Exhibit 10.45


 


LOAN AND SECURITY AGREEMENT


 


This
Loan and Security Agreement is made as of January 12, 2005 (this “Agreement”)
by and between Vidus Limited, a company registered in England and Wales under
registered number 4069823 having its registered office at North Felaw Maltings,
48 Felaw Street, Ipswich, Suffolk IP2 8HE (the “Borrower”) and @Road,
Inc., a Delaware corporation, having its principal place of business at 47200
Bayside Parkway, Fremont, California 94538 (the “Lender”).


 


RECITALS


 


A.                                   Lender
and Borrower have entered into that certain Acquisition Agreement, dated as of December 15,
2004, by and among Lender, Borrower and NV Partners III-BT LP (the “Acquisition
Agreement”).


 


B.                                     Borrower
has requested Lender to make available to Borrower a loan in an aggregate
principal amount of up to two million dollars ($2,000,000) (collectively, the “Loan”).


 


C.                                     Lender
is willing to make the Loan on the terms and conditions set forth in this
Agreement.


 


D.                                    Concurrently
with the execution of this Agreement, and as a condition to Lender’s
willingness to enter into this Agreement, NV Partners III-BT LP is entering
into a Guaranty in favor of Lender.


 


E.                                      Concurrently
with the execution of this Agreement, and as a condition to Lender’s
willingness to enter into this Agreement NV Partners III-BT LP is entering into
a Subordination Agreement in favor of Lender.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the promises contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower hereby agrees with Lender as follows:


 


1.                                       THE
LOAN.


 


1.1                                 Advances.


 


(a)                                  Initial
Loan; Additional Loans.  Provided no
Event of Default (as defined in Section 7 below) has occurred and the
conditions precedent set forth in this section are satisfied, Lender
hereby irrevocably agrees to make (i) an initial advance to Borrower in an
aggregate amount of Three Hundred Thousand Dollars ($300,000) on or about January 14,
2005 (the “First Advance”), (ii) a second advance to Borrower in an
aggregate amount of Three Hundred Thousand Dollars ($300,000) on or about January 24,
2005 (the “Second Advance”) and (iii) one or more subsequent advances to
Borrower in such amounts as shall be agreed between Borrower and Lender in good
faith, in writing (the “Subsequent Advances”).  The First Advance, the Second Advance and the
Subsequent Advances may each be referred to herein as


 





















 


an “Advance” and,
together, as the “Advances”).  In
no event shall the sum of all Advances made by Lender to Borrower hereunder
exceed Two Million Dollars ($2,000,000) (excluding interest thereon) and
Borrower acknowledges that Lender has no obligation whatsoever to make or fund
any advances in excess of that amount. 
Advances, once repaid, may not be reborrowed.  The total number of Advances that Borrower
may request and receive under this Agreement shall be limited to eight (8) and
shall be requested no more than bi-weekly and funded weekly (in such amounts as
shall be set forth in the Subsequent Amount Request (as defined below).  All advances shall be funded on the first
Monday following the receipt by Lender of a request for loan pursuant to Section 1.1(b)
below.


 


(b)                                 Requests
for Loans.  When Borrower desires to
obtain a Subsequent Advance, Borrower shall make a request to Lender (which
request shall be irrevocable) by facsimile transmission no later than noon
California time on the third (3rd) Business Day immediately preceding the date
on which the Subsequent Advance is to be made (the “Subsequent Advance
Request”) and such Subsequent Advance Request shall include an itemized
invoice for the agreed upon amounts comprising the principal amount of the
Subsequent Advance requested by Borrower. 
The Subsequent Advance Request shall be signed by an authorized officer of
Borrower.  Lender may rely on any
Subsequent Advance Request given by a person whom Lender believes is an
authorized representative of Borrower, and Borrower will indemnify Lender for
any loss Lender suffers as a result of that reliance.


 


1.2           Promissory Notes; Maturity.  (a) 
Borrower promises to execute and deliver to Lender secured promissory
notes prepared by Lender in substantially the form attached hereto as Exhibit A
in the original principal amount of each of the First Advance, the Second
Advance and any Subsequent Advance at the time that each such advance is made
as evidence of such advance (each, a “Note”).  The aggregate principal amount of the
Advances shall bear interest thereon from the funding date of each such Advance
(the “Advance Date”), at the rate of five percent (5.0%) per annum,
based upon a 360 day year for the actual number of days elapsed. The entire
amount of outstanding principal, accrued interest and any unpaid fees and
expenses under and with respect to the Advances shall be due and payable on the
earlier to occur of (i) the occurrence of an Event of Default (as defined
herein); or (ii) 180 days following the date of termination of the Acquisition
Agreement pursuant to Section 5.1 thereof. 
In the event that the Closing (as defined in the Acquisition Agreement)
takes place, the entire amount of outstanding principal, accrued interest and
any unpaid fees and expenses under and with respect to the Advances shall be
due and payable upon the demand of Lender. 
All of the Advances, Loan and other Secured Liabilities (as defined in Section 3
of this Agreement) arising under this Agreement, the Notes and any other
documents executed in connection with the Secured Liabilities or the
transactions contemplated hereby (the “Loan Documents”) shall constitute
one general obligation of Borrower secured by the Collateral.


 


(b)                                 Borrower
may, at its option, prepay any or all amounts outstanding under the Advances in
whole at any time or in part from time to time without penalty or premium.  All prepayments shall be accompanied by the
payment of accrued and unpaid interest on the principal amount of the Advances
being prepaid through the date of such prepayment.


 


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1.3                                 Interest; Maximum Rate; Default.


 


(a)                                  Notwithstanding
any provision in this Agreement, the Notes or any other Loan Document to the
contrary, it is the parties intent that in no event shall any interest
collected or charged under this Agreement or the Notes exceed the maximum rate
then permitted by law and if any such payment is made by Borrower, then such
excess sum shall be credited by Lender as a payment of principal.


 


(b)                                 Every
amount overdue under any Note shall bear interest from and after the date on
which such amount first became overdue at an annual rate which is the lesser of
(i) three (3) percentage points above the rate per year specified in Section 1.2
hereof or (ii) the maximum rate permitted by applicable law.  Such interest on overdue amounts under this
Agreement or any Note shall be payable on demand and shall accrue and be
compounded monthly until the obligation of the Borrower with respect to the
payment of such interest has been fully discharged (whether before or after
judgement).


 


2.                                       SECURITY
INTEREST.


 


By way
of continuing security in favour of Lender for the payment and discharge of the
Secured Liabilities (as defined in Section 3 below), and in consideration
for the Advances and such other sums as may be advanced by Lender to Borrower
from time to time Borrower with full title guarantee hereby charges to Lender
or assigns to Lender (as the case may be) the property set out below in the
manner set out below (each assignment set out below is an absolute assignment
for the purposes of Section 136 of the Law Property Act 1925 (the “LPA”)
(Legal assignment of things in action) and is not made by way of charge only)
(the “Collateral”):


 


2.1                                 Scheduled Property.  By way of first fixed charge by way of legal
mortgage, the properties identified below as the “Schedule Property” (the “Schedule Property”)
and all right, title and interest from time to time in any lease, license or
occupational right or any renewal thereof (the “Rights”) relating to the
Scheduled Property.  The “Scheduled
Property” shall be (a) leasehold property at unit 1 Melbourne Business Court,
Millennium Way, Pride Park, Derby; (b) tenancies of 4 and 12 St Nicholas Court,
Friars Street, Ipswich, Suffolk, IP1 1TG; and (c) leasehold of third and fourth
floor, The North Malting, Felaw Street, Ipswich, Suffolk, IP2 8HE.


 


2.2                                 Other Property.  By way of first fixed charge all freehold or
leasehold property now or at any time in the ownership of Borrower (the “Property”)
(except the Scheduled Property validly charged in Section 2.1 above) and
all Rights relating to such Property.


 


2.3                                 Rent.  By way of absolute assignment, all the
Borrower’s rights, title, interest and benefit in and to any rent or other sum
present or future, owing to Borrower by any person occupying any Property or
Scheduled Property (the “Rent”).


 


2.4                                 Shares and Derivative Assets.  By way of first fixed charge, all stocks,
shares warrants or other securities, rights, dividends, interest or other
property (whether of a capital or income nature) accruing, offered, issued or
deriving at any time by way of dividend, bonus, redemption, exchange, purchase,
substitution, conversion, consolidation, subdivision, preference, option or
otherwise attributable to any such shares or derivative assets in the ownership
of Borrower at any time past present or future (the “Shares and Derivative
Assets”).


 


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2.5                                 Plant and Machinery.  By way of first fixed charge, all the plant
and machinery equipment, fittings, installations and apparatus, tools motor
vehicles and all other such assets whatsoever wherever situated which are now
or any time after the date of this Agreement become the property of Borrower
(the “Plant and Machinery”).


 


2.6                                 Goodwill.  By way of first fixed charge, all the
goodwill and uncalled capital for the time being of Borrower (the “Goodwill”).


 


2.7                                 Intellectual Property.  By way of legal assignment all
contract rights, intellectual property and general intangibles now owned or
hereafter acquired, including, without limitation, goodwill, trademarks and
trademark applications, copyrights and copyright applications, patents and
patent applications, servicemarks, trade styles, trade names, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind (the “Intellectual
Property”).


 


2.8                                 Royalties.  By way of legal assignment all now existing
and hereafter arising accounts, contract rights, royalties, license rights and
all other forms of obligations owing to Borrower arising out of the sale or
lease of goods, the licensing of technology or the rendering of services by Borrower,
whether or not earned by performance, and any and all credit insurance,
guaranties, and other security therefore, as well as all merchandise returned
to or reclaimed by Borrower and Borrower’s books relating to any of the
foregoing (the “Royalties”).


 


2.9                                 Cash.  By way of first fixed charge all documents,
cash, deposit accounts, securities, letters of credit, certificates of deposit,
instruments and chattel paper now owned or hereafter acquired and Borrower’s
books relating to the foregoing (the “Cash”).


 


2.10                           Claims.  Any and all claims, rights and interests in
any of the above and all substitutions for, additions and accessions to and
proceeds thereof, including insurance proceeds.


 


2.11                           Floating charge.  By way of first floating charge, all the undertaking
and assets of the Borrower whatsoever, wherever situated, whether movable,
immovable, present or future (including, without limitation, its uncalled
capital for the time being and all the undertaking and assets of the Borrower
referred to above which are, for any reason, not validly charged or assigned
pursuant to Sections 2.1 (Scheduled Property) to 2.10 (Claims), inclusive, of
this Agreement).  The floating charge
created by this Agreement is a qualifying floating charge for the purpose of
paragraph 14 of Schedule B1 to the Insolvency Act 1986 (the “Insolvencey
Act”).


 


3.                                       OBLIGATIONS
SECURED.  The security interest
granted hereby secures payment and performance of all debts, loans and
liabilities under this Agreement, and all other debts and liabilities of
Borrower to Lender of every kind and description, whether now existing or
hereafter arising, including but not limited to the Advances made by the Lender
to Borrower in the total aggregate principal amount of up to $2,000,000 as
evidenced by one or more Notes and all obligations of Borrower under the Note
or Notes, including the Loan and all interest, fees,


 


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charges and expenses, and including but not limited to
expenses with respect to the enforcement of any rights and remedies of Lender
hereunder (collectively, the “Secured Liabilities”).


 


4.                                       FURTHER
ASSURANCES.  From and after the date
hereof, Borrower agrees to execute and deliver such other documents and
instruments as the Lender may reasonably request with regard hereto.


 


5.                                       DEBTOR’S
REPRESENTATIONS AND WARRANTIES. 
Borrower represents and warrants that, except as set forth in the
disclosure letter dated December 15, 2004 delivered to Lender pursuant to
that certain Deed of Warranty and Indemnity dated December 15, 2004 among
Lender and the warrantors named therein:


 


5.1                                 Incorporation.  Borrower is a corporation duly organized and
validly existing under the laws of England and Wales; Borrower has the
corporate power to own its property and conduct its business as presently
conducted.


 


5.2                                 Authorization.  The execution, delivery and performance
hereof are within the Borrower’s corporate powers, have been duly authorized by
a resolution are not in contravention of law nor of the terms of Borrower’s
articles or memorandum of association, nor of any indenture, agreement or
undertaking to which the Borrower is a party or by which it is bound.


 


5.3                                 Records.  All organizational papers and all amendments
thereto of Borrower have been duly filed with the appropriate authorities [(and
a Form 395 will be filed within the prescribed twenty-one (21) day period in
respect of the security granted above)] and are in proper order.  All capital stock issued by Borrower and outstanding
was and is properly issued and paid for and all books, records and reports of
Borrower, including but not limited to its minute books, by-laws, certificates
of condition and books of account, are accurate and up to date and will be so
maintained.


 


5.4                                 Litigation; No Conflicts.  No litigation is either threatened,
contemplated or pending to Borrower’s knowledge, that will materially and
adversely affect Borrower’s financial condition except as previously disclosed
to Lender in writing.  No holding,
decision or judgment has been rendered by any governmental authority which
would limit, cancel or question the validity of, or Borrower’s rights in, any
of the Collateral.  No action or
proceeding seeking to limit, cancel or question the validity of any Collateral
owned by Borrower or Borrower’s ownership interest therein is on the date
hereof pending or, to the knowledge of Borrower, threatened.


 


5.5                                 Principal Place of Business.  Borrower’s principal place of business is
located at North Felaw Maltings, 48 Felaw Street, Ipswich, Suffolk IP2 8HE.


 


5.6                                 Accounts.  Borrower keeps its records concerning its
accounts at North Felaw Maltings, 48 Felaw Street, Ipswich, Suffolk IP2 8HE.


 


5.7                                 Offices.


 


Borrower’s chief executive office is located at:


 


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North Felaw Maltings, 48 Felaw Street


Ipswich, Suffolk IP2 8HE


 


Borrower has additional
offices located at:


 


Unit 1, Melbourne
Business Court, Millennium Way, Pride Park


Derby DE24 8LZ


 


5.8                                 Inventory.  All inventory currently owned by Borrower is
located at the addresses set forth in Section 5.7 above.


 


5.9                                 Changes.  Borrower will promptly notify Lender in
writing of any change in the location of its chief executive office or of any
other place of business or of any inventory or account or of the establishment
of any new place of business or location of inventory, account or office where
the records of its accounts are kept.


 


5.10                           Financial Statements.  Borrower’s financial statements dated November 30,
2004 previously delivered to Lender are the latest available financial
statements and fairly represent Borrower’s financial condition as of the date
of this Agreement.  Borrower owns all of
its personal property and has good, clear and marketable title thereto, free
and clear of all liens and encumbrances (except Permitted Liens), and there are
no outstanding commitments of Borrower relative to the purchase, sale,
mortgage, lease or license of said property, other than in the usual course of
business.


 


5.11                           Subsidiaries; Investments.  Borrower has no subsidiaries.  Borrower does not own any capital stock,
bonds or other securities or instruments of, and does not have any proprietary
interest in, any other corporation, limited liability company, general or
limited partnership, firm, association or business organization, entity or
enterprise.


 


5.12                           Liens. Borrower owns all right, title
and interest in and to the Collateral, free of any mortgage, deed of trust,
pledge, hypothecation, assignment for security, security interest, encumbrance,
levy, lien or charge of any kind, whether voluntarily incurred or arising by
operation of law or otherwise, against any property, any conditional sale or
other title retention agreement, any lease in the nature of a security
interest, and the filing of any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature of a
security interest) under the California Uniform Commercial Code or comparable
law of any jurisdiction (“Liens”) whatsoever, except for the Permitted
Liens (as defined in Section 6.4).


 


5.13                           Valid and Continuing Security
Interest.  The security interest granted pursuant to
this Agreement will constitute a valid, continuing and, upon the filing of
appropriate registration documentation at HM Land Registry and with the
Registrar of Companies, first priority perfected security interest in favor of
the Lender in the Collateral.


 


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5.14                           Further Representations and
Warranties.  Borrower further represents and warrants that
each of the Obligations secured hereby and each of the representations and
warranties made herein is true and correct as of the date hereof.


 


6.                                       GENERAL
OBLIGATIONS OF DEBTOR.


 


6.1                                 Filings.  Borrower agrees to reimburse Lender for the
cost of any filings in all public offices wherever filing is required by
applicable law to perfect a security interest or is deemed by Lender to be
reasonably necessary or desirable and to execute such other documents as the
Lender shall reasonably request with respect to perfection of the security
interest granted hereunder.  A carbon,
photographic or other reproduction of this Agreement or of a financing
statement shall be sufficient as a financing statement.


 


6.2                                 Insurance.  Borrower agrees to keep all the Collateral
insured in a manner consistent with past practice for such Collateral, and in
cases where such insurance is maintained, to name the Lender as an additional
loss payee, and payable to the Lender and Borrower, as their interests may
appear.


 


6.3                                 Inspection.  Borrower will keep accurate and complete
records of the Collateral, and Lender or any of its agents shall have the right
to inspect the Collateral wherever located and to visit Borrower’s place or
places of business, during normal business hours after reasonable prior notice
by Lender and without Borrower’s hindrance or delay, to inspect, audit, check
and make extracts from any copies of books, records, journals, orders, receipts
and correspondence that relate to the Collateral or to the general financial
condition of Borrower.  Lender may
temporarily remove any of the Borrower’s records for the purpose of having
copies made thereof.


 


6.4                                 Liens; Transfers of Collateral.  Borrower will not (a) assign, license,
hypothecate, mortgage, sell or otherwise transfer any right, title or interest
in or to any accounts or other Collateral other than Permitted Transfers nor
(b) other than the security interest in the assets of the Borrower contemplated
by this Agreement, create or permit to be created or to exist any lien, encumbrance
or security interest of any kind on any of its accounts, contract rights or
inventory other than Permitted Liens.  “Permitted
Transfers” means any conveyance, sale, lease, transfer or disposition by
the Borrower of (i) inventory or other assets in the ordinary course of
business consistent with past practice; (ii) licenses and similar
arrangements for the use of the property of the Borrower in the ordinary course
of business consistent with past practice; or (iii) surplus, worn-out or
obsolete Collateral.  “Permitted Liens”
means (i) liens for taxes, fees, assessments or other governmental charges
or levies, either not delinquent or being contested in good faith by
appropriate proceedings and for which the Borrower maintains adequate reserves
in accordance with GAAP; (ii) liens of carriers, warehousemen, mechanics,
materialmen, vendors, suppliers and landlords incurred in the ordinary course
of business for sums not overdue or being contested in good faith;
(iii) deposits under workers’ compensation, unemployment insurance and
social security laws or to secure the performance of bids, tenders, contracts
(other than for the repayment of borrowed money) or leases, or to secure
statutory obligations of surety or appeal bonds or to secure indemnity, performance
or other similar bonds in the ordinary course of business; (iv) licenses
and sublicenses granted in the ordinary course of the Borrower’s business and
any interest or title of a licensor or under any license or sublicense; (v) a
debenture between


 


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the Borrower and NV Partners III-BT LP (formerly known as NV Partners
IV L.P.) dated April 16, 2003; (vi) liens arising out of a judgment, order
or award with respect to which Borrower shall in good faith be prosecuting
diligently an appeal or proceeding for review and (vii) liens specifically
consented to by Lender in writing.


 


6.5                                 Existence.  Borrower will maintain its corporate
existence in good standing and comply with all laws and regulations of the United
Kingdom or political subdivision thereof, or of any governmental authority
which may have jurisdiction over it or its business.


 


6.6                                 Taxes.  Borrower will pay all real and personal
property taxes, assessments and charges as well as all franchise, income,
unemployment, old age benefit, withholding, sales and other taxes assessed
against it, or payable by it at such times and in such manner as to prevent any
penalty from accruing or any lien or charge from attaching to its property
(other than Permitted Liens), and will furnish the Lender upon request,
receipts, or other evidence that deposits or payments have been made.


 


6.7                                 Dividends.  Borrower will pay no dividends either in cash
or kind on any class of its capital stock nor make any distribution on account
of its stock, nor redeem, purchase or otherwise acquire directly or indirectly
any of its stock.


 


6.8                                 Loans.  Borrower will not make any loans or advances
to any individual, firm or corporation, including without limitation, its
officers and employees; provided, however, that Borrower may make advances to
its employees, including its officers, with respect to expenses incurred by
such employees in the usual course of Borrower’s business when such expenses
are reimbursable by Borrower.


 


6.9                                 Securities.  Borrower will not invest in or purchase any
stock or securities or other instrument of any individual, firm or corporation,
other than in short-term deposits, direct obligations of the U.K. or U.S. or
other short-term investments made in the ordinary course of business and
consistent with past practices of Borrower.


 


6.10                           Merger.  Except with respect to the transactions
contemplated by the Acquisition Agreement, Borrower will not, without the prior
written consent of Lender, enter into any transaction involving: (A) the sale,
license, disposition or acquisition of all or a material portion of the
business or assets of Borrower or any direct or indirect subsidiary or division
of Borrower; (B) the issuance, grant, disposition or acquisition of (x) any capital
stock or other equity security of Borrower or any direct or indirect subsidiary
of Borrower, (y) any option, call warrant or right to acquire any capital stock
or other equity security of Borrower or any direct or indirect subsidiary of
Borrower or (z) any security, instrument or obligation that is or may become
convertible into or exchangeable for any capital stock or other equity security
of Borrower or any direct or indirect subsidiary of Borrower; or (C) any
merger, consolidation, business combination, share exchange, reorganization or
similar transaction involving Borrower or any direct or indirect subsidiary of
Borrower; provided, however, that Borrower may issue its stock to
its employees upon the exercise of stock options outstanding on the date hereof.


 


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6.11                           Sales.  Borrower will not sell or dispose of any of
its assets except for Permitted Transfers.


 


6.12                           Guaranty.  Borrower will not enter into any agreement of
guaranty of the obligation of any individual, partnership, trust or
corporation, including affiliates.


 


6.13                           Government Accounts.  Borrower will immediately notify Lender if
any of Borrower’s accounts arise out of contracts with the United Kingdom, any
state or municipality, or any department, agency or instrumentality thereof,
and execute any instruments and take any steps required by Lender in order that
all monies due and to become due under such contracts shall be assigned to
Lender.


 


6.14                           Reimbursement.  Borrower will reimburse Lender on demand for
and indemnify and hold harmless Lender, its officers, directors, employees,
agents, attorneys, representatives and stockholders from and against any sums
paid or advanced by Lender to satisfy any tax, lien or security interest or
other encumbrance on the Collateral, to provide insurance on the Collateral as
contemplated herein or to pay for the maintenance and preservation of the
Collateral; provided  however, that Lender shall not be obligated
to make any such payments or deposits. 
Any such sums paid or advanced by Lender shall be deemed secured by the
Collateral and constitute part of the Obligations.


 


6.15                           Use of Loan Proceeds.  The Borrower shall use proceeds of the Loan
to fund those items identified (i) in the Operating Plan, with respect to the
First Advance and the Second Advance and (ii) in the invoice accompanying the
Subsequent Advance Request, with respect to any Subsequent Advance Request, and
for the payment of such other obligations of the Borrower which may hereafter
be approved by the Lender in its sole and absolute discretion.


 


6.16                           Financial Reporting.  Borrower will deliver to Lender promptly upon
request such financial and other information regarding the Borrower, its assets
or the Collateral as the Lender shall reasonably request from time to time,
provided that nothing in this Section 6.16 shall require Borrower to
prepare any such information for the sole purpose of satisfying the covenant
set forth in this Section 6.16.


 


6.17                           Repair.  Borrower will maintain its equipment and
property in good repair and working order, normal wear and tear excepted.


 


6.18                           Confidentiality.  Borrower shall not disclose the terms of this
Agreement or the Note to third parties except to its officers, directors,
employees, agents and professional advisors (including investments banking
advisors), except as may be required by court order or applicable law.


 


6.19                           Preservation of Collateral.  Borrower shall take all necessary steps to
preserve the value of the Collateral, including but not limited to paying all
rent or other outgoing on any Property or Scheduled Property as and when the
same becomes due maintaining all Property, Scheduled Property and other
Collateral in good repair and secure and pay all license or other fees as and
when due in respect of any Intellectual Property.


 


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6.20                           Continuing Representations.  The representations and warranties herein are
continuing.  In the event that any
obligation, representation or warranty is no longer true, correct, or to be
achieved, Borrower will immediately notify Lender in writing.


 


7.                                       DEFAULT.  Borrower shall be in default under this
Agreement and under any other agreement with the Lender upon the happening of
any of the following events or conditions, without demand or notice from Lender
(unless otherwise provided by law) (each, an “Event of Default”):


 


(1)                                  Failure
of Borrower to pay when due any of the Secured Liabilities, whether by
maturity, acceleration or otherwise under this Agreement, the Notes or any of
the other Loan Documents.


 


(2)                                  Except
with respect to the obligations of Borrower set forth in Section 6.10 and Section 6.18
of this Agreement, failure of Borrower to perform, or breach of, any of its
agreements, warranties or representations set forth in this Agreement and such
breach or failure continues for a period of five (5) days thereafter or in any
agreement with any other person or organization for borrowed money or lease of
real or personal property resulting in a right by such third party to
accelerate the maturity of any amounts owed thereunder in an amount in excess
of $50,000 provided that the Event of Default hereunder caused by the
occurrence of a default under another agreement described in this Section shall
be automatically cured for purposes of this Agreement upon the cure or waiver
of the default under such other agreement.


 


(3)                                  Failure
of the Borrower to perform, or breach of, any of its agreements, warranties or
representations set forth in Section 6.10 and Section 6.18 of this
Agreement or set forth in Borrower’s acknowledgement contained in the
Subordination Agreement dated of even date herewith between NV Partners IV L.P.
and Lender;


 


(4)                                  Failure
of the Borrower to perform, or a breach of, any of its agreements, warranties
or representations set forth in any of the Loan Documents and such failure or
breach continues for a period of ten (10) days thereafter;


 


(5)                                  Borrower’s
failure to perform any covenant or agreement, or breach of any representation
or warranty, set forth in the Acquisition Agreement and such failure of breach
continues for a period of ten (10) days thereafter;


 


(6)                                  Material
loss or theft, substantial damage or destruction or unauthorized sale or
encumbrance of any material portion of the Collateral in excess of reasonably
expected recoveries under insurance policies, or the making of any levy on, or
seizure or attachment of a material portion of the Collateral;


 


(7)                                  Dissolution,
liquidation, termination of existence, insolvency or business failure of the
Borrower or the appointment of a custodian or receiver of any part of Borrower’s
property, or an assignment or trust mortgage for the benefit of


 


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creditors by Borrower, or the recording or existence
of any lien for unpaid taxes, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower, or service upon the
Lender of any writ, summons, or process designed to affect any account or
property of Borrower or any event analogous to the same under the laws of
England and Wales, save for in relation to a written demand on Borrower made
pursuant to section 123[1][a] of the Insolvency Act 1986 against Borrower
which is withdrawn or satisfied within three weeks of the service of the same
or a declaration of intent by Borrower to effect any of the foregoing; or


 


(8)                                  The
institution by or against Borrower or any indorser or guarantor of any Note of
any proceedings under any other bankruptcy, reorganization, receivership,
insolvency or other similar law affecting the rights of creditors generally or
the making by the Borrower or any indorser or guarantor of any Note of an
assignment or trust mortgage for the benefit of creditors or a declaration of
intent by the Borrower to effect any of the foregoing.


 


8.                                       LENDER’S
RIGHTS UPON DEFAULT.


 


8.1                                 Enforcement.  This Agreement will become enforceable and
Lender shall be entitled to exercise all the powers conferred on a mortgagee by
the LPA (as varied or extended by this Agreement), all the powers conferred on
the holder of a qualifying floating charge (as defined in the Insolvency Act)
by the Insolvency Act and all or any of the rights and powers conferred by this
Agreement, without further notice immediately upon the occurrence of an Event
of Default or if any steps are taken for the appointment of an administrator,
or whereby notice is given of intention to appoint, or a petition is filed or
application is made or a competent court makes an order for the appointment of,
an administrator, in relation to the Borrower, or any steps are taken to
wind-up or dissolve the Borrower, or for the appointment of a receiver or
liquidator or trustee or similar officer or an administrative receiver of the
Borrower, or to any of its assets; or if the Borrower requests Lender to
appoint an administrator or a receiver over the whole or any part of its
undertaking or assets.


 


8.2                                 Consequences of default.  On and at any time after the occurrence of an
Event of Default, Lender in its absolute discretion may by written notice to
the Borrower:


 


(a)                                  declare
the Secured Liabilities to be immediately due and payable, together with all
accrued interest thereon and any other sums then owed by the Borrower under
this Agreement and, upon that declaration, such sums shall become immediately
due and payable without demand or notice of any kind, all of which are hereby
expressly waived by the Borrower; or


 


(b)                                 declare
the Secured Liabilities to be due and payable on demand of Lender; and/or


 


(c)                                  declare
the security constituted by this Agreement to be enforceable.


 


11





















 


8.3           Statutory power of sale.


 


8.3.1                        For the purposes of all powers implied by statute, and in
particular the power of sale under Section 101 of the LPA (Powers incident
to estate or interest in a mortgage), the Secured Liabilities will be deemed to
have become due when the security created by this Agreement becomes enforceable
and Section 103 of the LPA (Regulation of exercise of power of sale) and Section 93
of the LPA (Restriction on consolidation of mortgages) will not apply.


 


8.3.2                        The statutory powers of leasing conferred on Lender are
extended so as to authorise Lender to lease, make arrangements for leases,
accept surrender of leases and grant options on such terms and conditions as
Lender may in its discretion think fit. 
Lender is not obliged to comply with any of the provisions of Section 99
(Leasing powers of mortgagor and mortgagee in possession) and Section 100
(Powers of mortgagor and mortgagee in possession to accept surrenders of
leases) of the LPA.


 


8.3.3                        Each of Lender and the Receiver (as defined in Section 8.5.1(a)(i)
below) may exercise such person’s statutory power of sale in respect of the
whole or any part of the Property.


 


8.3.4                        Section 93 of the LPA (Consolidation of mortgages) will
not apply to this Agreement.


 


8.4           Administrator.  At the time, or at any time after, the
security constituted by this Agreement becomes enforceable, whether or not
Lender has entered into or taken possession of the whole or any part of the
Collateral pursuant to this Agreement, Lender may, in so far as permitted by
law, at its option and in addition to any right to appoint a Receiver, by
writing under the hand of any authorised officer of Lender, appoint any person
to be an administrator of the Borrower under the Insolvency Act and such person
shall, from the effective date of such appointment, be an Administrator.


 


Without
prejudice to any continuing right of Lender, at its option, to appoint a
Receiver under this Agreement unless and until, and then to the extent,
prohibited from so doing by the provisions of the Enterprise Act 2002, this
Agreement is a qualifying debenture for the purposes of paragraph 14 of Schedule B1
to the Insolvency Act (incorporated by Schedule 16 of the Enterprise Act
2002) and that paragraph shall apply to this Agreement.


 


8.5           Receiver.


 


8.5.1                        Appointment
of Receiver.


 


(a)                                  At
the time that, or at any time after, the security constituted by this Agreement
has become enforceable, whether or not Lender has entered into or taken
possession of the whole or any part of the Collateral pursuant to this
Agreement, Lender may:


 


(i)                                     in so far as
permitted by law, at its option, by writing under the hand of any authorised
officer of Lender, appoint any person to be a receiver of the Collateral and
such person shall, with effect from the date of such appointment, be a receiver
(the “Receiver”),


 


12





















 


provided, that this provision shall not apply
solely by reason of the obtaining of a moratorium, or anything done with a view
to obtaining a moratorium, by an eligible company (as defined in Schedule A1
of the Insolvency Act) under the Insolvency Act;


 


(ii)                                  Lender may,
from time to time, in similar manner, remove the Receiver and appoint another
in his place;


 


(iii)                               Lender may,
either at the time of appointment or at any time thereafter, fix the
remuneration of the Receiver;


 


(iv)                              Lender and any
nominee of Lender wheresoever situated may, without further notice and without
the restrictions contained in Section 103 of the LPA (Regulation of
exercise of power of sale), exercise in respect of all or any part of the
Shares and the Derivative Assets all the powers and rights exercisable by the
registered holder of the Shares and the Derivative Assets and all other powers
conferred on mortgagees by the LPA as varied or extended by this Agreement; and


 


(v)                                 Lender and any
nominee of Lender wheresoever situated may apply any dividends, interest or
other payments received or receivable by Lender or by such nominee in respect
of the Shares and the Derivative Assets as if they were proceeds of sale.


 


None of the restrictions imposed by the LPA
in relation to the appointment of receivers, the giving of notice or otherwise
shall apply.


 


(b)                                 The
Receiver may from time to time delegate, by power of attorney or otherwise, to
any person any of his powers and discretions, whether arising by statute, the
provisions of this Agreement or otherwise, upon such terms and for such periods
of time as he may in his discretion think fit and may from time to time
terminate any such delegation.  Lender
shall not be liable to the Borrower for any loss or damage arising from any
such delegate’s act, default, neglect or misconduct of any nature whatsoever.


 


8.5.2                        Powers of Receiver.  The Receiver has all the powers to do or
abstain from doing anything which the Borrower could do or abstain from doing
in relation to the Collateral including, without limitation the powers
conferred by Section 109 of the LPA (Appointment, powers, remuneration and
duties of receivers) and, in the case of a Receiver who is an administrative
receiver, the powers conferred by Section 29 of the Insolvency Act
(Definitions) and Schedule 1 to the Insolvency Act (Powers of
administrator or administrative receiver), and in particular the Receiver may:


 


(a)                                  Carry on business


 


carry on, manage or concur in carrying on
managing the whole or any part of the business of the Borrower as he may in his
discretion think fit;


 


(b)                                 Protection of assets


 


(i)                                     manage, insure,
repair, decorate, maintain, alter, improve, renew or


 


13





















 


add to any property charged by virtue of
Sections 2.1 or 2.2 of this Agreement or concur in so doing;


 


(ii)                                  commence or
complete any building operations on any property charged by virtue of Sections
2.1 or 2.2 of this Agreement; or


 


(iii)                               apply for and
maintain any planning permissions, building regulations, approvals and any
other permissions, consents or licences,


 


in each case as he may in his discretion
think fit;


 


(c)                                  Realisation of assets


 


sell, exchange, convert into money and
realise the Collateral or concur in so doing by public auction or private
contract and generally in such manner and on such terms as he may in his discretion
think fit.  Without prejudice to the
generality of the foregoing, he may do any of these things for any valuable
consideration, including, without limitation, cash, shares, stock, debentures
or other obligations.  Any such
consideration may be payable in a lump sum or by instalments spread over such
period as he may in his discretion think fit;


 


(d)                                 Let, hire or lease


 


(i)                                     let, hire or
lease (with or without premium) and accept surrenders of leases or tenancies or
concur in so doing;


 


(ii)                                  grant rights,
options or easements over and otherwise deal with or dispose of, and exercise
all rights, powers and discretions incidental to, the ownership of the
Collateral;


 


(iii)                               exchange or
concur in exchanging the Collateral,


 


in each such case in such manner and
generally on such terms as he may in his discretion think fit, with all the
powers of an absolute beneficial owner. 
The Receiver may exercise any such power by effecting such transaction
in the name or on behalf of the Borrower or otherwise;


 


(e)                                  Rent


 


(i)                                     without any
further consent by, or notice to, the Borrower, exercise on its behalf, in
respect of the Rent, all the powers and provisions conferred on a landlord or a
tenant by any legislation in force relating to such Rent; and


 


14





















 


(ii)                                  make allowances
to, and re-arrangements with, any person occupying the whole or any part of any
property charged by virtue of Sections 2.1 or 2.2 of this Agreement under any
occupational lease from whom the Rent and any profits may be receivable, and
negotiate and agree, or refer to arbitration, any revision of rent under any
leases in respect of which the rental may fall to be reviewed and accept
service of, or serve, any notice received or required or deemed desirable in
connection with any such review or with the exercise of any option;


 


(f)                                    Borrowing


 


for the purpose of exercising any of the
powers, authorities or discretions conferred on him by or pursuant to this
Agreement or of defraying any costs (including, without limitation, his
remuneration) which are incurred by him in the exercise of such powers,
authorities or discretions or for any other purpose, to raise and borrow money
or incur any other liability either unsecured or secured on the Collateral,
either in priority to the security constituted by this Agreement or otherwise,
and generally on such terms as he may in his discretion think fit.  No person lending such money is to be
concerned to enquire as to the propriety or purpose of the exercise of such
power or as to the application of any money so raised or borrowed;


 


(g)                                 Make calls


 


make, or require the directors of the
Borrower to make, such calls upon the shareholders of the Borrower in respect
of any uncalled capital of the Borrower as the Receiver may in his discretion
require and enforce payment of any call so made by action (in the name of the
Borrower or the Receiver as the Receiver may in his discretion think fit) or
otherwise;


 


(h)                                 Compromise


 


(i)                                     settle or
compromise any claim by, adjust any account with, refer to arbitration any
dispute with, and deal with any question or demand from, any person who is, or
claims to be, a creditor of the Borrower, as he may in his discretion think
fit; and


 


(ii)                                  settle or
compromise any claim, adjust any account, refer to arbitration any dispute and
deal with any question or demand relating in any way to the Collateral, as he
may in his discretion think fit;


 


(i)                                     Proceedings


 


bring,
prosecute, enforce, defend and abandon all such actions, suits and proceedings in relation to the Collateral as he may in his discretion think
fit;


 


(j)                                     Subsidiaries


 


(i)                                     promote the
formation of any subsidiary of the Borrower with a view to such subsidiary
purchasing, leasing, licensing or otherwise acquiring an interest in the
Collateral ;


 


15





















 


(ii)                                  arrange for the
purchase, lease, licence or acquisition of an interest in the Collateral by any
such subsidiary of the Borrower for any valuable consideration, including,
without limitation, cash, shares, debentures, loan stock, convertible loan
stock or other securities, profits or a sum calculated by reference to profits,
turnover, royalties, licence fees or otherwise, whether or not secured on the
undertaking or assets of such Subsidiary and whether or not such consideration
is payable or receivable in a lump sum or at any time or any number of times by
installments spread over such period, as the Receiver may in his discretion
think fit; and


 


(iii)                               arrange for
such subsidiary to trade or cease to trade as the Receiver may in his
discretion think fit;


 


(k)                                  Employees


 


appoint and discharge any manager, officer,
agent, professional adviser, employee and any other person, upon such terms as
he may in his discretion think fit;


 


(l)                                     Receipts


 


give valid receipts for all monies and
execute all assurances and things which he may in his discretion think proper
or desirable for realising the Collateral;


 


(m)                               Environment


 


conduct and complete all investigations,
studies, sampling and testing and all remedial, removal and other actions,
whether required under environmental legislation or by Lender or otherwise and
comply with all lawful orders and directives of all authorities regarding
environmental legislation; and


 


(n)                                 General powers


 


do all such other acts and things as the
Receiver may in his discretion consider to be incidental or conducive to any of
the matters or powers set out in this Agreement or otherwise incidental or
conducive to the preservation, improvement or realisation of the Collateral.


 


8.5.3                        Receiver as agent of the Borrower


 


The
Receiver is at all times and for all purposes the agent of the Borrower.  Subject to the provisions of the Insolvency
Act, the Borrower is solely responsible for all of the Receiver’s acts,
defaults, neglect and misconduct of any nature whatsoever and for his
remuneration and costs, to the exclusion of liability on the part of Lender.


 


8.5.4                        No obligation


 


The
Receiver is not obliged to exercise any of the powers set out in this clause.


 


16





















 


8.5.5                        Several power


 


Where
more than one Receiver is appointed, each Receiver has the power to act
severally unless Lender specifies otherwise in the appointment of such
Receiver.


 


8.5.6                        Powers exercisable by Lender


 


(a)                                  Lender
may exercise all powers granted to the Receiver by this Agreement, whether as
attorney of the Borrower or otherwise.


 


(b)                                 The
powers of the Receiver set out above are in addition to, and without prejudice
to, all statutory and other powers of Lender as provided in Section 8.3
(Statutory power of sale) or otherwise and so that, inter alia, such powers are
and remain exercisable by Lender in respect of that part of the Collateral in
respect of which no appointment of a Receiver by Lender is from time to time
subsisting.


 


8.5.7                        Application of proceeds. 
The provisions of Sections 99 to
109 inclusive of the LPA are varied and extended to the extent that all monies
received by the Receiver be applied (subject to the provisions of the
Enterprise Act 2002, in so far as applicable to this Agreement) in the
following order:


 


(a)                                  in
full payment of his remuneration and the costs of realisation including,
without limitation, all costs of, or incidental to, any exercise of any power
referred to in this Agreement, including, without limitation, all outgoings
paid by the Receiver;


 


(b)                                 providing
for the matters specified in paragraphs (i) to (iii) inclusive of Section 109
(8) of the LPA (Appointment, powers, remuneration and duties of receiver);


 


(c)                                  in
or towards satisfaction of any debts or other imposts which are by statute made
payable in preference to the Secured Liabilities to the extent to which such
debts or imposts are made so payable;


 


(d)                                 if
so required by Lender in its discretion, in or towards satisfaction of the Secured
Liabilities; and


 


(e)                                  to
the person entitled to any surplus.


 


9.                                       NO
LIABILITY AS MORTGAGEE IN POSSESSION


 


9.1                                 Mortgagee’s liability


 


Neither Lender nor the Receiver is:


 


(a)                                  liable
to account as mortgagee in possession in respect of the Collateral or any of
it; or


 


17





















 


(b)                                 liable
for any loss upon realisation or exercise of any power, authority or right of
Lender or the Receiver arising under this Agreement, nor for any act, default,
neglect, or misconduct of any nature whatsoever.


 


9.1.2                        Possession.  If Lender or the Receiver enters into
possession of the Collateral, such person may at any time go out of possession
at the discretion of such person.


 


10.                                 REASSIGNMENT.


 


Subject
to clause 24.2 (Avoidance of payments), upon irrevocable discharge in full of
the Secured Liabilities, Lender shall reassign to the Borrower all the Borrower’s
rights, title, interest and benefit in and to the Rent and the Contracts.


 


11.                                 POWER
OF ATTORNEY


 


11.1                           The Borrower irrevocably
appoints, by way of security Lender, each person deriving title from Lender and
the Receiver, jointly and severally to be its attorney (with full power to
appoint substitutes and to sub-delegate) for it, in its name, on its behalf and
as its act and deed or otherwise to sign or execute any deed or document or do
any act or thing which the Borrower is, or may become, obliged to sign, execute
or do pursuant to this Agreement and where Borrower has failed to execute such
document or do such act or thing or which Lender, the Receiver or any person
deriving title from Lender or the Receiver may in the reasonable discretion of
such person think fit in connection with the exercise of any of the powers of
such person or the realisation of any security constituted by this Agreement.


 


11.2                           Without prejudice to the
generality of the foregoing, the Borrower unconditionally undertakes to Lender,
and separately to the Receiver and to each person deriving title from Lender or
the Receiver, that it shall ratify and confirm anything done or purported to be
done by any attorney appointed pursuant to this clause.


 


12.                                 BORROWER’S
OBLIGATION TO PAY EXPENSES OF LENDER. 
Borrower shall pay to Lender on demand any and all reasonable counsel
fees and other expenses incurred by the Lender in connection with the
interpretation of this Agreement, documents relating thereto or modifications
thereof, and any and all expenses (including, but not limited to, a collection
charge on all accounts collected, all attorney’s fees and expenses, and all
other expenses of like or unlike nature) that may be incurred or paid by the
Lender to obtain or enforce payment of any account against the account debtor,
Borrower or any guarantor or surety of Borrower, or in the prosecution or
defense of any action or concerning any matter growing out of or connected with
the subject matter of this Agreement including, without limitation, expenses
incurred in pursuing remedies under Section 8 of this Agreement, the
Secured Liabilities, the Collateral or any of Lender’s rights or interests
therein or thereto, including (without limiting the generality of the
foregoing) any counsel fees or expenses incurred in any bankruptcy or
insolvency proceedings.  All such
expenses may be added to the principal amount of any indebtedness owed by
Borrower to Lender and shall constitute part of the Secured Liabilities secured
hereby.


 


18





















 


13.                                 NOTICES.  Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, if such notice is addresses to the party to be notified at such
party’s address or facsimile number as set forth on the signature page hereto
or as subsequently modified by written notice.


 


14.                                 WAIVERS.  Borrower waives demand, presentment, protest,
and notice of protest notice of nonpayment and all other notices.  No delay or omission by Lender in exercising
any rights shall operate as a waiver of such right or any other right.  Waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future
occasion.  All Lender’s rights and
remedies, whether evidenced hereby or by any other agreement, instrument or
paper, shall be cumulative and may be exercised singularly or concurrently.


 


15.                                 TERMINATION.  This Agreement and the security interest
shall terminate when all the Obligations have been paid in full, at which time
the Lender shall execute and deliver to the Borrower, at the Borrower’s
expense, all customary documents which the Borrower shall reasonably request to
evidence such termination and release of the Collateral hereunder.


 


16.                                 LAW
AND JURISDICTION


 


16.1                           This Agreement shall be governed
by and construed in accordance with English law.


 


16.2                           The Borrower agrees that any
legal action or proceedings arising out of or in connection with this Agreement
against the Borrower or any of its assets may be brought in the High Court of
Justice in England, and the parties irrevocably and unconditionally submits to
the jurisdiction of such Court and the Lender irrevocably designates, appoints
and empowers Osborne Clarke at present of One London Wall, London, EC2Y 5EB to
receive for it and on its behalf, service of process issued out of such Court
in any such legal action or proceedings. 
The submission to such jurisdiction shall not (and shall not be
construed so as to) limit the right of Lender to take proceedings against the
Borrower in whatsoever jurisdictions it thinks fit, nor shall the taking of
proceedings in any one or more jurisdiction preclude the taking of proceedings
in any other jurisdiction, whether concurrently or not.  The Borrower waives objection to such Court
on the grounds of inconvenient forum or otherwise as regards proceedings in
connection with this Agreement and agrees that the judgment or order of such
Court in connection with this is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.


 


17.                                 THIRD
PARTY RIGHTS


 


Unless
expressly provided in the Agreement, no term of this Agreement is enforceable
pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who
is not a party to it.


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


19





















 


(Signature
Page to Loan and Security Agreement)


 


IN WITNESS WHEREOF, the
parties hereto have caused this Loan and Security Agreement to be executed and
delivered as of the date first set forth above.


 


	
  BORROWER:

  	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  VIDUS LIMITED

  	
   

  	
  @ROAD, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Martin Knestrick

  	
   

  	
  By:

  	
  /s/ Krish Panu

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Director, CEO

  	
   

  	
  Title:

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
  North Felaw Maltings,
  48 Felaw Street

  	
  Address:

  	
  47200 Bayside Parkway

  	
   

  
	
   

  	
  Ipswich, Suffolk IP2
  8HE

  	
   

  	
   

  	
  Fremont, California 94538

  	
   

  
	
  Facsimile No.:

  	
   

  	
   

  	
  Facsimile No.:

  	
   

  	
   

  
												



 


20





















 


Exhibit A


 


FORM OF


 


SECURED
PROMISSORY NOTE


 


	
   

  	
   

  	
  [                   ],
  2005

  
	
  $[             ]

  	
   

  	
  Ipswich,
  Suffolk

  



 


FOR VALUE RECEIVED, Vidus
Limited (the “Borrower”), promises to pay in accordance with the timetable
below to @Road, Inc. (“Lender”), or order, at Lender’s offices
located at 47200 Bayside Parkway, Fremont, California 94538 or at such other
place as the holder of this Note may designate, the principal sum of [                          ]
($                 ),
together with interest on the unpaid principal balance of this Note from time
to time outstanding at the rate of FIVE PERCENT (5.0%) per annum until paid in
full.  The entire amount of outstanding
principal, accrued interest and any unpaid fees and expenses shall be
immediately due and payable without any notice, demand or any other action by
holder on the earlier to occur of: (i) the occurrence of an Event of Default
(as defined in the Loan Agreement); or (iii) 180 days following the termination
of the Acquisition Agreement dated December 15, 2004 by and among
Borrower, Lender and NV Partners III-BT LP pursuant to Section 5.1.  All amounts due hereunder shall be payable in
U.S. dollars.


 


Borrower may at its
option prepay any or all amounts outstanding under this Note in whole at any
time or in part from time to time without penalty or premium.  All prepayments shall be accompanied by the
payment of accrued and unpaid interest on the principal amount being prepaid to
the date of payment.


 


Interest on this Note
shall be computed on the basis of a year of twelve (12) months of thirty (30)
days each.  All payments by the Borrower
under this Note shall be in immediately available funds.


 


This Secured Promissory
Note is one of the Notes referred to in, and is executed and delivered pursuant
to, that certain Loan and Security Agreement dated January 12, 2005, by
and between Borrower and Lender (as the same may from time too time be amended,
modified or supplemented in accordance with its terms, the “Loan Agreement”).  This Note and all of the obligations under
the Notice, including any fees, expenses and other obligations, is entitled to
the benefit and security of the Loan Agreement and the other Loan Documents (as
defined in the Loan Agreement), to which reference is made for a statement of
all of the terms and conditions thereof. 
Expenses incurred in connection with the Loan Documents shall be added
to the principal amount of this Note in accordance with the provisions set
forth in Section 1.2 of the Loan Agreement and shall constitute part of
the Secured Liabilities secured under the Loan Agreement.  All terms used herein and not otherwise
defined herein shall have the same definitions as set forth in the Loan
Agreement.


 


This Note, and all
accrued and unpaid interest thereon, and any unpaid fees and expenses


 


21





















 


shall become immediately
due and payable without any notice, demand or any other action by holder upon
the occurrence at any time of any Event of Default (as defined in the Loan and
Security Agreement).


 


Upon the occurrence of an
Event of Default, and in addition to all other rights and remedies of the
holder at law or equity arising under this or any other agreement between the
parties or otherwise, the holder shall have then, or at any time thereafter,
all of the rights and remedies afforded by law.


 


All payments by the
Borrower under this Note shall be made without set-off or counterclaim and be
free and clear and without any deduction or withholding for any taxes or fees
of any nature whatever, unless the obligation to make such deduction or
withholding is imposed by law.  The
Borrower shall pay and save the holder harmless from all liabilities with
respect to or resulting from any delay or omission to make any such deduction
or withholding required by law.


 


Whenever any amount is
paid under this Note, all or part of the amount paid may be applied to principal
or interest in such order and manner as shall be determined by the holder in
its discretion.  This shall not relieve
the holder of its obligations to apply any such payment against principal or
interest upon payment.


 


No reference in this Note
to the Loan Agreement or the other Loan Documents or any guaranty shall impair
the obligation of the Borrower, which is absolute and unconditional, to pay all
amounts under this Note strictly in accordance with the terms of this Note.


 


The Borrower agrees to
pay on demand all duly incurred costs of collection, including reasonable
attorneys’ fees, incurred by the holder in enforcing the obligations of the
Borrower under this Note.


 


No delay or omission on
the part of the holder in exercising any right under this Note or the Security
Agreement shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion.  The Borrower and every indorser or guarantor
of this Note regardless of the time, order or place of signing waives
presentment, demand, protest and notices of every kind and assents to any
extension or postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of collateral, and to the addition or
release of any other party or person primarily or secondarily liable.


 


Borrower waives
presentment and demand for payment, notice of dishonor, protest and notice of
protest under any applicable law.


 


None of the terms or
provisions of this Note may be excluded, modified or amended except by a
written instrument duly executed on behalf of the holder expressly referring to
this Note and setting forth the provision so excluded, modified or amended.


 


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The rights and
obligations of Borrower and Lender shall be binding upon and benefit the
successors, assigns, heirs, administrators and transferees of the parties.  Borrower may not assign, transfer or delegate
any of its rights, obligations or liabilities hereunder without the prior
written consent of the other party.


 


All rights and
obligations hereunder shall be governed by the laws of England and the parties
submit to the non-exclusive jurisdiction of the English courts.  The Lender appoints Osborne Clarke, One
London Wall, London, EC2Y 5EB as its agent for service in England.  This Note is executed as a deed by the
Borrower.


 


 


	
  ATTEST:

  	
   

  	
  VIDUS LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
									



 


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