Exhibit 4.10
[Execution Copy]
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of November 16, 2001, between
CONSTELLATION 3D TECHNOLOGY LIMITED, a corporation organized under the laws of
the British Virgin Islands (the "Company"), and TIC TARGET INVEST CONSULTING,
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LLC, a financing corporation organized under the laws of St. Kitts & Nevis with
its principal office located at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇, ▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇▇, (the "Lender").
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WHEREAS, it is a condition precedent to the Lender's obligation to
make the loan to the Company under the Loan Agreement, of even date herewith, by
and between the Lender and the Company (the "Loan Agreement") that the Company
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execute and deliver to the Lender, for the benefit of the Lender, a security
agreement in the form hereof; and
WHEREAS, the Company wishes to grant a security interest in favor of
the Lender, for the benefit of the Lender, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions
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shall have the respective meanings provided therefor in the Loan Agreement. The
term "State", as used herein, means the District of Columbia. All terms defined
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in the Uniform Commercial Code of the State and used herein shall have the same
definitions herein as specified therein. However, if a term is defined in
Article 9 of the Uniform Commercial Code of the State differently than in
another Article of the Uniform Commercial Code of the State, the term has the
meaning specified in Article 9.
2. Grant of Security Interest. The Company hereby grants to the Lender,
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for the benefit of the Lender, to secure the payment and performance in full of
all of the Obligations, a security interest in and so pledges and assigns to the
Lender, for the benefit of the Lender, the Loan Agreement, of even date
herewith, by and between the Company and Constellation 3D, Inc. (the "Loan
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Agreement"), the Loan Documents (as defined in the Loan Agreement), including,
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without limitation, the promissory note, of even date herewith, made by
Constellation 3D, Inc. in favor of the Company pursuant to the Loan Agreement
(the "Company Note"), and the Option Agreement, of even date herewith, by and
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between the Company and Constellation 3D, Inc. (the "Option Agreement") and all
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proceeds and products thereof and supporting obligations, any other contract
rights or rights to the payment of money, insurance claims and proceeds, and all
general intangibles (including all payment intangibles) related thereto;
provided, however, that "Collateral" shall not include the Designated
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Securities. A reasonably detailed list of the Collateral existing as of the date
hereof is set forth on Schedule A attached hereto. For each item of Collateral,
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Schedule A provides the location, description and ownership and, for items of
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Collateral which have a certificate of title, the jurisdiction of such
certificates, and for those items of Collateral which are mobile goods (goods
that are mobile and generally used in more than one jurisdiction such as motor
vehicles, trailers and similar items) the present
location of such goods. Schedule A also identifies any liens and encumbrances
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with respect to any items of Collateral.
3. Authorization to File Financing Statements. The Company hereby
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irrevocably authorizes the Lender at any time and from time to time to file in
any filing office in any Uniform Commercial Code jurisdiction any initial
financing statements and amendments thereto meeting the requirements of the
Uniform Commercial Code of the State in such manner and in such jurisdictions as
are necessary to perfect the first priority security interest of the Lender in
the Collateral. The Company agrees to furnish any information necessary to such
filings to the Lender promptly upon the Lender's request.
4. Company Note. Further to insure the attachment, perfection and first
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priority of, and the ability of the Lender to enforce, the Lender's security
interest in the Company Note, the Company shall, on or prior to the Funding
Date, endorse, assign and deliver the Company Note to the Lender, accompanied by
such instruments of transfer or assignment duly executed in blank as the Lender
may from time to time specify.
5. Collateral in the Possession of a Bailee. If any Collateral is at any
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time in the possession of a bailee, the Company shall promptly notify the Lender
thereof and, at the Lender's request and option, shall promptly obtain an
acknowledgement from the bailee, in form and substance reasonably satisfactory
to the Lender, that the bailee holds such Collateral for the benefit of the
Lender and such bailee's agreement to comply, without further consent of the
Company, at any time with instructions of the Lender as to such Collateral. The
Lender agrees with the Company that the Lender shall not give any such
instructions unless an Event of Default has occurred and is continuing or would
occur after taking into account any action by the Company with respect to the
bailee.
6. Other Actions. The Company further agrees, upon the request of the
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Lender and at the Lender's option, to take any and all other actions as the
Lender may reasonably determine to be necessary or useful for the attachment,
perfection and first priority of (subject to Permitted Liens), and the ability
of the Lender to enforce, the Lender's security interest in any and all of the
Collateral, including, without limitation, (a) executing, delivering and, where
appropriate, filing financing statements and amendments relating thereto under
the Uniform Commercial Code, to the extent, if any, that the Company's signature
thereon is required therefor, (b) causing the Lender's name to be noted as
secured party on any certificate of title for a titled good if such notation is
a condition to attachment, perfection or priority of, or ability of the Lender
to enforce, the Lender's security interest in such Collateral, (c) complying
with any provision of any statute, regulation or treaty of the United States as
to any Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of the Lender to enforce, the
Lender's security interest in such Collateral, (d) using all reasonable efforts
in obtaining governmental and other third party waivers, consents and approvals,
in form and substance satisfactory to the Lender and (e) taking all actions
under any earlier versions of the Uniform Commercial Code or under any other
law, as reasonably determined by the Lender to be applicable in any relevant
Uniform Commercial Code or other jurisdiction, including any foreign
jurisdiction.
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7. Representations and Warranties of the Company Legal Status. The
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representations and warranties made by the Company in the Loan Agreement are
hereby incorporated by reference herein.
8. Covenants Concerning Company's Legal Status. The Company covenants
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with the Lender as follows: (a) without providing at least thirty (30) days
prior written notice to the Lender, the Company will not change its name, its
place of business or, if more than one, chief executive office, or its mailing
address or organizational identification number if it has one, (b) if the
Company does not have an organizational identification number and later obtains
one, the Company will forthwith notify the Lender of such organizational
identification number, and (c) the Company will not change its type of
organization, jurisdiction of organization or other legal structure.
9. Covenants Concerning Collateral, Etc. The Company further covenants
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with the Lender as follows: (a) the Collateral, to the extent not delivered to
the Lender pursuant to Section 4, will be kept at those locations where it is
presently located and previously disclosed to the Lender and the Company will
not remove the Collateral from such locations, without providing at least 30
days prior written notice to the Lender, (b) except for the security interest
herein granted and Permitted Liens, the Company shall be the owner of or have
other rights in the Collateral free from any right or claim of any other person
or any Lien, and the Company shall defend the same against all claims and
demands of all persons at any time claiming the same or any interests therein
adverse to the Lender, (c) the Company shall not pledge, mortgage or create, or
suffer to exist any right of any person in or claim by any person to the
Collateral, or any Lien in the Collateral in favor of any person, other than the
Lender except for Permitted Liens, (d) the Company will keep the Collateral in
good order and repair and will not use the same in material violation of law or
any policy of insurance thereon, (e) as provided in the Loan Agreement, the
Company will permit the Lender, or its designee, to inspect the Collateral at
any reasonable time, wherever located, (f) the Company will pay promptly when
due all taxes, assessments, governmental charges and levies upon the Collateral
or incurred in connection with the use or operation of the Collateral or
incurred in connection with this Agreement, and (g) the Company will not sell or
otherwise dispose of, or offer to sell or otherwise dispose of, the Collateral
or any interest therein except as provided in Section 10.5.2 of the Loan
Agreement.
10.Collateral Protection Expenses; Preservation of Collateral.
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10.1. Expenses Incurred by Lender. In the Lender's discretion, if the
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Company fails to do so, the Lender may discharge taxes and other encumbrances at
any time levied or placed on any of the Collateral, and pay any necessary filing
fees. The Company agrees to reimburse the Lender on demand for all commercially
reasonable expenditures so made. The Lender shall have no obligation to the
Company to make any such expenditures, nor shall the making thereof be construed
as a waiver or cure of any Default or Event of Default.
10.2. Lender's Obligations and Duties. Anything herein to the contrary
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notwithstanding, the Company shall remain obligated and liable under each
material contract or agreement comprised in the Collateral to be observed or
performed by the Company thereunder. The Lender shall not have any obligation or
liability under any such contract or agreement by reason of or arising out of
this Agreement or the receipt by the Lender of any payment relating to
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any of the Collateral, nor shall Lender be obligated in any manner to perform
any of the obligations of the Company under or pursuant to any such contract or
agreement, to make inquiry as to the nature or sufficiency of any payment
received by the Lender in respect of the Collateral or as to the sufficiency of
any performance by any party under any such contract or agreement, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts which may have been assigned to the Lender or to which
the Lender may be entitled at any time or times. The Lender's sole duty with
respect to the custody, safe keeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the Uniform Commercial Code of the
State or otherwise, shall be to deal with such Collateral in the same manner as
the Lender deals with similar property for its own account.
11. Securities and Deposits. The Lender may at any time following and
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during the continuance of an Event of Default, at its option, transfer to itself
or any nominee the Company Note, receive any income thereon and hold such income
as additional Collateral or apply it to the Obligations. Regardless of the
adequacy of Collateral or any other security for the Obligations, any deposits
or other sums at any time credited by or due from the Lender to the Company may
at any time be applied to or set off against any of the Obligations.
12. Notification to Account Debtors and Other Persons Obligated on
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Collateral. If an Event of Default shall have occurred and be continuing, the
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Company shall, at the request and option of the Lender, notify Constellation 3D,
Inc. of the security interest of the Lender in the Company Note and that payment
thereof is to be made directly to the Lender or to any financial institution
designated by the Lender as the Lender's agent therefor, and the Lender may
itself, if an Event of Default shall have occurred and be continuing, without
notice to or demand upon the Company, so notify Constellation 3D, Inc. After the
making of such a request or the giving of any such notification, the Company
shall hold any proceeds received by the Company with respect to the Company Note
as trustee for the Lender, for the benefit of the Lender, without commingling
the same with other funds of the Company and shall turn the same over to the
Lender in the identical form received, together with any necessary endorsements
or assignments. The Lender shall apply the proceeds of the Company Note received
by the Lender to the Obligations, such proceeds to be immediately credited after
final payment in cash or other immediately available funds of the items giving
rise to them.
13. Power of Attorney.
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13.1. Appointment and Powers of Lender. The Company hereby irrevocably
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constitutes and appoints the Lender and any officer or agent thereof, with full
power of substitution, as its true and lawful attorneys-in-fact with full
irrevocable power and authority in the place and stead of the Company or in the
Lender's own name, for the purpose of carrying out the terms of this Agreement,
to take any and all appropriate action and to execute any and all documents and
instruments that may be necessary or useful to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby gives
said attorneys the power and right, on behalf of the Company, without notice to
or assent by the Company, to do the following:
(a) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement
with respect to or
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otherwise dispose of or deal with any of the Collateral in such manner
as is consistent with the Uniform Commercial Code of the State and as
fully and completely as though the Lender were the absolute owner
thereof for all purposes, and to do, at the Company's expense, at any
time, or from time to time, all acts and things which the Lender deems
necessary or useful to protect, preserve or realize upon the
Collateral and the Lender's security interest therein, in order to
effect the intent of this Agreement, all no less fully and effectively
as the Company might do, including, without limitation, upon written
notice to the Company, the exercise of voting rights with respect to
voting securities, which rights may be exercised, if the Lender so
elects, with a view to causing the liquidation of assets of the issuer
of any such securities and the execution, delivery and recording, in
connection with any sale or other disposition of any Collateral, of
the endorsements, assignments or other instruments of conveyance or
transfer with respect to such Collateral; and
(b) to the extent that the Company's authorization given in
Section 3 is not sufficient, to file such financing statements with
respect hereto, with or without the Company's signature, or a
photocopy of this Agreement in substitution for a financing statement,
as the Lender may deem appropriate and to execute in the Company's
name such financing statements and amendments thereto and continuation
statements which may require the Company's signature.
13.2. Ratification by Company. To the extent permitted by law, the
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Company hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof. This power of attorney is a power coupled with an
interest and is irrevocable.
13.3. No Duty on Lender. The powers conferred on the Lender hereunder
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are solely to protect the interests of the Lender in the Collateral and shall
not impose any duty upon the Lender to exercise any such powers. The Lender
shall be accountable only for the amounts that it actually receives as a result
of the exercise of such powers, and neither it nor any of its officers,
directors, employees or agents shall be responsible to the Company for any act
or failure to act, except for the Lender's own gross negligence or willful
misconduct.
14. Rights and Remedies. If an Event of Default shall have occurred and be
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continuing, the Lender, without any other notice to or demand upon the Company,
shall have in any jurisdiction in which enforcement hereof is sought, in
addition to all other rights and remedies, the rights and remedies of a secured
party under the Uniform Commercial Code of the State and any additional rights
and remedies as may be provided to a secured party in any jurisdiction in which
Collateral is located, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Lender may, so far as the
Company can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Lender may in its
discretion require the Company to assemble all or any part of the Collateral at
such location or locations within the jurisdiction(s) of the Company's principal
office(s) or at such other locations as the Lender may reasonably designate. The
Company waives any and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Lender's rights and remedies hereunder,
including, without limitation,
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its right following an Event of Default to take immediate possession of the
Collateral and to exercise its rights and remedies with respect thereto.
15. Standards for Exercising Rights and Remedies. To the extent that
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applicable law imposes duties on the Lender to exercise remedies in a
commercially reasonable manner, the Company acknowledges and agrees that it is
not commercially unreasonable for the Lender (a) to fail to obtain third party
consents for access to Collateral, or to obtain or, if not required by other
law, to fail to obtain governmental or third party consents for the collection
of Collateral to be collected, (b) to fail to exercise collection remedies
against account debtors or other persons obligated on Collateral or to fail to
remove Liens on or any adverse claims against Collateral or (c) to exercise
collection remedies against account debtors and other persons obligated on
Collateral directly or through the use of collection agencies and other
collection specialists. The Company acknowledges that the purpose of this
Section 15 is to provide non-exhaustive indications of what actions or omissions
by the Lender would fulfill the Lender's duties under the Uniform Commercial
Code of the State or any other relevant jurisdiction in the Lender's exercise of
remedies against the Collateral and that other actions or omissions by the
Lender shall not be deemed to fail to fulfill such duties solely on account of
not being indicated in this Section 15. Without limitation upon the foregoing,
nothing contained in this Section 15 shall be construed to grant any rights to
the Company or to impose any duties on the Lender that would not have been
granted or imposed by this Agreement or by applicable law in the absence of this
Section 15.
16. No Waiver by Lender, etc. The Lender shall not be deemed to have
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waived any of its rights and remedies in respect of the Obligations or the
Collateral unless such waiver shall be in writing and signed by the Lender. No
delay or omission on the part of the Lender in exercising any right or remedy
shall operate as a waiver of such right or remedy or any other right or remedy.
A 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 rights and remedies of the Lender
with respect to the Obligations or the Collateral, whether evidenced hereby or
by any other instrument or papers, shall be cumulative and may be exercised
singularly, alternatively, successively or concurrently at such time or at such
times as the Lender deems expedient.
17. Suretyship Waivers by Company. The Company waives demand, notice,
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protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, Collateral received or delivered or other action taken in reliance
hereon and all other demands and notices of any description. With respect to
both the Obligations and the Collateral, the Company assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security interest
in any Collateral, to the addition or release of any party or person primarily
or secondarily liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as the Lender may deem advisable. The Lender shall have no
duty as to the collection or protection of the Collateral or any income
therefrom, the preservation of rights against prior parties, or the preservation
of any rights pertaining thereto beyond the safe custody thereof as set forth in
Section 10.2. The Company further waives any and all other suretyship defenses.
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18. Marshalling. The Lender shall not be required to marshal any
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present or future collateral security (including but not limited to the
Collateral) for, or other assurances of payment of, the Obligations or any of
them or to resort to such collateral security or other assurances of payment in
any particular order, and all of the rights and remedies of the Lender hereunder
and of the Lender in respect of such collateral security and other assurances of
payment shall be cumulative and in addition to all other rights and remedies,
however existing or arising. To the extent that it lawfully may, the Company
hereby agrees that it will not invoke any law relating to the marshalling of
collateral which might cause delay in or impede the enforcement of the Lender's
rights and remedies under this Agreement or under any other instrument creating
or evidencing any of the Obligations or under which any of the Obligations is
outstanding or by which any of the Obligations is secured or payment thereof is
otherwise assured, and, to the extent that it lawfully may, the Company hereby
irrevocably waives the benefits of all such laws.
19. Proceeds of Dispositions; Expenses. The Company shall pay to the
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Lender on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Lender in protecting, preserving or
enforcing the Lender's rights and remedies under or in respect of any of the
Obligations or any of the Collateral. After deducting all of said expenses, the
residue of any proceeds of collection or sale or other disposition of Collateral
shall, to the extent actually received in cash, be applied to the payment of the
Obligations in such order or preference as is provided in the Loan Agreement,
proper allowance and provision being made for any Obligations not then due. Upon
the final payment and satisfaction in full of all of the Obligations and after
making any payments required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of the
Uniform Commercial Code of the State, any excess shall be returned to the
Company. In the absence of final payment and satisfaction in full of all of the
Obligations, the Company shall remain liable for any deficiency.
20. Overdue Amounts. Until paid, all amounts due and payable by the
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Company hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Loan Agreement.
21. Governing Law; Consent to Jurisdiction. THIS AGREEMENT AND THE
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RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE COMPANY HEREBY
IRREVOCABLY AND UNCONDITIONALLY: (A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK; (B) CONSENTS THAT
ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; (C) AGREES THAT
SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A
COPY THEREOF BY REGISTERED
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OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH IN SECTION 8.1 OF THE LOAN
AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED
PURSUANT THERETO; (D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION; AND (E) WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
22. Waiver of Jury Trial. EACH OF THE COMPANY AND THE LENDER HEREBY
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IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
23. Effectiveness; Termination. This Agreement shall become effective
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upon the advance of the Loan on the Funding Date. This Agreement shall terminate
automatically upon the earlier to occur of the (x) the Effective Date (as such
term is defined in the Assignment Agreement, of even date herewith, by and
between Lender, the Company and Constellation C3D, Inc. and (y) November 18,
2002; provided, however, that the Company shall have no further Obligations to
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the Lender under the Loan Agreement. Upon the termination of this Agreement, the
security interest in the Collateral created hereby by immediately cease, the
Lender shall promptly return any Collateral held by the Lender pursuant to the
terms hereof, and the Lender shall promptly file in any filing office where
financing statements have been filed in respect of the Collateral pursuant to
Section 3 hereof, an amended to such financing statements terminating their
effectiveness.
24. Miscellaneous. The headings of each section of this Agreement are
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for convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of the
Lender, and its successors and assigns. If any term of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity of all other terms
hereof shall in no way be affected thereby, and this Agreement shall be
construed and be enforceable as if such invalid, illegal or unenforceable term
had not been included herein. The Company acknowledges receipt of a copy of this
Agreement.
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IN WITNESS WHEREOF, intending to be legally bound, the Company has
caused this Agreement to be duly executed as of the date first above written.
CONSTELLATION 3D TECHNOLOGY LIMITED
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
ACCEPTED:
TIC TARGET INVEST CONSULTING, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
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SCHEDULE A
Identification, Ownership and Location of Collateral
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