EXHIBIT 4.10
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") made this 14th day of
May, 2004 by and between Greenfield Commercial Credit (Canada) Inc. (referred to
herein as "PURCHASER"), 000-00 Xxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0 and
STEELBANK INC. (referred to herein as "SELLER"), with its principal place of
business at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx X0X 0X0.
WITNESSETH:
WHEREAS, the Seller is, or is about to become obligated to the
Purchaser;
AND WHEREAS, as a condition to entering into the Factoring Agreement
(defined hereinafter), the Purchaser has required that the Seller grant security
interests in the Collateral (defined hereinafter) to the Purchaser as collateral
for the Liabilities as hereinafter defined;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Seller, the parties agree as follows:
1. DEFINITIONS.
"AFFILIATE" shall mean any Person directly or indirectly
controlling, controlled by or under common control with the Seller.
"COLLATERAL" shall have the meaning set forth in paragraph 2 hereof.
"FACTORING AGREEMENT" shall mean the Factoring and Security
Agreement dated the 14th day of May, 2004 between the Seller and the Purchaser
as it may be amended, supplemented, extended or restated from time to time.
"LIABILITIES" shall mean the obligations of the Seller to the
Purchaser arising out of the Factoring Agreement.
"OTHER AGREEMENTS" shall mean all agreements, instruments and
documents, including, without limitation, agreements, guarantees, mortgages,
trust deeds, pledges, powers of attorney, consents, assignments, contracts,
notices, security agreements, leases, financing statements and all other
writings heretofore, now or from time to time hereafter executed by or on behalf
of the Seller or any other Person and delivered to the Purchaser or to any
parent, affiliate or subsidiary of the Purchaser in connection with the
Liabilities or the transactions contemplated hereby.
"PARENT" shall mean any Person now or at any time or times hereafter
owning or controlling (alone or with any other Person) at least a majority of
the issued and outstanding stock of the Seller.
2.
"PERMITTED LIENS" shall mean (i) a security interest in all of the
Collateral in favour of Xxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx and Xxxx Xxxxxxx and
(ii) a security interest in all of the Collateral in favour of Xxxxxx Xxxxxx &
Co., LLC and others, which security interests shall be subordinated to the
security interest in favour of the Purchaser granted under Section 6.1 hereof.
"SUBSIDIARY" shall mean any corporation of which more than fifty
percent (50%) of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time stock of any other class of such corporation shall have or
might have voting power by reason of the happening of any contingency) is at the
time, directly or indirectly, owned by the Seller or by any partnership or joint
venture of which more than fifty percent (50%) of the outstanding equity
interests are at the time, directly or indirectly, owned by the Seller.
Unless otherwise defined in this Agreement, defined terms used
herein shall have the meaning set out in the Factoring Agreement.
2. GRANT OF SECURITY INTEREST TO THE PURCHASER.
As security for the payment or other satisfaction of all of the
Liabilities, the Seller hereby charges, mortgages and assigns to the Purchaser
and grants to the Purchaser a continuing security interest in all of the now
owned or hereafter acquired personal property and fixtures of the Seller,
including the following property of the Seller, whether now or hereafter owned,
existing, acquired or arising and wherever now or hereafter located
(collectively the "Collateral"): (a) all Accounts and all Goods whose sale,
lease or other disposition by the Seller has given rise to Accounts and have
been returned to or repossessed or stopped in transit by the Seller; (b) all
Chattel Paper, Instruments, Documents of Title, Securities, and Intangibles
(including, without limitation, all patents, patent applications, trademarks,
trademark applications, tradenames, trade secrets, goodwill, copyrights,
registrations, licenses, franchises, customer lists, tax refund claims, claims
against carriers and shippers, guarantee claims, contracts rights, security
interests, security deposits and any rights to indemnification); (c) all
Inventory; (d) all Goods (other than Inventory) including, without limitation,
Equipment, vehicles and other rolling stock and fixtures; (e) all Money
(including deposits and cash) and any other personal property of the Seller now
or hereafter in the possession, custody or control of the Purchaser or any agent
or any parent, affiliate or subsidiary of the Purchaser or any participant with
the Purchaser in the loans to the Seller for any purpose (whether for
safekeeping, deposit, collection, custody, pledge, transmission or otherwise);
and (f) all additions and accessions to, substitutions for, and replacements,
products and proceeds of the foregoing property including, without limitation,
proceeds of all insurance policies insuring the foregoing property, and all of
the Seller's books and records relating to any of the foregoing and to Seller's
business. For purposes hereof, "Accounts", "Goods", "Chattel Paper",
Instruments", "Documents of Title", "Securities", "Intangibles", "Inventory",
"Equipment" and "Money" shall have the meanings ascribed to such terms in the
Personal Property Security Act (Ontario).
The last day of any term reserved by any lease, oral or written, or
any agreement therefor, now held or hereafter acquired by the Seller, and
whether falling within the general or particular description of the Collateral,
is hereby and shall be excepted out of the mortgages,
3.
charges and security interests hereby or by any other instrument created, but
the Seller shall stand possessed of the reversion of one day remaining in the
Seller in respect of any such term, for the time being demised, as aforesaid,
upon trust to assign and dispose of the same as any purchaser of such term shall
direct. There shall also be excluded from the security interests granted in this
Agreement any property of the Seller that constitutes consumer goods.
3. PRESERVATION OF COLLATERAL AND PERFECTION OF SECURITY INTERESTS THEREIN.
The Seller shall, at the Purchaser's request, at any time and from
time to time, execute and deliver to the Purchaser such financing statements,
documents and other agreements and instruments (and pay the cost of filing or
recording the same in all public offices deemed necessary or desirable by
Purchaser) and do such other acts and things as the Purchaser may deem necessary
or desirable in order to establish and maintain a valid, attached and perfected
security interest in the Collateral in favour of the Purchaser (free and clear
of all other liens, claims and rights of third parties whatsoever, whether
voluntarily or involuntarily created, except Permitted Liens) to secure payment
of the Obligations, and in order to facilitate the collection of the Collateral.
Seller shall make appropriate entries on its books and records disclosing the
Purchaser's security interests in the Collateral. Following the occurrence of an
Event of Default, upon the Purchaser's request, the Seller shall deliver to
Purchaser any other Collateral in its possession. The Seller irrevocably hereby
makes, constitutes and appoints the Purchaser (and all Persons designated by
Purchaser for that purpose) as the Seller's true and lawful attorney and
agent-in-fact to execute such financing statements, documents and other
agreements and instruments and do such other acts and things as may be necessary
to preserve and perfect the Purchaser's security interest in the Collateral.
4. POSSESSION OF COLLATERAL AND RELATED MATTERS.
Until an Event of Default has occurred, the Seller shall have the
right, except as otherwise provided in this Agreement, in the ordinary course of
the Seller's business, to (a) sell, lease or furnish under contracts of service
any of the Seller's Inventory normally held by the Seller for any such purpose,
and (b) use and consume any raw materials, work in process or other materials
normally held by the Seller for such purpose; provided, however, that a sale in
the ordinary course of business shall not include any transfer or sale in
satisfaction, partial or complete, of a debt owed by the Seller, or a transfer,
sale or other disposition to any Parent, Subsidiary, Affiliate, shareholder,
person in whom the Seller holds any interest or other related party, which is at
a price or on terms more favourable than would be given to an unrelated party.
5. RELEASE OF SECURITY INTEREST.
Upon satisfaction of all the Seller's Liabilities under the
Factoring Agreement, the Seller shall deliver to the Purchaser a release, in the
form of Exhibit A to the Factoring Agreement, of all obligations and liabilities
of the Purchaser and its officers, directors, employees, agents, parents,
subsidiaries and affiliates to the Seller. Upon payment in full of all
Liabilities outstanding under the Factoring Agreement and release of the
Seller's obligations, the Purchaser shall, at the Seller's sole cost and
expense, execute and deliver to the Seller all
4.
termination statements, assignments and other instruments as may be necessary or
proper to release any security interest the Purchaser may have in the Collateral
granted hereby.
6. REMEDIES UPON AN EVENT OF DEFAULT.
(1) Upon the occurrence of an Event of Default under the Factoring
Agreement, all amounts outstanding under the Factoring
Agreement shall immediately and automatically become due and
payable, without notice of any kind. Upon the occurrence of an
Event of Default, the Purchaser may proceed to realize its
security hereunder and to enforce its rights by:
(i) entry;
(ii) the appointment by instrument in writing of a receiver
or receivers of the Collateral or any part thereof
(which receiver or receivers may be any person or
persons, whether an officer or officers or employee or
employees of the Purchaser or not and the Purchaser may
remove any receiver or receivers so appointed and
appoint another or others in his or their stead);
(iii) proceedings in any court of competent jurisdiction for
the appointment of a receiver or receivers or for sale
of the Collateral or any part thereof; or
(iv) any other action, suit, remedy or proceeding authorized
or permitted hereby or by law or by equity.
In addition, the Purchaser may file such proofs of claim and other
documents as may be necessary or advisable in order to have its claim lodged in
any bankruptcy, winding-up or other judicial proceedings relating to the Seller.
Any receiver or receivers so appointed shall have power to, except
as otherwise restricted by applicable law:
(1) take possession of and to use the Collateral of any part
thereof;
(2) carry on the business of the Seller (including, but not
limited to, the taking or defending of any actions or legal
proceedings, and the doing or refraining form doing all other
things as to the receiver may seem necessary or desirable in
connection with the business, operations and affairs of the
Seller);
5.
(3) borrow money required for the maintenance, preservation or
protection of the Collateral or any part thereof or the
carrying on of the business of the Seller;
(4) further charge the Collateral in priority to the security
interests of this Agreement as security for money so borrowed;
and
(5) sell, lease or otherwise dispose of the whole or any part of
the Collateral on such terms and conditions and in such manner
as the receiver shall determine.
The Purchaser shall not be responsible for any actions or errors of
omission by the receiver of receivers in exercising any such powers.
In addition, the Purchaser may enter upon, use, occupy and possess
the Collateral or any part thereof, free from all encumbrances, liens and
charges, except for Permitted Liens, without hindrance, interruption or denial
of the same by Seller or by any other person or persons save only a landlord
pursuant to its rights of reversion under any lease of real property on expiry
of its term, and may lease or sell the whole or any part or parts of the
Collateral. Any sale hereunder may be made by public auction, by public tender
or by private contract, with or without notice and with or without advertising
and without any other formality (except as required by law), all of which are
hereby waived by the Seller. Such sale shall be on such terms and conditions as
to credit or otherwise and as to upset or reserve bid or price as to the
Purchaser in its sole discretion may seem advantageous (except as otherwise
restricted by applicable law). Such sale may take place whether or not the
Purchaser has taken possession of the Collateral.
No remedy for the realization of the security interests granted
herein or for the enforcement of the rights of the Purchaser shall be exclusive
of or dependent on any other such remedy, but any one or more of such remedies
may from time to time be exercised independently or in combination. The term
"receiver" as used in this Agreement includes a receiver and manager.
At the Purchaser's request, the Seller shall, at the Seller's
expense, assemble the Collateral and make it available to Purchaser at one or
more places to be designated by the Purchaser and reasonably convenient to the
Purchaser and the Seller. The Seller recognizes that if the Seller fails to
perform, observe or discharge any of its Liabilities under this Agreement or the
Other Agreements, damages may not provide adequate relief to the Purchaser, and
agrees that the Purchaser shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages. Any notification of intended disposition of any of the Collateral
required by law will be deemed reasonably and properly given if given at least
fifteen (15) calendar days before such disposition. Any proceeds of any
disposition by the Purchaser of any of the Collateral shall be applied by the
Purchaser to the payment of expenses and any borrowings in connection with the
Collateral and its realization including, without limitation, reasonable legal
fees and disbursements (on a solicitor-client basis) (both outside and
in-house), and any balance of such proceeds shall be applied by the Purchaser
toward the payment of such of the Liabilities, and in such order of application,
as the Purchaser may from time to time elect or re-elect.
6.
7. INDEMNIFICATION.
The Seller agrees to defend (with counsel satisfactory to the
Purchaser), protect, indemnify and hold harmless the Purchaser, each affiliate
or subsidiary of the Purchaser, and each of their respective officers,
directors, employees, attorneys and agents (each an "INDEMNIFIED PARTY") from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature (including, without limitation, the disbursements and the reasonable
fees (on a solicitor-client basis) of counsel for each Indemnified Party in
connection with any investigative, administrative or judicial proceeding,
whether or not the Indemnified Party shall be designated a party thereto), which
may be imposed on, incurred by, or asserted against, any Indemnified Party
(whether direct, indirect or consequential and whether based on any federal,
state, provincial or local laws or regulations, including, without limitation,
securities, environmental and commercial laws and regulations, under common law
or in equity, or based on contract or otherwise) in any manner relating to or
arising out of this Agreement or any Other Agreement, or any act, event or
transaction related or attendant thereto; provided, however, that Seller shall
not have any obligation hereunder to any Indemnified Party with respect to
matters caused by or resulting from the willful misconduct, gross negligence or
breach of the terms of this Agreement, the Factoring Agreement or any other
agreement between or among the parties of such Indemnified Party. To the extent
that the undertaking to indemnify set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Seller shall
satisfy such undertaking to the maximum extent permitted by applicable law. Any
liability, obligation, loss, damage, penalty, cost or expense covered by this
indemnity shall be paid to each Indemnified Party on demand, and, failing prompt
payment, shall, together with interest thereon at the highest rate then
applicable in respect of Seller's credit facilities with Purchaser from the date
incurred by each Indemnified Party until paid by Seller, be added to the
Liabilities of Seller and be secured by the Collateral. The provisions of this
paragraph 7 shall survive the satisfaction and payment of the other Liabilities
and the termination of this Agreement.
8. RIGHTS OF THE SECURED PARTY.
The Purchaser may pay and satisfy the whole or any part of any
liens, taxes, rates, charges or encumbrances now or hereafter existing in
respect of any of the Collateral and such payments together with all costs,
charges and expenses which may be incurred in connection with making such
payments shall form part of the Liabilities and shall be secured by the security
interests granted herein. In the event of the Purchaser satisfying any such
lien, charge or encumbrance, it shall be entitled to all the equities and
securities of the person or persons so paid and are hereby authorized to obtain
any discharge thereof and hold such discharge without registration for so long
as it may deem advisable to do so.
The Purchaser, without exonerating in whole or in part the Seller,
may grant time, renewals, extensions, indulgences, releases and discharges to,
may take securities from and give the same and any or all existing securities up
to, may abstain from taking securities from or from
7.
perfecting securities of, may accept compositions from, and may otherwise deal
with the Seller and all other persons and securities as the Purchaser may see
fit.
Nothing herein shall obligate the Purchaser to extend or amend any
credit to the Seller or to any other Person.
9. NOTICE.
All written notices and other written communications with respect to
this Agreement shall be sent by ordinary or registered mail, by telecopy or
delivered in person, and in the case of the Purchaser shall be sent to it at the
address on the first page hereof and if by telecopy, to telecopy number
(000)-000-0000, with a copy to telecopy number (000)-000-0000, attention Credit
Manager, and in the case of the Seller shall be sent to it at its principal
place of business set forth on the first page of this Agreement (if by telecopy
to telecopy number 000-000-0000. The notice or other communication so sent shall
be deemed to be received on the day of personal delivery or telecopy.
10. CHOICE OF GOVERNING LAW; CONSTRUCTION; FORUM SELECTION.
THIS AGREEMENT AND THE OTHER AGREEMENTS SHALL BE GOVERNED AND
CONTROLLED BY THE LAWS OF THE PROVINCE OF ONTARIO AND THE LAWS OF CANADA
APPLICABLE THEREIN AS TO INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION,
EFFECT, AND IN ALL OTHER RESPECTS, INCLUDING, WITHOUT LIMITATION, THE LEGALITY
OF THE INTEREST RATE AND OTHER CHARGES, BUT EXCLUDING PERFECTION OF THE SECURITY
INTERESTS IN THE COLLATERAL, WHICH SHALL BE GOVERNED AND CONTROLLED BY THE LAWS
OF THE RELEVANT JURISDICTION. If any provision of this Agreement shall be held
to be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or remaining provisions of this
Agreement.
To induce the Purchaser to accept this Agreement, the Seller
irrevocably agrees that, subject to the Purchaser's sole and absolute election,
ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM
OR RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE COLLATERAL SHALL BE
LITIGATED IN COURTS HAVING SITUS WITHIN XXX XXXX XX XXXXXXX, XXXXXXXX XX
XXXXXXX. THE SELLER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
LOCAL, PROVINCIAL OR FEDERAL COURTS LOCATED WITHIN SAID CITY AND PROVINCE. THE
SELLER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF
ANY LITIGATION BROUGHT AGAINST THE SELLER BY THE PURCHASER IN ACCORDANCE WITH
THIS PARAGRAPH.
11. MODIFICATION AND BENEFIT OF AGREEMENT.
This Agreement and the Other Agreements may not be modified, altered
or amended except by an agreement in writing signed by the Seller and the
Purchaser. The Seller
8.
may not sell, assign or transfer this Agreement, or the Other Agreements or any
portion thereof, including, without limitation, the Seller's right, title,
interest, remedies, powers or duties thereunder. The Seller hereby consents to
the Purchaser's sale, assignment, transfer or other disposition, at any time and
from time to time hereafter, of this Agreement, or the Other Agreements, or of
any portion thereof, or participation therein, including, without limitation,
the Purchaser's right, title, interest, remedies, powers and/or duties and
agrees that it shall execute and deliver such documents as Purchaser may request
in connection with any such sale, assignment, transfer or other disposition.
12. HEADINGS OF SUBDIVISIONS.
The headings of subdivisions in this Agreement are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of this Agreement.
13. POWER OF ATTORNEY.
The Seller acknowledges and agrees that its appointment of the
Purchaser as its attorney and agent-in-fact for the purposes specified in this
Agreement is an appointment coupled with an interest and shall be irrevocable
until all of the Liabilities are paid in full and this Agreement is terminated.
14. WAIVER OF JURY TRIAL; OTHER WAIVERS.
(1) THE PURCHASER AND THE SELLER HEREBY WAIVE ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, ANY OF THE OTHER AGREEMENTS, THE
LIABILITIES, THE COLLATERAL, ANY ALLEGED TORTIOUS CONDUCT BY
THE SELLER OR THE PURCHASER OR WHICH, IN ANY WAY, DIRECTLY OR
INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP
BETWEEN THE SELLER AND THE PURCHASER. IN NO EVENT SHALL THE
PURCHASER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL OR
CONSEQUENTIAL DAMAGES.
(2) The Seller hereby waives demand, presentment, protest and
notice of nonpayment, and further waives the benefit of all
valuation, appraisal and exemption laws.
(3) EXCEPT AS OTHERWISE RESTRICTED BY LAW, THE SELLER HEREBY
WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY THE PURCHASER OF ITS RIGHTS TO REPOSSESS THE
COLLATERAL OF THE SELLER WITHOUT JUDICIAL PROCESS OR TO
REPLEVY, ATTACH OR LEVY UPON SUCH COLLATERAL WITHOUT PRIOR
NOTICE OR HEARING.
9.
(4) The Purchaser's failure, at any time or times hereafter, to
require strict performance by the Seller of any provision of
this Agreement or any of the Other Agreements shall not waive,
affect or diminish any right of the Purchaser thereafter to
demand strict compliance and performance therewith. Any
suspension or waiver by the Purchaser of an Event of Default
under this Agreement or any default under any of the Other
Agreements shall not suspend, waive or affect any other Event
of Default under this Agreement or any other default under any
of the Other Agreements, whether the same is prior or
subsequent thereto and whether of the same or of a different
kind or character. No delay on the part of the Purchaser in
the exercise of any right or remedy under this Agreement or
any Other Agreement shall preclude other or further exercise
thereof or the exercise of any right or remedy. None of the
undertakings, agreements, warranties, covenants and
representations of the Seller contained in this Agreement or
any of the Other Agreements and no Event of Default under this
Agreement or default under any of the Other Agreements shall
be deemed to have been suspended or waived by the Purchaser
unless such suspension or waiver is in writing, signed by a
duly authorized officer of the Purchaser and directed to the
Seller specifying such suspension or waiver.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date set out on the first page hereof.
GREENFIELD COMMERCIAL CREDIT
(CANADA), INC.
By /s/ H. Xxxxx Xxxxx
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Name: H. Xxxxx Xxxxx
Title: Chief Financial Officer
STEELBANK INC.
By /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx (without personal
Title: President liability whatsoever)
