EXHIBIT 6.48
GENERAL SECURITY AGREEMENT
THIS AGREEMENT made effective December 27, 2000.
BY:
iQ POWER TECHNOLOGY INC., a body corporate duly incorporated under the
Canada Business Corporations Act, registered to do business in the
Province of British Columbia, and having an office at 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxx 000-X, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X
0X0
Telecopier: (000) 000-0000
(hereinafter referred to as the "Debtor")
OF THE FIRST PART
IN FAVOUR OF:
XXXX XXXXXX, a businessman, having an address at 000 Xxxxxx xx
X'Xxxx, Xxxxxxxxx-Xxxxxx, XX, Xxxxxx X0X 0X0
Telecopier: (000) 000-0000
(hereinafter referred to as the "Creditor")
OF THE SECOND PART
NOW THEREFORE THIS AGREEMENT WITNESSETH that for $1 and other good and valuable
consideration now paid by the Creditor to the Debtor, the receipt and
sufficiency of which is hereby acknowledged, the Debtor agrees with the Creditor
as follows:
ARTICLE 1 CREATION OF SECURITY INTEREST
1.01 The Debtor hereby grants to the Creditor a security interest in the
Collateral referred to in Section 2.01 hereof, to secure the payment or
performance of all obligations, indebtedness and liabilities of the Debtor to
the Creditor, whether incurred prior to, at the time of or subsequent to the
execution hereof, including extensions or renewals, and all other liabilities of
the Debtor to the Creditor, direct or indirect, wheresoever and howsoever
incurred and any ultimate unpaid balance thereof, including, without restricting
the generality of the foregoing, future advances to the Debtor under fixed or
revolving credits established from time to time and letters of credit whether or
not drawn upon, issued by the Creditor with respect to the Debtor.
1.02 The security interests created by this Agreement are intended to attach to
existing Collateral when the Debtor signs this Agreement and to after-acquired
Collateral immediately upon the Debtor acquiring any rights in such Collateral,
the general intent of the parties being not to postpone the attachment of any
security interest created by this Agreement.
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ARTICLE 2 COLLATERAL
2.01 The Collateral subject to the security interests created herein is, subject
to any specific exclusions contained herein, the property of the Debtor
described in the Schedule of Collateral hereto (herein referred to as the
"Collateral").
The Debtor shall stand possessed of the reversion remaining in the Debtor of any
leasehold premises, for the time being demised, as may be exclude from the
definition of Collateral, upon trust to assign and dispose thereof as the
Creditor shall direct; and upon any sale of the leasehold premises, or any part
thereof, the Creditor for the purpose of vesting the aforesaid reversion of any
such term or any renewal thereof in the place of the Debtor and divest the same
accordingly in the new trustee or trustees so appointed freed and discharged
from any obligations respecting the same.
The security interest shall be a general and continuing security interest
notwithstanding any dealing by the Creditor with the Debtor or any other person
claiming under or with respect to the Debtor or the Collateral, notwithstanding
any other title retention agreement, commercial pledge, right of re-sale,
security interest or other encumbrance whatsoever, and notwithstanding that the
indebtedness of the Debtor to the Creditor may be reduced to a nil balance or be
repaid and further advances made from time to time.
ARTICLE 3 SALES IN ORDINARY COURSE OF BUSINESS
3.01 The Debtor shall not have the right to sell, lease or dispose of any of the
Collateral except for a sale in the ordinary course of business upon customary
sales terms for value received and then only upon the express condition that on
or before delivery to a third party the Debtor shall secure full settlement of
the entire purchase price for the Collateral so sold in cash, notes, chattel
paper or other property in form satisfactory to the Creditor. Until the Debtor
shall have made settlement with the Creditor of the full amount due to the
Creditor with respect to all such Collateral sold or disposed of by the Debtor,
the Debtor shall aggregate such cash, notes, chattel paper or other property and
hold the same in trust for the Creditor and the Creditor shall have a security
interest therein. The Debtor shall be entitled to transfer such notes or chattel
paper free of such trust if at or prior to the time of such transfer the payment
due from Debtor to the Creditor shall be assured to the satisfaction of the
Creditor.
ARTICLE 4 WARRANTIES OF DEBTOR
4.01 The Debtor hereby warrants to the Creditor that:
a. if it is a corporation then it is duly organized and validly existing under
the laws of the jurisdiction of its incorporation and it is qualified to
conduct its business in British Columbia, and the execution, delivery and
performance hereto are within its corporate powers, have been duly
authorized and do not contravene, violate or conflict with any law or the
terms of its constating documents or any indenture or agreement to which it
is a party;
b. except for the security interests granted hereby and any expressly
permitted security interests having priority over the security interests
granted hereby, the Debtor is or will be the owner of, or have an interest
in, the Collateral free from any adverse liens, security interest or
encumbrances, and agrees that it will defend the Collateral against all
claims and demands of all persons, firms or bodies corporate at any time
claiming the same or any interest therein;
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c. the security interests herein are given and taken as additional security
for the payment of the monies payable under other security instruments
between the Debtor and the Creditor, and not in substitution therefor; and
d. the Collateral does not include any goods or assets of the Debtor that are
consumer goods as defined in the Personal Property Security Act. of British
Columbia.
ARTICLE 5 UNDERTAKINGS OF DEBTOR
5.01 The Debtor hereby undertakes to:
a. promptly pay all obligations, indebtedness and liabilities owing to the
Creditor as they become due or are demanded;
b. maintain the Collateral in good condition and repair and provide adequate
storage facilities to protect the Collateral and not permit the value of
the Collateral to be impaired, reasonable wear and tear excepted;
c. not, without the consent in writing of the Creditor, create any security
interest, mortgage, hypothecate, charge, lien or other encumbrance upon the
Collateral or any part thereof ranking or purporting to rank in priority to
or pari passu with the security interests created by this Agreement, except
that the Debtor may create a purchase money security interest in Collateral
hereafter acquired but only if such interest is perfected and notification
thereof is given to the Creditor pursuant to the provisions of the Personal
Property Security Act of British Columbia.
d. defend the title to the Collateral against all persons, firms or bodies
corporate claiming any interest in the Collateral or any part thereof;
e. not, without the prior written consent of the Creditor remove the
Collateral or any part thereof from the location where the Debtor carries
on its business within the Province of British Columbia, except for
rentals, machinery demonstrations, repairs and maintenance in the ordinary
course of business which shall take place within the said Province;
f. pay all taxes, assessments, and levies or charges from any source which may
be assessed against the Collateral or any part thereof or which may result
in a lien against the Collateral or any part thereof and insure the
Collateral for loss or destruction by fire, wind storm and such other
perils stipulated by the Creditor in an amount not less than the full
insurable value of the Collateral or the amount from time to time hereby
secured, whichever is lesser, with appropriate endorsement to secure the
Creditor as its interest shall appear. In the event the Debtor shall fail
to provide adequate insurance when required to do so or to pay any of the
said taxes, assessments, levies or charges the Creditor may, without
notice, at its option, but without any obligation or liability so to do,
procure insurance and pay taxes or other charges and add said sums to the
balance of the debt hereby secured or claim from the Debtor immediate
reimbursement of such sums;
g. keep, at the principal place of business of the Debtor, accurate books and
records of the Collateral and furnish at the request of the Creditor from
time to time, in writing, all information requested relating to the
Collateral or any part thereof and the Creditor shall be
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entitled from time to time to inspect the aforesaid Collateral and to take
temporary custody of and make copies of all documents relating to Accounts
Receivable and for such purposes the Creditor shall have access to all
premises occupied by the Debtor or where the Collateral or any of it may be
found;
h. duly observe and conform to all valid requirements of a governmental
authority relative to any of the Collateral and all covenants, terms and
conditions upon or under which the Collateral is held;
i. do, make and execute, from time to time at the Creditor's request, all such
financing statements, further assignments, documents, acts, matters and
things as may be reasonably required by the Creditor of or with respect to
Collateral or any part thereof or as may be required to give effect to
these presents, and the Debtor hereby constitutes and appoints the Creditor
or any received, manager or receiver-manager appointed by the Court or the
Creditor (all of whom are hereinafter referred to as the "Receiver") as
hereafter set out, the true and lawful attorney of the Debtor irrevocably
will full power of substitution to do, make and execute all such
assignments, documents, act, matters or things with the right to use the
name of the Debtor whenever and wherever it may be deemed necessary or
expedient;
j. give immediate notice to the Creditor in the event of a change of the
corporate or trade name of the Debtor; and
k. pay, on demand of the Creditor, all reasonable expenses, including
solicitor's fees and disbursements and all the remuneration of any Receiver
appointed hereunder, incurred by the Creditor in the preparation,
perfection and enforcement of this Agreement.
ARTICLE 6 MAINTAIN SECURITY INTEREST
6.01 The Debtor shall pay all expenses and, upon request, take any action
reasonably deemed advisable by the Creditor to preserve the Collateral or to
establish, determine priority of, perfect, continue perfected, terminate and/or
enforce the Creditor's interest in it or rights under this Agreement. If the
Debtor fails to act as required by this Agreement, the Creditor is authorized,
in the Debtor's name, to take any such action, including without limitation,
signing the Debtor's name or paying any amounts so required, and the cost
thereof shall be one of the debts and liabilities secured hereunder.
ARTICLE 7 DEFAULT
7.01 The Creditor may, at its option, in writing, declare the Debtor to be in
default under this Agreement, and may declare the whole or any part of the
unpaid balance of any obligations, indebtedness and liabilities secured by this
Agreement immediately due and payable, or may do either, if any of the following
events occurs:
a. the Debtor fails to pay when due any of the obligations, indebtedness or
liabilities secured by this Agreement;
b. the Debtor fails to perform any term, condition, provision, covenant or
undertaking of this Agreement or any other agreement between the Debtor and
the Creditor;
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c. the Debtor ceases or threatens to cease to carry on its business, commits
an act of bankruptcy, becomes insolvent, makes an assignment or bulk sale
of its assets, or proposes a compromise or arrangement to its creditors;
d. any proceeding is taken with respect to a compromise or arrangement or to
have the Debtor declared bankrupt or wound up or to have a receiver
appointed of any part of the Collateral or if any encumbrancer take
possession of any part thereof;
e. any execution, sequestration or extent or any other process of any Court
becomes enforceable against the Debtor or it any distress or analogous
process is levied upon the Collateral or any part thereof;
f. the occurrence of loss, theft, damage or destruction of the Collateral not
covered by adequate insurance containing a loss payable clause for the
protection of the Creditor as its interest may appear;
g. any representation, warranty or statement made by or on behalf of the
Debtor to the Creditor is untrue in any material respect at the time when
it was made;
h. if the Debtor is a corporation, there is, in the Creditor's reasonable
opinion, a change in effective control of the Debtor, or if the Debtor is a
partnership, there is a dissolution or change in the membership of the
partnership;
i. the Debtor becomes insolvent or bankrupt or makes a proposal or files an
assignment for the benefit of creditors under the Bankruptcy Act of Canada
or similar legislation in Canada or any other jurisdiction; a petition in
bankruptcy is filed against the Debtor; or, if the Debtor is a corporation,
steps are taken under any legislation by or against the Debtor seeking its
liquidation, winding-up, dissolution, or any arrangement or compromise of
its debts;
j. a receiver, trustee, custodian or other similar official is appointed in
respect of the Debtor or any of the Debtor's property; or
k. if the Creditor in good faith believes upon commercially reasonable
grounds, that the prospect of payment of performance on the part of the
Debtor of any of its obligations is, or is about to be, impaired or that
the Collateral, or any part thereof, is, or is about to be, in jeopardy
including danger of being lost, damages or confiscated.
ARTICLE 8 ENFORCEMENT AND REMEDIES
8.01 Upon default the security interests granted hereby shall become enforceable
and the Creditor shall have all the rights and remedies available to it under
the Personal Property Security Act of British Columbia as amended from time to
time as well as any other applicable laws and, but so as not to restrict the
generality of the foregoing, the following rights and remedies:
a. the Creditor may appoint by instrument in writing a Receiver of all or any
part of the Collateral and remove or replace such Receiver from time to
time or may institute proceedings in any Court of competent jurisdiction
for the appointment of such a Receiver. Any such Receiver or Receivers so
appointed shall have power to take possession of the Collateral hereby
charged or to carry on the business of the Debtor and to concur in selling
any of such
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Collateral or any part thereof, and for such purposes to occupy and use any
real or personal property of the Debtor without charge therefor for so long
as may be necessary;
b. the Creditor may demand that the Debtor assemble the Collateral or any part
thereof, in any convenient place designated by the Creditor and deliver
possession of all of the Collateral or part thereof to the Creditor;
c. the Creditor may take such steps as it considers necessary or desirable to
obtain possession of all or any part of the Collateral, and to that end the
Debtor agrees that the Creditor may by its servants, agents or Receiver at
any time during the day or night enter upon lands and premises, and if
necessary break into the houses, buildings and other enclosures where the
Collateral may be found for the purpose of taking possession of and
removing the Collateral or any part thereof;
d. the Creditor may seize, collect, realize, borrow money on the security of,
release to third parties or otherwise deal with the Collateral or any part
thereof in such manner, upon such terms and conditions and at such time or
times as may seem to it advisable and without notice to the Debtor (except
as other required by any applicable law);
e. the Creditor may charge the Debtor for any expense incurred by the Creditor
(including taxes, insurance, legal, accounting and Receiver fees) in
protecting, seizing, collecting, realizing, borrowing on the security of,
selling or obtaining payment of the Collateral or any part thereof and may
add the amount of such sums to the indebtedness of the Debtor;
f. the Creditor may elect to retain all or any part of the Collateral in
satisfaction of the obligations, indebtedness and liabilities of the Debtor
to the Creditor;
g. the Creditor may grant extensions of time and other indulgences, take and
give up securities, accept compositions, grant releases and discharges,
release any part of the Collateral to third parties and otherwise deal with
the Debtor, debtors of the Debtor, sureties and others and with the
Collateral and other securities as the Creditor may see fit without
prejudice to the liability of the Debtor or the Creditor's right to hold
and realize the Collateral;
h. in the event of the Creditor taking possession of the Collateral, or any
part thereof in accordance with the provisions of this Agreement, the
Creditor shall have the right to maintain the same upon the premises on
which the Collateral may then be situate and for the purpose of such
maintaining shall be entitled to the free use and enjoyment of all
necessary buildings, premises, housing, stabling, shelter and accommodation
for the proper maintaining, housing and protection of the Collateral so
taken possession of by the Creditor as aforesaid, and for its servant or
servants, assistant or assistants and the Debtor convenants and agrees to
provide the same without cost or expense to the Creditor until such time as
the Creditor shall determine in its discretion to remove, sell or otherwise
dispose of the Collateral so taken possession of by it as aforesaid;
i. to facilitate the realization of the Collateral, the Creditor or its
Receiver may carry on or concur in the carrying on of all or part of the
business of the Debtor and may, to the exclusion of all others, including
the Debtor, enter upon, occupy and use all or any of the premises,
buildings, plant and undertaking of the Debtor or occupied or used by the
Debtor, and use all or any of the tools, machinery and
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equipment of the Debtor for such time as the Creditor or Receiver sees fit,
free of charge, to manufacture or complete the manufacture of any inventory
and to pack and ship the finished product, and the Creditor or Receiver
shall not be liable to the Debtor for any neglect in so doing or in respect
of any rent, rent charges, depreciation or damages in connection with such
actions;
j. the Creditor may, if it deems it necessary for the proper realization of
all or any part of the Collateral, pay any encumbrance, lien, claim or
charge that may exist or be threatened against the same and in every such
case the amounts so paid together with costs, charges and expenses incurred
in connections therewith shall be added to the obligations of the Debtor to
the Creditor at the date of payment thereof by the Creditor;
k. the Creditor may sell, lease or otherwise dispose of all or any part of the
Collateral, whether by public or private sale or lease or otherwise, in
such manner, at such price as can be reasonably obtained therefore and on
such terms as to credit and with such conditions of sale and stipulations
as to title or conveyance or evidence of title or otherwise as to the
Creditor may seem reasonable, provided that, if any sale is on credit, the
Debtor will not be entitled to be credited with the proceeds of any such
sale, lease or other disposition until the monies therefor are actually
received; and
l. all monies collected or received by the Creditor in respect of the
Collateral may be applied on account of such parts of the indebtedness and
liability of the Debtor as to the Creditor seems best or may be held
unappropriated in a Collateral account or in the discretion of the Creditor
may be released to the Debtor, all without prejudice to the Creditor's
claims upon the Debtor.
8.02 The rights and remedies herein conferred upon the Creditor shall be
cumulative and not alternative and shall be in addition to and not in
substitution for or in derogation of rights and remedies conferred by the
Personal Property Security Act of British Columbia as amended from time to time
and any other applicable laws.
ARTICLE 9 WAIVER
9.01 The Creditor may permit the Debtor to remedy any default without waiving
the default so remedied and the Creditor may waive any default without having
waived any other subsequent or prior default by the Debtor. A waiver shall only
be binding on the Creditor if it has been given in writing.
9.02 The Debtor shall not be discharged by any extension of time, additional
advances, renewals, and extensions, the taking of further security, releasing
security, extinguishment of any of the security interests created herein as to
all or any part of the Collateral, the failure to perfect the security or any
other act except a release or discharge of the said security interests upon the
full payment of the obligations, indebtedness and liabilities secured by this
Agreement, including, charges, expenses, fees, costs and interest.
9.03 The Debtor waives the right to receive any verification statements or
financing statements related to this Agreement.
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ARTICLE 10 NON-LIABILITY OF THE CREDITOR
10.01 The Creditor shall not be liable or accountable for any failure to seize,
collect, realize, sell or obtain payment of the Collateral or any part thereof
and shall not be bound to institute proceedings for the purpose of seizing,
collecting, realizing or obtaining possession or payments of the same or for the
purpose of preserving any rights of the Creditor, the Debtor, or any other
person, firm or body corporate in respect of same. The Creditor shall use
reasonable care in the custody and preservation of Collateral it has taken into
its possession and the Debtor hereby agrees that the Creditor shall not be
obliged to preserve any rights against other persons or take any steps to
preserve any rights of the Debtor with respect to Other Personal Property
including any instrument, security or chattel paper included in the Collateral.
ARTICLE 11 ADDITIONAL SECURITY
11.01 This Agreement is in addition to and not in substitution for any other
agreement between the parties creating a security interest in all or part of the
Collateral, whether heretofore or hereafter made, and the terms of such other
agreement or agreements shall be deemed to be continued unless expressly
provided to the contrary in writing and signed by the parties.
ARTICLE 12 ATTACHMENT
12.01 Subject to Section 12.02 the Debtor warrants and acknowledges that value
has been given and that the Debtor and the Creditor intend the security
interests created by this Agreement to attach upon the execution of this
Agreement and that value has been given and that the Debtor has rights in the
Collateral.
12.02 With respect to any part of the Collateral to be acquired by the Debtor
after the date hereof, the Debtor warrants and acknowledges that the Debtor and
the Creditor intend the security interests created by this Agreement to attach
as soon as the Debtor has rights therein.
ARTICLE 13 FUTURE ADVANCES
13.01 Nothing herein contained including the execution of this Agreement nor the
perfection of any of the security interests contained herein shall obligate the
Creditor to make any advance or future advance or loan or renewal or extension
of any indebtedness or liability of the Debtor whatsoever.
ARTICLE 14 NOTICES
14.01 Notwithstanding anything herein contained and whether or not expressly
stipulated herein, every notice or other communication contemplated hereby or
otherwise relating hereto shall be in writing. Every notice required or
permitted to be communicated hereunder, may be:
a. served personally by leaving it with the party to whom it is to be
communicated;
b. communicated by telecopy to the party to whom it is to be communicated; or
c. mailed by pre-paid registered mail (with acknowledgement of receipt
requested) to the party to whom it is to be communicated.
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If a notice is served personally, it shall be deemed to have been validly
communicated to and received by the party to whom it was addressed on the date
on which it was delivered. If a notice is communicated by telecopy, it shall be
deemed to have been validly communicated to and received by the party to whom it
was addressed on the expiry of eight hours after it was transmitted or 9:00
o'clock a.m. (according to the time zone of the party to whom it was addressed)
on the day following its transmission, whichever is later. If a notice is mailed
as aforesaid, it shall be deemed to have been validly communicated to and to
have been received by the addressee thereof on the earlier of the date of its
receipt or the eleventh day following the mailing thereof on the earlier of the
date of its receipt or the eleventh day following the mailing thereof in Canada,
provided that no party shall mail any notice during any period during which
Canadian postal workers, whether in the whole of Canada, or in any region
thereof where a notice is to be communicated, are on strike, are withholding of
services or lock-out is threatened or has just been terminated so that, in the
result, it may be adversely affected. Any address as provided for in this
Section may be changed by written notice as contemplated by this Section, and
the respective addresses of the parties hereto for the communication of notice
shall be as set forth on the first page of this Agreement.
ARTICLE 15 HEADINGS
15.01 All headings used in this Agreement have been inserted for convenience of
reference only and are not intended to assist in the interpretation of any of
the provisions of this Agreement unless expressly referred to in the provisions
of this Agreement.
ARTICLE 16 GENERAL
16.01 In this Agreement:
a. "Act" means the Personal Property Security Act of British Columbia and all
regulations thereunder as amended from time to time;
b. "Collateral" has the meaning set out in Section 2.01 hereof and any
reference to Collateral shall, unless the context otherwise requires, be
deemed a reference to Collateral as a whole or any part thereof; and
c. "Debtor" and the personal pronoun "it" or "its" and any verb relating
thereto and used therewith shall be read and construed as required by and
in accordance with the context in which such words are used depending upon
whether the Debtor is one or more individuals, corporations or partnerships
and, if more than one, shall apply and be binding upon each of them
severally.
16.02 Words and expressions used herein that have been defined in the Act shall
be interpreted in accordance with their respective meanings given in the Act
unless otherwise defined herein or unless the context otherwise requires.
16.03 The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision.
16.04 This Agreement shall be governed in accordance with the laws of the
Province of British Columbia.
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16.05 The Debtor has requested that this agreement and all related documents be
drawn up in the English language with which request the Creditor agrees. Le
Debtor a demande que le present contrat ainsi que toute la documentation
d'accompagnement soient rediges en anglais, requete a laquelle le Creditor
consent.
ARTICLE 17 RECEIPT OF COPY
17.01 The Debtor hereby acknowledges receipt of a copy of this Agreement.
ARTICLE 18 ENUREMENT
18.01 This Agreement benefits the Creditor, its successors and assigns and binds
the Debtor and its heirs, executors, personal representatives, successors and
assigns.
ARTICLE 19 FURTHER ASSURANCES
19.01 The Debtor will from time to time immediately upon request by the Creditor
take such action (including among other things the signing and delivery of
financing statements and financing change statement, other schedules, documents
or listings describing property included in the Collateral, further assignments
and other documents, and the registration of this Agreement or any other
encumbrance against any of the Debtor's property, real or personal) as the
Creditor may consider necessary to give effect to this Agreement. The Debtor
irrevocably appoints the Creditor as the Debtor's attorney (with full powers of
substitution and delegation) to sign, upon an event of default occurring as
described in this Agreement, all documents required to give effect to this
Article.
IN WITNESS WHEREOF the Debtor has executed this Security Agreement effective the
day and year first above written.
SIGNED, SEALED AND DELIVERED by ) iQ POWER TECHNOLOGY INC.
iQ POWER TECHNOLOGY INC. )
in the presence of: ) /s/ Xxxx Xxxxxx
) -------------------------
/s/ [ILLEGIBLE] ) authorized signature
---------------------------- )
Witness ) /s/ Xxxx Xxxxxx
) -------------------------
708 - 0000 X. Xxxxxxxx Xx. ) authorized signature
---------------------------- )
Address )
)
Van. BC V3H 3C9 )
---------------------------- )
Postal Code )
SCHEDULE OF COLLATERAL
The Collateral shall include:
a. all of the Debtor's present and after-acquired undertaking and personal
property; and
b. all of the Debtor's present and after-acquired real property together with
all buildings or improvements placed, installed or erected on any such
property, and all fixtures.
The Collateral shall not include any consumer goods of the Debtor or the last
day of any term of years reserved by any lease, verbal or written, or any
agreement therefrom, now held or hereafter acquired by the Debtor.
