EXCEPTIONS TO REPRESENTATIONS
1. | NONE. (There are no Permitted Liens as that term is defined below or as referred in the Security Agreement to which this Exhibit A is attached.) |
All of the above exceptions to representations on this Exhibit A shall be collectively referred to and defined as the“Permitted Liens” and individually as a “Permitted Lien”.
2. | Each Permitted Lien has priority over the security interest granted to the Secured Parties named in the current Security Agreement |
The Company may not, after the date hereof, grant a security interest in the Collateral, even if such interest is junior in all respects to the securityinterest of the Secured Party. Exhibit A - Page 1
EXHIBIT B
ADDITIONAL INFORMATION RE COLLATERAL, ETC.
Collateral, except Intellectual Property – SeeExhibit C.
“Software” includes, but is not limited to:
Trial Master, version 3.0
Trial Master, version 4.0
Additional Representations and Warranties – None. Other Addresses – None.
OMNICOMM SYSTEMS, INC.
Fixed Assets
July 31, 2009
1 of 2 Cubicle Installments 10 Trackit LicenseUpgrades
19 RAM Memories to upgrade Laptops
2 HP 10k Servers and 1 HP 15k Server for UAT
2 HP 4GB Fully Buffered Dimm
2 HP 8GB Fully Buffered Dimm 2 HP Cpe 4Y ProLiantDL 380
2 HP CPe 4Y ProLiant DL 380
2 HP Workstations
2 of 2 Cubicle Installments
2 ProLiant DL 380 G5 Servers
21 Monitors ViewSonic
269-04180 MS Office Windows XP/2000 Freight and MSDN 2 Year Subscription 286713-B22 Compaq 36.4GB U3 SCSI HS HDD for Compaq Server
3 HP Computers (Credit)
300679B21 Compaq 1GB Mem Upgrade PC2100 DDR-M for Compaq Server 333714B21 Xeon 3.2g IM Processor Kit for Compaq Server
33705-001 Compaq Proliant 3.2GHZ Server
4 Batteries and Memories for IBM / Credit Reimbursement for Stolen Laptop
4 Hard Drives
4 HP DX2000 Desktop PC’s
4 IBM Laptops for Sales Staff with Extended Warranty 4 Kingston Memories for HP/Compact
A/C Unit in Server Room
Exhibit B - Page 3
Abacus - e-mail migration software and antivirus
Abacus Computer (Directory cleanup & rix replication) Access Control System for First Floor Office
Accrued Computer Expenses (2007)
Active PDF Software Adobe Captivate 4
ANTS Load Professional Officer
Avirom & Associates Inc.
Blueprint-1st Year Maintenance & Support
BMC Service Desk Express Cabling for First FloorOffice
Cat5e Cabling in New Office
Center Analyst Edition Concurrent User License
Center Nalysis Edition Seat License
Changes on Audit Files Circuit Installation
CISCO-AC Power Cord for Server
Cleaning of Telephone Systems and Installation of Backbone Cables
Collabnet Software (License Fee and Support)
Collabnet-SFEE Installation Compaq Memory Upgrade
Compaq Power Supply DL 380G3 for Compaq Server
Computer & Equipment
Computer Hardware and Servers
Computer Parts Computer with Software
Computer with Software
Computer/Software
Computers
Computers
Computers Computers
Computers and Equipment Computers and Equipment
Computers and Hardware
Computersand Software
Computers with Software
Configurable HP ProLiant DL365 Server/HP Care Pack/2 HP 146 GB
Construction at New Office
Consulting and Product Integration Services. Sync/Smart into TrialMaster Crystall Ball Professional Version 7. Intro. & Advanced Training Software
Exhibit B - Page 4
Data Export Module (Theradex)
Data Phone Wire and Cable
Dell Laptop - Lattitude D620
Dell Laptop - Lattitude D620 Dell Lattitude D 620
Dell Monitors
Dell Poweredge 1855Xeon 800
Dell Poweredge 1855 Xeon 800
Demo Server
Design Model for Theradex
Design of new Website
Desk Express Maintenance
Development Hardware Upgrades Digital Certificatefo Exchange Server SSL
Disconnect Electricity at Old Office and Reconnect at New Office
Ecost Credit E-Cost; Hard Drive for Ken Light andDelia Parman
Electrical Services as per Proposal # 13783
E-mail Support dor 1 Developer
Engineering Drawings-Area Billing
Equity Focus Annual License eRT EDC Software
Five HP Computers and one extra Monitor from E-Cost
Five Westinhouse 42 LCD Monitors”
Four Dell - Lattitude D630 Intel Core 2 Duo T7300
Four PC’s and Eight Monitors
Four PC’s and Five Monitors
Fracy’s, Inc. - Post Processor CR
Fracys, Inc.-Data Export Module Post-Processor
Front Door Intercom
Furniture Furniture for Downstairs Suite
Furniture for Suite 4600
GeneratorTask-Provide Electronic Autocad File to Kravit Architecture
Gilead Network Cable & Patches
Hard Drives Hard Drives Memory Upgrades
Height Interiors Credit
HP 36.4GBHard Drives
HP Care Pack 3yrs 4hrs
HP Care Pack-3 years 4 hours 13 x 5 ProLiant DL320’s
HP Color Laser Printer
Exhibit B - Page 5
HP Configurable HP ProLiant DL320’s Server Dual-Core Intel
HP Credit on previous purchase HP Direct
HP Formerly Mercury Interact
HPFormerly Mercury Interact
HP formerly Mercury Interact
HP Hot Plugs
HP Hot Plugs and Power Cords
HP Laptop for Murali Aiyar HP Laser Printer
HP Monitors (2)
HP Power Supply
HP ProCurve Switch
HP ProcurveSwitch
HP ProCurve Switch + Shipping
HP ProLiant DL 360G5 Server
HP ProLiant DL380 Server
HP SC320e SCSI Host Bus Adapter/Shipping & Handling/Tax
HP Server
HP Server HP Server
HP Server, Processor, Hard Drive, Parts, Taxes, and Shipping HP Servers and Computer Hardware
HP Shipping Cost
HP Shipping Cost HP Smart Buy 1/8 G2 Ultrium 448 AutoloaderBunde/Shipping & Handling/Tax
HP Switch-Atlanta
HP Workstation xw6200. Refer to PO# 03/08/05
HP Xeon 3.0 (8)
HP XW 6000 Xeon HP-Host Bus Adapter
Hyena Licensing IBM Thinkpad G41 with MemoryUpgrade and Extended Warranty
Installation and Wiring of Circuits
Installation of 240 Volt for UPS
Insurance Reimbursement for Stolen Laptop
Intel Processor Upgrade Interact Act 2000 v5.0 5User
J4862A Proccurve 10/100TX Module 24P / Office Equipment
Key Reader
Kravit Architectural-Engineering Services
Exhibit B - Page 6
Kravit Architectures
Laptop and Software for Leigh Carr
Laptop Dell - Lattitude D620
Laptop for Heather Fisher Laptop for New Employee
Laptop for QMS
Laptop for SeanDickens (Includes Shipping Docking and Tax)
Laptop for Thomas Wells (includes shipping and tax)
Laptop HP Compaq/Shipping & Handling/Tax Laptops HP (2)
Laptops for Parman Loeffers and Lange
Leasehold Improvements
Leasehold Improvements
Lenovo-German’s Laptops LGX Ad Hoc ReportBuilder
LGX Ad Hoc Report Builder
McAfee Total Virus Defense MSDN Universal License and PC Anywhere v 10.5 User
Mercury Functional Testing 9.0
Mercury QA Testing Tools with Maintenance MercuryQuote # 1-9BXEHE
Micro Age 5 Pck MSDN Open Licenses and Software Plus 1-20 CAL License Pack
Microsoft Exchange Standard 2007 User’s License Monitor
Monitors
MSQLServers and Licenses
New Bandwidth for new Atlanta Place
New Booth Display
New Data and Voice Nodes for New Cubicles fpr QA Department
New Data and Voice Nodes for New Cubicles in Conference Room Pr. Managers Kova Nine Monitors
Office Furniture for Ron Linares
Office Furniture for Suite 1950 Office FurnitureWarehouse Refund of Overpayment
Office Furniture Workstations
Office Hardware-Computers
Office Hardware-Computers
Office Hardware-Computers Office Refrigerator
Office Security System
OfficeSoftware
Office Software
OfficeSoftware
Exhibit B - Page 7
Office Software
Office Software Windows 2000
Office Supplies for Ron Linares
One Dell - Lattitude D620 One Dell - LattitudeD630 Intel Core 2 Duo T7300
One Dell - Lattitude D630, Intel Core 2 Duo T7500
One Dell - Lattitude D630, Intel Core 2 T7250
One Dell - Lattitude D630, Intel Core Duo T7300
One Dell 300 GB Hard Drive
One Dell300 GB Hard Drive
One Dell XPS M1210
One Dell XPS M1210 Intel Core 2 Duo
One HP 4GB Server with HP Kit and 3 year Warranty
One HP Computer (Credit) One HP Computer withsales tax and shipping
One HP ProLiant Server DL 320 with rack and tapes
One HP ProLiant Server with Carepack
One JDI Primera BravoPro DVD Publisher
One JLI Primera ADL - Max Printer OracleManagement and Support
Oracle Software Update (License and Support) Oracle Thesaurus Management
Orasi Software Parts to upgrade G5 DL 380 Server
Phones
Phones from ReteleCommunications
POMOdc 5750r M/AX2-40
PowerEdge 1855 Xeon 800
ProCurve Module
Purchase of Generator
Rebuild Website
Replacement Firewall Retele Communications Credit
RFP Mainstreet Credit
RFPMainstreet Credit
RFP Mainstreet Reimbursement
Ricky’s Electric
Ricky’s Electric-Installation of Wired Outlets
Ricky’s Electric-Labor Ricky’sElectric-Wired Outlets
Sarb Ox Pro Software
Sea Gate Hard Drvie and HP Bus Adaptor
Exhibit B - Page 8
Second Draw on Construction Contract
Server Replacement Parts
Seven Dell Blade Enclosure and PE 1955 Blades
SFEE Term Standard User License for 10 users for one year Six 20 LCD Monitors”
Six LCD 19 Monitors”
Sixteen 1 GB Modules for Dell PowerEdge 1855 Server
Smith-HP Workstation
Smith-MicroSofter Server 2000 plus 20 users Smith-New Production Server with Hard Drive Memory and Power Supply Upgrades
Software
Software-Battery Backups Software-Memory & Redundant Power Supply
SOX Compliance Software
SQL Server & Microsoft Server Startech -Phone System
Stock Option Software and Maintenance
Sturgess Co. 20’x20’ Floor Level and Two-Story Exhibits
Sturgess Co. 20’x20’Two Story Exhibit
SWSQL Server PC Amex and 534-00777 MSDN Open
SWSQL Server Standard Edition Freight and 2 MSDN Open Licenses for New Develop
Symanthec ExpressMail Security for Exchange
Telephones and Headsets (RETELE)
Ten Dell 4 GB Memory Modules for Dell PowerEdge 1855 Server
Three Hard Copies Beta Model plusShipping
Three HP Computers
Tigerdirect.com-8 Port KVM Switch with Cables Kit
Training Requirements Center Analyst Essentials (3days)
Trial Master Trio Computers-HP Server
Truck Rental
Twelve 1 GB Modules for DellPowerEdge 1750 Server
Two 19 Monitors
Two Blueprint Open Enrollment Licenses
Two Dell Blade 1955 Servers
Two HP Computers and one extra HP Monitor
Two HP Computers with Harware and Care Packs
Two HP Computers; Nine Monitors; Six Hard Drives; One Printer; and One Server
Two HP TD for QC Sites
Two IBM Thinkpad T60 for Germany
Two Laptop Computers Two PC’s and FourMonitors
Exhibit B - Page 9
Two ProLiant DL 380 G5 Servers
Two HP ProLiant Servers
Two Used Compaq Computer Racks
Two wireless keyboards and mouses and one LCD 22 Monitor” Vijay Laptop
Visual Studio Team System
Visual Studio Team System 2008 Team Server Wireless Voice Conference Sound Station
Workstation for Development Team
Exhibit B - Page 10
EXHIBIT C
INTELLECTUAL PROPERTY
PATENTS
PATENT | PATENT NUMBER | ISSUE DATE |
None |
REGISTERED TRADEMARKS
TRADEMARK | REGISTRATIONNUMBER | ISSUE DATE |
None |
TRADEMARK APPLICATIONS
TRADEMARK | APPLICATIONNUMBER | APPLICATION DATE |
TrialMaster | 77/345,326 | 12/06/07 |
OmniTrain | 77/345,338 | 12/06/07 |
OmniLearn | 77/345,336 | 12/06/07 |
OmniComm Systems | 77/407,291 | 02/27/08 |
OmniVal | 77/407,305 | 02/27/08 |
OmniAssist | 77/407,320 | 02/27/08 |
OmniHost | 77/407,347 | 02/27/08 |
OmniAdvance | 77/407,376 | 02/27/08 |
First in Functionality | 77/409,365 | 02/2908 |
OmniReport | 77/409,378 | 02/29/08 |
TrialExplorer | 77/409,401 | 02/29/08 |
TrialBuilder | 77/409,424 | 02/29/08 |
Exhibit C - Page 1
COPYRIGHTS
COPYRIGHT TITLE | REGISTRATIONNUMBER | REGISTRATION DATE |
OmniComm quote website | TXu001020090 | 01/25/01 |
OmniComm Web site script | TX0005455240 | 01/25/01 |
Exhibit C - Page 2
EXHIBIT D
INTELLECTUAL PROPERTY APPLICATIONS
See “Software” on Exhibit B
Exhibit D - Page 1
The general rule for resolving competing security interests is, in a general sense, first in best dressed. In other words, a perfected security interest will take priority over all other security interests perfected after it. There are of course certain exemptions to this principle, with one major exemption being the “super priority” enjoyed by purchase money security interests (PMSIs).
What is a PMSI?
Pursuant to section 14(1) of the Personal Property Securities Act 2009 (Cth) (PPSA), a PMSI is any of the following:
- a security interest taken in collateral, to the extent that it secures all or part of its purchase price;
- a security interest taken in collateral by a person who gives value for the purpose of enabling the grantor to acquire rights in the collateral, to the extent that
- the value is applied to acquire those rights;
- the interest of a lessor or bailor of goods under a PPS lease; or
- the interest of a consigner who delivers goods to a consignee under a commercial consignment.
From the above, it can be said that a PMSI is a security interest in collateral of the grantor, where that security interest secures the payment of money to the secured party that was advanced to the grantor for the purposes of obtaining the collateral.
A simple example being where Company A (Secured Party) lends Company B (Grantor) $100,000.00 (Loan) for the express purpose of purchasing machinery (Collateral), subject to the Grantor granting the Secured Party a security interest in the Collateral. In this instance, as the security interest secures the repayment of the Loan, which itself was made for the express purpose of acquiring the Collateral, the security interest held by the Secured Party is a PMSI.
Another common transaction giving rise to a PMSI is the supply of goods subject to a retention of title clause. That is, where one party (Supplier) supplies goods to another party (Purchaser) subject to the condition that the Supplier retains title to those goods until the Purchaser has made all payments owing to the Supplier.
What a PMSI isn’t?
There are certain transactions that are, pursuant to section 14(2) of the PPSA, expressly excluded from giving rise to a PMSI, these include (but are not limited to):
- an interest acquired under a transaction of sale and lease back to the seller; or
- a security interest in collateral that (at the attachment time), the grantor intends to use predominantly for personal, domestic or household purposes.
Priority rules for PMSIs
Pursuant to section 62 of the PPSA, a perfected PMSI that is registered at a later time than a regular perfected security interest (Earlier Security Interests) over the same collateral will be granted priority over the Earlier Security Interests. This is referred to as super-priority (Super Priority).
For example, Company A has a perfected security interest over all present and future assets of Company B, which was registered on 1 January 2016. Company C has a perfected PMSI over specific machinery held by Company B, which was registered on 1 February 2016. In this instance, Company C’s PMSI in the machinery will be given priority (in relation to that machinery) over Company’s A’s security interest.
Why give PMSIs super priority?
The rationale behind the super priority rules is that an earlier secured party should not be able to satisfy the grantors obligations to themselves from assets of the grantor that would not have been acquired but for the PMSI secured party advancing the grantor the funds necessary to acquire those assets.
Obtaining super priority
In order to enjoy the benefits of super priority, a Secured Party must registered their PMSI within strict time frames. These time frames vary depending on the nature of the Collateral over which they are granted, in particular, they are affected by the following factors:
- whether the Collateral is inventory or personal property other than inventory; and
- whether the Collateral is tangible or intangible property.
The Australian Financial Security Authority (AFSA) has produced the following helpful summary, based on section 62 of the PPSA, for determining when a Secured Party must register their PMSI to obtain Super Priority:[1]
Where the Collateral is tangible property: | Where the Collateral is intangible property: |
Where the Collateral is inventory: | The PMSI must be registered before the time the grantor obtains possession of the Collateral. | The security interest must be registered before the time the PMSI attaches, or is created, over the Collateral. |
Where the Collateral is personal property other than inventory: | The security interest must be registered within 15 business days of the grantor obtaining possession of the Collateral. | The security interest must be registered within 15 business days of the time of attachment, or creation, of the PMSI. |
A failure to register a PMSI within these time frames will not render the PMSI void, but will prevent it from enjoying the benefits of Super Priority. In these circumstances, the general priority rules will apply.
Further references
Other articles by Dundas Lawyers
Legislation
Further information
If you need advice on granting or registering security interests or the PPSR generally, please contact us for an obligation free and confidential discussion.
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | Mobile: 0419 726 535
e:
[email protected][1] Accessible at https://www.ppsr.gov.au/purchase-money-security-interests-pmsi
Disclaimer
This article is not legal advice. It is general comment only. You are instructed not rely on the commentary unless you have consulted one of our Lawyers to ascertain how the law applies to your particular circumstances.