TO: THE BANK OF NEW YORK
DELIVERY AGREEMENT
WHEREAS #1 APPAREL CANADA INC. (hereinafter called the "Company") has
guaranteed in favour of THE BANK OF NEW YORK for its own benefit and for the
benefit of the Holders (as defined in the Indenture) (hereinafter called the
"Secured Party") the liabilities and obligations under (i) a Senior Secured Note
Indenture dated as of April 1, 1997, among SLM International, Inc. (the
"Borrower"), Sport Maska Inc., Maska U.S., Inc., #1 Apparel, Inc., #1 Apparel
Canada Inc., SLM Trademark Acquisition Corp., SLM Trademark Acquisition Canada
Corporation and the Secured Party (which as amended, supplemented or restated
from time to time is herein called, the "Indenture"), (ii) the Securities (as
defined in the Indenture) and (iii) the Collateral Documents (as defined in the
Indenture) and, as security for its guarantee (given pursuant to Article 10 of
the Indenture) the "Guarantee") the Company has agreed to execute and deliver to
the Secured Party a debenture in the principal amount of SEVENTY-FIVE MILLION
DOLLARS ($75,000,000) for the purpose of securing payment or performance of any
and all indebtedness, obligations and liabilities, joint or several, of the
Company to the Secured Party pursuant to the Guarantee and any security
therefor, whether as principal or surety (all of which present and future
indebtedness, obligations and liabilities are hereinafter collectively called
the "Obligations");
NOW THEREFORE in consideration of the foregoing and for other good and
valuable consideration the Company hereby agrees with the Secured Party as
follows:
1. Delivery. The Company herewith delivers to the Secured Party a
debenture of the Company in the principal amount of SEVENTY-FIVE MILLION
DOLLARS ($75,000,000) bearing interest at the rate of TWENTY-FIVE PERCENT
(25%) per annum from the date hereof and a related charge/mortgage of land
in the form prescribed by the Land Registration Reform Act (Ontario) having
attached thereto as a schedule and incorporating as a part thereof a copy
of the said debenture (hereinafter as they may each be amended,
supplemented or restated from time to time collectively called the
"Debenture"), charging by way of a fixed and specific mortgage and charge
and granting security interests in certain property and assets of the
Company and charging by way of a floating charge and granting a security
interest in all the undertaking, property and assets of the Company (except
as therein provided).
2. Continuing Security. The Debenture shall be held by the Secured
Party as general and continuing security to secure payment and performance
of the whole of the Obligations as existing from time to time and any
ultimate unpaid balance of any indebtedness forming part of the Obligations
notwithstanding any change in:
(a) the nature or form of the Obligations;
(b) the accounts or the bills of exchange, promissory notes
and/or other obligations evidencing or creating the Obligations or any
part thereof;
(c) the names of the parties to the accounts or to the said
bills, notes and/or obligations; or
(d) the name or constitution of the Company,
and notwithstanding the opening of any new account and the closing in the books
of the Company or the Secured Party of any other account with respect to the
Obligations or any part thereof.
3. Default. Upon the occurrence of an Event of Default (as defined
under the Indenture), the Secured Party may forthwith without notice,
without demand for payment, without advertisement and without any other
formality (all of which are hereby waived), but in accordance with
applicable law, enforce any and all security which it may hold including,
without limitation, the Debenture. All rights and remedies of the Secured
Party may be exercised independently or in combination. The rights and
remedies specified herein shall be in addition to and not in substitution
for any other rights and remedies of the Secured Party at law or in equity
or otherwise.
4. Application of Payments. Unless the provisions of the Indenture
require otherwise, any and all payments made in respect of the Obligations
may be applied on such part or parts of the Obligations as the Secured
Party may see fit. The Secured Party shall at all times and from time to
time have the right to change any appropriation of any moneys received by
it and to reapply the same on any other part or parts of the Obligations as
the Secured Party may see fit, notwithstanding any previous application by
whomsoever made.
Upon any sale of the Charged Assets (as defined in the Debenture) by the
Secured Party (including, without limitation, pursuant to a power of sale
granted by statute or under a judicial proceeding) the receipt of the
Secured Party or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Charged Assets so sold and
such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Secured
Party or such officer or be answerable in any way for the misapplication
thereof.
5. Dealings by the Secured Party. The Secured Party may grant
extensions, take and give up securities, accept compositions, grant
releases and discharges and otherwise make arrangements with the Company
and deal with other persons and securities as the Secured Party may see fit
without prejudice to the liability of the Company or the Secured Party's
right to hold, deal with and realize the security of the Debenture.
6. No Merger. The Debentures shall not operate by way of merger of any
indebtedness or liability of the Company or any other person or persons to
the Secured Party hereunder or under any document or negotiable instrument
by which the same may now or at any time hereafter be represented or
evidenced. No judgment recovered by the Secured Party shall operate by way
of merger of or in any way affect the security created by the Debenture or
the Secured Party's rights to interest as aforesaid.
7. Additional Security. This agreement and the security afforded by
the Debenture shall be in addition to and not in replacement of or
substitution for any security now or hereafter held by the Secured Party in
respect of any indebtedness, liabilities or obligations, present or future,
of the Company to the Secured Party or any part thereof, and shall not be
prejudiced by any such security or by any exchange, release or variation of
any such security.
8. Expenses. All reasonable expenses (including without limitation
legal fees on a solicitor and his own client basis and the fees and
expenses of any receiver or receiver and manager appointed under the
provisions of the Debenture) incurred by the Secured Party in connection
with:
(a) the preparation and registration of the Debenture;
(b) recovering or enforcing payment or performance of all or part
of the Obligations (including without limitation expenses incurred in
considering and protecting or improving its position, or attempting to
do so, whether before or after default); and
(c) realizing upon or otherwise dealing with the assets charged
by the Debenture (including without limitation expenses of taking
possession, protecting, preparing for sale and realizing upon any such
assets),
shall be payable upon demand, shall be added to and shall be deemed to be a
part of the Obligations, shall bear interest at the Interest Rate provided
for in the Indenture and the payment thereof shall be secured by the
Debenture.
9. No Obligation to Advance. Notwithstanding anything in this
agreement or in the Debenture contained, the Secured Party shall not be
obligated thereby to make any loan or other extension of credit or further
loan or extension of credit or to extend anytime for payment or performance
of all or any part of the Obligations.
10. Interest. Any provision of the Debenture or of this agreement
notwithstanding, payment by the Company of interest on all indebtedness
comprising, or forming part of, the Obligations at the current rate at
which such indebtedness may
bear interest for any period of time shall constitute satisfaction of
interest on the Debenture for the equivalent period of time.
11. Sale of Debenture. Any sale, transfer, delivery, negotiation or
assignment of the Debenture by the Secured Party will be made subject to
the provisions of this agreement.
12. Claims Under Debenture. Neither the Secured Party nor any
subsequent holder of the Debenture shall, at any time, claim payment under
the Debenture (whether for principal, interest or both) in an amount
greater than the amount of the indebtedness forming part of the Obligations
at such time. Notwithstanding that the Debenture is stated to be payable on
demand, no demand for payment shall be made under the Debenture unless
demand is concurrently being made, or has been made, for payment of
indebtedness forming part of the Obligations in an amount not less than the
amount demanded under the Debenture.
13. Discharge. Upon payment and performance by the Company of the
Obligations, the Secured Party shall, upon request in writing by the
Company delivered to the Secured Party at a time when the Secured Party is
under no obligation (conditional or otherwise) to make any loan or extend
any other type of credit to the Company or the Borrower under the
Indenture, the Securities or the Collateral Documents, and at the expense
of the Company, discharge the Debenture and upon the delivery by the
Secured Party to the Company of a discharge of the Debenture, this
agreement shall be terminated.
14. Set-Off. The Company grants to the Secured Party the right to set
off against any and all accounts, credits or balances maintained by it with
the Secured Party the Obligations or any part thereof when due and payable.
15. Illegality. If one or more of the provisions of this agreement
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any
way be affected or impaired.
16. Benefit of the Holders. All covenants and agreements herein shall
be for the benefit of the Secured Party and the Holders (as defined in the
Indenture).
17. Gender and Headings. Words importing the singular include the
plural and vice versa and words importing gender shall include all genders.
The headings in this agreement are included for convenience of reference
only, and shall not constitute a part of this agreement for any other
purpose. Capitalized terms not defined in this agreement will have the
meaning attributed to such terms in the Indenture.
IN WITNESS WHEREOF this agreement has been executed by the Company as of
the 1st day of April, 1997.
#1 APPAREL CANADA INC.
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇ c/s
---------------------------
Title-Secretary