- 1 -
DEED OF HYPOTHEC
BETWEEN
THE BANK OF NEW YORK
AND
SLM TRADEMARK ACQUISITION CANADA CORPORATION
BEARING FORMAL DATE AS OF
APRIL 1ST, 1997
TABLE OF CONTENTS
PAGE
----
1. INTERPRETATION ........................................ 2
2. [NOT USED] ............................................ 4
3. [NOT USED] ............................................ 4
4. HYPOTHEC: DESCRIPTION OF CHARGED PROPERTY ............. 4
5. AMOUNT OF THE HYPOTHEC ................................ 7
6. SECURED OBLIGATIONS ................................... 7
7. ADDITIONAL PROVISIONS PERTAINING TO THE HYPOTHEC ON
RENTAL INCOME AND LEASES .............................. 8
8. ADDITIONAL PROVISIONS TO THE HYPOTHEC ON CLAIMS
(OTHER THAN RENTALS) ................................... 9
9. ADDITIONAL PROVISIONS TO THE HYPOTHEC ON SECURITIES ... 9
10. ASSIG SUBJECT TO THE FINANCIAL
ADMINISTRATION ACT .................................... 10
11. REPRESENTATIONS AND WARRANTIES ........................ 10
12. COVENANTS ............................................. 14
13. EVENTS OF DEFAULT ..................................... 20
14. TRUSTEE'S RECOURSES IN CASE OF DEFAULT ................ 21
15. GENERAL PROVISIONS .................................... 27
16. INTERCREDITOR AGREEMENT ............................... 30
17. GOVERNING LAW ......................................... 30
18. AMENDMENTS ............................................ 30
19. FORMAL DATE ........................................... 30
20. ENGLISH LANGUAGE ...................................... 31
DEED OF HYPOTHEC
B E F O R E Mtre Xxxxxxx Xxxxxxx, the undersigned notary for the Province of
Quebec, practicing in the City of Longueuil.
APPEARED: THE BANK OF NEW YORK, a banking corporation organized under the Laws
of the State of New York, (U.S.A.) having its head office at 000 Xxxxxxx Xxxxxx,
21 West, New York, New York, 10286, U.S.A., herein acting and represented by
Xxxxx X. Xxxxxxxx, its Assistant Treasurer, hereunto duly authorized for the
purposes hereof as she so declares. Notice of its address will be registered at
the Register of Personal and Movable Real Rights concurrently with the
registration of this Deed.
(hereinafter the "TRUSTEE")
AND: SLM TRADEMARK ACQUISITION CANADA CORPORATION , a legal person being a
corporation continued under the Business Corporations Act (New Brunswick),
having its registered office at c/o Xxxxxxx XxXxxxxx Stirling Scales, 10th
Floor, Brunswick House, 44 Xxxxxxx Xxxx, P.O. Box 7289, Postal Xxxxxxx "X",
Xxxxx Xxxx, Xxx Xxxxxxxxx, X0X 0X0 and its principal place of business at 0000
Xxxxx-Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx Xxxxx-Xxxxxxx, Xxxxxx X0X 0X0, herein
acting and represented by Xxxxx Xxxxxxx, its Secretary, duly authorized for the
purposes hereof pursuant to a resolution adopted by its shareholders on April ,
1997, a certified copy of which is annexed hereto after having been acknowledged
true and signed for the purpose of identification by said representative in the
presence of the undersigned Notary.
(hereinafter the "GRANTOR")
WHICH PARTIES HAVE DECLARED AS FOLLOWS:
WHEREAS the Grantor is desirous of securing its Guaranty (as hereinafter
defined) in the manner hereinafter appearing;
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
-2-
1. INTERPRETATION
1.1 DEFINITIONS
The following terms, wherever used in this Deed or in the accompanying
schedules, shall, unless there be something in the context inconsistent
therewith, have the following meanings:
1.1.1 "BUSINESS DAY" means a day on which the Trustee's branch is
opened for business but does not include Saturday and Sunday.
1.1.2 "CHARGED PROPERTY" shall have the meaning ascribed to it in
Section 4 hereof;
1.1.3 "COLLATERAL" shall have the meaning ascribed to it in paragraph
4.8 hereof;
1.1.4 "DEFAULT" means one or the other events set out in Section 13
hereof;
1.1.5 "DOLLARS" or "$" means the legal currency in Canada;
1.1.6 "GRANTOR" means SLM Trademark Acquisition Canada Corporation
and any of its successors or assigns;
1.1.7 "GUARANTY" means the guaranty provided by the Grantor under
Article 10 of that certain Senior Secured Note Indenture (the
"INDENTURE") dated as of April 1st, 1997 between SLM
International, Inc., 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 Bank of New York, pursuant to which the Grantor shall
have guaranteed, among other things, the payment of the
Securities issued pursuant to the Indenture;
1.1.8 "HYPOTHEC" shall have the meaning ascribed to it in Section 4
hereof;
1.1.9 "PROPERTY IN STOCK" shall have the meaning ascribed to it in
paragraph 4.4 hereof;
1.1.10 "SECURED OBLIGATIONS" means all of the obligations which are to
be secured by the Hypothec pursuant to Section 6 hereof;
-3-
1.1.11 "THIS DEED", "THESE PRESENTS", "HEREIN", "HEREBY",
"HEREUNDER", "HEREOF" and similar expressions refer to this
Deed, and the accompanying schedules and to any deed or
document supplemental or complementary hereto or restating this
Deed;
1.1.12 "TRUSTEE" means The Bank of New York and shall include any
successor thereto pursuant to the applicable provisions of the
Indenture.
1.2 GENDER
Unless there be something in the context inconsistent therewith, words
importing any gender shall include any other gender as may be applicable under
the circumstances.
1.3 HEADINGS
The division of this Deed into Sections, subsections and paragraphs and
the insertion of titles are for convenience of reference only and do not affect
the meaning or the interpretation of the present Deed. Unless otherwise
indicated, a reference to a particular Section, subsection or paragraph is a
reference to the particular Section, subsection or paragraph in this Deed.
1.4 SCHEDULES
The Schedules annexed hereto shall form an integral part of this Deed.
1.5 DELAYS AND CALCULATION OF DELAYS
The delays provided hereunder are calculated simultaneously with the
delays imposed by law and are not in addition to such delays. In the calculation
of any period of delay, the period shall exclude the day from which the period
commences and the period shall include the last day thereof.
1.6 BUSINESS DAY
When the date on which a delay expires or a payment has to be made or an
act has to be done is not a Business Day, the delay expires or the payment must
be made or the act must be done on the next following Business Day, unless
expressly provided otherwise in this Deed.
1.7 TERMS DEFINED IN THE INDENTURE
The terms defined in the Indenture shall have the same meaning when used
herein unless otherwise defined herein.
-4-
2. [NOT USED]
3. [NOT USED]
4. HYPOTHEC: DESCRIPTION OF CHARGED PROPERTY
The Grantor hereby hypothecates in favour of the Trustee for its own
benefit and for the equal and rateable benefit of each Holder of a Security
issued pursuant to the Indenture and authenticated and delivered by the Trustee,
the universality of all of the Grantor's movable and immovable property, present
and future, corporeal and incorporeal, of whatever nature and kind and wherever
situate (the "Charged property") and, with respect to incorporeal or intangible
property, property located outside of the Province of Quebec or used in more
than one jurisdiction, hereby charges, assigns and mortgages in favour of the
Trustee for its own benefit and for the equal and rateable benefit of each
Holder of a Security issued pursuant to the Indenture and authenticated and
delivered by the Trustee and creates a security interest in the Charged property
(the hypothec, charge, mortgage and assignment and the security interest
hereinafter collectively referred to as the "Hypothec"), the whole including
without limitation the following universalities of present and future
properties:
4.1 IMMOVABLES
All the immovable properties of the Grantor, along with all property
permanently physically attached or joined thereto so as to ensure the utility
thereof (including the heating and air conditioning apparatus and watertanks)
and which become immovable by the effect of law, the hypothec on future
immovables to become effective upon the registration of a notice to that effect
in accordance with section 2949 of the Civil Code of Quebec (collectively
hereinafter referred to as the "IMMOVABLES").
4.2 RENTALS, REVENUES AND LEASES OF IMMOVABLES
All rentals, annuities and revenues which are or may be produced by the
Immovables as well as any other right of the Grantor in any lease, present and
future, which may affect such Immovables.
4.3 RENTAL INSURANCE
Proceeds of any insurance covering losses of revenue and rentals described
in paragraph 4.2 above.
4.4 PROPERTY IN STOCK
All property in stock or inventory of every nature and kind of the Grantor
whether in its possession, in transit or held on its behalf, including raw
materials, work in process, finished goods or other materials, goods
manufactured or
-5-
transformed, or in the process of being so, by the Grantor or by others,
packaging materials, property evidenced by xxxx of lading, animals, mineral
substances, hydrocarbons and other products of the soil as well as all fruits
thereof from the time of their extraction (hereinafter the "Property in stock").
The Property in stock held by third parties under a lease agreement, a
leasing contract, a franchise or licence agreement, or any other agreement
entered into with or on behalf of the Grantor, is also subject to this Hypothec.
Property having formed part of the Property in stock which is alienated by
the Grantor in favour of a third person but in respect of which the Grantor has
retained title pursuant to a reservation of ownership provision, shall remain
charged by the Hypothec until title is transferred; any Property in stock the
ownership of which reverts to the Grantor pursuant to the resolution or
resiliation of any agreement or following its repossession is also subject to
the Hypothec.
4.5 CLAIMS, BOOK DEBTS AND OTHER MOVABLE PROPERTY
4.5.1 CLAIMS, RECEIVABLES AND BOOK DEBTS
All of the Grantor's claims, debts, demands and choses in action,
whatever their cause or nature, whether or not they are certain, liquid or
exigible; whether or not evidenced by any title (and whether or not such
title is negotiable), note, acceptances, xxxx of exchange or drafts;
whether litigious or not; whether or not they have been previously or are
to be invoiced; whether or not they constitute book debts. Hypothecated
claims shall include: (i) indemnities payable to the Grantor under any all
risk insurance policy, any life insurance policy or any liability
insurance policy, subject to the rights of other subsequent ranking
hypothecs on the insured property, (ii) the sums owing to the Grantor in
connection with interest or currency exchange contracts and other treasury
or hedging instruments, management of risks or derivative instruments
existing in favour of the Grantor ("SWAPS"), and (iii) the Grantor's
rights in any credit balances, monies or deposits in accounts held for it
by the Trustee (subject to the Trustee's compensation or set-off rights)
or by any financial institution or any other person.
4.5.2 RIGHTS OF ACTION
The Grantor's rights under contract with third parties as well as
the Grantor's rights of action and claims against third persons.
4.5.3 ACCESSORIES
The hypothecs, security interest, security agreement, guarantees,
suretyships, notes, acceptances and accessories to the claims and rights
described above and other rights relating thereto (including, without
limitation, the rights of the Grantor in its capacity as seller under any
-6-
instalment sale, with respect to the claims hereby hypothecated which are
the result of such sale).
4.5.4 MOVABLE PROPERTY
All movable property owned by the Grantor and covered by the
instalment sales mentioned in paragraph 4.5.3 hereof.
A right or a claim shall not be excluded from the Charged property merely
because: (i) the debtor thereof is not domiciled in the Province of Quebec or
(ii) the debtor thereof is an affiliate (as such term is defined in the Canada
Business Corporations Act) of the Grantor (regardless of the law of the
jurisdiction of its incorporation) or (iii) such right or claim is not related
to the ordinary course of business or the operations of the Grantor.
4.6 SECURITIES
All securities (including shares, debentures, units, bonds, obligations,
rights, options, warrants, debt securities, investment certificates, units in
mutual funds, certificates or other instruments representing such property) now
or hereafter owned by the Grantor or held by the Grantor or on its behalf,
including without limitation those issued or which will be issued by the
corporations or partnerships listed in Schedule "B" or by any corporation or
partnership successor thereto pursuant to an amalgamation or any other
reorganization (a copy of which Schedule "B" remains annexed hereto after having
been recognized as true and signed for identification by the representatives of
the parties hereto with and in the presence of the undersigned notary); as well
as all those which are delivered by the Grantor to the Trustee or to a third
party on its behalf from time to time.
4.7 EQUIPMENT AND ROAD VEHICLES
The equipment, office furniture, appliances, supplies, apparatus, tools,
patterns, models, dies, blueprints, fittings, furnishings, fixtures, machinery
and rolling stock (including road vehicles) of the Grantor, including additions
and accessories and spare parts.
4.8 TRADE-MARKS AND OTHER INTELLECTUAL PROPERTY RIGHTS
All of the Grantor's rights in any trade-xxxx, copyright, industrial
design, patent, goodwill, invention, trade name, trade secret, trade process,
license, permit, franchise, know-how, plant breeders' right, integrated circuit
topography and in any other intellectual property right, including any
application or registration relating thereto if any, improvements and
modifications thereto as well as rights in any claim against third parties in
connection with the protection of any such intellectual property rights or
infringement thereto, in Canada or abroad, (sometimes hereinafter referred to
collectively as the "Collateral") including without limitation those listed in
Schedule "B" hereto.
-7-
4.9 FRUITS AND REVENUES
All cash, profits, proceeds, fruits, dividends, rights and revenues which
are or may be produced by or declared or distributed with respect to the Charged
property or in exchange thereof as well as the proceeds of the Charged property,
including without limitation any property, equipment, negotiable instrument,
xxxx, commercial paper, security, money, compensation for expropriation
remitted, given in exchange or paid pursuant to a sale, repurchase, distribution
or any other transaction with respect to the Charged property.
4.10 RECORDS AND OTHERS
All records, data, vouchers, invoices and other documents related to the
Charged property described above, including without limitation, computer
programs, disks, tapes and other means of electronic communication of the
Grantor, as well as the rights of the Grantor to recover such property from
third parties, receipts, customer lists, distribution lists, directories and
other similar property of the Grantor.
Any and all Charged property which is acquired, transformed or
manufactured after the date of this Deed shall be charged by the Hypothec, (i)
whether or not such property has been acquired in replacement of other Charged
property which may have been alienated by the Grantor in the ordinary course of
business, (ii) whether or not such property results from a transformation,
mixture or combination of any Charged property, and (iii) in the case of
securities, whether or not they have been issued pursuant to the purchase,
redemption, conversion or cancellation or any other transformation of the
charged securities and without the Trustee being required to register or
re-register any notice whatsoever, the property charged under the Hypothec being
the universality of the Grantor's present and future property.
5. AMOUNT OF THE HYPOTHEC
The amount for which the Hypothec is granted is a principal amount of
Seventy-five million dollars ($75,000,000) with interest thereon from the date
of this Deed at the rate of twenty-five percent (25%) per annum.
6. SECURED OBLIGATIONS
The Hypothec secures the payment of all sums due or to become due by the
Grantor under the Guaranty and/or pursuant to this Deed and the performance of
all obligations of the Grantor provided for under this Deed and/or under the
Guaranty.
Any future obligation hereby secured shall be deemed to be one in respect
of which the Grantor has once again obligated itself hereunder according to the
provisions of section 2797 of the Civil Code of Quebec.
-8-
7. ADDITIONAL PROVISIONS PERTAINING TO THE HYPOTHEC ON
RENTAL INCOME AND LEASES
With respect to any Immovables generating rentals and revenues:
7.1 LIST OF TENANTS
The Grantor shall provide the Trustee, before January 30th each year, with
a list containing the name of all tenants and details as to their leases as at
the immediately preceding December 31st. The Grantor shall obtain the prior
written consent of the Trustee with respect to the terms and conditions of any
new lease or the modifications or renewals of any existing leases provided
nothing herein shall compel the Trustee to waive any right it may have pursuant
to Article 1887 of the Civil Code of Quebec. Upon request of the Trustee, acting
reasonably, the Grantor shall further provide (i) a copy (or the original, when
requested by the Trustee) of all leases, present and future, relating to the
Immovables and any document and any useful information in connection therewith,
and (ii) a written acknowledgment by the tenants, present and future, of the
hypothec on rentals hereby created in the form required by the Trustee.
7.2 LEASES AND STATEMENT OF REVENUES
The Trustee may require that all leases be subject to its approval, that
they be subordinated to its rights hereunder and that the Grantor provide it on
a yearly basis with a statement of revenues and expenditures concerning the
Immovables.
7.3 RENTS, ANNUITIES AND REVENUES COLLECTION
The Trustee hereby authorizes the Grantor to collect all rents, annuities
and revenues which are rental income; however, the Grantor shall not collect in
advance more than one month of rent (other than as a security deposit) nor shall
it renounce to the payment of any rent. Such authorization may be revoked at any
time by the Trustee in accordance with what is provided for by law; in such a
case, the Trustee may exercise as it deems appropriate, to the exclusion of the
Grantor, all rights, claims, privileges and hypothecs (legal or conventional) of
the Grantor in order to maintain, renew, grant or terminate any lease, and to
further protect or collect rents, annuities and revenues from the Immovables.
7.4 COLLECTION
The Trustee shall have the right to bring an action for recovery of
rentals, impleading the Grantor, it being understood that the Trustee shall be
under no obligation to exercise such right and shall not be liable for any loss
or damage which may result from its failure to collect such rentals. The Trustee
shall have the right to deduct a ten per cent (10%) collection fee from any
rentals collected as well as any commission usually charged by the Trustee for
the collection of rentals, miscellaneous costs and expenses (copies, service
fees, legal counsel fees and others, opening files, surveillance fees, execution
fees or fees for cancellation of lease) incurred as a result of such collection.
-9-
8. ADDITIONAL PROVISIONS TO THE HYPOTHEC ON CLAIMS (OTHER THAN RENTALS)
8.1 AUTHORIZATION TO RECOVER
Save and except for claims resulting from an expropriation, those referred
to in Section 9 and paragraph 12.9 hereof and save for any other claims for
which collection is otherwise dealt with pursuant to any agreement entered into
with the Trustee or any other person, the Trustee hereby authorizes the Grantor
to recover all claims and other Charged property referred to in paragraph 4.5.
Such authorization may be revoked at any time by the Trustee by written notice
with respect to all or any part of the hypothecated claims, whereupon the
Trustee shall be free to itself effect such recovery and to exercise any of the
rights referred to in paragraph 8.2 below; the Grantor shall then remit to the
Trustee all records, books, invoices, bills, contracts, titles, papers and other
documents related to the claims. If, after such authorization is revoked (and
even if such revocation is not yet registered or delivered to the holders of
such claims), sums payable under such claims and property are paid to the
Grantor, it shall receive same as mandatary of the Trustee and shall remit same
to the Trustee promptly without the necessity of any demand to this effect.
8.2 RECOVERY
The Trustee may recover all claims and other Charged property referred to
in paragraph 4.5 in accordance with what is provided for by law; it may further
exercise any rights regarding such Charged property and more particularly, it
may grant or refuse any consent which may be required from the Grantor in its
capacity as owner of such Charged property, and shall not, in the exercise of
such right, be required to obtain the consent of the Grantor or serve the
Grantor any notice thereof, nor shall it be under any obligation to establish
that the Grantor has refused or neglected to exercise such rights, and it may
further grant delays, take or abandon any security, make arrangements with
debtors of any hypothecated claims, make compromises, grant releases and
generally deal at its discretion with matters concerning all Charged property
referred to in paragraph 4.5 without the intervention or consent of the Grantor.
9. ADDITIONAL PROVISIONS TO THE HYPOTHEC ON SECURITIES
9.1 TRUSTEE'S RIGHTS
The Trustee may, at any time after the occurrence of a Default, transfer
any securities or any part thereof into its own name or that of a third party
appointed by it so that the Trustee or its nominee(s) may appear as the sole
registered holder, in which case:
-10-
9.1.1 Voting rights
All voting rights and any other right attached to such securities
may be exercised by the Trustee (without any obligation of the Trustee to
do so) or on behalf of the Trustee.
9.1.2 Revenues, dividends and others
The Trustee shall collect revenues, dividends and capital
distributions and the Grantor shall cease to have any right thereto and
the Trustee may either hold same as Charged property or apply them in
reduction of the Secured Obligations.
9.2 PHYSICAL POSSESSION OF THE CERTIFICATES
The certificates representing the hypothecated securities may be kept in
the possession of the Trustee or in the possession of its agent.
The Grantor hereby irrevocably appoints any officer or employee of the
Trustee as its attorney with full power of substitution and authority to execute
such documents necessary to render effective the rights granted to the Trustee
pursuant to this Section 9.
10. ASSIGNMENT OF CLAIMS SUBJECT TO THE FINANCIAL ADMINISTRATION ACT
The Grantor hereby assigns to the Trustee by way of absolute assignment
all its present and future claims which are subject to Sections 67 and 68 of the
Financial Administration Act, as collateral and continuing security of all
Secured Obligations. The Trustee may, at any time, fulfill any of the
formalities required by law to make such transfer enforceable.
11. REPRESENTATIONS AND WARRANTIES
The Grantor hereby represents and warrants that:
11.1 LEGAL PERSON
It is a legal person (corporation).
11.2 HEAD OFFICE
The registered office or domicile of the Grantor is located in New
Brunswick.
-11-
11.3 INCORPORATION
It is duly incorporated and in good standing under the law of its
jurisdiction of incorporation.
11.4 POWERS
It has the capacity and the powers necessary to grant the Hypothec and to
bind itself as herein provided for; the execution of this Deed, the compliance
with its provisions and the performance of its covenants shall not entail or
result in any breach of or default under any other agreement or document to
which the Grantor is bound.
11.5 AUTHORIZATION OF THIS DEED
This Deed has been duly authorized by resolution or by any other necessary
action under its constating documents, by-laws or otherwise, in order to give it
full effect and to render its obligations fully enforceable, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting the enforcement of creditors' rights generally from time to time
in effect.
11.6 EXECUTION OF THIS DEED
This Deed has been executed by duly authorized persons.
11.7 BUSINESS OR FIRM NAMES
It uses no business or firm name other than those referred to in Schedule
"B" hereof.
11.8 TITLES OF OWNERSHIP AND EXISTING CHARGES
It is the unconditional and absolute owner of the Charged property, except
for future property, and all such property is free and clear of any prior claim,
hypothec, charge, security or security interest, seizure by garnishment, right
of resolution or repossession or of any other right whatsoever existing in
favour of persons other than the Trustee and other than any such right which
constitutes a Lien which is permitted in accordance with paragraphs (a) and
following of Section 412 of the Indenture.
11.9 SHAREHOLDER AGREEMENT
There exists no shareholders' agreement in connection with securities
which are charged under this agreement other than that certain shareholders
agreement originally made between Sport Maska Inc. (now known as ZMD Sports
Investments Inc.) and Gestion Pro Velo Inc. on April 8, 1993 and that certain
agreement between Sport Maska Inc. (now known as ZMD Sports Investments Inc.)
and Gestion Pro Velo Inc. dated October 9, 1992. There exists no restriction in
the articles or other constating documents of the Grantor regarding the
assignment or transfer of
-12-
securities which are charged hereunder other than the restrictions pertaining to
a closed company (as such term is defined in the Securities Act (Quebec)) and
those declared in writing to the Trustee.
11.10 LOCATION OF CHARGED PROPERTY
The Charged property referred to in paragraphs 4.4, 4.6, 4.7 and 4.10
hereinabove is located in the premises described in Schedule "C" hereof (a copy
of which Schedule "C" remains annexed hereto after having been acknowledged as
true and signed for identification by the representatives of the parties hereto
with and in the presence of the undersigned notary). The Trustee acknowledges
that items of Charged Property may, from time to time, be located at other
places in Quebec or Ontario when in transit to and from such premises.
11.11 DISPOSITION OF CHARGED PROPERTY
Except for property referred to in paragraph 4.4 hereinabove, it does not,
in the ordinary course of its business, sell property similar to or of the same
nature as the Charged property.
11.12 CLAIMS SUBJECT TO THE FINANCIAL ADMINISTRATION ACT
It has no claim falling under Section 10 hereof, other than those
indicated in Schedule "B" hereof.
11.13 CLAIMS SECURED BY REGISTERED HYPOTHEC
It has no claim which is secured by registered hypothec other than those
indicated in Schedule "B" hereof.
11.14 [NOT USED]
11.15 LITIGATION
It has knowledge of no suit or action against it, as to which there is a
reasonable likelihood of an adverse determination and which, if adversely
determined, would likely materially affect unfavorably the Charged property.
Grantor is not in violation of any law, or in default with respect to any
judgment, writ, injunction, decree, rule or regulation of any court or
governmental agency or instrumentality where such violation or default would
result in a Material Adverse Effect.
11.16 DEFAULT
It is not in default under the present Deed.
-13-
11.17 INTELLECTUAL PROPERTY
11.17.1 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 Grantor in any of the Collateral
(collectively, the "Third Party Agreements") are in good
standing;
11.17.2 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,
if any, set out in the Schedule "B" hereto and identified as
"pending applications", "cancelled/expunged registrations",
"abandoned applications" or "registrations no longer in name
of the Grantor";
11.17.3 the Grantor 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 free and clear of any liens, charges
and encumbrances except for any Lien which is permitted in
accordance with paragraph (a) and following of Section 412
of the Indenture;
11.17.4 the Collateral listed in Schedule "B", constitutes all of
the intellectual property rights now owned by the Grantor;
11.17.5 the Grantor has adopted, used continuously and currently is
using all of the Collateral; all licensees of the Collateral
(or all relevant portions thereof) from the Grantor as
licensor have been licensed properly to use such Collateral
and the Grantor 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
Grantor or its licensees; and proper ownership notices have
been used by the Grantor or its licensees;
-14-
11.17.6 nothing contained in this Deed or the Indenture, including,
without limitation, the granting of the Hypothec by the
Grantor in favour of the Trustee, constitutes a breach under
any Third Party Agreement.
12. COVENANTS
The Grantor hereby covenants:
12.1 INFORMATION
To give notice in writing to the Trustee:
- of any change whatsoever in its name and business names or in the
representations and warranties hereinabove mentioned in Section 11;
- of the name of any surety (guarantor) which may have guaranteed the
payment of claims hypothecated hereby and other Charged property mentioned
in paragraph 4.5 hereof;
- of the name of the insurers to the insurance contracts referred to herein;
- of the existence of any security, hypothec, prior claims or property right
retained or assigned securing claims and other Charged property referred
to in paragraph 4.5 hereof and, in such cases, to provide the Trustee,
upon demand, with satisfactory proof that such security or hypothec has
been registered or published in accordance with applicable law in order
for the rights of the Trustee to be set up against third persons;
- of the existence and details of any new claim arising hereafter which
alone or together with any other claims falling under Section 10 hereof is
material.
12.2 ADDITIONAL INFORMATION
To provide the Trustee with any information it may reasonably request with
respect to the Charged property or in order to determine whether or not the
Grantor is in compliance with its undertakings and obligations hereunder. The
Grantor shall inform the Trustee of any event, occurrence, or fact which might
have a Material Adverse Effect.
12.3 ACCOUNTING BOOKS
To keep, with respect to the Charged property, books, vouchers and other
documentation, as would a reasonable and diligent administrator, including a
list containing the names and addresses of all debtors of the hypothecated
claims, and keep them available for the Trustee to examine and obtain copies
thereof.
-15-
12.4 [NOT USED]
12.5 PRESERVATION OF THE HYPOTHEC
To perform all acts and execute all deeds and documents (including notices
of renewal) necessary to give full effect to the Hypothec and to ensure that it
is at all times fully opposable against third persons.
12.6 COMPENSATION, FEES AND EXPENSES
To pay to the Trustee from time to time all out-of-pocket costs and
expenses relating to this Deed and to the exercise of all rights resulting in
favour of the Trustee from such Deed as well as all out-of-pocket costs and
expenses incurred to set up the rights of the Trustee against third persons, and
all discharge fees (such costs and expenses shall include all reasonable fees
and expenses of consultants, agents or counsels retained by the Trustee); to
reimburse the Trustee for all out-of-pocket costs and expenses incurred by it
for the purpose of carrying out the Grantor's obligations or of exercising its
rights, all such costs and expenses bearing interest at an annual rate equal to
the base rate of National Bank of Canada which shall be in force from time to
time, plus 3%; National Bank of Canada's base rate shall be the one advertised
as its rate of reference for determining the interest rate on commercial loans
in Dollars granted in Canada; the obligations arising from this paragraph shall
not exceed twenty-five per cent (25%) of the nominal value of the Hypothec; the
repayment of such costs and expenses shall be secured by the Hypothec.
12.7 ENCUMBRANCES AND TITLE
Not to grant, at any time hereafter, any easement, right-of ways,
servitude or any other charges against the Charged property without having first
obtained the prior written consent of the Trustee, (save for public easements
granted for utility purposes which do not materially affect unfavourably the
Charged property) and to maintain the Charged property free and clear of any
conventional or legal hypothec, prior claim under Articles 2650 et seq. of the
Civil Code of Quebec, charge, security, garnishment, right of resolution or
repossession or any other right in favour of a person or persons other than the
Trustee, in each case other than in regard to a Lien which is permitted in
accordance with paragraphs (a) and following of Section 412 of the Indenture; to
preserve, warrant and defend its title against any claim, action or
contestation.
12.8 LIST OF PROPERTY IN STOCK AND BOOK DEBTS
To give the Trustee, from time to time, upon demand, a statement of the
value of its Property in stock and a list of its book debts shown in the reverse
order of their due date.
-16-
12.9 INSURANCE
The Grantor covenants to:
12.9.1 keep its insurable properties adequately insured at all
times by financially sound and reputable insurers;
12.9.2 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
Property 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 Grantor 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 Trustee, and in no event at
any time in an amount less than the replacement value of
the Charged Property;
12.9.3 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 Grantor or any of its subsidiaries, as
is customary with companies similarly situated and in the
same or similar businesses;
12.9.4 maintain business interruption and product liability
insurance to such extent as is customary with companies
similarly situated and in the same or similar businesses;
and
12.9.5 maintain such other insurance as may be required by law or
as may be reasonably requested by the Trustee for purposes
of assuring compliance with this paragraph 12.9;
it being understood that:
12.9.6 the Trustee is forthwith named as beneficiary of the
indemnities payable pursuant to these policies (excluding
those pertaining to civil liability) and the Grantor shall
cause the recording of this designation on the policies
which must also contain (i) a standard hypothecary
warranty clause approved by the Insurance Bureau of
Canada, preventing the invalidation of the policies
because of any reference or declaration contained in the
insurance application or omitted therefrom or any act or
negligence by the Grantor and (ii) provisions preventing
their cancellation or amendment to the detriment of the
-17-
Trustee, for any reason whatsoever, including failure to
pay the premiums, unless the omission or Default is not
remedied within thirty (30) days following receipt of
written notification thereof by the Trustee;
12.9.7 the insurance policies do not contain coinsurance clauses
save with the prior written agreement of the Trustee;
12.9.8 the Grantor will deliver to the Trustee all policies and
certificates of insurance maintained in accordance with
this paragraph 12.9;
12.9.9 in the event of any material loss or damage, the Grantor
shall immediately notify the Trustee of the loss incurred
or damage sustained. The indemnity, with respect to
property and damage insurance, shall be paid to the
Trustee to the extent of its interest. The Trustee may
apply any indemnity received by it to reduce any amount
owed to it hereunder and/or under the Guaranty. However,
the reduction shall be effective only once the Trustee has
informed the Grantor of such choice. The indemnity may
also be remitted to the insured to be used for
replacement, repair or reconstruction purposes, according
to terms and conditions pre-determined by the Trustee.
12.10 LOSS OR DAMAGE
To immediately notify the Trustee of any loss of, or substantial damage
to, any material portion of the Charged property and take all diligent steps to
ensure that the insurer pays the indemnity to the Trustee.
12.11 LEASE AND TRANSFER
Not to lease, sell, assign or otherwise alienate the Charged property, in
whole or in part, without the prior written consent of the Trustee, except for
property referred to in paragraph 4.4 above which may be leased or sold in the
ordinary course of business of the Grantor and except as expressly permitted in
the Indenture.
12.12 MAINTENANCE
The Grantor shall diligently pay the cost of any public utility services
and authorizes the Trustee to obtain from the related authorities the amounts
due to this account and any information relating to payment of such charges.
12.13 LOCATION OF PROPERTY
Not to change the location of the Charged property unless it obtains the
prior written consent of the Trustee.
-18-
12.14 TITLE
To ensure that its right of ownership in any Charged property in the hands
or possession of any third party remains opposable against third parties and,
accordingly, that such right has been registered or published, if registration
or publication is required by law for the purpose of opposability against third
parties.
12.15 LESSORS
If any of the Charged property is located in premises leased pursuant to a
lease executed before January 1, 1994 (and where the registration of a legal
hypothec has been perfected) or if it were moved to premises leased as
aforesaid, to obtain a full cession of priority in favour of the rights of the
Trustee under the present Hypothec and to immediately notify, following the
execution of the present Deed or immediately following the moving into the
leased premises, the lessor of such premises, in writing, of the present
Hypothec and to deliver to the Trustee within three (3) days after such
notification proof of same.
12.16 USE AND DESTINATION
Not to change the use or destination of the Charged property unless it
obtains the prior written consent of the Trustee.
12.17 VALUE
To protect and use the Charged property and to carry on its business so as
to preserve its value.
12.18 INTELLECTUAL PROPERTY
The Grantor shall:
12.18.1 use its trade-marks, trade-xxxx registrations, trade-xxxx
applications, trade names, business names, trade styles,
logos, service marks, and all other forms of business
identifiers (hereinafter the "Trademarks") only on goods
of at least as high quality as the goods on which the
Grantor 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;
12.18.2 take or cause to be undertaken all steps necessary to
protect the Grantor's interest in and to maintain the
Collateral in good standing, including without limitation,
to pursue diligently all applications through to
registration and to renew all registrations and pay all
-19-
maintenance fees as applicable, as well as attending to
the filing of all required documentation;
12.18.3 vigorously protect, preserve and maintain all of the
Grantor'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 Grantor);
12.18.4 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
Hypothec in the Collateral;
12.18.5 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;
12.18.6 if at any time or from time to time, the Grantor (i)
becomes aware of any existing Collateral of which the
Grantor has not previously informed the Trustee, (ii)
obtains rights to any new Collateral, or (iii) becomes
entitled to the benefit of any Collateral not identified
in Schedule "B", then the Grantor shall promptly notify
the Trustee and regardless of when the Grantor so notifies
the Trustee, Schedule "B" hereto, as applicable,
automatically shall be modified and amended to include any
such Collateral and the provisions of this Deed
automatically shall apply thereto;
12.18.7 maintain up to date records regarding the Collateral;
12.18.8 provide the Trustee with a written report on each
anniversary of this Deed regarding the status of the
Collateral;
12.18.9 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 Collateral 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;
-20-
12.18.10 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 ensure generally that the
Collateral is and remains valid, in good standing and
enforceable.
12.19 RELEASE OF COLLATERAL
The Hypothec shall not be discharged prior to the indefeasible payment in
full of all amounts owing hereunder and under the Guaranty and the performance
of all obligations of the Grantor hereunder and under the Guaranty.
13. EVENTS OF DEFAULT
The Grantor shall be in default hereunder without notice or other
formality and the security hereby constituted shall immediately become
enforceable, if it fails to pay any amount due or to become due under the
Guaranty, upon demand and in any of the following events ("DEFAULT"):
13.1 [NOT USED]
13.2 [NOT USED]
13.3 [NOT USED]
13.4 CROSS DEFAULT
An Event of Default (as defined in the Indenture) occurs under the
Indenture on the part of SLM International, Inc. or under the Guaranty on the
part of the Grantor.
13.5 CHARGED PROPERTY
If the Grantor fails at any time to maintain, preserve or protect all
property material to the conduct of its businesses and keep such property in
good repair, working order and condition (reasonable wear and tear excepted) or
fails from time to time to make, or cause to be made, all needful and proper
repairs, renewals, additions, improvements and replacements thereto which are
necessary in order that the business carried on in connection therewith may be
properly conducted in all material respects at all times.
-21-
13.6 OTHER AGREEMENTS
The Grantor fails to pay any indebtedness or to perform any of the
Grantor's obligations required to be paid or performed under any other agreement
creating a charge against the Charged property.
13.7 INSOLVENCY AND BANKRUPTCY
The Grantor ceases to carry on its enterprise or an important part
thereof, becomes insolvent or becomes subject to proceedings, makes an
assignment or files a notice to file a proposal under any law relating to
insolvency, bankruptcy, reorganization or to arrangements with creditors or any
petition in bankruptcy is taken against the Grantor.
13.8 [NOT USED]
13.9 LEGAL EXISTENCE
The Grantor loses its legal existence; an order is issued or a resolution
is adopted for its winding-up or liquidation.
13.10 HYPOTHECARY RIGHTS
Any of the Charged property is subject to a hypothecary right from another
creditor, a partition procedure, a "sale of an enterprise" as it is understood
under sections 1767 and ssq. of the Civil Code of Quebec or an expropriation,
except to the extent or under circumstances permitted in accordance with the
Indenture.
14. TRUSTEE'S RECOURSES IN CASE OF DEFAULT
14.1 PAYMENT OF INDEBTEDNESS
In case the Hypothec shall have become enforceable, on account of one or
the other of the events mentioned in Section 13 or paragraphs 13.1 through 13.10
above, the Trustee may, in its discretion, at any time or times, demand payment
of all or any part of the Secured Obligations and the same shall forthwith
become immediately due and payable to the Trustee. Any payment then made by the
Grantor shall be deemed to have been made in discharge of its obligations
hereunder or under the Guaranty, and any money so received by the Trustee shall
be applied as provided for in paragraphs 14.13 and 15.4 hereof.
14.2 EXERCISE OF RIGHTS
In case the Hypothec shall have become enforceable and the Grantor shall
have failed to pay the Trustee, on demand, the outstanding amount due under the
Guaranty together with any other amounts secured hereunder, the Trustee may in
its discretion, through its officers, agents or attorneys, exercise any right of
action provided for under this Deed (and more particularly under this Section
14) or by law
-22-
or in equity including without limitation any of the hypothecary rights provided
for under sections 2748 to 2794 of the Civil Code of Quebec and any rights or
remedies provided to secured parties under any applicable personal property
security legislation.
14.3 RIGHTS OF THE TRUSTEE
Whatever hypothecary rights the Trustee elects to exercise or whatever
rights or recourses the Trustee elects to exercise either pursuant to the law of
any other jurisdiction or in equity, the following provisions, to the greatest
extent permitted by applicable law, shall apply:
14.3.1 the Trustee may, in its discretion, at the Grantor's expense:
14.3.1.1 pursue the transformation of the Charged property or
any work in process or unfinished goods comprised in
the Charged property and complete the manufacture or
processing thereof or proceed with any operations to
which such property is submitted by the Grantor in
the ordinary course of its business and acquire
property for such purposes;
14.3.1.2 alienate or dispose of any Charged property which
may be obsolete, may perish or is likely to
depreciate rapidly;
14.3.1.3 use for its benefit all information obtained while
exercising its rights;
14.3.1.4 perform any of the Grantor's obligations or
covenants hereunder;
14.3.1.5 exercise any right attached to the Charged property
on such conditions and in such manner as it may
determine, acting reasonably, including without
restriction the grant of licences whether general or
special on an exclusive or non exclusive basis, of
any intellectual property charged hereunder;
14.3.1.6 for the exercise of any of its rights, utilize
without charge the Grantor's plant, equipment,
machinery, process, information, records, computer
programs and intellectual property; for the purposes
hereof the Grantor shall, at the request of the
Trustee, concurrently with or after the execution of
these presents execute a power of attorney with
respect to intellectual property (in
-23-
conformity with paragraph 15.9 hereof) in favour of
the Trustee;
14.3.1.7 borrow monies or lend monies and, in such cases, the
monies borrowed or lent by the Trustee shall bear
interest at the rate then obtained or charged by the
Trustee for such borrowing or loan; these monies
shall be reimbursed by the Grantor on demand and,
until they have been repaid in full, such monies and
interest thereon shall be secured by the present
Hypothec and be paid in priority of any other sums
secured hereunder;
14.3.1.8 maintain or repair, restore or renovate, begin or
complete any construction work on or related to the
Charged property;
14.3.2 the Trustee shall exercise its rights in good faith in order
to attempt to reduce the Secured Obligations, in a reasonable
manner, taking into account all circumstances;
14.3.3 the Trustee may, directly or indirectly, purchase or
otherwise acquire the Charged property;
14.3.4 the Trustee, when exercising its rights, may waive any right
of the Grantor, with or without consideration therefor;
14.3.5 the Trustee shall have no obligation to make an inventory of
the Charged property, to take out any kind of insurance with
respect thereof or to grant any security whatsoever;
14.3.6 the Trustee shall not be bound to continue to carry on the
Grantor's enterprise or to make any productive use of the
Charged property or to maintain such property in operating
condition;
14.3.7 the Grantor shall, upon request of the Trustee, move the
Charged property and render it available to the Trustee unto
premises designated by the Trustee and which, in its opinion,
shall be more suitable in the circumstances.
14.4 GRANTOR'S REMEDY
If the Grantor remedies the default mentioned in any prior notice of
exercise of hypothecary right, the Grantor shall, as required by law, pay all
reasonable fees incurred by the Trustee by reason of the default; these fees
shall include without limitation the administrative fees of the Trustee, the
legal fees of its legal advisers and fees paid to experts.
-24-
14.5 TAKING IN PAYMENT
If the Trustee elects to exercise its right to take in payment the Charged
property and the Grantor requires that the Trustee instead sell by itself or
under judicial authority, the Charged property on which such right is exercised,
the Grantor hereby acknowledges that the Trustee shall not be bound to abandon
its recourse of taking in payment unless, prior to the expiry of the time period
allocated for surrender, the Trustee (i) has been granted a security
satisfactory to it, to ensure that the proceeds of the sale of the Charged
property will be sufficient to pay the Guaranty in full, (ii) has been
reimbursed for all reasonable costs and expenses incurred in connection to this
Deed, including all fees of consultants and legal counsel and (iii) has been
advanced the necessary sums for the sale of said Charged property; the Grantor
further acknowledges that the Trustee alone is entitled to select the type of
sale it may wish to conduct or have conducted.
14.6 SURRENDER OF CHARGED PROPERTY
The Grantor will, to the greatest extent permitted by applicable law, be
deemed to have surrendered the Charged property which is in the possession of
the Trustee, or of a third party on its behalf, if the Trustee has not, within
the delays determined by law or by a tribunal to surrender, received written
notice from the Grantor to the effect that it intends to contest the exercise of
the hypothecary recourse set forth in the prior notice.
14.7 EVALUATION
Where the Trustee sells the Charged property itself, to the greatest
extent permitted by applicable law, it shall not be required to obtain any prior
evaluation by a third party.
14.8 SALE OF CHARGED PROPERTY
The Trustee, to the greatest extent permitted by applicable law, may elect
to sell the Charged property after giving such prior notices as may be required
by law in which event (i) the sale may be made with legal warranty given by the
Grantor or with complete or partial exclusion of such warranty; (ii) the sale
may be made cash or with a term or under such reasonable conditions determined
by the Trustee; and (iii) upon failure of payment of the purchase price, the
Trustee may resiliate or resolve such sale and such Charged property may then be
resold.
14.9 USE OF PREMISES
In order to exercise any of its rights, the Trustee may use the premises
located in the Immovables.
-25-
14.10 SEVERAL ADMINISTRATORS
Where several administrators are involved hereunder, the parties, to the
greatest extent permitted by applicable law, waive the application of sections
1332 to 1338 inclusively of the Civil Code of Quebec.
14.11 APPOINTMENT OF AGENT
The Trustee, to the greatest extent permitted by applicable law, may
appoint an agent or a receiver and manager (collectively a "Receiver") over all
or any portion of the Charged property by written instrument in accordance with
paragraph 14.12 or may apply to a court for the appointment of a Receiver to
take possession of all or such part of the Charged property as the Trustee shall
designate, with such duties, powers and obligations as the court making the
appointment shall confer, and the Grantor hereby irrevocably consents to the
appointment of such Receiver.
14.12 APPOINTMENT OF RECEIVER
The Trustee, to the greatest extent permitted by applicable law, may with
or without taking possession, by instrument executed by the Trustee, appoint a
Receiver of all or any part of the Charged property and of the rents, income and
profits therefrom and may from time to time by similar instrument remove any
Receiver and appoint another in its place and upon the appointment of any such
Receiver or Receivers from time to time the following provisions, to the
greatest extent permitted by applicable law, shall apply:
14.12.1 every such Receiver shall be vested with all of the rights,
powers, remedies and discretions of the Trustee set forth in paragraphs
14.3.1.1 to 14.3.1.8, inclusively, including, without limitation, the
power to sell, for cash or credit or part cash and part credit, lease or
dispose of all or any part of the Charged property, whether by public
auction or by private sale or lease in such manner and on such terms as it
may determine in its absolute discretion acting reasonably and to do all
acts, exercise all discretions and make all determinations of the Trustee
described therein;
14.12.2 every such Receiver shall have the power to borrow money on
the security of the Charged property in priority to the security created
by this Deed for the purpose of the preservation, maintenance, completion
or protection of the Charged property or any part thereof or for making
any replacements thereof or improvements and additions thereto or for
carrying on all or any part of the business of the Grantor relating to the
Charged property, and in so doing the Receiver may issue certificates
designated as "Receiver's Certificates" which may be payable either to
order or to bearer and may be payable at such time or times as the
Receiver may think expedient and shall bear interest at such rates of
interest as the Receiver may consider reasonable, and the amounts from
time to time payable pursuant to such Receiver's Certificates shall form a
charge upon the Charged property in priority to the security created by
this Deed;
-26-
14.12.3 the Trustee may from time to time fix the remuneration of
every such Receiver who shall be entitled to deduct the same out of the
receipts derived from or comprising part of the Charged property or the
proceeds thereof;
14.12.4 every such Receiver shall be deemed to be an agent of the
Grantor and not of the Trustee for the purposes of:
(i) carrying on and managing the business and affairs of the
Grantor, and
(ii) establishing liability for all of the acts or omissions
of the Receiver while acting as such and the Trustee shall not be in
any way responsible for any acts or omissions on the part of any
such Receiver, its officers, employees and agents,
the Grantor hereby irrevocably authorizing the Trustee to give
instructions to the Receiver relating to the performance of its powers and
discretions as set out herein;
14.12.5 the appointment of every such Receiver by the Trustee or
anything which may be done by any such Receiver or the removal of any such
Receiver or the termination of any such receivership shall not have the
effect of constituting the Trustee a mortgagee in possession in respect of
the Charged property or any part thereof;
14.12.6 no such Receiver shall be liable to the Grantor to account
for moneys other than moneys actually received by such Receiver in respect
of the Charged property and every such Receiver shall apply such moneys so
received in the manner provided in paragraph 14.13; and
14.12.7 the Trustee may at any time and from time to time terminate
any such receivership by notice in writing executed by the Trustee to any
such Receiver;
14.13 IMPUTATION OF PAYMENTS
Except as herein otherwise expressly provided, to the greatest extent
permitted by applicable law, all monies arising from any sale or realization of
the Charged property, in whole or in part, whether under any sale by the Trustee
or by judicial process or otherwise, shall be applied, together with any other
monies then in the hands of the Trustee and available for such purpose, in the
first place to pay or reimburse the Trustee's fees, charges, expenses,
borrowing, advances and all other moneys provided or obtained by it or at its
request in or about the execution of its powers and rights with respect to these
presents, with interest thereon as herein provided, and the residue of the said
moneys shall be applied on account of Secured Obligations or, at the option of
the Trustee, may be held unappropriated in a
-27-
collateral account in order to provide for payment of any charge ranking prior
to the Hypothec.
The Grantor shall only be credited with amounts received by the Trustee in
cash from the possession, sale, lease or other disposition of, or realization
upon, the Charged property as and when such cash is received.
14.14 LIABILITY OF GRANTOR
The Grantor shall remain liable to the Trustee for any deficiency
remaining after the application of the proceeds of any sale, lease or
disposition of the Charged property by the Trustee.
15. GENERAL PROVISIONS
15.1 ADDITIONAL SECURITY
The Hypothec created hereby is in addition to and not in substitution of
or in replacement for any other hypothec or security held by the Trustee and
shall not impair the Trustee's rights of compensation and set-off.
15.2 INVESTMENTS
The Trustee, to the greatest extent permitted by applicable law, may, at
its entire discretion, invest any monies or instruments received or held by it
pursuant of this Deed or deposit same in a non-interest bearing account without
having to comply with any legal provisions concerning the investment of property
of others.
15.3 SET-OFF
Provided the Secured Obligations are due and exigible or that the Trustee
is entitled to declare them owing and exigible, the Trustee may, to the greatest
extent permitted by applicable law, compensate and set-off any Secured
Obligations with any and all amounts then owed to the Grantor by the Trustee in
any capacity, whether due or not, and the Trustee shall then be deemed to have
exercised such right to compensate and set-off as at the time the decision was
taken by it even though the entry therefor is made on the Trustee's record
subsequent thereto.
15.4 IMPUTATION OF PAYMENTS
The Trustee, to the greatest extent permitted by applicable law, shall be
at liberty to impute any amounts collected in the exercise of its rights prior
to or after any Default as it may choose without having to comply with any
provisions of the Civil Code of Quebec concerning the imputation of payments.
-28-
15.5 DELAYS
The Trustee, to the greatest extent permitted by applicable law, may grant
delays, take any security or renounce thereto, accept compromises, grant
quittances and releases and generally deal, with any matters related to the
Charged property, the whole without limiting the rights of the Trustee and
without reducing the liability of the Grantor.
15.6 CONTINUING SECURITY
The Hypothec shall be a continuing security and shall remain in full force
and effect despite the repayment from time to time, of the whole or of any part
of the Secured Obligations; it shall remain in full force until the execution of
a final release by the Trustee.
15.7 TIME OF ESSENCE
The mere lapse of time provided for the Grantor to perform its obligations
or the expiry of any term therefor shall automatically create a default
hereunder, without the Trustee being obliged to serve any notice or prior notice
upon the Grantor.
15.8 CUMULATIVE RIGHTS
The rights and recourses of the Trustee hereunder are cumulative and do
not exclude any other rights and recourses which the Trustee might have. No
omission or delay on the part of the Trustee in the exercise of any right shall
have the effect of operating as a waiver of such right. The partial or sole
exercise of a right or power will not prevent the Trustee from exercising
thereafter any other right or power. The Trustee may exercise its right
hereunder without any obligation to exercise any right against any other person
liable for payment of the Secured Obligations and without having to enforce any
other security granted with respect to the Secured Obligations.
15.9 IRREVOCABLE POWER OF ATTORNEY
The Trustee is hereby designated as the irrevocable attorney of the
Grantor with full powers of substitution for the purposes hereof or for the
purpose of carrying out any and all acts and executing any and all deeds,
proxies or other documents which the Trustee may deem useful in order to
exercise its rights or which the Grantor neglects or refuses to execute or to
carry out, provided however that, if a Default has not occurred and is not
continuing, the Grantor shall have been requested by the Trustee to do so by a
three (3) Business Days prior written notice.
15.10 PERFORMANCE
The Trustee may, at its entire discretion, perform any of the Grantor's
liabilities under this Deed. It may then immediately request payment of any
expense
-29-
incurred in doing so, including interest at the rate provided for in paragraph
12.6 above, and such repayment is secured by the Hypothec.
15.11 DELEGATION
The Trustee may, at its entire discretion, appoint any person or persons
for the purpose of exercising any of its rights, actions or the performance of
any covenant resulting from this Deed or law or equity; in such case, the
Trustee may supply such person with any information it holds relating to the
Grantor or to the Charged property.
15.12 TITLE DEEDS
All titles of ownership, land surveys, certificates of location and other
documents related to the Immovables shall upon request be remitted to the
Trustee who is entitled to keep them until a final release and discharge of this
Hypothec is obtained.
15.13 WAIVER
Where the Grantor has taken an Immovable in payment for an hypothecated
claim ranking prior to the present Hypothec, the Grantor waives its right to
take advantage of the provisions of section 2771 of the Civil Code of Quebec.
15.14 LIABILITY
The Trustee shall not be liable for material injuries or damages resulting
from its fault, or the fault of its agents, officers, consultants, unless such
fault is gross or intentional.
15.15 SUCCESSORS
The rights hereby conferred upon the Trustee shall benefit all its
successors and nominees.
15.16 NOTICES
Any notice to the Grantor shall be delivered to its address set out above
or to any other address in Canada of which the Trustee has been given written
notice; any notice to the Trustee shall be delivered to the Trustee's branch
located at the address set out above.
15.17 RECEIPT OF NOTICE
A notice given hereunder shall be deemed to have been received by the
other party on the date of its delivery, when delivered on a Business Day, or on
the third (3rd) Business Day after it has been mailed, if sent prepaid by
certified or registered mail, or the day of its transmission, if transmitted by
facsimile on or
-30-
before 3:00 p.m. on a Business Day or on the Business Day next following the day
of transmission if transmitted by facsimile after 3:00 p.m.
15.18 SEVERABILITY
Every provision of this Deed is and shall be independent of the other and
in the event that any part of this Deed is declared invalid, illegal or
unenforceable, then the remaining terms, clauses and provisions of this Deed
shall not be affected by such declaration and all the remaining clauses of this
Deed shall remain valid, binding and enforceable.
15.19 TRUST PROVISIONS
Notwithstanding the references herein to The Bank of New York (or its
successor hereunder, if any) as a "trustee" or to it acting as trustee, no trust
within the meaning of Chapter II of Title Six of Book Four of the Civil Code of
Quebec is intended to be or is created or constituted hereby. In addition, the
provisions of Title Seven of Book Four of the Civil Code of Quebec shall not
apply to any administration by the Trustee hereunder.
16. INTERCREDITOR AGREEMENT
This Deed including the right of the Trustee to exercise remedies
hereunder, shall be subject to the terms and conditions of the Intercreditor
Agreement. Notwithstanding the foregoing or any reference to the Intercreditor
Agreement, the Grantor agrees and acknowledges that neither this Deed nor the
Intercreditor Agreement provides such Grantor with any rights as a third party
beneficiary or otherwise.
17. GOVERNING LAW
This Deed shall be governed by and construed in accordance with the laws
of the Province of Quebec, including the rules relating to conflicts of laws
provided for thereunder.
18. AMENDMENTS
No amendment may be made to this Deed unless signed by the Grantor and the
Trustee.
19. FORMAL DATE
This Deed may be referred to as bearing formal date of the first (1st) day
of April, Nineteen hundred and ninety-seven (1997), notwithstanding the actual
date of its execution.
-31-
20. ENGLISH LANGUAGE
The parties hereto confirm that the present agreement has been drawn up in
the English language at their request. Les parties aux presentes confirment que
la presente convention a ete redigee en langue anglaise a leur demande.
WHEREOF ACT:
DONE AND PASSED in the City of Montreal, Province of Quebec, on this eleventh
day (11th) of April, Nineteen hundred and ninety-seven (1997), under number five
thousand seven hundred and ninety-nine (5799) of the original of the minutes of
the undersigned notary.
AND after the parties had declared to have taken cognizance of these presents
and to have exempted the said Notary from reading them or causing them to be
read, the said duly authorized officers of the Grantor and the Trustee
respectively have signed these presents, all in the presence of the said Notary
who has also signed.
SLM TRADEMARK ACQUISITION
CANADA CORPORATION
per: /s/ XXXXX XXXXXXX
--------------------------
Xxxxx Xxxxxxx
THE BANK OF NEW YORK
per: /s/ XXXXX X. XXXXXXXX
--------------------------
Xxxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXXXX
--------------------------
Mtre Xxxxxxx Xxxxxxx, Notary
TRUE COPY OF THIS ORIGINAL REMAINS IN MY OFFICE.
/s/ SPECIMEN
--------------------------
SCHEDULE "B"
B.1 Securities (par. 4.6)
Gestion CCM (1983) Inc. / CCM Holdings (1983) Inc.
B.2 Trade-Marks and Other Intellectual Property (par. 4.8)
None
B.3 Business or Firm names (par.11.7 )
3166694 Canada Inc.
B.4 Claims subject to the Financial Administration Act (par 11.12)
None
B.5 Claims Secured by registered hypothecs (par. 11.13)
None
***** ***** *****
The foregoing is Schedule "B" annexed to the Deed of hypothec granted by SLM
Trademark Acquisition Canada Corporation. in favour of The Bank of New York
before Mtre Xxxxxxx Xxxxxxx, Notary, on the eleventh (11th) day of April
Nineteen hundred and ninety-seven (1997) under number five thousand seven
hundred and ninety-nine (5799) (__________________ ) of his minutes annexed
thereto and recognized as true and signed by the representatives therein
mentioned with and in the presence of the undersigned Notary.
XXXXX X. XXXXXXXX
------------------------------
XXXXX XXXXXXX
------------------------------
XXXXXXX XXXXXXX
------------------------------
Mtre Xxxxxxx Xxxxxxx, Notary
TRUE COPY
/s/ SPECIMEN
------------------------------
SCHEDULE "A"
[NOT USED]
SCHEDULE "C"
(par. 11.10)
Location of Charged Property
C.1 Charged Property Located in Quebec
0000 Xxxxx-Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxx Xx-Xxxxxxx, Xxxxxx
X0X 0X0
C.2. Charged Property Located Outside of Quebec
Address(es)
None
C. 3. Property Intended to be Used in More Than One Province or Jurisdiction
Address(es), Provinces or States
None
***** ***** *****
The foregoing is Schedule "C" annexed to the Deed of hypothec granted by SLM
Trademark Acquisition Canada Corporation in favour of The Bank of New York
before Mtre Xxxxxxx Xxxxxxx, Notary, on the eleventh (11th) day of April
Nineteen hundred and ninety-seven (1997) under number five thousand seven
hundred and ninety-nine (5799______________) of his minutes and recognized as
true and signed by the representatives therein mentioned with and in the
presence of the undersigned Notary.
XXXXX X. XXXXXXXX
------------------------------
XXXXX XXXXXXX
------------------------------
XXXXXXX XXXXXXX
------------------------------
Mtre Xxxxxxx Xxxxxxx, Notary
TRUE COPY
/s/ SPECIMEN
------------------------------
