SLM INTERNATIONAL, INC.
DEBENTURE $75,000,000
A. PROMISE TO PAY
1. SLM INTERNATIONAL, INC. (the "Company") for value received hereby agrees with
THE BANK OF NEW YORK (the "Secured Party"), for its own benefit and for the
benefit of the Holders from time to time that it will, subject to the provisions
of that certain Delivery Agreement made in favour of the Secured Party by the
Company of even date herewith (the "Delivery Agreement") on demand pay to the
Secured Party the principal sum of SEVENTY-FIVE MILLION DOLLARS ($75,000,000).
The Company will also, subject to the provisions of the Delivery Agreement, pay
to the Secured Party, as and when demanded, interest on the said principal sum.
The Company will pay such interest at the rate of 25% per annum calculated and
payable monthly not in advance, both before and after demand and before and
after default, judgment and execution from the date hereof until payment in full
of all amounts owing hereunder.
X. XXXXX OF MORTGAGES, CHARGES AND SECURITY INTERESTS
2. As security for payment of the principal and interest and all
other indebtedness and liability from time to time payable hereunder, the
Company hereby:
(a) mortgages and charges (subject to the exceptions as to leaseholds
hereinafter contained) as and by way of a fixed and specific mortgage and charge
to and in favour of the Secured Party, and grants to the Secured Party a
security interest in, all real and immovable property (including, by way of
sub-lease, leasehold lands) (collectively, the "Lands") now or hereafter owned
or acquired by the Company and all buildings, erections, improvements, fixtures
and plant now or hereafter owned or acquired by the Company (whether the same
form part of the realty or not) and all appurtenances to any of the foregoing
including without limiting the generality of the foregoing the property
described in Appendix "A" hereto; "real and immovable property" shall include
any interest in or right with respect to real and immovable property;
(b) mortgages and charges to the Secured Party as and by way of a fixed
and specific mortgage and charge, and grants to the Secured Party a security
interest in all present and future:
(i) income, revenues and profits derived from any tenancy, use or
occupation of the Lands and rents and other sums payable to the
Company pursuant to the terms of any leases, licences, subleases,
2.
agreements to lease, license or sublease, or rights to occupy (each
a "lease") the Lands;
(ii) benefits, advantages and powers to be derived from such leases,
with full power and authority to demand, sue for, recover, receive
and give receipts for all rents and other moneys payable thereunder
and otherwise to enforce the rights of the landlord thereunder on
behalf of and in the name of the Company; and
(iii) benefit of all guarantees and indemnities with respect to any
leases and the performance of any obligations of any tenant
thereunder;
(c) mortgages and charges to the Secured Party as and by way of a fixed
and specific mortgage and charge, and grants to the Secured Party a security
interest in, all its present and future equipment, including, without limiting
the generality of the foregoing, all fixtures, plant, machinery, tools and
furniture now or hereafter owned or acquired and any equipment specifically
listed or otherwise described in Appendix "B" hereto;
(d) mortgages and charges to the Secured Party, and grants to the Secured
Party a security interest in, all its present and future inventory, including,
without limiting the generality of the foregoing, all raw materials, goods in
process, finished goods and packaging material and goods acquired or held for
sale or furnished or to be furnished under contracts of rental or service;
(e) mortgages and charges to the Secured Party, and grants to the Secured
Party a security interest in, all its other goods and tangible personal
property;
(f) mortgages and charges to the Secured Party, and grants to the Secured
Party a security interest in all its present and future intangibles, including,
without limiting the generality of the foregoing, all its present and future
book debts, accounts and other amounts receivable, contract rights and chooses
in action of every kind or nature including insurance rights arising from or out
of the assets referred to in subparagraphs (a), (b), (c), (d) or (e) hereof,
goodwill, chattel paper, instruments of title, negotiable documents of title,
investments, money and securities and all dividends, income or other
distributions, whether paid or distributed in cash, securities or other
property, in respect of any of the property described in this section 2;
(g) charges in favour of the Secured Party as and by way of a floating
charge, and grants to the Secured Party a security interest in, all of its
business, undertaking, property and assets, real and personal, moveable or
immovable, of whatsoever nature and kind, both present and future (other than
property and assets hereby validly subjected to a specific mortgage, charge or
security interest by subparagraphs (a), (b), (c), (d), (e) or (f) hereof and the
exceptions hereinafter contained); and
3.
(h) mortgages and charges in favour of the Secured Party, and grants to
the Secured Party a security interest in, the proceeds arising from any of the
assets referred to in this paragraph 2;
all of which present and future property and assets of the Company referred to
in subparagraphs 2 (a), (b), (c), (d), (e), (f), (g) and (h) hereof are
hereinafter collectively called the "Charged Assets". All rights of the Secured
Party hereunder, the security, and all obligations of the Company hereunder,
shall be absolute and unconditional irrespective of (i) any lack of validity or
enforceability of any loan document including the Senior Secured Note Indenture
(the "Indenture") dated as of April 1, 1997 among the Company, 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, as the same may be amended, restated or supplemented from time to time,
any guarantee or any other agreement with respect to the indebtedness and
liability under the Indenture or any indebtedness or liability secured hereby or
any other agreement or instrument relating to the foregoing, (ii) any change in
the time, manner or place of payment of, or in any other term of, all or any of
the indebtedness and liability under the Indenture or any indebtedness or
liability secured hereby or any other amendment or waiver of or consent to any
departure from any guarantee, any loan document, the Indenture, or any other
agreement or instrument, (iii) any exchange, release or nonperfection of any
Charged Asset or any release or amendment or waiver of or consent to or
departure from the indebtedness under the Indenture or any guarantee for all or
any of the indebtedness and liability secured hereby, or (iv) any other
circumstance which might otherwise constitute a defence available to, or
discharge of, the Company, any guarantor or any other obligor in respect of the
indebtedness and liability, secured by or in respect of this debenture.
C. LOCATION OF CHARGED ASSETS
3. Intentionally Deleted
4. The Company agrees to give the Secured Party ten (10) days written
notice prior to acquiring any Charged Assets in Ontario or moving any Charged
Assets into Ontario.
D. LIMITED EXCEPTIONS TO GRANT OF CHARGE
5. The last day of any term reserved by any lease or sublease, oral or
written, or any agreement therefor, now held or hereafter acquired by the
Company, and whether falling within the general or particular description of the
Charged Assets,
4.
is hereby and shall be excepted out of the mortgage, charge and security
interest hereby or by any other instrument created, but the Company shall stand
possessed of the reversion of one day remaining in the Company in respect of any
such term, for the time being demised, as aforesaid, upon trust to assign and
dispose of the same as any purchaser of such term shall direct.
E. AGREEMENTS OF THE COMPANY
6. The Company and the Secured Party covenant and agree that:
(a) they have not agreed to postpone the time for attachment of the
security interests granted hereby with respect to the Charged Assets presently
existing and that such security interests shall attach to the Charged Assets
acquired after the date hereof as soon as the Company has rights in such assets;
(b) in accordance with subsection 7(3) of the Land Registration Reform Act
(Ontario), the covenants deemed to be included in a charge by subsection 7(1) of
such Act are expressly excluded from this debenture; and
(c) subject to paragraph 29 hereof, the Company shall not at any time
hereafter make any claim to the Charged Assets, challenge the Secured Party's
rights thereto or make any demands upon the Secured Party with respect to the
Charged Assets and the Secured Party shall from this time forward be exonerated
and discharged of and from all claims and demands which the Company might or
could have against the Secured Party with respect to the Charged Assets.
7. The Company represents and warrants to the Secured Party that:
(a) the Company is the sole registered, legal and beneficial owner of
an estate in fee simple in the Lands described in Appendix "A" hereto with good
and marketable title thereto, and the Company is the sole legal and beneficial
owner of the remainder of the Charged Assets, free of any Lien, encumbrance or
other right whatsoever except for Permitted Encumbrances (as defined in the
Indenture);
(b) the Company is duly incorporated and in good standing under the laws
of its jurisdiction of incorporation, has the right, power and lawful authority
to charge and mortgage to the Secured Party, and otherwise grant security
interests in all of its right, title and interest in and to, the Charged Assets
as provided for in this debenture and this debenture constitutes a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, 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
5.
(c) neither the execution of this debenture nor the performance by the
Company of its obligations hereunder will result in any breach of or default
under any law or any other agreement or document to which the Company is a party
or by which it may be bound.
8. The Company agrees with the Secured Party that until all
indebtedness and liability owing by the Company to the Secured Party are paid in
full:
(a) it will not, without the prior written consent of the Secured
Party:
(i) incur, create, assume or permit to exist any further or
additional indebtedness except as permitted under the terms
of the Indenture;
(ii) create, assume or permit to exist any Liens upon, assign,
transfer, mortgage, charge, pledge, hypothecate or otherwise
grant security over or a security interest in any of the
Charged Assets except to the Secured Party and except
Permitted Encumbrances;
(iii) sell, transfer, assign, or otherwise dispose of any of the
Charged Assets or any group of property and assets forming
part of the Charged Assets except for a sale of inventory in
the ordinary course of business and such other sales as
permitted under the Indenture;
(iv) merge or amalgamate with any other corporation except as
permitted under the Indenture;
(v) Intentionally Deleted;
(vi) take any action (or not take any action) which would result in
a default or an Event of Default under the Indenture or
hereunder; or
(vii) change its name without giving prior written notice to the
Secured Party of the new name and the date upon which such
change of name will take effect; and
(b) it will:
(i) hold the proceeds received from any direct or indirect
dealing with the Charged Assets in trust for the Secured
Party after either the occurrence of a default under the
Indenture or the security constituted by this debenture
becoming enforceable, hold the proceeds of any Asset Sale
permitted under the Indenture which are payable to the
Secured Party or the Holders and the proceeds of any Asset
Sale which is not permitted under the Indenture in trust
for the Secured Party, and, if required in accordance with
the terms of the Indenture, hold all proceeds of any sale,
lease, assignment or other transfer of all or any part of
the Charged
6.
Assets made outside the ordinary course of business of the
Company in trust for the Secured Party, and in each case,
forthwith remit such proceeds to the Secured Party;
(ii) strictly comply with every covenant and undertaking heretofore
or hereafter given by it to the Secured Party and take any
action that may be necessary to enable any other party to
comply with its obligations under the Indenture, the
Securities and the Collateral Documents;
(iii) permit the Secured Party at any time and from time to time,
when the security granted pursuant to this debenture shall
have become enforceable, to require any account debtor of the
Company to make payment to the Secured Party of any or all
amounts owing by the account debtor to the Company and the
Secured Party may take control of any proceeds referred to in
subparagraph 2(h) hereof and may hold all such amounts
received from any account debtor and any such proceeds as cash
collateral as part of the Charged Assets and as security for
the indebtedness and liability secured by this debenture;
(iv) deliver to the Secured Party promptly upon request, any
documents of title, instruments, securities and chattel
paper constituting, representing or relating to the Charged
Assets and all statements of account, bills, invoices and
books of account relating to accounts and all records,
ledgers, reports, correspondence, schedules, documents,
statements, lists and other writings relating to the
Charged Assets for the purpose of inspecting, auditing or
copying same;
(v) at the Secured Party's request, cause such of the
securities which constitute Charged Assets to be registered
in the name of the Secured Party or its nominee and the
Company hereby authorizes the Secured party to transfer
such securities into the name of the Secured Party or its
nominee so that the Secured Party or its nominee may appear
as the sole owner of record of such securities; the Company
shall, at the request of the Secured Party, deliver to the
Secured Party appropriate powers of attorney for transfer
in blank, duly executed and with signatures guaranteed, in
respect of such securities;
(vi) immediately upon becoming aware thereof, give the Secured
Party written notice of any loss or destruction of, or
substantial damage to, any material portion of the Charged
Assets which alone, or
7.
together with any other Collateral (as defined in the
Indenture) which is lost, destroyed or substantially damaged,
constitutes a material portion of the Collateral;
(vii) promptly notify the Secured Party of the acquisition by it of
receivables or other amounts owing to it from persons located
in any jurisdiction in Canada;
(viii) keep its insurable properties adequately insured at
all times by financially sound and reputable insurers;
(ix) maintain such other insurance, to such extent and against
such risks, including fire and other risks insured against
by extended coverage, as is customary for the Charged
Assets and as is customary with companies similarly
situated and in the same or similar businesses, provided,
however, that such insurance shall insure the property of
the Company against all risk of physical damage, including,
without limitation, loss by fire, explosion, theft, fraud
and such other casualties as may be reasonably satisfactory
to the Secured Party, and in no event at any time in an
amount less than the replacement value of the Charged
Assets;
(x) maintain in full force and effect public liability insurance
against claims for bodily injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by the Company or any
of its subsidiaries, as is customary with companies similarly
situated and in the same or similar businesses;
(xi) maintain business interruption and product liability insurance
to such extent as is customary with companies similarly
situated and in the same or similar businesses;
(xii) maintain such other insurance as may be required by law or as
may be reasonably requested by the Secured Party for purposes
of assuring compliance with this subparagraph 8(b);
(xiii) ensure that all insurance covering tangible personal property
subject to a Lien in favour of the Secured Party granted
pursuant hereto shall provide that, in the case of each
separate loss, the full amount of insurance proceeds shall be
payable to the Secured Party subject to the rights of the
holders of prior ranking Permitted Encumbrances, and shall
further provide for at least 30 days' prior written notice to
the Secured Party of the cancellation or substantial
modification thereof;
8.
(xiv) deliver to the Secured Party all policies and certificates
of insurance maintained in accordance with this
subparagraph 8(b); and
(xv) provide to the Secured Party, from time to time upon demand, a
statement of the value of its inventory and a list of its book
debts shown in the reverse order of their due date.
9. The Company agrees with the Secured Party that:
(a) it will at all times fully perform and comply with all
obligations imposed on, assumed by or agreed to by it pursuant to this debenture
and any prior encumbrance of the Lands or any part thereof or its interest
therein, that it will pay all rents and perform all obligations under the leases
charged by this debenture and that, if the Company shall fail so to do, the
Secured Party may (but shall not be obliged to) take any action the Secured
Party deems necessary or desirable acting reasonably to cure any default by the
Company in the performance of or compliance with any of the Company's
obligations hereunder, under any lease or imposed upon, assumed by or agreed to
by the Company pursuant to any such prior encumbrance;
(b) upon receipt by the Secured Party in regard to any such prior
encumbrance or any lease of any written notice of default by the Company, the
Secured Party may rely thereon and take any action as aforesaid, acting
reasonably, to cure such default even though the existence of such default or
the nature thereof may be questioned or denied by the Company or by any party on
behalf of the Company;
(c) at its option, the Secured Party may discharge past due taxes, Liens,
or other encumbrances (other than Permitted Encumbrances which are not in
default) at any time levied or placed on the Charged Assets and may pay for the
maintenance and preservation of the Charged Assets to the extent the Company
fails to do so in accordance with the Indenture or this debenture, provided,
however, that the Secured Party shall not discharge such taxes, Liens or other
encumbrances or pay for such maintenance or preservation prior to the occurrence
and continuance of an Event of Default under the Indenture unless the Secured
Party shall have requested the Company to discharge such taxes, Liens or other
encumbrances or pay such amounts and the Company shall have failed or refused to
do so within such period of time as shall have been specified by the Secured
Party in such notice; provided that nothing in this debenture shall excuse the
Company from the performance of any covenants or other promises with respect to
taxes, Liens, prior claims or other encumbrances and maintenances;
(d) the Company hereby expressly grants to the Secured Party, and agrees
that the Secured Party shall have the absolute and immediate right to enter in
and upon the Lands or any part thereof to such extent and as often as the
Secured Party, in its sole
9.
discretion, acting reasonably, deems necessary or desirable, in order to cure
any such default by the Company;
(e) the Secured Party may pay and expend such sums of money as the Secured
Party in its sole discretion, acting reasonably, deems necessary for any purpose
provided for in subparagraphs 9(a), (b), (c) and (d), and the Company hereby
agrees to pay to the Secured Party, immediately upon notification by the Secured
Party and without demand, all such sums so paid and expended by the Secured
Party, together with interest thereon at the Interest Rate then in effect in
accordance with the Indenture;
(f) all sums so paid and expended by the Secured Party and such interest
thereon, shall be secured hereby in addition to all other moneys hereby secured
and in priority to all other mortgages and charges;
(g) if this debenture is or shall be outstanding at the expiration of the
term of any lease (a "material lease") of real property forming part of the
Charged Assets which is material to the conduct of the Company's business and
the Company shall refuse or neglect to exercise its right, if any, to renew such
material lease and to pay the fees, costs, charges and expenses incidental to
and payable upon such renewals, then, and as often as it shall happen, the
Secured Party may, at its sole discretion, effect such renewals in its own name
or otherwise, and in such case every such renewed material lease and the lands
and buildings thereby demised shall remain and be security to the Secured Party
for the indebtedness and liability secured by this debenture and as well for the
payment of all money paid by the Secured Party for every such renewal and the
Secured Party's costs, charges, and expenses and interest thereon at the
Interest Rate then in effect in accordance with the Indenture;
(h) it will not: (i) surrender any material lease or any rights of renewal
with respect thereto (except in the case where the prior written consent of the
Secured Party has been obtained); subordinate any material lease to any mortgage
of the fee interest of the landlord thereof in the lands subject to such lease,
unless in connection with any such subordination the Company obtains from the
holder of such mortgage a non-disturbance agreement in favour of the Company and
its successors and assigns (including the Secured Party) in form and substance
satisfactory to the Secured Party (save and except that with respect to existing
leases, the Company shall only be required to use commercially reasonable
efforts to obtain such a non-disturbance agreement); (ii) terminate or cancel
any material lease without the prior written consent of the Secured Party; or
(iii) without the prior written consent of the Secured Party, modify, change,
supplement, alter or amend any material lease either orally or in writing;
(i) no release or forbearance of any of the Company's obligations pursuant
to any material lease or pursuant to any prior encumbrance of the Company's
interest in the Lands or any part thereof, including without limitation the
Company's obligations
10.
with respect to the payment of rent as provided for in any such lease, shall
release the Company from any of the Company's obligations pursuant to this
debenture;
(j) unless the Secured Party shall otherwise expressly consent in writing,
the title in fee simple to the property demised by any material lease and the
leasehold estate shall not merge but shall always remain separate and distinct,
notwithstanding the union of said estates either in the landlord of any such
lease or the Company pursuant to any such lease or in a third party, by purchase
or otherwise;
(k) if the Company shall, at any time before payment in full of the
indebtedness and liability secured by this debenture, acquire the freehold title
to the Lands demised by any lease, this mortgage and charge shall attach and
extend to, and constitute a mortgage and charge of such freehold estate; and
(l) the Company hereby agrees that it will not place the Charged Assets or
allow the Charged Assets to be placed on any premises that are leased unless the
lessor of such premises has first agreed in writing with the Secured Party to
subordinate and postpone any and all of its claims, security and rights to the
claims and security of the Secured Party; provided that this covenant will not
prohibit the Company from selling the Charged Assets in the normal course of the
Company's business.
10. The Company hereby agrees that it will at all times, both before and
after default, do or cause to be done such additional things and execute and
deliver or cause to be executed and delivered all such further acts and
documents as the Secured Party may reasonably require for the better mortgaging,
charging, confirming and granting of security interests in the present or future
Charged Assets to the Secured Party, including, without limitation, the payment
of any fees and taxes required in connection with the execution and delivery of
this debenture, the granting of the security and the filing, recording, or
registering of any financing statements or other documents in connection
therewith. If any amount payable under, or in connection with, any of the
Charged Assets shall be or become evidenced by any promissory note or other
instrument, such note or instrument shall be promptly pledged and delivered to
the Secured Party, duly endorsed in a manner satisfactory to the Secured Party.
If at any time the Company shall take and perfect a security interest or
hypothec in any property of an account debtor or any other person to secure
payment and performance of an account receivable, the Company shall promptly
assign such security interest or hypothec to the Secured Party. Such assignment
need not be filed, recorded or registered of public record unless necessary to
continue the perfected status of the security interest or hypothec against
creditors of and transferees from the account debtor or other person granting
the security interest or hypothec.
11.
11. The Company shall, at its own cost and expense, take any and all
actions reasonably necessary to defend title to the Charged Assets against all
persons and to defend the security of the Secured Party in such Charged Assets,
and the priority thereof, against any adverse Lien or encumbrance of any nature
whatsoever, except for such Liens or encumbrances permitted by the Secured Party
in writing, including, without limitation, the Permitted Encumbrances.
12. The Company shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract and agreement, interest or obligation relating to the Charged Assets,
all in accordance with the terms and conditions thereof and shall indemnify and
hold harmless the Secured Party and the Holders from any and all such
liabilities.
13. The Company will not, without the Secured Party's prior written
consent, grant any extension of the time of payment of any its accounts
receivable, or compromise, compound or settle the same for less than the full
amount thereof, or release, in whole or in part, any person liable for the
payment thereof, or allow any credit or discount whatsoever thereon other than
extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business.
F. DEFAULT
14. Subject to the terms of the Delivery Agreement, all indebtedness and
liability owing by the Company to the Secured Party and hereby secured shall
become payable and the security hereby constituted shall become enforceable upon
the demand by the Secured Party.
15. The Secured Party may in writing (and not otherwise) waive any
breach by the Company of any of the provisions contained in this debenture or
any default by the Company in the observance or performance of any provision of
this debenture; provided always that no waiver by the Secured Party shall extend
to or be taken in any manner whatsoever to affect any subsequent breach or
default, whether of the same or a different nature, or the rights resulting
therefrom.
G. REMEDIES OF THE SECURED PARTY
16. Whenever the security hereby constituted shall have become
enforceable, and so long as it shall remain enforceable, the Company will have
no right to vote or take any other action with respect to any securities
constituting Charged Assets or receive any dividends or interest (whether
declared or payable before or after the
12.
security hereby constituted becoming enforceable) in respect of the Charged
Assets, and the Secured Party may proceed to realize such security and to
enforce its rights by:
(a) entry;
(b) the appointment by instrument in writing of a receiver or receivers of
the Charged Assets 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 Secured Party or not) and the Secured Party may remove any receiver or
receivers so appointed and appoint another or others in his or their stead;
(c) proceedings in any court of competent jurisdiction for the
appointment of a receiver or receivers or for sale of the Charged Assets or
any part thereof; or
(d) any other action, suit, remedy or proceeding authorized or
permitted hereby or by law or by equity.
In addition, the Secured Party 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, insolvency, winding-up or other judicial proceedings
relative to the Company.
The Secured Party or any receiver or receivers so appointed shall
have power to:
(i) take possession of and to use the Charged Assets or any part
thereof with power to exclude the Company and its officers,
employees and agents therefrom;
(ii) carry on the business of the Company (including, but not
limited to, the taking or defending of any actions or legal
proceedings, and the doing or refraining from doing all other
things as to it, acting reasonably, may seem necessary or
desirable in connection with the business, operations and
affairs of the Company);
(iii) take all such steps as it may consider necessary or desirable
for the purposes of preserving, maintaining and completing all
or any part of the Charged Assets and making such replacements
thereof and improvements and additions thereto as it shall
consider expedient;
(iv) receive the rents, incomes and profits of any kind whatsoever
from the Charged Assets and pay therefrom (A) any expenses of
preserving, maintaining and
completing the Charged Assets, of making such
replacements thereof and improvements and additions
thereto as it may consider expedient and of carrying on
all or any part of the business of the Company relating
to the Charged Assets, and
(B) any charges against the Charged Assets ranking in
priority to or pari passu with the security created by
this debenture or
13.
the payment of which may be necessary or desirable to
preserve or protect all or any part of the Charged
Assets or the interest of the Secured Party therein;
(v) lease all or any part of the Charged Assets and renew from
time to time all or any of the leases on such terms and
conditions as the Secured Party may determine;
(vi) with or without taking possession, take any action or
proceedings to enforce the performance of any covenant
contained in any of the leases;
(vii) enjoy and exercise all the powers of the Company as it
considers necessary or desirable for the exercise of any and
all of the remedies provided for herein, including, without
limitation, the powers to make any arrangement or compromise
on behalf and in the name of the Company which it considers
expedient, to purchase on credit and borrow money on behalf
and in the name of the Company and to advance its own moneys
to the Company, all at such rates of interest as it may
consider reasonable, and to enter into contracts and undertake
obligations on behalf of and in the name of the Company for
any and all of the foregoing purposes or which it considers
necessary or desirable for the exercise of any of the rights,
powers and remedies provided for herein, all of which
borrowings, advances and obligations together with interest
thereon shall, at the discretion of the Secured Party, be
entitled to the security hereof in priority to the payment of
the obligations secured by this debenture;
(viii) borrow money required for the maintenance, preservation or
protection of the Charged Assets or any part thereof or the
carrying on of the business of the Company;
(ix) further charge the Charged Assets in priority to the charge
of this debenture as security for money so borrowed;
(x) vote and take all other action with respect to any securities
constituting Charged Assets and collect all revenues,
dividends and distributions distributed in connection with
such securities; and
(xi) sell, lease or otherwise dispose of the whole or any part of
the Charged Assets on such terms and conditions and in such
manner as the receiver shall determine.
14.
Every receiver appointed by the Secured Party shall be deemed to be an agent of
the Company and not of the Secured Party for the purposes of (i) carrying on and
managing the business and affairs of the Company and (ii) establishing liability
for all of the acts or omissions of the receiver while acting as such and the
Secured Party shall not be in any way responsible for any acts or omissions on
the part of any such receiver, its officers, employees and agents; provided
that, without restricting the generality of the foregoing, the Company
irrevocably authorizes the Secured Party to give instructions to each receiver
relating to the performance of its powers and discretions. The appointment of a
receiver or any thing which may be done by the receiver shall not have the
effect of constituting the Secured Party a mortgagee in possession.
In addition, the Secured Party may enter upon, use, occupy and
possess the Charged Assets or any part thereof, free from all encumbrances,
Liens and charges, except for Permitted Encumbrances, without hindrance,
interruption or denial of the same by the Company or by any other person or
persons, and may lease or sell the whole or any part or parts of the Charged
Assets. Any sale hereunder may be made by public auction, by public tender or by
private contract, with or without notice and with or without advertising and
without any other formality (except as required by law), all of which are hereby
waived by the Company. 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 Secured
Party in its sole discretion may seem advantageous. In the case of any sale on
credit or partly on credit, the Secured Party shall not be accountable for any
proceeds thereof unless and until actually received by the Secured Party in
cash. Such sale may take place whether or not the Secured Party has taken
possession of the Charged Assets.
The Company agrees to pay to the Secured Party forthwith on demand
all expenses incurred by the Secured Party in the preparation, perfection,
administration and enforcement of this debenture (including without limitation
expenses incurred in considering and protecting or improving the Secured Party's
position, or attempting to do so, whether before or after default), all amounts
borrowed by the receiver from the Secured Party as hereinbefore provided and all
costs, charges, expenses and fees (including, without limiting the generality of
the foregoing, the fees and expenses of any receiver and legal fees on a
solicitor and client basis) of or incurred by the Secured Party and by any
receiver or receivers or agent or agents appointed by the Secured Party in
connection with the recovery or enforcing of payment of any moneys owing
hereunder, whether by realization, by taking possession or otherwise. All such
sums, together with interest thereon at the Interest Rate then in effect in
accordance with the Indenture, shall be secured by the charges contained herein.
To the extent that the aggregate of the principal and accrued interest secured
hereby and such borrowed
15.
money, costs, fees and expenses exceed the principal amount of this debenture,
the Company hereby mortgages and charges and grants a security interest in the
Charged Assets to the Secured Party to secure payment of such excess amount.
No remedy for the realization of the security hereof or for the
enforcement of the rights of the Secured Party 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; and the exercise
of any remedy under any document in any jurisdiction shall not prejudice or
affect the exercise of any remedy under another document in any jurisdiction.
The term "receiver" as used in this debenture includes a receiver and manager.
The Secured Party shall not, nor shall any receiver appointed by it,
be liable for any failure to exercise its rights, powers or remedies arising
hereunder or otherwise, including without limitation any failure to take
possession of, collect, enforce, realize, sell, lease or otherwise dispose of,
preserve, maintain, complete, protect, replace or improve all or any part of the
Charged Assets, to carry on all or any part of the business of the Company or to
take any steps or proceedings for any such purposes. Neither the Secured Party
nor any receiver appointed by it shall have any obligation to take any steps or
proceedings to preserve rights against prior parties to or in respect of all or
any part of the Charged Assets, whether or not in its possession and neither the
Secured Party nor any receiver appointed by it shall be liable for failure to do
so. Subject to the foregoing, the Secured Party shall use reasonable care in the
custody and preservation of the Charged Assets in its possession.
17. Subject to the provisions of the Indenture, any and all payments
made in respect of the indebtedness and liability secured by this debenture from
time to time may be applied to such part or parts of the indebtedness and
liability secured by this debenture as the Secured Party may see fit, and the
Secured Party shall at all times and from time to time have the right to change
any appropriation as the Secured Party may see fit.
18. Upon any sale of the Charged Assets 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.
16.
H. RIGHTS OF THE SECURED PARTY
19. The Secured Party may, in accordance with subparagraph 9(c) of this
debenture, pay and satisfy the whole or any part of any Liens, taxes, rates,
charges or encumbrances now or hereafter existing in respect of any of the
Charged Assets (other than Permitted Encumbrances which are not in default) and
such payments together with all costs, charges and expenses which may be
incurred in connection with making such payments shall form part of the
indebtedness and liability secured by this debenture and shall be secured by the
mortgages, charges and security interests granted herein. In the event of the
Secured Party satisfying any such lien, charge or encumbrance, it shall be
entitled to all the equities and securities of the person or persons so paid and
is hereby authorized to obtain any discharge thereof and hold such discharge
without registration for so long as it may deem advisable to do so.
20. 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 aggregate amount of any of the indebtedness and liability secured by
this debenture provided the same is due.
21. The Secured Party, without exonerating in whole or in part the
Company, may grant time, renewals, extensions, indulgences, releases and
discharges to, may take securities from and give the same and any or all
existing securities up to, may abstain from taking securities from or from
perfecting securities of, may accept compositions from, and may otherwise deal
with the Company and all other persons and securities as the Secured Party may
see fit.
22. Nothing herein shall obligate the Secured Party to extend or
amend any credit to the Company.
23. The Secured Party may, in accordance with the Indenture, assign,
transfer and deliver to any transferee any of the indebtedness and liability
secured by this debenture or any security or any documents or instruments held
by the Secured Party in respect thereof provided that no such assignment,
transfer or delivery shall release the Company from any of the indebtedness and
liability secured by this debenture; and thereafter the Secured Party shall be
fully discharged from all responsibility with respect to the indebtedness and
liability secured by this debenture and security, documents and instruments so
assigned, transferred or delivered. Such transferee shall be vested with all
powers and rights of the Secured Party under such security, documents or
instruments but the Secured Party shall retain all rights and powers with
17.
respect to any such security, documents or instruments not so assigned,
transferred or delivered. The Company shall not assign any of its rights or
obligations hereunder without the prior written consent of the Secured Party.
24. The Secured Party is hereby authorized to file, record or register,
as the case may be, one or more financing statements, financing change
statements or other documents in all jurisdictions which the Secured Party deems
necessary or appropriate for the purpose of perfecting, confirming, continuing,
enforcing or protecting the security held by the Secured Party in respect of the
indebtedness and liability secured by this debenture.
25. The Company hereby appoints the Secured Party the attorney of such
Company solely for the purposes of carrying out the provisions of this debenture
and taking any action or executing any instrument which the Secured Party may
deem necessary or advisable to accomplish the purposes herewith, which
appointment is irrevocable and coupled with an interest.
26. The Secured Party and such persons as the Secured Party may
designate shall have the right, at any reasonable time or times during Company's
usual business hours, and upon reasonable notice, (which may be by telephone) to
inspect the Charged Assets, all records related thereto (and to make extracts
and copies from such records) and the premises upon which any such Charged
Assets are located, to discuss the Company's affairs with the officers of the
Company and its independent accountants and to verify under reasonable
procedures, the validity, amount, quality, quantity, value and condition of or
any other matter relating to, such Charged Assets, including, in the case of
accounts receivable or Charged Assets in the possession of a third person,
contacting account debtors and third persons possessing such Charged Assets. The
Secured Party shall have the absolute right to share any information that it
gains from such inspection or verification with any or all of the Holders.
J. MISCELLANEOUS
27. If one or more of the provisions contained herein shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
28. No amendment of this debenture shall be binding unless executed
in writing by the party to be bound thereby.
18.
29. Until the security hereby constituted shall have become enforceable,
the Company shall have quiet possession of the Charged Assets. Upon payment by
the Company, its successors or permitted assigns, of all indebtedness and
liability of the Company to the Secured Party secured hereby and the fulfilment
of all other obligations of the Company to the Secured Party secured hereby and
provided that the Secured Party is then under no obligation (conditional or
otherwise) to make any further loan or extend any other type of credit to the
Company, the Secured Party shall, upon request in writing by the Company and at
the Company's expense, discharge this debenture.
30. This debenture shall be construed in accordance with and be governed
by the laws of the Province of Ontario. For the purpose of legal proceedings,
this debenture shall be deemed to have been made in the said Province and to be
performed therein and the courts of that Province shall have jurisdiction over
all disputes which may arise under this debenture. The Company hereby
irrevocably and unconditionally submits to the non-exclusive jurisdiction of
such courts, provided always that nothing herein contained shall prevent the
Secured Party from proceeding at its election against the Company in the courts
of any other province, country or jurisdiction.
31. The headings in this debenture are included for convenience of
reference only, and shall not constitute a part of this debenture for any
other purpose.
32. This debenture is in addition to and not in substitution for any
other security now or hereafter held by the Secured Party and shall be general
and continuing security notwithstanding that the indebtedness and liability of
the Company to the Secured Party shall be at any time or from time to time fully
satisfied or paid.
33. This debenture and all its provisions shall enure to the benefit
of the Secured Party, its successors and assigns, and shall be binding on the
Company, its successors and permitted assigns.
34. Any demand or notice by the Secured Party in connection with this
debenture shall be given to the Company at the place and in accordance with the
terms set out in the Indenture for the giving of notices thereunder.
35. In construing this debenture, terms herein shall have the
same meaning as defined in the Personal Property Security Act (Ontario), unless
the context otherwise
19.
requires and capitalized terms not defined herein will have the meaning
attributed to such terms in the Indenture. The word "Company", the personal
pronoun "it" or "its" and any verb relating thereto and used therewith shall be
read and construed as required by and in accordance with the context in which
such words are used depending upon whether the Company is one or more
individuals, corporations or partnerships and, if more than one, shall apply and
be binding upon each of them severally. The term "successors" shall include,
without limiting its meaning, any corporation resulting from the amalgamation of
a corporation with another corporation and, where the Company is a partnership,
any new partnership resulting from the admission of new partners or any other
change in the Company, including, without limiting the generality of the
foregoing, the death of any or all of the partners.
36. The Secured Party acknowledges that it has entered into an
Intercreditor Agreement (as that term is defined in the Indenture).
Notwithstanding the foregoing, the Grantor agrees and acknowledges that the
Intercreditor Agreement does not provide the Grantor with any rights as a third
party beneficiary or otherwise.
IN WITNESS WHEREOF the Company has executed this debenture as of the
1st day of April, 1997.
SLM INTERNATIONAL, INC.
By: /s/ XXXXX XXXXXXX
-------------------------------------
title - Secretary
APPENDIX "A"
Legal description of freehold lands
Intentionally blank.
APPENDIX "B"
List of Equipment
Intentionally blank.
