Security Agreement - Maptuit Corp. and ZixIt Corp.
SECURITY AGREEMENT
Security Agreement dated as of July 11, 2001 made by Maptuit
Corporation (the "CORPORATION") to and in favour of ZixIt Corporation (the
"LENDER").
RECITALS:
(a) The Lender has advanced funds to the Corporation as evidenced
by a convertible promissory note of even date herewith, issued
by the Corporation to and in favour of the Lender (such
promissory note as it may at any time or from time to time be
amended, supplemented, restated or replaced (the "NOTE"); and
(b) The Corporation has agreed to execute and deliver this
security agreement to and in favour of the Lender as security
for the payment and performance of the Corporation's
obligations to the Lender under the Note.
In consideration of the foregoing and other good and valuable
consideration (the receipt and adequacy of which are acknowledged), the
Corporation agrees as follows:
ARTICLE 1
SECURITY
SECTION 1.1 TERMS INCORPORATED BY REFERENCE.
Terms defined in the Personal Property Security Act (Ontario) (the
"PPSA") and used in this security agreement shall have the meanings specified in
the PPSA.
SECTION 1.2 GRANT OF SECURITY.
Subject to Section 1.5, the Corporation grants to the Lender a security
interest (the "SECURITY INTEREST") in all the Corporation's right, title and
interest in and to the property, assets and undertaking of the Corporation now
owned or hereafter acquired (collectively, the "COLLATERAL") including, without
limitation, any and all of the Corporation's:
(a) inventory including goods held for sale, lease or resale,
goods furnished or to be furnished to third parties under
contracts of lease, consignment or service, goods which are
raw materials or work in process, goods used in or procured
for packing and materials used or consumed in the business of
the Corporation;
(b) equipment, machinery, furniture, fixtures, plants, vehicles
and other goods of every kind and description and all licences
and other rights and
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all records, files, charts, plans, drawings, specifications,
manuals and documents relating thereto;
(c) accounts due or accruing due and all agreements, books,
accounts, invoices, letters, documents and papers recording,
evidencing or relating thereto;
(d) money, documents of title, chattel paper, instruments and
securities;
(e) intangibles including all security interests, goodwill, choses
in action and other contractual benefits and all trade marks,
trade mark registrations and pending trade mark applications,
patents and pending patent applications and copyrights and
other intellectual property (collectively, the "INTELLECTUAL
PROPERTY");
(f) substitutions and replacements of and increases, additions
and, where applicable, accessions to the property described in
Section 1.2(a) - Section 1.2(e) inclusive; and
(g) proceeds in any form derived directly or indirectly from any
dealing with all or any part of the property described in
Section 1.2(a) - Section 1.2(f) inclusive of the proceeds of
such proceeds.
SECTION 1.3 OBLIGATIONS SECURED.
(1) The Security Interest secures the payment and performance of all
obligations due from the Corporation to the Lender pursuant to or in
connection with the Note (collectively, and together with the expenses,
costs and charges set out in Section 1.3(2), the "OBLIGATIONS").
(2) All expenses, costs and charges incurred by or on behalf of the Lender
in connection with the enforcement of this security agreement,
including all legal fees, court costs, receiver's or agent's
remuneration and other expenses of taking possession of, repairing,
protecting, insuring, preparing for disposition, realizing, collecting,
selling, transferring, delivering or obtaining payment of the
Collateral or other lawful exercises of the powers conferred by the
Note, and of taking, defending or participating in any action or
proceeding in connection with any of the foregoing matters or otherwise
in connection with the Lender's interest in any Collateral, shall be
added to and form a part of the Obligations.
SECTION 1.4 ATTACHMENT.
The Corporation acknowledges that (i) value has been given, (ii) it has
rights in the Collateral (other than after-acquired Collateral), (iii) it has
not agreed to postpone the time of attachment of the Security Interest, and (iv)
it has received a duplicate original copy of this security agreement.
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SECTION 1.5 SCOPE OF SECURITY INTEREST.
(1) To the extent that the creation of the Security Interest would
constitute a breach or permit the acceleration or termination of any
agreement, right, licence or permit of the Corporation (each, a
"RESTRICTED ASSET"), the Security Interest shall not attach to the
Restricted Asset but the Corporation shall hold its interest in the
Restricted Asset in trust for the Lender, and shall assign such
Restricted Asset to the Lender immediately upon obtaining the consent
of the other party.
(2) Unless and until an Event of Default has occurred and is continuing,
the Corporation may, without the consent of the Lender:
(i) sell, assign, transfer, exchange, lease, consign or
otherwise dispose of Inventory in the ordinary course
of its business;
(ii) sell or otherwise dispose of such part of its
Equipment which is no longer necessary or useful in
connection with its business or which has become worn
out or obsolete or unsuitable for the purpose for
which it was intended; and
(iii) collect Accounts in the ordinary course of its
business.
(3) The grant of the Security Interest in the Intellectual Property shall
not affect in any way the Corporation's rights to commercially exploit
the Intellectual Property, defend it, enforce the Corporation's rights
in it against third parties in any court or claim and be entitled to
receive any damages with respect to any infringement of it.
(4) The Security Interest shall not extend to consumer goods.
(5) The Security Interest shall not extend or apply to the last day of the
term of any lease or sublease or any agreement for a lease or sublease
now held or hereafter acquired by the Corporation in respect of real
property, but the Corporation shall stand possessed of any such last
day upon trust to assign and dispose of it as the Lender may direct.
SECTION 1.6 GRANT OF LICENCE TO USE INTELLECTUAL PROPERTY.
For purposes of enabling the Lender to exercise its rights and remedies
pursuant to Article 2, at such time the Lender shall be lawfully entitled to
exercise its rights and remedies and for no other purpose, the Corporation
grants to the Lender an irrevocable, nonexclusive licence (exercisable without
payment of royalty or other compensation to the Corporation) to use, assign or
sublicense any of the Intellectual Property wherever the same may be located,
including in such licence access to (i) all media in which any of the licensed
items may be recorded or stored, and (ii) all computer programs used for
compilation or print-out.
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SECTION 1.7 CARE AND CUSTODY OF COLLATERAL.
The Lender may, after the Security Interest shall have become
enforceable, (i) notify any person obligated on an account or on chattel paper
or any obligor on an instrument to make payments to the Lender whether or not
the Corporation was previously making collections on such accounts, chattel
paper or instruments, and (ii) assume control of any proceeds arising from the
Collateral.
SECTION 1.8 AMALGAMATION.
The Corporation acknowledges and agrees that if it amalgamates or
merges with or into any other corporation or corporations, then (i) the term
"Corporation" shall extend to and include the continuing corporation from such
amalgamation or merger, and (ii) the Collateral hereby secured and the Security
Interests over the Collateral of the Corporation will extend to and include all
of the property, assets and undertakings of each of the amalgamating or merging
corporations at the time of such amalgamation or merger and any and all
property, assets and undertakings of the continuing corporation from such
amalgamation or merger thereafter owned or acquired by such continuing
corporation.
ARTICLE 2
ENFORCEMENT
SECTION 2.1 ENFORCEMENT.
The Security Interest shall be and become enforceable against the
Corporation upon the occurrence of an Event of Default (as such term is defined
in the Note).
SECTION 2.2 REMEDIES.
(1) Whenever the Security Interest has become enforceable, the Lender may
realize upon the Collateral and enforce its rights by:
(a) entry onto any premises where Collateral consisting of
tangible personal property may be located;
(b) entry into possession of the Collateral by any method
permitted by law;
(c) sale or lease of all or any part of the Collateral;
(d) collection of any proceeds arising in respect of the
Collateral;
(e) collection, realization or sale of, or other dealing with, the
accounts;
(f) appointment by instrument in writing of a receiver (which term
as used in this security agreement includes a receiver and
manager) or agent of all or
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any part of the Collateral and removal or replacement from
time to time of any receiver or agent;
(g) institution of proceedings in any court of competent
jurisdiction for the appointment of a receiver of all or any
part of the Collateral;
(h) institution of proceedings in any court of competent
jurisdiction for sale or foreclosure of all or any part of the
Collateral;
(i) filing of proofs of claim and other documents to establish
claims to the Collateral in any proceeding relating to the
Corporation; and
(j) any other remedy or proceeding authorized or permitted under
the PPSA or otherwise by law or equity.
(2) Such remedies may be exercised from time to time separately or
in combination and are in addition to, and not in substitution
for, any other rights of the Lender however created. The
Lender shall not be bound to exercise any right or remedy, and
the exercise of any rights and remedies shall be without
prejudice to the rights of the Lender in respect of the
Obligations including the right to claim for any deficiency.
SECTION 2.3 ADDITIONAL RIGHTS.
In addition to the remedies set forth in Section 2.2, the Lender may,
whenever the Security Interest has become enforceable:
(a) require the Corporation, at the Corporation's expense, to
assemble the Collateral at a place or places designated by
notice in writing and the Corporation agrees to so assemble
the Collateral;
(b) require the Corporation, by notice in writing, to disclose to
the Lender the location or locations of the Collateral and the
Corporation agrees to make such disclosure when so required;
(c) repair, process, modify, complete or otherwise deal with the
Collateral and prepare for the disposition of the Collateral,
whether on the premises of the Corporation or otherwise;
(d) carry on all or any part of the business of the Corporation
and, to the exclusion of all others including the Corporation,
enter upon, occupy and use all or any of the premises,
buildings, and other property of or used by the Corporation
for such time as the Lender sees fit, free of charge, and the
Lender shall not be liable to the Corporation for any act,
omission or negligence (other than wilful misconduct) in so
doing or for any rent,
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charges, depreciation or damages incurred in connection with
or resulting from such action;
(e) require the Corporation to engage a consultant or consultants
of the Lender's choice, or engage a consultant or consultants
on behalf of the Lender, such consultant to receive the full
cooperation and support of the Corporation and its officers
and employees, including unrestricted access to the premises
and books and records of the Corporation; all reasonable fees
and expenses of any such consultant shall be for the account
of the Corporation and the Corporation hereby authorizes any
such consultant to report directly to the Lender and to
disclose to the Lender any and all information obtained by
such consultant;
(f) borrow for the purpose of carrying on the business of the
Corporation or for the maintenance, preservation or protection
of the Collateral and grant a security interest in the
Collateral, whether or not in priority to the Security
Interest, to secure repayment; and
(g) commence, continue or defend any judicial or administrative
proceedings for the purpose of protecting, seizing,
collecting, realizing or obtaining possession or payment of
the Collateral, and give good and valid receipts and
discharges in respect of the Collateral and compromise or give
time for the payment or performance of all or any part of the
accounts or any other obligation of any third party to the
Corporation.
SECTION 2.4 RECEIVER'S POWERS.
(1) Any receiver appointed by the Lender shall be vested with the rights
and remedies which could have been exercised by the Lender in respect
of the Corporation or the Collateral and such other powers and
discretions as are granted in the instrument of appointment and any
supplemental instruments. The identity of the receiver, its replacement
and its remuneration shall be within the sole and unfettered discretion
of the Lender.
(2) Any receiver appointed by the Lender shall act as agent for the Lender
for the purposes of taking possession of the Collateral, but otherwise
and for all other purposes (except as provided below), as agent for the
Corporation. The receiver may sell, lease, or otherwise dispose of
Collateral as agent for the Corporation or as agent for the Lender as
the Lender may determine in its discretion.
(3) Except where the Lender is not permitted by the provisions of the PPSA
to absolve itself from liability with respect thereto, the Lender, in
appointing or refraining from appointing any receiver, shall not incur
liability to the receiver, the Corporation or otherwise and shall not
be responsible for any misconduct or negligence of the receiver.
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SECTION 2.5 APPOINTMENT OF ATTORNEY.
Effective upon the Security Interest becoming enforceable against the
Corporation, the Corporation irrevocably appoints the Lender (and any of its
officers) as attorney of the Corporation (with full power of substitution) to
do, make and execute, in the name of and on behalf of the Corporation, all such
further acts, documents, matters and things which the Lender may deem necessary
or advisable to accomplish the purposes of this security agreement including the
execution, endorsement and delivery of documents and any notices, receipts,
assignments or verifications of the accounts. All acts of the attorney are
ratified and approved, and the attorney shall not be liable for any act, failure
to act or any other matter or thing, except for its own wilful misconduct.
SECTION 2.6 DEALING WITH THE COLLATERAL.
(1) The Lender shall not be obliged to exhaust its recourse against the
Corporation or any other person or against any other security it may
hold in respect of the Obligations before realizing upon or otherwise
dealing with the Collateral in such manner as the Lender may consider
desirable.
(2) The Lender may grant extensions or other indulgences, take and give up
securities, accept compositions, grant releases and discharges and
otherwise deal with the Corporation and with other persons, sureties or
securities as it may see fit without prejudice to the Obligations, the
liability of the Corporation or the rights of the Lender in respect of
the Collateral.
(3) Except as otherwise provided by law or this security agreement, the
Lender shall not be (i) liable or accountable for any failure to
collect, realize or obtain payment in respect of the Collateral, (ii)
bound to institute proceedings for the purpose of collecting,
enforcing, realizing or obtaining payment of the Collateral or for the
purpose of preserving any rights of any persons in respect of the
Collateral, (iii) responsible for any loss occasioned by any sale or
other dealing with the Collateral or by the retention of or failure to
sell or otherwise deal with the Collateral, or (iv) bound to protect
the Collateral from depreciating in value or becoming worthless.
SECTION 2.7 STANDARDS OF SALE.
Without prejudice to the ability of the Lender to dispose of the
Collateral in any manner which is commercially reasonable, the Corporation
acknowledges that, to the extent permitted by law:
(a) collateral may be disposed of in whole or in part;
(b) collateral may be disposed of by public auction, public tender
or private contract, with or without advertising and without
any other formality;
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(c) any assignee of such Collateral may be a customer of the
Lender;
(d) a disposition of Collateral may be on such terms and
conditions as to credit or otherwise as the Lender, in its
sole discretion, may deem advantageous; and
(e) the Lender may establish an upset or reserve bid or price in
respect of Collateral.
ARTICLE 3
GENERAL
SECTION 3.1 DISCHARGE.
The Security Interest shall be discharged upon, but only upon, full
payment and performance of the Obligations. Upon satisfaction of such conditions
to discharge the Security Interest, and at the request of the Corporation, the
Lender shall execute and deliver to the Corporation such releases and discharges
as the Corporation may reasonably require.
SECTION 3.2 AMENDMENTS, ETC.
No amendment or waiver of any provision of this security agreement, nor
consent to any departure by the Corporation from such provisions, is effective
unless in writing and approved by the Lender. Any amendment, waiver or consent
is effective only in the specific instance and for the specific purpose for
which it was given.
SECTION 3.3 WAIVERS.
No failure on the part of the Lender to exercise, and no delay in
exercising, any right under this security agreement shall operate as a waiver of
such right; nor shall any single or partial exercise of any right under this
security agreement preclude any other or further exercise of such right or the
exercise of any other right.
SECTION 3.4 NO MERGER.
This security agreement shall not operate by way of merger of any of
the Obligations and no judgment recovered by the Lender shall operate by way of
merger of, or in any way affect, the Security Interest, which is in addition to,
and not in substitution for, any other security now or hereafter held by the
Lender in respect of the Obligations.
SECTION 3.5 FURTHER ASSURANCES.
The Corporation shall from time to time, whether before or after the
Security Interest shall have become enforceable, do all acts and things and
execute and deliver all transfers, assignments and instruments as the Lender may
reasonably require for (i) protecting the Collateral, (ii) perfecting the
Security Interest, and (iii) exercising all
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powers, authorities and discretions conferred upon the Lender. The Corporation
shall, from time to time after the Security Interest has become enforceable, do
all acts and things and execute and deliver all transfers, assignments and
instruments as the Lender may require for facilitating the sale or other
disposition of the Collateral in connection with its realization.
SECTION 3.6 SUPPLEMENTAL SECURITY.
This security agreement is in addition and without prejudice to and
supplemental to all other security now held or which may hereafter be held by
the Lender.
SECTION 3.7 NOTICES.
Any notices, directions or other communications provided for in this
security agreement shall be in writing and given in accordance with the
provisions of the Note.
SECTION 3.8 SUCCESSORS AND ASSIGNS.
This security agreement shall be binding upon the Corporation and its
successors, and shall enure to the benefit of the Lender, its successors and
assigns. In the event that the Note is assigned by the Lender, all rights of the
Lender hereunder shall be assignable to such assignee of the Note. In any action
brought by an assignee to enforce any right assigned hereunder, the Corporation
shall not assert against the assignee any claim or defence which the Corporation
now has or hereafter may have against the Lender.
SECTION 3.9 GENDER AND NUMBER.
Any reference in this security agreement to gender shall include all
genders and words importing the singular number only shall include the plural
and vice versa.
SECTION 3.10 HEADINGS, ETC.
The division of this security agreement into Articles and Sections and
the insertion of headings are for convenient reference only and are not to
affect its interpretation.
SECTION 3.11 SEVERABILITY.
If any provision of this security agreement shall be deemed by any
court of competent jurisdiction to be invalid or void, the remaining provisions
shall remain in full force and effect.
SECTION 3.12 GOVERNING LAW.
This security agreement shall be governed by and interpreted and
enforced in accordance with the laws of the Province of Ontario and the laws of
Canada applicable therein.
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SECTION 3.13 CONFLICTS.
To the extent of any inconsistency between this security agreement and
the Note, the Note shall prevail.
IN WITNESS WHEREOF the Corporation has executed this security
agreement.
MAPTUIT CORPORATION
By: /s/ William K. Tapsott
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Authorized Signing Officer