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EXHIBIT 10.6
DEMAND DEBENTURE
ISSUED TO: COMERICA BANK
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.▇.
▇▇▇▇▇
as administrative agent for the Banks (as
defined herein) under the Credit Agreement (as
defined herein)
(the "Holder")
ISSUED BY: ▇▇▇▇▇▇ METAL PRODUCTS CO.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
(the "Corporation")
U.S.$150,000,000 Date: April , 1998
ARTICLE 1
PROMISE TO PAY
1.1 PROMISE TO PAY
The Corporation, an unlimited liability company formed under the laws
of the Province of Nova Scotia, for value received, hereby acknowledges itself
indebted and promises to pay to or to the order of the Holder, on its own
behalf and as administrative agent for the Banks under the Credit Agreement, at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other
place as the Holder may direct at any time and from time to time, ON DEMAND,
the principal amount of U.S.$150,000,000 and all other amounts now or hereafter
payable hereunder or otherwise owing by the Corporation to the Holder and the
Banks, together with interest on the principal amount outstanding
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hereunder from time to time and on all other amounts now or hereafter payable
hereunder or otherwise owing by the Corporation to the Holder and the Banks, in
the case of principal, from the date hereof, and in the case of costs, charges
and expenses, from the date on which they were incurred and in the case of all
other amounts, from the date on which such other amounts are payable, in each
case calculated daily and payable monthly in arrears commencing on the date
hereof at the rate of 30% per annum as well after as before demand, default and
judgment, together with interest on overdue interest at the same rate (the
principal amount, such interest and all other amounts now or hereafter payable
hereunder or otherwise owing by the Corporation to the Holder and the Banks
being referred to herein as the "Obligations Secured").
ARTICLE 2
INTERPRETATION
2.1 DEFINITIONS
"ACCOUNTS" has the meaning set out in Section 3.1(e).
"APPLICABLE LAW" shall mean, in respect of any Person, all provisions of
constitutions, statutes, codes, ordinances, rules, regulations, municipal
by-laws, judicial, arbitral, administrative, ministerial, departmental or
regulatory judgments, orders, decisions, rulings or awards, policies and
guidelines of any Governmental Entity, or any provisions of the foregoing,
including general principles of common and civil law and equity, applicable
to such Person, including, without limiting the foregoing, all orders,
decisions, judgments and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a party or by
which it is bound.
"BANKS" shall mean those financial institutions whose names appear as
"Banks" on the signature pages to the Credit Agreement, together with any
assignees thereof pursuant to Section 13.5 of the Credit Agreement, and
shall include the Canadian Swingline lender under the Credit Agreement; and
"BANK" shall mean any one of the foregoing Banks.
"BORROWERS" means, collectively, Talon Automotive Group, Inc.
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"BUSINESS DAY" shall mean a day on which commercial banks are open for
domestic and international business (including dealings in deposits in the
interbank market) in Detroit, Michigan, Toronto, Ontario and London,
England.
"CONTRACTS" has the meaning set out in Section 3.1(f).
"CORPORATION" means ▇▇▇▇▇▇ Metal Products Co., its successors and permitted
assigns.
"CREDIT AGREEMENT" means the credit agreement dated as of the date hereof
among the Borrowers, the Holder and the Banks, as amended, supplemented,
restated or replaced from time to time.
"EQUIPMENT" has the meaning set out in Section 3.1(c).
"GAAP" shall mean accounting principles generally accepted in Canada as
recommended in the Handbook of the Canadian Institute of Chartered
Accountants, as in effect on the date hereof.
"GOVERNMENTAL ENTITY" means any: (i) multinational, federal, provincial,
state, regional municipal, local or other government, governmental or
public department, central bank, court, commission, board, bureau, agency
or instrumentality, domestic or foreign; (ii) any subdivision, agent,
commission, board, or authority of any of the foregoing; or (iii) any
quasi-governmental or private body exercising any regulatory, expropriation
or taxing authority under or for the account of any of the foregoing.
"GUARANTEE" shall mean the guarantee dated as of the date hereof between
the Corporation and the Holder, as agent for the Banks, as amended,
supplemented, restated or replaced from time to time.
"INTANGIBLES" has the meaning set out in Section 3.1(h).
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"INVENTORY" has the meaning set out in Section 3.1(d).
"LEASEHOLD REAL ESTATE" has the meaning set out in Section 3.1(b).
"LICENSES" has the meaning set out in Section 3.1(i).
"LIEN" means, with respect to any property, any charge, mortgage, pledge,
hypothecation, security interest, lien, conditional sale (or other title
retention agreement or lease in the nature thereof), lease, servitude,
assignment, adverse claim, defect of title, restriction, trust, right of
set-off or other encumbrance of any kind in respect of such property
(including any Lien accounted for as a capitalized lease obligation for
purposes of a balance sheet prepared in accordance with GAAP), whether or
not filed, recorded or otherwise perfected under applicable law.
"MORTGAGED PROPERTY" has the meaning set out in Section 3.1.
"NEGOTIABLE COLLATERAL" has the meaning set out in Section 3.1(g).
"OBLIGATIONS SECURED" has the meaning attributed to such term in Section
1.1.
"PERSON" means an individual, corporation, limited liability company,
association, partnership, joint venture, trust or estate, an unincorporated
organization, a government or any agency or political subdivision thereof,
or any other entity.
"PPSA" means the Personal Property Security Act (Ontario).
"PROCEEDS" has the meaning set out in Section 3.1(l).
"REAL ESTATE" has the meaning set out in Section 3.1(a)(i).
"RECORDS" has the meaning set out in Section 3.1(j).
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"RECEIVER" means any of a receiver, manager, receiver-manager and receiver
and manager.
"SECURITY INTEREST" has the meaning set out in Section 3.1.
"SUBSTITUTE PROPERTY" has the meaning set out in Section 3.1(k).
2.2 INTERPRETATION
This Debenture shall be interpreted in accordance with the following:
(a) words denoting the singular include the plural and vice versa
and words denoting any gender include all genders;
(b) headings shall not affect the interpretation of this
Debenture;
(c) references to dollars, unless otherwise specifically
indicated, shall be references to lawful money of the United States
of America;
(d) the word "including" shall mean "including without
limitation" and "includes" shall mean "includes without limitation";
(e) the expressions "the aggregate", "the total", "the sum" and
expressions of similar meaning shall mean "the aggregate (or total
or sum) without duplication"; and
(f) in the computation of periods of time, unless otherwise
expressly provided, the word "from" means "from and including" and
the words "to" and "until" mean "to but excluding".
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2.3 AMENDMENT
No amendment of any provision of this Debenture shall be effective
unless the same shall be in writing and signed by each of the Corporation and
the Holder, on its own behalf and as administrative agent for the Banks.
2.4 SEVERABILITY
If any provision of this Debenture is or becomes illegal, invalid or
unenforceable, such provision shall be severed from this Debenture and be
ineffective to the extent of such illegality, invalidity or unenforceability.
The remaining provisions hereof shall be unaffected by such provision and shall
continue to be valid and enforceable.
2.5 STATUTES, ETC.
Unless otherwise specified herein all references to statutes or
regulations are to be treated as references to the same as amended,
consolidated, revised or re-enacted from time to time, or to any successor or
replacement statutes or regulations.
2.6 GOVERNING LAW
This Debenture shall be governed by and interpreted in accordance with,
the Applicable Laws of the Province of Ontario and the Applicable Laws of
Canada applicable therein which apply to contracts made and to be performed
entirely in Ontario. The parties hereby irrevocably attorn and submit to the
non-exclusive jurisdiction of the courts of Ontario with respect to any matter
arising under or related to this Debenture.
2.7 SCHEDULES
The following schedules attached hereto shall, for all purposes
hereof, be incorporated in
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and form an integral part of this Debenture:
Schedule A Real Estate
Schedule B Leasehold Real Estate
Schedule C Contracts
Schedule D Places of Business
ARTICLE 3
SECURITY
3.1 CREATION OF SECURITY
As continuing security for the payment of the Obligations Secured and
the performance by the Corporation of all its covenants and obligations
hereunder, but subject to Sections 3.2, 3.3 and 3.4 hereof, the
Corporation hereby grants, assigns, transfers, mortgages, pledges, charges and
hypothecates, as and by way of a fixed and specific mortgage, pledge, charge,
sublease, assignment, security interest and hypothec to and in favour of the
Holder, on its own behalf and as administrative agent for the Banks, all the
right, title, interest and benefit of the Corporation, in, to, under or in
respect of:
(a) (i) all real property now owned or hereafter acquired by the
Corporation, including the real property described in Schedule
"A" hereto, together with all buildings, erections and
improvements thereon and fixtures forming a part thereof
(collectively, the "Real Estate");
(ii) all leases relating to the Real Estate, all income, revenues and
profits derived from any tenancy, use or occupation of the Real
Estate and all rents and other sums payable to the Corporation
pursuant to the terms of any leases relating to the Real Estate
and all benefits, advantages and powers to be derived under such
leases relating to the Real Estate, with full and power and
authority to demand, ▇▇▇ for, recover, receive and give receipts
for all rents and all other monies payable thereunder and
otherwise to enforce the rights of the Corporation
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thereunder;
(iii) all licenses, permits, approvals, certificates and agreements
with or from any Governmental Entity relating directly or
indirectly to the ownership, use, development, operation and
maintenance of the Real Estate or the alteration or renovation or
construction of improvements on the Real Estate, whether
heretofore or hereafter issued or executed;
(iv) all options, contracts, subcontracts, agreements, service
agreements, warranties and purchase orders which have heretofore
been or will be hereafter be executed by or on behalf of the
Corporation or which have been assigned to the Corporation, in
connection with the use, development, operation and maintenance
of the Real Estate or the construction of improvements on the
Real Estate; and
(v) the benefit of all guarantees and indemnities with respect to any
lease of the Real Estate and the performance of any obligations
of any tenant thereunder;
(b) all leasehold property now or hereafter leased by the Corporation,
including the leasehold property described in Schedule "B" hereto,
together with all buildings, erections and improvements thereon and
fixtures forming a part thereof (collectively, the "Leasehold Real
Estate");
(c) all tools, machinery, equipment and supplies (installed or
uninstalled) not included in Inventory below, now owned or hereafter
acquired by the Corporation, including furniture, chattels, motor
vehicles and accessories, and any other equipment used in connection
with the Corporation's business or otherwise owned by the Corporation
(collectively, the "Equipment");
(d) all inventory now owned or hereafter acquired by the Corporation,
including (i) finished goods, work in process, raw materials, goods
in transit, new and unused production, packing and shipping
materials, (ii) all new and unused maintenance items, and (iii) all
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other materials and supplies on hand to be used or
consumed, in connection with the manufacture, packing, shipping,
advertising, selling or furnishing of goods and services
(collectively, the "Inventory");
(e) all right to payment for goods sold or leased or for services
rendered, whether or not earned by performance, and including all
agreements with and sums due from customers and other Persons
(collectively, the "Accounts");
(f) all contracts and leases to which the Corporation is a party,
including construction contracts, management agreements,
rights-of-way, easements, supplier agreements and other agreements,
whether now existing or hereafter arising, and including lease
agreements for personal property and other contracts and contractual
rights, remedies or provisions now existing or hereafter arising in
favour of the Corporation, and further including those contracts and
leases described in Schedule "C" hereto (collectively, the
"Contracts");
(g) all shares, stock, warrants, deeds, debentures, debenture stock and
all other documents, whether now owned or hereafter acquired by the
Corporation, which constitute evidence of a share, participation or
other interest of the Corporation in property or in an enterprise, or
which constitutes evidence of an obligation of the issuer thereof
(collectively, the "Negotiable Collateral");
(h) all general intangibles now owned or hereafter acquired by the
Corporation, including goodwill, choses in action, copyrights, trade
names, trademarks, patents, industrial designs, trade secrets and
other industrial or intellectual property of the Corporation,
together with all related property, both tangible and intangible
(collectively, the "Intangibles");
(i) to the extent permitted by Applicable Law, all franchises, licenses,
authorizations, approvals, permits and operating rights authorizing
or relating to the Corporation's rights to operate its business
(collectively, the "Licenses");
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(j) all books, accounts, invoices, letters, papers, documents, ownership
certificates, manuals, publications, statements of account, bills,
invoices and other documents or records in any form whatsoever
(including computer records) evidencing or relating to the property
described in Sections 3.1(a) to 3.1(i), both inclusive, 3.1(k) and
3.1(l) (collectively, the "Records");
(k) any substitutions and replacements of, and increases, additions and,
where applicable, accessions to the property described in Sections
3.1(a) to 3.1(j), both inclusive (the "Substitute Property"); and
(l) all proceeds in any form now or hereafter derived from the sale,
lease or other disposition of any of the property and assets of the
Corporation subject to, or intended to be subject to, the Security
Interest (as hereinafter defined) (the "Proceeds").
The Real Estate, Leasehold Real Estate, Equipment, Inventory, Accounts,
Contracts, Negotiable Collateral, Intangibles, Licenses, Records, Substitute
Property and Proceeds are herein collectively referred to as the "Mortgaged
Property". The mortgages, charges, pledges, transfers, subleases, assignments
and security interests granted hereby secure payment of the Obligations Secured
and are herein collectively referred to as the "Security Interest".
3.2 EXCEPTION FOR LAST DAY OF LEASES
The last day of the term reserved by any lease or sub-lease, oral or
written, or any agreement therefor now held or hereafter acquired by the
Corporation is hereby excepted out of the Security Interest and does not and
shall not form part of the Mortgaged Property, but the Corporation shall stand
possessed of such last day in trust to assign the same as the Holder shall
direct upon the sale of any leasehold interest on any part thereof in the
course of the enforcement by the Holder of the Security Interest.
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3.3 EXCEPTION FOR CONTRACTUAL RIGHTS
Unless and until the Holder so declares to the contrary by notice in
writing given to the Corporation, the security created hereby does not and
shall not extend to, and Mortgaged Property shall not include, any Contract or
License (the "Contractual Rights") to which the Corporation is a party or of
which the Corporation has the benefit, to the extent that the creation of the
security therein would constitute a breach of the terms of or permit any Person
to terminate the Contractual Rights, but the Corporation shall hold its
interest therein in trust for the Holder and shall assign such Contractual
Rights to the Holder forthwith upon obtaining the consent of the other party
thereto. The Corporation agrees that it shall, upon the request of the Holder,
make all reasonable efforts to obtain any consent required to permit any
Contractual Rights to be subjected to the security created hereby.
3.4 TRANSACTIONS IN ORDINARY COURSE OF BUSINESS
Until the Security Interest shall have become enforceable, the Security
Interest shall in no way hinder or prevent the Corporation from selling,
assigning, transferring, exchanging, leasing or otherwise disposing of or
dealing with the Mortgaged Property in the ordinary course of its business and
for the purpose of carrying on the same, provided such action is not in breach
of the covenants herein contained or of any agreement to which the Holder and
the Corporation are parties.
3.5 ATTACHMENT
(a) The Corporation and the Holder hereby acknowledge that: (i) value has
been given; (ii) the Corporation has rights in the Mortgaged Property
(other than Mortgaged Property acquired after the date hereof); (iii)
they have not agreed to postpone the time for attachment of the
Security Interest;
(b) If the Corporation acquires any Negotiable Collateral after the date
hereof (other than cheques, promissory notes and other bills of
exchange that are acquired in the ordinary course of business of the
Corporation) not otherwise specifically charged to the Holder by
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means satisfactory to the Holder, in its sole discretion, the
Corporation will, forthwith upon receipt by the Corporation, deliver
to the Holder (on its own behalf and as administrative agent for the
Banks) such Negotiable Collateral and shall, at the request of the
Holder: (i) cause the transfer thereof to the Holder, to be
registered wherever, in the opinion of the Holder, such registration
may be required or advisable; (ii) duly endorse the same for transfer
in blank or as the Holder may direct; and (iii) forthwith deliver to
the Holder any and all consents or other instruments or documents
which may be necessary to effect the transfer of the Negotiable
Collateral to the Holder or any third party; and
(c) The Corporation hereby agrees to promptly inform the Holder in
writing of the acquisition by the Corporation of any property which
is intended to constitute Mortgaged Property, whether real or
personal, or which is not adequately described herein, and the
Corporation agrees to execute and deliver at its own cost and 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 Interest shall be properly recorded
and perfected and attach to such property.
3.6 LICENSES AND CONTRACTS
Neither the Holder nor the Banks will be deemed in any manner to have
assumed any obligation of the Corporation under any of the Licenses or
Contracts nor shall the Holder or the Banks be liable to any Governmental
Entity by reason of any default by any Person under the Licenses or Contracts.
The Corporation agrees to indemnify and hold the Holder and each of the Banks
harmless of and from any and all liability, loss or damage which they may incur
by reason of any claim or demand against any of them based on their alleged
assumption, by virtue of the execution and delivery of this Debenture and the
creation of the Security Interest, of the Corporation's duty and obligation to
perform and discharge the terms, covenants and agreements in the Licenses and
Contracts.
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ARTICLE 4
COVENANTS OF THE CORPORATION
4.1 GENERAL COVENANTS
The Corporation declares, covenants and agrees that it:
(a) As to Title - is the sole beneficial owner of, and has a good and
marketable title to, and will be lawfully possessed of, the Mortgaged
Property free and clear of all Liens except those permitted under the
provisions governing the Obligations Secured, and has full legal
right to grant the Security Interest pursuant to this Debenture. No
Person has any written or oral agreement, option, understanding or
commitment, or any right or privilege capable of becoming any
agreement, option, understanding or commitment, to purchase from the
Corporation any of the Mortgaged Property, except as permitted by the
provisions governing the Obligations Secured;
(b) To Maintain Corporate Existence - shall preserve and maintain its
existence, and its material rights, franchises, licences and
privileges in the jurisdiction of its incorporation and shall advise
the Holder promptly in writing in advance of any proposed change in
its name;
(c) To Maintain Security - except for the filing of renewal statements
and the making of other filings by the Holder as a secured party
hereunder, shall take all action and supply the Holder with all
information necessary to maintain the Security Interest as a valid
and effective security at all times so long as any Obligations
Secured are outstanding hereunder;
(d) To Keep Records - shall maintain a system of accounting established
and administered in accordance with GAAP, shall keep adequate records
and books of account in which complete entries will be made in
accordance with GAAP and reflect all transactions
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required to be reflected by GAAP, and shall keep accurate and
complete records of its properties and assets;
(e) Maintenance of Mortgaged Property - shall maintain or cause to be
maintained in the ordinary course of business in good repair, working
order and condition (reasonable wear and tear accepted) all Mortgaged
Property, other than obsolete Equipment or unused assets, and from
time to time make or cause to be made all needed and appropriate
repairs, renewals, replacements, additions, betterments, and
improvements thereto;
(f) To Furnish Proofs - shall forthwith on the happening of any loss or
damage furnish at its expense all necessary proofs and do all
necessary acts to enable the Holder to obtain payment of the
insurance moneys in accordance with any insurance policies in respect
of the Mortgaged Property;
(g) Not to Remove - subject to Section 3.4, shall not transfer any of the
Mortgaged Property from a jurisdiction in which the Security Interest
is perfected to a jurisdiction in which the Security Interest would
not be perfected, until the Corporation has, at its sole cost and
expense: (i) effected such further registrations and obtained such
consents as are required to perfect, preserve and protect the
Security Interest in the jurisdiction to which the Corporation
proposes to transfer the Mortgaged Property; or (ii) given such other
security as may be required or desirable (in the sole determination
of the Holder) to protect or preserve the Security Interest; and the
Corporation shall promptly notify the Holder in advance of the
intended transfer and the action proposed to be taken;
(h) No Liens - shall not create, assume, incur or permit to exist, or to
be created, assumed or permitted to exist, directly or indirectly,
any Liens upon any part of the Mortgaged Property, other than the
Security Interest and any Liens permitted under the provisions
governing the Obligations Secured, and the Corporation shall at all
times keep such permitted Liens in good standing;
(i) Contracts and Licenses - shall (i) fulfil, perform and observe each
and every material
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condition and covenant contained in any of the Contracts and
Licenses, (ii) give prompt notice to the Holder of any claim of
default under any Contract or License, (iii) at the sole cost and
expense of the Corporation, enforce the performance and observance of
each and every material covenant and condition of the Contracts, and
(iv) appear in and defend any action growing out of or in any manner
connected with any Contract; and
(j) Place of Business - keep its chief executive office, its principal
place of business, its registered office and the location where it
keeps its corporate records, including records respecting the
Accounts, at the address listed in Schedule "D" hereto. Schedule "D"
also contains all other places of business of the Corporation. The
Corporation shall not change its principal place of business, or the
location of the office where it keeps its corporate records, without
the Holder's prior written consent, and the Corporation shall give
the Holder written notice within fifteen (15) days of acquiring any
other places of business.
4.2 VERIFICATION OF MORTGAGED PROPERTY
The Corporation will permit representatives of the Holder and any
of the Banks upon reasonable notice, to (i) visit and inspect the Mortgaged
Property during business hours, (ii) inspect and make extracts from and
copies of the Corporation's books and records, and (iii) discuss with principal
officers of the Corporation the Corporation's business, assets, liabilities,
financial position, results of operations and business prospects. The
Corporation will also permit representatives of the Holder and any of the Banks
to discuss with the Corporation's accountants the Corporation's business,
assets, liabilities, financial position, results of operations and business
prospects.
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4.3 FURTHER ASSURANCES
The Corporation shall, at its own expense do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, mortgages, pledges, charges, assignments, security
agreements, hypothecs, and assurances (including instruments supplemental or
ancillary hereto) and such financing statements as the Holder may from time to
time request to better assure and perfect the Security Interest.
ARTICLE 5
DEFAULT AND ENFORCEMENT
5.1 DEFAULT
The Security Interest shall become enforceable against the
Corporation if and when the Corporation shall fail to pay or perform any of the
Obligations Secured when due and payable or required to be performed, as
the case may be, all as specified in the provisions governing the Obligations
Secured. Whenever the Security Interest has become enforceable, the
Obligations Secured shall immediately become due and payable by the Corporation
to the Holder (on its own behalf and as administrative agent for the Banks)
without the necessity of any further act or formality and, when and after the
Holder exercises any of the remedies available to it under Section 5.2, the
Corporation shall not be entitled to sell, assign, transfer, exchange, lease or
otherwise dispose of or deal with all or any part of the Mortgaged Property.
5.2 REMEDIES
Whenever the Security Interest has become enforceable, the Holder (on
its own behalf and as administrative agent for the Banks) may in its discretion:
(a) take possession of all or any part of the Mortgaged Property with
power to exclude the Corporation and its officers, employees and
agents therefrom;
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(b) take all such steps as the Holder may consider necessary or desirable
for the purposes of preserving, maintaining and completing all or any
part of the Mortgaged Property and making such replacements thereof
and improvements and additions thereto as the Holder may consider
expedient;
(c) carry on all or any part of the business of the Corporation relating
to the Mortgaged Property and use all or any part of the Mortgaged
Property directly in carrying on the Corporation's business or as
security for loans or advances to enable the Holder to carry on the
Corporation's business or otherwise;
(d) receive the rents, incomes and profits of any kind whatsoever from
the Mortgaged Property and pay therefrom: (i) any expenses of
preserving, maintaining and completing the Mortgaged Property, of
making such replacements thereof and improvements and additions
thereto as the Holder may consider expedient and of carrying on all
or any part of the Corporation's business relating to the Mortgaged
Property; and (ii) any charges against the Mortgaged Property ranking
in priority to or pari passu with the Security Interest or the
payment of which may be necessary or desirable to preserve or protect
all or any part of the Mortgaged Property or the interest of the
Holder therein;
(e) lease all or any part of the Mortgaged Property and renew from time
to time all or any of the leases relating to the Real Estate or the
Leasehold Real Estate on such terms and conditions as the Holder may
determine;
(f) with or without taking possession, take any action or proceedings to
enforce the performance of any covenant contained in any of the
leases relating to the Real Estate or the Leasehold Real Estate;
(g) enjoy and exercise all the powers of the Corporation as the
Holder considers necessary or desirable for the exercise of any and
all of the remedies of the Holder provided for herein, including the
powers to make any arrangement or compromise on behalf and in
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the name of the Corporation which the Holder considers expedient, to
purchase on credit and borrow money on behalf and in the name of the
Corporation and to advance their own moneys to the Corporation, all
at such rates of interest as the Holder may consider reasonable, and
to enter into contracts and undertake obligations on behalf of and in
the name of the Corporation for any and all of the foregoing purposes
or which the Holder considers necessary or desirable for the exercise
of any of the rights, powers and remedies of the Holder provided for
herein, all of which borrowings, advances and obligations together
with interest thereon shall, at the discretion of the Holder, be
entitled to the security hereof in priority to the payment of the
Obligations Secured;
(h) sell or otherwise dispose of all or any part of the Mortgaged
Property;
(i) apply to a court for the appointment of a Receiver to take possession
of all or such part of the Mortgaged Property as the Holder shall
designate, with such duties, powers and obligations as the court
making the appointment shall confer;
(j) appoint a Receiver of all or any part of the Mortgaged Property by
instrument in writing executed by the Holder;
(k) institute proceedings in any court of competent jurisdiction for sale
or foreclosure of the Mortgaged Property; and
(l) take any steps or proceedings of any kind permitted by Applicable Law
or in equity or otherwise to enforce payment of the Obligations
Secured or performance of any other covenant or obligation of the
Corporation contained herein, and exercise all rights and remedies of
a secured party under the PPSA.
5.3 REMEDIES CUMULATIVE AND WAIVER
The rights and remedies hereunder of the Holder are cumulative and
are in addition to and not in substitution for any other rights and remedies
provided by law or by equity. Any single or
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partial exercise by the Holder of any right or remedy in respect of a
default or breach of any term, covenant or condition contained herein shall not
be deemed to be a waiver thereof or to alter, affect or prejudice any other
right or remedy hereunder or other rights or remedies to which the Holder may be
lawfully entitled, for such default or breach. The Holder shall at all times
have the right to proceed against all or any portion of the Mortgaged Property
or any other security in such order and in such manner as it shall determine
without waiving any rights, powers or remedies which the Holder may have with
respect to this Debenture or any other security or at law, in equity or
otherwise. No delay or omission by the Holder in exercising any right, power or
remedy hereunder or otherwise shall operate as a waiver thereof or of any other
right, power or remedy. Any waiver by the Holder of the strict observance,
performance or compliance with any term, covenant, condition or agreement herein
contained and any indulgence granted, either expressly or by course of conduct,
by the Holder shall be effective only in the specific instance and for the
purpose for which it was given and shall be deemed not to be a waiver of any
rights and remedies of the Holder hereunder as a result of any other default or
breach hereunder. No consent or waiver by the Holder shall be effective unless
made in writing and signed by an authorized officer of the Holder.
5.4 RECEIVER APPOINTED BY HOLDER
(a) 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 Mortgaged Property and such other powers
and discretions as are granted in the instrument of appointment and
any instrument or instruments supplemental thereto. The identity of
the Receiver or any replacement thereof and any remuneration thereof
shall be within the sole and unfettered discretion of the Holder.
(b) Any Receiver appointed by the Holder shall act as agent for the
Holder for the purposes of taking possession of the Mortgaged
Property, 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 the Mortgaged Property as agent for
the Corporation or as agent for the Holder as the Holder may
determine in its discretion. The Receiver shall apply all monies from
time to time received by the Receiver to payment of the Obligations
Secured
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in the order of priority specified in Section 6.1. The
Corporation agrees to indemnify the Receiver in respect of all
actions of the Receiver, acting as agent for the Corporation, except
that the Corporation shall not be liable to indemnify the Receiver
for any claims or losses resulting from the gross negligence or
wilful misconduct of the Receiver.
(c) 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.
5.5 APPOINTMENT OF ATTORNEY
The Corporation hereby irrevocably appoints the Holder (and any officers
thereof) as attorney of the Corporation (with full power of substitution) to
exercise, at any time when and after the Security Interest has become
enforceable , 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 Mortgaged Property including the execution, endorsement and delivery
of any agreements, documents, instruments, securities, documents of title and
chattel paper and any notices, receipts, assignments or verifications of the
accounts. 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 an other
matter or thing in connection therewith, except for its own gross negligence or
wilful misconduct.
5.6 DEALING WITH THE MORTGAGED PROPERTY AND THE SECURITY INTEREST
(a) The Holder shall not be obliged to exhaust its recourse against the
Corporation or any other Person or Persons or against any other
security the Holder may hold in respect of the Obligations Secured
before realizing upon or otherwise dealing with the Mortgaged
Property in such manner as it may consider desirable.
(b) The Holder 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 parties, sureties
or securities as it sees fit without prejudice to the Obligations
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Secured or the rights of the Holder in respect of the Mortgaged
Property.
(c) Neither the Holder nor the Banks shall be: (i) liable or accountable
for any failure to collect, realize or obtain payment in respect of
the Mortgaged Property; (ii) bound to institute proceedings for the
purpose of collecting, enforcing, realizing or obtaining payment of
the Mortgaged Property or for the purpose of preserving any rights of
the Holder or the Banks, the Corporation or any other Person in
respect thereof; (iii) responsible for any loss occasioned by any
sale or other dealing with the Mortgaged Property or by the retention
of or failure to sell or otherwise deal therewith; and (iv) bound to
protect the Mortgaged Property from depreciating in value or becoming
worthless.
5.7 STANDARDS OF SALE
Subject to Applicable Law, and without prejudice to the ability of
the Holder to dispose of the Mortgaged Property in any manner which is
commercially reasonable, the Corporation acknowledges that a disposition of
Mortgaged Property by the Holder which takes place substantially in accordance
with the following provisions shall be deemed to be commercially reasonable:
(a) Mortgaged Property may be disposed of in whole or in part;
(b) Mortgaged Property may be disposed of by public auction, public
tender or private contract, with or without advertising and without
any other formality;
(c) any purchaser or lessee of such Mortgaged Property may be a customer
of the Holder or any of the Banks;
(d) a disposition of Mortgaged Property 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 Mortgaged
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Property.
5.8 DEALINGS BY THIRD PARTIES
No Person dealing with the Holder or its agent or a Receiver shall be
required:
(a) to determine whether the Security Interest has become enforceable;
(b) to determine whether the powers which the Holder or its agent is
purporting to exercise have been exercisable;
(c) to determine whether any money remains due to the Holder by the
Corporation;
(d) to determine the necessity or expediency of the stipulations and
conditions subject to which any sale or lease shall be made;
(e) to determine the propriety or regularity of any sale or any other
dealing by the Holder with the Mortgaged Property; or
(f) to see to the application of any money paid to the Holder.
The Security Interest hereby constituted is in addition to and not in
substitution for any security now held or hereinafter acquired by the Holder or
the Banks as security for the Obligations Secured.
5.9 CORPORATION LIABLE FOR THE DEFICIENCY
In the case of any judicial or other steps or proceedings to enforce
the Security Interest, and without limiting any right of the Holder to obtain
judgment for any greater amount, the Corporation shall remain liable to the
Holder for any amount which may remain due in respect of the Obligations
Secured after application to the payment thereof of the proceeds of any sale,
lease or other disposition of the Mortgaged Property or any part thereof.
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5.10 NOTICE OF SALE
Unless required by Applicable Law, neither the Holder nor any Receiver
appointed by it shall be required to give the Corporation any notice of any
sale, lease or other disposition of the Mortgaged Property or any part thereof
or the date after which any private disposition of Mortgaged Property or any
part thereof is to be made.
5.11 PAYMENT OF PRIOR CLAIMS
If, when and after the Security Interest has become enforceable, the
Holder is at any time required to make a payment to defeat or honour the
priority or possible priority of any Liens (including Liens permitted under the
provisions governing the Obligations Secured) on or in respect of all or any
part of the Mortgaged Property, any such payment or payments, and the costs,
charges and expenses of the Holder in connection therewith (including legal
fees on a solicitor and client basis) shall be payable by the Corporation on
demand and form part of the Obligations Secured.
ARTICLE 6
APPLICATION OF MONEYS
6.1 APPLICATION OF MONEYS
The moneys arising from the enforcement of the Security Interest as a
result of the possession by the Holder or the Receiver of the Mortgaged
Property or any part thereof or from any sale, lease or other disposition of,
or realization of security on, the Mortgaged Property or any part thereof
(except following foreclosure or other acceptance of the Mortgaged Property or
part thereof in satisfaction of the Obligations Secured) shall be applied by
the Holder or the Receiver in the following order, except to the extent
otherwise required by Applicable Law or by any agreement entered into by the
Holder (on its own behalf and as administrative agent for the Banks), the
Corporation and any other secured creditors of the Corporation with respect to
the application of such moneys:
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(a) first, in payment of the Holder's and the Banks' reasonable costs,
charges and expenses (including legal fees on a solicitor and his own
client basis) incurred in the exercise of all or any of the rights,
powers or remedies granted under this Debenture, and in payment of
the reasonable remuneration of the Receiver, if any, and the
reasonable costs, charges and expenses incurred by the Receiver, if
any, in the exercise of all or any of the rights, powers or remedies
available to the Receiver under this Debenture;
(b) second, in payment of amounts paid by the Holder or the Receiver
pursuant to Section 5.2(d)(ii);
(c) third, in payment of all money borrowed or advanced by the Holder or
the Receiver, if any, whether evidenced by Receiver's certificates or
otherwise, pursuant to the exercise of the rights, powers or remedies
set out in this Debenture and any interest thereon;
(d) fourth, in payment of the remainder of the Obligations Secured in
such order of application as the Holder may determine;
(e) fifth, to any Person entitled thereto by Applicable Law in priority
to the Corporation; and
(f) sixth, to the Corporation.
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6.2 PAYMENT INTO COURT
Where there is a question as to any Person who is entitled to receive
payment under Section 6.1, the Holder or the Receiver may pay the moneys
referred to therein into court.
ARTICLE 7
GENERAL
7.1 RELEASES
The Holder, on its own behalf and as administrative agent for the
Banks, may in its discretion, from time to time, release any part of the
Mortgaged Property or any other security either with or without any sufficient
consideration therefor, without responsibility therefor and without thereby
releasing any other part of the Mortgaged Property or any other security or any
Person from the Security Interest or from any of the covenants herein
contained. Each and every portion into which the Mortgaged Property is or may
hereafter be divided does and shall stay charged with the Obligations Secured.
No Person shall have the right to require the Obligations Secured to be
apportioned and neither the Holder nor the Banks shall be accountable to the
Corporation for any moneys except those actually received by the Holder or the
Banks, as the case may be.
7.2 EXPENSES
The Corporation shall pay to the Holder on demand all of the Holder's
and the Banks' reasonable costs, charges and expenses (including, without
limitation, legal fees on a solicitor and his own client basis and Receiver's
fees) in connection with the preparation, registration or amendment of this
Debenture, the perfection or preservation of the Security Interest, the
enforcement by any means of any provisions hereof or the exercise of any
rights, powers or remedies hereunder, including all such costs, charges and
expenses in connection with taking possession, maintaining, completing,
preserving, protecting, collecting or realizing upon all or any part of the
Mortgaged Property or carrying on all or any part of the business of the
Corporation relating to the Mortgaged Property.
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7.3 DISCHARGE OF DEBENTURE
After the Obligations Secured have been paid in full, the Holder
shall, at the written request and expense of the Corporation, cancel and
discharge this Debenture and execute and deliver to the Corporation such
instruments as shall be necessary to discharge this Debenture and to release or
reconvey to the Corporation any property and assets subject to the Security
Interest.
7.4 NO MERGER OF ESTATES
There shall not be deemed to be any merger of this Debenture, nor of
the rights and interests of the Holder hereunder, with the estate in the Real
Estate or with the reversion or rights and interests of the Corporation or the
Holder under any instrument affecting the Mortgaged Property by reason only of
the fact that the same Person may own or acquire, directly or indirectly, two
or more estates, rights or interests in the Mortgaged Property until all
Persons having any interest under this Debenture, in the estate in the Real
Estate or in the reversion or rights and interests of the Corporation or the
Holder under any instrument affecting the Mortgaged Property, by an appropriate
instrument, so declare and provide.
7.5 NO OBLIGATION TO ADVANCE
Neither the issue nor delivery of this Debenture shall obligate the
Holder or the Banks to advance any funds, or otherwise make or continue to make
any credit available, to the Corporation.
7.6 EXCLUSION OF IMPLIED COVENANTS
The implied covenants deemed to be included in a charge under
subsection 7(1) of the Land Registration Reform Act (Ontario) shall be and are
hereby expressly excluded from the terms of this Debenture.
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7.7 PERFECTION OF SECURITY
The Corporation, at the expense of the Corporation, shall register,
file or record all financing statements and other documents in all offices
where, in the opinion of the Holder's counsel such registration, filing or
recording is necessary or desirable to preserve, perfect or otherwise protect
the Security Interest and the priority thereof. The Holder shall have the
right to require that the form of this Debenture or any part thereof be amended
to reflect any changes in the Applicable Laws, whether arising as a result of
statutory amendments, court decisions or otherwise, in order to confer upon the
Holder the Security Interest.
7.8 ASSIGNMENTS AND PARTICIPATIONS
The Holder may sell, assign, transfer or otherwise dispose of all or
any of the Obligations Secured in accordance with the provisions governing the
Obligations Secured and, in such event, each and every immediate and successive
assignee, transferee or holder of all or any of the Obligations Secured, shall
have, in respect of the rights or obligations sold, assigned, transferred or
otherwise disposed of to it, the full benefit hereof to the same extent as if
it were an original party to the Obligations Secured or the part thereof so
sold, assigned, transferred or otherwise disposed of, without regard to any
set-off, counter-claim or equities between the Corporation and the Holder.
7.9 HOLDER AND BANKS
Each reference herein to any right granted to, benefit conferred upon,
or power exercisable by the Holder shall be a reference to the Holder for the
benefit of all the Banks, and each action taken or right exercised hereunder
shall be deemed to have been so taken or exercised by the Holder for its own
benefit and for the benefit of the Banks. The Corporation acknowledges that in
the event the Holder should cease to act as administrative agent under the
Credit Agreement, a successor administrative agent shall have all the rights of
the Holder provided herein, or in the event that a successor administrative
agent is not appointed, each of the Banks shall have the rights ascribed to the
Holder hereby, in respect of that portion of the Obligations Secured owing by
the Corporation to such Bank.
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7.10 NOTICE
Any demand, notice or communication to be made or given hereunder shall
be in writing and shall be personally delivered to an officer or other
responsible employee of the addressee or sent by facsimile, charges prepaid, at
or to the applicable addresses or facsimile numbers, as the case may be, set
out below the respective parties' names as follows:
To the Corporation: ▇▇▇▇▇▇ Metal Products Co.
c/o Talon Automotive Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Timmis & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Holder: Comerica Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
Attention: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇.▇.▇. ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Barristers & Solicitors
Suite 2400
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses or facsimile number or numbers as any
party hereto may from time to time designate to the other parties in such
manner. Any communication which is personally delivered as aforesaid, shall be
deemed to have been validly and effectively given on the date of such delivery
if such date is a Business Day and such delivery was made during normal business
hours of the recipient; otherwise, it shall be deemed to have been validly and
effectively given on the Business Day next following such date of delivery. Any
communication which is transmitted by facsimile as aforesaid shall be deemed to
have been validly and effectively given on the date of transmission if such date
is a Business Day and such transmission was made during normal business hours of
the recipient; otherwise, it shall be deemed to have been validly and
effectively given on the Business Day next following such date of transmission.
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7.11 BENEFIT OF THE DEBENTURE
This Debenture shall enure to the benefit of the Holder on its own
behalf and as administrative agent for the Banks and its successors and assigns
and be binding upon the Corporation and its successors and permitted assigns.
7.12 COPY RECEIVED
The Corporation acknowledges receipt of a copy of this Debenture and
copies of the financing statements registered under any applicable provincial
or state statute or statutes in respect of the Security Interest.
7.13 TIME OF ESSENCE. Time shall be of the essence of this Debenture with
respect to the obligations of the Corporation hereunder.
IN WITNESS WHEREOF the Corporation has caused this Debenture to be
executed the day, month and year first written above.
▇▇▇▇▇▇ METAL PRODUCTS CO.
Per: _________________________________
Authorized Signing Officer
31
SCHEDULE "A"
REAL ESTATE
1. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇:
Those lands and premises located in the Township of Sandwich
South, in the County of Essex and Province of Ontario and being
composed of Part of Lot 12, Concession 6, in the said Township and
which said parcel or tract may be more particularly described as
follows:
BEARINGS are assumed astronomic and are referred to a Plan of the King's
Highway No. 401 according to Instrument No. 9790;
COMMENCING at a standard iron bar planted in the northern limit of the
North Talbot Road, distant 945.77 feet measured westerly in that limit
from the western limit of ▇▇▇▇▇▇ Road, as widened;
THENCE north seventy-one degrees, fifty-five minutes west following the
said northerly limit of the North Talbot Road, 346.17 feet to a standard
iron bar;
THENCE north three degrees, six minutes east and parallel with the
western limit of ▇▇▇▇▇▇ Road, as widened, 503.03 feet to an iron bar;
THENCE south eighty-seven degrees, fifty-seven minutes east 334.46 feet
to an iron bar;
THENCE south three degrees, six minutes west and parallel with the
western limit of ▇▇▇▇▇▇ Road, as widened, 598.66 feet more or less to the
place of commencement. Containing by admeasurement the sum of 4.229
acres be the same more or less.
2. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇:
Part of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, formerly in the
Township of Ekfrid, now in the Village of Glencoe in the County of
Middlesex, designated as Parts 1, 2, 3, 4, 8 and 10 on Reference Plan
34R-1667
32
SCHEDULE "B"
LEASEHOLD REAL ESTATE
1. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇:
Leasehold interest in all and Singular that certain parcel or tract of land
and premises situate, lying and being in the Township of Sandwich South, in
the County of Essex and Province of Ontario and being composed of Part of
Lot 12, in the 6th Concession in the said Township, containing by
admeasurement 2.00 acres, and more particularly described as follows:
PREMISING that the northerly limit of North Talbot Road, as referred to in
Instrument No. 493914 is assumed to have an astronomic bearing of North 71
degrees, 55 minutes west, and relating all bearings herein thereto;
COMMENCING at an iron bar planted in the said northerly limit of North
Talbot Road, distant 1480.91 feet, measured westerly therealong from its
intersection with the westerly limit of ▇▇▇▇▇▇ Road, as widened;
THENCE south 71 degrees, 55 minutes east, along the said northerly limit of
North Talbot Road, a distance of 189.07 feet to a standard iron bar;
THENCE north 3 degrees, 9 minutes east, a distance of 503.03 feet to an
iron bar;
THENCE 87 degrees, 56 minutes west, a distance of 182.71 feet to a standard
iron bar;
THENCE south 3 degrees, 9 minutes west, a distance of 450.86 feet more or
less, to a point of commencement pursuant to a lease made as of August 1,
1994, between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as landlord and North American Precision Tool
Ltd. as tenant and amended by First Amendment to Indenture made as of
November 8, 1996. Notice of this lease is registered as Instrument No.
1363306 and notice of the First Amendment to Indenture is registered as
Instrument No. 1367992. North American Precision Tool Ltd. was continued in
the Province of Nova Scotia as North American Precision Tool Limited
pursuant to a Certificate of Continuance registered on December 12, 1996 as
Instrument No. 1367995. North American Precision Tool Limited amalgamated
with ▇▇▇▇▇▇ Metal Products Co. pursuant to a Certificate of Amalgamation
registered on December 12, 1996 as Instrument No. 1367997.
2. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇:
Leasehold interest in Part of ▇▇▇ ▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇), ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇ ▇▇ and Part of Park Lots 24 and 20 and Part of ▇▇▇▇▇▇ Street (closed by
By-law 2650 Instrument No. 306784), Plan 125; Lots 60 to 74 inclusive on
Plan 649; Lot 20 and Alley on Plan 573; ▇▇▇▇ ▇, ▇, ▇, ▇ ▇▇▇ ▇▇▇▇ of Lots 1
and 6 on Plan 130, designated as Parts 1 and 2 on Reference Plan received
and deposited as No. 12R-14396, registered in the Land Registry
33
- 2 -
Office for the Land Registry Division of Essex (No. 12) at Windsor pursuant
to a lease made the 26th day of March, 1996 between ▇▇▇▇▇▇-▇▇▇▇▇ Canada
Limited and Albamor Industrial Estates Inc., carrying on business as a
joint venture known as Metro Industrial Centre, as landlord, and ▇▇▇▇▇▇
Stamping Corporation as tenant. Notice of this lease is registered as
Instrument No. 1362296.
3. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇:
Leasehold interest in all and Singular that certain parcel or tract of land
and premises situate, lying and being in the Township of Sandwich South, in
the County of Essex and Province of Ontario and being composed of Part of
Lot 12, in the 6th Concession in the said Township, containing by
admeasurement 2.00 acres, and more particularly described as follows:
PREMISING that the northerly limit of North Talbot Road, as referred to in
Instrument No. 493914 is assumed to have an astronomic bearing of North 71
degrees, 55 minutes west, and relating all bearings herein thereto;
COMMENCING at an iron bar planted in the said northerly limit of North
Talbot Road, distant 1480.91 feet, measured westerly therealong from its
intersection with the westerly limit of ▇▇▇▇▇▇ Road, as widened;
THENCE south 71 degrees, 55 minutes east, along the said northerly limit of
North Talbot Road, a distance of 189.07 feet to a standard iron bar;
THENCE north 3 degrees, 9 minutes east, a distance of 503.03 feet to an
iron bar;
THENCE 87 degrees, 56 minutes west, a distance of 182.71 feet to a standard
iron bar;
THENCE south 3 degrees, 9 minutes west, a distance of 450.86 feet more or
less, to a point of commencement pursuant to a lease made as of July 1,
1993, between ▇▇▇▇▇ ▇▇▇▇▇▇ as landlord and ▇▇▇▇▇▇ Stamping Corporation as
tenant and amended by First Amendment to Indenture made as of November 8,
1996. Notice of this lease is registered as Instrument No. 1363307 and
notice of the First Amendment to Indenture is registered as Instrument No.
1367991. ▇▇▇▇▇▇ Stamping Corporation was continued in the Province of Nova
Scotia as ▇▇▇▇▇▇ Stamping Corporation Limited pursuant to a Certificate of
Continuance registered on December 12, 1996 as Instrument No. 1367994.
▇▇▇▇▇▇ Stamping Corporation Limited amalgamated with ▇▇▇▇▇▇ Metal Products
Co. pursuant to a Certificate of Amalgamation registered on December 12,
1996 as Instrument No. 1367997.
34
SCHEDULE "C"
CONTRACTS
1. Sales Representation Contract between ▇▇▇▇▇▇ Stamping Corporation and
Bomber Industries, Inc. dated January 1, 1990.
2. Memorandum of Agreement between ▇▇▇▇▇▇ Stamping Corporation and Bomber
Industries, Inc. dated October 10, 1996 which supersedes item #1 above.
3. Settlement Agreement and Payment Contract among Eagle Wings Industries,
Inc., ▇▇▇▇▇▇ Stamping Corporation and ▇▇▇▇▇▇ Holdings USA, Inc. dated May
9, 1996. ▇▇▇▇▇▇ Holdings USA, Inc. guaranteed the payments due from
▇▇▇▇▇▇ Stamping Corporation. Consent from Eagle Wings Industries prior to
assignment is required.
4. Employment Contracts.
5. Palace Royalty Seat Agreement between ▇▇▇▇▇▇ Stamping Corporation and
Arena Associates, Inc. dated September 25, 1992 and extended on September
28, 1995. Contract rate is $36,000 per year. Contract expires on
September 30, 1997.
6. Nondisturbance Agreement between Royal Trust Corporation, ▇▇▇▇▇▇ Stamping
Corporation and Danarco Limited dated June 10, 1993.
35
SCHEDULE "D"
PLACES OF BUSINESS
Chief Executive Office: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇
Principal Place of Business: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇
Other Places of Business: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Registered Office: c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Stirling Scales, ▇▇▇▇▇'▇
Wharf Tower 1, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Location of Corporate Records: c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Stirling Scales, ▇▇▇▇▇'▇
Wharf Tower 1, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇