Contract
Exhibit 10.3
GENERAL SECURITY AGREEMENT This General Security Agreement is made as of September 26, 2017. TO: BROOKFIELD BRP HOLDINGS (CANADA) INC., as Secured Party RECITALS: A. Powin Energy Ontario Storage II, LP, as borrower (the "Debtor") and Brookfield BRP Holdings (Canada) Inc., as lender, are party to a term loan agreement dated as of the date hereof (as may be amended, supplemented, restated or replaced from time to time, the "Loan Agreement"). B. Powin Energy Storage 2, Xxx.xx the general partner of the Borrower. C. Pursuant to the Loan Agreement, the Debtor is required to secure the payment and performance of the Secured Liabilities and, accordingly, the Debtor has agreed to grant to the Secured Party the Security Interests with respect to the Collateral in accordance with the terms of this Agreement. For good and valuable consideration, the receipt and adequacy of which are acknowledged by the Debtor, the Debtor agrees with and in favour of the Secured Party as follows: 1. Definitions. In this Agreement capitalized terms used but not otherwise defined in this Agreement shall have the meanings given to them in the Loan Agreement, and the following terms have the following meanings: "Accessions", "Account", "Chattel Paper", "Certificated Security", "Consumer Goods", "Document of Title", "Equipment", "Futures Account", "Futures Contract", "Futures Intermediary", "Goods", "Instrument", "Intangible", "Inventory", "Investment Property", "Money", "Proceeds", "Securities Account", "Securities Intermediary", "Security", "Security Certificate", "Security Entitlement", and "Uncertificated Security" have the meanings given to them in the PPSA. "Agreement" means this agreement, including the Schedules and recitals to this agreement, as it or they may be amended, supplemented, restated or replaced from time to time, and the expressions "hereof', "herein", "hereto", "hereunder", "hereby" and similar expressions refer to this Agreement and not to any particular section or other portion of this Agreement. "Books and Records" means all books, records, files, papers, disks, documents and other repositories of data recording in any form or medium, evidencing or relating to the Personal Property of the Debtor which are at any time owned by the Debtor or to which the Debtor (or any Person on the Debtor's behalf) has access. "Collateral" means all of the present and future: 500713845 v2
-2 (a) undertaking; (b) Personal Property (including any Personal Property that may be described in any Schedule to this Agreement or any schedules, documents or listings that the Debtor may from time to time provide to the Secured Party in connection with this Agreement); and (c) real property (including any real property that may be described in any Schedule to this Agreement or any schedules, documents or listings that the Debtor may from time to time provide to the Secured Party in connection with this Agreement and including all fixtures, improvements, buildings and other structures placed, installed or erected from time to time on any such real property), of the Debtor, including Books and Records, Contracts, Intellectual Property Rights and permits, and including all such property in which the Debtor now or in the future has any right, title or interest whatsoever, whether owned, leased, licensed, possessed or otherwise held by the Debtor, and all Proceeds of any of the foregoing, wherever located. "Contracts" means all contracts and agreements to which the Debtor is at any time a party or pursuant to which the Debtor has at any time acquired rights (including, for greater certainty, any Material Agreement to which the Debtor is a party), and includes (i) all rights of the Debtor to receive money due and to become due to it in connection with a contract or agreement, (ii) all rights of the Debtor to damages arising out of, or for breach or default with respect to, a contract or agreement, and (iii) all rights of the Debtor to perform and exercise all remedies in connection with a contract or agreement. "Control" means, with respect to a particular Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlled" has the corresponding meaning. "Debtor" has the meaning set out in the recitals hereto. "Event of Acceleration" has the meaning set out in Section 3 hereof "Intellectual Property Rights" means all industrial and intellectual property rights of the Debtor or in which the Debtor has any right, title or interest, including copyrights, patents, inventions (whether or not patented), trade-marks, get-up and trade dress, industrial designs, integrated circuit topographies, plant breeders' rights, know how and trade secrets, registrations and applications for registration for any such industrial and intellectual property rights, and all Contracts related to any such industrial and intellectual property rights. "Issuer" has the meaning given to that term in the STA. "Loan Agreement" has the meaning set out in the recitals hereto. "Organizational Documents" means, with respect to any Person, such Person's articles or other charter documents, by-laws, unanimous shareholder agreement, partnership agreement or trust 500713845 v2
-3 agreement, as applicable, and any and all other similar agreements, documents and instruments relative to such Person. "Personal Property" means personal property and includes Accounts, Chattel Paper, Documents of Title, Equipment, Goods, Instruments, Intangibles, Inventory, Investment Property and Money. "Pledged Certificated Securities" means any and all Collateral that is a Certificated Security. "Pledged Futures Intermediary's Jurisdiction" means, with respect to any Pledged Futures Intermediary, its jurisdiction as determined under section 7.1(4) of the PPSA. "Pledged Issuer" means, at any time, any Person which is an Issuer of, or with respect to, any Pledged Shares at such time. "Pledged Issuer's Jurisdiction" means, with respect to any Pledged Issuer, its jurisdiction as determined under section 44 of the STA. "Pledged Securities" means any and all Collateral that is a Security. "Pledged Securities Intermediary's Jurisdiction" means, with respect to any Securities Intermediary, its jurisdiction as determined under section 45(2) of the STA. "Pledged Security Certificates" means any and all Security Certificates representing the Pledged Certificated Securities. "Pledged Security Entitlements" means any and all Collateral that is a Security Entitlement. "Pledged Shares" means all Pledged Securities and Pledged Security Entitlements. "PPSA" means the Personal Property Security Act of the Province referred to in the "Governing Law" section of this Agreement, as such legislation may be amended, renamed or replaced from time to time, and includes all regulations from time to time made under such legislation. "Receiver" means a receiver, a manager or a receiver and manager appointed in accordance with Section 11(q). "Release Date" means the date on which all the Secured Liabilities have been indefeasibly paid and discharged in full and the Secured Party has no further obligations to the Debtor under any Loan Document pursuant to which further Secured Liabilities might arise. "Secured Liabilities" means all present and future indebtedness, liabilities and obligations of any and every kind, nature and description (whether direct or indirect, joint or several, absolute or contingent, matured or unmatured) of the Debtor to the Secured Party under, in connection with or with respect to the Loan Agreement or any other Loan Document, and any unpaid balance thereof. 500713845 v2
-4 "Secured Party" means Brookfield BRP Holdings (Canada) Inc., or any permitted successors or assigns. "Security Interests" means the Liens created by the Debtor in favour of the Secured Party under this Agreement. "STA" means the Securities Transfer Act of the Province referred to in the "Governing Law" section of this Agreement, as such legislation may be amended, renamed or replaced from time to time, and includes all regulations from time to time made under such legislation. 2. Grant of Security Interests. As general and continuing collateral security for the due payment and performance of the Secured Liabilities, the Debtor pledges, mortgages, charges and assigns (by way of security) to the Secured Party, and grants to the Secured Party a security interest in, the Collateral. 3. Limitations on Grant of Security Interests. If the grant of the Security Interests with respect to any Contract, Intellectual Property Right or permit under Section 2 would result in the termination or breach of such Contract, Intellectual Property Right or permit or is otherwise prohibited or ineffective (whether by the terms thereof or under Requirements of Law), then such Contract, Intellectual Property Right or permit shall not be subject to the Security Interests but shall be held in trust by the Debtor for the benefit of the Secured Party and, on the exercise by the Secured Party of any of its rights or remedies under this Agreement following an Event of Default and acceleration of the Secured Liabilities pursuant to and as permitted by Section 7.2 of the Loan Agreement, (collectively, an "Event of Acceleration") shall be assigned by the Debtor as directed by the Secured Party; provided that: (a) the Security Interests shall attach to such Contract, Intellectual Property Right or permit, or applicable portion thereof, immediately at such time as the condition causing such termination or breach is remedied, and (b) if a term in a Contract that prohibits or restricts the grant of the Security Interests in the whole of an Account or Chattel Paper forming part of the Collateral is unenforceable against the Secured Party under Requirements of Law, then the exclusion from the Security Interests set out above shall not apply to such Account or Chattel Paper. In addition, the Security Interests do not attach to Consumer Goods or extend to the last day of the term of any lease or agreement for lease of real property. Such last day shall be held by the Debtor in trust for the Secured Party and, on the exercise by the Secured Party of any of its rights or remedies under this Agreement following an Event of Acceleration, shall be assigned by the Debtor as directed by the Secured Party. For greater certainty, no Intellectual Property Right in any trade-xxxx, get-up or trade dress is presently assigned to the Secured Party by sole virtue of the grant of the Security Interests contained in Section 2. 4. Security Interests Absolute. The Security Interests granted hereby and all rights of the Secured Party hereunder and all obligations of the Debtor hereunder are unconditional and absolute and independent and separate from any other security for the Secured Liabilities, whether executed by the Debtor or any other Person. 5. Attachment; No Obligation to Advance. The Debtor confirms that value has been given by the Secured Party to the Debtor, that the Debtor has rights in the Collateral existing at the date of this Agreement and that the Debtor and the Secured Party have not agreed to 500713845 v2
-5 postpone the time for attachment of the Security Interests to any of the Collateral. The Security Interests shall have effect and be deemed to be effective whether or not the Secured Liabilities or any part thereof are owing or in existence before or after or upon the date of this Agreement. Neither the execution and delivery of this Agreement nor the provision of any financial accommodation by the Secured Party shall oblige the Secured Party to make any financial accommodation or further financial accommodation available to the Debtor or any other Person. 6. Representations and Warranties. The Debtor represents and warrants to the Secured Party that: (a) as of the date hereof, all of the information set out in Schedule A is accurate and complete; (b) this Agreement constitutes a legal, valid and binding obligation of the Debtor, enforceable against it in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by principles of equity); (c) the entering into of this Agreement and the performance by the Debtor of its obligations hereunder does not and will not contravene, breach or result in any default under the Organizational Documents of the Debtor or any requirement of Requirements of Law or result in the creation of any Lien (other than the Security Interests granted herein); (d) no authorization, consent or approval of, or filing with or notice to, any Person or Governmental Authority is required in connection with the execution and delivery of this Agreement by the Debtor or the performance of this Agreement by the Debtor; (e) there is no court, administrative, regulatory or similar action (whether civil, quasi- criminal, or criminal), arbitration or other dispute settlement procedure, investigation or enquiry by any Governmental Authority, or any similar matter or action against or involving the Debtor, whether in progress or threatened, which, if determined adversely to the Debtor, would have a Material Adverse Effect; (f) the Debtor does not have or use a French form of name or a combined English and French form of name; (g) the Pledged Securities have been duly authorized and validly issued and are fully paid and non-assessable; (h) there are no outstanding warrants, options or other rights to purchase, or other agreements outstanding with respect to, or property that is now or hereafter convertible into, or that requires the issuance or sale of, any Pledged Shares; the Debtor is the registered and beneficial owner of the Pledged Securities;
-6 (j) there are no restrictions on the voting rights associated with, or upon the transfer of, any of the Pledged Securities other than as set out in the Organizational Documents or required by Requirements of Law; (k) all necessary approvals and consents have been obtained in order to permit the Debtor to subject the interest of the Debtor in the Collateral to the Security Interest created by this Agreement and to permit the transfer of the Pledged Securities and any other property forming part of the Collateral from time to time to the Secured Party or its nominee or any other Person in the event of realization in accordance with the provisions of Section 11 hereof; (1) the Pledged Securities are the sole property of the Debtor free from any liens, charges, security interests, encumbrances or any rights of others other than Permitted Liens; (m) all of the Pledged Securities are Certificated Securities and are "securities" for the purposes of the STA; (n) this Agreement creates a valid first perfected security interest in the Pledged Securities subject to any Permitted Liens; (o) the Debtor does not own or have any interest in any Securities Accounts, Security Entitlements, Futures Contracts or Uncertificated Securities; and (p) there is no existing agreement, option, right or privilege capable of becoming an agreement or option pursuant to which the Debtor could be required to sell or otherwise dispose of any of the Pledged Shares other than as set out in the Loan Agreement. 7. Survival of Representations and Warranties. All representations and warranties made by the Debtor in this Agreement (a) are material, (b) shall be considered to have been relied on by the Secured Party, and (c) shall survive the execution and delivery of this Agreement or any investigation made at any time by or on behalf of the Secured Party and any disposition or payment of the Secured Liabilities until the Release Date. 8. Covenants. The Debtor covenants and agrees with the Secured Party that: (a) Marking of Collateral. The Debtor shall keep and maintain accurate and complete records of the Collateral, including a record of all payments received and all credits granted with respect to the Accounts and Contracts. At the written request of the Secured Party, the Debtor shall xxxx any Collateral specified by the Secured Party to evidence the existence of the Security Interests. (b) Maintenance of Registrations. The Debtor shall maintain in good standing all registrations and applications with respect to the Intellectual Property Rights except to the extent that any failure to do so could not reasonably be expected to result in a Material Adverse Effect. 500713845 v2
-7 (c) Further Identification of Collateral. The Debtor shall promptly furnish to the Secured Party such statements and schedules further identifying and describing the Collateral, and such other reports in connection with the Collateral, as the Secured Party may from time to time reasonably request, including an updated list of "serial number" goods owned by the Debtor and classified as Equipment. (d) Agreements re Intellectual Property Rights. Promptly upon request from time to time by the Secured Party, the Debtor shall authorize, execute and deliver any and all agreements, instruments, documents and papers that the Secured Party may request to evidence the Security Interests in any Intellectual Property Rights and, where applicable, the goodwill of the business of the Debtor connected with the use of, and symbolized by, any such Intellectual Property Rights. (e) Instruments; Documents of Title; Chattel Paper. Promptly upon request from time to time by the Secured Party, the Debtor shall deliver to the Secured Party, endorsed and/or accompanied by such instruments of assignment and transfer in such form and substance as the Secured Party may reasonably request, any and all Instruments, Documents of Title and Chattel Paper included in or relating to the Collateral as the Secured Party may specify in its request. Pledged Certificated Securities. The Debtor shall deliver to the Secured Party any and all Pledged Security Certificates and other materials as may be required from time to time to provide the Secured Party with control over all Pledged Certificated Securities in the manner provided under section 23 of the STA. At the request of the Secured Party, the Debtor shall cause all Pledged Security Certificates to be registered in the name of the Secured Party or its nominee (g) Partnerships, Limited Liability Companies. The Debtor shall ensure that the terms of any interest in a partnership or limited liability company that is Collateral shall expressly provide that such interest is a "security" for the purposes of the STA. (h) Transfer Restrictions. If the Organizational Documents of any Pledged Issuer restrict the transfer of the Securities of such Pledged Issuer, then the Debtor shall deliver to the Secured Party a certified copy of a resolution of the directors, shareholders, unitholders or partners of such Pledged Issuer, as applicable, consenting to the transfer(s) contemplated by this Agreement, including any prospective transfer of the Collateral by the Secured Party upon a realization on the Security Interests. (i) Liens. The Debtor shall preserve, protect and defend in all material respects the Collateral, including, if appropriate (in the reasonable judgement of the Debtor), prosecution of suits to enforce any right of the Debtor and enforcement of any claims with respect thereto and, except as otherwise provided herein, keep the Collateral free and clear of all Liens other than as specifically permitted by the Loan Agreement and any other Loan Document. 500713845 v2
-8 (j) Disposition; Transfer. The Debtor shall not sell or dispose of, transfer, relinquish, or agree to pledge, encumber, mortgage, charge or otherwise deal with any of its interest in the Collateral other than as specifically permitted by the Loan Agreement or any other Loan Document. (k) Certificated Securities. The Debtor shall not permit any issuance of additional Securities in the capital of the Pledged Issuers unless all such additional Securities are Certificated Securities, are permitted by the Loan Agreement and are forthwith delivered to the Secured Party. (1) Notices. The Debtor shall advise the Secured Party promptly, in reasonable detail, of any: (i) change to a Pledged Securities Intermediary's Jurisdiction, Pledged Issuer's Jurisdiction or Pledged Future Intermediary's Jurisdiction; (ii) change in the location of the jurisdiction of incorporation or amalgamation, chief executive office, or domicile of the Debtor; (iii) change in the name of the Debtor; (iv) merger, consolidation or amalgamation of the Debtor with any other Person; (v) additional jurisdiction in which the Debtor carries on business or has tangible Personal Property; (vi) additional jurisdiction in which material account debtors of the Debtor are located; (vii) acquisition of any right, title or interest in real property by the Debtor; (viii) acquisition of any Intellectual Property Rights which are the subject of a registration or application with any governmental intellectual property or other governing body or registry, or which are material to the Debtor's business; (ix) acquisition of any Instrument, Document of Title or Chattel Paper; (x) creation or acquisition of any subsidiary of the Debtor; or (xi) Lien (other than Permitted Liens) on, or claim asserted against, any of the Collateral. The Debtor shall not effect or permit any of the changes referred to in this section above unless all filings have been made and all other actions taken (to the extent, for greater certainty, such filings and actions may be taken prior to such changes) that are required in order for the Secured Party to continue at all times following 500713845 v2
-9 such change to have a valid and perfected first priority Security Interest with respect to all of the Collateral. (m) Certificated Securities. The Debtor shall not acquire any Securities unless all such additional Securities are Certificated Securities and are forthwith delivered to the Secured Party, together with all other materials as may be required from time to time to provide the Secured Party with control over all Pledged Certificated Securities in the manner provided under section 23 of the STA. (n) Security Entitlements, Securities Accounts, Future Contracts, Uncertificated Securities. The Debtor shall not acquire any Security Entitlement, Securities Account, Futures Contract or Uncertificated Security without, prior to acquiring such property, delivering to the Secured Party all agreements, instruments, documents and other material required, and doing all acts necessary, to ensure that the Secured Party has and will continue to have a valid and perfected first priority Security Interest on such property. 9. Voting Rights. Unless an Event of Acceleration has occurred and is continuing, the Debtor shall be entitled to exercise all voting power from time to time exercisable with respect to the Pledged Shares and give consents, waivers and ratifications with respect thereto; provided, however, that no vote shall be cast or consent, waiver or ratification given or action taken which would be, or would have a reasonably likelihood of being, prejudicial to the interests of the Secured Party or imposing any restriction on the transferability of any of the Collateral. Unless an Event of Acceleration has occurred and is continuing, the Secured Party shall, from time to time at the request and expense of the Debtor, execute or cause to be executed, with respect to all Pledged Securities that are registered in the name of the Secured Party or its nominee, valid proxies appointing the Debtor as its (or its nominee's) proxy to attend, vote and act for and on behalf of the Secured Party or such nominee, as the case may be, at any and all meetings of the applicable Pledged Issuer's shareholders, unitholders or debt holders, all Pledged Securities that are registered in the name of the Secured Party or such nominee, as the case may be, and to execute and deliver, consent to or approve or disapprove of or withhold consent to any resolutions in writing of shareholders, unitholders or debt holders of the applicable Pledged Issuer for and on behalf of the Secured Party or such nominee, as the case may be. Immediately upon the occurrence and during the continuance of any Event of Acceleration, all such rights of the Debtor to vote and give consents, waivers and ratifications shall cease and the Secured Party or its nominee shall be entitled to exercise all such voting rights and to give all such consents, waivers and ratifications. 10. Dividends; Interest. Unless an Event of Acceleration has occurred and is continuing, the Debtor shall be entitled to receive any and all cash dividends, interest, principal payments and other forms of cash distribution on the Pledged Shares which it is otherwise entitled to receive, but any and all stock and/or liquidating dividends, distributions of property, returns of capital or other distributions made on or with respect to the Pledged Shares, whether resulting from a subdivision, combination or reclassification of the outstanding capital stock of any Pledged Issuer or received in exchange for the Pledged Shares or any part thereof or as a result of any amalgamation, merger, consolidation, acquisition or other exchange of property to which any Pledged Issuer may be a party or otherwise, and any and all cash and other property received 500713845 v2
- 10 - in exchange for any Pledged Shares shall be and become part of the Collateral subject to the Security Interests and, if received by the Debtor, shall forthwith be delivered to the Secured Party or its nominee (accompanied, if appropriate, by proper instruments of assignment and/or stock powers of attorney executed by the Debtor in accordance with the Secured Party's instructions) to be held subject to the terms of this Agreement; and if any of the Pledged Security Certificates have been registered in the name of the Secured Party or its nominee, the Secured Party shall execute and deliver (or cause to be executed and delivered) to the Debtor all such dividend orders and other instruments as the Debtor may request for the purpose of enabling the Debtor to receive the dividends, distributions or other payments which the Debtor is authorized to receive and retain pursuant to this Section. If an Event of Acceleration has occurred and is continuing, all rights of the Debtor pursuant to this Section shall cease and the Secured Party shall have the sole and exclusive right and authority to receive and retain the cash dividends, interest, principal payments and other forms of cash distribution which the Debtor would otherwise be authorized to retain pursuant to this Section. Any money and other property paid over to or received by the Secured Party pursuant to the provisions of this Section shall be retained by the Secured Party as additional Collateral hereunder and be applied in accordance with the provisions of this Agreement. 11. Rights on Event of Acceleration. If an Event of Acceleration has occurred and is continuing, then and in every such case all of the Secured Liabilities shall, at the option of the Secured Party, become immediately due and payable and the Security Interests shall become enforceable and the Secured Party, in addition to any rights now or hereafter existing under Requirements of Law may, personally or by agent, at such time or times as the Secured Party in its discretion may determine, do any one or more of the following: (a) Rights under PPSA, etc. Exercise all of the rights and remedies granted to secured parties under the PPSA and any other applicable statute, or otherwise available to the Secured Party by contract, at law or in equity. (b) Demand Possession. Demand possession of any or all of the Collateral, in which event the Debtor shall, at the expense of the Debtor, immediately cause the Collateral designated by the Secured Party to be assembled and made available and/or delivered to the Secured Party at any place designated by the Secured Party. (c) Take Possession. Enter on any premises where any Collateral is located and take possession of, disable or remove such Collateral. (d) Deal with Collateral. Hold, store and keep idle, or operate, lease or otherwise use or permit the use of, any or all of the Collateral for such time and on such terms as the Secured Party may determine, and demand, collect and retain all earnings and other sums due or to become due from any Person with respect to any of the Collateral. (e) Carry on Business. Carry on, or concur in the carrying on of, any or all of the business or undertaking of the Debtor and enter on, occupy and use (without 500713845 v2
- 11 -charge by the Debtor) any of the premises, buildings, plant and undertaking of, or occupied or used by, the Debtor. (f) Enforce Collateral. Seize, collect, receive, enforce or otherwise deal with any Collateral in such manner, on such terms and conditions and at such times as the Secured Party deems advisable. (g) Dispose of Collateral. Realize on any or all of the Collateral and sell, lease, assign, give options to purchase, or otherwise dispose of and deliver any or all of the Collateral (or contract to do any of the above), in one or more parcels at any public or private sale, at any exchange, broker's board or office of the Secured Party or elsewhere, with or without advertising or other formality, except as required by Requirements of Law, on such terms and conditions as the Secured Party may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery to the extent permitted by Requirements of Law. (h) Court-Approved Disposition of Collateral. Obtain from any court of competent jurisdiction an order for the sale or foreclosure of any or all of the Collateral. (i) Purchase by Secured Party. At any public sale, and to the extent permitted by Requirements of 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, sell or otherwise dispose of such Collateral without any further accountability to the Debtor or any other Person with respect to such holding, retention, sale or other disposition, except as required by Requirements of Law. In any such sale to the Secured Party, the Secured Party may, for the purpose of making payment for all or any part of the Collateral so purchased, use any claim for any or all of the Secured Liabilities then due and payable to it as a credit against the purchase price. (j) Collect Accounts. Notify (whether in its own name or in the name of the Debtor) the account debtors under any Accounts of the Debtor of the assignment of such Accounts to the Secured Party and direct such account debtors to make payment of all amounts due or to become due to the Debtor with respect to such Accounts directly to the Secured Party and, upon such notification and at the expense of the Debtor, enforce collection of any such Accounts, and adjust, settle or compromise the amount or payment of such Accounts, in such manner and to such extent as the Secured Party deems appropriate in the circumstances. (k) Transfer of Collateral. Transfer any Collateral that is Pledged Shares into the name of the Secured Party or its nominee. (1) Voting. Vote any or all of the Pledged Shares (whether or not transferred to the Secured Party or its nominee) and give or withhold all consents, waivers and ratifications with respect thereto and otherwise act with respect thereto as though it were the outright owner thereof. 500713845 v2
- 12 - (m) Exercise Other Rights. Exercise any and all rights, privileges, entitlements and options pertaining to any Collateral that is Pledged Shares as if the Secured Party were the absolute owner of such Pledged Shares. (n) Dealing with Contracts and Permits. Deal with any and all Contracts and permits to the same extent as the Debtor might (including the enforcement, realization, sale, assignment, transfer and requirement for continued performance), all on such terms and conditions and at such time or times as may seem advisable to the Secured Party. (o) Payment of Liabilities. Pay any liability secured by any Lien against any Collateral. The Debtor shall immediately on demand reimburse the Secured Party for all such payments and, until paid, any such reimbursement obligation shall form part of the Secured Liabilities and shall be secured by the Security Interests. (P) Borrow and Grant Liens. Borrow money for the maintenance, preservation or protection of any Collateral or for carrying on any of the business or undertaking of the Debtor and grant Liens on any Collateral (in priority to the Security Interests or otherwise) as security for the money so borrowed. The Debtor shall immediately on demand reimburse the Secured Party for all such borrowings and, until paid, any such reimbursement obligations shall form part of the Secured Liabilities and shall be secured by the Security Interests. (q) Appoint Receiver. Appoint by instrument in writing one or more Receivers of the Debtor or any or all of the Collateral with such rights, powers and authority (including any or all of the rights, powers and authority of the Secured Party under this Agreement) as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such Receiver from time to time. To the extent permitted by Requirements of Law, any Receiver appointed by the Secured Party shall be considered to be the agent of the Debtor and not of the Secured Party. (r) Court-Appointed Receiver. Obtain from any court of competent jurisdiction an order for the appointment of a Receiver of the Debtor or of any or all of the Collateral. (s) Consultants. Require the Debtor to engage a consultant of the Secured Party's choice, or engage a consultant on its own behalf, such consultant to receive the full cooperation and support of the Debtor and its agents and employees, including unrestricted access to the premises of the Debtor and the Books and Records; all reasonable fees and expenses of such consultant shall be for the account of the Debtor and the Debtor hereby authorizes any such consultant to report directly to the Secured Party and to disclose to the Secured Party any and all information obtained in the course of such consultant's employment. Where no rights shall be exercised other than following the giving of notice by the Secured Party to the Debtor, which notice has not been rescinded, the Secured Party may exercise any or all of 500713845 v2
- 13 - the foregoing rights and remedies without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except as required by Requirements of Law) to or on the Debtor or any other Person, and the Debtor hereby waives each such demand, presentment, protest, advertisement and notice to the extent permitted by Requirements of Law. None of the above rights or remedies shall be exclusive of or dependent on or merge in any other right or remedy, and one or more of such rights and remedies may be exercised independently or in combination from time to time. The Debtor acknowledges and agrees that any action taken by the Secured Party hereunder following the occurrence and during the continuance of an Event of Acceleration shall not be rendered invalid or ineffective as a result of the curing of the Event of Default on which such action was based. 12. Realization Standards. To the extent that Requirements of Law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner and without prejudice to the ability of the Secured Party to dispose of the Collateral in any such manner, the Debtor acknowledges and agrees that it is not commercially unreasonable for the Secured Party to (or not to) (a) incur expenses reasonably deemed necessary by the Secured Party to prepare the Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (b) fail to obtain third party consents for access to the Collateral to be disposed of, (c) fail to exercise collection remedies against account debtors or other Persons obligated on the Collateral or to remove Liens against the Collateral, (d) exercise collection remedies against account debtors and other Persons obligated on the Collateral directly or through the use of collection agencies and other collection specialists, (e) dispose of Collateral by way of public auction, public tender or private contract, with or without advertising and without any other formality, (f) contact other Persons, whether or not in the same business of the Debtor, for expressions of interest in acquiring all or any portion of the Collateral, (g) hire one or more professional auctioneers to assist in the disposition of the Collateral, whether or not the Collateral is of a specialized nature or an upset or reserve bid or price is established, (h) dispose of the Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (i) dispose of assets in wholesale rather than retail markets, (j) disclaim disposition warranties, such as title, possession or quiet enjoyment, (k) purchase insurance or credit enhancements to insure the Secured Party against risks of loss, collection or disposition of the Collateral or to provide to the Secured Party a guaranteed return from the collection or disposition of the Collateral, (1) to the extent deemed necessary by the Secured Party, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral, (m) dispose of Collateral in whole or in part, (n) dispose of Collateral to a customer of the Secured Party, and (o) establish an upset or reserve bid price with respect to Collateral. 13. Grant of Licence. For the purpose of enabling the Secured Party to exercise its rights and remedies under this Agreement when the Secured Party is entitled to exercise such rights and remedies, and for no other purpose, the Debtor grants to the Secured Party an irrevocable, non-exclusive licence (exercisable without payment of royalty or other compensation to the Debtor) to use, assign or sublicense any or all of the Intellectual Property Rights, including in such licence reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout of the same. For any trade-marks, get-up and trade dress and other business indicia, such licence includes an 500713845 v2
- 14 - obligation on the part of the Secured Party to maintain the standards of quality maintained by the Debtor or, in the case of trade-marks, get-up and trade dress or other business indicia licensed to the Debtor, the standards of quality imposed upon the Debtor by the relevant licence. For copyright works, such licence shall include the benefit of any waivers of moral rights and similar rights. The licence granted under this Section shall expire on the Release Date. 14. Securities Laws. The Secured Party is authorized, in connection with any offer or sale of any Pledged Shares, to comply with any limitation or restriction as it may be advised by counsel is necessary to comply with Requirements of Law, including compliance with procedures that may restrict the number of prospective bidders and purchasers, requiring that prospective bidders and purchasers have certain qualifications, and restricting prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account or investment and not with a view to the distribution or resale of such Securities. In addition to and without limiting Section 12, the Debtor further agrees that compliance with any such limitation or restriction shall not result in a sale being considered or deemed not to have been made in a commercially reasonable manner, and the Secured Party shall not be liable or accountable to the Debtor for any discount allowed by reason of the fact that such Pledged Shares are sold in compliance with any such limitation or restriction. If the Secured Party chooses to exercise its right to sell any or all Pledged Shares, upon written request, the Debtor shall cause each applicable Pledged Issuer to furnish to the Secured Party all such information as the Secured Party may request in order to determine the number of shares and other instruments included in the Collateral which may be sold by the Secured Party in exempt transactions under any Requirements of Laws governing securities, and the rules and regulations of any applicable securities regulatory body thereunder, as the same are from time to time in effect. 15. Application of Proceeds. All Proceeds of Collateral received by the Secured Party or a Receiver may be applied to discharge or satisfy any expenses (including the Receiver's remuneration and other expenses of enforcing the Secured Party's rights under this Agreement), Liens on the Collateral in favour of Persons other than the Secured Party, borrowings, taxes and other outgoings affecting the Collateral or which are considered advisable by the Secured Party or the Receiver to protect, preserve, repair, process, maintain or enhance the Collateral or prepare it for sale, lease or other disposition, or to keep in good standing any Liens on the Collateral ranking in priority to any of the Security Interests, or to sell, lease or otherwise dispose of the Collateral. The balance of such Proceeds may, at the sole discretion of the Secured Party, be held as collateral security for the Secured Liabilities or be applied to such of the Secured Liabilities (whether or not the same are due and payable) in such manner and at such times as the Secured Party considers appropriate and thereafter shall be accounted for as required by Requirements of Law. 16. Continuing Liability of Debtor. The Debtor shall remain liable for any Secured Liabilities that are outstanding following realization of all or any part of the Collateral and the application of the Proceeds thereof 17. Secured Party's Appointment as Attorney-in-Fact. Effective upon the occurrence and during the continuance of an Event of Acceleration, the Debtor constitutes and appoints the Secured Party and any officer or agent of the Secured Party, with full power of substitution, as the Debtor's true and lawful attorney-in-fact with full power and authority in the place of the 500713845 v2
- 15 - Debtor and in the name of the Debtor or, in its own name, from time to time in the Secured Party's discretion, to take any and all appropriate action and to execute any and all documents and instruments as, in the opinion of such attorney, may be necessary or desirable to accomplish the purposes of this Agreement. Without limiting the effect of this Section, the Debtor grants the Secured Party an irrevocable proxy to vote the Pledged Shares and to exercise all other rights, powers, privileges and remedies to which a holder thereof would be entitled (including giving or withholding written consents of shareholders, calling special meetings of shareholders and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Shares on the books and records of a Pledged Issuer or Pledged Securities Intermediary, as applicable), upon the occurrence of an Event of Acceleration. These powers are coupled with an interest and are irrevocable until the Release Date. Nothing in this Section affects the right of the Secured Party as secured party or any other Person on the Secured Party's behalf, to sign and file or deliver (as applicable) all such financing statements, financing change statements, notices, verification statements and other documents relating to the Collateral and this Agreement as the Secured Party or such other Person considers appropriate. The Debtor hereby ratifies and confirms, and agrees to ratify and confirm, whatever lawful acts the Secured Party or any of the Secured Party's sub-agents, nominees or attorneys do or purport to do in exercise of the power of attorney granted to the Secured Party pursuant to this Section. 18. Performance by Secured Party of Debtor's Obligations. If the Debtor fails to perform or comply with any of the obligations of the Debtor under this Agreement, the Secured Party may, but need not, perform or otherwise cause the performance or compliance of such obligation, provided that such performance or compliance shall not constitute a waiver, remedy or satisfaction of such failure. The expenses of the Secured Party incurred in connection with any such performance or compliance shall be payable by the Debtor to the Secured Party immediately on demand, and until paid, any such expenses shall form part of the Secured Liabilities and shall be secured by the Security Interests. 19. Interest. If any amount payable by the Debtor to the Secured Party under this Agreement is not paid when due, the Debtor shall pay to the Secured Party, immediately on demand, interest on such amount from the date due until paid in accordance with Section 2.3(b) of the Loan Agreement. All amounts payable by the Debtor to the Secured Party under this Agreement, and all interest on all such amounts shall form part of the Secured Liabilities and shall be secured by the Security Interests. 20. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. 21. Rights of Secured Party; Limitations on Secured Party's Obligations. (a) Limitations on Liability of Secured Party. The Secured Party shall not be liable to the Debtor or any other Person for any failure or delay in exercising any of the rights of the Debtor under this Agreement (including any failure to take 500713845 v2
- 16 - possession of, collect, sell, lease or otherwise dispose of any Collateral, or to preserve rights against prior parties). Neither the Secured Party, a Receiver nor any agent thereof is required to take, or shall have any liability for any failure to take or delay in taking, any steps necessary or advisable to preserve rights against other Persons under any Collateral in its possession. Neither the Secured Party, any Receiver nor any agent thereof shall be liable for any, and the Debtor shall bear the full risk of all, loss or damage to any and all of the Collateral (including any Collateral in the possession of the Secured Party, any Receiver, or any agent thereof) caused for any reason other than the gross negligence or wilful misconduct of the Secured Party, such Receiver or such agent thereof. (b) Debtor Remains Liable under Accounts and Contracts. Notwithstanding any provision of this Agreement, the Debtor shall remain liable under each of the documents giving rise to the Accounts of the Debtor and under each of the Contracts to observe and perform all the conditions and obligations to be observed and performed by the Debtor thereunder, all in accordance with the terms of each such document and Contract. The Secured Party shall not have any obligation or liability under any Account of the Debtor (or any document giving rise thereto) or Contract by reason of or arising out of this Agreement or the receipt by the Secured Party of any payment relating to such Account or Contract pursuant hereto, and in particular (but without limitation), the Secured party shall not be obligated in any manner to perform any of the obligations of the Debtor under or pursuant to any Account (or any document giving rise thereto) or under or pursuant to any Contract to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party under any Account (or any document giving rise thereto) or under any Contract, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to it or to which it may be entitled at any time. (c) Collections on Accounts and Contracts. The Debtor shall be authorized to, at any time that an Event of Acceleration is not continuing, collect its Accounts and payments under the Contracts in the normal course of the business of the Debtor and for the purpose of carrying on the same. If required by the Secured Party at any time, any payments of Accounts or under Contracts, when collected by the Debtor, shall be forthwith (and, in any event, within two Business Days) deposited by the Debtor in the exact form received, duly endorsed by the Debtor to the Secured Party if required, in a special collateral account maintained by the Secured Party, and until so deposited, shall be held by the Debtor in trust for the Secured Party, segregated from the other funds of the Debtor. All such amounts while held by the Secured Party (or by the Debtor in trust for the Secured Party) and all income with respect thereto shall continue to be collateral security for the Secured Liabilities and shall not constitute payment thereof until applied as hereinafter provided. If an Event of Acceleration has occurred and is continuing, the Secured Party may apply all or any part of the amounts on deposit in such special collateral account on account of the Secured Liabilities in such order as the Secured Party may elect. At the Secured Party's request, the Debtor shall 500713845 v2
- 17 - deliver to the Secured Party any documents evidencing and relating to the agreements and transactions which gave rise to its Accounts and the Contracts, including all original orders, invoices and shipping receipts. (d) Analysis of Accounts. At any time and from time to time, the Secured Party shall have the right to analyze and verify the Accounts of the Debtor in any manner and through any medium that it reasonably considers advisable, and the Debtor shall furnish all such assistance and information as the Secured Party may require in connection therewith. At any time and from time to time, the Secured Party may in its own name or in the name of others (including the Debtor) communicate with account debtors on the Accounts of the Debtor and parties to the Contracts to verify with them to its satisfaction the existence, status, amount and terms of any Account or any Contract. At any time and from time to time, upon the Secured Party's reasonable request and at the expense of the Debtor, the Debtor shall furnish to the Secured Party reports showing reconciliations, aging and test verifications of, and trial balances for, its Accounts. (e) Use of Agents. The Secured Party may perform any of its rights or duties under this Agreement by or through agents and is entitled to retain counsel and to act in reliance on the advice of such counsel concerning all matters pertaining to its rights and duties under this Agreement. 22. Dealings by Secured Party. The Secured Party shall not be obliged to exhaust its recourse against the Debtor or any other Person or against any other security it may hold with respect to the Secured Liabilities or any part thereof before realizing upon or otherwise dealing with the Collateral in such manner as the Secured Party may consider desirable. The Secured Party may grant extensions of time and other indulgences, take and give up security, accept compositions, grant releases and discharges and otherwise deal with the Debtor and any other Person, and with any or all of the Collateral, and with other security and sureties, as they may see fit, all without prejudice to the Secured Liabilities or to the rights and remedies of the Secured Party under this Agreement. The powers conferred on the Secured Party under this Agreement are solely to protect the interests of the Secured Party in the Collateral and shall not impose any duty upon the Secured Party to exercise any such powers. 23. Communication. Any notice or other communication required or permitted to be given under this Agreement will be given in accordance with the terms of the Loan Agreement. 24. Release of Information. The Debtor authorizes each Secured Party to provide a copy of this Agreement and such other information as may be requested of such Secured Party (i) to the extent necessary to enforce the Secured Party's rights, remedies and entitlements under this Agreement, (ii) to any assignee or prospective assignee of all or any part of the Secured Liabilities, and (iii) as required by Requirements of Law. 25. Expenses; Indemnity; Waiver. (a) The Debtor shall pay (i) all reasonable out-of-pocket expenses incurred by the Secured Party, including the reasonable fees, charges and disbursements of 500713845 v2
- 18 - counsel for the Secured Party and all applicable taxes, in connection with the preparation and administration of this Agreement, (ii) all reasonable out-of-pocket expenses incurred by the Secured Party, including the reasonable fees, charges and disbursements of counsel for the Secured Party and applicable taxes, in connection with any amendments, modifications or waivers of the provisions hereof, and (iii) all out-of-pocket expenses incurred by the Secured Party, including the fees, charges and disbursements of any counsel for the Secured Party and all applicable taxes, in connection with the assessment, enforcement or protection of their rights in connection with this Agreement, including its rights under this Section, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations with respect to the Secured Liabilities. (b) The Debtor hereby agrees to indemnify the Secured Party (to the extent not reimbursed by the Borrower), from and against any and all liabilities, obligations, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Secured Party in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or admitted by the Secured Party under or in respect of this Agreement; provided that the Debtor shall not be liable for any portion of such liabilities, obligations, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Secured Party's gross negligence or wilful misconduct. Without limiting the generality of the foregoing, the Debtor agrees to reimburse the Secured Party promptly upon demand in the proportion specified in the Loan Agreement in respect of any out of pocket expenses (including counsel fees) incurred by the Secured Party in connection with the preservation of any rights of the Secured Party or the Debtor under, or the enforcement of, or legal advice in respect of the rights or responsibilities under, this Agreement or any other Loan Document, to the extent that the Secured Party is not reimbursed for such expenses by the Borrower. (c) The Debtor shall not assert, and hereby waives (to the fullest extent permitted by Requirements of Law), (i) any claim against the Secured Party (or any director, officer or employee thereof), on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, and (ii) all of the rights, benefits and protections given by any present or future statute that imposes limitations on the rights, powers or remedies of a secured party or on the methods of, or procedures for, realization of security, including any "seize or xxx" or "anti-deficiency" statute or any similar provision of any other statute. (d) All amounts due under this Section shall be payable to the Secured Party for the benefit of the Secured Party not later than three Business Days after written demand therefor. (e) The indemnifications set out in this Section shall survive the Release Date and the release or extinguishment of the Security Interests. 500713845 v2
- 19 - (f) Notwithstanding anything to the contrary herein or in any of the other Loan Documents, in no event shall any of Debtor's partners, direct or indirect members, shareholders or owners, or any officer, director, employee or agent of the foregoing (collectively, "Exculpated Parties"), have any personal liability whatsoever relating to the Loan Documents (other than those Loan Documents to which any such Exculpated Party is a party) or the loan evidenced thereby; provided, however, that the foregoing shall not prohibit the Secured Party from pursuing claims as permitted under applicable law with respect to fraud or to distributions or payments actually received by any Exculpated Party in violation of the terms of any of the Loan Documents or following the occurrence and during the continuance of an Event of Default under the Loan Documents. 26. Release of Debtor. Upon the written request of the Debtor given at any time on or after the Release Date, the Secured Party shall, at the expense of the Debtor, release the Debtor and the Collateral from the Security Interests and such release shall serve to terminate any licence granted in this Agreement. Upon such release, and at the request and expense of the Debtor, the Secured Party shall execute and deliver to the Debtor such releases and discharges as the Debtor may reasonably request and return all Pledged Securities delivered to the Secured Party pursuant to this Agreement. 27. Additional Security. This Agreement is in addition to, and not in substitution of, any and all other security previously or concurrently delivered by the Debtor or any other Person to the Secured Party, all of which other security shall remain in full force and effect. 28. Alteration or Waiver. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the Debtor and the Secured Party. The Secured Party shall not, by any act or delay, be deemed to have waived any right or remedy hereunder or to have acquiesced in any Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of the Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Secured Party would otherwise have on any future occasion. Neither the taking of any judgment nor the exercise of any power of seizure or sale shall extinguish the liability of the Debtor to pay the Secured Liabilities, nor shall the same operate as a merger of any covenant contained in this Agreement or of any other liability, nor shall the acceptance of any payment or other security constitute or create any novation. 29. Amalgamation. If the Debtor is a corporation or other body corporate, the Debtor acknowledges that if it amalgamates or merges with any other corporation or corporations, or other bodies corporate, then (i) the Collateral and the Security Interests shall extend to and include all the property and assets of the amalgamated corporation or other body corporate and to any property or assets of the amalgamated corporation or other body corporate thereafter owned or acquired, (ii) the term "Debtor", where used in this Agreement, shall extend to and include the amalgamated corporation or other body corporate, and (iii) the term "Secured Liabilities", where 500713845 v2
- 20 - used in this Agreement, shall extend to and include the Secured Liabilities of the amalgamated corporation or other body corporate. 30. Governing Law; Attornment. This Agreement shall be governed by and construed 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 Secured Party to enforce this Agreement in any other proper jurisdiction, the Debtor irrevocably submits and attorns to the non-exclusive jurisdiction of the courts of such province. To the extent permitted by Requirements of Law, the Debtor irrevocably waives any objection (including any claim of forum non conveniens) that it 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. 31. Interpretation. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The word "or" is disjunctive; the word "and" is conjunctive. The word "shall" is mandatory; the word "may" is permissive. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set out herein), (b) any reference herein to any statute or any section thereof shall, unless otherwise expressly stated, be deemed to be a reference to such statute or section as amended, restated or re-enacted from time to time, (c) any reference herein to any Person shall be construed to include such Person's successors and permitted assigns, (d) the words "herein", "hereof' and "hereunder", and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, and (e) all references herein to Sections and Schedules shall be construed to refer to Sections and Schedules to, this Agreement, Section headings are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement. Any reference in this Agreement 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 Security Interest to any Permitted Lien. 32. Paramountcy. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Loan Agreement then, notwithstanding anything contained in this Agreement, the provisions contained in the Loan Agreement shall prevail to the extent of such conflict or inconsistency and the provisions of this Agreement shall be deemed to be amended to the extent necessary to eliminate such conflict or inconsistency, it being understood that the purpose of this Agreement is to add to, and not detract from, the rights granted to the Secured Party under the Loan Agreement. If any act or omission of the Debtor is expressly permitted under the Loan Agreement but is expressly prohibited under this Agreement, such act or omission shall be permitted. If any act or omission is expressly prohibited under this Agreement, but the Loan Agreement does not expressly permit such act or omission, or if any act is expressly required to be performed under this Agreement but the Loan Agreement does not expressly relieve the Debtor from such performance, such circumstance shall not constitute a 500713845 v2
- 21 - conflict between the applicable provisions of this Agreement and the provisions of the Loan Agreement. 33. Successors and Assigns. This Agreement shall enure to the benefit of, and be binding on, the Debtor and its successors and permitted assigns, and shall enure to the benefit of, and be binding on, the Secured Party and its successors and assigns. The Debtor may not assign this Agreement, or any of its rights or obligations under this Agreement. The Secured Party may assign this Agreement and any of its rights and obligations hereunder to any Person that replaces it in its capacity as such. If the Debtor or the Secured Party is an individual, then the term "Debtor" or "Secured Party", as applicable, shall also include his or her heirs, administrators and executors. 34. Acknowledgment of Rec t/Waiver. The Debtor acknowledges receipt of an executed copy of this Agreement and, to the extent permitted by Requirements of Law, waives the right to receive a copy of any financing statement or financing change statement registered in connection with this Agreement or any verification statement issued with respect to any such financing statement or financing change statement. 35. Electronic Signature. Delivery of an executed signature page to this Agreement by the Debtor by facsimile or other electronic form of transmission shall be as effective as delivery by the Debtor of a manually executed copy of this Agreement by the Debtor. 36. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which when so executed and delivered shall constitute an original, but all of which when taken together shall constitute one and the same document. 37. Financing Statements. Debtor hereby authorizes Secured Party to file any and all financing statements, registrations or similar filings necessary, in Secured Party's discretion, to perfect any security interest granted hereunder. Any such financing statement or registration may describe the collateral as "all assets" of Debtor. [signature page follows] 500713845 v2
S-1 IN WITNESS WHEREOF the undersigned has caused this Agreement to be duly executed as of the date first written above. POWIN ENERGY ONTARIO STORAGE II, LP by its general partner, POWIN ENERGY STORAGE 2, INC. By:/s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Director Pow in — Signature Page to General Security Agreement (Borrower)
SCHEDULE A DEBTOR INFORMATION Full legal name: Powin Energy Ontario Storage II, LP Prior names: Hecate Energy Ontario Storage II, LP Predecessor companies: None Jurisdiction of incorporation or organization: Ontario Address of chief executive office: 00000 XX 000xx Xxxxxx, Xxxxxxxx, Xxxxxx 00000 Addresses of all places where business is carried on or tangible Personal Property is kept: 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx Jurisdictions in which all material account debtors are located: Ontario Addresses of all owned real property: 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx Instruments, Documents of Title and Chattel Paper of the Debtor: June 27, 2017 Lease between Festival Hydro, Inc and Powin Energy Ontario Storage II, LP Pledged Certificated Securities: Pledged Issuer Securities Owned % of issued and outstanding Securities of Pledged Issuer Security Certificate Numbers Security Certificate Location None None None None None 500713845 v2
-2 Registered trade-marks and applications for trademark registrations: None Patents and patent applications: None Copyright registrations and applications for copyright registrations: None Industrial designs/registered designs and applications for registered designs: None 500713845 v2
