GENERAL SECURITY AGREEMENT
THIS GENERAL SECURITY AGREEMENT is made as of August 30, 2002, by ADB
SYSTEMS INTERNATIONAL INC., an Ontario corporation, in favour of GREENWICH
GROWTH FUND LTD.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged by the Company, the Company agrees with the Investor as
follows:
1. DEFINITIONS. In this Agreement, unless defined elsewhere in this Agreement,
capitalized terms shall bear the meanings set out in Schedule "A".
2. GRANT OF SECURITY. As general and continuing collateral security for the due
payment and performance of the Indebtedness, the Company grants to the Investor
a security interest in the Collateral, mortgages and charges the Collateral in
favour of the Investor, and assigns the Collateral, in favour of the Investor.
3. ATTACHMENT. The Security Interests created in this Agreement are intended to
attach: (i) to existing Collateral when the Company signs this Agreement; and
(ii) to Collateral subsequently acquired by the Company immediately upon the
Company acquiring any rights in such Collateral.
4. LIMITATIONS ON GRANT OF SECURITY. The Security Interests created by this
Security Agreement do not extend to any Excluded Collateral. All Excluded
Collateral shall be held by the Company in trust for the Investor and, on the
exercise by the Investor of any of its rights under this Agreement following a
Default, will be assigned and otherwise dealt with by the Company as directed by
the Investor.
5. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the
Investor that:
(a) Legal Name of Company. The name of the Company set out on the first
page of this agreement is the full legal name of the Company set out
in the Company's constating documents, as amended and in effect on the
date hereof.
(b) Place of Business and Location of Records. The Company's chief
executive office, the location of the office where it keeps its
records respecting its accounts receivable, and all other places of
Business of the Company are listed on Schedule "B" hereto.
(c) Title; No Other Security Interests. The Company owns (or, with respect
to any leased or licensed property forming part of the Collateral,
holds a valid leasehold or licensed interest in) the Collateral free
and clear of any Security Interests, other than Permitted Security
Interests.
(d) No Contravention of Other Obligations. The Company is duly
incorporated and has the power and authority to grant to the Investor
the Security Interests created by this Agreement and to execute and
deliver and perform its obligations under this Agreement and such
execution, delivery and performance does not contravene any of
- 2 -
the Company's constating documents or by-laws or to the best of its
knowledge, any material agreements or instruments to which the Company
is a party.
(e) Enforceability. This agreement is a legal, valid and binding
obligation of the Company, enforceable against it in accordance with
its terms, subject only by bankruptcy, insolvency and any other laws
of general application affecting creditors' rights and by rules of
equity;
(f) Ownership of Collateral. The Company is, or is to become, the owner of
the Collateral and has, or will have when the Collateral is acquired,
the right to create a security interest in the Collateral in favour of
the Investor;
6. COVENANTS. The Company covenants and agrees with the Investor that:
(a) Delivery of Information Regarding Collateral. The Company shall
forthwith on request, furnish to the Investor in writing all
information requested by the Investor, acting reasonably, relating to
the Collateral (including reports, statements and schedules further
identifying and describing the Collateral), forthwith on request,
furnish to the Investor descriptions of any material Collateral
acquired after this Agreement is executed, and the Investor shall be
entitled from time to time, upon reasonable notice, to inspect the
Collateral and to take temporary custody of and make copies of all
documents relating to the Collateral and for such purposes the
Investor shall, upon reasonable notice, have access to all premises
occupied by the Company or where the Collateral or any of it may be
found;
(b) Further Documentation. The Company shall from time to time forthwith
on the Investor's request do, make and execute all such financing
statements, further assignments or agreements, documents, schedules to
this Agreement, acts, matters and things as may be required by the
Investor, acting reasonably, of or with respect to the Collateral or
any part thereof or as may be required to give effect to these
presents;
(c) No Change in Location of Collateral etc. The Company will not change
its chief executive office or the location of the Collateral, (other
than Inventory enroute from suppliers or enroute to the Company or on
lease or on consignment) or the location of the office where it keeps
its records respecting the Accounts, without providing to the Investor
such additional security and priority agreements, if any, as the
Investor may reasonably require and without obtaining the prior
written approval of the Investor, which approval shall not be
unreasonably withheld;
(d) Notices. the Company agrees to immediately notify the Investor, if any
person, firm or corporation has the right to go into, collect or seize
possession of any part of the Collateral by means of execution,
garnishment or other legal process;
(e) Payments Relating to Collateral. The Company agrees to make all
payments and keep current all accounts which the Company is obliged to
pay and which, if not paid, may result in an encumbrance against the
Collateral and will provide to the
- 3 -
Investor such information requested by it from time to time to
evidence that such payments have been made.
(f) Limitations on Other Security Interests. The Company will not create,
incur or permit to exist, and will defend the Collateral against, and
will take such other action as is necessary to remove, any and all
Security Interests on and claims in respect of the Collateral other
than the Permitted Security Interests and the Company will defend the
right, title and interest of the Investor in and to the Collateral
against the claims and demands of all Persons.
(g) Limitations on Dispositions of Collateral. The Company will not,
without the Investor's prior written consent, which consent shall not
be unreasonably withheld or delayed, sell, lease or otherwise dispose
of any of the Collateral, except in the ordinary course of business.
Following Default, all Proceeds of the Collateral (including all
amounts received in respect of Accounts), whether or not arising in
the ordinary course of the Company's business, will be held (if
received prior to the Default) or received and held (if received after
the Default) by the Company as trustee for the Investor and will be
immediately paid to the Investor upon request by the Investor.
(h) Maintenance of Collateral. The Company will maintain all tangible
Collateral in good operating condition, ordinary wear and tear
excepted, and the Company will provide all maintenance, service and
repairs necessary for such purpose. Further, the Company shall take
all action as necessary, desirable or reasonably requested by the
Investor to preserve the Excluded Collateral and all benefits deriving
therefrom for the benefit of the Investor.
(i) Payment of Taxes. The Company will from time to time pay or cause to
be paid all taxes, assessments, levies and similar impositions of
every nature and kind whatsoever ("Taxes") which may be levied,
assessed or imposed on the Collateral or any part thereof. The Company
will from time to time pay or cause to be paid all Taxes, general and
special, ordinary or extraordinary, of every nature and kind
whatsoever, including local improvement taxes, which shall be levied,
assessed or imposed upon the Collateral or any part thereof, or upon
the Company or any other person on account thereof, save and except
when and so long as the validity of any such Taxes, is in good faith
contested by the Company, and, if applicable, the same remain
Permitted Security Interests. The Investor may, at any time and from
time to time, at the Company's expense, obtain from the municipality
pertaining to the lands, a tax certificate confirming the status of
property taxes in respect of such lands.
(j) Insurance. The Company will keep the Collateral insured with
financially sound and reputable companies against loss or damage by
fire, explosion, theft and such other risks in such amounts and upon
such terms as would a reasonably prudent owner of similar property.
The Company will, from time to time at the Investor's reasonable
request, deliver the applicable insurance policies (or satisfactory
evidence of such policies) to the Investor. If the Company does not
obtain or maintain such insurance, the Investor may, but need not, do
so, in which event the Company will immediately
- 4 -
on demand reimburse the Investor for all payments made by the Investor
in connection with obtaining and maintaining such insurance, and until
reimbursed any such payment will form part of the Indebtedness and
will be secured by the Security Interests created by this Agreement.
7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All agreements,
representations, warranties and covenants made by the Company in the Security
Documents (except as may be otherwise specified therein) will survive the
execution and delivery of this Agreement or any investigation made at any time
by or on behalf of the Investor and any disposition or payment of the
Indebtedness until repayment and performance in full of the Indebtedness.
8. DEFAULT. The following events shall constitute a "Default" pursuant to this
Agreement:
(a) Failure to Pay. if the Company fails to make payment of any principal
or interest on account of the Indebtedness when the same shall become
due and such Default shall continue for a period of two (2) Business
Days after a notice in writing of such default has been given by the
Investor to the Company; or
(b) Default under Agreements. if the Company defaults under the Series D
Note, the Subscription Agreement, the Brick Co-operation Agreement,
the Brick Loan Agreement and all agreements which are schedules to the
foregoing.
(c) Failure to Comply with Covenants. if the Company defaults in observing
or performing any other covenant or condition of the Security
Documents in its part to be observed or performed and if such default
shall continue for a period of 10 Business Days after a notice in
writing has been given by the Investor to the Company specifying such
default, provided that in the case of a Default which cannot be
remedied simply by payment of money such Default shall be deemed not
to have occurred if, and so long as, the Company shall have within
such 10 Business Day period commenced to remedy such Default and
diligently pursued the remedying thereof; or
(d) False Representations. if any representation or warranty of the
Company made hereto in any certificate or other instrument or document
furnished by the Company to the Investor shall have been false or
misleading in any material respect when made; or
(e) Failure to Pay Taxes, etc. if the Company fails to pay taxes, rates,
levies, duties, public utility charges and assessments, which shall be
levied, assessed or imposed upon the Collateral or any part thereof,
or upon the Company on account thereof (save and except when and so
long as the validity thereof is in good faith contested by the Company
and the same remain Permitted Security Interests and any such Default
as aforesaid shall continue either for a period of 30 days after
written notice to the Company from the Investor; or
- 5 -
(f) Appointment of Receiver. if a receiver or receiver and manager or a
liquidator or a trustee in bankruptcy of the Company or for all or
substantially all of the assets of the Company shall be appointed and
the Company fails to seek to set aside such appointment within 30 days
after such appointment or if the Company acquiesces to such
appointment; or
(g) Inability of Pay Debts Generally. if the Company shall admit its
inability to pay its debts generally as they become due or otherwise
acknowledge its insolvency or an effective resolution passed for the
winding-up of the Company or if the Company shall make an assignment
for the benefit of its creditors or if the Company shall make a
proposal to its respective creditors under a bankruptcy act.
(h) Declaration of Bankruptcy or Insolvency Under the Law. If the Company
declares bankruptcy or insolvency under any law relating to
bankruptcy, insolvency, winding-up or adjustment of debts and does not
commence a challenge, appeal or seek to set aside such decision within
15 days after receipt of notice of such decision and proceed
vigorously thereafter with such challenge.
9. RIGHTS ON DEFAULT. On Default and so long as such Default is continuing, the
security constituted by this Agreement will be enforceable, and the Investor
may, personally or by agent 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 Investor at law or in equity.
(b) Take Possession. Take possession of any or all of the Collateral in
which event the Company will, at the expense of the Investor, cause
the Collateral designated by the Investor to be assembled and made
available and/or delivered to the Investor at any place designated in
writing by the Investor.
(c) Take Possession. Enter on any premises where any Collateral is located
and take possession of, disable or remove such Collateral by any
method permitted by law.
(d) Use of 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 Investor acting reasonably, may
determine, and demand, collect and retain all earnings and other sums
due or to become due from any Person in respect of 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 Company and enter on, occupy
and use (without charge by the Company) any of the premises,
buildings, plant and undertaking of, or occupied or used by, the
Company.
(f) Deal with Collateral. Seize, collect, receive, enforce, repair,
process, modify, complete or otherwise deal with any Collateral in
such reasonable manner, on such terms and conditions and at such times
as the Investor deems advisable.
- 6 -
(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 Investor or elsewhere, on
such terms and conditions as the Investor may deem advisable and at
such prices as it may deem best, for cash or on credit or for future
delivery.
(h) Court-Approved Disposition of Collateral. Apply to a court of
competent jurisdiction for the sale or foreclosure of any or all of
the Collateral.
(i) File Claims. File such proofs of claim or other documents as may be
necessary or desirable to have the Investor's claim lodged in any
bankruptcy, winding-up, liquidation, dissolution or other proceedings
(voluntary or otherwise relating to the Company).
(j) Purchase by Investor. At any public sale, and to the extent permitted
by law on any private sale, bid for and purchase any or all of the
Collateral offered for sale and, upon compliance with the terms of
such sale, hold, retain and dispose of such Collateral without any
further accountability to the Company or any other Person with respect
to such holding, retention or disposition, except as required by law.
(k) Payment of Indebtedness. Pay any liability secured by any Security
Interest against any Collateral. The Company will upon request
reimburse the Investor for all such payments, such payments will form
part of the Indebtedness and will be secured by the Security Interests
created by this Agreement.
(l) Appointment of Receiver Pursuant to Agreement. Appoint by instrument
in writing one or more Receivers over the Company 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 Investor 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 applicable law, any
Receiver appointed by the Investor will (for purposes relating to
responsibility for the Receiver's acts or omissions) be considered to
be the agent of the Company and not of the Investor. The Investor may
from time to time fix the Receiver's remuneration and the Company will
be obliged to pay to the Investor, acting reasonably, the amount of
such remuneration.
(m) Court-Appointed Receiver. Apply to a court of competent jurisdiction
for the appointment of a Receiver of the Company or of any or all of
the Collateral.
10. APPLICATION OF PROCEEDS. All Proceeds of Collateral received by the Investor
or by a Receiver may be applied to discharge or satisfy expenses (including the
Receiver's remuneration and other reasonable expenses of enforcing the
Investor's rights under the Security Documents) including but not limited to
borrowings, taxes and other outgoings affecting the Collateral or which are
considered advisable by the Investor 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
- 7 -
Security Interests on the Collateral ranking in priority to any of the Security
Interests created by this Agreement, or to sell, lease or otherwise dispose of
the Collateral. The balance of such Proceeds may be held as collateral security
for the Indebtedness or be applied to such of the Indebtedness (whether or not
the same are due and payable) in such manner and at such times as the Investor
considers appropriate and thereafter will be accounted for as required by law.
11. CONTINUING LIABILITY OF COMPANY. The Company will remain liable for any
Indebtedness that are outstanding following realization of all or any part of
the Collateral and the application of the Proceeds thereof.
12. INVESTOR'S APPOINTMENT AS ATTORNEY-IN-FACT. The Company constitutes and
appoints the Investor, and any officer or agent of the Investor, with full power
of substitution, as the Company's true and lawful attorney-in-fact with full
power and authority in the place of the Company and in the name of the Company
or in its own name, from time to time in the Investor's discretion after a
Default and only for so long as such Default is continuing, to take any and all
appropriate action and to execute any and all documents and instruments as, in
the opinion of such attorney acting reasonably, may be necessary or desirable to
accomplish the purposes of this Agreement. These powers are coupled with an
interest and are irrevocable until this Agreement is terminated and the Security
Interests created by this Agreement are released. Nothing in this section
affects the right of the Investor or any other Person, to sign and file or
deliver (as applicable) all such financing statements, financing change
statements, notices, verification agreements and other documents relating to the
Collateral and this Agreement as the Investor or such other Person considers
appropriate, acting reasonably.
13. PERFORMANCE BY INVESTOR OF COMPANY'S OBLIGATIONS. If the Company fails to
perform or comply with any of its obligations under this Agreement, the Investor
may, but need not, perform or otherwise cause the performance or compliance of
such obligation, provided that such performance or compliance will not
constitute a waiver, remedy or satisfaction of such failure. The reasonable
expenses of the Investor incurred in connection with any such performance or
compliance will be payable by the Company to the Investor, any such reasonable
expenses will form part of the Indebtedness and will be secured by the Security
Interests created by this Agreement.
14. RIGHT OF SET-OFF. The Investor may at any time and from time to time after
the occurrence of a Default, upon notice to the Company or any other Person,
set-off, appropriate and apply any and all indebtedness and liabilities of the
Investor to the Company, liquidated, unliquidated, contingent, matured or
unmatured, against and on account of any Indebtedness of any kind whatsoever,
including for greater certainty liquidated, unliquidated, contingent, matured or
unmatured, in such order of application as the Investor shall from time to time
determine.
15. RIGHTS OF INVESTOR AND LIMITATIONS ON INVESTOR'S OBLIGATIONS.
(a) Limitations on Investor's Liability. The Investor will not be liable
to the Company or any other Person for any failure or delay in
exercising any of its rights under this Agreement (including any
failure to take possession of, collect, sell, lease or otherwise
dispose of any Collateral, or to preserve rights against prior
parties). Neither the Investor nor a Receiver (including, in Alberta,
any sheriff) is required to take, or will have any liability for any
failure to take or delay in taking, any steps
- 8 -
necessary or advisable to preserve rights against other Persons under
any Collateral in its possession. Neither the Investor nor any
Receiver will be liable for any, and the Company will bear the full
risk of all, loss or damage to any and all of the Collateral
(including any Collateral in the possession of the Investor or any
Receiver) caused for any reason other than the gross negligence or
wilful misconduct of the Investor or such Receiver.
(b) Company Remains Liable under Accounts and Contracts. Notwithstanding
any provision of this Agreement, the Company will remain liable under
each of the Accounts and Contracts to observe and perform all the
conditions and obligations to be observed and performed by the Company
thereunder, all in accordance with the terms of any agreement giving
rise to each such Account or in accordance with and pursuant to the
terms and provisions of each such Contract. Neither the Investor nor
any Receiver have any obligation or liability under any Account (or
any agreement giving rise thereto) or Contact by reason of or arising
out of this Agreement or the receipt by the Investor of any payment
relating to such Account or Contract pursuant hereto, and in
particular (but without limitation), the Investor will not be
obligated in any manner to perform any of the obligations of the
Company under or pursuant to any Account (or any agreement 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 agreement 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 Investor hereby authorizes
the Company to collect the Accounts and payments under the Contracts
in the normal course of its business and for the purpose of carrying
on the same. All such amounts while held by the Investor and all
income in respect thereof will continue to be collateral security for
the Indebtedness and will not constitute payment thereof until applied
as hereinafter provided. At such intervals as may be agreed upon by
the Company and the Investor, or, if a Default will have occurred and
be continuing at any time or from time to time, the Investor will
apply all or any part of the accounts and payments collected under the
contracts on account of the Indebtedness in such order as the Investor
may elect. At the Investor's request, the Company will deliver to the
Investor any documents evidencing and relating to the agreements and
transactions which gave rise to the Accounts and Contracts, including
all original orders, invoices and shipping receipts.
16. DEALINGS BY INVESTOR. The Investor will not be obliged to exhaust its
recourse against any other Person or against any other Security Interests it may
hold in respect of the Indebtedness before realizing upon or otherwise dealing
with the Collateral in such manner as the Investor may consider desirable. The
Investor may grant extensions of time and other indulgences, take and give up
security, accept compositions, grant releases and discharges and otherwise deal
with any other Person, and with any or all of the Collateral, and with other
security and sureties, as the Investor may see fit, all without prejudice to the
Indebtedness or to the rights and remedies of the Investor under
- 9 -
this Agreement. The powers conferred on the Investor under this Agreement are
solely to protect the respective interests of the Investor in the Collateral and
will not impose any duty upon the Investor to exercise any such powers.
17. ADDITIONAL SECURITY. The Security Interests created by this Agreement are in
addition and without prejudice to any other Security Interests now or later held
by the Investor. No Security Interests held by the Investor will be exclusive of
or dependent upon or merge in any other Security Interests, and the Investor may
exercise its rights under such Security Interests independently or in
combination.
18. RELEASE OF INFORMATION. The Company authorizes the Investor to provide a
copy of this Agreement and such other information as may be requested of the
Investor by Persons entitled thereto pursuant to any applicable legislation.
19. WAIVERS. The Investor may, in whole or in part, waive any breach of any of
the provisions of this agreement by the Company, any default by the Company in
the payment or performance of any of the Indebtedness or any of its rights and
remedies whether provided for hereunder or otherwise provided that no such
waiver shall be considered to have been given unless given expressly by the
Investor to the Company in writing. No waiver given in accordance with this
section shall be a waiver of any other or subsequent breach by the Company of
any of the provisions of this Agreement, of any other or subsequent default by
the Company in the payment or performance of any of the Indebtedness or any of
the other rights and remedies of the Investor whether provided for herein or
otherwise.
20. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable in such Province and will be treated, in all respects, as a contract
of such Province.
21. CONFLICT. To the extent that any term, condition, representation, covenant
or other provision contained in this Agreement conflicts with, any term,
condition, representation, covenant or other provision contained in the Series D
Note, then the relevant term, condition, representation, covenant or other
provision of this Agreement shall govern.
22. INTERPRETATION. The division of this Agreement into sections and paragraphs,
and the insertion of headings, is for convenience of reference only and will not
affect the construction or interpretation of this Agreement. Unless the context
otherwise requires, words importing the singular include the plural and vice
versa, and words importing gender include all genders and neuter. When used in
this Agreement, the word "INCLUDING" (or "INCLUDES") means "INCLUDING (or
"INCLUDES") WITHOUT LIMITATION". Any reference in this Agreement to a "SECTION"
or a "SCHEDULE" means the relevant section or schedule of this Agreement unless
the context specifically provides otherwise.
23. SUCCESSORS AND ASSIGNS. This Agreement will enure to the benefit of, and be
binding on, the Company and its successors and assigns, and will enure to the
benefit of, and be binding on, the Investor and its successors and assigns. The
Company may not assign this Agreement, or any of its rights or obligations under
this Agreement, without the prior written consent of the Investor, which consent
shall not be unreasonably withheld. However, the Investor in its sole
discretion, may
- 10 -
withhold its consent to a proposed assignment by the Company which is reasonably
considered an arbitrary assignment by the Company.
24. ACKNOWLEDGEMENT OF RECEIPT/WAIVER. The Company acknowledges receipt of an
executed copy of this Agreement and, to the extent permitted by applicable law,
waives the right to receive a copy of any financing statement, financing change
statement or verification statement in respect of any registered financing
statement or financing change statement prepared, registered or issued in
connection with this Agreement.
25. SEVERABILITY. Any provision of this Agreement that is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability and will 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.
26. LISTINGS OF COLLATERAL. Any schedules, documents or listings provided to the
Investor which summarize or describe any after acquired Collateral shall form
part of this Agreement.
DATED as of the ___ day of August, 2002.
ADB SYSTEMS INTERNATIONAL INC.
By: __________________________________
Name:
Title:
SCHEDULE "A"
DEFINITIONS
"ACCESSIONS", "ACCOUNT", "CHATTEL PAPER", "CONSUMER GOODS", "DOCUMENT OF TITLE",
"EQUIPMENT", "GOODS", "Instrument", "INTANGIBLE", "INVENTORY", "MONEY", "MOTOR
VEHICLES", "PROCEEDS", "VALUE" and "SECURITIES" have the meanings given to them
in the PPSA.
"AGREEMENT" means this General Security Agreement, as amended, modified,
supplemented, restated and replaced in writing from time to time.
"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 Collateral which are at any time owned by the Company or to
which the Company (or any Person on the Company's behalf) has access.
"BRICK CO-OPERATION AGREEMENT" means the co-operation agreement dated August 23,
2002 between the Company, the Brick Warehouse Corporation and ADB Systems
International Ltd.
"BRICK LOAN AGREEMENT" means the loan agreement dated August 23, 2002 between
the Company, the Brick Warehouse Corporation and ADB Systems International Ltd.
"BUSINESS DAY" means any day other than a Saturday, Sunday, statutory holiday in
Ontario or day on which the main branch of the Company's banking institution in
Toronto is closed for business.
"COLLATERAL" means all of the present and future undertaking, Personal Property
(including any Personal Property that may be described in any Schedule to this
Agreement or any schedules, documents or listings that the Company may from time
to time provide to the Investor in connection with this Agreement) of the
Company (including all such Personal Property at any time owned, leased,
licensed, possessed or acquired by the Company, or in which the Company at any
time has any interest or to which the Company is or may at any time become
entitled), Contracts, Intellectual Property Rights, and all Proceeds thereof, in
any such case wherever located.
"COMPANY" means ADB Systems International Inc.
"CONTRACTS" means all existing and future contracts, licenses and agreements to
which the Company is at any time a party or pursuant to which the Company has at
any time acquired rights, as such contracts, licenses and agreements may from
time to time be amended or restated and includes (i) all rights of the Company
to receive money due and to become due to it in connection with a contract
licence or agreement; (ii) all rights of the Company to damages arising out of,
or for breach or default in respect of, a contract, licence or agreement; and
(iii) all rights of the Company to perform and exercise all remedies in
connection with a contract, licence or agreement.
"DEFAULT" has the meaning ascribed in Section 8 of this Agreement.
2.
"EXCLUDED COLLATERAL" means the last day of the term of any real property lease
and any Intellectual Property Right or Permit where the grant of a Security
Interest therein without consent would result in the breach or termination
thereof, unless such consent is obtained.
"INDEBTEDNESS" means all present and future indebtedness, liabilities and
obligations whether direct or indirect, joint or several, absolute or
contingent, matured or unmatured of the Company to the Investor wherever and
however incurred, including principal, interests, charges, fees, costs and
expenses however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether arising under the Series D Note and/or the Security Documents
or otherwise.
"INTELLECTUAL PROPERTY RIGHTS" means all industrial and intellectual property
rights, including all trade-marks, trade names, corporate names, company names,
business names, logos, websites (including, without limitation, all URLs
(uniform resource locators) and any and all copyrights, software, coding and
codes associated therewith) and other sources of business identifiers, customer
lists, subscriber lists and the goodwill associated therewith, including
registrations, recordings and applications with the Canadian Intellectual
Property Office and any similar government office or agency in other countries,
all copyrights and industrial designs in all works, including all drawings and
computer programs, all patents, proprietary technology, rights to inventions
whether patentable or otherwise, trade secrets, confidential information and
other processes and all registrations, recordings applications for the
foregoing, all licenses currently in force or may in the future be in force
which authorizes the licensee to make, use, offer for sale, sell or advertise
wares or services in connection with issued or pending applications for one or
more patents, trade-marks, industrial designs, or in association with licensed
know-how, trade secrets, confidential information and computer programs, the
right to ▇▇▇ parties for past, present and future infringements or dilution of
Intellectual Property Rights and associated goodwill, all Contracts related to
any such industrial and intellectual property rights including those trade-marks
set out in Schedule "D" and all reissues, continuations or extensions of any of
the foregoing.
"INVESTOR" means Greenwich Growth Fund Ltd.
"PERMITTED SECURITY INTERESTS" means (i) the Security Interests created by the
General Security Agreement granted by the Company in favour of The Brick
Warehouse Corporation, to a maximum amount of CDN$2,000,000, for a non-revolving
loan to the Company by the Brick Warehouse Corporation pursuant to the Loan
Agreement, plus interest and fees, reimbursement obligations and legal expenses,
whether due after acceleration or otherwise; (ii) the Security Interest created
by the General Security Agreement granted by the Company in favour of
▇▇▇▇▇▇▇▇▇▇▇ Limited Partnership; (iii) the Security Interests granted by the
Company to subscribers of the Series D Notes, and for clarification, such
subscribers do not include Greenwich Growth Fund Ltd.; (iv) the Security
Interests set out in Schedule "C" and (v) the security interests granted by the
Company to the parties listed in Schedule "E".
"PERMITS" means all permits, licenses, authorizations, approvals, franchises,
rights-of-way, easements and entitlements that the Company has, requires or is
required to have, to own, possess or operate any of its property or to operate
and carry on any part of its business.
3.
"PERSON" will be broadly interpreted and includes an individual, a corporation,
a limited liability company, a partnership, a trust, a joint venture, an
association, an unincorporated organization, the government of a country or any
political subdivision thereof, any agency or department of any such government,
a regulatory agency or any other entity and the heirs, executors, administrators
or other legal representatives of an individual.
"PERSONAL PROPERTY" means personal property and includes Accounts, Inventory,
Equipment, Books and Records, Chattel Paper, Goods, Documents of Title,
Instruments, Intangibles (including Intellectual Property Rights and Permits),
Money and Securities, and includes all present and future Accessions to any of
the foregoing, but excludes Consumer Goods.
"PPSA" means the Personal Property Security Act of the Province of Ontario, as
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, a receiver and manager or an agent of
the Investor or any Receiver.
"SECURITIES" has the meaning given to it in the PPSA, or if there is no such
meaning given in the PPSA, but the PPSA defines "SECURITY" instead, it means the
plural of that term.
"SECURITY DOCUMENTS" means collectively, this Agreement and all other security
agreements, guarantees, share pledge agreements, and other agreements,
instruments and documents from time to time granted in favour of the Investor as
security for or in support of the obligations of the Company under the Series D
Note and the Subscription Agreement, as amended, modified, supplemented,
restated and replaced in writing from time to time.
"SECURITY INTEREST" means any mortgage, charge, pledge, hypothecation, lien
(statutory or otherwise), assignment, finance lease, title retention agreement
or arrangement, security interest or other encumbrance or adverse claim of any
nature, or any other security agreement or arrangement creating in favour of any
creditor a right in respect of a particular property or asset.
"SERIES D NOTE" means the note in the principal amount of CDN$100,000 issued by
the Company to the Investor;
"SERIES D NOTES" mean all of the Series D notes issued to subscribers in respect
of subsection (iii) of the definition of Permitted Security Interests above;
"SUBSCRIPTION AGREEMENT" means the subscription agreement pursuant to which, the
Investor subscribes for and the Company accepts the subscription for the Series
D Note;
SCHEDULE "B"
CHIEF EXECUTIVE ▇▇▇▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
PRINCIPAL PLACES OF BUSINESS
▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
SCHEDULE "C"
ADDITIONAL PERMITTED SECURITY INTERESTS
"PERMITTED SECURITY INTERESTS" means with respect to any property or asset of
any Person:
(a) Security Interests for provincial or municipal taxes, charges, rates
and assessments not yet due or, if due, the validity of which is being
contested in good faith and Security Interests for the excess of the
amount of any past due taxes for which a final assessment has not been
received over the amount of such taxes as estimated and paid by such
Person;
(b) the Security Interests of any judgment rendered or claim filed against
the Company or its property which it shall be contesting in good faith
and in respect of which there shall have been deposited with an
arms-length Person acceptable to the Investor, acting reasonably,
cash, security or a surety bond satisfactory to such arms-length
Person in an amount sufficient to pay such judgment or claim;
(c) defects or irregularities of title which do not in the aggregate
materially impair the value of the property to which they related or
interfere with the use of the property to which they relate for the
purposes for which it is held by such Person;
(d) pledges or deposits to secure payment of workers' compensation, good
faith deposits in connection with tenders, contracts (other than
contracts for the repayment of moneys borrowed) or leases, deposits to
secure public or statutory obligations, deposits to secure or in lieu
of surety or appeal bonds, and pledges or deposits for similar
purposes in the ordinary course of business;
(e) purchase money security interests; and
(f) any other Security Interests accepted from time to time by the
Investor in writing.
SCHEDULE "D"
INTELLECTUAL PROPERTY RIGHTS
OWNED INTELLECTUAL PROPERTY (Trade-marks only)
COUNTRY TRADE ▇▇▇▇ APP. NO. REG. NO.
------- ---------- -------- --------
Canada BID BUDDY 1,004,968 -
Canada ▇▇▇.▇▇▇ 1,056,622 -
Canada ▇▇▇.▇▇▇ Design 1,056,624 -
Canada CLUB RADD 806,852 -
Canada INTERNET LIQUIDATORS & Design 775,724 TMA454,782
Canada SEARCH BUDDY 1,004,967 TMA540,780
U.S. BID BUDDY 75/648,781 2,302,291
U.S. CLUB R.A.D.D. 76/130,453 -
U.S. SEARCH BUDDY 75/648,783 2,302,292
LEASED INTELLECTUAL PROPERTY (Trade-marks only)
DESCRIPTION OF ▇▇▇▇ REGISTRATION/SERIAL NUMBER
[None - to be confirmed by ▇. ▇▇▇▇▇▇]
SCHEDULE "E"
PPSA Registrations
File Number: 881960004
Registration Number: 20020510181117159588
Debtor Name: ADB Systems International Inc.
Secured Party: Xerox Canada Ltd.
Collateral Classification: Equipment, Other
File Number: 866486169
Registration Number: 20001010181415317449
Debtor Name: ▇▇▇.▇▇▇ Interational Inc.
Secured Party: Hewlett-Packard (Canada) Ltd.
Collateral Classification: Equipment, Other
