THE BOMBAY FURNITURE COMPANY OF CANADA INC. as Grantor and GB MERCHANT PARTNERS, LLC as Administrative Agent CANADIAN SECURITY AGREEMENT AS OF MAY 25, 2007
as
Grantor
and
GB
MERCHANT PARTNERS, LLC
as
Administrative Agent
AS
OF MAY 25, 2007
CANADIAN
SECURITY
AGREEMENT
Security
agreement dated as of May 25, 2007 made by The
Bombay Furniture Company of Canada Inc., a corporation continued and existing
under the laws of the Province of Ontario (together with its successors and
permitted assigns, the “Grantor”)
to and
in favour of GB Merchant Partners, LLC, individually
and as administrative agent (together with its successors and assigns, the
“Agent”)
for
itself and the Secured Parties under the Loan Agreement.
RECITALS:
| (a) |
The
Agent and the Lenders have
agreed to make a Loan to the Grantor on the terms and conditions
contained
in the Loan Agreement; and
|
| (b) |
It
is a condition precedent to the Loan to the Grantor under the Loan
Agreement that the Grantor execute and deliver this Agreement in
favour of
the Agent as security for the payment and performance of the Grantor’s
Obligations.
|
In
consideration of the foregoing and other good and valuable consideration, the
receipt and adequacy of which are acknowledged, the parties agree as
follows.
ARTICLE 1
INTERPRETATION
Section 1.1 Defined
Terms.
As
used
in this Agreement, the following terms have the following meanings:
“Account
Debtor”
means
any Person who is or who may become obligated under, with respect to, or on
account of, an Account.
“Agent”
means
GB Merchant Partners, LLC, acting as administrative agent and collateral agent
for the Secured Parties and any successor agent appointed under the Loan
Agreement, and its successors and permitted assigns.
“Agreement”
means
this security agreement and all schedules attached hereto, as the same may
be
amended, restated, supplemented and otherwise modified from time to
time.
“Books” means
all
of the Grantor’s now owned or hereafter acquired books and records (including
all of its Records indicating, summarizing or evidencing its assets (including
the Collateral) or liabilities, all of the Grantor’s Records relating to its
business operations or financial condition, and all of the Grantor’s goods or
intangibles related to such information).
“Collateral”
has
the
meaning specified in Section 2.1.
“Collections”
means
all cash, cheques, credit card slips or receipts, notes, instruments, and other
items of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds) of the Grantor relating to, arising out of, or
forming part of, the Collateral.
“Contracts”
means
all contracts, licences and agreements to which the Grantor is at any time
a
party or pursuant to which the Grantor has at any time acquired rights, and
includes (i) all rights of the Grantor to receive money due and to become due
to
it in connection with a contract, licence or agreement, (ii) all rights of
the
Grantor to damages arising out of, or for breach or default in respect of,
a
contract, licence or agreement, and (iii) all rights of the Grantor to perform
and exercise all remedies in connection with a contract, licence or
agreement.
“Control
Agreement”
means
an agreement, in form and substance satisfactory to Agent, executed and
delivered by the Grantor, the Agent, and the applicable Securities Intermediary
or bank, which agreement is sufficient to give the Agent “control” over the
subject Deposit Account or Investment Property.
“Deposit
Account”
means
any chequing or other deposit account (including any
demand, time, savings, passbook, or similar account maintained with a
bank).
“Expenses”
means
all expenses, costs and charges incurred by or on behalf of the Secured Parties
in connection with this Agreement, the Security Interest or the Collateral,
including all legal fees, court costs, receiver's or agent's remuneration and
other expenses of taking possession of, repairing, protecting, insuring,
preparing for disposition, realizing, collecting, selling, transferring,
delivering or obtaining payment for the Collateral, and of taking, defending
or
participating in any action or proceeding in connection with any of the
foregoing matters or otherwise in connection with the Secured Parties' interest
in any Collateral, whether or not directly relating to the enforcement of this
Agreement or any other Loan Document to which the Grantor is a
party.
“Instruments”
means
(i) a ▇▇▇▇, note or cheque within the meaning of the Bills
of Exchange Act (Canada)
or any other writing that evidences a right to the payment of money and is
of a
type that in the ordinary course of business is transferred by delivery with
any
necessary endorsement or assignment, or (ii) a letter of credit and an advice
of
credit if the letter or advice states that it must be surrendered upon claiming
payment thereunder, or (iii) Chattel Paper or any other writing that evidences
both a monetary obligation and a security interest in or a lease of specific
goods, or (iv) documents of title or any other writing that purports to be
issued by or addressed to a bailee and purports to cover such goods in the
bailee’s possession as are identified or fungible portions of an identified
mass, and that in the ordinary course of business is treated as establishing
that the Person in possession of it is entitled to receive, hold and dispose
of
the document and the goods it covers, or (v) any document or writing commonly
known as an instrument.
“Intellectual
Property”
means
domestic and foreign: (i) patents, applications for patents and reissues,
divisions, continuations, renewals, extensions and continuations-in-part of
patents or patent applications; (ii) proprietary and non-public business
information, including inventions (whether patentable or not), invention
disclosures, improvements, discoveries, trade secrets, confidential information,
know-how, methods, processes, designs, technology, technical data, schematics,
formulae and customer lists, and documentation relating to any of the foregoing;
(iii) copyrights, copyright registrations and applications for copyright
registration; (iv) mask works, mask work registrations and applications for
mask
work registrations; (v) designs, design registrations, design registration
applications and integrated circuit topographies; (vi) trade names, business
2
names,
corporate names, domain names, website names and world wide web addresses,
common law trade-marks, trade-▇▇▇▇ registrations, trade ▇▇▇▇ applications,
trade
dress and logos, and the goodwill associated with any of the foregoing; (vii)
computer software and programs (both source code and object code form), all
proprietary rights in the computer software and programs and all documentation
and other materials related to the computer software and programs; and (viii)
any other intellectual property and industrial property.
“Investment
Property”
means
a
Security, whether certificated or uncertificated, Security Entitlement,
Securities Account, Futures Contract or Futures Account, and any and all
supporting obligations in respect thereof.
“Lease”
means
any lease or other agreement, no matter how styled or structured, pursuant
to
which the Grantor is entitled to the use or occupancy of any space.
“Leasehold”
means
any lease, leasehold estate or interest of the Grantor in each of the properties
at or upon which the Grantor conducts business, offers any inventory for sale,
or maintains any of the Collateral, whether or not for retail sale, together
with the Grantor’s interest in any of the improvements and fixtures located upon
or appurtenant to each such estate or interest, including, without limitation,
any rights of the Grantor to payment, proceeds or value of any kind or nature
realized upon the sale, transfer or assignment of any such estate or interest,
whether or not such sale, assignment or transfer occurs during any case
commenced under the Bankruptcy Code.
“Lenders”
means,
collectively, the financial institutions listed on the signature pages of the
Loan Agreement as Lenders, including the Secured Parties, any Person who may
become a Lender pursuant to the Loan Agreement, and their respective successors
and assigns.
“Liens”
means
security interests, mortgages, pledges, liens, hypothecs, charges, security
agreements or other encumbrances or other arrangements that in substance secure
payment or performance of an obligation, statutory and other non-consensual
liens or encumbrances and includes leases, title retention agreements,
restrictions, development or similar agreements, rights-of-way, title defect,
adverse claims or interests (including any adverse claim), trusts or deemed
trusts, options to acquire or the interests of a vendor or lessor under any
conditional sale agreement or capital lease, and “Lien”
means
any one of such Liens.
“Loan
Agreement”
means
that certain Term Loan Agreement dated as of May 25, 2007 among The Bombay
Company, Inc., each of its Subsidiaries party thereto, the Lenders party thereto
and GB Merchant Partners LLC as Agent, as amended, modified, extended, renewed,
restated, replaced or supplemented from time to time.
“Loan
Documents”
means,
collectively, the Loan Agreement, this Agreement and each other Loan Document
(as such term is defined in the Loan Agreement).
“Negotiable
Collateral” means
collectively, letters of credit, letter of credit rights, instruments,
promissory notes, drafts, documents of title, documents, and chattel paper
3
(including
electronic chattel paper and tangible chattel paper), and any and all supporting
obligations in respect thereof arising from the sale of Inventory or
Accounts.
“Permits”
means
all permits, licences, waivers, exemptions, consents, certificates,
authorizations, approvals, franchises, rights-of-way, easements and entitlements
that the Grantor has, requires or is required to have, to own, possess or
operate any of its property or to operate and carry on any part of its
business.
“Person”
means
a
natural person, partnership, limited partnership, limited liability partnership,
corporation, limited liability corporation, unlimited liability company, joint
stock company, trust, unincorporated association, joint venture or other entity
or Governmental Entity, and pronouns have a similarly extended
meaning.
“PPSA”
means
the Personal
Property Security Act,
R.S.O.
1990, c.P.10; (Ontario), as in effect from time to time, including any
amendments thereto and any statute substituted therefor and amendments
thereto.
“Record”
means
information that is inscribed on a tangible medium or which is stored in an
electronic or other medium and is retrievable in perceivable form.
“Restricted
Asset”
has
the
meaning specified in Section 2.6.
“Secured
Parties”
has
the
meaning set out in the Loan Agreement.
“Secured
Obligations”
means
the Obligations (as defined in the Loan Agreement) of the Grantor including,
without limitation, any and all indebtedness, liabilities and obligations,
now
or hereafter existing, direct or indirect, absolute or contingent, as principal
or surety, of the Grantor to the Agent and the other Secured Parties or any
of
them arising under, by virtue of or otherwise in connection with this Agreement,
the Loan Agreement or any other Loan Document, including all Expenses incidental
thereto.
“Securities”
means:
(a) a
document that is (i) issued in bearer, order or registered form, (ii) of a
type
commonly dealt in upon securities exchanges or markets or commonly recognized
in
any area in which it is issued or dealt in as a medium for investment, (iii)
one
of a class or series or by its terms is divisible into a class or series of
documents, and (iv) evidence of a share, participation or other interest in
property or in any enterprise or is evidence of an obligation of the issuer
and
includes an uncertificated security; and
(b) a
share,
participation or other interest in a Person.
“Security
Interest”
has
the
meaning specified in Section 2.2.
Section 1.2 Incorporated
Terms.
Whenever
the terms “Accessions”,
“Account”,
“Certificated
Security”,
“Chattel
Paper”,
“Consumer
Goods”,
“Document
of Title”,
“Equipment”,
“Futures
Account”,
“Futures
Contract”,
“Futures
Intermediary”,
“Goods”,
“Intangible”,
“Inventory”,
“Money”,
“Proceeds”,
“Securities
Account”,
“Securities
Intermediary”,
“Security
Entitlement”,
and
4
Section 1.3 No
Implied Subordination.
Any
reference herein or in any other Loan Document to a Permitted Lien is not
intended to subordinate or postpone, and shall not be interpreted as
subordinating or postponing, or as any agreement to subordinate or postpone,
any
Lien created by this Agreement, or any of the other Loan Documents, to any
Permitted Lien.
Section 1.4 Certain
Phrases, etc.
In
this
Agreement the words “including”,
“includes”
and
“include” mean
“including (or includes or include) without limitation”. The expressions
“Article”,
“Section”
and
other subdivision followed by a number mean and refer to the specified Article,
Section or other subdivision of this Agreement.
Section 1.5 Gender
and Number.
Any
reference in this Agreement to gender includes all genders. Words importing
the
singular number only include the plural and vice versa.
Section 1.6 Headings,
etc.
The
division of this Agreement into Articles, Sections and other subdivisions and
the insertion of headings are for convenient reference only and do not affect
its interpretation.
Section 1.7 Schedules.
The
schedules attached to this Agreement form an integral part of it for all
purposes of it.
Section 1.8 References.
Any
reference to this Agreement, refers to this Agreement as the same may have
been
or may from time to time be amended, modified, extended, renewed, restated,
replaced or supplemented and shall include all schedules to it. Except
as
otherwise provided in this Agreement, any reference in this Agreement to a
statute refers to such statute and all rules and regulations made under it
as
the same may have been or may from time to time be amended or
re-enacted.
ARTICLE 2
SECURITY
Section 2.1 Grant
of Security.
Subject
to Section 2.6, the Grantor grants to the Agent, for the benefit of the Secured
Parties, a security interest in, and assigns, mortgages, charges, hypothecates
and pledges to the Agent, for the benefit of the Secured Parties, all of the
Grantor’s now owned or hereafter acquired right, title and interest in and to
the currently existing and hereafter acquired or arising personal property
of
the Grantor, including (collectively the “Collateral”):
| (a) |
Accounts;
|
5
| (b) |
Books;
|
| (c) |
Chattel
Paper;
|
| (d) |
Contracts;
|
| (e) |
Deposit
Accounts relating to the Collateral (it being understood and agreed
that
Deposit Accounts relating to payroll obligations, tax liabilities
and
third party funds shall not be deemed to relate to the
Collateral);
|
| (f) |
Documents
of Title;
|
| (g) |
Equipment;
|
| (h) |
Goods;
|
| (i) |
Instruments;
|
| (j) |
Intangibles;
|
| (k) |
Intellectual
Property;
|
| (l) |
Inventory;
|
| (m) |
Investment
Property;
|
| (n) |
Money
or other assets that now or hereafter come into the possession, custody,
or control of any Secured Party;
|
| (o) |
Negotiable
Collateral;
|
| (p) |
Permits;
|
| (q) |
Securities;
|
| (r) |
all
Leases and Leaseholds;
|
| (s) |
all
substitutions and replacements of and increases, additions and, where
applicable, accessions to the property described in Sections 2.1(a)
through 2.1(p) inclusive; and
|
| (t) |
all
Proceeds in any form derived directly or indirectly from any dealing
with
all or any part of the property described in Sections 2.1(a) through
2.1(p) inclusive, including the proceeds of such Proceeds and including
proceeds of insurance covering any and all of the foregoing, and
any and
all Collateral, money, or other tangible or intangible property resulting
from the sale, exchange, collection, or other disposition of any
of the
foregoing, or any portion thereof or interest therein, and the proceeds
thereof, wherever located.
|
6
Section 2.2 Secured
Obligations.
The
security interest, assignment, mortgage, charge, hypothecation and pledge
granted by this Agreement (collectively, the “Security
Interest”)
secures the due payment and performance by the Grantor of all of the Secured
Obligations.
Any
reference in this Agreement or in the Loan Documents to which the Grantor is
a
party to the Secured Obligations shall include all amendments, changes,
extensions, modifications, renewals, replacements, substitutions, and
supplements, thereto and thereof, as applicable, both prior and subsequent
to
any Insolvency Proceeding.
Section 2.3 Other
Collateral
The
Grantor agrees to take the following actions at any time and solely if Proceeds
or products of the Collateral constitutes any of the following:
| (a) |
in
the event that any Collateral, including Proceeds of such Collateral,
is
evidenced by or consists of Negotiable Collateral, and if and to
the
extent that the Agent determines that perfection or priority of the
Agent’s Security Interest is dependent on or enhanced by possession, the
Grantor, immediately upon the request of the Agent, shall endorse
and
deliver physical possession of such Negotiable Collateral to the
Agent
accompanied by such instruments of transfer or assignment duly executed
in
blank as the Agent may from time to time
specify.
|
| (b) |
if
the Grantor shall acquire any Certificated Securities, the Grantor
shall
forthwith endorse, assign and deliver the same to the Agent, accompanied
by such instruments of transfer or assignment duly executed in blank
as
the Agent may from time to time specify. If any Securities now or
hereafter acquired by the Grantor are uncertificated and are issued
to the
Grantor or its nominee directly by the issuer thereof, the Grantor
shall
immediately notify the Agent thereof and, at the Agent’s request and
option, either (a) cause the issuer to enter into a Control Agreement,
or
(b) pursuant to an agreement in form and substance satisfactory to
the
Agent, arrange for the Agent to become the registered owner of such
Securities. If any Securities, whether certificated or uncertificated,
or
other Investment Property now or hereafter acquired by the Grantor
are
held by the Grantor or its nominee through a Securities Intermediary
or
Futures Intermediary, the Grantor shall immediately notify the Agent
thereof and, at the Agent’s request and option, either (i) cause such
Securities Intermediary or (as the case may be) Futures Intermediary
to
enter into a Control Agreement, or (ii) pursuant to an agreement
in form
and substance satisfactory to the Agent, in the case of financial
assets
or other Investment Property held through a Securities Intermediary,
arrange for the Agent to become the entitlement holder with respect
to
such Investment Property, with the Grantor being permitted, only
with the
consent of the Agent, to exercise rights to withdraw or otherwise
deal
with such Investment Property. The provisions of this Section 2.3(b)
shall not apply to any financial assets credited to a Securities
Account
for which the Agent is the Securities
Intermediary.
|
7
| Section 2.4 |
Collection
of Accounts
|
At
any
time after the occurrence and during the continuation of an Event of Default,
the Agent or the Agent’s designee may (a) notify Account Debtors of the Grantor
that the Grantor’s Accounts have been assigned to the Agent or that the Agent
has a security interest therein, or (b) collect the Grantor’s Accounts directly
and charge the collection costs and expenses to the Grantor. The Grantor agrees
that it will hold in trust for the Secured Parties, as the Secured Parties’
trustee, any of its Collections that it receives without commingling the same
with other funds of the Grantor and immediately will deliver such Collections
to
the Agent in their original form as received by the Grantor, together with
any
necessary endorsements or assignments.
Section 2.5 Attachment.
The
Grantor acknowledges that (i) value has been given, (ii) it has rights in the
Collateral (other than after-acquired Collateral), (iii) it has not agreed
to
postpone the time of attachment of the Security Interest, and (iv) it has
received a duplicate original copy of this Agreement.
Section 2.6 Scope
of Security Interest.
| (1) |
To
the extent that an assignment of amounts payable and other proceeds
arising under or in connection with, or the grant of a security interest
in any agreement, licence, permit or quota of the Grantor, or the
grant of
any licence as contemplated in Section 2.7, would result in the
termination of such agreement, licence, permit or quota (each, a
“Restricted
Asset”),
the Grantor shall hold as trustee all proceeds arising under or in
connection with the Restricted Asset in trust for the Agent, for
the
benefit of the Secured Parties, and the Security Interest will constitute
a trust created in favour of the Agent, for the benefit of the Secured
Parties, on the following basis:
|
| (i) |
until
the Security Interest is enforceable, the Grantor is entitled to
receive
all such proceeds; and
|
| (ii) |
whenever
the Security Interest is enforceable, (A) all rights of the Grantor
to
receive such proceeds cease and all such proceeds will be immediately
paid
over to the Agent for the benefit of the Secured Parties, and (B)
the
Grantor will take all actions requested by the Agent to collect and
enforce payment and other rights arising under the Restricted
Asset.
|
| (2) |
The
Grantor will use all commercially reasonable efforts to obtain the
consent of each other party to any and all Restricted Assets to the
assignment of such Restricted Asset to the Agent in accordance with
this
Agreement.
|
| (3) |
The
Security Interest does not extend to Consumer
Goods.
|
| (4) |
The
Security Interest does not extend or apply to the last day of the
term of
any lease or sublease of real property or any agreement for a lease
or
sublease of real property, now held or hereafter acquired by the
Grantor,
but the Grantor will stand possessed of any such last day upon trust
to
assign and dispose of it as the Agent may reasonably
direct.
|
| (5) |
Agent
will not seek to perfect the Security Interest in Leases and Leaseholds
absent the occurrence of an Event of Default; however, following
the
occurrence and during the continuance of an Event of Default, and
upon the
receipt of a written request by the Agent, the Grantor shall endeavour
to
take such action as may reasonably be necessary to perfect the Security
Interest in,
or obtain any necessary landlord consents in respect of,
Leases and Leaseholds.
|
8
Section 2.7 Grant
of Non-Exclusive Licence.
For
the
purpose of enabling the Agent to exercise its rights and remedies under Article
3 (including, without limitation, in order to take possession of, hold,
preserve, process, assemble, prepare for sale, market for sale, sell or
otherwise dispose of the Collateral) at such time as the Agent shall be lawfully
entitled to exercise its rights and remedies under Article 3, the Grantor hereby
(i) grants to the Agent, for the benefit of the Secured Parties, a royalty
free,
non-exclusive, irrevocable, worldwide license, such license being with respect
to the Agent’s exercise of its rights and remedies under Article 3 including,
without limitation, in connection with any completion of the manufacture of
Inventory or any sale or other disposition of Inventory (a) to use, apply,
and
affix any trademark, trade name, logo, or the like in which the Grantor now
or
hereafter has rights, (b) to use, license or sublicense any Intellectual
Property, computer software now owned, held or hereafter acquired by the
Grantor, including in such license access to all media such and to the extent
to
which any of the licensed items may be recorded or stored and to all computer
software programs such and to the extent used for the compilation or print
out
thereof, provided that the Agent’s use of the property described in this
Section 2.7
will
comply with all applicable law and the terms of any such right of use, and
(c)
to use any and all furniture, fixtures and equipment contained in any premises
owned, operated, leased, sub-leased or otherwise occupied by the Grantor in
connection with the exercise of the Agent’s rights and remedies under Article 3,
and (ii) without limiting the provisions of Article 3, agrees to provide the
Agent and/or its agents with access to, and the right to use, any such premises
owned, operated, leased, sub-leased or otherwise occupied by the
Grantor.
Section 2.8 Care
and Custody of Collateral.
|
(1)
|
The
Agent and the other Secured Parties have no obligation to keep Collateral
in their respective possession
identifiable.
|
|
(2)
|
The
Agent may, upon the occurrence and during the continuance of an Event
of
Default, (i) notify any Person obligated on an account or on chattel
paper
or any Grantor on an instrument to make payments to the Agent, whether
or
not the Grantor was previously making collections on such accounts,
chattel paper, instruments, and (ii) assume control of any proceeds
arising from the Collateral.
|
|
(3)
|
The
Agent has no obligation to collect dividends,
distributions or interest payable on, or exercise any option or right
in
connection with, any Securities or Instruments. The Agent has no
obligation to protect or preserve any Securities or Instruments from
depreciating in value or becoming worthless and is released from
all
responsibility for any loss of value. In the physical keeping of
any
Securities, the Agent is only obliged to exercise the same degree
of care
as it would exercise with respect to its own Securities kept at the
same
place.
|
Section 2.9 Rights
of the Grantor.
| (1) |
Until
the occurrence of an Event of Default which is continuing, the Grantor
is
entitled to vote the Securities that are part of the Collateral and
to
receive all dividends and distributions on such Securities. Upon
the
occurrence and during the continuance of an Event of Default, all
rights
of the Grantor to vote (under any proxy given by the Agent (or its
nominee) or otherwise) or to receive distributions or dividends cease
and
all such rights become vested solely and absolutely in the
Agent.
|
9
| (2) |
Any
distributions or dividends received by the Grantor contrary to
Section 2.9(1)
or
any other moneys or property received by the Grantor after the Security
Interest is enforceable will be received as trustee for the Agent
and the
Secured Parties and shall be immediately paid over to the
Agent.
|
Section
2.10 Expenses.
The
Grantor is liable for and will pay on demand by the Agent any and all Expenses.
ARTICLE 3
ENFORCEMENT
Section 3.1 Enforcement.
The
Security Interest becomes and is enforceable against the Grantor upon the
occurrence and during the continuance of an Event of Default.
Section 3.2 Remedies.
Whenever
the Security Interest is enforceable, the Agent may realize upon the Collateral
and enforce the rights of the Agent and the Secured Parties by:
| (a) |
entry
onto any premises where Collateral consisting of tangible personal
property may be located;
|
| (b) |
entry
into possession of the Collateral by any method permitted by
law;
|
| (c) |
sale,
grant of options to purchase, lease or dispose of all or any part
of the
Collateral;
|
| (d) |
holding,
storing and keeping idle or operating all or any part of the
Collateral;
|
| (e) |
exercising
and enforcing all rights and remedies of a holder of the Securities
and
Instruments as if the Agent were the absolute owner thereof (including,
if
necessary, causing the Collateral to be registered in the name of
the
Agent or its nominee if not already
done);
|
| (f) |
collection
of any proceeds arising in respect of the
Collateral;
|
| (g) |
collection,
realization or sale of, or other dealing with, the
Accounts;
|
| (h) |
license
or sublicense, whether on an exclusive or nonexclusive basis, any
Intellectual Property for such term and on such conditions and in
such
manner as the Agent in its sole judgment determines (taking into
account
such provisions as may be necessary to protect and preserve such
Intellectual Property);
|
10
| (i) |
instruction
to any bank which has entered into a Control Agreement with the Agent
to
transfer all moneys, securities and instruments held by such bank
to an
account maintained with or by the
Agent;
|
| (j) |
application
of any moneys constituting Collateral or proceeds thereof in accordance
with Section 5.11;
|
| (k) |
appointment
by instrument in writing of a receiver (which term as used in this
Agreement includes a receiver and manager) or agent of all or any
part of
the Collateral and removal or replacement from time to time of any
receiver or agent;
|
| (l) |
institution
of proceedings in any court of competent jurisdiction for the appointment
of a receiver of all or any part of the
Collateral;
|
| (m) |
institution
of proceedings in any court of competent jurisdiction for sale or
foreclosure of all or any part of the
Collateral;
|
| (n) |
filing
of proofs of claim and other documents to establish claims to the
Collateral in any proceeding relating to the Grantor;
|
| (o) |
dealing
with the Contracts and Permits or any one or more of them to the
same
extent as the Grantor may do, including enforce, realize, sell, assign,
transfer, and require continued performance under or otherwise deal
with
any one or more of them, all on such terms and conditions and at
such time
or times as may seem advisable to the Agent;
and
|
| (p) |
any
other remedy or proceeding authorized or permitted under the PPSA
and any
other applicable statute or otherwise by contract, law or in
equity.
|
Section 3.3 Additional
Rights.
In
addition to the remedies set forth in Section 3.2
and
elsewhere in this Agreement, whenever the Security Interest is enforceable,
the
Agent may:
| (a) |
require
the Grantor, at the Grantor's expense, to assemble the Collateral
at a
place or places designated by notice in writing and the Grantor agrees
to
so assemble the Collateral immediately upon receipt of such
notice;
|
| (b) |
require
the Grantor, by notice in writing, to disclose to the Agent the location
or locations of the Collateral and the Grantor agrees to promptly
make
such disclosure when so required;
|
| (c) |
repair,
process, modify, complete or otherwise deal with the Collateral and
prepare for the disposition of the Collateral, whether on the premises
of
the Grantor or otherwise;
|
| (d) |
redeem
any prior security interest against any Collateral, procure the transfer
of such security interest to itself, or settle and pass the accounts
of
the prior mortgagee, chargee or encumbrancer (any accounts to be
conclusive and binding on Grantor);
|
11
| (e) |
pay
any liability secured by any Lien against any Collateral (the Grantor
will
immediately on demand reimburse the Agent for all such
payments);
|
| (f) |
carry
on all or any part of the business of the Grantor and, to the exclusion
of
all others including the Grantor, enter upon, occupy and use all
or any of
the premises, buildings, and other property of or used by the Grantor
for
such time as the Agent sees fit, free of charge, and the Agent and
the
Secured Parties are not liable to the Grantor for any act, omission
or
negligence (other than their own gross negligence or wilful misconduct)
in
so doing or for any rent, charges, depreciation or damages incurred
in
connection with or resulting from such
action;
|
| (g) |
borrow
for the purpose of carrying on the business of the Grantor or for
the
maintenance, preservation or protection of the Collateral and grant
a
security interest in the Collateral, whether or not in priority to
the
Security Interest, to secure repayment;
|
| (h) |
commence,
continue or defend any judicial or administrative proceedings for
the
purpose of protecting, seizing, collecting, realizing or obtaining
possession or payment of the Collateral, and give good and valid
receipts
and discharges in respect of the Collateral and compromise or give
time
for the payment or performance of all or any part of the accounts
or any
other obligation of any third party to the Grantor;
and
|
| (i) |
at
any public sale, and to the extent permitted by law on any private
sale,
bid for and purchase any or all of the Collateral offered for sale
and
upon compliance with the terms of such sale, hold, retain and dispose
of
such Collateral without any further accountability to the Grantor
or any
other Person with respect to such holding, retention or disposition,
except as required by law. In any such sale to the Agent, the Agent
may,
for the purpose of making payment for all or any part of the Collateral
so
purchased, use any claim for Secured Obligations then due and payable
to
it as a credit against the purchase
price.
|
Section 3.4 Exercise
of Remedies.
The
remedies under Section 3.2
and
Section 3.3
may be
exercised from time to time separately or in combination and are in addition
to,
and not in substitution for, any other rights of the Agent and the Secured
Parties however arising or created. The Agent and the Secured Parties are not
bound to exercise any right or remedy, and the exercise of rights and remedies
is without prejudice to the rights of the Agent and the Secured Parties in
respect of the Secured Obligations including the right to claim for any
deficiency.
Section 3.5 Receiver's
Powers.
| (1) |
Any
receiver appointed by the Agent is vested with the rights and remedies
which could have been exercised by the Agent in respect of the Grantor
or
the Collateral and such other powers and discretions as are granted
in the
instrument of appointment and any supplemental instruments. The identity
of the receiver, its replacement and its remuneration are within
the sole
and unfettered discretion of the
Agent.
|
12
| (2) |
Any
receiver appointed by the Agent will act as agent for the Agent for
the
purposes of taking possession of the Collateral, but otherwise and
for all
other purposes (except as provided below), as agent for the Grantor.
The
receiver may sell, lease, or otherwise dispose of Collateral as agent
for
the Grantor or as agent for the Agent as the Agent may determine
in its
discretion. The Grantor agrees to ratify and confirm all actions
of the
receiver acting as agent for the Grantor, and to release and indemnify
the
receiver in respect of all such actions save and except for any wilful
misconduct or gross negligence of such
receiver.
|
| (3) |
The
Agent, in appointing or refraining from appointing any receiver,
does not
incur liability to the receiver, the Grantor or otherwise and is
not
responsible for any wilful misconduct or gross negligence of such
receiver.
|
Section 3.6 Appointment
of Attorney.
The
Grantor hereby irrevocably constitutes and appoints the Agent (and any officer
of the Agent) the true and lawful attorney of the Grantor. As the attorney
of
the Grantor, the Agent has the power to exercise for and in the name of the
Grantor with full power of substitution, upon
the
occurrence and during the continuance of an Event of Default,
any of
the Grantor's right (including the right of disposal), title and interest in
and
to the Collateral including the execution, endorsement, delivery and transfer
of
the Collateral to the Agent, its nominees or transferees, and the Agent and
its
nominees or transferees are hereby empowered to exercise all rights and powers
and to perform all acts of ownership with respect to the Collateral to the
same
extent as the Grantor might do. All acts of the attorney are ratified and
approved, and the attorney is not liable for any act, failure to act or any
other matter or thing, except for its own gross negligence or wilful misconduct.
This power of attorney is irrevocable, is coupled with an interest, has been
given for valuable consideration (the receipt and adequacy of which is
acknowledged) and survives, and does not terminate upon, the bankruptcy,
dissolution, winding up or insolvency of the Grantor. This power of attorney
extends to and is binding upon the Grantor’s successors and permitted assigns.
The
Grantor authorizes the Agent to delegate in writing to another person any power
and authority of the Agent under this power of attorney as may be necessary
or
desirable in the opinion of the Agent, and to revoke or suspend such
delegation.
Section 3.7 Dealing
with the Collateral.
| (1) |
The
Agent and the Secured Parties are not obliged to exhaust their recourse
against the Grantor or any other Person or against any other security
they
may hold in respect of the Secured Obligations before realizing upon
or
otherwise dealing with the Collateral in such manner as the Agent
may
consider desirable.
|
| (2) |
The
Agent and the Secured Parties may grant extensions or other indulgences,
take and give up securities, accept compositions, grant releases
and
discharges and otherwise deal with the Grantor and with other Persons,
sureties or securities as they may see fit without prejudice to the
Secured Obligations, the liability of the Grantor or the rights of
the
Agent and the Secured Parties in respect of the
Collateral.
|
| (3) |
Except
as otherwise provided by law or this Agreement, the Agent and the
Secured
Parties are not (i) liable or accountable for any failure to collect,
realize or obtain payment in respect of the Collateral, (ii) bound
to
institute proceedings for the purpose of collecting, enforcing, realizing
or obtaining payment of the Collateral or for the purpose of preserving
any rights of any persons in respect of the Collateral, (iii) responsible
for any loss occasioned by any sale or other dealing with the Collateral
or by the retention of or failure to sell or otherwise deal with
the
Collateral, or (iv) bound to protect the Collateral from depreciating
in
value or becoming worthless.
|
13
Section 3.8 Standards
of Sale.
Without
prejudice to the ability of the Agent to dispose of the Collateral in any manner
which is commercially reasonable, the Grantor acknowledges that:
| (a) |
the
Collateral may be disposed of in whole or in
part;
|
| (b) |
the
Collateral may be disposed of by public auction, public tender or
private
contract, with or without advertising and without any other
formality;
|
| (c) |
any
assignee of such Collateral may be the Agent, a Secured Party or
a
customer of any such Person;
|
| (d) |
any
sale conducted by the Agent will be at such time and place, on such
notice
and in accordance with such procedures as the Agent, in its sole
discretion, may deem advantageous;
|
| (e) |
the
Collateral may be disposed of in any manner and on any terms necessary
to
avoid violation of applicable law (including compliance with such
procedures as may restrict the number of prospective bidders and
purchasers, require that the prospective bidders and purchasers have
certain qualifications, and restrict the prospective bidders and
purchasers to persons who will represent and agree that they are
purchasing for their own account for investment and not with a view
to the
distribution or resale of the Collateral) or in order to obtain any
required approval of the disposition (or of the resulting purchase)
by any
governmental or regulatory authority or
official;
|
| (f) |
a
disposition of the Collateral may be on such terms and conditions
as to
credit or otherwise as the Agent, in its sole discretion, may deem
advantageous; and
|
| (g) |
the
Agent may establish an upset or reserve bid or price in respect of
the
Collateral.
|
Section 3.9 Dealings
by Third Parties.
| (1) |
No
Person dealing with the Agent, any of the Secured Parties or an agent
or
receiver is required to determine (i) whether the Security Interest
has
become enforceable, (ii) whether the powers which such Person is
purporting to exercise have become exercisable, (iii) whether any
money
remains due to the Agent or the Secured Parties by the Grantor, (iv)
the
necessity or expediency of the stipulations and conditions subject
to
which any sale or lease is made, (v) the propriety or regularity
of any
sale or other dealing by the Agent or any Secured Party with the
Collateral, or (vi) how any money paid to the Agent or the Secured
Parties
has been applied.
|
14
| (2) |
Any
bona
fide
purchaser of all or any part of the Collateral from the Agent or
any
receiver or agent will hold the Collateral absolutely, free from
any claim
or right of whatever kind, including any equity of redemption, of
the
Grantor, which it specifically waives (to the fullest extent permitted
by
law) as against any such purchaser together with all rights of redemption,
stay or appraisal which the Grantor has or may have under any rule
of law
or statute now existing or hereafter
adopted.
|
Section 3.10 Registration
Rights.
If
the
Agent determines to exercise its right to sell any or all of the Securities
that
are Collateral, and if in the opinion of the Agent it is necessary or advisable
to have any such Securities:
| (a) |
qualified
for distribution by prospectus pursuant to the applicable securities
legislation in any or all provinces and territories of Canada, the
Grantor
will cause the issuer thereof to (i) use its best efforts to file,
and
obtain a receipt from the applicable securities regulatory authorities,
for a preliminary and final prospectus offering for sale such number
of
Securities as the Agent directs; and (ii) execute and deliver, and
cause
the directors and officers of such issuer to execute and deliver,
all such
certificates, instruments and documents, and do or cause to be done
all
such other acts as may be, in the opinion of the Agent, necessary
or
advisable to qualify such Securities for distribution by prospectus
pursuant to the applicable securities legislation in any or all provinces
of Canada; or
|
| (b) |
sold
or registered under the provisions of the U.S. Securities Act of
1933, as
amended, the Grantor will cause the issuer thereof to (i) execute
and
deliver, and cause the directors and officers of such issuer to execute
and deliver, all such instruments and documents, and do or cause
to be
done all such other acts as may be, in the opinion of the Agent,
necessary
or advisable to register the Securities pledged hereunder, or that
portion
thereof to be sold, under the provisions of the U.S. Securities Act
of
1933, as amended, (ii) use its best efforts to cause the registration
statement relating thereto to become effective and to remain effective
for
a period of one year from the date of the first public offering of
the
Securities pledged hereunder, or that portion thereof to be sold,
and
(iii) make all amendments thereto and/or to the related prospectus
which,
in the opinion of the Agent, are necessary or advisable, all in conformity
with the requirements of the U.S. Securities Act of 1933, as amended,
and
the rules and regulations applicable thereto.
|
| (c) |
The
Grantor agrees to cause such issuer to comply with the provisions
of the
securities legislation in effect in any or all of the provinces of
Canada,
the U.S. Securities Act of 1933, as amended, and the securities or
“Blue
Sky” laws of any jurisdictions outside Canada, in each case, which the
Agent designates.
|
15
ARTICLE 4
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section 4.1 General
Representations, Warranties and Covenants.
The
Grantor represents and warrants in all material respects and covenants and
agrees, acknowledging and confirming that the Agent and each Secured Party
is
relying on such representations, warranties, covenants and agreements,
that:
| (a) |
Ownership
of Collateral.
The Grantor is the sole owner of each item of the Collateral upon
which it
purports to grant a Security Interest hereunder, and has good and
marketable title thereto free and clear of any and all Liens other
than
Permitted Liens.
|
| (b) |
Perfection
and Priority.
This Agreement (i) constitutes a legal, valid and binding obligation
of
the Grantor, enforceable against the Grantor in accordance with its
terms
subject only to bankruptcy, insolvency, reorganization, moratorium
and
other similar laws of general application affecting creditors’ rights and
the discretion exercisable by courts of competent jurisdiction in
respect
of the availability of equitable remedies, and (ii) is effective
to create
a valid and continuing Security Interest on and, upon the filing
of the
appropriate financing statements, a perfected Security Interest in
favour
of the Agent, for the benefit of the Secured Parties, on the Collateral
with respect to which a security interest may be perfected by filing
pursuant to the PPSA. The Security Interest is prior to all other
Liens,
except Permitted Liens having priority over the Agent’s Lien by operation
of law or unless otherwise permitted by any Loan Document. Except
as set
forth in this Section 4.1(b), all action by the Grantor necessary
or
desirable to protect and perfect such Security Interest on each item
of
the Collateral has been duly taken.
|
| (c) |
Continuous
Perfection.
Schedule A
sets out the Grantor's place of business or, if more than one, the
Grantor’s chief executive office. Such place of business or chief
executive office, as the case may be, has been located at such address
for
the sixty days immediately preceding the date of this Agreement.
Schedule
A
also sets out the address at which the books and records of the Grantor
are located, the address at which senior management of the Grantor
are
located and conduct their deliberations and make their decisions
with
respect to the business of the Grantor and the address from which
the
invoices and accounts of the Grantor are issued. The Grantor will
not
change the location of any of these items, people or addresses without
providing at least thirty (30) days prior written notice to the Agent.
Except for sales of inventory made in the ordinary course of business,
the
Collateral, to the extent not delivered to the Agent pursuant to
Section 2.3,
has been kept for the sixty days immediately preceding the date of
this
Agreement and will be kept at those locations listed on Schedule
A,
and the Grantor will not remove the Collateral from such locations,
without providing at least thirty (30) days prior written notice
to the
Agent. The Grantor will not change its name in any manner without
providing at least thirty (30) days prior written notice to the Agent.
The
Grantor has not operated under any trade name, fictitious name or
other
name in the last 12 months other than The Bombay Furniture Company
of
Canada Inc., La Compagnie de Mobilier Bombay du Canada Inc., The
Bombay
Company, La Compagnie Bombay, Bombay, and
BombayKIDS.
|
16
| (d) |
Enforcement.
No
Permit, notice to or filing with any Governmental Authority or any
other
Person or any consent from any Person is required for the exercise
by the
Agent of its rights provided for in this Agreement or the enforcement
of
remedies in respect of the Collateral pursuant to this Agreement,
including the transfer of any Collateral, except any approvals that
may be
required to be obtained from any bailees or landlords to collect
the
Collateral.
|
| (e) |
Restriction
on Disposition.
The Grantor will not sell, assign, convey, exchange, lease, release
or
abandon, or otherwise dispose of, any Collateral except as expressly
permitted in Section 7.5 of the Loan
Agreement.
|
| (f) |
Leases
and Leaseholds. The
Grantor shall not authorize or permit any assignment, pledge, Lien,
security interest, encumbrance, restriction or any hypothecation
of any
Lease or Leasehold Interest, except as shall be permitted under the
Loan
Agreement.
|
| (g) |
Negative
Pledge.
The Grantor will not create or suffer to exist, any Lien on the
Collateral, except for Permitted
Liens.
|
| (h) |
Notice.
The
Grantor shall promptly notify the Agent in writing of its acquisition
of
any interest hereafter in property constituting Collateral that is
of a
type where a security interest or lien must be or may be registered,
recorded or filed under, or notice thereof given under, any statute
or
regulation.
|
| (i) |
Securities
and Instruments.
|
| (i) |
No
Person has or will have any written or oral option, warrant, right,
call,
commitment, conversion right, right of exchange or other agreement
or any
right or privilege (whether by law, pre-emptive or contractual) capable
of
becoming an option, warrant, right, call, commitment, conversion
right,
right of exchange or other agreement to acquire any right or interest
in
any of the Securities and Instruments that are
Collateral.
|
| (ii) |
The
Securities and Instruments that are Collateral constitute, where
applicable, the legal, valid and binding obligation of the obligor
of such
Securities and Instruments, enforceable in accordance with their
terms,
subject only to any limitation under applicable laws relating to
(x)
bankruptcy, insolvency, fraudulent conveyance, arrangement, reorganization
or creditors’ rights generally, and (y) the discretion that a court may
exercise in the granting of equitable
remedies.
|
| (iii) |
The
pledge, assignment and delivery to the Agent of the Collateral consisting
of Certificated Securities pursuant to this Agreement creates a valid
and
perfected first priority security interest in such Certificated
Securities, and the proceeds of them. Such Securities and the proceeds
from them are not subject to any prior Lien or any agreement purporting
to
grant to any third party a Lien on the property or assets of the
Grantor
which would include the Securities. The Agent is entitled to all
the
rights, priorities and benefits afforded by the PPSA or other relevant
personal property securities legislation as enacted in any relevant
jurisdiction to perfect security interests in respect of such
Collateral.
|
17
| (j) |
Perfection
and Protection of Security Interest.
The Grantor will perform, execute and deliver, all acts, agreements
and
other documents requested by the Agent at any time to register, file,
signify, publish, perfect, maintain, protect, and enforce the Security
Interest including (i) executing, recording and filing of financing
or
other statements, in form and substance satisfactory to the Agent
and
paying all taxes, fees and other charges payable, (ii) placing notations
on its books of account to disclose the Security Interest, and (iii)
taking such other steps as are deemed necessary by the Agent to maintain
the Security Interest.
|
| (k) |
Representations
and Warranties of the Loan Agreement. The
representations and warranties made by the Grantor in Article IV
of the
Loan Agreement are true and correct in all material respects on each
date
as required by Section 3.2(b) of the Loan
Agreement.
|
| (l) |
Compliance
with Loan Agreement.
The Grantor agrees to comply with all covenants and other provisions
applicable to it under the Loan
Agreement.
|
ARTICLE 5
GENERAL
Section 5.1 Notices.
Any
notices, directions or other communications provided for in this Agreement
must
be in writing and given in accordance with the Loan Agreement.
Section 5.2 Discharge.
The
Security Interest will be discharged upon, but only upon, (i) full and
indefeasible payment and performance of the Secured Obligations, and (ii) the
Agent and the Secured Parties having no obligations under any Loan Document.
Upon discharge of the Security Interest and at the request and expense of the
Grantor, the Agent will execute and deliver to the Grantor such releases,
discharges, financing statements and other documents or instruments as the
Grantor may reasonably require and the Agent will redeliver to the Grantor,
or
as the Grantor may otherwise direct the Agent, any Collateral in its
possession.
Section 5.3 No
Merger, Survival of Representations and Warranties.
This
Agreement does not operate by way of merger of any of the Secured Obligations
and no judgment recovered by the Agent or any of the Secured Parties will
operate by way of merger of, or in any way affect, the Security Interest, which
is in addition to, and not in substitution for, any other security now or
hereafter held by the Agent and the Secured Parties in respect of the Secured
Obligations.
18
Section 5.4 Further
Assurances.
The
Grantor will do all acts and things and execute and deliver, or cause to be
executed and delivered, all documents and instruments that the Agent may require
and take all further steps relating to the Collateral or any other property
or
assets of the Grantor that the Agent may require for (i) protecting the
Collateral, (ii) perfecting the Security Interest, and (iii) exercising all
powers, authorities and discretions conferred upon the Agent. After the Security
Interest becomes enforceable, the Grantor will do all acts and things and
execute and deliver all transfers, assignments and instruments that the Agent
may require for facilitating the sale or other disposition of the Collateral
in
connection with its realization.
Section 5.5 Supplemental
Security.
This
Agreement is in addition and without prejudice to and supplemental to all other
security now held or which may hereafter be held by the Agent or the Secured
Parties.
Section 5.6 Successors
and Assigns.
This
Agreement is binding on the Grantor, its successors and assigns, and enures
to
the benefit of the Agent and its successors and assigns. This Agreement may
be
assigned by the Agent without the consent of, or notice to, the Grantor, to
such
Person as the Agent may determine and, in such event, such Person will be
entitled to all of the rights and remedies of the Agent as set forth in this
Agreement or otherwise. In any action brought by an assignee to enforce any
such
right or remedy, the Grantor will not assert against the assignee any claim
or
defence which the Grantor now has or may have against the Agent or any of the
Secured Parties. The Grantor may not assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent
of
the Agent which may be unreasonably withheld.
Section 5.7 Amalgamation
The
Grantor acknowledges and agrees that in the event it amalgamates with any other
corporation or corporations, it is the intention of the parties that the
Security Interest (i) extends to all of the property and undertaking that each
of the amalgamating corporations and the amalgamated corporation then has,
or
thereafter acquires, any right, title, interest in and all right, title and
interest that each of the amalgamating corporations and the amalgamated
corporation then has, or thereafter acquires or has, in any property and
undertaking; and (ii) secures the payment and performance of all debts,
liabilities and obligations, present or future, direct or indirect, absolute
or
contingent, matured or unmatured, at any time or from time to time due or
accruing due and owing by or otherwise payable by each of the amalgamating
corporations and the amalgamated corporation to the Secured Parties at the
time
of amalgamation and any such obligations of the amalgamated corporation to
the
Secured Parties arising after the amalgamation. The Security Interest attaches
to the additional collateral at the time of amalgamation and to any collateral
thereafter owned or acquired by the amalgamated corporation when such becomes
owned or is acquired. Upon any such amalgamation, the defined term “Grantor”
means, collectively, each of the amalgamating corporations and the amalgamated
corporation, the defined term “Collateral” means all of the property and
undertaking and interests described in (i) above, and the defined term “Secured
Obligations” means the obligations described in (ii) above.
19
Section 5.8 Severability.
If
any
court of competent jurisdiction from which no appeal exists or is taken,
determines any provision of this Agreement to be illegal, invalid or
unenforceable, that provision will be severed from this Agreement and the
remaining provisions will remain in full force and effect.
Section 5.9 Amendment.
This
Agreement may only be amended, supplemented or otherwise modified by written
agreement executed by the Agent (with the consent of the Required Lenders)
and
the Grantor.
Section 5.10 Waivers,
etc.
| (1) |
No
consent or waiver by the Agent or the Secured Parties in respect
of this
Agreement is binding unless made in writing and signed by an authorized
officer of the Agent (with the consent of the Required Lenders).
Any
consent or waiver given under this Agreement is effective only in
the
specific instance and for the specific purpose for which given. No
waiver
of any of the provisions of this Agreement constitutes a waiver of
any
other provision.
|
| (2) |
A
failure or delay on the part of the Agent or the Secured Parties
in
exercising a right under this Agreement does not operate as a waiver
of,
or impair, any right of the Agent or the Secured Parties however
arising.
A single or partial exercise of a right on the part of the Agent
or the
Secured Parties does not preclude any other or further exercise of
that
right or the exercise of any other right by the Agent or the Secured
Parties.
|
Section 5.11 Application
of Proceeds of Security.
All
monies collected by the Agent upon the enforcement of the Agent’s or the Secured
Parties’ rights and remedies under this Agreement and the Liens created hereby,
including any sale or other disposition of the Collateral, together with all
other monies received by the Agent and the Secured Parties under this Agreement,
will be applied as provided in the Loan Agreement. To
the
extent any other Loan Document requires proceeds of collateral under such Loan
Document to be applied in accordance with the provisions of this Agreement,
the
Agent or holder under such other Loan Document shall apply such proceeds in
accordance with this Section.
Section 5.12 Conflict
In
the
event of any conflict between the provisions of this Agreement and the
provisions of the Loan Agreement which cannot be resolved by both provisions
being complied with, the provisions contained in the Loan Agreement will prevail
to the extent of such conflict.
Section 5.13 Governing
Law;
Jurisdiction
This
Agreement will be governed by, interpreted and enforced in accordance with
the
laws of the Province of Ontario and the federal laws of Canada applicable
therein. Without prejudice to the ability of the Agent to enforce this Agreement
in any other proper jurisdiction, the Grantor irrevocably submits and attorns
to
the non-exclusive jurisdiction of the courts of such Province. The parties
irrevocably waive any objection (including any claim of inconvenient forum)
that
any of them may now or hereafter have to the venue of any legal proceeding
arising out of or relating to this Agreement in the courts of such Province.
20
IN
WITNESS WHEREOF the
Grantor has executed this Agreement as of the date first above written.
|
THE
BOMBAY FURNITURE COMPANY OF CANADA INC.,
as
Grantor
|
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|
By:_________________________________
|
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| Name:
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Title:
Vice President
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21
SCHEDULE
A
LOCATIONS
OF COLLATERAL
Chief
Executive Office:
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Locations
of Collateral and Places of Business:
See
Attachment 1
Locations
of Books and Records:
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Locations
of Senior Management:
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Address
from which Invoices and Accounts are sent:
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