JOINDER AND CONFIRMATION OF SECURITY AGREEMENT
EXHIBIT
10.6
JOINDER
AND CONFIRMATION OF SECURITY AGREEMENT
THIS
JOINDER AND CONFIRMATION OF SECURITY AGREEMENT (this
“Joinder”)
is
executed as of December 31, 2005 by Cancable Holding Corp., a Delaware
corporation (“Cancable
Holding”),
Iview
Digital Video Solutions Inc., a Canadian corporation (“Iview”),
Cancable Inc., an Ontario corporation (“Cancable
Canada”)
and
Cancable, Inc., a Nevada corporation (“Cancable
US”,
and
together with Cancable Holding, Iview and Cancable Canada, the “Joining
Parties”),
and
Creative Vistas, Inc., an Arizona corporation (the “Parent”),
Creative Vistas Acquisition Corp. (formerly A.C. Technical Acquisition Corp.),
an Ontario corporation (“Creative
Vistas Acquisition”),
A. C.
Technical Systems Ltd., an Ontario corporation (“A.C.
Ltd.”)
and
Xxxxx X. Xxxxxxx (“Xxxxxxx”,
and
together with Parent, Creative Vistas Acquisition and A.C. Ltd., the
“Original
Credit Parties”)
and
delivered to Laurus Master Fund, Ltd., a Cayman Islands company (the
“Purchaser”).
Except as otherwise defined herein, terms used herein and defined in the
Securities Purchase Agreement (as defined below) shall be used herein as therein
defined.
W
I T N E S S E T H:
WHEREAS,
the
Parent, Creative Vistas Acquisition, A.C. Ltd. and the Purchaser, have entered
into a Security Agreement, dated as of September 30, 2004 (as amended, modified
or supplemented from time to time, the “Security
Agreement”)
providing for the execution of the Ancillary Agreements referred to in the
Security Agreement;
WHEREAS,
the
Parent and the Purchaser have entered into a Securities Purchase Agreement
dated
September 30, 2004 (as amended, modified or supplemented from time to time,
the
“Securities
Purchase Agreement”)
providing for the execution of the Related Agreements;
WHEREAS,
the
Joining Parties are direct or indirect subsidiaries of the Parent and desire,
or
are required pursuant to the provisions of the Security Agreement and the
Securities Purchase Agreement, to become:
| (a) |
a
guarantor under the subsidiary guaranty dated September 30, 2004
given by
each of A.C. Ltd. and Creative Vistas Acquisition in favour of the
Purchaser (the “Subsidiary
Guaranty”);
|
| (b) |
an
assignor under the master security agreement dated September 30,
2004
between the Parent, A.C. Ltd., and Creative Vistas Acquisition and
acknowledged by the Purchaser (the “Master
Security Agreement”);
|
| (c) |
a
pledgor under the share pledge agreement dated September 30, 2004
among
the Purchaser, A.C. Ltd. and Xxxxxxx (the “Share
Pledge Agreement”);
|
| (d) |
a
pledgor under the share pledge agreement dated September 30, 2004
between
the Purchaser and the Parent (the “CV Share
Pledge Agreement”);
and
|
| (e) |
an
eligible subsidiary under the security agreement dated September
30, 2004
between the Purchaser, the Parent, A.C. Ltd. and Creative Vistas
Acquisition (the “Security
Agreement”).
|
NOW,
THEREFORE,
in
consideration of the foregoing and other benefits accruing to the Joining
Parties and the Original Credit Parties, the receipt and sufficiency of which
are hereby acknowledged, the Joining Parties and the Original Credit Parties
hereby make the following representations and warranties to the Purchaser and
hereby covenant and agree with the Purchaser as follows:
NOW,
THEREFORE,
the
Joining Parties agree as follows:
| 1. |
By
this Joinder, the Joining Parties become (i) a guarantor for all
purposes
under the Subsidiary Guaranty, (ii) an assignor for all purposes
under the
Master Security Agreement, (iii) a pledgor for all purposes under
the
Share Pledge Agreement; (iv) a pledgor for all purposes under the
CV Share
Pledge Agreement and (v) an eligible subsidiary under the Security
Agreement.
|
| 2. |
The
Joining Parties agree that, upon their execution hereof, they will
become
Guarantors under and as defined in the Subsidiary Guaranty with respect
to
all Obligations (as defined in the Subsidiary Guaranty), and will
be bound
by all terms, conditions and duties applicable to a Guarantor under
the
Subsidiary Guaranty, the Security Agreement, the Ancillary Agreements
(as
defined in the Security Agreement), the Securities Purchase Agreement
and
the Related Agreements (as defined in the Securities Purchase Agreement).
Without limitation of the foregoing, and in furtherance thereof,
the
Joining Parties unconditionally and irrevocably, guarantee the due
and
punctual payment and performance of all Obligations (on the same
basis as
the other Guarantors under the Subsidiary
Guaranty).
|
| 3. |
The
Joining Parties agree that, upon their execution hereof, they will
become
Pledgors under, and as defined in the Share Pledge Agreement, and
will be
bound by all terms, conditions and duties applicable to a Pledgor
under
the Share Pledge Agreement. Without limitation of the foregoing and
in
furtherance thereof, as security for the due and punctual payment
of the
Indebtedness (as defined in the Share Pledge Agreement), the Joining
Parties hereby pledge, hypothecate, assign, transfer, set over and
deliver
to the Purchaser and grant to the Purchaser a security interest in
all
Collateral (as defined in the Share Pledge Agreement), if any, now
owned
or, to the extent provided in the Share Pledge Agreement, hereafter
acquired by it.
|
| 4. |
The
Joining Parties agree that, upon their execution hereof, they will
become
Pledgors under, and as defined in the CV Share Pledge Agreement,
and will
be bound by all terms, conditions and duties applicable to a Pledgor
under
the CV Share Pledge Agreement. Without limitation of the foregoing
and in
furtherance thereof, as security for the due and punctual payment
of the
Indebtedness (as defined in the CV Share Pledge Agreement), the Joining
Parties hereby pledge, hypothecate, assign, transfer, set over and
deliver
to the Purchaser and grant to the Purchaser a security interest in
all
Collateral (as defined in the CV Share Pledge Agreement), if any,
now
owned or, to the extent provided in the CV Share Pledge Agreement,
hereafter acquired by it.
|
-2-
| 5. |
The
Joining Parties agree that, upon their execution hereof, they will
become
Assignors under, and as defined in, the Master Security Agreement,
and
will be bound by all terms, conditions and duties applicable to an
Assignor under the Master Security Agreement. Without limitation
of the
foregoing and in furtherance thereof, as security for the due and
punctual
payment of the Obligations (as defined in the Master Security Agreement),
the Joining Parties hereby applicable
to an Eligible Subsidiary under the Security Agreement. Without limitation
of the foregoing and in furtherance thereof, as security for the
due and
punctual payment of the Obligations (as defined in the Security
Agreement), the Joining Parties hereby pledge, hypothecate, assign,
transfer, set over and deliver to the Purchaser and grant to the
Purchaser
a security interest in all Collateral (as defined in the Security
Agreement), if any, now owned or, to the extent provided in the Security
Agreement, hereafter acquired by
it.
|
| 6. |
In
connection with the grant by the Joining Parties, pursuant to paragraphs
3,
4
and 5
above, of a security interest in all of their right, title and interest
in
the Collateral (as defined in each of the Master Security Agreement,
the
Security Agreement, the Share Pledge Agreement and the CV Share Pledge
Agreement) in favor of the Purchaser, the Joining Parties (i) agree
to
deliver to the Purchaser, together with the delivery of this Joinder,
each
of the items specified in Section 3 of the Share Pledge Agreement,
(ii)
agree to execute (if necessary) and deliver to the Purchaser such
financing statements, in form acceptable to the Purchaser, as the
Purchaser may request or as are necessary or desirable in the opinion
of
the Purchaser to establish and maintain a valid, enforceable, first
priority perfected security interest in the Collateral (as defined
in each
of the Master Security Agreement, the Security Agreement, the Share
Pledge
Agreement and the CV Share Pledge Agreement) owned by the Joining
Parties,
(iii) authorize the Purchaser to file any such financing statements
without the signature of the Joining Parties where permitted by law
(such
authorization includes a description of the Collateral as “all assets and
all personal property, whether now owned and/or hereafter acquired” of the
Joining Parties all assets and all personal property, whether now
owned
and/or hereafter acquired” (or any substantially similar variation
thereof)) and (iv) agree to execute and deliver to the Purchaser
assignments of United States and Canada trademarks, patents and copyrights
(and the respective applications therefore) to the extent requested
by the
Purchaser.
|
| 7. |
Without
limiting the foregoing, the Joining Parties hereby make and undertake,
as
the case may be, each covenant, representation and warranty made
by, and
as (i) each Guarantor pursuant to the Subsidiary Guaranty, (ii) each
Assignor pursuant to the Master Security Agreement, (iii) each Pledgor
pursuant to the Share Pledge Agreement and the CV Share Pledge Agreement
and (iv) each Eligible Subsidiary pursuant to the Security Agreement,
in
each case as of the date hereof (except to the extent any such
representation or warranty relates solely to an earlier date in which
case
such representation and warranty shall be true and correct as of
such
earlier date), and agree to be bound by all covenants, agreements
and
obligations of a Guarantor, Assignor, Pledgor and Eligible Subsidiary
pursuant to the Subsidiary Guaranty, Master Security Agreement, Share
Pledge Agreement, CV Share Pledge Agreement and the Security Agreement,
respectively, and all other Related Agreements and Ancillary Agreement
to
which they are or become a party.
|
| 8. |
Each
of Schedules of
the Security Agreement is hereby amended by supplementing such Schedule
with the information for the Joining Parties contained on Schedules
attached
hereto as Annex I. Schedule A to the Share Pledge Agreement and Schedule
A
to the CV Share Pledge Agreement are hereby amended by supplementing
such
Schedule with the information for the Joining Parties contained on
Schedule A attached hereto as Annex II. In addition, Schedule A to
the
Master Security Agreement is hereby amended by supplementing such
Schedule
with the information for the Joining Parties contained on Schedule
A
attached hereto as Annex III.
|
-3-
NOW
THEREFORE, the
Original Credit parties agree as follows:
| 9. |
Each
of the Subsidiary Guaranty, Master Security Agreement, Share Pledge
Agreement, CV Share Pledge Agreement, Security Agreement, the Guaranty
dated September 30, 2004 granted by Xxxxxxx in favour of Purchaser
(“the
Xxxxxxx
Guaranty”)
and the Debenture dated September 30, 2004 granted by A.C. Ltd. in
favour
of Purchaser (the “Debenture”
and together with the Subsidiary Guaranty, the Master Security Agreement,
Share Pledge Agreement, CV Share Pledge Agreement Security Agreement,
the
Securities Purchase Agreement, the Related Agreements and the Ancillary
Agreement, the “2004
Documents”)
remain in full force and effect and have not been terminated, discharged
or released.
|
| 10. |
The
Master Security Agreement, Share Pledge Agreement and CV Share Pledge
Agreement constitute legal, valid and binding obligations of each
Original
Credit Party party thereto, enforceable against each Original Credit
Party
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other laws of general application
limiting
the enforceability of creditors’
rights.
|
| 11. |
The
Master Security Agreement, Share Pledge Agreement and CV Share Pledge
Agreement shall continue to constitute valid security for the obligations
of each Original Credit Party to the Purchaser under and pursuant
to the
2004 Documents.
|
| 12. |
This
Joinder shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of
and be
enforceable by each of the parties hereto and its successors and
permitted
assigns, provided,
however,
the Joining Parties may not assign any of their rights, obligations
or
interest hereunder or under the Security Agreement or any Ancillary
Agreement without the prior written consent of the Purchaser or as
otherwise permitted by the Securities Purchase Agreement, Related
Agreements, Security Agreement or any Ancillary Agreement. THIS
JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED
BY
THE LAW OF THE PROVINCE OF ONTARIO.
This Joinder may be executed in any number of counterparts, each
of which
shall be an original, but all of which shall constitute one instrument.
In
the event that any provision of this Joinder shall prove to be invalid
or
unenforceable, such provision shall be deemed to be severable from
the
other provisions of this Joinder which shall remain binding on all
parties
hereto.
|
| 13. |
From
and after the execution and delivery hereof by the parties hereto,
this
Joinder shall constitute a “Related
Agreement”
for all purposes of the Securities Purchase Agreement and the Related
Agreements and an “Ancillary
Agreement”
for all purposes of the Security Agreement and the Ancillary
Agreements.
|
| 14. |
The
effective date of this Joinder is December 31,
2005.
|
-4-
IN
WITNESS WHEREOF,
the
undersigned has caused this Joinder to be duly executed as of the date first
above written.
CANCABLE
HOLDING CORP.
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
Chairman
and CEO
IVIEW
DIGITAL VIDEO SOLUTIONS INC.
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
President
CANCABLE
INC.
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
President
CANCABLE,
INC.
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
President and Secretary
CREATIVE
VISTAS, INC.
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
President
-5-
CREATIVE
VISTAS ACQUISITION CORP.
(formerly
A.C. Technical Acquisition Corp, Inc.)
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
President and Secretary
A.C.
TECHNICAL SYSTEMS LTD.
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
CEO
XXXXX
X. XXXXXXX
By:
/s/
Xxxxx
Xxxxxxx
Name:
Title:
Accepted
and Acknowledged by:
LAURUS
MASTER FUND, LTD.
By:
/s/
Xxxxx
Grin
Name:
Xxxxx Grin
Title:
Director
-6-
