliver
such further agreements, instruments and documents, and to perform such further
acts, as the Trustee reasonably may request from time to time in order to carry
out the purpose of this Agreement and the covenants and agreements set forth
herein.
21. Survival of Representations. All representations and warranties
of the Corporation contained in this Agreement shall survive the execution
and delivery of this Agreement.
22. Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same agreement.
23. Inconsistencies. This Agreement is executed pursuant to the
Indenture and is subject to the terms thereof. In the event of any
contradiction between the terms
14.
hereof and the comparable terms of the Indenture, the terms of the Indenture
shall prevail.
24. Selection of Language. It is the express wish of the Parties
that this agreement and any related documents be drawn up and executed in
English. Les parties conviennent que la presente convention et tous les
documents s'y rattachant soient rediges et signes en anglais.
15.
IN WITNESS WHEREOF, this Agreement has been executed by the
Corporation, effective as of the date first written above.
SPORT MASKA INC.
By: /s/ D. XXXXX XXXXXXX c/s
------------------------------------
Name: D. Xxxxx Xxxxxxx
Title: Secretary
THE BANK OF NEW YORK, as trustee
By: /s/ XXXXX XXXXXXXX c/s
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
Page 20
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APPLICATION DATE PATENT/INDUSTRIAL DESIGN
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Page 20
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APPLICATION DATE PATENT/INDUSTRIAL DESIGN
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EXHIBIT "A"
CANADIAN
PATENTS/INDUSTRIAL DESIGNS/COPYRIGHTS
OWNED BY # 1 APPAREL INC.
--------------------------------------------------------------------------------
APPLICATION DATE PATENT/INDUSTRIAL DESIGN
INDUSTRIAL DESIGN REGISTRATION NO. 71087
DRAWSTRING CAP
--------------------------------------------------------------------------------
EXHIBIT "B"
CANADIAN
REGISTERED TRADEMARKS
OWNED BY #1 APPAREL INC.
--------------------------------------------------------------------------------
TRADEMARK SERIAL NO. REGISTRATION NO. WARES
--------------------------------------------------------------------------------
EXHIBIT "C"
LICENSE AGREEMENTS
None
EXHIBIT "D"
IRREVOCABLE POWER OF ATTORNEY
REGARDING INTELLECTUAL PROPERTY
The undersigned, SPORT MASKA INC., a corporation duly incorporated, continued
and existing under the laws of the Province of New Brunswick, having its office
and principal place of business at 0000 Xxxxx-Xxxxxx Xxxxxxx, Xxxxx 000,
Xxxxx-Xxxxxxx, Xxxxxx (hereinafter referred to as the "Grantor"), hereby
irrevocably constitutes and appoints The Bank of New York (the "Bank") and its
successors and permitted assigns, and each of their respective directors,
officers, employees, agents and representatives, as the true and lawful attorney
of the Grantor with full power of substitution in the name of the Grantor for
the following purposes:
1. To do any and all such acts and things and to endorse or sign the name of
the Grantor and execute and deliver all applications, registrations,
recordings, reissues, continuations, continuations in part, term
restorations and extensions thereof, documents, papers, agreements,
assignments and instruments as the Bank in its sole discretion, considers
necessary or desirable for the purpose of recording, registering and filing
with the Canadian Intellectual Property Office, the United States Patent
and Trademark Office or any other governmental office, bureau or agency
dealing with intellectual property rights, or accomplishing any other
formality with respect to carrying out the provisions and purposes of the
security agreement dated as of April 1st , 1997 made between the Grantor
and the Bank (the "Security Agreement"), a copy of which is attached hereto
as Schedule "A", and any other security with respect to all or any part of
the Collateral (as that term is defined in the Security Agreement) granted
by the Grantor in favour of the Bank, or its assigns, including a hypothec
bearing formal date of April 1st , 1997 (collectively, the "Other
Security") or to take any other action with respect to all or any part of
the Collateral or to exercise any of its rights and remedies under the
Security Agreement or under the Other Security, and to do all acts or
things necessary or desirable to grant or issue any exclusive or
non-exclusive license or sub-license under or in respect of the Collateral,
or any part thereof, to anyone or to transfer, assign, pledge, convey,
sell, license or otherwise transfer, take in or dispose of all rights,
title and interest of the Grantor in and to the Collateral or any parts
thereof to any person or persons by private or public sale, lease or
otherwise, upon such terms and conditions as the Bank may determine best,
otherwise in compliance with applicable law, and whether or not the Bank
has taken possession of the
2.
Collateral or to otherwise realize on the Collateral in any manner
contemplated by the Security Agreement or Other Security or to realize or
collect all or any income, damages, payments or proceeds related thereto;
and
2. To do or take any step appropriate for the preservation or protection of
any or all of the Collateral for the benefit of the Bank.
The Grantor hereby acknowledges and ratifies all acts accomplished in connection
herewith. Capitalized terms used herein and not otherwise defined herein shall
have their respective meanings as defined in the Security Agreement. This power
of attorney is made pursuant to the Security Agreement and will take effect
solely in the event or upon the occurrence of a Default under the Security
Agreement and this power of attorney may not be revoked until the payment or
performance in full of all Indebtedness (as that term is defined in the Security
Agreement).
This power of attorney shall be governed by the laws of the Province of New
Brunswick and the federal laws of Canada applicable therein.
DATED this 1st day of April, 1997.
SPORT MASKA INC.
Per: c/s
-----------------------------
Name:
Title:
