EXHIBIT 4.61
GENERAL SECURITY AGREEMENT - FLOATING CHARGE ON LAND
1. SECURITY INTEREST
(a) For value received, the undersigned ("Debtor") hereby grants to ROYAL
BANK OF CANADA ("RBC") a security interest, mortgage and charge (hereinafter
collectively referred to as the "Security Interest") as hereinafter provided:
(i) a security interest in the undertaking of Debtor and all of
Debtor's present and after acquired personal property including,
without limitation, all Goods (including all parts, accessories,
attachments, special tools, additions and accessions thereto),
Chattel Paper, Documents of Title (whether negotiable or not),
Instruments, Intangibles, Money and Securities now owned or
hereafter owned or acquired by or on behalf of Debtor (including
such as may be returned to or repossessed by Debtor) and
including, without limitation, all of the following now owned or
hereafter owned or acquired by or on behalf of Debtor:
(A) all Inventory of whatever kind and wherever situate;
(B) all equipment (other than Inventory) of whatever kind and
wherever situate, including, without limitation, all
machinery, tools, apparatus, plant, furniture, fixtures and
vehicles of whatsoever nature or kind;
(C) all Accounts and book debts and generally all debts, dues,
claims, choses in action and demands of every nature and
kind howsoever arising or secured and whether arising in
connection with an interest in real or personal property or
otherwise, including letters of credit and advices of
credit, which are now due, owing or accruing or growing due
to or owned by or which may hereafter become due, owing or
accruing or growing due to or owned by Debtor ("Debts");
(D) all deeds, documents, writings, papers, books of account and
other books relating to or being records of Debts, Chattel
Paper or Documents of Title or by which such are or may
hereafter be secured, evidenced, acknowledged or made
payable;
(E) all contractual rights and insurance claims;
(F) all patents, industrial designs, trade-marks, trade secrets
and know-how including without limitation environmental
technology and biotechnology, confidential information,
trade-names, goodwill, copyrights, personality rights, plant
breeders' rights, integrated circuit topographies, software
and all other forms of intellectual and industrial property,
and any registrations and applications for
registration of any of the foregoing (collectively
"Intellectual Property"); and
(G) all lists, records and files relating to debtors, customers,
clients and patients;
(ii) a mortgage and charge as and by way of a floating charge, in all
of Debtor's present and after acquired interest in property,
assets and undertaking not secured in (i) above, including all
real, immoveable and leaseholds property and all easements,
rights-of-way, privileges, benefits, licences, improvements and
rights whether connected therewith or appurtenant thereto or
separately owned or held, including without limitation, all
structures, plant and other fixtures now owned or hereafter owned
or acquired by or on behalf of Debtor, and including without
limitation all present and after acquired coal leases and coal
licences, including without limitation the coal leases and
licences listed in Schedule C, together with any renewals and
replacements to them (hereinafter collectively referred to as
"Real Property");
(iii) a mortgage and charge as and by way of a fixed and specific
charge, and a security interest in, all of Debtor's present and
after acquired interest in coal leases and licences, including
without limitation the coal leases and licences listed in
Schedule C, together with any renewals and replacements to them;
and
(iv) a security interest in all property described in Schedule "C" or
any replacement or additional Schedule "C" now or hereafter
annexed hereto; and a security interest in all proceeds and
renewals thereof, accretions thereto and substitution therefor,
all of the foregoing being hereinafter collectively referred to
as the "Collateral".
(b) The Security Interest granted hereby shall not extend or apply to and
Collateral shall not include the last day of the term of any lease or agreement
therefor but upon the enforcement of the Security Interest Debtor shall stand
possessed of such last day in trust to assign the same to any person acquiring
such term.
(c) The terms "Goods", "Chattel Paper", "Document of Title", "Instrument",
"Intangible", "Security", "proceeds", "Inventory", "equipment", "accession",
"Money", "Account", "financing statement" and "financing change statement"
whenever used herein shall be interpreted pursuant to their respective meanings
when used in the Personal Property Security Act of the province where the herein
mentioned branch of RBC is located, which Act, including amendments thereto and
any Act substituted therefor and amendments thereto is herein referred to as the
"P.P.S.A.". Provided always that the term "Goods" when used herein shall not
include "consumer goods" of Debtor as that term is defined in the P.P.S.A. and
the term "Inventory" when used herein shall include livestock and the young
thereof after conception and crops that become such during the term of this
Security Agreement. Any reference herein to "Collateral"
shall, unless the context otherwise requires, be deemed a reference to
"collateral or any part thereof' .
2. INDEBTEDNESS SECURED
The Security Interest granted hereby secures payment and performance of any
and all obligation, indebtedness and liability of Debtor to RBC (including
interest thereon) present or future, direct or indirect, absolute or contingent,
matured or not, extended or renewed, wheresoever and howsoever incurred and any
ultimate unpaid balance thereof and whether the same is from time to time
reduced and thereafter increased or entirely extinguished and thereafter
incurred again and whether Debtor be bound alone or with another or others and
whether as principal or surety (hereinafter collectively called the
"Indebtedness"). If the Security Interest in the Collateral is not sufficient,
in the event of default, to satisfy all Indebtedness of Debtor, Debtor
acknowledges and agrees that Debtor shall continue to be liable for any
Indebtedness remaining outstanding and RBC shall be entitled to pursue full
payment thereof.
3. REPRESENTATIONS AND WARRANTIES OF DEBTOR
Debtor represents and warrants and so long as this Security Agreement
remains in effect shall be deemed to continuously represent and warrant that:
(a) the Collateral is genuine and owned by Debtor free of all security
interests, mortgages, lien claims, charges, licences, leases, infringements by
third parties, encumbrances or other adverse claim or interests (hereinafter
collectively called "Encumbrances"), save for the Security Interest and those
Encumbrances shown on Schedule "A" or hereafter approved in writing by RBC,
prior to their creation or assumption;
(b) all Intellectual Property applications and registrations are valid and
in good standing and Debtor is the owner of the applications and registrations;
(c) each Debt, Chattel Paper and Instrument constituting Collateral is
enforceable in accordance with its terms against the party obligated to pay the
same (the "Account Debtor"), and the amount represented by Debtor to RBC from
time to time as owing by each Account Debtor or by all Account Debtors will be
the correct amount actually and unconditionally owing by such Account Debtor or
Account Debtors, except for normal cash discounts where applicable, and no
Account Debtor will have any defence, set off, claim or counterclaim against
Debtor which can be asserted against RBC, whether in any proceeding to enforce
Collateral or otherwise;
(d) the locations specified in Schedule "B" as to business operations and
records are accurate and complete and with respect to Real Property and Goods
(including Inventory) constituting Collateral, the locations specified in
Schedule "B" are accurate and complete save for Goods in transit to such
locations and Inventory on lease or consignment; and all buildings, fixtures or
Goods about to become fixtures and all crops and all oil, gas or other minerals
to be extracted and all timber to be cut which forms part of the Collateral will
be situate at one of such locations;
(e) Debtor has disclosed to RBC all environmental and other matters which
could have a material effect on the financial condition or operations of Debtor;
and
(f) the execution, delivery and performance of the obligations under this
Security Agreement and the creation of any security interest in or assignment
hereunder of Debtor's rights in the Collateral to RBC will not result in a
breach of any agreement to which Debtor is a party.
4. COVENANTS OF THE DEBTOR
So long as this Security Agreement remains in effect Debtor covenants and
agrees:
(a) to defend the Collateral against the claims and demands of all other
parties claiming the same or an interest therein; to diligently initiate and
prosecute legal action against all infringers of Debtor's rights in Intellectual
Property; to take all reasonable action to keep the Collateral free from all
Encumbrances, except for the Security Interest, licences which are compulsory
under federal or provincial legislation and those shown in Schedule "A" or
hereafter approved in writing by RBC, prior to their creation or assumption; and
not to sell, exchange, transfer, assign, lease, license or otherwise dispose of
Collateral or any interest therein without the prior written consent of RBC;
provided always that, until default, Debtor may, in the ordinary course of
Debtor's business, sell or lease Inventory and, subject to Clause 7 hereof, use
Money available to Debtor;
(b) to notify RBC promptly of:
(i) any change in the information contained herein or in the
Schedules hereto relating to Debtor, Debtor's business or
Collateral;
(ii) the details of any significant acquisition of Collateral;
(iii) the details of any claims or litigation affecting Debtor or
Collateral;
(iv) any loss or damage to Collateral;
(v) any default by any Account Debtor in payment or other performance
of its obligations with respect to Collateral; and
(vi) the return to or repossession by Debtor of Collateral;
(c) to keep Collateral in good order, condition and repair and not to use
Collateral in violation of the provisions of this Security Agreement or any
other agreement relating to Collateral or any policy insuring Collateral or any
applicable statute, law, by-law, rule, regulation or ordinance; to keep all
agreements, registrations and applications relating to Intellectual Property and
intellectual property used by Debtor in its business in good standing and to
renew all agreements and registrations as may be necessary or desirable to
protect Intellectual Property, unless otherwise agreed in writing by RBC; to
apply to register all existing and future copyrights, trade-marks, patents,
integrated circuit topographies and industrial designs whenever it is
commercially reasonable to do so;
(d) to do, execute, acknowledge and deliver such financing statements,
financing change statements and further assignments, transfers, caveats,
mortgages, notices, documents, acts, matters and things (including further
schedules hereto) as may be reasonably requested by RBC of or with respect to
Collateral in order to give effect to these presents and to pay all costs for
searches and filings in connection therewith;
(e) to pay all taxes, rates, levies, assessments and other charges of every
nature which may be lawfully levied, assessed or imposed against or in respect
of Debtor or Collateral as and when the same become due and payable;
(f) to insure Collateral for such periods, in such amounts, on such terms
and against loss or damage by fire and such other risks as RBC shall reasonably
direct with loss payable to RBC and Debtor, as insureds, as their respective
interests may appear, and to pay all premiums therefor;
(g) to prevent Collateral, save Inventory sold or leased as permitted
hereby, from being or becoming an accession to other property not covered by
this Security Agreement;
(h) to carry on and conduct the business of Debtor in accordance with all
applicable laws, in a proper and efficient manner and so as to protect and
preserve Collateral and to keep, in accordance with generally accepted
accounting principles, consistently applied, proper books of account for
Debtor's business as well as accurate and complete records concerning
Collateral, and mark any and all such records and Collateral at RBC's request so
as to indicate the Security Interest; and
(i) to deliver to RBC from time to time promptly upon request:
(i) any Documents of Title, Instruments, Securities, Chattel Paper
and duplicate certificates of title to Real Property
constituting, representing or relating to Collateral;
(ii) all books of account and all records, ledgers, reports,
correspondence, schedules, documents, statements, lists and other
writings relating to Collateral for the purpose of inspecting,
auditing or copying the same;
(iii) all financial statements prepared by or for Debtor regarding
Debtor's business;
(iv) all policies and certificates of insurance relating to
Collateral; and
(v) such information concerning Collateral, Debtor and Debtor's
business and affairs as RBC may reasonably request.
5. USE AND VERIFICATION OF COLLATERAL
Subject to compliance with Debtor's covenants contained herein and Clause 7
hereof, Debtor may, until default, possess, operate, collect, use and enjoy and
deal with Collateral in the ordinary course of Debtor's business in any manner
not inconsistent with the provisions hereof;
provided always that RBC shall have the right at any time and from time to time
to verify compliance by Debtor with Debtor's obligations under this Security
Agreement (including through inquiries with governmental agencies) and the
existence and state of the Collateral in any manner RBC may consider appropriate
and Debtor agrees to furnish all assistance and information and to perform all
such acts as RBC may reasonably request in connection therewith and for such
purpose to grant to RBC or its agents access to all places where Collateral may
be located and to all premises occupied by Debtor.
6. SECURITIES
If Collateral at any time includes Securities, Debtor authorizes RBC to
transfer the same or any part thereof into its own name or that of its
nominee(s) so that RBC or its nominee(s) may appear of record as the sole owner
thereof; provided that, until default, RBC shall deliver promptly to Debtor all
notices or other communications received by it or its nominees) as such
registered owner and, upon demand and receipt of payment of any necessary
expenses thereof, shall issue to Debtor or its order a proxy to vote and take
all action with respect to such Securities. After default, Debtor waives all
rights to receive any notices or communications received by RBC or its
nominee(s) as such registered owner and agrees that no proxy issued by RBC to
Debtor or its order as aforesaid shall thereafter be effective.
7. COLLECTION OF DEBTS
Before or after default under this Security Agreement, RBC may notify all
or any Account Debtors of the Security Interest and may also direct such Account
Debtors to make all payments on Collateral to RBC. Debtor acknowledges that any
payments on or other proceeds of Collateral received by Debtor from Account
Debtors, whether before or after notification of this Security Interest to
Account Debtors and whether before or after default under this Security
Agreement shall be received and held by Debtor in trust for RBC and shall be
turned over to RBC upon request.
8. INCOME FROM AND INTEREST ON COLLATERAL
(a) Until default, Debtor reserves the right to receive any Money
constituting income from or interest on Collateral and if RBC receives any such
Money prior to default, RBC shall either credit the same against the
Indebtedness or pay the same promptly to Debtor.
(b) After default, Debtor will not request or receive any Money
constituting income from or interest on Collateral and if Debtor receives any
such Money without any request by it, Debtor will pay the same promptly to RBC.
9. INCREASES, PROFITS, PAYMENTS OR DISTRIBUTIONS
(a) Whether or not default has occurred, Debtor authorizes RBC:
(i) to receive any increase in or profits on Collateral (other than
Money) and to hold the same as part of collateral. Money so
received shall be treated as income for the purposes of Clause 8
hereof and dealt with accordingly; and
(ii) to receive any payment or distribution upon redemption or
retirement or upon dissolution and liquidation of the issuer of
Collateral; to surrender such Collateral in exchange therefor;
and to hold any such payment or distribution as part of
Collateral.
(b) If Debtor receives any such increase or profits (other than Money) or
payments or distributions, Debtor will deliver the same promptly to RBC to be
held by RBC as herein provided.
10. DISPOSITION OF MONEY
Subject to any applicable requirements of the P.P.S.A. or other applicable
law, all Money collected or received by RBC pursuant to or in exercise of any
right it possesses with respect to Collateral shall be applied on account of
Indebtedness in such manner as RBC deems best or, at the option of RBC, may be
held unappropriated in a collateral account or released to Debtor, all without
prejudice to the liability of Debtor or the rights of RBC hereunder, and any
surplus shall be accounted for as required by law.
11. EVENTS OF DEFAULT
The happening of any of the following events or conditions shall constitute
default hereunder which is herein referred to as "default":
(a) the nonpayment when due, whether by acceleration or otherwise, of any
principal or interest forming part of Indebtedness or the failure of Debtor to
observe or perform any obligation, covenant, term, provision or condition
contained in this Security Agreement or any other agreement between Debtor and
RBC;
(b) the death of or a declaration of incompetency by a court of competent
jurisdiction with respect to Debtor, if an individual;
(c) the bankruptcy or insolvency of Debtor; the filing against Debtor of a
petition in bankruptcy; the making of an authorized assignment for the benefit
of creditors by Debtor; the appointment of a receiver or trustee for Debtor or
for any assets of Debtor or the institution by or against Debtor of any other
type of insolvency proceeding under the Bankruptcy and Insolvency Act or
otherwise;
(d) the institution by or against Debtor of any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims against
or winding up of affairs of Debtor;
(e) if any Encumbrance affecting Collateral becomes enforceable against
Collateral;
(f) if Debtor ceases or threatens to cease to carry on business or makes or
agrees to make a sale of a substantial portion of Debtor's assets or commits or
threatens to commit an act of bankruptcy;
(g) if any execution, sequestration, extent or other process of any court
becomes enforceable against Debtor or if a distress or analogous process is
levied upon the assets of Debtor or any part thereof; and
(h) if any certificate, statement, representation, warranty or audit report
heretofore or hereafter furnished by or on behalf of Debtor pursuant to or in
connection with this Security Agreement or otherwise (including, without
limitation, the representations and warranties contained herein) or as an
inducement to RBC to extend any credit to or to enter into this or any other
agreement with Debtor, proves to have been false in any material respect at the
time as of which the facts therein set forth were stated or certified, or proves
to have omitted any substantial contingent or unliquidated liability or claim
against Debtor; or if upon the date of execution of this Security Agreement,
there shall have been any material adverse change in any of the facts disclosed
by any such certificate, representation, statement, warranty or audit report,
which change shall not have been disclosed to RBC at or prior to the time of
such execution.
11A. REAL PROPERTY
(a) For the purposes of any application to register a crystallized floating
charge under the Land Title Act (British Columbia) against any Real Property,
the floating charge created by this Security Agreement shall be crystallized and
become a fixed charge upon the earliest of:
(i) any one of the events described in Clause 11 hereof;
(ii) a declaration by RBC pursuant to Clause 12 hereof; or
(iii) RBC taking any action pursuant to Clause 13 hereof to appoint a
receiver or to enforce its Security Interest or realize upon all
or any part of the Collateral.
(b) In accordance with the Property Law Act (British Columbia), the
doctrine of consolidation applies to this Security Agreement.
12. ACCELERATION
RBC, in its sole discretion, may declare all or any part of Indebtedness
which is not by its terms payable on demand to be immediately due and payable,
without demand or notice of any kind, in the event of default, or, if RBC
considers itself insecure or that the Collateral is in jeopardy. The provisions
of this clause are not intended in any way to affect any rights of RBC with
respect to any Indebtedness which may now or hereafter be payable on demand.
13. REMEDIES
(a) Upon default, RBC may appoint or reappoint by instrument in writing,
any person or persons, whether an officer or officers or an employee or
employees of RBC or not, to be a receiver or receivers (hereinafter called a
"Receiver", which term when used herein shall include a receiver and manager) of
Collateral (including any interest, income or profits therefrom) and may remove
any Receiver so appointed and appoint another in its stead. Any such Receiver
shall, so far as concerns responsibility for its acts, be deemed the agent of
Debtor and not RBC,
and RBC shall not be in any way responsible for any misconduct, negligence or
nonfeasance on the part of any such Receiver, its servants, agents or employees.
Subject to the provisions of the instrument appointing it, any such Receiver
shall have power to take possession of Collateral, to preserve Collateral or its
value, to carry on or concur in carrying on all or any part of the business of
Debtor and to sell, lease, license or otherwise dispose of or concur in selling,
leasing, licensing or otherwise disposing of Collateral. To facilitate the
foregoing powers, any such Receiver may, to the exclusion of all others,
including Debtor, enter upon, use and occupy all premises owned or occupied by
Debtor constituting Collateral or wherein Collateral may be situate, maintain
Collateral upon such premises, borrow money on a secured or unsecured basis and
use Collateral directly in carrying on Debtor's business or as security for
loans or advances to enable the Receiver to carry on Debtor's business or
otherwise, as such Receiver shall, in its discretion, determine. Except as may
be otherwise directed by RBC, all Money received from time to time by such
Receiver in carrying out its appointment shall be received in trust for and paid
over to RBC. Every such Receiver may, in the discretion of RBC, be vested with
all or any of the rights and powers of RBC.
(b) Upon default, RBC may, either directly or through its agents or
nominees, exercise any or all of the powers and rights given to a Receiver by
virtue of the foregoing sub-clause (a).
(c) RBC may take possession of, collect, demand, sue on, enforce, recover
and receive Collateral and give valid and binding receipts and discharges
therefor and in respect thereof and, upon default, RBC may sell, lease, license
or otherwise dispose of Collateral in such manner, at such time or times and
place or places, for such consideration and upon such terms and conditions as to
RBC may seem reasonable.
(d) In addition to those rights granted herein and in any other agreement
now or hereafter in effect between Debtor and RBC and in addition to any other
rights RBC may have at law or in equity, RBC shall have, both before and after
default, all rights and remedies of a secured party under the P.P.S.A. provided
always, that RBC shall not be liable or accountable for any failure to exercise
its remedies, take possession of, collect, enforce, realize, sell, lease,
license or otherwise dispose of Collateral or to institute any proceedings for
such purposes. Furthermore, RBC shall have no obligation to take any steps to
preserve rights against prior parties to any Instrument or Chattel Paper or
prior encumbrances on any Real Property whether Collateral or proceeds and
whether or not in RBC's possession and shall not be liable or accountable for
failure to do so.
(e) Debtor acknowledges that RBC or any Receiver appointed by it may take
possession of Collateral wherever it may be located and by any method permitted
by law and Debtor agrees upon request from RBC or any such Receiver to assemble
and deliver possession of Collateral at such place or places as directed.
(f) Debtor agrees to be liable for and to pay all costs, charges and
expenses incurred by RBC or any Receiver or agent appointed by it, whether
directly or for services rendered (including solicitors costs on a solicitor and
his own client basis and auditors costs and other legal expenses and Receiver
and agent remuneration), in operating Debtor's accounts, preparing or enforcing
this Security Agreement, inspecting and determining the state of the Collateral,
taking and maintaining custody of, preserving, repairing, processing, preparing
for disposition and disposing of Collateral and in enforcing or collecting
Indebtedness and all such costs, charges and expenses, together with any amounts
owing as a result of any borrowing by RBC or any Receiver appointed by it, as
permitted hereby, shall be a first charge on the proceeds of realization,
collection or disposition of Collateral and shall be secured hereby.
(g) RBC will give Debtor such notice, if any, of the date, time and place
of any public sale or of the date after which any private disposition of
Collateral is to be made as may be required by the P.P.S.A. or other applicable
law.
(h) Upon default and receiving written demand from RBC, Debtor shall take
such further action as may be necessary to evidence and effect an assignment or
licensing of Intellectual Property to whomsoever RBC directs, including to RBC.
Debtor appoints any officer or director or branch manager of RBC upon default to
be its attorney in accordance with applicable legislation with full power of
substitution and to do on Debtor's behalf anything that is required to assign,
license or transfer, and to record any assignment, licence or transfer of the
Collateral. This power of attorney, which is coupled with an interest, is
irrevocable until the release or discharge of the Security Interest.
14. MISCELLANEOUS
(a) Debtor hereby authorizes RBC to file such financing statements,
financing change statements, caveats, mortgages, forms, security notices and
other documents and do such acts, matters and things (including completing and
adding schedules hereto identifying Collateral or any permitted Encumbrances
affecting Collateral or identifying the locations at which Debtor's business is
carried on and Collateral and records relating thereto are situate) as RBC may
deem appropriate to perfect on an ongoing basis and continue the Security
Interest, to protect and preserve Collateral and to realize upon the Security
Interest and Debtor hereby irrevocably constitutes and appoints the Manager or
Acting Manager from time to time of the herein mentioned branch of RBC the true
and lawful attorney of Debtor, with full power of substitution, to do any of the
foregoing in the name of Debtor whenever and wherever it may be deemed necessary
or expedient.
(b) Without limiting any other right of RBC, whenever Indebtedness is
immediately due and payable or RBC has the right to declare Indebtedness to be
immediately due and payable (whether or not it has so declared), RBC may, in its
sole discretion, set off against Indebtedness any and all amounts then owed to
Debtor by RBC in any capacity, whether or not due, and RBC shall be deemed to
have exercised such right to set off immediately at the time of making its
decision to do so even though any charge therefor is made or entered on RBC's
records subsequent thereto.
(c) Upon Debtor's failure to perform any of its duties hereunder, RBC may,
but shall not be obligated to, perform any or all of such duties, and Debtor
shall pay to RBC, forthwith upon written demand therefor, an amount equal to the
expense incurred by RBC in so doing plus interest thereon from the date such
expense is incurred until it is paid at the rate of 15% per annum.
(d) RBC may grant extensions of time and other indulgences, take and give
up security, accept compositions, compound, compromise, settle, grant releases
and discharges and otherwise deal with Debtor, debtors of Debtor, sureties and
others and with Collateral and other security as RBC may see fit without
prejudice to the liability of Debtor or RBC's right to hold and realize the
Security Interest. Furthermore, RBC may demand, collect and sue on Collateral in
either Debtor's or RBC's name, at RBC's option, and may endorse Debtor's name on
any and all cheques, commercial paper, and any other Instruments pertaining to
or constituting Collateral.
(e) No delay or omission by RBC in exercising any right or remedy hereunder
or with respect to any Indebtedness shall operate as a waiver thereof or of any
other right or remedy, and no single or partial exercise thereof shall preclude
any other or further exercise thereof or the exercise of any other right or
remedy. Furthermore, RBC may remedy any default by Debtor hereunder or with
respect to any Indebtedness in any reasonable manner without waiving the default
remedied and without waiving any other prior or subsequent default by Debtor.
All rights and remedies of RBC granted or recognized herein are cumulative and
may be exercised at any time and from time to time independently or in
combination.
(f) Debtor waives protest of any Instrument constituting Collateral at any
time held by RBC on which Debtor is in any way liable and, subject to Clause 13
(g) hereof, notice of any other action taken by RBC.
(g) This Security Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
successors and assigns. In any action brought by an assignee of this Security
Agreement and the Security Interest or any part thereof to enforce any rights
hereunder, Debtor shall not assert against the assignee any claim or defence
which Debtor now has or hereafter may have against RBC. If more than one Debtor
executes this Security Agreement the obligations of such Debtors hereunder shall
be joint and several and, unless the context otherwise requires, a reference to
"Debtor" herein shall be deemed to be a reference to each of the undersigned.
(h) RBC may provide any financial and other information it has about
Debtor, the Security Interest and the Collateral to anyone acquiring or who may
acquire an interest in the Security Interest or the Collateral from RBC or
anyone acting on behalf of RBC.
(i) Save for any schedules which may be added hereto pursuant to the
provisions hereof, no modification, variation or amendment of any provision of
this Security Agreement shall be made except by a written agreement, executed by
the parties hereto and no waiver of any provision hereof shall be effective
unless in writing.
(j) Subject to the requirements of Clauses 13 (g) and 14 (k) hereof,
whenever either party hereto is required or entitled to notify or direct the
other or to make a demand or request upon the other, such notice, direction,
demand or request shall be in writing and shall be sufficiently given, in the
case of RBC, if delivered to it or sent by prepaid registered mail addressed to
it at its address herein set forth or as changed pursuant hereto and, in the
case of Debtor, if delivered to it or if sent by prepaid registered mail
addressed to it at its last address known to RBC. Either party may notify the
other pursuant hereto of any change in such party's principal address to be used
for the purposes hereof.
(k) This Security Agreement and the security afforded hereby is in addition
to and not in substitution for any other security now or hereafter held by RBC
and is intended to be a continuing Security Agreement and shall remain in full
force and effect until the Manager or Acting Manager from time to time of the
herein mentioned branch of RBC shall actually receive written notice of its
discontinuance; and, notwithstanding such notice, shall remain in full force and
effect thereafter until all Indebtedness contracted for or created before the
receipt of such notice by RBC, and any extensions or renewals thereof (whether
made before or after receipt of such notice) together with interest accruing
thereon after such notice, shall be paid in full.
(l) The headings used in this Security Agreement are for convenience only
and are not to be considered a part of this Security Agreement and do not in any
way limit or amplify the terms and provisions of this Security Agreement.
(m) When the context so requires, the singular number shall be read as if
the plural were expressed and the provisions hereof shall be read with all
grammatical changes necessary dependent upon the person referred to being a
male, female, firm or corporation.
(n) In the event any provisions of this Security Agreement, as amended from
time to time, shall be deemed invalid or void, in whole or in part, by any Court
of competent jurisdiction, the remaining terms and provisions of this Security
Agreement shall remain in full force and effect.
(o) Nothing herein contained shall in any way obligate RBC to grant,
continue, renew, extend time for payment of or accept anything which constitutes
or would constitute Indebtedness.
(p) The Security Interest created hereby is intended to attach when this
Security Agreement is signed by Debtor and delivered to RBC.
(q) Debtor acknowledges and agrees that in the event it amalgamates with
any other company or companies it is the intention of the parties hereto that
the term "Debtor" when used herein shall apply to each of the amalgamating
companies and to the amalgamated company, such that the Security Interest
granted hereby:
(i) shall extend to "Collateral" (as that term is herein defined)
owned by each of the amalgamating companies and the amalgamated
company at the time of amalgamation and to any "Collateral"
thereafter owned or acquired by the amalgamated company; and
(ii) shall secure the "Indebtedness" (as that term is herein defined)
of each of the amalgamating companies and the amalgamated company
to RBC at the time of amalgamation and any "Indebtedness" of the
amalgamated company to RBC thereafter arising. The Security
Interest shall attach to "Collateral" owned by each company
amalgamating with Debtor, and by the amalgamated company, at the
time of amalgamation, and shall attach to any "Collateral"
thereafter owned or acquired by the amalgamated company when such
becomes owned or is acquired.
(r) In the event that Debtor is a body corporate, it is hereby agreed that
The Limitation of Civil Rights Act and The Land Contracts (Actions) Act of the
Province of Saskatchewan, or any provisions thereof, shall have no application
to this Security Agreement or any agreement or instrument renewing or extending
or collateral to this Security Agreement. In the event that Debtor is an
agricultural corporation within the meaning of The Saskatchewan Farm Security
Act, Debtor agrees with RBC that all of Part IV (other than Section 46) of that
Act shall not apply to Debtor.
(s) This Security Agreement and the transactions evidenced hereby shall be
governed by and construed in accordance with the laws of the province where the
herein mentioned branch of RBC is located including, where applicable, the
P.P.S.A. and the Land Title Act.
15. COPY OF AGREEMENT AND FINANCING STATEMENT
(a) Debtor hereby acknowledges receipt of a copy of this Security
Agreement.
(b) Debtor waives Debtor's right to receive a copy of a financing statement
or financing change statement registered by RBC or any verification statement
pertaining to a registration by RBC.
INDIVIDUAL DEBTOR
SURNAME (LAST NAME)
FIRST NAME SECOND NAME
ADDRESS OF INDIVIDUAL DEBTOR DATE OF BIRTH
YEAR MONTH DAY
CITY PROVINCE POSTAL CODE
SURNAME (LAST NAME)
FIRST NAME SECOND NAME
ADDRESS OF INDIVIDUAL DEBTOR DATE OF BIRTH
YEAR MONTH DAY
CITY PROVINCE POSTAL CODE
BUSINESS DEBTOR
NAME OF BUSINESS DEBTOR
PINE VALLEY COAL LTD.
ADDRESS OF BUSINESS DEBTOR
SUITE 501 - 535 THURLOW STREET
CITY PROVINCE POSTAL CODE
VANCOUVER B.C. V6E 3L2
IN WITNESS WHEREOF Debtor has executed this Security Agreement on the date
specified below.
EXECUTION
DATE
----------
Y M D
PINE VALLEY COAL LTD.
/s/ Gord Baizley /s/ Martin Rip
- ------------------------------ ------------------------------------
WITNESS/OFFICER SIGNATURE* 05 09 16 Per: Martin Rip
Title:
-----------------------------
Gord Baizley
Name
-------------------------
- ------------------------------
*Address **Carrying on Business as:
- ------------------------------ ------------------------------------
*Address
- ------------------------------ ------------------------------------
*Professional Capacity (Principal Address)
------------------------------------
(City, Town, etc. & Province)
BRANCH ADDRESS
Royal Centre Branch
1025 West Georgia Street
Vancouver, B.C.
* Officer certification required in B.C. only
* OFFICER CERTIFICATION
Your signature constitutes a representation that you are a solicitor, notary
public or other person authorized by the Evidence Act, R.S.B.C. 1996. c. 124, to
take affidavits for use in British Columbia and certifies the matters set out in
Part 5 of the Land Title Act as they pertain to the execution of this
instrument.
SCHEDULE "A"
(Encumbrances Affecting Collateral)
(a) any "purchase money security interest" or vendor's hypothec or other Lien
on equipment (as defined in the Personal Property Security Act (British
Columbia)) used by the Borrower in the operation of its business and which
is not for resell, lease or rental to its customers which is assumed,
created or reserved to secure the unpaid purchase price of such equipment
after the date hereof provided that any such Lien is limited to the
equipment so acquired, does not include, charge, apply or attach to the
Equipment, and that the principal amount secured thereby is not increased;
(b) Liens in favour of RBC;
(c) Liens consented to by RBC in writing; and
(d) the following liens in favour of each of the secured parties set out below:
(i) Operating Leases
MONTHLY
PAYMENT (NET
ITEM LEASED LEASING COMPANY OF GST) LEASE TERM START DATE
----------- ------------------ ------------ ---------- ----------
Ricoh IOS Financial 770.40 4 years 13-Jan-05
Photocopiers Services
Ford F350 Crowfoot Ford 869.23 3 years 1-Mar-05
Pickup
Ford F150 Crowfoot Ford 735.09 3 years 5-Jan-05
Ford F150 Peplinskis Ford 1,240.27 3 years 8-Jul-04
Ford E350 Ford Credit Canada 825.69 3 years 2-May-05
FordF250 Ford Credit Canada 648.51 3 years 2-May-05
Back Hoe Komatsu 3,104.00 3 years 15-Aug-05
International
Site Office ATCO 783.00
Trailer (serial no.
152005322)
Trailer (serial no. ATCO 783.00
152005322)
(ii) Financing Leases
MONTHLY
PAYMENT (NET
ITEM LEASED LEASING COMPANY OF GST) LEASE TERM START DATE
- ----------- --------------- ------------ ---------- ----------
Trailer Onset Capital 3,013.00 6 years 1-Oct-04
HPP Plotter IOS Financial 659.93 4 years 1-Apr-05
Services
Skid Steer CNH Capital 5,329.50 1 year 6-May-05
(iii) Other Secured Parties
1. Liens in favour of the Bank of Montreal having base registration
numbers 345961C and 471008C, relating to collateral described as
a. LF269 - Instrument described as GIC 0004-9705087
b. LF269 - Instrument described as no. 0004-9594-006 in the amount
of $50,000; and
2. Security granted to the Rockside Foundation, as set out in separate
agreements between RBC and The Rockside Foundation;
(iv) PPSA Registrations
BRITISH COLUMBIA LIENS SCHEDULE
DEBTOR Falls Mountain Coal Inc. and Pine Valley Mining Corporation
SECURED PARTY Onset Capital Corporation
BASE REG. NO. 007066C
EXPIRY DATE October 27, 2011
COLLATERAL Portable building(s)
DEBTOR Falls Mountain Coal Inc. and Pine Valley Mining Corporation
SECURED PARTY Crowfoot Ford Sales Limited
BASE REG. NO. 122026C
EXPIRY DATE January 5, 2009
COLLATERAL Motor Vehicle, 2005 Ford F150 Supercab with serial no. 1
FTRX14W25NA61237
DEBTOR Falls Mountain Coal Inc. and Pine Valley Mining Corporation
SECURED PARTY Crowfoot Ford Sales Limited
BASE REG. NO. 122080C
EXPIRY DATE January 5, 2009
COLLATERAL Motor Vehicle, 2005 Ford F150 Subercrew with serial no. 1
FTRW14W05KC47704
DEBTOR Falls Mountain Coal Inc.
SECURED PARTY ATCO Structures Inc.
BASE REG. NO. 236074C
EXPIRY DATE March 15, 2006
COLLATERAL Manufactured Home, 2000 10 x 52 Office with serial no. 152005322
DEBTOR Falls Mountain Coal Inc.
SECURED PARTY Ford Credit Canada Limited
BASE REG. NO. 314070C
EXPIRY DATE April 27, 2008
COLLATERAL Motor Vehicle, 2005 Ford E350 with serial no. 1 FBNE31 L65HB26202
DEBTOR Falls Mountain Coal Inc.
SECURED PARTY Ford Credit Canada Leasing Company
BASE REG. NO. 342076C
EXPIRY DATE May 11, 2008
COLLATERAL Motor Vehicle, 2005 Ford F250 with serial no. 1FTSX21525EB84233
DEBTOR Falls Mountain Coal Inc.
SECURED PARTY CNH Capital Canada Ltd.
BASE REG. NO. 350631C
EXPIRY DATE May 17, 2006
COLLATERAL Motor Vehicle, 2005 NEWHOL LS190 with serial no. LMUO22795
DEBTOR Pine Valley Mining Corporation
SECURED PARTY Jim Peplinski's Auto Leasing Ltd.
BASE REG. NO. 806480B
EXPIRY DATE July 7, 2008
COLLATERAL Motor Vehicle, 2004 Ford F150 with serial no. 1 FTPW14504KD02455
DEBTOR Falls Mountain Coal Inc.
SECURED PARTY Komatsu International Canada Inc.
BASE REG. NO. 540783C
EXPIRY DATE August 24, 2009
COLLATERAL Motor Vehicle, 2005 Komatsu WB150-2N, serial number A60126
ALBERTA LIENS SCHEDULE
DEBTOR Pine Valley Mining Corporation and Falls Mountain Coal Inc.
SECURED PARTY Crowfoot Ford Sales Limited
BASE REG. NO. 05022531031
EXPIRY DATE February 25, 2009
COLLATERAL Motor Vehicle, 2005 Ford F350 pickup with serial no. 1
FTWF31515EB55204
SCHEDULE "B"
1. LOCATIONS OF DEBTOR'S BUSINESS OPERATIONS
(a) Willow Creek Coal Mine Pine River Valley 45km West of the Town of Chetwynd,
Peace River District, BC. NTS Map 93-0-9, longitude 122 degrees, 17' west,
latitude 55 degrees 36'
(b) Suite 501-535 Thurlow St., Vancouver, BC
(c) Indin Lake. Leases located in the Mackenzie Mining Division of the NWT.
2. LOCATIONS OF RECORDS RELATING TO COLLATERAL (IF DIFFERENT FROM 1, ABOVE)
3. LOCATIONS OF COLLATERAL (IF DIFFERENT FROM 1, ABOVE)
SCHEDULE "C"
(DESCRIPTION OF PROPERTY)
The Debtor's interest in all present and after-acquired coal leases and coal
licences, including without limitation the coal leases and licences in the
attached list, together with any renewals and replacements to them.
37 MATCHES
Owner Name Tenure Type
---------- -----------
CRITERIA PINE VALLEY Coal
WORK
TENURE CLAIM OWNER MAP RECORDED MINING TAG
NUMBER NAME NUMBER NUMBER TO STATUS DIVISION AREA NUMBER
- ------ ----- ---------- ------- ---------- ------------------------ -------- -------- ------
327289 138283 100% 093O09W 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327290 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327291 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327292 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327293 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327294 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327296 138283 100% 093O09W 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327297 138283 100% 093O09W 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327298 138283 100% 093O09W 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327299 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327300 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327301 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327302 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327303 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327304 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327307 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327308 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327310 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
327312 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
327313 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
327314 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
327316 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
327318 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
327320 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
327321 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
346175 138283 100% 093O09W 1998.03.31 Demised 1998.03.31 09 LIARD 292 ha
346176 138283 100% 093O09W 1998.03.31 Demised 1998.03.31 09 LIARD 292 ha
346177 138283 100% 093O09E 1998.03.31 Demised 1998.03.31 09 LIARD 293 ha
347214 138283 100% 093O069 2006.03.31 Good Standing 2006.03.31 09 LIARD 292 ha
347215 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
347216 138283 100% 093O059 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
347217 138283 100% 093O049 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
347218 138283 100% 093O049 2006.03.31 Good Standing 2006.03.31 09 LIARD 293 ha
384195 138283 100% 093O069 2004.02.22 Forfeited 2004.02.22 09 LIARD 294 ha
384196 138288 100% 093O069 2004.02.22 Forfeited 2004.02.22 09 LIARD 292 ha
384197 138283 100% 093O069 2004.02.22 Forfeited 2004.02.22 09 LIARD 292 ha
389294 138283 100% 093O060 2006.03.31 Good Standing 2006.03.31 09 LIARD 6151 ha
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