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EXHIBIT 4.15
STERLING PULP CHEMICALS, LTD.
as Corporation
in favour of
CIT BUSINESS CREDIT CANADA INC.
as Holder
and
THE LENDERS
(as defined herein)
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DEMAND DEBENTURE
JULY 11, 2001
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STIKEMAN ELLIOTT
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TABLE OF CONTENTS
ARTICLE 1
ACKNOWLEDGEMENT OF INDEBTEDNESS
Section 1.1 Acknowledgement..............................................................................1
ARTICLE 2
SECURITY
Section 2.1 Terms Incorporated by Reference..............................................................1
Section 2.2 Grant of Security............................................................................1
Section 2.3 Corporation's Dealings with Charged Premises.................................................3
Section 2.4 Scope of Security............................................................................4
Section 2.5 Protective Disbursements.....................................................................4
Section 2.6 Attachment...................................................................................5
ARTICLE 3
ENFORCEMENT
Section 3.1 Enforcement..................................................................................5
Section 3.2 Remedies.....................................................................................5
Section 3.3 Additional Rights............................................................................6
Section 3.4 Receiver's Powers............................................................................6
Section 3.5 Dealing with the Charged Premises............................................................7
Section 3.6 Standards of Sale............................................................................8
Section 3.7 Dealings by Third Parties....................................................................8
Section 3.8 No Right of Set-Off..........................................................................8
Section 3.9 No Merger or Novation........................................................................9
Section 3.10 Presentation of Debenture....................................................................9
Section 3.11 Appointment of Attorney......................................................................9
Section 3.12 Crystallization of Floating Charge...........................................................9
ARTICLE 4
GENERAL
Section 4.1 Discharge....................................................................................9
Section 4.2 Reimbursement of Holder's Expenses..........................................................10
Section 4.3 Waiver of Covenants.........................................................................10
Section 4.4 Further Assurances..........................................................................10
Section 4.5 Successors and Assigns......................................................................10
Section 4.6 Gender and Number...........................................................................10
Section 4.7 Headings, etc...............................................................................11
Section 4.8 Severability................................................................................11
Section 4.9 Governing Law...............................................................................11
Section 4.10 Right of Consolidation......................................................................11
SCHEDULES
SCHEDULE "A" REAL PROPERTY
(i)
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DEMAND DEBENTURE
STERLING PULP CHEMICALS, LTD.
(a corporation incorporated under the laws of the Province of Ontario)
PRINCIPAL SUM: SEVENTY-FIVE MILLION CANADIAN DOLLARS
(Cdn $75,000,000.00)
ISSUE DATE: July 11, 2001
DUE: ON DEMAND
INTEREST RATE: Twenty-five (25%) per cent per annum
ARTICLE 1
ACKNOWLEDGEMENT OF INDEBTEDNESS
SECTION 1.1 ACKNOWLEDGEMENT.
Sterling Pulp Chemicals, Ltd. (the "CORPORATION"), a corporation
incorporated and existing under the laws of the Province of Ontario, for value
received, acknowledges itself indebted and promises to pay ON DEMAND, to or to
the order of CIT Business Credit Canada Inc., as agent (CIT Business Credit
Canada Inc. and any subsequent holder or holders of this debenture being
sometimes referred to as the "HOLDER") on behalf of itself and for the benefit
of the Lenders (as defined in the Financing Agreement dated July 11, 2001
between the Corporation and the Holder) the principal sum of Seventy-Five
Million Dollars (Cdn.$75,000,000.00) in lawful money of Canada on presentation
and surrender of this debenture at the offices of the Holder at 000 Xxxxx'x Xxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0 or at such other place as the Holder
may designate by notice in writing to the Corporation, and in the meantime to
pay interest in like money on the principal sum monthly from this date at the
rate per annum of twenty-five per cent (25%) on the last day of each month,
before and after demand and after judgment, with interest on overdue interest at
the same rate, the first such payment of interest to become due and be paid on
the last day of the month immediately following this date or such earlier day as
such principal sum shall be repaid in full.
ARTICLE 2
SECURITY
SECTION 2.1 TERMS INCORPORATED BY REFERENCE.
Terms defined in the Personal Property Security Act (Ontario) (as
amended from time to time, the "PPSA") and used in this debenture shall have the
same meanings.
SECTION 2.2 GRANT OF SECURITY.
Subject to Section 2.4, as security for the due payment of all moneys
payable under this debenture, the Corporation:
(a) grants, assigns, conveys, transfers, mortgages, pledges and
charges, as and by way of a fixed and specific mortgage,
charge and pledge, to and in favour of the Holder for itself
and on behalf of the Lenders and otherwise grants to the
Holder for itself and on behalf of the Lenders a security
interest in, all of the Corporation's right, title and
interest in and to all of its property, assets, rights and
undertaking, real and personal, movable or immovable, tangible
and intangible, legal or
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equitable, of whatsoever nature and kind, wheresoever located,
both present and future including, without limitation:
(i) all real and immovable property, both freehold and
leasehold, and other interests in such property
(collectively, the "REAL PROPERTY") wheresoever
situate, now owned or hereafter acquired by the
Corporation including, without limitation, the real
property and leased property described in Schedule
"A" and all rights, leases, licences, easements,
rights-of-way, profits a prendre, appurtenances,
privileges, concessions, claims, works, tenements,
hereditaments and interests in real property with
respect to the Real Property (and all renewals,
extensions and amendments or substitutions thereof)
and all other facilities relating to or required for
use in connection with the Real Property, and all
buildings, erections, structures, improvements,
underground facilities, power, fuel and water supply,
storage, waste disposal, roads and other
transportation facilities and fixed plant, machinery
and equipment presently situated on or under the Real
Property or which may at any time hereafter be
constructed or brought or placed on or under the Real
Property or used in connection with the Real
Property;
(ii) all furniture, goods, chattels, accessories,
fixtures, equipment, machinery, tools, apparatus,
vehicles, milling, processing, service, storage and
other related infrastructures and other tangible
personal property of every kind and description now
owned or hereafter acquired, wherever situate;
(iii) all inventory including goods held for sale, lease or
resale, goods furnished or to be furnished to third
parties under contracts of lease, consignment or
service, goods which are raw materials or work in
process, goods used in or procured for packing and
materials used or consumed in the business of the
Corporation;
(iv) all intangibles of whatever kind in which the
Corporation now or hereafter has any interest
including, without limitation, all security
interests, goodwill, demands and choses in action,
licenses and other contractual benefits or rights and
all trade marks, trade xxxx registrations and pending
trade xxxx applications, patents and pending patent
applications and copyrights and industrial designs
and other intellectual property now or hereafter
owned by the Corporation;
(v) all studies, plans, blueprints, designs, records,
files, charts, drawings, specifications, manuals,
bills of lading and other documents of title, whether
negotiable or otherwise;
(vi) the proceeds of any insurance or expropriation
payable or due in respect of any damage to or taking
of all or any part of the Charged Premises (as
hereinafter defined), the proceeds of any business
interruption insurance and any property in any form
derived directly or indirectly from any dealings with
all or any part of the Charged Premises or that
indemnifies or compensates for the loss, destruction
or damage to all or any part of the Charged Premises;
(vii) all debts, accounts, claims, moneys and choses in
action now owned or hereafter acquired, including,
without limitation, all
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instruments, securities, chattel paper, bills, notes
and other documents in respect of such debts,
accounts, claims, moneys or choses in action;
(viii) all authorizations, orders, permits, approvals,
grants, licences, consents, rights, franchises,
privileges, certificates, judgments, writs,
injunctions, awards, determinations, directions,
decrees, demands or the like issued or granted by law
or by rule or regulation of any office, board, agency
or department, governmental or otherwise, now or
hereafter issued or granted to it;
(ix) all documents, certificates, policies, agreements,
invoices, letters and papers relating to the property
described in Section 2.2(a)(i)-(viii) inclusive or
otherwise; and
(x) substitutions and replacements of and increases,
additions and, where applicable, accessions to the
property described in Section 2.2(a)(i)-(ix)
inclusive and all proceeds thereof; and
(b) grants, mortgages and charges, as and by way of a floating
charge, to and in favour of the Holder for itself and on
behalf of the Lenders and otherwise grants to the Holder for
itself and on behalf of the Lenders a security interest in,
all of its undertakings, properties and assets, including Real
Property, both present and future, of every nature and kind
and wherever situate, except such of its undertakings,
properties and assets as are validly subject to the fixed and
specific mortgages, charges, pledges and security interests
granted pursuant to Section 2.2(a). The floating charge shall
in no way hinder or prevent the Corporation, until the
Security (as hereinafter defined) shall have become
enforceable, from disposing of or dealing with the subject
matter of the floating charge in the ordinary course of
business and for purposes of carrying on the same; provided
that such action is not in breach of any specific provision
of, or covenant in, this debenture.
(In this debenture, the grants, mortgages, charges and security interests
constituted by this debenture are called the "SECURITY" and the subject matter
of the Security is called the "CHARGED PREMISES".) The Security shall be
effective whether or not any monies or liabilities so secured shall be advanced
or incurred before or after or at the same time as this debenture is issued and
shall remain effective until such time as this debenture is discharged as
provided in Section 4.1 irrespective of whether, at any prior time, there may
have been no indebtedness, liabilities or obligations (direct, indirect,
absolute, contingent or otherwise) of the Corporation to the Holder and the
Lenders outstanding.
SECTION 2.3 CORPORATION'S DEALINGS WITH CHARGED PREMISES.
The Corporation shall not, without the prior written agreement of the
Holder: (i) sell, transfer, assign, exchange, lease, release or abandon or
otherwise dispose of all or any part of the Charged Premises except for Charged
Premises consisting of inventory sold or leased at full value in the ordinary
course of its business and for the purpose of carrying on the same; or, (ii)
permit, create, assume, suffer or cause the registration of any debt, lien,
charge, mortgage, debenture, hypothec, pledge, security agreement, security
interest, or any other encumbrance or privilege whatsoever upon, against or with
respect to any or any part of the Charged Premises subsequent to the granting of
this debenture. Except with the prior written agreement of the Holder, any
proceeds of such sale or lease shall be held by the Corporation in trust for the
Holder for itself and on behalf of the Lenders and, at the
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request of the Holder, shall be paid immediately to the Holder for itself and on
behalf of the Lenders.
SECTION 2.4 SCOPE OF SECURITY.
(1) The Security shall not extend or apply to the last day of the term of
any lease or sublease of real property or agreement therefor, now held
or hereafter acquired by the Corporation but the Corporation shall
stand possessed of any such last day upon trust to assign and dispose
of it as the Holder may direct.
(2) To the extent that an assignment to the Holder for itself and on behalf
of the Lenders of amounts payable and other proceeds arising under or
in connection with any agreement, license, permit or quota of the
Corporation (each, a "RESTRICTED ASSET") is prohibited by the terms
thereof, the Corporation shall hold as trustee all proceeds arising
under or in connection with such Restricted Asset in trust for the
Holder for itself and on behalf of the Lenders on the following basis:
(i) until the Security has become enforceable, the
Corporation shall be entitled to receive all such
proceeds; and
(ii) whenever the Security has become enforceable, all
rights of the Corporation to receive such proceeds
shall cease, the Corporation shall at the request of
the Holder take all such actions to collect and
enforce payment and other rights arising under the
Restricted Asset in accordance with the instructions
of the Holder and all such proceeds arising under or
in connection with the Restricted Asset shall be
immediately paid over to the Holder for itself and on
behalf of the Lenders.
The Corporation shall not exercise any rights of set-off with respect
to amounts payable under or in connection with any Restricted Asset and
shall use its best efforts to ensure that no other party to the
Restricted Asset shall exercise any rights of set-off against the
amount payable thereunder. The Corporation shall use its best efforts
to obtain the consent of each other party to the Restricted Asset to
the assignment of the Restricted Asset to the Holder for itself and on
behalf of the Lenders in accordance with this debenture and shall use
its best efforts to ensure that all agreements entered into on and
after the date hereof expressly permit assignments of the benefits of
such agreements as collateral security to the Holder for itself and on
behalf of the Lenders in accordance with the terms of this debenture.
(3) The Security shall not extend to consumer goods.
SECTION 2.5 PROTECTIVE DISBURSEMENTS.
If the Corporation fails to perform any of its covenants in this
debenture or otherwise, then the Holder may, in its absolute discretion, perform
any covenant capable of being performed by it and, if the covenant requires the
payment or expenditure of money, the Holder may make the payment but shall be
under no obligation to do so. All sums so paid or expended by the Holder shall
be immediately payable by the Corporation, shall bear interest at the rate set
forth in this debenture and shall be secured by this debenture, having the
benefit of the Security in priority to the indebtedness evidenced by this
debenture. No such performance or payment shall relieve the Corporation from any
default under this debenture or the consequences of such default.
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SECTION 2.6 ATTACHMENT.
(1) With respect to the personal property hereby secured, the Corporation
and the Holder hereby acknowledge that (i) value has been given; (ii)
the Corporation has rights in the Charged Premises (other than
after-acquired Charged Premises); (iii) except as contemplated by
Section 2.4, they have not agreed to postpone the time of attachment of
the Security; and (iv) the Corporation has received a copy of this
debenture.
(2) The Corporation agrees to promptly inform the Holder in writing of the
acquisition by the Corporation of any Charged Premises which are not
adequately described herein, and the Corporation agrees to execute and
deliver at its own expense from time to time amendments to this
debenture or the schedules hereto or additional security or schedules
as may be required by the Holder in order that the Security shall
attach to any Charged Premises. The Corporation shall promptly inform
the Holder in writing of any other location at which the Charged
Premises may in future be located.
ARTICLE 3
ENFORCEMENT
SECTION 3.1 ENFORCEMENT.
If the Corporation fails to repay the principal amount, interest and
other amounts owing under this debenture on demand or otherwise when the same
shall become due and payable or if the Corporation breaches any other agreement
or covenant it has given to the Holder or the Lenders, the Security shall become
enforceable against the Corporation.
SECTION 3.2 REMEDIES.
(1) Whenever the Security has become enforceable, the Holder may realize
upon the Charged Premises and enforce its rights by:
(a) entry into possession of the Charged Premises;
(b) proceedings in any court of competent jurisdiction for the
appointment of a receiver (which term as used in this
debenture includes a receiver and manager) of all or any part
of the Charged Premises;
(c) proceedings in any court of competent jurisdiction for sale or
foreclosure of all or any part of the Charged Premises;
(d) filing of proofs of claim and other documents to establish its
claims to the Charged Premises in any proceeding relating to
the Corporation;
(e) the appointment by instrument in writing of a receiver of all
or any part of the Charged Premises and removal or replacement
from time to time of any such receiver;
(f) the sale or lease of all or any part of the Charged Premises;
and
(g) any other remedy or proceeding authorized or permitted in this
debenture or otherwise by law or equity.
(2) Such remedies may be exercised from time to time separately or in
combination and are in addition to, and not in substitution for, any
other rights of the Holder or the Lenders however created. The Holder
shall not be bound to exercise any right or remedy and the exercise of
any right or remedy shall be without prejudice to any other rights of
the Holder or the Lenders including the right to claim for deficiency.
The taking of any action
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or proceeding or refraining from so doing, or any other dealings with
any other security for the monies secured by this debenture shall not
release or affect the Security.
SECTION 3.3 ADDITIONAL RIGHTS.
(1) In addition to the rights of the Holder and the Lenders set forth in
Section 3.2, the Holder may, for itself and on behalf of the Lenders
whenever the Security has become enforceable:
(a) require the Corporation, at the Corporation's expense, to
assemble the Charged Premises which is not the Real Property
at the locations of the Real Property or elsewhere as
reasonably requested by the Holder;
(b) require the Corporation, by notice in writing, to disclose to
the Holder the location or locations of the Charged Premises
and the Corporation agrees to make such disclosure when so
required by the Holder;
(c) repair, process, modify, complete or otherwise deal with the
Charged Premises, and prepare for the disposition of the
Charged Premises, whether on the premises of the Corporation
or otherwise;
(d) carry on all or any part of the business of the Corporation
and, to the exclusion of all others including the Corporation,
enter upon, occupy and use all or any of the premises,
buildings and other property of or used by the Corporation for
such time as the Holder sees fit, free of charge, and neither
the Holder nor the Lenders shall be liable to the Corporation
for any act, omission or negligence in so doing or for any
rent, charges, depreciation or damages incurred in that
connection;
(e) borrow for the purpose of carrying on the business of the
Corporation or for the maintenance, preservation or protection
of the Charged Premises and mortgage, charge or grant a
security interest in the Charged Premises, whether or not in
priority to the Security, to secure repayment; and
(f) demand, commence, continue or defend any judicial or
administrative proceedings for the purpose of protecting,
seizing, collecting, realizing or obtaining possession or
payment of the Charged Premises, and give good and valid
receipts and discharges and compromise or give time for the
payment or performance of all or any part of the accounts or
any other obligation of any third party to the Corporation.
SECTION 3.4 RECEIVER'S POWERS.
(1) Any receiver appointed by the Holder shall be vested with the rights
and remedies which could have been exercised by the Holder in respect
of the Corporation or the Charged Premises and such other powers and
discretions as are granted in the instrument of appointment and any
supplemental instruments. The identity of the receiver, any replacement
and any remuneration shall be within the sole and unfettered discretion
of the Holder.
(2) Any receiver appointed by the Holder shall act as agent for the Holder
and the Lenders for the purposes of taking possession of the Charged
Premises, but otherwise and for all other purposes (except as provided
below), as agent for the Corporation. The receiver may sell, lease, or
otherwise dispose of Charged Premises as agent for the Corporation or
as agent for the Holder and the Lenders as the Holder may determine in
its discretion. The Corporation agrees to ratify and confirm all
actions of the receiver acting as agent for the Corporation, and to
release and indemnify the receiver in respect of all such actions.
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(3) The Holder, in appointing or refraining from appointing any receiver,
shall not incur liability to the receiver, the Corporation or otherwise
and shall not be responsible for any misconduct or negligence of such
receiver.
(4) All moneys from time to time received by the receiver may be applied as
follows (i) first, in discharge of all operating expenses and other
outgoings affecting the Charged Premises, (ii) second, in keeping in
good standing all charges and liens on the Charged Premises having
priority over the Security, (iii) third, in payment of the remuneration
and disbursements of the receiver, (iv) fourth, in payment to the
Holder for itself and on behalf of the Lenders of the moneys payable
hereunder, and (v) the balance, if any, shall be paid to the
Corporation or as a court of competent jurisdiction may otherwise
direct.
SECTION 3.5 DEALING WITH THE CHARGED PREMISES.
(1) The Holder and the Lenders shall not be obliged to exhaust their
recourse against the Corporation or any other person or against any
other security they may hold before realizing upon or otherwise dealing
with the Charged Premises in such manner as they may consider
desirable.
(2) The Holder and the Lenders may grant extensions or other indulgences,
take and give up securities, accept compositions, grant releases and
discharges and otherwise deal with the Corporation and with other
persons, sureties or securities as they may see fit without prejudice
to the obligations and liability of the Corporation or the rights of
the Holder and the Lenders in respect of the Charged Premises.
(3) The Holder and the Lenders shall not be (i) liable or accountable for
any failure to collect, realize or obtain payment in respect of the
Charged Premises, (ii) bound to institute proceedings for the purpose
of collecting, enforcing, realizing or obtaining payment of the Charged
Premises or for the purpose of preserving any rights of any persons in
respect of the Charged Premises, (iii) responsible for any loss
occasioned by any sale or other dealing with the Charged Premises or by
the retention of or failure to sell or otherwise deal with the Charged
Premises, or (iv) bound to protect the Charged Premises from
depreciating in value or becoming worthless, save, in each case, as may
be provided by law.
(4) The Holder and the Lenders shall have no obligation to keep
identifiable Charged Premises in its possession consisting of fungible
personal property.
(5) The Corporation hereby expressly authorizes and directs the Holder,
whenever the Security has become enforceable, to collect, demand, xxx
for, enforce, adjust, settle, recover and receive all of the debts and
moneys comprising the Charged Premises, in the name of the Corporation
or in the Holder's own name, and to give valid and binding receipts and
discharges therefor and in respect thereof, the whole to the same
extent and with the same effect as if the Holder were the absolute
owner thereof and without regard to the state of accounts between the
Corporation and the Holder and the Lenders. The Holder shall only be
accountable for proceeds when the same are actually received in cash,
notwithstanding that the Holder may have transferred title to or
possession of the debts or moneys comprising the Charged Premises or
any part thereof and may have taken back a debt instrument, security or
other obligation therefor. The Holder may, after the Security shall
have become enforceable, (i) notify any person obligated on an account
or on chattel paper or any obligor on an instrument to make payment
thereunder to the Holder whether or not the Corporation was theretofore
making collections thereon; and (ii) assume control of any proceeds
arising from the Charged Premises.
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SECTION 3.6 STANDARDS OF SALE.
(1) Without prejudice to the ability of the Holder and the Lenders to
dispose of the Charged Premises in any manner which is commercially
reasonable, the Corporation acknowledges that whenever the Security has
become enforceable, and except as required by law:
(a) the Charged Premises may be disposed of in whole or in part;
(b) the Charged Premises may be disposed of by public auction,
public tender or private contract, with or without advertising
and without any other formality;
(c) any assignee of the Charged Premises may be a customer of the
Holder or the Lenders;
(d) a disposition of the Charged Premises may be on such terms and
conditions as to credit or otherwise as the Holder, in its
sole discretion, may deem advantageous; and
(e) the Holder may establish an upset or reserve bid or price in
respect of the Charged Premises.
(f) the Holder or any of the Lenders, jointly or severally, may
become a purchaser at any sale of the Charged Premises whether
made under the power of sale herein contained or pursuant to
foreclosure or other judicial proceedings; and
(g) the Holder may rescind or vary any contract of sale that may
have been entered into and re-sell with or under any of the
powers conferred herein or adjourn any such sale from time to
time.
SECTION 3.7 DEALINGS BY THIRD PARTIES.
(1) No person dealing with the Holder or its agent or a receiver shall be
required to determine (i) whether the Security has become enforceable,
(ii) whether the powers which the Holder or its agent or a receiver is
purporting to exercise have become exercisable, (iii) whether any money
remains due upon the Security, (iv) the necessity or expediency of the
stipulations and conditions subject to which any sale or lease is made,
(v) the propriety or regularity of any sale or any other dealing by the
Holder or its agent or a receiver with the Charged Premises, or (vi)
how any money paid to the Holder has been applied.
(2) Any purchaser of all or any part of the Charged Premises shall hold the
Charged Premises absolutely, free from any claim or right of whatever
kind, including any equity of redemption, of the Corporation, which it
specifically waives (to the fullest extent permitted by law) as against
any such purchaser and all rights of redemption, stay or appraisal
which the Corporation has or may have under any rule of law now
existing or hereafter adopted.
SECTION 3.8 NO RIGHT OF SET-OFF.
The principal, interest and other monies and liabilities secured by
this debenture shall be paid when due by the Corporation without regard to any
equities existing between the Corporation and any other parties including,
without limitation, the Holder and the Lenders, and without regard to any right
of set-off or cross-claim or of any other claim or demand of the Corporation
against the Holder or any Lender or otherwise.
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SECTION 3.9 NO MERGER OR NOVATION.
Neither the taking of any judgment nor the exercise of any power of
seizure or sale shall operate to extinguish the liability of the Corporation to
pay the monies secured, nor shall the same operate as a merger of any covenant
or affect the right of the Holder and the Lenders to interest at the specified
rate, nor shall the acceptance of any payment or other security constitute or
create any novation, and it is further agreed that the taking of a judgment
under any covenant shall not operate as a merger of such covenant in the
judgment or affect the Holder's and the Lenders' right to interest.
SECTION 3.10 PRESENTATION OF DEBENTURE.
So long as CIT Business Credit Canada Inc. is the holder of this
debenture for itself and on behalf of the Lenders, the Corporation, to the
fullest extent permitted by law, hereby waives presentation of this debenture
for, and surrender of this debenture against, payment. In any other case, the
holder of this debenture shall be required to present and surrender this
debenture against payment at such place designated by such holder in writing to
the Corporation.
SECTION 3.11 APPOINTMENT OF ATTORNEY.
Provided the Security shall have become enforceable, the Corporation
hereby irrevocably appoints the Holder (and any officer thereof) as attorney of
the Corporation (with full power of substitution) to exercise in the name of and
on behalf of the Corporation any of the Corporation's right (including the right
of disposal), title and interest in and to the Charged Premises including the
execution, endorsement and delivery of any agreements, documents, instruments,
absolute assignments, securities, deeds, conveyances, documents of title and
chattel paper and any notices, consents, receipts, assignments or verifications
of the accounts and the Holder and its nominees or transferees are hereby
empowered to exercise all rights and powers and to perform all acts of ownership
with respect to the Charged Premises to the same extent the Corporation might
do. All acts of any such attorney are hereby ratified and approved, and such
attorney shall not be liable for any act, failure to act or any other matter or
thing in connection therewith, except for its own gross negligence or wilful
misconduct. The appointment and power of substitution, being coupled with an
interest, are irrevocable and shall not terminate upon the bankruptcy,
dissolution, winding-up or insolvency of the Corporation.
SECTION 3.12 CRYSTALLIZATION OF FLOATING CHARGE
The floating charge created by Section 2.2(b) shall become a fixed
charge immediately upon the earlier of:
(a) the Holder giving notice to that effect to the Corporation; or
(b) the Holder taking any step to accelerate or demand payment of
any amount owing under this debenture or giving notice of its
intention or taking any steps to enforce the Security.
ARTICLE 4
GENERAL
SECTION 4.1 DISCHARGE.
The Holder is the person entitled to, on its own behalf and on behalf
of the Lenders, receive the money payable under this debenture and to give a
discharge of this debenture. The Security shall be discharged upon, but only
upon, full payment of all moneys secured and performance of all obligations of
the Corporation to the Holder and the Lenders. Upon discharge of the Security
and at the request and expense of the Corporation, the Holder shall execute and
deliver to the Corporation such releases and discharges as the Corporation may
reasonably require.
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SECTION 4.2 REIMBURSEMENT OF HOLDER'S EXPENSES.
The Corporation shall pay to the Holder immediately on demand all
costs, charges and expenses incurred by the Holder and the Lenders in connection
with the preparation, issuance and enforcement of this debenture, the
preservation and protection of the Charged Premises, the preservation and
enforcement of the Security or the realization of this debenture on the Charged
Premises, including, without limitation, all reasonable legal fees, court costs,
receiver's or agent's remuneration and other reasonable expenses incurred in
connection with the recovery or enforcement of payment of any moneys owing
hereunder whether by realization or otherwise and expenses of taking possession
of, repairing, protecting, insuring, preparing for disposition, realizing,
collecting, selling, transferring, delivering or obtaining payment of Charged
Premises. All such sums, together with interest at the rate set forth in this
debenture until paid, shall be added to the indebtedness secured by this
debenture and shall also be secured, together with all other indebtedness, by
this debenture.
SECTION 4.3 WAIVER OF COVENANTS.
The Holder may waive any breach by the Corporation of any of the
provisions of this debenture or any failure by the Corporation in the observance
or performance of any covenant or condition required to be observed or performed
by the Corporation, grant extensions of time or other indulgences to, accept
compositions from, or grant releases and discharges to, the Corporation in
respect of the Charged Premises or otherwise deal with the Corporation and with
the Charged Premises and other security held by the Holder for itself and on
behalf of the Lenders, all as the Holder may see fit; provided that no such
waiver or act by the Holder shall be binding on the Holder and the Lenders or
shall extend to or be taken in any manner to affect any subsequent breach or
failure or the rights resulting from such breach or failure.
SECTION 4.4 FURTHER ASSURANCES.
The Corporation shall from time to time, whether before or after the
Security shall have become enforceable, do all such acts and things and execute
and deliver all such deeds, transfers, assignments and instruments as the Holder
may reasonably require for (i) protecting the Charged Premises, (ii) perfecting
the Security, and (iii) exercising all powers, authorities and discretions
conferred upon the Holder. The Corporation shall, from time to time after the
Security has become enforceable, do all such acts and things and execute and
deliver all such deeds, transfers, assignments and instruments as the Holder may
require for facilitating the sale of the Charged Premises in connection with its
realization.
SECTION 4.5 SUCCESSORS AND ASSIGNS.
This debenture shall be binding upon the Corporation, its successors
and assigns, and shall enure to the benefit of the Holder and the Lenders and
their successors and assigns. This debenture may be assigned by the Holder
without the consent of, or notice to, the Corporation, to such person, firm or
corporation as the Holder may determine and, in such event, such person, firm or
corporation shall be entitled to all of the rights and remedies of the Holder as
set forth in this debenture or otherwise. In any action brought by an assignee
to enforce any such right or remedy, the Corporation shall not assert against
the assignee any claim or defence which the Corporation now has or hereafter may
have against the Holder or any of the Lenders.
SECTION 4.6 GENDER AND NUMBER.
Any reference in this debenture to gender shall include all genders and
words importing the singular number only shall include the plural and vice
versa.
13
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SECTION 4.7 HEADINGS, ETC.
The division of this debenture into articles, sections and subsections
and the insertion of headings are for convenient reference only and are not to
affect its interpretation.
SECTION 4.8 SEVERABILITY.
If any provision of this debenture shall be deemed by any court of
competent jurisdiction to be invalid or void, the remaining provisions shall
remain in full force and effect.
SECTION 4.9 GOVERNING LAW.
In respect of each parcel of Real Property charged hereby, and in
respect of the corresponding Charged Premises in each case, this debenture will
be governed by and construed in accordance with the laws of the province where
such Real Property and Charged Premises are situate. Without prejudice to the
ability of the Holder to enforce this debenture in any other proper
jurisdiction, the Corporation irrevocably submits and attorns to the
non-exclusive jurisdiction of the courts of such province. To the extent
permitted by applicable law, the Corporation irrevocably waives any objection
(including any claim of inconvenient forum) that it may now or hereafter have to
the venue of any legal proceeding arising out of or relating to this debenture
in the courts of such province.
SECTION 4.10 RIGHT OF CONSOLIDATION.
The common law right of consolidation shall apply to this debenture
notwithstanding Section 31 of the Property Law Act of British Columbia or any
similar statutory provision in force from time to time.
SECTION 4.11 RIGHTS PRIOR TO ENFORCEMENT.
So long as the Security has not become enforceable pursuant to the
terms hereof, the Corporation shall have quiet possession of the Charged
Premises.
IN WITNESS WHEREOF the Corporation has executed this debenture.
STERLING PULP CHEMICALS, LTD.
By:
--------------------------------------
Authorized Signing Officer
By:
--------------------------------------
Authorized Signing Officer
14
SCHEDULE "A"
REAL PROPERTY
LOCATION LEGAL DESCRIPTION
-------- -----------------
000 Xxx Xxxx Xxxx ALL AND SINGULAR that certain parcel or tract of land
Suite 200 and premises situate, lying and being in the City of
Toronto, Ontario Toronto (formerly the City of Etobicoke, in the
M9B 6C7 Municipality of Metropolitan Toronto) and Province of
(leased) Ontario and being composed of those parts of Blocks G
and H on Plan M-1046 (Borough of Etobicoke) registered
in the Land Registry Office for the Land Titles Division
of Toronto (No. 66) and being designated as Parts
1,2,3,4 and 5 on Plan 66R-6942.
Being part of Parcel Xxxx-0, Xxxxxxx X-0000 Leasehold.
0 Xxxxx Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx Parcel X-0, Xxxxxxx X-0000 Freehold, being Block "F" on
M9B 1R1 Plan M-1046, save and except Unit 1, Expropriation Plan
(small portion leased) X-00, Xxxx xx Xxxxxxx, being the whole of P.I.N.
Secondly
Parcel X-0, Xxxxxxx X-000 Freehold, being part of Block
"B" on Plan M-955, designated as Parts 8,9,10 and 11 on
Plan X-0000, Xxxx xx Xxxxxxx, being the whole of P.I.N.
07553-0007 (LT).
000 Xxxxxxxx Xxxxxx Xxxxxxxx xx Xxxxx Xxxxxxxxx:
Xxxxx Xxxxxxxxx, X.X.
X0X 0X0 (a) Parcel Identifier: 000-000-000
(2 fees simple titles; 1 leasehold Lot L (Reference Plan 2659) of that portion of the
title; 1 license for water lots) foreshore of Burrard Inlet lying in front of District
Xxx 000
Xxxxx 0
Xxx Xxxxxxxxxxx Xxxxxxxx
(x) Parcel Identifier: 000-000-000
Lot 3 (Explanatory Plan 5078)
Except: Part subdivided by Plan LMP 50161
Block X
District Xxx 000
Xxxxx 0
Xxxx 0000
0000 Xxxx Xxxx Xxxx ALL AND SINGULAR that certain parcel or tract of land
X.X. Xxx 00000 situate, lying and being in the City of Thunder Bay, in
Thunder Bay, Ontario the District of Thunder Bay, in the Province xx Xxxxxxx,
X0X 0X0 and being composed of those parts of the lands patented
(leased) to the Grand Trunk Pacific Railway Company by patent
dated the 22nd day of January, 1906, and registered in
the Land Registry Office for Thunder Bay as Number
15
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762 for the Township of Neebing shown as Part 1 and Part
2 on a Plan of Survey dated the 12th day of December,
1978 and deposited in the said Registry Office as Plan
Number 55R-3695.
Contractors Road (off Resources Road) Plan 9122986, Lot A containing 6.335 Hectares (15.65
Box 848 Acres) more or less. Excepting thereout all mines and
Xxxxx Xxxxxxx, Xxxxxxx xxxxxxxx
X0X 0X0
(leased) - and -
Plan 9122986, Lot B
Excepting thereout all mines and minerals
Area: 1.697 Hectares (4.19 Acres) more or less.
Grand Prairie, Alberta
