THIS LOAN AGREEMENT made as of the 31st day of July, 1998.
BETWEEN:
RADIANT ENERGY CORPORATION,
a corporation amalgamated under the laws of
Canada (hereinafter called the "Company")
OF THE FIRST PART
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PROCESS TECHNOLOGIES, INC.,
a corporation incorporated under the laws of
the State of New York (hereinafter called the "Guarantor")
OF THE SECOND PART
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XXXXXXX X. XXXX, a resident of the State of New York;
HEPTAGON INVESTMENTS LTD., a British Virgin Island
corporation; E&M MACHINERY, INC., a corporation
incorporated under the laws of the State of New York;
RRSP ACCOUNT #005727; XXXXXXX XXXXXXX, a resident of
the Province of Ontario and HARA ENTERPRISES LIMITED,
a corporation incorporated under the laws of the
Province of Ontario (hereinafter collectively called
the "Lenders")
OF THE THIRD PART
WHEREAS the Company has agreed to borrow from the Lenders and the
Lenders have agreed to lend to the Company the following amounts (collectively,
the "Loans"):
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From Xxxxxxx X. Xxxx U.S.$10,000.00
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From Heptagon Investments Ltd. Cdn.$50,000.00
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From E&M Machinery, Inc. U.S.$15,000.00
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From Hara Enterprises Limited Cdn.$50,000.00
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From Xxxxxxx Xxxxxxx Cdn.$25,000.00
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From RRSP Account #005727 Cdn.$138,000.00
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AND WHEREAS the Guarantor is a wholly-owned subsidiary of the
Company;
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AND WHEREAS the Company's obligations under this Agreement shall be
secured by, among other things, a guarantee of the Company's obligations by the
Guarantor supported by a charge on substantially all of the assets owned by the
Guarantor;
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration mutually given and received, the receipt and sufficiency of which
are hereby acknowledged, it is hereby covenanted, agreed and declared as
follows:
ARTICLE 1
INTERPRETATION
1.01 Definitions
In this Agreement, the recitals hereto, unless there is something in the
subject matter or context inconsistent therewith, the following terms or
expressions shall have the following meanings, respectively:
"this Agreement", "these presents", "hereto", "herein", "hereof" and
similar expressions refer to this loan agreement and not to any particular
Article, Section or other portion hereof;
"Affiliate" has the meaning ascribed thereto in the Business Corporations
Act (Canada);
"business day" means a day which is not a Saturday, Sunday, or civic or
statutory holiday in the Municipality of Metropolitan Toronto;
"Company" means Radiant Energy Corporation and any successor company which
shall have complied with the provisions of Article 8 hereof;
"Company's Auditors" or "Auditors of the Company" means the chartered
accountant or firm of accountants duly appointed as auditor or auditors of
the Company from time to time in accordance with the provisions of the
Business Corporations Act (Canada);
"Counsel" means a barrister and solicitor or a firm of barristers and
solicitors (who may be counsel to the Company) retained by the Company or
retained by the Trustee and acceptable to the Trustee, acting reasonably;
"Debentures" means the 6% Redeemable Convertible Secured Debentures issued
by the Company on May 22, 1997;
"Directors" or "directors" means the Board of Directors of the Company
and/or the Guarantor, as the case may be, for the time being, and
reference to action by the Directors shall mean action by the Directors as
a board or by any committee thereof duly empowered to take such action;
"Environmental Laws" means all federal, provincial, state, municipal,
county, local and other laws, statutes, codes, ordinances, by-laws, rules,
regulations, policies, guidelines, certificates, approvals, permits,
consents, directions, standards, judgements, orders and
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other authorizations, as well as common law, civil and other jurisprudence
or authority, in each case domestic or foreign, having the force of law at
any time relating in whole or in part to any Environmental Matters and any
permit, order, directions, certificate, approval, consent, registration,
licence or other authorization of any kind held or required to be held in
connection with any Environmental Matters;
"Environmental Matters" means:
(a) condition or substance, heat, energy, sound, vibration,
radiation or odour that may affect any component of the earth
and its surrounding atmosphere or affect human health or any
plant, animal or other living organism; and
(b) any waste, toxic substance, contaminant or dangerous good or
the deposit, release or discharge of any thereof into any
component of the earth and its surrounding atmosphere;
"Guarantee" has the meaning ascribed thereto in Article 5;
"Guarantor" means Process Technologies, Inc., a company incorporated under
the laws of the State of New York and a wholly-owned subsidiary of the
Company;
"Patent" means United States Letters Patent No. 5,417,389 issued May 23,
1995 entitled, "Methods and Apparatus For DeIcing an Aircraft by Infrared
Radiation";
"person" includes any individual, corporation, body corporate,
partnership, trust, trustee, unincorporated organization or other judicial
entity, any government agency or instrumentality and words importing
persons have a similar meaning;
"prime rate" for any day means the reference rate of interest reported,
quoted or announced and commonly known as the prime rate of interest by
and of Bank of Hong Kong for Canadian dollar commercial loans made in
Canada, in all cases adjusted automatically and without the necessity of
any notice to the Company upon each reported, quoted or announced change
to such rate;
"Security" means any mortgage, charge, hypothec, pledge, assignment, lien,
security interest or other encumbrance, including any sale and repurchase
or sale and lease back arrangement or any other arrangement of similar
effect;
"Shares" means common shares in the issued and outstanding capital of the
Company or any securities into which such common shares may be exchanged,
reclassified, reorganized or otherwise converted;
"Subsidiary" has the meaning ascribed thereto in the Business Corporations
Act (Canada);
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1.02 Number and Gender
Words importing the singular number only shall include the plural and vice
versa and words importing the masculine gender shall include the feminine gender
and words importing persons shall include firms, associations and corporations
and vice versa.
1.03 Choice of Language
The parties hereto have required that this Agreement and all documents and
notices related thereto and/or resulting therefrom be drawn up in English. Les
parties aux presentes ont exige que la presente convention ainsi que tous les
documents et avie qui s'y rattachent et/ou qui en decouleront soient rediges en
langue anglaise.
1.04 Business Day
Whenever any payment is due or required to be made or any other action is
required to be taken under this Agreement on or as of a day that is not a
business day, that payment must be made and the other action must be taken on or
as of the next day that is a business day.
1.05 Headings
The division of this Agreement into Articles, Sections, Subsections and
clauses, the provision of a table of contents and the insertion of headings are
for convenience of reference only and shall not affect the construction or
interpretation of this Indenture or the Debentures.
1.06 Time of the Essence
Time shall be of the essence in all respects hereof and of the Debentures.
1.07 Applicable Law
This Indenture and the Debentures shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as Ontario contracts.
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1.08 Currency
Unless otherwise stated, all dollar amounts referred to in this Indenture
are denominated in Canadian dollars.
ARTICLE 2
THE LOANS
2.01 Limit of Borrowed Funds
The aggregate principal amount of the Loans which may be issued hereunder
is limited to Three Hundred Thousand Dollars ($300,000) in lawful money of
Canada.
2.02 Interest and Maturity
The Loans shall mature on November 30, 1998, shall be repayable as set
forth in Article 3, shall be secured as set forth in Article 5 and shall bear
interest from their date of advance to and including November 30, 1998 (or their
earlier payment and discharge), at the rate of 9% per annum as well after as
before maturity, default or judgement (with interest on overdue interest at the
said rate) payable on the date of maturity. All Loans shall rank equally
rateably without discrimination, preference or priority but shall rank in
priority with other present or future indebtedness of the Company other than the
Debentures. The Lenders and all persons claiming through or under them
respectively.
2.03 Option of Lender as to Place of Payment
(1) Except as otherwise herein provided, all sums which may at any time
become payable whether at maturity or on redemption or otherwise on account of
any Loan or interest thereon shall be payable to the Lenders at the addresses
indicated in Section 15.02
(2) As the interest on the Loans matures (except interest payable at
maturity which may be paid upon presentation and surrender of loan for payment),
at least three (3) business days prior to each date on which interest on the
Loans becomes due, the Company shall forward a cheque or bank draft in an amount
equal to the aggregate amount of interest payable on all then outstanding Loans
(3) The principal amount of the Loans and interest thereon and all sums
which may at any time become payable thereon, whether at maturity or otherwise,
shall be payable in the same currency as the currency in which the Loans were
advanced to the Company.
2.04 Computation of Interest
The Loans shall bear interest from their date of advance or from the last
interest payment date to which interest shall have been paid or made available
for payment on such Loan,
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whichever shall be the later. Interest shall be computed on the basis of a year
of 365 or 366 days, as applicable.
ARTICLE 3
REPAYMENT OF LOANS
3.01 Repayment
The Company when not in default hereunder shall have the right at its
option to repay, on not less than ten (10) days' notice, either in whole at any
time or in part from time to time before maturity, any portion of the principal
amount of the Loans, together in all cases with interest on the principal amount
of the Loans accrued and unpaid to the date fixed for repayment (the amount,
including interest, at which any loan may be repaid on any date being herein
sometimes referred to as the "redemption price" of the Loan).
3.02 Partial Repayment of the Loans
(1) In case less than all of the principal amount of the Loans for the
time being outstanding are at any time to be repaid, the Loans shall be repaid
pro rata among the Lenders; provided, however, that in such case the Loans shall
only be repaid in denominations of $100 principal amount and whole multiples
thereof.
(2) Unless the context otherwise requires, the word "Loan" or "Loans" as
used in this Article 3 shall be deemed to include that part of the principal
amount of any Loan which shall have become subject to repayment pursuant to the
provisions hereof.
3.03 Notice of Repayment
Notice of intention to repay any of the Loans shall be given by letter or
circular sent in the manner provided in Section 15.02 hereof and shall be mailed
or delivered not less than ten (10) and not more than sixty (60) days prior to
the date fixed for repayment; provided always that the non-receipt of any such
letter or circular by any of the Lenders shall not invalidate or otherwise
prejudicially affect the repayment of such Loans.
ARTICLE 4
[Intentionally deleted.]
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ARTICLE 5
GUARANTEE AND SECURITY
5.01 Guarantee of Loans
(1) Subject to the terms of the Debenture, the Guarantor covenants with
the Lenders that the Company will pay and the Guarantor hereby unconditionally
guarantees the due and punctual payment of the principal amount of, and interest
on (including, in case of default, interest on the amount in default), each Loan
when and as the same becomes due and payable whether at their respective due
dates on repayment or on maturity or otherwise in accordance with the terms of
such Loan and of this Agreement (the "Guarantee"); provided, however, that
payment of interest on overdue installments of interest is hereby guaranteed
only to the extent permitted by applicable law.
(2) Subject to the terms of the Debenture, in case of default by the
Company in the payment of any such principal or interest, the Guarantor agrees
duly and punctually to pay the same without demand. The Guarantor hereby agrees
that its obligations under the Guarantee shall be unconditional, irrespective of
any invalidity, illegality, irregularity or unenforceability of any Loan with
regard to the Company (other than by reason or lack of genuineness), or the
absence of any action to enforce the same, the recovery of any judgment against
the Company or any action to enforce the same or any circumstances which might
otherwise constitute a legal or equitable discharge or defence of a guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, the
filing of claims with a court in the event of merger, amalgamation, insolvency
or bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to any Loan and all demands
whatsoever, and covenants that its obligations under this Section 5.01 will not
be discharged as to any Loan except by payment in full of the principal of and
interest on such Loan.
(3) The Guarantee is a direct obligation of the Guarantor and shall be
secured by a charge on substantially all of the assets of the Guarantor
substantially in the form appended hereto as Schedule "B", such charge ranking
in priority to all other current and future indebtedness of the Guarantor, other
than the Debentures subject to any exceptions prescribed by law.
(4) The obligations of the Guarantor under this Agreement shall be a
continuing obligation and a fresh cause of action hereunder shall be deemed to
arise in respect of each default.
(5) The Guarantor shall not be or become liable hereunder to make any
payment of principal or interest in respect to which the Company shall be in
default if the default of the Company in respect of which the Guarantor would
otherwise be or become liable hereunder shall have been waived or directed to be
waived pursuant to the provisions in that behalf contained in this Agreement,
provided, however, that no waiver or consent of any kind whatsoever shall
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release, alter or impair the unconditional obligation of the Guarantor hereunder
after giving effect to such waiver or consent.
(6) The Guarantor shall be subrogated to all rights of the Lenders and the
holders of any interest therein against the Company in respect of any amount
paid by the Guarantor pursuant to the provisions of the Guarantee; provided,
however, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right or subrogation until the
principal of and interest on all Loans shall have been paid in full.
(7) No remedy for the enforcement of the rights of the Lenders to receive
payment of the principal of and/or interest on any Loan in accordance with the
terms of this Agreement shall be exclusive of or dependent on any other remedy.
5.02 Further Assurances
The Guarantor shall, subject as herein provided, forthwith, and from time
to time, execute and do or cause to be executed and done all deeds, documents
and things which, in the opinion of counsel, are necessary or advisable for
giving the Lenders charges over the assets of the Guarantor to secure the
payment of all principal monies and interest for the time being and from time to
time owing pursuant to this Agreement.
5.03 Registration
The Guarantor shall record, file, enter or register the security agreement
set out as Schedule "B" hereto, all agreements supplemental hereto and all other
instruments or further assurances without delay (wherever in the opinion of
counsel it would be of material advantage in preserving and protecting the
security interest created thereby and the rights of the Lenders hereunder for
such action to be taken) under the provisions of any and all statutes providing
for or permitting the registration of such security in any Province or Territory
of Canada and any State or Territory of the United States of America in which
assets of the Guarantor are situated or the business of the Guarantor is carried
on; and the Guarantor shall renew such recordings, filings, enterings or
registrations from time to time as and when required.
5.04 Authority to Charge and Maintenance of Security
(1) The Guarantor represents, warrants and covenants to and with the
Lenders that:
(a) It has good right and lawful authority to charge its
undertaking, property, rights and assets as provided in and by
this Agreement; and
(b) It will fully and effectually maintain and keep maintained the
security provided for in this Article 5 as valid and effective
security at all times so long as any of the Loans shall be
outstanding.
5.05 Release and Discharge
(1) The obligation and liability of each of the Guarantor and the Company
under this Agreement, except as otherwise provided in this Indenture, shall not
be released, discharged or
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in any way affected by any release, discharge, loss or alteration in or dealing
with the secured assets or any part thereof or anything done, suffered or
permitted by the Lenders in relation to any of the secured assets; or by any
extension of time for payment of the Loans; or by any modification of any term
of this Agreement; or by any forebearance whatsoever, whether as to time,
performance or otherwise; or by any compromise, arrangement or plan or
reorganization affecting the Company, the Guarantor or the security under or
pursuant to this Indenture; or by any other matter or thing whatsoever which
would release a guarantor or principal obligor, as the case may be (except
payment in full of the principal of and interest on the Debentures).
(2) It is understood and agreed that the charges created pursuant to
this Agreement shall be held by the Lenders as security for the performance by
the Company and the Guarantor of their respective covenants herein contained and
that upon the Company becoming entitled to a discharge of this Agreement, then
these presents and the estate and rights by this Agreement granted, including
the pledge of the Company, shall cease and become utterly null and void and the
secured assets shall revert to and revest in the Guarantor without any release,
acquittance or any act or formality whatsoever; and thereupon the Lenders shall,
at the request and at the expense of the Guarantor and the Company, execute and
deliver to the Guarantor and the Company such instruments as shall be requisite
to evidence the satisfaction and discharge of the pledge and security
contemplated hereby, and to release or reconvey to the Guarantor the secured
assets freed and discharged from the trusts and provisions, and to cancel the
pledge of shares by the Company, and to release each of the Guarantor and the
Company from their covenants in this Agreement.
ARTICLE 6
CERTAIN COVENANTS OF THE COMPANY
6.01 General Covenants of the Company
The Company will well and truly perform and carry out all of the actions
or things to be done by it as provided in this Agreement. The Company hereby
covenants and agrees that:
(a) Payment of Principal and Interest. It will well, duly and punctually
pay or cause to be paid to the Lenders the principal of and interest accrued on
the Loans of which he or she is the holder at the dates and places, in the
monies and in the manner, provided for herein.
(b) To Carry on Business. It will at all times maintain its corporate
existence and diligently carry on and conduct its business in a proper,
efficient and businesslike manner and shall not cease to operate the whole or
substantially the whole of its business except in accordance with Article 8, and
will keep, or cause to be kept, proper books of account and make, or cause to be
made, in accordance with generally accepted accounting principles therein true
and faithful entries of all dealings and transactions in relation to its
business and at all reasonable times furnish, or cause to be furnished, to the
Lenders or its duly authorized agent or attorney such information relating to
its business as the Lenders may reasonably require, and such books
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of account shall at all reasonable times be open for inspection by the Lenders
or such agent or attorney as the Lenders may from time to time by instrument in
writing for that purpose appoint.
(c) To Pay Taxes. It will from time to time pay or cause to be paid all
taxes, rates, levies, assessments, ordinary or extraordinary, government fees or
dues lawfully levied, assessed or imposed upon or in respect of its property
(real or personal), assets and undertaking or any part thereof or upon the
income and profits of the Company as and when the same become due and payable,
and that it will exhibit or cause to be exhibited to the Lenders when requested
the receipts and vouchers establishing such payments, and will duly observe and
conform to all valid requirements of any governmental authority relative to any
of its property or rights which are material to its overall undertaking,
provided, however, that the Company shall have the right to contest in good
faith by legal proceedings any such taxes, rates, levies, assessments,
government fees or dues and, upon such contest, may delay or defer payment or
discharge thereof if the Company shall have set aside on its books reserves
(segregated to the extent required by sound accounting practice) deemed by it to
be adequate with respect thereto, or if in the opinion of the Directors, the
failure to pay and discharge promptly the same shall be in the interests of the
Company and not disadvantageous in any material respect to the Lenders.
(d) To Maintain Insurance. It will insure and keep insured against loss or
damage by fire its buildings, plants and other properties and things which are
of an insurable nature and of a character usually insured by prudent
corporations carrying on similar operations under like circumstances, and that
it will carry such other insurance as is usually carried by prudent corporations
carrying on similar operations under like circumstances, and that it will pay,
duly and seasonably, the premiums and other sums of money payable in respect of
such insurance and will exhibit to the Trustee on demand the receipts for such
premiums.
(e) Financial Statements. It will furnish to the Lenders, within 140 days
after the end of its fiscal year a copy of the consolidated financial statements
and of the report of the Company's auditors thereon which are furnished to the
shareholders of the Company. The Company will furnish sufficient copies to the
Lenders, within 60 after the end of the first, second and third quarterly
accounting periods in each fiscal year, of the consolidated balance sheet as at
the end of such quarterly accounting period and sufficient copies of the related
statements of income, retained earnings and changes in the financial position
for the period commencing with the last day of the previous fiscal year and
ending with the last day of such quarterly accounting period, all certified by a
principal financial or accounting officer of the Company to present fairly the
information contained therein, subject to year-end and audit adjustments.
(f) Default. If it should be in default hereunder at any time it will
promptly, after it has become aware of same, give notice to the Lenders of the
occurrence of an event of default or an event which, with the giving of notice
or lapse of time, or both, would become an event of default
(g) Securities Laws. It will at all times preserve and remain its status
as a "reporting issuer" not in default under the Securities Act (Ontario) and
will, in a timely fashion, file and deposit all documents and reports with the
Ontario Securities Commission and similar securities regulatory authorities
required to be filed or deposited pursuant to applicable legislation.
(h) Further Assurances. It shall do, execute and acknowledge and deliver
or cause to be done, executed acknowledged and delivered, all other acts, deeds
and assurances as the
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Lenders may reasonably require for the better accomplishing and effecting the
intentions and provisions of this Indenture.
6.02 General Covenants of the Guarantor
The Guarantor will well and truly perform and carry out all of the actions
or things to be done by it as provided in this Indenture. The Guarantor hereby
covenants and agrees that:
(a) To Carry on Business. It will at all times maintain its corporate
existence and diligently carry on and conduct its business in a proper,
efficient and businesslike manner and shall not cease to operate the whole or
substantially the whole of its business except in accordance with Article 8, and
will keep, or cause to be kept, proper books of account and make, or cause to be
made, in accordance with generally accepted accounting principles therein true
and faithful entries of all dealings and transactions in relation to its
business and at all reasonable times furnish, or cause to be furnished, to the
Lenders or its duly authorized agent or attorney such information relating to
its business as the Lenders may reasonably require, and such books of account
shall at all reasonable times be open for inspection by the Lenders or such
agent or attorney as the Lenders may from time to time by instrument in writing
for that purpose appoint.
(b) To Pay Taxes. It will from time to time pay or cause to be paid all
taxes, rates, levies, assessments, ordinary or extraordinary, government fees or
dues lawfully levied, assessed or imposed upon or in respect of its property
(real or personal), assets and undertaking or any part thereof or upon the
income and profits of the Guarantor as and when the same become due and payable,
and that it will exhibit or cause to be exhibited to the Lenders when requested
the receipts and vouchers establishing such payments, and will duly observe and
conform to all valid requirements of any governmental authority relative to any
of its property or rights which are material to its overall undertaking,
provided, however, that the Guarantor shall have the right to contest in good
faith by legal proceedings any such taxes, rates, levies, assessments,
government fees or dues and, upon such contest, may delay or defer payment or
discharge thereof if the Guarantor shall have set aside on its books reserves
(segregated to the extent required by sound accounting practice) deemed by it to
be adequate with respect thereto, or if in the opinion of the Directors, the
failure to pay and discharge promptly the same shall be in the interests of the
Guarantor and not disadvantageous in any material respect to the Lenders.
(c) To Maintain Insurance. It will insure and keep insured against loss or
damage by fire its buildings, plants and other properties and things which are
of an insurable nature and of a character usually insured by prudent
corporations carrying on similar operations under like circumstances, and that
it will carry such other insurance as is usually carried by prudent corporations
carrying on similar operations under like circumstances, and that it will pay,
duly and seasonably, the premiums and other sums of money payable in respect of
such insurance and will exhibit to the Trustee on demand the receipts for such
premiums.
(d) Negative Pledge. It will not, as long as any of the Loans remain
outstanding, create, incur or permit any Security on any of its current or after
acquired assets or undertakings
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to secure any obligations or indebtedness unless such Security is subordinate to
the Security granted to the Lenders.
(e) Subsequent Filings. It will file all necessary applications, documents
or materials required to be filed with any United States, Canadian or other
foreign patent application which corresponds to the invention(s) disclosed in
the Patent.
6.03 Representations and Warranties of the Company and the Guarantor
Each of the Company and the Guarantor represent and warrant to the Lenders
that the Guarantor is the duly registered holder of the Patent.
6.04 Lenders may Perform Covenants
If the Company shall fail to perform any of the covenants or fulfil any of
the conditions contained in this Agreement, the Lenders may in its discretion
perform, but shall be under no obligation to do so, any of the said covenants or
fulfil any such condition capable of being performed or fulfilled by it and, if
any such covenant or condition requires the payment or expenditure of money, it
may make such payments or expenditures with its own funds, or with money
borrowed by or advanced to it for such purpose; and all sums so expended or
advanced shall be at once payable by the Company and shall bear interest at the
then prevailing prime rate until paid and shall be payable out of any monies
held by the Lenders under , but no such performance or payment shall be deemed
to relieve the Company from any default hereunder.
6.05 Company Not to Extend Time for Payment of Interest
In order to prevent any accumulation after maturity of interest, the
Company hereby covenants that it will not, directly or indirectly, extend or
assent to the extension of any time for payment of interest upon any Loans
issued hereunder, and that it will not, directly or indirectly, be a party to or
approve any such arrangement. In case the time for payment of any such interest
shall be so extended, whether or not such extension shall be by or with the
consent of the Company, such interest shall not be entitled, in case of default
hereunder, to the benefit of these presents except subject to the prior payment
in full of the principal of all the Loans then outstanding, and of all interest
on such Loans the payment of which has not been so extended.
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ARTICLE 7
EVENTS OF DEFAULT
7.01 Events of Default
If one or more of the following events (herein called "events of default")
shall happen, that is to say:
(a) default shall be made in the payment of the principal of any of the
Loans when the same becomes due and payable; or
(b) default shall be made in the payment of any interest due on any of
the Loans issued hereunder and such default shall have continued for
a period of twenty-one (21) days; or
(c) the Company or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding-up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors (including, without limitation, the Companies' Creditors
Arrangement Act), or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it
or for any substantial part of its property and, in the case of any
such proceeding remaining undismissed or unstayed for a period of
thirty (30) days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against it or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property) shall occur; or the Company or such Subsidiary shall take
any corporate action to authorize any of the actions set forth in
this Subsection 7.01(c); provided that a resolution or order for
winding-up the Company with a view to its consolidation,
amalgamation or merger with another corporation or the transfer of
its assets as a whole, or substantially as a whole, to such other
corporation, as provided in Article 8 shall not constitute an event
of default if such last mentioned corporation shall, as part of such
consolidation, amalgamation, merger or transfer comply with the
conditions to that end stated in Article 8; or
(d) any process of execution be enforced or levied upon any of the
property of the Company or the Guarantor and remain unsatisfied for
a period of ten (10) business days, provided that such process is
not in good faith disputed by the Company or the Guarantor, and
neither the Company nor the Guarantor shall not have given security
which, in the discretion of the Trustee, shall be sufficient to
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pay in full the amount claimed in the event that it shall be held to
be valid claim; or
(e) the Guarantor fails to observe or perform any of its covenants
contained in Article 5 and Subsection 6.02;
(f) the Company fails to observe or perform any of its covenants
contained in Article 6 of this Agreement, except as provided in
Subsection 7.01(b); or
(g) default shall be made in the due observance or performance of any
other covenant or condition in this Agreement required to be
observed or performed by the Company or the Guarantor and any such
default shall continue for a period of thirty (30) days after notice
received by the Company or the Guarantor from the Lenders specifying
such default and requiring the Company or the Guarantor to rectify
such default and any such notice may be given by the Lenders; or
(h) the Company or the Guarantor receives notice of an event of default
under Subsection 7.12 of the trust indenture pursuant to which the
Debentures were created,
then in each and every such event the Lenders, declare the principal of, and
interest on, all the Loans outstanding hereunder, together with all other monies
payable hereunder, to be due and payable and the same shall forthwith become
immediately due and payable to the Lenders, anything therein or herein to the
contrary notwithstanding, and the Company shall pay forthwith to the Lenders the
amount of the principal of and interest then accrued on all of the Loans then
outstanding and all other monies payable hereunder, together with interest on
such principal, interest and other monies at the rate of interest borne by the
Loans from the date of the said declaration until payment is received by the
Lenders. Such payment when made shall be deemed to have been made in discharge
of the Company's obligations hereunder and under the Loans and shall be applied
in the manner hereinafter provided in Section 7.04 hereof.
7.02 Waiver of Default
Upon the happening of any event of default hereunder, the Lenders shall
have power to waive any default arising hereunder
7.03 Right of Lenders to Enforce Payment
Subject to the provisions of Section 7.02 hereof, in case the Company
shall fail to pay to the Lenders, on demand, the principal and interest on all
the Loans then outstanding, together with any other amounts due hereunder. The
Lenders may in their discretion obtain or enforce payment of the said principal
of and interest on all the Loans then outstanding together with any other
amounts due hereunder, by any remedy provided by law either by legal proceedings
or otherwise including, without limitation, enforcing the Guarantee provided for
in Section 5.01.
7.04 Application of Moneys
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Except as otherwise herein provided, the monies arising from any
enforcement hereof shall be held by the Lenders and applied by them, together
with any other monies then or thereafter in the hands of the Lenders available
for the purpose, as follows:
(a) firstly, in payment of the principal of and accrued and unpaid
interest on amounts in default under the Loans which shall then be
outstanding rateably and proportionately and without preference or
priority or discrimination as between principal and interest unless
otherwise directed by extraordinary resolution and in that case in
such order of priority as between principal and interest as may be
directed by such resolution; and
(b) the surplus (if any) of such monies shall be paid to the Company or
its assigns.
7.05 Lenders Appointed Attorney
The Company hereby irrevocably appoints the Lenders to be the attorney of
the Company for and in the name and on behalf of the Company to execute and do
any deeds, documents, transfers, conveyances, assignments, assurances, consents
and things which the Company ought to sign, execute and do hereunder and
generally to use the name of the Company in the exercise of all or any of the
powers hereby conferred on the Lenders, with full powers of substitution and
revocation.
7.6 Remedies Cumulative
No remedy herein conferred upon or reserved to the Lender is intended to
be exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
existing or hereafter to exist by law or by statute.
ARTICLE 8
CONSOLIDATION AND AMALGAMATION
8.01 Successor Company or Guarantor
(1) Nothing in this Agreement shall prevent, if otherwise permitted by
law, the reorganization or reconstruction of the Company or the Guarantor or the
consolidation, amalgamation or merger of the Company or the Guarantor with any
other corporation, or shall prevent the sale, leasing or other transfer by the
Company or the Guarantor of its undertaking and assets as a whole or
substantially as a whole to another corporation lawfully entitled to acquire and
operate the same, provided that the conditions of this Article 8 are observed,
and provided also that every such successor or assign shall before or
contemporaneously with the consummation of any such reorganization,
reconstruction, consolidation, amalgamation, merger or transfer and in
consideration thereof, enter into and execute an Agreement supplemental hereto
in favour of the Lenders whereby such successor or assign covenants:
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(a) to pay punctually when due the principal monies, interest and other
monies due or which may become due hereunder;
(b) to perform and observe punctually all the obligations of the Company
and the Guarantor under this Agreement and under and in respect of
all outstanding Loans; and
(b) to observe and perform each and every covenant, stipulation,
promise, undertaking, condition and agreement of the Company and the
Guarantor herein contained as fully and completely as if it had
itself executed this indenture as Party of the First Part hereto and
had expressly agreed herein to observe and perform the same.
(2) Every such reorganization, reconstruction, consolidation,
amalgamation, merger, sale, lease or transfer shall be made on such terms and at
such times and otherwise in such manner as shall be approved by the Company or
the Guarantor, as the case may be, and by the Lenders (acting on such advice as
it deems advisable) as being in no way prejudicial to the interests of the
Lenders and as preserving and not impairing the rights and powers of Lenders,
and upon such approval the Lenders shall facilitate the same in all respects,
and may give such consents and sign, execute or join in this Agreement or other
documents and do such acts as in its discretion may be thought advisable in
order that such reorganization, reconstruction, consolidation, amalgamation,
merger, sale, lease or transfer may be carried out, and the opinion of Counsel
as hereinafter mentioned shall be full warrant and authority to the Lenders for
so doing. The Trustee may rely upon an opinion of Counsel to the Lenders as to
the legality of any action proposed to be taken and as to the validity of any
action taken pursuant to the provisions contained in this Article 8, and the
Trustee shall incur no liability by reason of reliance thereon.
8.02 Successor Company/Successor Guarantor
to Possess Powers of the Company/Guarantor
In case of any reorganization, reconstruction, consolidation, amalgamation
or merger as aforesaid, or in case of such transfer of the undertaking of the
assets of the Company or the Guarantor as a whole or substantially as a whole,
the corporation formed by such consolidation or with which the Company or the
Guarantor shall have been amalgamated or merged or to which such transfer shall
have been made, upon executing an Indenture or Indentures, as provided in
Section 8.01, shall succeed to and be substituted for the Company or the
Guarantor, whichever the case may be, (which may then be wound up, if so desired
by its shareholders), with the same effect as if it had been named herein as an
original party hereto, and shall possess and may exercise each and every right
of the Company or the Guarantor hereunder.
ARTICLE 9
SUITS BY LENDERS
9.01 Lenders May Not Xxx
No Lender shall have any right to institute any action, suit or proceeding at
law or in equity for the purpose of enforcing payment of the principal of or any
interest on the Loans or for the execution of any trust or power hereunder or
for the appointment of a liquidator or receiver or
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for a receiving order under the Bankruptcy and Insolvency Act or to have the
Company and/or the Guarantor wound up or to file or prove a claim in any
liquidation or bankruptcy proceedings or for any other remedy hereunder, unless
the holders of at least twenty-five percent (25%) in principal amount of the
Loans then outstanding shall have made by resolution passed at a meeting duly
held as hereinafter provided in Article 11 of this Agreement proceed to exercise
the powers hereinbefore granted or to institute an action, suit or proceeding in
its name for such purpose; it being understood and intended that no one or more
holders of Loans shall have any right in any manner whatsoever to enforce any
right hereunder, except in the manner herein provided, except only as herein
provided, and only in any event for the equal benefit of all holders of
outstanding Loans in proportion to the amounts to which they may respectively be
entitled hereunder.
9.02 Delay Not Waiver
No delay or omission of the Lenders to exercise any right or power
accruing hereunder shall impair any such right or power, or shall be construed
to be a waiver of any default or an acquiescence therein, and every power and
remedy given hereby to the Lenders may be exercised by it or by them from time
to time as often as may be deemed expedient by it or them.
ARTICLE 10
IMMUNITY OF OFFICERS, SHAREHOLDERS AND DIRECTORS
10.01 Immunity of Officers, Shareholders and Directors
The obligations on the part of the Company and the Guarantor
contained herein are solely corporate obligations, and accordingly no recourse
under or upon any obligation, covenant or agreement contained in this Agreement
or under any judgement obtained against the Company or the Guarantor, or by the
enforcement of any assessment or by any legal or equitable proceeding by virtue
of any constitution or statute or otherwise or under any circumstances under or
independently of this Indenture, shall be had against any shareholder, officer
or director, past, present or future, of the Company or the Guarantor (excluding
the Company as a Shareholder of the Guarantor) or of any successor corporation,
either directly or through the Company or the Guarantor or otherwise for payment
for or to the Company or the Guarantor or any receiver, liquidator, trustee or
sequestrator thereof or for or to the holder of any Agreement issued hereunder,
or otherwise, of any sum that may be due and unpaid by the Company hereunder or
upon or under any such Loan and any and all personal liability of every nature
and kind, whether at common law or in equity or by statute or by constitution or
otherwise, of any such shareholder, officer or director on account of this
Agreement or on account of the Loans and indebtedness represented thereby, is
hereby expressly waived and released as a condition of and as part of the
consideration for the execution of this Agreement and the issue of the Loans.
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ARTICLE 11
LENDERS' MEETINGS
11.01 Lenders' Meetings
Meetings of Lenders shall be convened, held and conducted in the manner
following:
(a) Calling of Meetings. At any time and from time to time, a Lender
representing at least ten percent (10%) of the aggregate principal amount of the
Loans may convene a meeting of the Lenders. Every such meeting shall be held in
the City of Toronto, or at such other place as the Lenders may in any case
determine or approve.
(b) Notice. At least twenty-one (21) days' notice of such meeting shall be
given to each of the Lenders and such notice shall state the time when, and the
place where said meeting is to be held and shall specify in general terms the
nature of the business to be transacted thereat, and shall contain such
information as is reasonably necessary to enable a Lender to make a reasoned
decision on the matter, but it shall not be necessary to specify in the notice
the text of the resolutions to be passed. Notices shall be given in the manner
set forth in Article 15 hereof, and a copy thereof shall be sent by post or
delivered to the Lenders and the Company unless the meeting has been called by
it. It shall not be necessary to specify in the notice of any adjournment of a
meeting the nature of the business to be transacted at the adjourned meeting.
(c) Quorum. At any meeting of the Lenders, subject to the provisions of
Section 11.03 hereof, a quorum shall consist of two or more persons present in
person holding either personally or as proxies for holders not less than
twenty-five percent (25%) in principal amount of all outstanding Loans. In the
event of such quorum not being present on the date for which the meeting is
called within one half hour after the time fixed for the holding of such
meeting, the meeting may be adjourned to a date not later than thirty (30) days
from the date for which the meeting was first called and not less than fourteen
(14) days' notice of the date to which such meeting is adjourned shall be given
in the manner prescribed for notice of meetings of Lenders. Such notice shall
state that at the adjourned meeting the Lenders present in person or by proxy
shall form a quorum, but it shall not be necessary to set forth the purposes for
which the meeting was originally called or any other particulars. At the
adjourned meeting, the Lenders present in person or by proxy shall form a quorum
and may transact the business for which the meeting was originally convened.
(d) Chairman. The Lenders and proxies for Lenders present shall choose one
of their number to be chairman.
(f) Majority Vote on Ordinary Resolution. Every question submitted to a
meeting, except an Extraordinary Resolution, shall be decided in the first place
by a majority of the votes given on a show of hands. In the case of an equality
of votes on a show of hands the chairman shall have a casting vote.
(g) Taking a Poll. A poll shall be taken on every Extraordinary Resolution
and, when requested by a Lender or by a proxy or proxies representing a Lender
holding at least Cdn. Ten Thousand Dollars ($10,000) principal amount of the
Loans, on any other question or resolution. If at any meeting a poll is so
demanded as aforesaid on the election of a chairman or on a question of
adjournment, it shall be taken forthwith. If at any meeting a poll is so
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demanded on any other question, or an extraordinary resolution is to be voted
upon, a poll shall be taken in such manner and either at once or after an
adjournment as the chairman directs. The results of a poll shall be deemed to be
the decision of the meeting at which the poll was demanded.
(h) Votes on a Poll. At any meeting of the Lenders, each Lender shall on a
poll have one vote for every Cdn. One Thousand Dollars ($1,000) principal amount
of Loan of which he shall be the holder. Votes may be given in person or by
proxy and a proxy need not be a Lender.
(i) The Company, and Legal Advisers. The Company by their respective
employees, officers and directors may attend any meeting of Lenders. The legal
advisers of the Company and the Lenders may also attend any such meeting.
11.02 Powers Exercisable by Extraordinary Resolution
Unless otherwise provided in this Agreement, a meeting of the Lenders
shall, in addition to any powers hereinbefore given, have the following powers,
exercisable from time to time by Extraordinary Resolution:
(a) Power to sanction any modification, abrogation, alteration,
compromise or arrangement of the rights of the Lenders against the
Company and/or the Guarantor, or against their property, whether
such rights arise under this Agreement or otherwise;
(b) Power to sanction any scheme for the reconstruction or
reorganization of the Company and/or the Guarantor or for the
consolidation, amalgamation or merger of the Company and/or the
Guarantor with any other corporation or for the sale, leasing,
transfer or other disposition of the undertaking, property and
assets of the Company and/or the Guarantor or any part thereof,
provided that no such sanction will be necessary in respect of any
such transaction if Section 8.01 has been complied with;
(c) Power to exercise any power, right, remedy or authority given to it
by this Agreement in any manner specified in any such Extraordinary
Resolution or to refrain from exercising any such power, right,
remedy or authority;
(d) Power to waive any default hereunder and/or cancel any declaration
made by the Trustee pursuant to Section 7.01 either unconditionally
or upon any condition specified in such Extraordinary Resolution;
(e) Power to direct any Lender who as such has brought any action, suit
or proceeding, to stay or discontinue or otherwise deal with the
same upon payment, if the taking of such suit, action or proceeding
has been permitted by Section 10.01, of the costs, charges and
expenses reasonably and property incurred by such holder in
connection therewith;
-20-
(f) Power to approve the exchange of the Loans for or the conversion
thereof into shares, bonds, debentures, notes or other securities of
the Company or of any corporation formed or to be formed, which has
been approved by the Company;
(g) Power to assent to any compromise or arrangement by the Company
and/or the Guarantor with any creditor, creditors or class or
classes of creditors or with the holders of any shares or securities
of the Company;
(h) Power to restrain any Lender hereunder from taking or instituting
any suit, action or proceeding for the execution of any trust or
power hereunder or for the appointment of a liquidator or receiver
or trustee in bankruptcy or to have the Company and/or the Guarantor
wound up or for any other remedy hereunder and to direct such Lender
to waive any default or defaults by the Company and/or the Guarantor
on which any suit or proceeding is founded;
(i) Power to assent to any modification of or change in or addition to
or omission from the provisions contained in this Agreement which
has been agreed to by the Company and the Guarantor and to authorize
the Trustee to concur in and execute any deed supplemental to this
Promissory Note embodying any such modification, change, addition or
omission or any deeds, documents or writings authorized by such
extraordinary resolution;
(j) Power to appoint a committee with power and authority (subject to
such limitations, if any, as may be prescribed in the resolution) to
exercise, on behalf of the Lenders, such of the powers of the
Lenders which are exercisable by extraordinary or other resolution
as shall be included in the resolution appointing the committee. The
resolution making such appointment may provide for payment of the
expenses and disbursements of and compensation to such committee.
Such committee shall consist of such number of persons as shall be
prescribed in the resolution appointing it and the members need not
be themselves Lenders. Every such committee may elect its chairman
and may make regulations respecting its quorum, the calling of its
meetings, the filling of vacancies occurring in its number and its
procedure generally. Such regulations may provide that the committee
may act at a meeting at which a quorum is present or may act by
minutes signed by the number of members thereof necessary to
constitute a quorum. All acts of any such committee within the
authority delegated to it shall be binding upon all Lenders. Neither
the committee nor any member thereof shall be liable for any loss
arising from or in connection with any action taken or omitted to be
taken by them in good faith; and
(k) Power to amend, alter or repeal any Extraordinary Resolution
previously passed or consented to by Lenders.
The foregoing powers shall be deemed to be several and not dependent on
each other and each paragraph of this Section 11.02 and each power therein
conferred shall, accordingly, be construed as complete in itself and not by
reference to any other paragraph or power in said section and the exercise of
any one or more of such powers, or any combination of such powers,
-21-
from time to time, shall not be deemed to exhaust the rights of the Lenders to
exercise such power or powers, or combination of powers, thereafter from time to
time.
11.03 Extraordinary Resolutions
(1) An Extraordinary Resolution, passed at a meeting of the Lenders held
in accordance with the provisions hereof, shall be binding upon all the Lenders
and upon each and every Lender whether present or absent and each and every
shall be bound to give effect thereto accordingly.
(2) The expression "Extraordinary Resolution" when used in this Agreement
means, subject as hereinafter in this Article 11 provided, a resolution proposed
to be passed as an Extraordinary Resolution at a meeting of Lenders duly
convened for the purpose and held in accordance with the provisions of this
Article 11 at which, subject to Subsection 11.05(3), holders of at least
fifty-one (51%) percent in principal amount of the Loans then outstanding are
present in person or by proxy and passed by the favourable votes of the holders
of not less than sixty-six and two thirds (66-2/3%) percent of the principal
amount of Loans represented at the meeting and voted on a poll upon such
resolution.
(3) If at any such meeting holders of fifty-one (51%) percent in principal
amount of the Loans outstanding are not present in person or by proxy within
thirty (30) minutes after the time appointed for the meeting, then the meeting,
if convened by shall be dissolved: but if otherwise convened the meeting shall
stand adjourned to such date, being not less than fifteen (15) nor more than
fifty (50) days later, and to such place and time as may be appointed by the
chairman. Not less than ten (10) days notice shall be given of the time and
place of such adjourned meeting in the manner prescribed for notice of meetings
of Lenders. Such notice shall state that at the adjourned meeting the Lenders
present in person or by proxy shall form a quorum but it shall not be necessary
to set forth the purposes for which the meeting was originally called or any
other particulars. At the adjourned meeting the Lenders present in person or by
proxy shall form a quorum and may transact the business for which the meeting
was originally convened and a resolution proposed at such adjourned meeting and
passed by the requisite vote as provided in Subsection 11.03(2) shall be an
Extraordinary Resolution within the meaning of this Indenture, notwithstanding
that holders of fifty-one (51%) percent in principal amount of the outstanding
Loans then outstanding are not present in person or by proxy at such adjourned
meeting.
(4) Votes on an Extraordinary Resolution shall always be given on a poll
and no demand for a poll on an Extraordinary Resolution shall be necessary.
(5) Save as herein expressly otherwise provided, no action shall be taken
at a meeting of the Lenders which changes any provision of this Indenture or
changes or prejudices the exercise of any right of any Lender except by
Extraordinary Resolution as above provided.
11.04 Declaration by Chairman of Result of Vote
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At any meeting of the Lenders, in cases where no poll is required or
requested, a declaration made by the Chairman that a resolution has been
carried, or carried by any particular majority, or lost, shall be conclusive
evidence thereof.
11.05 Minutes
Minutes of all resolutions and proceedings at every such meeting, as
aforesaid, shall be made and duly entered in books to be provided by the Company
and any such minutes, as aforesaid, if signed by the Chairman of the meeting at
which such resolutions were passed or proceedings had, or by the Chairman of the
next succeeding meeting of Lenders, shall be prima facie evidence of the matters
therein stated, and until the contrary is proved, every such meeting in respect
of the proceedings of which minutes shall have been made shall be deemed to have
been duly held and convened and all resolutions passed or proceedings had
thereat to have been duly passed and had.
11.06 Signed Instrument in Lieu of Extraordinary Resolution
Notwithstanding the foregoing provisions of this Agreement, any resolution
or instrument signed in one or more counterparts by the holders of not less than
sixty-six and two thirds per cent (66-2/3%) of the aggregate principal amount of
the Loan for the time being outstanding shall have the same force and effect as
an Extraordinary Resolution duly adopted by the Lenders under the provisions of
this Article 11 with respect to Extraordinary Resolutions.
11.07 Binding Effect of Resolutions
Every resolution and every Extraordinary Resolution passed in accordance
with the provisions of this Article 11 at a meeting of Lenders shall be binding
upon all the Lenders, whether present at or absent from such meeting, and every
instrument in writing signed by Lenders in accordance with Section 11.06 shall
be binding upon the Lenders, whether signatories thereto or not, and each and
every Lender shall be bound to give effect accordingly to every such resolution
and instrument in writing. In the case of an instrument in writing, the Lender
shall give notice of the instrument in writing in the manner contemplated in
Article 15 to the Company and all Lenders, respectively, as soon as is
reasonably practicable.
ARTICLE 12
SUPPLEMENTAL INDENTURES
12.01 Supplemental Indentures
(1) From time to time, the Company, the Guarantor and the Lenders may,
when authorized by a resolution of the Directors and, subject to the provisions
of this Agreement, they shall, when so directed, execute, acknowledge and
deliver, by their respective proper officers, deeds or agreement supplemental
hereto, which thereafter shall form part hereof, for any one or more of the
following purposes:
(a) adding to the limitations or restrictions herein specified further
limitations or restrictions thereafter to be observed; provided that
the Lender shall be of the
-23-
opinion that, and in the opinion of Counsel, such further
limitations or restrictions shall not be prejudicial to the
interests of the Lenders;
(b) adding to the covenants of the Company and the Guarantor herein
contained for the protection of the Lenders and/or providing for
events of default in addition to those herein specified;
(c) making such provisions not inconsistent with this Agreement as may
be necessary or desirable with respect to matters or questions
arising hereunder, such provisions and modifications will not be
prejudicial to the interests of the Lenders;
(d) making any additions to, deletions from or alterations of the
provisions of this Indenture which in the opinion of Counsel may
from time to time be necessary or advisable to conform the same to
"applicable legislation" as that term is defined in Article 12;
(e) evidencing the succession, or successive successions, of other
corporations to the Company and to the covenants of and obligations
assumed by any such successor in accordance with the provisions of
this Agreement;
(f) giving effect to any Extraordinary Resolution or signed instrument
in accordance with Article 11.06 hereof; and
(g) for any other purpose not inconsistent with the terms of this
Agreement.
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ARTICLE 13
TERMINATION
13.01 Termination
Except as otherwise expressly stated herein, this Agreement shall
terminate and be void and the Lenders shall, at the request and at the expense
of the Company, execute and deliver to the Company such deeds or other
instruments as shall be necessary to effect the cancellation hereof, if the
Company shall have first satisfied the Lender for the payment of all amounts due
or to become due on all of the Loans in the manner therein and herein provided
and also all other monies payable hereunder by the Company.
ARTICLE 14
COUNTERPARTS
14.01 Counterparts
This Agreement may be executed in one or more counterparts, each of which
so executed shall be deemed to be an original, and all of such counterparts
together shall constitute one and the same instrument.
ARTICLE 15
NOTICES
15.01 Notices to Company and Guarantor
Any notice to the Company or the Guarantor under this Agreement will be
valid and effective if given by registered letter, postage prepaid, by personal
delivery or by facsimile addressed to the Company to the attention of the
Chairman at 00 Xxxxxx Xxxxx, Xxxxxxx Xxxx, Xxx Xxxx 00000-0000 (facsimile number
(000) 000-0000) and shall be deemed to have been effectively given from the date
five (5) business days after the date of mailing and on the next business day if
personally delivered or sent by facsimile. The Company and the Guarantor may
from time to time notify the Lender in writing of a change of address which
thereafter, until changed by like notice, shall be the address of the Company or
the Guarantor (as the case may be) for all purposes of this Indenture. In the
event of a general discontinuance of postal service due to strike, lockout or
otherwise, notices and other communications shall be delivered by hand or sent
by facsimile or other means of electronic communication and shall be deemed to
have been received if sent by facsimile or other means of electronic
communication, on the business day following the sending, or if delivered by
hand at the time it is delivered to the applicable address noted above either to
the individual designated herein or to an individual at such address having
apparent authority to accept deliveries on behalf of the address.
15.02 Notices to Lenders
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Any notice to the Lenders under the provisions of this Agreement shall be
valid and effective if given by registered letter, postage prepaid, addressed to
the Lenders at their principal office as set forth below:
Xxxxxxx X. Xxxx
000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax No.: 0-000-000-0000
Xxxxxxx Xxxxxxx
c/o Schwartz, Levitsky, Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxx
Fax No.: 000-000-0000
Heptagon Investments Ltd.
Xxxxxxxxx Xxxxx,
0-0 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx
X0X 10D
Attention: Xxx Xxxxxxx
Fax No.: (00000) 000-0000
E&M Machinery, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax No.: (000) 000-0000
RRSP Account #005727
c/o Roxborough Holdings Limited
One First Canadian Place
Suite 8250
Toronto, Ontario
M5X 1C7
Attention: Xxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
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Hara Enterprises Limited
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx X'Xxxx
Fax No.: (000) 000-0000
and shall be deemed to have been effectively given from the date five (5)
business days after the date of mailing and on the next business day if
personally delivered or sent by fax. In the event of a general discontinuance of
postal service due to strike, lockout or otherwise, notices and other
communications shall be delivered by hand or sent by facsimile or other means of
electronic communication and shall be deemed to have been received if sent by
facsimile or other means of electronic communication, on the business day
following the sending, or if delivered by hand at the time it is delivered to
the applicable address noted below either to the individual designated herein or
to an individual at such address having apparent authority to accept deliveries
on behalf of the address.
ARTICLE 16
FORMAL DATE
16.01 Formal Date
For the purposes of convenience, this Agreement may be referred to as
bearing formal date of July 31, 1998 irrespective of the actual date of the
execution hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Indenture.
RADIANT ENERGY CORPORATION
Per:_______________________________
Authorized Signing Officer
Per:_______________________________
Authorized Signing Officer
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PROCESS TECHNOLOGIES, INC.
Per: ______________________________________
Authorized Signing Officer
Per: ______________________________________
Authorized Signing Officer
HEPTAGON INVESTMENTS LTD.
Per: ______________________________________
Authorized Signing Officer
Per: ______________________________________
Authorized Signing Officer
E&M MACHINERY, INC.
Per: ______________________________________
Authorized Signing Officer
RRSP ACCOUNT #005727
Per: ______________________________________
Authorized Signing Officer
HARA ENTERPRISES LIMITED
Per: ______________________________________
Authorized Signing Officer
------------------------------- ------------------------------------------
Witness: Xxxxxxx X. Xxxx
------------------------------ ------------------------------------------
Witness: Xxxxxxx Xxxxxxx
