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EXHIBIT 10.72
G E N E R A L S E C U R I T Y A G R E E M E N T
Debtor: 3045207 Nova Scotia
Company
Secured Party: Foothill Capital Corporation
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GENERAL SECURITY AGREEMENT
(Business Debtor)
PARTIES
DEBTOR
Name: 3045207 NOVA SCOTIA COMPANY
Address: Summit Place
1601 Lower Water Street
Halifax, Nova Scotia
B3J 2V1
Fax No. (902) 425-6350
SECURED PARTY
Name: Foothill Capital Corporation
Address: 2450 Colorado Avenue,
Suite 3000 West
Santa Monica, California
90404
Fax No. (310) 453-7443
EFFECTIVE DATE
December 14, 2000 (the "Effective Date")
1. GRANT OF SECURITY INTEREST
For valuable consideration (the receipt and sufficiency of which each of
the parties hereto hereby acknowledges) the Debtor hereby grants to the Secured
Party a security interest (to which the Personal Property Security Act (Nova
Scotia) and the regulations thereto, as the same may be amended from time to
time (the "PPSA") applies) in and grants, mortgages and charges as and by way of
a fixed and specific mortgage and charge to and in favour of the Secured Party,
all of the Debtor's rights, title and interests in and to each and every
property described or referred to below (collectively, the "COLLATERAL"), all
pursuant to and in accordance with the provisions of this Agreement.
2. DESCRIPTION OF COLLATERAL
The Collateral includes all of the following personal property and
fixtures, and all of the leasehold interests and other property described in
paragraph 2.(j) below,
(a) all goods now or hereafter comprising part of the inventory of
the Debtor and all interests, rights and benefits, both present
and future of the Debtor in or to
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inventory including, without limitation, goods now or hereafter
held for sale or lease or furnished or to be furnished under a
contract of service or that are raw materials, work in process
or materials used or consumed in a business or profession or
finished goods;
(b) all equipment now or hereafter owned by the Debtor and all
interests, rights and benefits, both present and future, of the
Debtor in or to equipment including, without limitation, office,
warehouse and other furniture, fixtures, machinery, tools,
rolling stock, vehicles, accessories, spare parts, supplies and
other tangible personal property;
(c) all fixtures now or hereafter owned by the Debtor and all
interests, rights and benefits, both present and future, of the
Debtor in or to fixtures;
(d) all chattel paper now or hereafter owned or held by the Debtor
and all interests, rights and benefits, both present and future,
of the Debtor in, under or to chattel paper;
(e) each and every document of title now or hereafter owned by the
Debtor or of which the Debtor is or becomes a holder, whether
negotiable or non-negotiable, including, without limitation,
each and every warehouse receipt and bill of lading, and all
interests, rights and benefits, both present and future, of the
Debtor in, under or to each and every document of title;
(f) each and every instrument now or hereafter owned by the Debtor
or of which the Debtor is or becomes a holder, and all
interests, rights and benefits, both present and future, of the
Debtor in, under or to each and every instrument;
(g) each and every security now or hereafter owned by the Debtor or
of which the Debtor is or becomes a holder including, without
limitation, all shares, stocks, warrants, bonds, debentures,
debenture stock or the like issued by a corporation or other
person, or a partnership, association or government, and all
interests, rights and benefits, both present and future, of the
Debtor in, under or to each and every security;
(h) all money of the Debtor and all money hereafter acquired by the
Debtor and each and every account, debt, claim and demand of
every nature and kind which is now due, owing or accruing due or
which may hereafter become due, owing or accruing due to the
Debtor, or which the Debtor now has or may hereafter have and
all interests, rights and benefits, both present and future of
the Debtor in or to each and every account, debt, claim and
demand including, without limitation, claims against the Crown
and claims under insurance policies;
(i) all patents, industrial designs, trade-marks, trade secrets and
know-how including without limitation, environmental technology
and biotechnology, confidential information, trade-names,
goodwill, copyrights, personality rights, plant breeders'
rights, integrated circuit topographies, software and all other
forms of intellectual and industrial property, and any
registrations and applications for registration of any of the
foregoing (collectively, "INTELLECTUAL PROPERTY");
(j) each and every lease, agreement to lease and leasehold interest
of the Debtor and all interests, rights and benefits, both
present and future, of the Debtor, in, under
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or to the same, except the last day of any term of years
reserved by any such lease or agreement therefor of which
reversion of one day the Debtor shall stand possessed upon trust
to assign and dispose of the same as the Secured Party shall
direct;
(k) each and every intangible now or hereafter owned by the Debtor
or of which the Debtor is or becomes a holder, and all
interests, rights and benefits, both present and future, of the
Debtor in, under or to each and every intangible;
(l) with respect to the property described in each of subparagraphs
2.(a) to 2.(k) inclusive, all substitutions and replacements
thereof, improvements, increases, additions and accessions
thereto and all interests, rights and benefits, both present and
future, of the Debtor in, under or to the same;
(m) with respect to the property described in each of subparagraphs
2. (a) to 2.(l) inclusive, identifiable or traceable personal
property in any form derived directly or indirectly from any
dealing with such property or the proceeds therefrom and
includes any payment representing indemnity or compensation for
loss of or damage to such property or proceeds therefrom; and
(n) with respect to the property described in each of subparagraphs
2.(a) to 2.(m) inclusive, all books, accounts, invoices,
letters, deeds, contracts, security, securities, instruments,
bills, notes, writings, papers, documents and records in any
form evidencing or relating thereto, and all other rights and
benefits to which the Debtor is now or may hereafter become
entitled in respect thereof.
In this Agreement, the words "goods", "inventory", "equipment", "chattel
paper", "document of title", "instrument", "security", "money", "account",
"motor vehicle", "proceeds", "intangible" and "accessions" shall have the same
meanings as their defined meanings in the PPSA. In this Agreement, each
reference to "Collateral" shall, unless the context otherwise requires, include
and be read as "Collateral or any part thereof".
All of the Collateral, insofar as the same is not intangible property,
is now and will hereafter be kept at the address set out above.
3. SECURED OBLIGATIONS
The security interests, mortgages and charges granted hereby secure all
of the following (collectively, the "OBLIGATIONS"): both the performance and the
payment to the Secured Party of all obligations, debts and liabilities
(including, without limitation, on account of damages) of the Debtor to the
Secured Party, present or future, direct or indirect, absolute or contingent,
liquidated or unliquidated, matured or not, wheresoever and howsoever incurred,
(a) whether arising under this or any other agreement (whether
written or oral), instrument or writing;
(b) whether arising from dealings between the Secured Party and the
Debtor or from other dealings or proceedings by which the
Secured Party may be or become in any manner whatever a
creditor, obligee or promisee of the Debtor;
(c) whether incurred by the Debtor alone or with another or others;
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(d) whether incurred by the Debtor as principal, surety, indemnitor,
obligor or promissor; and
(e) whether such obligations, debts and liabilities are from time to
time reduced and thereafter increased or entirely extinguished
and thereafter incurred again,
all including, without limitation, all interest, commissions, legal and
other costs, charges and expenses payable in connection with any and all of the
foregoing and, in addition thereto, the Expenses (provided for and defined
below).
4. ATTACHMENT
Each of the Debtor and the Secured Party acknowledges and confirms that
the security interests, mortgages and charges granted hereby shall attach:
(a) forthwith upon the Effective Date with respect to each and every
property included in the Collateral and in which the Debtor then
has rights; and
(b) forthwith upon the Debtor first acquiring rights in each and
every property included in the Collateral and in which the
Debtor first acquires such rights subsequent to the Effective
Date.
For greater certainty, without in any way limiting the above, each of
the Debtor and the Secured Party acknowledges and confirms that they have not
agreed to postpone the time for attachment of the said security interests,
mortgages and charges.
5. DEBTOR'S WARRANTIES
The Debtor hereby represents and warrants to and covenants with the
Secured Party as follows and acknowledges that the Secured Party is, in part,
relying upon such representations, warranties and covenants in accepting the
security interests, mortgages and charges granted upon the terms of this
Agreement:
(a) Title to Collateral: The Debtor is the absolute and beneficial
owner of the Collateral and none of the Collateral is held in
the name of any person other than the Debtor, whether as agent,
trustee or other nominee for the Debtor, and all registrations
and filings which may be required to preserve the Debtor's
title, rights or other interests in the Collateral vis-a-vis
others have been made.
(b) No Encumbrances: The Collateral is and shall at all times be
kept free and clear of any and all, mortgages, hypothecs,
pledges, claims, adverse claims, demands, liens, charges,
security interests, encumbrances, agreements, rights and
equities of any kind whatsoever other than those given by the
Debtor to or in favour of Secured Party.
(c) Due Authorization: The Debtor has the corporate power and
capacity to enter into this Agreement and to do all acts and
things as are required or contemplated hereunder to be done,
observed and performed by it.
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(d) Right to Grant: The Debtor has taken all necessary corporate
action to authorize the execution, delivery and performance of
this Agreement and the Debtor shall at all relevant times have
the full right, power and authority to perform its obligations
hereunder and to grant the security interests, mortgages and
charges as herein provided.
(e) No Default: The entering into of this Agreement and the
performance by the Debtor of its obligations hereunder does not
and will not contravene, breach or result in any default under
any agreement to which the Debtor is a party or by which the
Debtor or any of its properties or assets may be bound and will
not result in or permit the acceleration of the maturity of any
indebtedness, liability or obligation of the Debtor under any
such agreement.
(f) No Litigation: Except as disclosed in writing to the Secured
Party, there is no court, administrative, regulatory or similar
proceeding (whether civil, quasi-criminal or criminal),
arbitration or other dispute settlement procedure, investigation
or enquiry by any government body, or any similar matter or
proceeding (collectively, "PROCEEDINGS") against or involving
the Debtor (whether in progress or threatened) which, if
determined adversely to the Debtor, would adversely affect its
business, property, financial condition or prospects or its
ability to perform any of the provisions of this Agreement. No
event has occurred which might give rise to any proceedings and
there is no judgment, decree, injunction, rule, award or order
of any governmental body outstanding against the Debtor which
has or may have an adverse effect on its business, property,
financial condition or prospects.
(g) Re Intellectual Property: All Intellectual Property applications
and registrations are valid and in good standing and the Debtor
is the owner of each of such applications and registrations.
6. DEBTOR'S COVENANTS
The Debtor covenants and agrees with the Secured Party that:
(a) Obligations: The Debtor shall pay, perform, satisfy, fulfil and
discharge the Obligations when due.
(b) Possession/Description: Forthwith upon request by the Secured
Party, the Debtor shall deliver possession of the Collateral to
the Secured Party and shall, if requested by the Secured Party,
deliver forthwith to the Secured Party such further details
respecting the Collateral and, if the Collateral includes
fixtures or crops, or oil, gas or other minerals to be
extracted, or timber to be cut, identification and legal
description (in registerable form) of the lands concerned. Such
further details and legal description so delivered shall be
deemed to be contained in and form part of this Agreement.
7. EVENTS OF DEFAULT
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Forthwith upon the occurrence of any of the following events (an "EVENT
OF DEFAULT"), the Obligations will, without the Secured Party being required to
give notice or demand, become due and payable in full and, to the extent
applicable, be required to be fully performed:
(a) the failure of the Debtor to pay when due any payment of any of
the Obligations;
(b) the failure of the Debtor to perform any of the Obligations;
(c) any representation, warranty, statement or report which is false
or incorrect in any respect having been made or given by the
Debtor to the Secured Party, whether contained herein or in any
other agreement (written or oral), instrument or writing;
(d) the failure or inability of the Debtor to pay any of its debts
or liabilities as the same fall due;
(e) the occurrence of a default by the Debtor under any agreement,
instrument or writing entered into by the Debtor with any
person(s);
(f) the Debtor making or agreeing to make an assignment, disposition
or conveyance, whether by way of sale or otherwise, of its
assets in bulk;
(g) the abandonment by the Debtor of the Collateral or any part
thereof;
(h) the Debtor ceasing or threatening to cease carrying on its
business or any of its businesses;
(i) the Debtor taking any action or commencing any proceeding or any
action or proceeding being taken or commenced by another person
or persons against the Debtor in respect of the liquidation,
dissolution or winding-up of the Debtor, including without
limitation, any action or proceeding under the Winding Up and
Restructuring Act, the Business Corporations Act (Ontario), the
Canada Business Corporations Act or other similar legislation in
Nova Scotia whether now or hereinafter in effect;
(j) the Debtor taking any action or commencing any proceeding or any
action or proceeding being taken or commenced by another person
or persons against the Debtor relating to the reorganization,
readjustment, compromise or settlement of the debts owed by the
Debtor to its creditors where such reorganization, readjustment,
compromise or settlement shall affect a substantial portion of
the Debtor's assets, including without limitation, the filing of
a notice of intention to make a proposal or the filing of a
proposal pursuant to the provisions of the Bankruptcy and
Insolvency Act, the making of an order under the Companies'
Creditors Arrangements Act or the commencement of any similar
action or proceeding by the Debtor or such person or persons;
(k) the Debtor committing or threatening to commit any act of
bankruptcy pursuant to or set out under the provisions of the
Bankruptcy and Insolvency Act;
(l) the filing of a petition for a receiving order against the
Debtor pursuant to the provisions of the Bankruptcy and
Insolvency Act;
(m) any execution, sequestration or other process of any court or
other tribunal becoming enforceable against the Debtor or a
distress or analogous action or
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proceeding being taken, commenced or issued against the Debtor
or levied upon or in respect of the Collateral or any part
thereof, or any lien, trust claim or any other right or
entitlement against or in respect of the Collateral or any part
thereof becoming effective, including, without limitation, a
warrant of distress of any rent in respect of any premises
occupied by the Debtor or any premises in or upon which the
Collateral or any part thereof may at any time be situate;
(n) a receiver, receiver and manager, agent, liquidator or other
similar administrator being appointed in respect of the
Collateral or any part thereof or the taking by a secured party,
lien claimant, other encumbrancer, judgement creditor or a
person asserting similar rights of possession of the Collateral
or any part thereof;
(o) the loss, damage, destruction or confiscation of any part of the
Collateral, unless upon such event, the Debtor pays to the
Secured Party forthwith such amount as the Secured Party in its
absolute and uncontrolled discretion determines is satisfactory;
and
(p) the Secured Party in good faith and having commercially
reasonable grounds for believing that the ability of the Debtor
to pay any monies hereby secured or to perform any requirement
of any provision contained in this Agreement or any other
agreement (written or oral), instrument or writing heretofore or
hereafter given by the Debtor to the Secured Party is impaired
or that the Collateral is in danger of being lost, damaged,
destroyed or confiscated.
8. RIGHTS AND REMEDIES
Forthwith upon the occurrence of an Event of Default, the security
interests, mortgages and charges granted herein shall be enforceable and the
Debtor and the Secured Party shall have, in addition to any other rights and
remedies provided by law, the rights and remedies of a debtor and a secured
party respectively under the PPSA and those provided by this Agreement. In
addition, the Secured Party may take possession of the Collateral and enforce
any rights of the Debtor in respect of the Collateral by any method available in
or permitted by law and may require the Debtor to assemble the Collateral and
deliver or make the Collateral available to the Secured Party at any place as
may be designated by the Secured Party.
9. EXPENSES
The reasonable costs and expenses of the Secured Party in the
preparation, execution and delivery of this Agreement, the registration of this
Agreement or of notices, financing statements or other filings in respect
thereof, the reasonable costs and expenses of the Secured Party in connection
with the preparation or review of waivers, consents, amendments, subordination
agreements or other matters pertaining to the subject matter of this Agreement,
the reasonable costs and expenses expressly provided for in the PPSA and, in
addition thereto, the cost of any insurance, taxes, solicitor's fees, costs and
other legal expenses and all other costs, charges and expenses of or incurred
(on a scale as between a solicitor and his own client) by the Secured Party in
respect of any of the foregoing and in respect of the enforcement of the
Obligations, including taking possession, custody, holding, preserving,
protecting, repairing, using or operating, collecting, realizing, processing,
preparing for disposition and disposing of the Collateral (collectively, the
"EXPENSES") shall be payable by the Debtor to the Secured Party forthwith upon
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demand, shall be deemed advanced to the Debtor by the Secured Party, shall bear
interest at a rate equal to the Prime Rate (defined below) plus 4% per annum
calculated, both before and after demand, maturity, default and judgment, from
the date each of the Expenses, respectively, was incurred until fully paid by
the Debtor and shall be secured by this Agreement.
"PRIME RATE" means the annual rate of interest announced from time to
time by Royal Bank of Canada as a reference rate then in effect for determining
interest rates on Canadian dollar commercial loans in Canada.
The Debtor authorizes the Secured Party to designate, in its sole
discretion, any number of years as the registration period in any financing
statement or financing change statement filed with respect to this Agreement or
any other agreement delivered by the Debtor to the Secured Party ("DESIGNATED
PERIOD").
The Debtor acknowledges and confirms that:
(a) all registration costs in connection with the filing of the
aforesaid financing statements or financing change statements
are and shall be reasonable and shall form part of the Expenses;
(b) the designation of the number of years comprising the Designated
Period shall not constitute an acknowledgement by or commitment
or other obligation of the Secured Party to provide financial
assistance (whether by loan, agreement or otherwise) to the
Debtor at any time or from time to time during the Designated
Period; and
(c) the Secured Party shall be entitled to exercise all of its
rights and remedies provided for in this Agreement forthwith
upon the occurrence of an Event of Default notwithstanding that
such Event of Default may occur prior to the expiration of the
Designated Period.
10. NOTICE OF DISPOSITION
Unless not required to do so by applicable law, the Secured Party shall
give to the Debtor at least 15 days written notice of the Secured Party's
intention to dispose of the Collateral. Such notice may be sent by registered
mail to the last known post office address of the Debtor.
11. RECEIVER - APPOINTMENT
The Secured Party may take proceedings in any court of competent
jurisdiction for the appointment of a receiver or a receiver and manager (the
"RECEIVER") of the Collateral or of any part thereof or may by instrument in
writing appoint any person to be a receiver of the Collateral or of any part
thereof and may remove any receiver so appointed by the Secured Party and
appoint another in his stead.
12. RECEIVER - POWERS
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Any receiver appointed hereunder by instrument in writing shall have
power (a) to take possession of the Collateral or any part thereof and, without
liability or obligation to the Debtor, to maintain, preserve and protect the
same; (b) to carry on or concur in carrying on all or any part of the business
or businesses of the Debtor; (c) to borrow money which such receiver, in its
sole discretion, determines is required in connection with either or both of the
powers provided for in paragraph (a) and (b); and (d) to dispose of the
Collateral in whole or in part, and any such disposition may be by public sale
(whether by auction, tender or otherwise), private sale, lease or otherwise, and
at such time and place and on such terms and for such price and manner of
payment thereof, all as such receiver may, in its sole discretion, determine;
provided that any such receiver shall be and is deemed to be the agent of the
Debtor and the Secured Party shall not in any way be responsible for any
misconduct, negligence or nonfeasance of any such receiver.
13. PROCEEDS OF DISPOSITION/DEFICIENCY
Any proceeds of any disposition of any of the Collateral shall be
applied by the Secured Party firstly on account of the Expenses, and any balance
of such proceeds shall be applied by the Secured Party on account of the
Obligations (other than the Expenses) in such order of application as the
Secured Party may from time to time effect and the same shall not be subject to
dispute by the Debtor. If such proceeds fail to satisfy the Obligations, the
Debtor shall be liable for the full amount of the deficiency resulting to the
Secured Party.
14. GENERAL PROVISIONS
(a) Discharge: The Debtor shall not be discharged from the
Obligations by any extension of time, additional advances,
renewals, amendments or extensions to this Agreement, any waiver
by or failure of the Secured Party to enforce any provision of
this Agreement or any other agreement, the taking of further
security, releasing security, extinguishment of the security
interests, mortgages and charges as to all or any part of the
Collateral, or any other act except a release or discharge by
the Secured Party of the security interests, mortgages and
charges granted hereby upon the full payment and performance of
the Obligations, at which time the Secured Party shall, at the
Debtor's expense, deliver to the Debtor all necessary discharges
and releases of the security interests, mortgages and charges
granted hereby.
(b) Other Security:
(i) The security constituted by this Agreement is in
addition to and not in substitution for any other
security, guarantee or right from time to time held by
the Secured Party;
(ii) The Secured Party may realize upon or enforce all or
part of any security, guarantee or right from time to
time held by it in any order it desires and any
realization by any means upon any security, guarantee or
right shall not bar realization upon any other security,
guarantee or right; and
(iii) The taking of any action or proceeding or refraining
from so doing or any other dealings with or in respect
of any other security, guarantee or right from time to
time held by the Secured Party shall not release or
affect the
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security provided for in this Agreement and the taking
of the security hereby granted or any proceedings
hereunder for the realization of the security hereby
granted shall not release or affect any other security,
guarantee or right from time to time held by the Secured
Party.
(c) Waiver, etc.: No failure or delay on the part of the Secured
Party to exercise any right provided for in or contemplated by
this Agreement and no waiver as to an Event of Default hereunder
shall operate as a waiver thereof unless made in writing and
signed by the Secured Party and, in that event, such waiver
shall operate only as a waiver of the right or Event of Default
expressly referred to therein. Nothing in this Agreement and
nothing referred to in the Obligations shall preclude any other
remedy by action or otherwise for the enforcement of this
Agreement or the payment and performance in full of the
Obligations.
(d) Secured Party Assignment: All rights and obligations of the
Secured Party hereunder shall be freely assignable in whole or
in part without the consent of the Debtor and in any action
brought by any assignee to enforce such rights, the Debtor shall
not assert against such assignee any claim, defence, right of
set-off, or the benefit of any equities which the Debtor now has
or may hereafter have against the Secured Party.
(e) Entire Agreement: This Agreement sets forth the entire intent
and understanding of the parties relating to the subject matter
hereof and supersedes and replaces all prior agreements and
commitments, whether written or oral, made between the parties
and all earlier discussions and negotiations between them. The
parties are not relying upon and there are no collateral or
other representations, warranties, agreements or covenants made
by any of the parties hereto which are not contained herein.
(f) Further Assurances: Each of the parties hereto shall and will,
from time to time and at all times hereafter upon every
reasonable written request so to do, make, do, execute and
deliver, or cause to be made, done, executed and delivered, all
such further papers, acts, deeds, assurances and things as may
be necessary or desirable in the opinion of any party or counsel
for any party, acting reasonably, for implementing and carrying
out more effectually the true intent and meaning of this
Agreement including, without limitation, to perfect or better
perfect the security interests, mortgages and charges of the
Secured Party in the Collateral or any part thereof.
(g) Severability: In the event that any covenant or provision
contained in this Agreement is held to be invalid, illegal or
unenforceable in whole or in part, the validity, legality and
enforceability of the remaining covenants and provisions shall
not be affected or impaired thereby and all such remaining
covenants and provisions shall continue in full force and
effect. All covenants and provisions hereof are declared to be
separate and distinct covenants or provisions, as the case may
be.
(h) Headings: All headings and titles in this Agreement are for
convenience of reference only and shall not affect the
interpretation of the terms hereof.
(i) Gender, etc.: In construing this Agreement, all words and
personal pronouns relating thereto shall be read and construed
as the number and gender of the party
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or parties referred to in each case require, and the verb
agreeing therewith shall be construed as agreeing with the
required word and pronoun. Words such as "hereunder", "hereto",
"hereof", "herein" and other words commencing with "here" shall,
unless the context clearly indicates the contrary, refer to the
whole of this Agreement and not to any particular paragraph or
part thereof.
(j) Binding Effect: All rights of the Secured Party hereunder shall
enure to the benefit of its successors and assigns and all
obligations of the Debtor hereunder shall bind the Debtor, its
successors and assigns. Each reference to the Secured Party in
this Agreement shall be deemed to include a reference to the
Secured Party, its successors and assigns and each reference to
the Debtor in this Agreement shall be deemed to include a
reference to the Debtor, its successors and assigns.
(k) Re Liabilities: If more than one person executes this Agreement
as Debtor, their obligations under this Agreement shall be joint
and several.
(l) Governing Law: This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws in force
in the Province of Nova Scotia and the laws of Canada applicable
therein and shall be treated in all respects as a Nova Scotia
contract. Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of Nova Scotia with respect to any
matter arising hereunder or related hereto.
(m) Notice: Subject to the specific requirements of the PPSA, any
demand, notice, request, consent, approval or other
communication required or permitted to be made or given by any
party hereto to any other party hereto in connection with this
Agreement shall be in writing and may be made or given by
personal delivery to such party or by transmittal by facsimile
transmission or similar electronic means of communication which
produces a paper record to such party at the fax number noted on
page 1 of this Agreement or, if a corporation, to a director
thereof or, if postal services and deliveries are then
operating, by mailing the same by prepaid registered post to
such party at its address noted on page 1 of this Agreement or
at such other address which the party to whom such communication
is being given may have designated by notice given in accordance
with the provisions of this paragraph. Any communication so
delivered or transmitted by electronic means of communication
shall be deemed to have been given and received on the day of
delivery or transmittal, if a business day, or if not a business
day, on the business day next following the day of delivery or
transmittal, and any communication so mailed shall be deemed to
have been given and received on the fourth business day
following and exclusive of the date of mailing. In this
paragraph, "business day" means any day except a Saturday,
Sunday or statutory holiday in the Province of Ontario. Either
party may give notice in writing to the other in the manner
provided in this paragraph of any change of fax number or
address of the party giving such notice, and from and after the
giving of such notice, the fax number or address therein
specified shall be deemed to be the fax number or address of
such party for purposes of this paragraph.
(n) Failure to Perfect: The Secured Party shall not be liable or
accountable for any negligence or failure to perfect its
security interests, mortgages and charges granted herein, seize,
collect, realize, sell or obtain payment for the Collateral or
any part thereof and shall not be bound to institute proceedings
for the purpose of seizing, collecting, realizing or obtaining
possession or payment of the same for the
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purpose of preserving the rights of the Debtor or any other
person, firm or corporation in respect of same.
(o) No Amendment: This Agreement may not be amended, altered or
qualified except by a memorandum in writing signed by all of the
parties hereto and any amendment, alteration or qualification
hereof shall be null and void and shall not be binding upon any
party who has not signed such memorandum.
(p) Power of Attorney: The Secured Party, or any receiver appointed
hereunder is hereby irrevocably constituted as the duly
appointed lawful attorney of the Debtor with full power to make,
do, execute and deliver all such documents, assignments, acts,
matters or things on behalf of the Debtor with the right to use
the name of the Debtor whenever and wherever it may be deemed
necessary or expedient. The power of attorney hereby granted is
a power coupled with an interest and shall survive the
dissolution, liquidation, winding-up or other termination of
existence of the Debtor. The Debtor agrees to and does hereby
ratify all acts done and all documents executed and delivered by
the Secured Party pursuant to the power of attorney hereby
granted and the Debtor hereby confirms that the Secured Party
and all third parties are entitled to rely upon such
ratification.
(q) Time of Essence: Time shall be strictly of the essence of this
Agreement and of every part thereof and no extension or
variation of this Agreement shall operate as a waiver of this
provision.
(r) Debtor's Receipt: The Debtor hereby acknowledges receipt of a
fully signed copy of this Agreement.
IN WITNESS WHEREOF the Debtor and the Secured Party have
executed this Agreement and agree to be bound thereby as of the Effective Date
set out above.
THE CORPORATE SEAL of 3045207 )
NOVA SCOTIA COMPANY was hereunto )
affixed in the presence of: )
) c/s
)
/s/ COREY E. FISCHER )
- ---------------------------------------------)
Authorized Signatory )
)
)
- ---------------------------------------------)
Authorized Signatory )
14
- 13 -
FOOTHILL CAPITAL CORPORATION by )
its authorized signatories: )
)
)
/s/ WILLIAM SHIAO )
- ---------------------------------------------)
Authorized Signatory )
)
)
- ---------------------------------------------)
Authorized Signatory )
)