EXHIBIT
99.8
AMENDED
AND RESTATED GENERAL SECURITY AGREEMENT
THIS
AGREEMENT is made as of the 10th day of July, 2007,
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BY:
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GENESENSE
TECHNOLOGIES INC., a corporation incorporated under the laws of
Canada
(the
“Company”)
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IN
FAVOUR OF:
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THE
ERIN MILLS INVESTMENT CORPORATION, a corporation incorporated
under the laws of the Province of Ontario
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(the
“Investor”)
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RECITALS:
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A.
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The
Company entered into a general security agreement dated as of October
6,
2004 in favour of the Investor, as amended by the assignment, novation
and
amendment agreement and consent dated as of May 1, 2007 between Lorus
Therapeutics Inc. (“Lorus”), the Company, New Lorus (as defined below) and
the Investor, as amended or supplemented from time to time, (the
“Assignment Agreement”).
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B.
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Lorus
entered into a corporate reorganization transaction completed by
way of
plan of arrangement (the “Arrangement”) on July 10, 2007 under the
Canada Business Corporations Act pursuant to which Lorus
transferred substantially all of its assets, including its antisense
patent assets, to a new corporate entity, 6650309 Canada Inc., which
will
carry on business under the name “Lorus Therapeutics Inc.” (“New
Lorus”).
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NOW
THEREFORE in consideration of the sum of $1.00 and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Company agrees with the Investor as follows:
ARTICLE 1
INTERPRETATION
In
this Agreement:
1.1.1 “Accessions”
means Goods that are installed in or affixed to other Goods;
1.1.2 “Account”
means any monetary obligation not evidenced by Chattel Paper, an Instrument
or a
Security, whether or not it has been earned by performance;
1.1.3 “this
Agreement”, “hereto”, “herein”,
“hereof”, “hereby”,
“hereunder” and any similar expressions refer to this Agreement
as it may be amended or supplemented from time to time, and not to any
particular article, section or other portion hereof;
1.1.4 “Business
Day” means any day, other than Saturday, Sunday or any statutory
holiday in the Province of Ontario;
1.1.5 “Chattel
Paper” means one or more than one writing that evidences both a
monetary obligation and a security interest in or a lease of specific
Goods;
1.1.6 “Collateral”
means all of the undertaking, property and assets of the Company subject to,
or
intended to be subject to, the Security Interest, and any reference to
“Collateral” shall be deemed to be a reference to “Collateral or any part
thereof” except where otherwise specifically provided;
1.1.7 “Debentures”
means the convertible secured debentures issued by Lorus to the Investor
pursuant to the Subscription Agreement;
1.1.8 “Document
of Title” means any writing that purports to be issued by or addressed
to a bailee and purports to cover such Goods in the bailee's possession as
are
identified or fungible portions of an identified mass, and that in the ordinary
course of business is treated as establishing that the Person in possession
of
it is entitled to receive, hold and dispose of the document and the Goods it
covers;
1.1.9 “Event
of Default” has the meaning attributed to such term in the
Debentures;
1.1.10 “Goods”
means tangible personal property other than Chattel Paper, Documents of Title,
Instruments, Money and Securities, and includes fixtures, growing crops, the
unborn young of animals, timber to be cut, and minerals and hydrocarbons to
be
extracted;
1.1.11 “Guarantee”
means the amended and restated guarantee granted by the Company in favour of
the
Investor in respect of the obligations of New Lorus to the Investor dated as
of
the date hereof, as amended or supplemented from time to time;
1.1.12 “Instrument”
means,
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1.1.12.1
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a
bill, note or cheque within the meaning of the Bills of Exchange
Act (Canada) or any other writing that evidences a right to the
payment of Money and is of a type that in the ordinary course of
business
is transferred by delivery with any necessary endorsement or assignment,
or
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1.1.12.2
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a
letter of credit and an advice of credit if the letter or advice
states
that it must be surrendered upon claiming payment
thereunder,
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but
does not include a writing that constitutes part of Chattel Paper, a Document
of
Title or a Security;
1.1.13 “Intangible”
means all personal property, including choses in action, that is not Goods,
Chattel Paper, Documents of Title, Instruments, Money or
Securities;
1.1.14 “Inventory”
means Goods that are held by a Person for sale or lease or that have been leased
or that are to be furnished or have been furnished under a contract of service,
or that are raw materials, work in process or materials used or consumed in
a
business or profession;
1.1.15 “Lien”
means any mortgage, pledge, charge, assignment, security interest, hypothec,
lien or other encumbrance, including, without limitation, any agreement to
give
any of the foregoing, or any conditional sale or other title retention
agreement;
1.1.16 “Money”
means a medium of exchange authorized or adopted by the Parliament of Canada
as
part of the currency of Canada or by a foreign government as part of its
currency;
1.1.17 “Obligations”
means all of the obligations, liabilities and indebtedness of the Company to
the
Investor from time to time, whether present or future, absolute or contingent,
liquidated or unliquidated, of whatsoever nature or kind, in any currency or
otherwise, under or in respect of the Subscription Agreement, the Debentures,
the Guarantee and this Agreement or any one or more of the foregoing as the
same
may be amended or supplemented from time to time;
1.1.18 “Permitted
Liens” has the meaning given to such term in the
Debentures;
1.1.19 “Person”
means any individual, partnership, limited partnership, joint venture,
syndicate, sole proprietorship, company or corporation with or without share
capital, unincorporated association, trust, trustee, executor, administrator
or
other legal personal representative, regulatory body or agency, government
or
governmental agency, authority or entity however designated or
constituted;
1.1.20 “PPSA”
means the Personal Property Security Act (Ontario) as amended from time to
time
and any Act substituted therefor and amendments thereto;
1.1.21 “Proceeds”
means identifiable or traceable personal property in any form derived directly
or indirectly from any dealing with property or the proceeds therefrom, and
includes any payment representing indemnity or compensation for loss of or
damage to property or proceeds therefrom ;
1.1.22 “Receiver”
means any of a receiver, manager, receiver-manager and receiver and
manager;
1.1.23 “Security”
means a document that is,
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1.1.23.1
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issued
in bearer, order or registered
form,
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1.1.23.2
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of
a type commonly dealt in upon securities exchanges or markets or
commonly
recognized in any area in which it is issued or dealt in as a medium
for
investment,
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1.1.23.3
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one
of a class or series or by its terms is divisible into a class or
series
of documents, and
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1.1.23.4
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evidence
of a share, participation or other interest in property or in an
enterprise or is evidence of an obligation of the
issuer,
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and
includes an uncertificated security within the meaning of Part VI (Investment
Securities) of the Business Corporations Act (Ontario) ;
1.1.24 “Security
Interest” has the meaning attributed to such term in section 2.1;
and
1.1.25 “Subscription
Agreement” means the subscription agreement among Lorus, the Investor
and the Company dated as of October 6, 2004, as amended by the Assignment
Agreement, as amended or supplemented from time to time.
The
inclusion of headings in this Agreement is for convenience of reference only
and
shall not affect the construction or interpretation hereof.
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1.3
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References
to Articles and Sections
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Whenever
in this Agreement a particular article, section or other portion thereof is
referred to then, unless otherwise indicated, such reference pertains to the
particular article, section or portion thereof contained herein.
Except
where otherwise expressly provided, all amounts in this Agreement are stated
and
shall be paid in Canadian currency.
In
this Agreement, unless the context otherwise requires, words importing the
singular include the plural and vice versa, words importing gender include
all
genders or the neuter, and words importing the neuter include all
genders.
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1.6
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Invalidity
of Provisions
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Each
of the provisions contained in this Agreement is distinct and severable and
a
declaration of invalidity or unenforceability of any such provision or part
thereof by a court of competent jurisdiction-shall not affect the validity
or
enforceability of any other provision hereof. To the extent permitted
by applicable law, the parties waive any provision of law which renders any
provision of this Agreement invalid or unenforceable in any
respect. The parties shall engage in good faith negotiations to
replace any provision which is declared invalid or unenforceable with a valid
and enforceable provision, the economic effect of which comes as close as
possible to that of the invalid or unenforceable provision which it
replaces.
No
amendment or waiver of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any provision
of this Agreement shall constitute a waiver of any other provision nor shall
any
waiver of any provision of this Agreement constitute a continuing waiver unless
otherwise expressly provided.
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1.8
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Governing
Law, Attornment
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This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Ontario and the laws of Canada applicable therein and the Company
hereby irrevocably attorns to the jurisdiction of the courts of
Ontario.
ARTICLE 2
SECURITY
INTEREST
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2.1
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Creation
of Security Interest
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Subject
to sections 2.2 and 2.3 hereof, the Company hereby grants to the Investor,
by
way of security interest, mortgage, pledge, charge, assignment and hypothec
a
security interest (the “Security Interest”) in the undertaking of the Company
and in:
2.1.1 all
Goods (including without limitation all parts, accessories, attachments,
additions and Accessions thereto) whether or not such Goods are now or hereafter
become fixtures, all Accounts, all Chattel Paper, all Documents of Title
(whether negotiable or not), all Instruments, all Intangibles, all Money and
all
Securities, and all other personal property, if any, in each case now owned
or
hereafter acquired by or on behalf of the Company or in respect of which the
Company now or hereafter has any right, title or interest (including, without
limitation, such as may be returned to or repossessed by the
Company);
2.1.2 all
renewals of, accretions to and substitutions for any of the property described
in section 2.1.1; and
2.1.3 all
Proceeds (including Proceeds of Proceeds) of any of the property described
in
sections 2.1.1 and 2.1.2.
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2.2
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Exception
for Last Day of Leases
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The
Security Interest granted hereby does not and shall not extend to, and
Collateral shall not include, the last day of the term of any lease or
sub-lease, oral or written, or any agreement therefor, now held or hereafter
acquired by the Company, but upon the sale of the leasehold interest or any
part
thereof the Company shall stand possessed of such last day in trust to assign
the same as the Investor shall direct.
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2.3
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Exception
for Contractual Rights
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The
Security Interest granted hereby does not and shall not extend to, and
Collateral shall not include, any agreement, right, franchise, license or permit
(the “contractual rights”) to
which
the Company is a party or of which the Company has the benefit, to the extent
that the creation of the Security Interest therein would constitute a breach
of
the terms of or permit any Person to terminate the contractual rights, but
the
Company shall hold its interest therein in trust for the benefit of the Investor
and shall assign such contractual rights to the Investor forthwith upon
obtaining the consent of the other party thereto. The Company agrees
that it shall, upon the request of the Investor, use all commercially reasonable
efforts to obtain any consent required to permit any contractual rights to
be
subjected to the Security Interest.
The
attachment of the Security Interest has not been postponed and the Security
Interest shall attach to any particular Collateral as soon as the Company has
rights in such Collateral.
ARTICLE 3
OBLIGATIONS
SECURED
The
Security Interest granted hereby secures payment, performance and satisfaction
of the Obligations.
ARTICLE 4
CERTAIN
AGREEMENTS OF THE COMPANY
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4.1
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Restrictions
on Dealing with Collateral
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The
Company agrees that it shall not, without the prior consent in writing of the
Investor:
4.1.1 sell,
assign, transfer, exchange, lease, consign or otherwise dispose of any Goods
or
all or any material part of the Collateral as a whole, other than the sale,
lease or consignment of Inventory in the ordinary course of business of the
Company;
4.1.2 create,
assume or suffer to exist any Lien upon the Collateral other than Permitted
Liens and any Lien which the Investor has expressly consented to in
writing.
No
provision hereof shall be construed as a subordination or postponement of the
Security Interest to or in favour of any other Lien, whether or not such Lien
is
permitted hereunder or otherwise.
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4.2
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Verification
of Collateral
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The
Investor shall have the right at any time and from time to time to verify the
existence and state of the Collateral in any manner the Investor may consider
appropriate acting reasonably and the Company agrees to furnish all assistance
and information and to perform all such acts as the Investor may reasonably
request in connection therewith and for such purpose to grant to the Investor
or
its agents access to all places where Collateral may be located and to all
premises occupied by the Company.
The
Company shall pay to the Investor on demand all of the Investor's reasonable
costs, charges and expenses (including, without limitation, legal fees on a
solicitor and his own client basis and Receiver's fees) in connection with
the
preparation, registration or amendment of this Agreement, the perfection or
preservation of the Security Interest, the enforcement by any means of any
of
the provisions hereof or the exercise of any rights, powers or remedies
hereunder, including, without limitation, all such costs, charges and expenses
in connection with taking possession of Collateral, carrying on the Company's
business, collecting the Company's accounts and taking custody of, preserving,
repairing, processing, preparing for disposition and disposing of Collateral,
together with interest on such costs, charges and expenses from the dates
incurred to the date of payment at the Prime Rate plus 2%. For the
purposes of the foregoing, “Prime Rate” means, for any day, the annual rate
established by the Royal Bank of Canada and which it refers to as its “prime
rate of interest”.
The
Company shall at its own expense do, execute, acknowledge and deliver or cause
to be done, executed, acknowledged and delivered all such further acts, deeds,
mortgages, pledges, charges, assignments, security agreements, hypothecs and
assurances (including instruments supplemental or ancillary hereto) and such
financing statements as the Investor may from time to time request to better
assure and perfect its security on the Collateral.
ARTICLE 5
SECURITIES
If
Collateral at any time includes Securities, the Company authorizes the Investor
to transfer the same or any part thereof into its own name or that of its
nominee so that the Investor or its nominee may appear as the sole
owner of record thereof; provided that, until the occurrence of an Event of
Default, the Investor shall deliver promptly to the Company all notices or
other
communications received by the Investor or its nominee as such registered owner
and, upon demand and receipt of payment of any necessary expenses thereof,
shall
grant to the Company or its nominee a proxy to vote and take all action with
respect to such Securities. After the occurrence of an Event of
Default which has not been waived in writing by the Investor, the Company waives
all rights to receive any notices or communications received by the Investor
or
its nominee as such registered owner and agrees that no proxy granted by the
Investor to the Company or its nominee as aforesaid shall thereafter be
effective.
ARTICLE 6
COLLECTION
OF DEBTS
After
the occurrence of an Event of Default which has not been waived in writing
by
the Investor, the Investor may give notice of the Security Interest to any
Person obligated to pay any debt or liability constituting Collateral and may
also direct such Person to make all payments on account of any such debt or
liability to the Investor. The Company acknowledges that any payments
received by the Company from such Persons, whether before or after notification
of the Security Interest to such Persons and whether before or after the
occurrence of an Event of Default, shall be received and held by the Company
in
trust, or as agent in the Province of Quebec, for the Investor and shall be
turned over to the Investor upon request.
ARTICLE 7
REMEDIES
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7.1
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Appointment
of Receiver
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7.1.1 Upon
the occurrence of an Event of Default which has not been waived in writing
by
the Investor, the Investor may appoint by instrument any Person, whether an
officer or an employee of the Investor or not, to be a Receiver of Collateral
and may remove any Receiver so appointed and appoint another in place of such
Receiver in the same manner. Any such Receiver shall be deemed the
agent of the Company and not of the Investor for the purpose of (i) carrying
on
and managing the business and affairs of the Company, and (ii) establishing
liability for all acts or omissions of the Receiver while acting as such, and
the Investor shall not be in any way responsible for any acts or omissions
on
the part of any such Receiver, its officers, employees and
agents. The Company hereby irrevocably authorizes the Investor to
give instructions to the Receiver relating to the performance of its
duties. The Company hereby irrevocably waives any right it may have
now or in the future under any applicable law, including, without limitation,
the PPSA, to make application to a court for the removal, replacement or
discharge of the Receiver or for directions on any matter relating to the duties
of the Receiver (unless such duties are not being performed in a commercially
reasonable manner) or in respect of the Receiver's accounts or remuneration
or
in respect of any other matter.
7.1.2 Subject
to the provisions of the instrument appointing it, any such Receiver shall
have
the power to take possession of Collateral, to preserve Collateral or its value
in such manner as it considers appropriate, to carry on or concur in carrying
on
all or any part of the business of the Company and to sell, lease or otherwise
dispose of or concur in selling, leasing or otherwise disposing of Collateral
in
such manner and on such terms as it considers to be commercially
reasonable. To facilitate the foregoing powers, any such Receiver may
enter upon, use and occupy all premises owned or occupied by the Company wherein
Collateral may be situate to the exclusion of all others to the extent permitted
by law, including the Company, maintain Collateral upon such premises, borrow
money on a secured or unsecured basis, incur reasonable expenses in the exercise
of the rights, powers and remedies set out in this Agreement and use Collateral
directly in carrying on the Company's
business
or as security for loans or advances to enable it to carry on the Company's
business or otherwise, as such Receiver shall, in its discretion,
determine. In addition, the Receiver shall have the following rights,
powers and remedies:
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7.1.2.1
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to
make payments to Persons having prior rights or Liens on properties
on
which the Company may hold a Lien and to Persons having prior rights
or
Liens on the Collateral; and
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7.1.2.2
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to
demand, commence, continue or defend proceedings in the name of the
Investor or of the Receiver or in the name of the Company for the
purpose
of protecting, seizing, collecting, realizing or obtaining possession
or
payment of the Collateral and to give effectual receipts and discharges
therefor.
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7.1.3 Except
as may be otherwise directed by the Investor, all Proceeds received from time
to
time by such Receiver in carrying out its appointment shall be received in
trust, or as agent in the Province of Quebec, for and paid over to the
Investor. Every such Receiver may, in the discretion of the Investor,
be vested with all or any of the rights and powers of the Investor.
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7.2
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Exercise
of Remedies by Investor
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Upon
the occurrence of an Event of Default which has not been waived in writing
by
the Investor, the Investor may, either directly or through its agents or
nominees, exercise all the powers and rights available to a Receiver by virtue
of section 7.1. In addition to the rights granted in this Agreement
and in any other agreement now or hereafter in effect between the Company and
the Investor and in addition to any other rights the Investor may have at law
or
in equity or otherwise, the Investor shall have, both before and after the
occurrence of an Event of Default, all rights and remedies of a secured party
under the PPSA.
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7.3
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Possession
of Collateral
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The
Company acknowledges that upon the occurrence of an Event of Default which
has
not been waived in writing by the Investor, the Investor or any Receiver
appointed by it may take possession of Collateral wherever it may be located
and
by any method permitted by law and the Company agrees upon request from the
Investor or any such Receiver to assemble and deliver possession of Collateral
at such place or places as directed.
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7.4
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Remedies
Not Exclusive
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All
rights, powers and remedies of the Investor under this Agreement may be
exercised separately or in combination and shall be in addition to, and not
in
substitution for, any other security now or hereafter held by the Investor
and
any other rights, powers and remedies of the Investor however created or
arising. No single or partial exercise by the Investor of any of the
rights, powers and remedies under this Agreement or under any other security
now
or hereafter held by the Investor shall preclude any other and further exercise
of any other right, power or remedy pursuant to this Agreement or any other
security or at law, in equity or otherwise. The Investor shall at all
times have the right to proceed against Collateral or any other security in
such
order and in
such
manner as it shall determine without waiving any rights, powers or remedies
which the Investor may have with respect to this Agreement or any other security
or at law, in equity or otherwise. No delay or omission by the
Investor in exercising any right, power or remedy hereunder or otherwise shall
operate as a waiver thereof or of any other right, power or remedy.
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7.5
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Company
Liable for Deficiency
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The
Company shall remain liable to the Investor for any deficiency after the
proceeds of any sale, lease or disposition of Collateral are received by the
Investor.
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7.6
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Exclusion
of Liability of Investor and
Receiver
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The
Investor shall not, nor shall any Receiver appointed by it, be liable for any
failure to exercise its rights, powers or remedies arising hereunder or
otherwise, including without limitation any failure to take possession of,
collect, enforce, realize, sell, lease or otherwise dispose of, preserve or
protect the Collateral, to carry on all or any part of the business of the
Company relating to the Collateral or to take any steps or proceedings for
any
such purposes. Neither the Investor nor any Receiver appointed by it
shall have any obligation to take any steps or proceedings to preserve rights
against prior parties to or in respect of Collateral, including without
limitation any Instrument, Chattel Paper or Securities, whether or not in the
Investor's or the Receiver's possession, and neither the Investor nor any
Receiver appointed by it shall be liable for failure to do
so. Subject to the foregoing, the Investor shall use reasonable care
in the custody and preservation of the Collateral in its
possession.
Unless
required by law, neither the Investor nor any Receiver appointed by it shall
be
required to give the Company any notice of any sale, lease or other disposition
of the Collateral, the date, time and place of any public sale of the Collateral
or the date after which any private disposition of the Collateral is to be
made.
ARTICLE 8
APPLICATION
OF PROCEEDS
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8.1
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Application
of Proceeds
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The
Proceeds arising from the enforcement of the Security Interest as a result
of
the possession by the Investor or the Receiver of the Collateral or from any
sale, lease or other disposition of, or realization of security on, the
Collateral (except following acceptance of Collateral in satisfaction of the
Obligations) shall be applied by the Investor or the Receiver in the following
order, except to the extent otherwise required by law:
8.1.1 first,
in payment of the Investor's reasonable costs, charges and expenses (including
legal fees on a solicitor and his own client basis) incurred in the exercise
of
all or any of the rights, powers or remedies granted to it under this Agreement,
and in payment of the reasonable remuneration of the Receiver, if any, and
the
reasonable costs, charges and expenses incurred by the Receiver, if any, in
the
exercise of all or any of the rights, powers or remedies granted under this
Agreement;
8.1.2 second,
in payment of amounts paid by the Investor or the Receiver pursuant to section
7.1.2.1;
8.1.3 third,
in payment of all money borrowed or advanced by the Investor or the Receiver,
if
any, pursuant to the exercise of the rights, powers or remedies set out in
this
Agreement and any interest thereon;
8.1.4 fourth,
in payment of the remainder of the Obligations in such order of application
as
the Investor may determine;
8.1.5 fifth,
subject to sections 8.2 and 8.3, to any Person who has a security interest
in
Collateral that is subordinate to that of the Investor and whose
interest,
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8.1.5.1
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was
perfected by possession, the continuance of which was prevented by
the
Investor or the Receiver taking possession of Collateral,
or
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8.1.5.2
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was,
immediately before the sale, lease or other disposition by the Investor
or
the Receiver, perfected by
registration;
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8.1.6 sixth,
subject to sections 8.2 and 8.3, to any other Person with an interest in such
Proceeds who has delivered a written notice to the Investor or the Receiver
of
the interest before the distribution of such Proceeds; and
8.1.7 last,
subject to sections 8.2 and 8.3, to the Company or any other Person who is
known
by the Investor or the Receiver to be an owner of the Collateral.
The
Investor or the Receiver may require any Person mentioned in sections 8.1.5,
8.1.6 or 8.1.7 to furnish proof of that Person's interest, and unless the proof
is furnished within ten days after demand by the Investor or the Receiver,
the
Investor or the Receiver need not pay over any portion of the Proceeds referred
to therein to such Person.
Where
there is a question as to who is entitled to receive payment under sections
8.1.5, 8.1.6 or 8.1.7, the Investor or the Receiver may pay the Proceeds
referred to therein into court.
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8.4
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Monies
Actually Received
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The
Company shall be entitled to be credited only with the actual Proceeds arising
from the possession, sale, lease or other disposition of, or realization of
security on, the Collateral when received by the Investor or the Receiver and
such actual Proceeds shall mean all amounts received in cash by the Investor
or
the Receiver upon such possession, sale, lease or other disposition of, or
realization of security on, the Collateral.
ARTICLE 9
GENERAL
The
Company hereby appoints the Investor as the Company's attorney, with full power
of substitution, in the name and on behalf of the Company, to execute, deliver
and do all such acts, deeds, leases, documents, transfers, demands, conveyances,
assignments, contracts, assurances, consents, financing statements and things
as
the Company has herein agreed to execute, deliver and do or as may be required
by the Investor or any Receiver to give effect to this Agreement or in the
exercise of any rights, powers or remedies hereby conferred on the Investor,
and
generally to use the name of the Company in the exercise of all or any of the
rights, powers or remedies hereby conferred on the Investor. This
appointment, coupled with an interest, shall not be revoked by the insolvency,
bankruptcy, dissolution, liquidation or other termination of the existence
of
the Company or for any other reason.
The
Investor may at any time and from time to time, without notice to the Company
or
to any other Person, set-off, appropriate and apply any and all deposits,
general or special, matured or unmatured, held by or for the benefit of the
Company with the Investor, and any other indebtedness and liability of the
Investor to the Company, matured or unmatured, against and on account of the
Obligations when due, in such order of application as the Investor may from
time
to time determine.
The
Investor may grant extensions of time and other indulgences, take and give
up
security, accept compositions, make settlements, grant releases and discharges
and otherwise deal with the Company, debtors of the Company, sureties and other
Persons and with Collateral and other security as the Investor sees fit, without
prejudice to the liability of the Company to the Investor or the rights, powers
and remedies of the Investor under this Agreement.
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9.4
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No
Obligation to Advance
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Nothing
herein contained shall in any way obligate the Investor to advance any funds,
or
otherwise make or continue to make any credit available, to the
Company.
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9.5
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Perfection
of Security
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The
Company authorizes the Investor to file such financing statements and other
documents and do such acts, matters and things as the Investor may consider
appropriate to perfect and continue the Security Interest, to protect and
preserve the interest of the Investor in Collateral and to realize upon the
Security Interest.
Any
notice or other communication, including a demand or a direction, required
or
permitted to be given hereunder shall be in writing and shall be given by
prepaid mail, by facsimile or other means of electronic communication or by
hand-delivery as hereinafter provided. Any such notice or other
communication, if mailed by prepaid mail at any time other than during or within
three Business Days prior to a general discontinuance of postal service due
to
strike, lockout or otherwise, shall be deemed to have been received on the
fourth Business Day after the post-marked date thereof, or if sent by facsimile
or other means of electronic communication, shall be deemed to have been
received on the Business Day following the sending, or if delivered by hand
shall be deemed to have been received at the time it is delivered to the
applicable address noted below either to the individual designated below or
to a
senior employee of the addressee at such address with responsibility for matters
to which the information relates and, in the case of the Investor, in the same
department noted below. Notice of change of address shall also be
governed by this section. In the event of a general discontinuance of
postal service due to strike, lock-out or otherwise, notices or other
communications shall be delivered by hand or sent by facsimile or other means
of
electronic communication and shall be deemed to have been received in accordance
with the foregoing. Notice and other communications shall be
addressed as follows:
The
Erin Mills Investment
Corporation
7501
Keele Street
Suite
500
Concord,
Ontario L4K 1Y2
Attention: Gerry
C. Quinn
Telecopier
number: (416)
736-8373
GeneSense
Technologies
Inc.
2
Meridian Road
Toronto,
Ontario
M9W
4Z7
Attention: Aiping
Young
Telecopier
number:
(416) 798-2200
Notwithstanding
the foregoing, if the PPSA requires that a notice or other communication be
given in a specified manner, then any such notice or communication shall be
given in such manner.
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9.7
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Successors
and Assigns
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This
Agreement shall be binding on the Company and its successors and shall enure
to
the benefit of the Investor and its successors and assigns. This
Agreement shall be assignable by the Investor to an assignee of the Debentures,
free of any set-off, counter-claim or equities between the Company and the
Investor, and the Company shall not assert against an assignee of the Investor
any claim or defence that the Company has against the Investor.
The
Company hereby acknowledges receipt of a copy of this Agreement and a copy
of
the financing statement/verification statement registered under the PPSA in
respect of the Security Interest.
IN
WITNESS WHEREOF the Company has executed this Agreement on and as of
the date first above written.
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GENESENSE
TECHNOLOGIES INC.
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“Aiping
Young”
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