EXHIBIT 10.9
GENERAL SECURITY AGREEMENT
DEBTOR: IRON AGE CANADA LTD.
000 Xxxxx Xxxxx, Xxxx 0
Xxxxxx, Xxxxxxx
X0X 0X0
SECURED PARTY: FOOTHILL CAPITAL CORPORATION, as Agent
Xxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx, 00000
GENERAL SECURITY AGREEMENT
PARTIES
DEBTOR
Name: IRON AGE CANADA LTD. (the "DEBTOR")
Address: 000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxx, X0X 0X0
Fax No.: 000.000.0000
SECURED PARTY
Name: FOOTHILL CAPITAL CORPORATION as Agent on behalf of
the Lender Group pursuant to the Loan Agreement
(the "SECURED PARTY")
Address: Xxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxxxxx, 00000
Fax No.: 000.000.0000
EFFECTIVE DATE
September 23, 2002 (the "EFFECTIVE DATE")
WHEREAS:
A. All capitalized terms used but not defined herein have the meaning ascribed
to such terms in a loan and security agreement as amended, restated, renewed,
supplemented or otherwise modified from time to time (the "LOAN AGREEMENT")
dated September 23, 2002 by and between the Secured Party, the lenders signatory
thereto, as Lenders, Iron Age Holdings Corporation (the "PARENT"), Iron Age
Corporation ("IRON AGE") and Falcon Shoe Mfg. Co. ("FALCON" and together with
Iron Age, each a Borrower and collectively, the "BORROWERS").
B. The Debtor has agreed to guarantee the obligations of the Borrowers pursuant
to a Guarantee dated the date hereof (the "GUARANTEE").
C. To secure the payment and performance of the Obligations, the Debtor has
agreed to grant to the Secured Party a security interest in respect of the
Collateral in accordance with the terms of this Agreement.
NOW THEREFORE for good and valuable consideration, the receipt and adequacy of
which are acknowledged by the Debtor, the Debtor agrees with the Secured Party
and is in favour of the following:
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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, for the benefit of the Lender Group, a security interest (to which the
Personal Property Security Act (Ontario) (the "SECURITY INTEREST") 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, for the
benefit of the Lender Group, all of the Debtor's rights, title and interests in
and to all of the present and future property of the Debtor including each and
every property described or referred to below (collectively, the "COLLATERAL"),
all pursuant to and in accordance with the provisions of this Agreement.
The Security Interest granted hereby does not and shall not extend to, and
Collateral shall not include, the last day of the term of any lease or sublease,
oral or written, or any agreement therefor, now held or hereafter acquired by
the Debtor, but upon the sale of the leasehold interest or any part thereof the
Debtor shall stand possessed of such last day in trust to assign the same as the
Secured Party shall direct.
The Security Interest hereby granted does not and shall not extend to, and
Collateral shall not include, any agreement, right, franchise, licence or permit
(the "CONTRACTUAL RIGHTS") to which the Debtor is a party or of which the Debtor
has the benefit, to the extent that the creation of the Security Interest herein
would constitute a breach of the terms of or permit any person to terminate the
Contractual Rights, but the Debtor shall hold its interest therein in trust for
the Secured Party and shall upon the request of the Secured Party assign such
Contractual Rights to the Secured Party forthwith upon obtaining the consent of
the other party thereto. The Debtor agrees that it shall, upon the request of
the Secured Party, use commercially reasonable efforts to obtain any consent
required to permit any Contractual Rights to be subjected to the Security
Interest or to be so assigned.
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 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;
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(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 xxxx 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, trademarks, trade secrets and
know-how including without limitation, environmental
technology and biotechnology, confidential information,
trade-names, goodwill, copyrights, personalty 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 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;
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(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(i) 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",
"consumer goods", "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 and at the locations
listed on Schedule A attached hereto.
3. SECURED OBLIGATIONS
The security interests, mortgages and charges granted hereby secure all
indebtedness, liabilities and other obligations (whether present or future,
direct or indirect, absolute or contingent, liquidated or unliquidated, matured
or not, wheresoever and howsoever incurred) of the Debtor to the Secured Party,
existing from time to time and arising pursuant to the Guarantee (collectively,
the "OBLIGATIONS"), all including, without limitation, all interest,
commissions, reasonable legal and other costs, reasonable 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:
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(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 sole, absolute and
beneficial owner of the Collateral with a good and marketable
title thereto 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 Permitted Liens (as
such term is defined in the Loan Agreement).
(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.
(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 and, when executed and delivered,
this Agreement will constitute a legal, valid and binding
agreement of the Debtor, enforceable in accordance with the
terms herein, subject to applicable bankruptcy, insolvency and
other laws affecting the enforcement of creditors rights
severally..
(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
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result in any default under any Material Contract 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 Material
Contract.
(f) MOTOR VEHICLES: A description of all motor vehicles and other
"serial number" goods (i.e. trailers, mobile homes, aircraft,
aircraft engines and vessels) (including vehicle
identification numbers) presently owned by the Debtor is set
out in Schedule B to this Agreement.
(g) NO CONSUMER GOODS: The Debtor does not own any consumer goods
which are material in value or which are material to the
business, operations, property, condition or prospects
(financial or otherwise) of the Debtor.
(h) INTELLECTUAL PROPERTY: All registered Intellectual Property
owned by the Debtor, and all rights of the Debtor to the use
of any registered Intellectual Property, are described in
Schedule C to this Agreement. To the best of the Debtor's
knowledge, each such Intellectual Property is valid,
subsisting, unexpired, enforceable and has not been abandoned.
Except as set out in such Schedule, none of such Intellectual
Property has been licensed or franchised by the Debtor to any
Person.
6. DEBTOR'S COVENANTS
The Debtor covenants and agrees with the Secured Party that:
(a) The Debtor shall pay, perform, satisfy, fulfil and discharge
the Obligations when due.
(b) If requested by the Secured Party, Debtor shall deliver
forthwith to the Secured Party such further details respecting
the Collateral. Such further details and legal description so
delivered shall be deemed to be contained in and form part of
this Agreement.
(c) The Debtor shall not permit the Collateral to be affixed to
real or personal property so as to become a fixture or
accession without the prior written consent of the Secured
Party.
(d) Other than Permitted Dispositions (as defined in the Loan
Agreement), the Debtor shall not convey, sell, lease, license,
assign, transfer or otherwise dispose of any assets of the
Debtor.
7. EVENTS OF DEFAULT
Forthwith upon the occurrence of an "EVENT OF DEFAULT" (as defined in the Loan
Agreement), 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.
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8. RIGHTS AND REMEDIES
Forthwith upon the occurrence and during the continuance 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, and subject to section 6(b) hereof, upon the occurrence
and during the continuance of an Event of Default, 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 reasonable costs of any insurance, taxes, solicitor's
fees, costs and other legal expenses (on a scale as between a solicitor and his
own client) and all other reasonable costs, charges and expenses of or incurred
by or on behalf of 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 including all receiver's fees and expenses (collectively, the
"EXPENSES") shall be payable by the Debtor to the Secured Party forthwith upon
demand, shall be deemed advanced to the Debtor by the Secured Party, shall bear
interest at the rate of interest calculated in accordance with section 5 of the
Guarantee from the date 30 days after each of the Expenses, respectively, was
incurred until fully paid by the Debtor and shall be secured by this Agreement.
For greater certainty, but without limiting the foregoing, the Secured Party may
discharge any claim, lien, mortgage charge, security interest, encumbrance or
any rights of others that may exist or be threatened against the Collateral,
other than Permitted Liens, and in every such case the amounts so paid together
with reasonable costs, charges and expenses incurred in connection therewith
will be added to the Obligation secured.
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 reasonable 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;
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(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 and during the continuance 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
Following the occurrence and during the continuance of an Event of Default 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
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 on the security of the Collateral in priority
to the security interest, assignment and mortgage and charge granted by this
Agreement, which such receiver, in its reasonable 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 reasonable discretion, determine; provided that any such
receiver shall be and is deemed to be the agent of the Secured Party who shall
not in any way be responsible for any misconduct, negligence or nonfeasance of
any such receiver reasonably selected by the Secured Party.
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
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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 and the Lender Group.
14. AMALGAMATION
If the Debtor is a corporation, the Debtor acknowledges that if it amalgamates
with any other corporation or corporations, then (i) the Collateral and the
security interests created by this Agreement will extend to and include all the
property and assets of the amalgamated corporation and to any property or assets
of the amalgamated corporation thereafter owned or acquired, (ii) the term
"Debtor", where used in this Agreement, will extend to and include the
amalgamated corporation, and (iii) the term "Obligations", where used in this
Agreement, will extend to and include the Obligations of the amalgamated
corporation.
15. 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 an express
written 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: 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;
(i) 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
(ii) 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 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.
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(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 assignable in whole or in
part in accordance with the Loan Agreement.
(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 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
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"xxxxxxxxx", "xxxxxx", "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) GOVERNING LAW: This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws in force
in the Province of Ontario and the laws of Canada applicable
therein and shall be treated in all respects as an Ontario
contract. Each party irrevocably submits to the non-exclusive
jurisdiction of the courts of Ontario with respect to any
matter arising hereunder or related hereto.
(l) 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 postal services or
courier deliveries are then operating, by sending the same via
prepaid registered post or via generally recognized commercial
courier (as the case may be) 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.
(m) 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
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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 purpose
of preserving the rights of the Debtor or any other person,
firm or corporation in respect of same.
(n) 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.
(o) POWER OF ATTORNEY: The Secured Party, or any receiver or agent
appointed hereunder is hereby irrevocably constituted as the
duly appointed lawful attorney of the Debtor in accordance
with the Powers of Attorney Act (Ontario), with full power
(including full power of substitution), following the
occurrence and during the continuance of an Event of Default,
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
following the occurrence and during the continuance of an
Event of Default, 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.
(p) 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.
(q) DEBTOR'S RECEIPT: The Debtor hereby acknowledges receipt of a
fully signed copy of this Agreement.
(r) COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original
and all of which taken together will be deemed to constitute
one and the same instrument. Counterparts may be executed
either in original or faxed form and the parties adopt any
signatures received by a receiving fax machine as original
signatures of the parties.
(s) The Debtor acknowledges that it has read the Loan Agreement
and covenants and agrees that any references contained herein
in respect of the Loan Agreement or any provisions thereof or
any obligations or covenants deriving therefrom shall be
incorporated herein and be binding upon the Debtor, in its
capacity as a Loan Party and Guarantor and not as a borrower,
mutatis mutandis.
-13-
(t) The Debtor hereby waives its entitlement to receive a copy of
any financing statements registered by the Secured Party or
statements confirming registration of a financing statement by
the Secured Party with respect to this Agreement.
[remainder of page intentionally left blank]
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.
IRON AGE CANADA LTD. )
by its authorized signatories: )
)
Xxxx X. Huchel__________________ )
Authorized Signatory )
)
Xxxxxxx X. Mills_________________ )
Authorized Signatory )
FOOTHILL CAPITAL CORPORATION )
as Agent for the Lender Group by its )
authorized signatories: )
)
Xxxx X. Sawyer__________________ )
Authorized Signatory )
)
___________________________________ )
Authorized Signatory )
SCHEDULE A
LOCATIONS OF COLLATERAL
SCHEDULE B
SERIAL NUMBERED OF GOODS
SCHEDULE C
DESCRIPTION OF INTELLECTUAL PROPERTY
