Inventory Security Agreement - Visual Bible International Inc. and Deluxe Media Services Inc., Deluxe Laboratories and Deluxe Toronto Ltd.
INVENTORY SECURITY AGREEMENT
THIS AGREEMENT is made as of the 1st day of March, 2004,
BY:
VISUAL BIBLE INTERNATIONAL, INC., a corporation incorporated under
the laws of Florida and having its chief executive office at 1235
Bay Street, Toronto, Ontario (the "Corporation")
IN FAVOUR OF:
DELUXE MEDIA SERVICES, INC. (formerly Deluxe Video Services, Inc.,
and hereinafter referred to as "Deluxe Media")
- and -
DELUXE LABORATORIES, INC.
("Deluxe Labs")
- and -
DELUXE TORONTO LTD.
("Deluxe Toronto")
RECITALS:
A. WHEREAS the Corporation has entered into:
(i) a fulfillment services agreement dated as of January 9, 2004
with Deluxe Labs (the "Fulfillment Agreement");
(ii) a certain video duplication, dvd replication and distribution
services agreement dated as of August, 2002 with Deluxe Media (the
"Video Agreement"); and
(iii) a film processing agreement dated August 27, 2002 with Deluxe
Labs (the "Deluxe Labs Agreement", and collectively with the
Fulfillment Agreement and the Video Agreement, as each such
agreement may be modified, supplemented or amended from time to
time, the "Deluxe Agreements").
B. AND WHEREAS pursuant to the Deluxe Agreements, the Corporation
has certain Obligations (as defined hereinafter) to each of Deluxe
Labs, Deluxe Media and Deluxe Toronto (collectively, "Deluxe").
C. AND WHEREAS the Corporation is in material default of the terms
of the Deluxe Agreements.
D. AND WHEREAS Deluxe requires that the Corporation enter into this
Agreement as a condition to the continued supply by Deluxe of
products and services essential to the business of the Corporation.
E. AND WHEREAS the Corporation wishes to continue to receive
products and services from Deluxe.
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 Corporation
agrees with Deluxe as follows:
Article 1
INTERPRETATION
1.1 Definitions
In this Agreement:
1.1.1 "A Unit Debenture" means each of the debentures issued by the
Corporation dated December 24, 2002, January 23, 2003, February 6,
2003, March 4, 2003, March 6, 2003 and March 20, 2003, as the same
may be amended, modified or supplemented from time to time;
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 "B Unit Debenture" means each of the debentures issued by the
Corporation dated August 28, 2003, as the same may be amended,
modified or supplemented from time to time;
1.1.5 "Business Day" means any day, other than Saturday, Sunday or
any statutory holiday in the Province of Ontario;
1.1.6 "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;
1.1.7 "Collateral" means the DVD Discs, the Videocassettes, the
Release Prints (as defined in the Labs Agreement) and the Packaging
as produced or manufactured by Deluxe on or after March 1, 2004 for
shipment on or after March 7, 2004 and all Proceeds therefrom;
1.1.8 "Disbursement Agreement" means the agreement to be entered
into between the Corporation, Deluxe, Red Brook Developments Limited
on its own behalf and on behalf of the holders of the A Unit
Debentures and the holders of the B Unit Debentures and the
disbursing agent thereunder or any replacement agreement or
substantially similar agreement entered into by the Corporation;
1.1.9 "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;
1.1.10 "DVD Disc" means a digital versatile disc replicate of a
digital linear tape containing a file or files containing video
data, audio data or computer data, or any combination thereof, that
are already compressed and authored to comply with certain industry
specifications and the master tape input specifications mutually
acceptable to Deluxe and the Corporation, produced by Deluxe
pursuant to the Video Agreement;
1.1.11 "Event of Default" means the first to occur of any of the
following:
1.1.11.1 a default or event of default as defined in the A Unit
Debenture or the B Unit Debenture;
1.1.11.2 the occurrence of an event under section 6 of the Deluxe
Labs Agreement, section 12 of the Video Agreement or section 18 of
the Fulfillment Agreement, entitling Deluxe to terminate the
applicable agreement;
1.1.11.3 a material breach of the representations, warranties,
covenants or obligations contained in this Agreement which the
Corporation has not rectified within 10 Business Days of notice of
the breach given by Deluxe to the Corporation; or
1.1.11.4 a material breach by the Corporation of the covenants or
obligations contained in the Disbursing Agent Agreement which the
Corporation has not rectified within 3 Business Days of the
occurrence of such breach;
1.1.12 "Elements" means all film negatives, master positives, master
video tapes, submaster video tapes, video cassettes, submaster
positives, soundtracks, reversal originals, reversal intermediates,
cuts, trims, positive prints, video dubs, separations, audio tapes,
sprocketed magnetic film, sound track optical negatives, striped
film prints, film prints, digital linear master tapes, digital
versatile disc masters and all video, audio, data and still images
in the form of tapes and/or files and other programming which is to
be converted into digital linear master tapes, all as in the
possession of Deluxe;
1.1.13 "Goods" means tangible personal property other than Chattel
Paper, Documents of Title, Instruments, Money and Securities;
1.1.14 "Instrument" means,
1.1.14.1 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
1.1.14.2 a letter of credit and an advice of credit if the letter or
advice states that it must be surrendered upon claiming payment
thereunder,
but does not include a writing that constitutes part of Chattel
Paper, a Document of Title or a Security;
1.1.15 "Intangible" means all personal property, including choses in
action, that is not Goods, Chattel Paper, Documents of Title,
Instruments, Money or Securities;
1.1.16 "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;
1.1.17 "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;
1.1.18 "Obligations" means amounts owing to Deluxe by the
Corporation for:
1.1.18.1 the Duplication Services, the Packaging Services, the
Distribution Services and the Replication Services (as each term is
defined in the Video Agreement) in accordance with the terms of the
Video Agreement;
1.1.18.2 the processing and furnishing of Release Prints in
accordance with the terms of the Deluxe Labs Agreement; and
1.1.18.3 the Fulfillment Services (as defined in the Fulfillment
Agreement) in accordance with the terms of the Fulfillment Agreement;
only in respect of such services that were provided by Deluxe to the
Corporation in respect of Collateral produced or manufactured by
Deluxe on or after March 1, 2004 for shipment on or after March 7,
2004;
1.1.19 "Packaging" means all graphics, inserts and appropriate
packaging materials specified by the Corporation to be included with
the DVD Discs and Videocassettes as provided by Deluxe pursuant to
the Packaging Services (as defined in the Video Agreement);
1.1.20 "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;
1.1.21 "PPSA" means the Personal Property Security Act (Ontario) as
amended from time to time and any Act substituted therefor and
amendments thereto;
1.1.22 "Proceeds" means identifiable or traceable personal property
in any form derived directly or indirectly from any dealing with
Collateral or the proceeds therefrom, including Accounts, and also
includes any payment representing indemnity or compensation for loss
of or damage to Collateral or proceeds therefrom;
1.1.23 "Purchase-Money Security Interest" means,
1.1.23.1 a security interest taken or reserved in Collateral to
secure payment of all or part of its price, or
1.1.23.2 a security interest taken by a Person who gives Value for
the purpose of enabling the Corporation to acquire rights in or to
Collateral to the extent that the Value is applied to acquire the
rights,
but does not include a transaction of sale by and lease back to the
seller;
1.1.24 "Receiver" means any of a receiver, manager,
receiver-manager and receiver and manager;
1.1.25 "Security" means a document that is,
1.1.25.1 issued in bearer, order or registered form,
1.1.25.2 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,
1.1.25.3 one of a class or series or by its terms is divisible into
a class or series of documents, and
1.1.25.4 evidence of a share, participation or other interest in
property or in an enterprise or is evidence of an obligation of the
issuer,
and includes an uncertificated security within the meaning of Part
VI (Investment Securities) of the Business Corporations Act (Ontario);
1.1.26 "Security Interest" has the meaning attributed to such term
in section 2.1;
1.1.27 "Value" means any consideration sufficient to support a
simple contract and includes an antecedent debt or liability;
1.1.28 "Videocassette" means videotapes on which a VHS duplicate of
a VHS master videotape has been recorded and produced by Deluxe
pursuant to the Video Agreement.
1.2 Headings
The inclusion of headings in this Agreement is for
convenience of reference only and shall not affect the construction
or interpretation hereof.
1.3 References to Articles and Sections
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.
1.4 Currency
Except where otherwise expressly provided, all amounts
in this Agreement are stated and shall be paid in the currency of
the United States of America.
1.5 Gender and Number
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.
1.6 Invalidity of Provisions
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.
1.7 Amendment, Waiver
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.
1.8 Governing Law, Attornment
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 Corporation hereby irrevocably
attorns to the jurisdiction of the courts of Ontario.
Article 2
SECURITY INTEREST
2.1 Creation of Security Interest
The Corporation hereby grants to Deluxe, by way of
security interest, mortgage, pledge, charge, assignment and
hypothec, a security interest (the "Security Interest") in the
Collateral. The Corporation acknowledges that between Deluxe and
the Corporation, the Security Interest shall be a Purchase-Money
Security Interest in the Collateral. Nothing in this Agreement
shall be deemed to modify, replace, restrict or impair any Liens
granted by the Corporation to Deluxe under the Deluxe Agreements,
which Liens are separate from and in addition to the Security
Interest, and nothing in this Agreement shall be deemed or construed
as amending the rights or obligations of Deluxe or the Corporation
with respect to any such Liens.
2.2 Attachment
The attachment of the Security Interest has not been
postponed and the Security Interest shall attach to any particular
Collateral as soon as the Corporation has rights in such Collateral.
Article 3
OBLIGATIONS SECURED
3.1 Obligations Secured
The Security Interest granted hereby secures payment,
performance and satisfaction of the Obligations.
Article 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties
The Corporation represents and warrants, and so long as
this Agreement remains in effect shall be deemed continuously to
represent and warrant, that:
4.1.1 it is duly incorporated and validly existing under the laws of
the State of Florida and has the corporate power and capacity to own
its properties and assets and to carry on its business as presently
carried on by it;
4.1.2 it has the corporate power and capacity to enter into this
Agreement and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
4.1.3 it has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
4.1.4 there is no unanimous shareholder agreement which restricts,
in whole or in part, the powers of the directors of the Corporation
to manage or supervise the business and affairs of the Corporation;
4.1.5 the entering into of this Agreement and the performance by the
Corporation of its obligations hereunder does not and will not
contravene, breach or result in any default under the articles,
by-laws, constating documents or other organizational documents of
the Corporation;
4.1.6 this Agreement constitutes a legal, valid and binding
obligation of the Corporation enforceable against it in accordance
with its terms;
4.1.7 the Corporation does not have or use a French form of name or
a combined English and French form of name; and
4.1.8 the Corporation is the sole owner of all of the Elements
delivered to Deluxe by the Corporation or for the Corporation's
account.
Article 5
CERTAIN AGREEMENTS OF THE CORPORATION
5.1 General Agreements
The Corporation agrees that:
5.1.1 it shall carry on and conduct its business in a proper and
efficient manner and so as to protect and preserve the Collateral
and shall keep, in accordance with generally accepted accounting
principles, consistently applied, proper books of account for its
business and accurate and complete records concerning Collateral;
5.1.2 Subject to the Corporation having knowledge of such locations,
it shall promptly advise Deluxe as to the location of any Collateral;
5.1.3 it shall pay all taxes, rates, levies, assessments and other
charges of every kind which may be lawfully levied, assessed or
imposed against or in respect of it or Collateral as and when the
same become due and payable;
5.1.4 it shall notify Deluxe promptly of:
5.1.4.1 any change in the information contained in this Agreement,
its business or the Collateral;
5.1.4.2 the details of any claims or litigation affecting it or the
Collateral;
5.1.4.3 any loss of or damage to the Collateral;
5.1.4.4 any default by any Person in payment or other performance of
its material obligations with respect to Collateral; and
5.1.4.5 the return to or repossession by it of Collateral;
5.1.5 it shall deliver to Deluxe from time to time promptly upon
request:
5.1.5.1 any Documents of Title, Instruments, Securities and Chattel
Paper constituting, representing or relating to Collateral;
5.1.5.2 all statements of accounts, bills, invoices and books of
account relating to Accounts and all records, ledgers, reports,
correspondence, schedules, documents, statements, lists and other
writings relating to the Collateral for the purpose of inspecting,
auditing or copying the same;
5.1.5.3 all policies and certificates of insurance relating to
Collateral; and
5.1.5.4 such information concerning the Collateral as Deluxe may
reasonably request;
5.1.8 it shall not change its name without giving prior written
notice to Deluxe of the new name and the date upon which such change
of name is to take effect.
5.2 Restrictions on Dealing with Collateral
The Corporation shall not, without the prior consent in
writing of Deluxe, create, assume or suffer to exist any Lien upon
Collateral ranking or purporting to rank in priority to or pari
passu with the Security Interest. 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.
5.3 Verification of Collateral
Deluxe shall have the right at any time and from time to
time to verify the existence and state of Collateral in any manner
Deluxe may consider appropriate and the Corporation agrees to
furnish all assistance and information and to perform all such acts
as Deluxe may reasonably request in connection therewith and for
such purpose to grant to Deluxe or its agents access to all places
where Collateral may be located and to all premises occupied by the
Corporation.
5.4 Expenses
The Corporation shall pay to Deluxe on demand all of
Deluxe'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 Corporation's business for the purpose of
completing, processing or otherwise dealing with Collateral,
collecting the Corporation'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 rate of 10%.
5.5 Further Assurances
The Corporation 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, filing statements under the Uniform Commercial
Code and other registration requirements as Deluxe may from time to
time request to better assure and perfect its security on Collateral.
Article 6
remedies and COLLECTION OF DEBTS
6.1 Events of Default
Within 3 Business Days of the occurrence of an Event of
Default, the Corporation shall advise Deluxe of such occurrence.
Upon the occurrence of any Event of Default, at the option of
Deluxe, all Obligations shall become immediately due and payable.
6.2 Collection of Debts
Immediately after the occurrence of an Event of Default,
Deluxe 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 Deluxe. Subject to the terms of the
Disbursing Agent Agreement, the Corporation acknowledges that any
payments received by the Corporation 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 Corporation in trust, or
as agent in the Province of Quebec, for Deluxe and shall be turned
over to Deluxe upon request.
6.3 Appointment of Receiver
6.3.1 Upon the occurrence of an Event of Default, Deluxe may apply
to a court for the appointment of a Receiver to take possession of
all or such part of the Collateral as Deluxe shall designate, with
such duties, powers and obligations as the court making the
appointment shall confer;
6.3.2 Upon the occurrence of an Event of Default, Deluxe may appoint
by instrument any Person, whether an officer or an employee of
Deluxe 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 Corporation and not of Deluxe, to the extent permitted by
applicable law, for the purpose of (i) carrying on and managing the
business and affairs of the Corporation for the purpose of
completing, processing or otherwise dealing with Collateral, and
(ii) establishing liability for all acts or omissions of the
Receiver while acting as such, and Deluxe shall not be in any way
responsible for any acts or omissions on the part of any such
Receiver, its officers, employees and agents.
6.3.2.1 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 Corporation for the purpose of
completing, processing or otherwise dealing with Collateral 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 Corporation wherein Collateral
may be situate to the exclusion of all others to the extent
permitted by law, including the Corporation, 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 Corporation's business to the extent permitted
herein, or as security for loans or advances to enable it to carry
on the Corporation's business to the extent permitted herein, or
otherwise, as such Receiver shall, in its discretion, determine. In
addition, the Receiver shall have the following rights, powers and
remedies:
6.3.2.2 to make payments to Persons having prior rights or Liens on
Collateral; and
6.3.2.3 to demand, commence, continue or defend proceedings in the
name of Deluxe or of the Receiver or in the name of the Corporation
for the purpose of protecting, seizing, collecting, realizing or
obtaining possession or payment of Collateral and to give effectual
receipts and discharges therefor.
6.3.2.4 Except as may be otherwise directed by Deluxe, 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 Deluxe. Every such Receiver may, in
the discretion of Deluxe, be vested with all or any of the rights
and powers of Deluxe.
6.4 Exercise of Remedies by Lender
Upon the occurrence of an Event of Default, Deluxe may,
either directly or through its agents or nominees, exercise all the
powers and rights available to a Receiver by virtue of section 6.3.
In addition, upon the occurrence of an Event of Default, Deluxe
shall be entitled to complete and ship any existing orders made by
the Corporation pursuant to the Deluxe Agreements, and the Proceeds
therefrom shall be dealt with in accordance with the terms of the
Disbursement Agreement. Further, upon the occurrence of an Event of
Default, Deluxe shall have the right to accept Collateral in
satisfaction of the Obligations by complying with applicable laws
governing the enforcement of this right. In addition to the rights
granted in this Agreement and in any other agreement now or
hereafter in effect between the Corporation and Deluxe and in
addition to any other rights Deluxe may have at law or in equity or
otherwise, Deluxe shall have, both before and after the occurrence
of an Event of Default, all rights and remedies of a secured party
under the PPSA.
6.5 Possession of Collateral
The Corporation acknowledges that Deluxe 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 Corporation
agrees upon request from Deluxe or any such Receiver to assemble and
deliver possession of Collateral at such place or places as directed.
6.6 Remedies Not Exclusive
All rights, powers and remedies of Deluxe 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 Deluxe and any other rights, powers and
remedies of Deluxe however created or arising. No single or partial
exercise by Deluxe of any of the rights, powers and remedies under
this Agreement or under any other security now or hereafter held by
Deluxe 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. Deluxe 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 Deluxe may have
with respect to this Agreement or any other security or at law, in
equity or otherwise. No delay or omission by Deluxe in exercising
any right, power or remedy hereunder or otherwise shall operate as a
waiver thereof or of any other right, power or remedy.
6.7 Corporation Liable for Deficiency
The Corporation shall remain liable to Deluxe for any
deficiency if the proceeds of any sale, lease or disposition of
Collateral received by Deluxe are insufficient to pay the Obligations.
6.8 Exclusion of Liability of Lender and Receiver
Deluxe 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
Collateral, to carry on all or any part of the business of the
Corporation for the purpose of completing, processing or otherwise
dealing with Collateral or to take any steps or proceedings for any
such purposes. Except as may be required by applicable law, neither
Deluxe 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 or Chattel Paper, whether or not in Deluxe's or the
Receiver's possession, and neither Deluxe nor any Receiver appointed
by it shall be liable for failure to do so. Deluxe shall not be
liable to the Corporation for any loss or damage which the
Corporation may hereafter suffer or incur as a result of the
negligence of any Receiver appointed by it in the collection,
enforcement, recovery, receipt, realization or disposition of, or
demand or suit for, Collateral or the enforcement of its rights,
powers or remedies hereunder. Subject to the foregoing, Deluxe
shall use reasonable care in the custody and preservation of
Collateral in its possession.
6.9 Notice of Sale
Unless required by law, neither Deluxe nor any Receiver
appointed by it shall be required to give the Corporation any notice
of any sale, lease or other disposition of Collateral, the date,
time and place of any public sale of Collateral or the date after
which any private disposition of Collateral is to be made.
Article 7
APPLICATION OF PROCEEDS
7.1 Application of Proceeds
The Proceeds arising from the enforcement of the
Security Interest as a result of the possession by Deluxe or the
Receiver of Collateral or from any sale, lease or other disposition
of, or realization of security on, Collateral (except following
acceptance of Collateral in satisfaction of the Obligations) shall
be applied by Deluxe or the Receiver in the following order, except
to the extent otherwise required by law:
7.1.1 first, in payment of Deluxe'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;
7.1.2 second, in payment of amounts paid by Deluxe or the Receiver
pursuant to section 6.3.2.1 and 6.3.2.2.
7.1.3 third, in payment of all money borrowed or advanced by Deluxe
or the Receiver, if any, pursuant to the exercise of the rights,
powers or remedies set out in this Agreement and any interest thereon;
7.1.4 fourth, in payment of the remainder of the Obligations in such
order of application as Deluxe may determine;
7.1.5 fifth, subject to sections 7.2 and 7.3, to any Person who has
a security interest in such Collateral that is subordinate to that
of Deluxe and whose interest,
7.1.5.1 was perfected by possession, the continuance of which was
prevented by Deluxe or the Receiver taking possession of such
Collateral, or
7.1.5.2 was, immediately before the sale, lease or other disposition
by Deluxe or the Receiver, perfected by registration;
7.1.6 sixth, subject to sections 7.2 and 7.3, to any other Person
with an interest in such Proceeds who has delivered a written notice
to Deluxe or the Receiver of the interest before the distribution of
such Proceeds; and
7.1.7 last, subject to sections 7.2 and 7.3, to the Corporation or
any other Person who is known by Deluxe or the Receiver to be an
owner of such Collateral.
7.2 Proof of Interest
Deluxe or the Receiver may require any Person mentioned
in sections 7.1.5, 7.1.6 or 7.1.7 to furnish proof of that Person's
interest, and unless the proof is furnished within ten days after
demand by Deluxe or the Receiver, Deluxe or the Receiver need not
pay over any portion of the Proceeds referred to therein to such
Person.
7.3 Payment Into Court
Where there is a question as to who is entitled to
receive payment under sections 7.1.5, 7.1.6 or 7.1.7, Deluxe or the
Receiver may pay the Proceeds referred to therein into court.
7.4 Monies Actually Received
The Corporation 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, Collateral when
received by Deluxe or the Receiver and such actual Proceeds shall
mean all amounts received in cash by Deluxe or the Receiver upon
such possession, sale, lease or other disposition of, or realization
of security on, Collateral.
Article 8
GENERAL
8.1 Power of Attorney
Effective upon the occurrence of an Event of Default,
the Corporation hereby appoints Deluxe as the Corporation's
attorney, with full power of substitution, in the name and on behalf
of the Corporation, to execute, deliver and do all such acts, deeds,
leases, documents, transfers, demands, conveyances, assignments,
contracts, assurances, consents, financing statements and things as
the Corporation has herein agreed to execute, deliver and do or as
may be required by Deluxe or any Receiver to give effect to this
Agreement or in the exercise of any rights, powers or remedies
hereby conferred on Deluxe, and generally to use the name of the
Corporation in the exercise of all or any of the rights, powers or
remedies hereby conferred on Deluxe. This appointment, coupled with
an interest, shall not be revoked by the insolvency, bankruptcy,
dissolution, liquidation or other termination of the existence of
the Corporation or for any other reason.
8.2 Set-Off
Deluxe may at any time and from time to time, without
notice to the Corporation 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 Corporation
with Deluxe, and any other indebtedness and liability of Deluxe to
the Corporation, matured or unmatured, against and on account of the
Obligations when due, in such order of application as Deluxe may
from time to time determine.
8.3 Dealings with Others
Deluxe 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 Corporation, the Corporations of the Corporation, sureties and
other Persons and with Collateral and other security as Deluxe sees
fit, without prejudice to the liability of the Corporation to Deluxe
or the rights, powers and remedies of Deluxe under this Agreement.
8.4 Perfection of Security
The Corporation authorizes Deluxe to file such financing
statements and other documents and do such acts, matters and things
as Deluxe may consider appropriate to perfect and continue the
Security Interest, to protect and preserve the interest of Deluxe in
Collateral and to realize upon the Security Interest.
8.5 Communication
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 Deluxe,
in the same department noted below. Any notice or other
communication by Deluxe may be given by any one of Deluxe Labs,
Deluxe Media or Deluxe Toronto or any representative on their
behalf. 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:
(a) if to Deluxe:
Deluxe Laboratories, Inc.
1377 N. Serrano Avenue
Hollywood, California
90027-5623
Attention: President
Telephone Number: (323) 466-6325
Telecopier Number: (323) 467-9787
- and -
Deluxe Toronto Ltd.
350 Evans Avenue
Toronto, Ontario
M8Z 1K5
Attention: President
Telephone Number: (416) 205-8037
Telecopier Number: (416) 364-3601
- and -
Deluxe Media Services Inc.
568 Atrium Way
Vernon Hills, Illinois
60061
Attention: President
Telephone Number: (847) 990-4101
Telecopier Number: (847) 549-8286
(b) if to the Corporation:
Visual Bible International, Inc.
1235 Bay Street, Suite 300
Toronto, ON M5B 3K4
Attention: Executive Vice-President and Chief Financial Officer
Telecopier number: 416 323 2334
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.
8.6 Successors and Assigns
This Agreement shall be binding on the Corporation and
its successors and shall enure to the benefit of Deluxe and its
successors and assigns. This Agreement shall be assignable by
Deluxe free of any set-off, counter-claim or equities between the
Corporation and Deluxe, and the Corporation shall not assert against
an assignee of Deluxe any claim or defence that the Corporation has
against Deluxe.
8.7 Copy Received
The Corporation hereby acknowledges receipt of a copy of
this Agreement.
IN WITNESS WHEREOF the Corporation has executed this
Agreement as of this 1st day of March, 2004.
VISUAL BIBLE INTERNATIONAL, INC.
by:
Name:
Title:
by:
Name:
Title: