JOINDER AND CONFIRMATION OF SECURITY AGREEMENT
JOINDER
AND CONFIRMATION OF SECURITY AGREEMENT
THIS
JOINDER AND CONFIRMATION OF SECURITY AGREEMENT (this
“Joinder”)
is
executed as of February 13,
2006 by
Iview Holding Corp., a Delaware corporation (“Iview
Holding”)
(the
“Joining
Party”)
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.”),
Cancable Holding Corp., a Delaware corporation (“Cancable
Holding”),
Iview
Digital Video Solutions Inc., a federal Canadian corporation (“Iview”),
Cancable Inc., an Ontario corporation (“Cancable
Canada”),
and
Cancable, Inc., a Nevada corporation (“Cancable
U.S.”
and
together with Parent, Creative Vistas Acquisition, A.C. Ltd., Cancable Holding,
Iview, Cancable Canada and Cancable U.S., 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 2005
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 and the Purchaser have entered into a Securities Purchase Agreement
dated
September 30, 2004 (as amended, modified or supplemented from time to time,
the
“2004
Securities Purchase Agreement”)
providing for the execution of the Related Agreements (as defined in the 2004
Securities Purchase Agreement);
WHEREAS,
Cancable Canada, Cancable Holding and the Purchaser have entered into a
Securities Purchase Agreement dated December 31, 2005 (as amended, modified
or
supplemented from time to time, the “2005
Securities Purchase Agreement”)
providing for the execution of the Related Agreements (as defined in the 2005
Securities Purchase Agreement);
WHEREAS,
Iview,
Parent, Iview Holding and the Purchaser have entered into a Securities Purchase
Agreement dated February 13, 2006 (as amended, modified or supplemented from
time to time, the “2006
Securities Purchase Agreement”)
providing for the execution of the Related Agreements;
WHEREAS,
each of
Parent, A.C. Ltd., Creative Vistas Acquisition, Cancable Holding, Iview,
Cancable Canada, Cancable US, Xxxxxxx and the Joining Party have given an
amended and restated guarantee dated February 13,
2006 in
favour of Purchaser (the “2006
Guarantee”
and
together with the 2006 Securities Purchase Agreement, the “2006
Documents”);
WHEREAS,
the
Joining Party is a direct subsidiary of the Parent and desires, or is required
pursuant to the provisions of the 2005 Securities Purchase Agreement and the
2006 Securities Purchase Agreement to become:
| (a) |
an
assignor under the master security agreement dated September 30,
2004
between the Parent, A.C. Ltd., A.C. Technical Acquisition Corp. (now
Creative Vistas Acquisition), Cancable Holding, Iview, Cancable Canada
and
Cancable US in favour of Purchaser (the “2004
Master Security Agreement”);
|
| (b) |
a
pledgor under the share pledge agreement dated September 30, 2004
among
the Purchaser, A.C. Ltd., Xxxxxxx, X.X. Technical Acquisition Corp.
(now
Creative Vistas Acquisition), Cancable Holding, Iview, Cancable Canada
and
Cancable US (the “2004 Share
Pledge Agreement”);
|
| (c) |
a
pledgor under the share pledge agreement dated September 30, 2004
between
the Purchaser and the Parent (the “CV Share
Pledge Agreement”);
|
| (d) |
an
assignor under master security agreement dated December 31, 2005
between
Parent, A.C. Ltd., Creative Vistas Acquisition, Cancable Holding,
Iview,
Cancable Canada and Cancable US in favour of Purchaser (the “2005
Master Security Agreement”);
|
| (e) |
a
pledgor under the share pledge agreement dated December 31, 2005
among the
Parent, Creative Vistas Acquisition, Cancable Holding, Iview, Cancable
Canada, Cancable US and the Purchaser (the “2005
Share Pledge Agreement”).
|
NOW,
THEREFORE,
in
consideration of the foregoing and other benefits accruing to the Joining Party
and the Original Credit Parties, the receipt and sufficiency of which are hereby
acknowledged, the Joining Party 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 Party agrees as follows:
| 1. |
By
this Joinder, the Joining Party becomes (i) an assignor for all purposes
under the 2004 Master Security Agreement, (ii) a pledgor for all
purposes
under the 2004 Share Pledge Agreement; (iii) a pledgor for all purposes
under the CV Share Pledge Agreement; (iv) an assignor for all purposes
under the 2005 Master Security Agreement; and (v) a pledgor for all
purposes under the 2005 Share Pledge
Agreement.
|
| 2. |
The
Joining Party agrees that, upon its execution hereof, it will become
an
Assignor under, and as defined in, the 2004 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 2004 Master Security
Agreement), the Joining Party hereby pledges, hypothecates, assigns,
transfers and sets over and delivers to the Purchaser and grants
to the
Purchaser a security interest in the Collateral (as defined in the
2004
Master Security Agreement) if
any, now owned or, to the extent provided in the 2004 Master Security
Agreement, hereafter acquired by
it.
|
| 3. |
The
Joining Party agrees that, upon its execution hereof, it will become
a
Pledgor under, and as defined in the 2004 Share Pledge Agreement,
and will
be bound by all terms, conditions and duties applicable to a Pledgor
under
the 2004 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 2004 Share Pledge Agreement),
the
Joining Party hereby pledges, hypothecates, assigns, transfers, sets
over
and delivers to the Purchaser and grants to the Purchaser a security
interest in all Collateral (as defined in the 2004 Share Pledge
Agreement), if any, now owned or, to the extent provided in the 2004
Share
Pledge Agreement, hereafter acquired by
it.
|
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| 4. |
The
Joining Party agrees that, upon its execution hereof, it will become
a
Pledgor 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
Party hereby pledges, hypothecates, assigns, transfers, sets over
and
delivers to the Purchaser and grants 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.
|
| 5. |
The
Joining Party agrees that, upon its execution hereof, it will become
an
Assignor under, and as defined in, the 2005 Master Security Agreement,
and
will be bound by all terms, conditions and duties applicable to an
Assignor under the 2005 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 2005 Master
Security Agreement), the Joining Party hereby pledges, hypothecates,
assigns, transfers and sets over and delivers to the Purchaser and
grants
to the Purchaser a security interest in the Collateral (as defined
in the
2005 Master Security Agreement) if any, now owned or, to the extent
provided in the 2005 Master Security Agreement, hereafter acquired
by
it.
|
| 6. |
The
Joining Party agrees that, upon its execution hereof, it will become
a
Pledgor under, and as defined in the 2005 Share Pledge Agreement,
and will
be bound by all terms, conditions and duties applicable to a Pledgor
under
the 2005 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 2005 Share Pledge Agreement),
the
Joining Party hereby pledges, hypothecates, assigns, transfers, sets
over
and delivers to the Purchaser and grants to the Purchaser a security
interest in all Collateral (as defined in the 2005 Share Pledge
Agreement), if any, now owned or, to the extent provided in the 2005
Share
Pledge Agreement, hereafter acquired by
it.
|
| 7. |
In
connection with the grant by the Joining Party, pursuant to paragraphs
2,
3,
4,
5
and 6
above, of a security interest in all of its right, title and interest
in
the Collateral (as defined in each of the 2004 Master Security Agreement,
the 2004 Share Pledge Agreement, the CV Share Pledge Agreement, the
2005
Master Security Agreement, and the 2005 Share Pledge Agreement) in
favor
of the Purchaser, the Joining Party (i) agrees to deliver to the
Purchaser, together with the delivery of this Joinder, each of the
items
specified in Section 3 of the 2004 Share Pledge Agreement, Section
3 of
the CV Share Pledge Agreement and Section 3 of the 2005 Share Pledge
Agreement, (ii) agrees 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 2004 Master Security Agreement, the 2004 Share Pledge
Agreement, the CV Share Pledge Agreement, the 2005 Master Security
Agreement, and the 2005 Share Pledge Agreement) owned by the Joining
Party, (iii) authorizes the Purchaser to file any such financing
statements without the signature of the Joining Party 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 Party all assets and all personal property,
whether now owned and/or hereafter acquired” (or any substantially similar
variation thereof)) and (iv) agrees 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.
|
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| 8. |
Without
limiting the foregoing, the Joining Party hereby makes and undertakes,
as
the case may be, each covenant, representation and warranty made
by, and
as (i) each Assignor pursuant to the 2004 Master Security Agreement
and
the 2005 Master Security Agreement, and (ii) each Pledgor pursuant
to the
2004 Share Pledge Agreement, the CV Share Pledge Agreement and the
2005
Share Pledge 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 agrees to be bound by all covenants,
agreements and obligations of an Assignor, and a Pledgor pursuant
to (i)
the 2004 Master Security Agreement, and the 2005 Master Security
Agreement, and (ii) the 2004 Share Pledge Agreement, the CV Share
Pledge
Agreement and the 2005 Share Pledge Agreement, respectively, and
all other
Related Agreements to which it is or becomes a
party.
|
| 9. |
Schedule
A to the Share Pledge Agreement, Schedule A to the CV Share Pledge
Agreement and Schedule A of the 2005 Share Pledge Agreement are hereby
amended by supplementing such Schedule with the information for the
Joining Party contained on Schedule A attached hereto as Annex I.
In
addition, Schedule A to the 2004 Master Security Agreement and Schedule
A
to the 2005 Master Security Agreement is hereby amended by supplementing
such Schedule with the information for the Joining Party contained
on
Schedule A attached hereto as Annex
II.
|
NOW
THEREFORE, the
Original Credit parties agree as follows:
| 10. |
Each
of the 2004 Master Security Agreement, 2004 Share Pledge Agreement,
CV
Share Pledge Agreement, and the Debenture dated September 30, 2004
granted
by A.C. Ltd. in favour of the Purchaser (the “2004
Debenture”
and together with the 2004 Master Security Agreement, the 2004 Share
Pledge Agreement, the CV Share Pledge Agreement, and the Related
Agreements (as defined in the 2004 Securities and Purchase Agreement),
the
“2004
Documents”)
remain in full force and effect and have not been terminated, discharged
or released.
|
| 11. |
Each
of the 2005 Master Security Agreement, the 2005 Share Pledge Agreement,
the 2005 Securities and Purchase Agreement, the Debenture dated
December 31, 2005 granted by Cancable Canada in favour of the
Purchaser (the “2005
Debenture”)
and the Confirmation of Security and Joinder Agreement dated
December 31, 2005 executed by Cancable Holding, Iview, Cancable USA,
Cancable Canada, the Parent, Creative Vistas Acquisition, A.C. Ltd.,
and
the Purchaser (the “2005
Confirmation and Joinder”
and together with the 2005 Master Security Agreement, the 2005 Share
Pledge Agreement, the 2005 Securities Purchase Agreement, the 2005
Debenture, and the Related Agreements (as defined in the 2005 Securities
Purchase Agreement), the “2005
Documents”)
remain in full force and effect and have not been terminated, discharged
or released.
|
-
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| 12. |
The
2004 Master Security Agreement, the 2004 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.
|
| 13. |
The
2005 Master Security Agreement and 2005 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.
|
| 14. |
The
2004 Master Security Agreement, 2004 Share Pledge Agreement, CV Share
Pledge Agreement and 2004 Debenture shall continue to constitute
valid
security for the obligations of each Original Credit Party and the
Joining
Party to the Purchaser under and pursuant to the 2004 Documents and
shall
constitute valid security for the obligations of each Original Credit
Party and the Joining Party to the Purchaser under and pursuant to
the
2005 Documents and the 2006
Documents.
|
| 15. |
The
2005 Master Security Agreement, 2005 Share Pledge Agreement and the
2005
Debenture shall continue to constitute valid security for the obligations
of each Original Credit Party and the Joining Party to the Purchaser
under
and pursuant to the 2005 Documents and shall constitute valid security
for
the obligations of each Original Credit Party and the Joining Party
pursuant to the 2006 Documents.
|
| 16. |
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 Party may not assign any of its rights, obligations or
interest hereunder or under the 2005 Securities Purchase Agreement
or any
Related Agreement (as defined in the 2005 Securities Purchase Agreement)
without the prior written consent of the Purchaser or as otherwise
permitted by the 2005 Securities Purchase Agreement, or any Related
Agreements (as defined in the 2005 Securities Purchase 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.
|
| 17. |
From
and after the execution and delivery hereof by the parties hereto,
this
Joinder shall constitute a “Related
Agreement”
for all purposes of the 2005 Securities Purchase Agreement and the
2006
Securities Purchase Agreement.
|
| 18. |
The
effective date of this Joinder is February 13,
2006.
|
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5 -
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/
XXXXXXX XXXXX
|
|||
|
Name:
Xxxxxxx Xxxxx
Title:
President
|
||||
|
IVIEW
DIGITAL VIDEO SOLUTIONS INC.
|
||||
|
By:
|
/s/
XXXXX XXXXXXXXXX
|
|||
|
Name:
Xxxxx Xxxxxxxxxx
Title:
President
|
||||
|
CANCABLE
INC.
|
||||
|
By:
|
/s/
HEUNG XXXX XXX
|
|||
|
Name:
Heung Xxxx Xxx
Title:
Secretary
|
||||
|
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
|
||||
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6 -
|
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/
XXXXXXX XXXXX
|
|||
|
Name:
Xxxxxxx Xxxxx
Title:
President and Secretary
|
||||
|
IVIEW
HOLDING CORP.
|
||||
|
By:
|
/s/
XXXXXXX XXXXX
|
|||
|
Name:
Xxxxxxx Xxxxx
Title:
President
|
||||
Accepted
and Acknowledged by:
|
LAURUS
MASTER FUND, LTD.
|
||
|
By:
|
/s/
XXXXXX GRIN
|
|
|
Name:
Xxxxxx Grin
Title:
Director
|
||
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7 -
ANNEX
I
ANNEX
II
