SECURITY AGREEMENT
Exhibit 10.10
THIS SECURITY AGREEMENT (the
“Agreement”), is entered into and made
effective as of January 14, 2010, by and between by and between Xx Xxxxxx, an
individual with identification number 330727196412260928 (the “Grantor”) and Hyundai
Light and Electronic (Huizhou) Co., Ltd., a company organized under the laws of
the PRC (the “Hyundai
Light”), and China Intelligent Electronic Holding Limited, a British
Virgin Islands corporation (“China Intelligent,”
and collectively with Hyundai Light, the “Secured
Parties”). Capitalized terms not defined herein shall have the
meanings as provided in the Indemnification Agreement, as defined
below.
WHEREAS, in connection with
the Indemnification Agreement by and among the Grantor and each of the Secured
Parties of even date herewith (the “Indemnification
Agreement”), the Grantor has agreed, upon the terms and subject to the
conditions of the Indemnification Agreement, to indemnify the each of the
Secured Parties with respect to the Tax Rate Approval and Approval
Revocation;
WHEREAS, the Grantor
acknowledges that it will receive a direct benefit from the Exchange Agreement
and Share Exchange; and
WHEREAS, it is a condition
precedent to Share Exchange and Exchange Agreement that the Grantor shall have
executed and delivered to the each of the Secured Parties this Agreement
providing for the grant to each of the Secured Parties of a security interest in
Pledged Property, as defined below;
NOW, THEREFORE, in
consideration of the promises and the mutual covenants herein contained, and for
other good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE
1.
PLEDGED
PROPERTY
Section
1.1. Grant of Security
Interest.
(a) As
collateral security for all of the Obligations (as defined in Section 1.2 hereof),
Grantor hereby pledges and assigns to each of the Secured Parties, and grants to
each of the Secured Parties for its benefit, a continuing security interest in
and to all property described on Exhibit A attached
hereto (the “Pledged
Property”).
(b) Promptly
after the execution and delivery of this Agreement, Grantor shall make, execute,
acknowledge, file, record and deliver to each of the Secured Parties such
documents, instruments, and agreements, including, without limitation, financing
statements, certificates, affidavits and forms as may, in each of the Secured
Parties’ reasonable judgment, be necessary to effectuate, complete or perfect,
or to continue and preserve, the security interest of each of the Secured
Parties in the Pledged Property.
Section
1.2 Security for
Obligations. The security interest created hereby in the
Pledged Property constitutes continuing collateral security for all of the
obligations that may arise under the terms and conditions of the Indemnification
Agreement, whether now existing or hereinafter incurred (collectively, the
“Obligations”),
the due performance and observance by the Grantor of all of its other
obligations from time to time existing in respect of the Indemnification
Agreement.
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ARTICLE
2.
ATTORNEY-IN-FACT;
PERFORMANCE
Section
2.1. Secured Party Appointed
Attorney-In-Fact.
The
Grantor hereby appoints each of the Secured Parties as its attorney-in-fact,
with full authority in the place and stead of the Grantor and in the name of the
Grantor or otherwise, exercisable after and during the continuance of
obligations become due under the Indemnification Agreement, from time to time in
each of the Secured Parties’ discretion to take any action and to execute any
instrument which each of the Secured Parties may reasonably deem necessary to
accomplish the purposes of the Indemnification Agreement and this Agreement,
including, without limitation, to (a) receive and collect all instruments made
payable to the Grantor representing any payments in respect of the Pledged
Property or any part thereof and to give full discharge for the same; (b)
demand, collect, receipt for, settle, compromise, adjust, xxx for, foreclose, or
realize on the Pledged Property as and when each of the Secured Parties may
determine, and (c) to facilitate collection, each of the Secured Parties may
notify account debtors and obligors on any Pledged Property to make payments
directly to each of the Secured Parties. The foregoing power of
attorney is a power coupled with an interest and shall be irrevocable until all
Obligations are paid and performed in full. The Grantor agrees that
the powers conferred on each of the Secured Parties hereunder are solely to
protect each of the Secured Parties’ interests in the Pledged Property and shall
not impose any duty upon each of the Secured Parties to exercise any such
powers.
Section
2.2. Secured Party May
Perform.
If a
Grantor fails to perform any agreement contained herein, each of the Secured
Parties, at its option, may itself perform, or cause performance of, such
agreement, and the expenses of each of the Secured Parties incurred in
connection therewith shall be included in the Obligations secured hereby and
payable by Grantor. Each Secured Parties shall be able to take such
action on its behalf under the provisions of the Agreement and the
Indemnification Agreement and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of each of
the Secured Parties by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. Each of the Secured Parties may
perform any of its duties hereunder by or through its agents or
employees.
ARTICLE
3.
REPRESENTATIONS AND
WARRANTIES
Section
3.1. Authorization;
Enforceability.
Each of
the parties hereto represents and warrants that it has taken all action
necessary to authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby; and upon execution and delivery, this
Agreement shall constitute a valid and binding obligation of the respective
party, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors’ rights or by the principles governing the
availability of equitable remedies.
Section
3.2. Ownership of Pledged
Property.
Grantor
represents and warrants that she is the legal and beneficial owner of the
Pledged Property free and clear of any lien, security interest, option or other
charge or encumbrance (each, a “Lien”) except for the
security interest created by this Agreement and other Permitted
Liens. For purposes of this Agreement, “Permitted Liens”
means: (1) the security interest created by this Agreement, (2) existing Liens
which have been disclosed by the Grantor to each of the Secured Parties as set
forth in Exhibit A attached hereto; (3) inchoate Liens for taxes, assessments or
governmental charges or levies not yet due, as to which the grace period, if
any, related thereto has not yet expired, or being contested in good faith and
by appropriate proceedings for which adequate reserves have been established in
accordance with GAAP; (4) licenses, sublicenses, leases or subleases granted to
other Persons; and (5) easements, rights-of-way, restrictions, encroachments,
municipal zoning ordinances and other similar charges or encumbrances, and minor
title deficiencies, in each case not securing debt and not materially detracting
from the value of the Pledged Property.
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Section
3.3 Priority of Security
Interest.
The
security interest granted to each of the Secured Parties hereunder shall be a
primary priority security interest subject to no other Liens. Except
for the Permitted Liens, no financing statement or similar document covering the
Pledged Property or any proceeds thereof is on file in any public
office.
ARTICLE
4.
REMEDIES
Section
4.1
Method of Realizing Upon the
Pledged Property: Other Remedies.
At any
time that the Grantor fails to uphold her obligations under the Indemnification
Agreement, then:
(a) Each
of the Secured Parties may exercise in respect of the Pledged Property, in
addition to any other rights and remedies provided for herein or otherwise
available to it, all of the rights and remedies of a secured party upon default
under applicable laws, and also may (i) take absolute control of the Pledged
Property, including, without limitation, transfer into each of the Secured
Parties’ name or into the name of its nominee or nominees (to the extent each of
the Secured Parties has not theretofore done so) and thereafter receive, for the
benefit of each of the Secured Parties, all payments made thereon, give all
consents, waivers and ratifications in respect thereof and otherwise act with
respect thereto as though it were the outright owner thereof, and (ii)
without notice except as specified below and without any obligation to prepare
or process the Pledged Property for sale, (A) sell the Pledged Property or
any part thereof in one or more parcels at public or private sale, at any of
each of the Secured Parties’ offices or elsewhere, for cash, on credit or for
future delivery, and at such price or prices and upon such other terms as each
of the Secured Parties may deem commercially reasonable and/or (B) lease,
license or dispose of the Pledged Property or any part thereof upon such terms
as each of the Secured Parties may deem commercially
reasonable. Grantor agrees that, to the extent notice of sale or any
other disposition of the Pledged Property shall be required by law, at least ten
(10) days' notice to the Grantor of the time and place of any public sale or the
time after which any private sale or other disposition of the Pledged Property
is to be made shall constitute reasonable notification. Each of the
Secured Parties shall not be obligated to make any sale or other disposition of
any Pledged Property regardless of notice of sale having been
given. Each of the Secured Parties may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to which it
was so adjourned. Grantor hereby waives any claims against each of
the Secured Parties arising by reason of the fact that the price at which the
Pledged Property may have been sold at a private sale was less than the price
which might have been obtained at a public sale or was less than the aggregate
amount of the Obligations, even if each of the Secured Parties accepts the first
offer received and does not offer such Pledged Property to more than one
offeree, and waives all rights that the Grantor may have to require that all or
any part of such Pledged Property be marshaled upon any sale (public or private)
thereof. Grantor hereby acknowledges that (i) any such sale of
the Pledged Property by each of the Secured Parties may be made without
warranty, (ii) each of the Secured Parties may specifically disclaim any
warranties of title, possession, quiet enjoyment or the like, and
(iii) such actions set forth in clauses (i) and (ii) above shall not
adversely affect the commercial reasonableness of any such sale of Pledged
Property.
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(b) In
the event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which each of the Secured Parties is legally
entitled, Grantor shall be liable for the deficiency, together with interest as
shall be fixed by applicable law, together with the costs of collection and the
reasonable fees, costs, expenses and other client charges of any attorneys
employed by each of the Secured Parties to collect such deficiency.
(c) Grantor
hereby acknowledges that if each of the Secured Parties complies with any
applicable state, provincial, or federal law requirements in connection with a
disposition of the Pledged Property, such compliance will not adversely affect
the commercial reasonableness of any sale or other disposition of the Pledged
Property.
(d) Each
of the Secured Parties shall not be required to marshal any present or future
collateral security (including, but not limited to, this Agreement and the
Pledged Property) 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 each of the Secured Parties’ rights
hereunder and in respect of such collateral security and other assurances of
payment shall be cumulative and in addition to all other rights, however
existing or arising. To the extent that the Grantor lawfully may,
Grantor hereby agrees that it will not invoke any law relating to the marshaling
of collateral which might cause delay in or impede the enforcement of each of
the Secured Parties’ rights 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 Grantor hereby irrevocably waives the benefits of all such
laws.
Section
4.2
Duties Regarding Pledged
Property.
Each of
the Secured Parties shall have no duty as to the collection or protection of the
Pledged Property or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody and reasonable care of any of the
Pledged Property actually in each of the Secured Parties’
possession.
ARTICLE
5.
AFFIRMATIVE
COVENANTS
So long
as any of the Obligations shall remain outstanding, unless each of the Secured
Parties shall otherwise consent in writing:
Section
5.1. Existence, Properties,
Etc.
Grantor
shall do, or cause to be done, all things, or proceed with due diligence with
any actions or courses of action, that may be reasonably necessary (i) to
maintain Grantor’s good standing under the laws of her residence and
(ii) to preserve and keep in full force and effect all qualifications,
licenses and registrations in those jurisdictions in which the failure to do so
could have a Material Adverse Effect (as defined below) on the Pledged Property;
and (b) Grantor shall not do, or cause to be done, any act impairing the
Grantor’s authority to maintain the Pledged Property. For purpose of
this Agreement, the term “Material Adverse
Effect” shall mean any material and adverse affect as determined by
Secured Party in its reasonable discretion, whether individually or in the
aggregate, upon the Pledged Property.
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Section
5.2. Maintenance.
Grantor
shall maintain or cause to be maintained, at her own expense, all of the Pledged
Property, including keeping such in good working order and condition, ordinary
wear and tear excepted, making all necessary repairs thereto.
Section
5.3. Defense of Collateral,
Etc.
Grantor
shall defend and enforce its right, title and interest in and to any part
of: (a) the Pledged Property; and (b) if not included
within the Pledged Property, those assets and properties whose loss would
reasonably be expected to have a Material Adverse Effect, each against all
manner of claims and demands on a timely basis to the full extent permitted by
applicable law (other than any such claims and demands by holders of Permitted
Liens).
Section
5.4. Taxes and
Assessments.
Grantor
shall (a) file all material tax returns and appropriate schedules thereto
that are required to be filed under applicable law, prior to the date of
delinquency (taking into account any extensions of the original due date)
related to the Pledged Property, (b) pay and discharge all material taxes,
assessments and governmental charges or levies imposed upon the Pledged Property
prior to the date on which penalties attach thereto, and (c) pay all
material taxes, assessments and governmental charges or levies that, if unpaid,
might become a lien or charge upon any the Pledged Property; provided, however, that the
Grantor in good faith may contest any such tax, assessment, governmental charge
or levy described in the foregoing clauses (b) and (c) so long as appropriate
reserves are maintained with respect thereto.
Section
5.5. Compliance with Law and
Other Agreements.
Grantor
shall maintain the Pledged Property in compliance with (a) all applicable
federal, state and local laws, regulations and ordinances, and (b) all
agreements, licenses, indentures and mortgages to which the Grantor is a party
and as related to the Pledged Property, except where the failure to so comply
would not reasonably be expected to have a Material Adverse Effect.
Section
5.6. Notice of Loss of
Value.
The
Grantor will immediately notify each of the Secured Parties of any event causing
a substantial loss or diminution in the value of all or any material part of the
Pledged Property and the amount or an estimate of the amount of such loss or
diminution.
Section
5.7 Perfection of Security
Interests.
(a) Financing
Statements. The Grantor hereby irrevocably authorizes
each of the Secured Parties, at the sole cost and expense of the Grantor, at any
time and from time to time to file in any filing office in any jurisdiction any
initial financing statements or similar documents and filings related to the
Pledged Property and securing of the interests of the Secured Parties under this
Agreement. Grantor agrees to furnish any required information to each
of the Secured Parties promptly upon request. Grantor also ratifies
its authorization for each of the Secured Parties to have filed in any
jurisdiction any initial financing statements or amendments thereto if filed
prior to the date hereof. The Grantor acknowledges that its is not authorized to
file any financing statement or amendment or termination statement with respect
to any financing statement without the prior written consent of each of the
Secured Parties and agree that it will not do so without the prior written
consent of each of the Secured Parties. The Grantor acknowledges and
agrees that this Agreement constitutes an authenticated record.
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(b) Possession. The
Grantor shall have possession of the Pledged Property, except where expressly
otherwise provided in this Agreement or where each of the Secured Parties
chooses to perfect its security interest by possession in addition to the filing
of a financing statement.
(c) Control.
The Grantor will cooperate with each of the Secured Parties in obtaining control
with respect to the Pledged Property, where the Secured Parties shall have such
rights under this Agreement.
ARTICLE
6.
NEGATIVE
COVENANTS
So long
as any of the Obligations shall remain outstanding, unless each of the Secured
Parties shall otherwise consent in writing Grantor covenants and agrees that it
shall not:
Section
6.1. Transfers, Liens and
Encumbrances.
(a) Sell,
assign (by operation of law or otherwise), lease, license, exchange or otherwise
transfer or dispose of any of the Pledged Property.
(b) Directly
or indirectly make, create, incur, assume or permit to exist any Lien in, to or
against any part of the Pledged Property other than Permitted
Liens.
ARTICLE
7.
MISCELLANEOUS
Section
7.1. Notices.
All
notices or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and shall be considered as duly given
on: (a) the date of delivery, if delivered in person or by
nationally recognized overnight delivery service or
(b) five (5) days after mailing if mailed from within the
continental United States by certified mail, return receipt requested to the
party entitled to receive the same:
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If
to each of the Secured Parties:
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China
Intelligent Electronic Holding Limited
Hyundai
Light & Electric (Huizhou) Company Limited
Xx.
00 & 00, Xxxxxxxx Xxxx,
Xxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxx, Xxxxx
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With a copy to:
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K&L
Gates LLP
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00000
Xxxxx Xxxxxx Xxxx., 0xx
Xxxxx
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Xxx
Xxxxxxx, XX 00000
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Attention: Xxxxxx
X. Xxxxxxx
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6
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If
to the Grantor:
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Xx
Xxxxxx
Xx.
00 & 00, Xxxxxxxx Xxxx,
Xxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxx, Xxxxx
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Section
7.2. Severability.
If any
provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein.
Section
7.3. Expenses.
In the
event of the Secured Parities enforcing its rights under this Agreement, the
Grantor will pay to each of the Secured Parties the amount of any and all
reasonable out-of-pocket expenses, including the reasonable fees and expenses of
its counsel, which each of the Secured Parties may incur in connection
with: (i) the custody or preservation of, or the sale,
collection from, or other realization upon, any of the Pledged Property;
(ii) the exercise or enforcement of any of the rights of each of the
Secured Parties hereunder or (iii) the failure by the Grantor to perform or
observe any of the provisions hereof.
Section
7.4. Waivers, Amendments,
Etc.
Each of
the Secured Parties’ delay or failure at any time or times hereafter to require
strict performance by Grantor of any undertakings, agreements or covenants shall
not waive, affect, or diminish any right of each of the Secured Parties under
this Agreement to demand strict compliance and performance
herewith. None of the undertakings, agreements and covenants of the
Grantor contained in this Agreement, shall be deemed to have been waived by each
of the Secured Parties, nor may this Agreement be amended, changed or modified,
unless such waiver, amendment, change or modification is evidenced by an
instrument in writing specifying such waiver, amendment, change or modification
and signed by each of the Secured Parties in the case of any such waiver, and
signed by each of the Secured Parties and the Grantor in the case of any such
amendment, change or modification. Further, no such document,
instrument, and/or agreement purported to be executed on behalf of each of the
Secured Parties shall be binding upon each of the Secured Parties unless
executed by a duly authorized representative of each of the Secured Parties and
approved by the shareholders of such party.
Section
7.5. Continuing Security
Interest.
This
Agreement shall create a continuing security interest in the Pledged Property
and shall: (i) remain in full force and effect so long as any of the
Obligations shall remain outstanding; (ii) be binding upon Grantor and its
successors and assigns; and (iii) inure to the benefit of each of the
Secured Parties and its successors and assigns. Upon the payment or
satisfaction in full of the Obligations, this Agreement and the security
interest created hereby shall terminate, and, in connection therewith, Grantor
shall be entitled to the return, at its expense, of such of the Pledged Property
as shall not have been sold in accordance with this Agreement and each of the
Secured Parties shall deliver to the Grantor such documents as the Grantor shall
reasonably request to evidence such termination.
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Section
7.6. Independent
Representation.
Each
party hereto acknowledges and agrees that it has received or has had the
opportunity to receive independent legal counsel of its own choice and that it
has been sufficiently apprised of its rights and responsibilities with regard to
the substance of this Agreement.
Section
7.7. Applicable
Law: Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Delaware without regard to the principles of conflict of
laws.
Section
7.8. Waiver of Jury
Trial.
AS A
FURTHER INDUCEMENT FOR EACH OF THE SECURED PARTIES TO ENTER INTO THIS AGREEMENT
AND TO MAKE THE FINANCIAL ACCOMMODATIONS TO THE GRANTOR, THE GRANTOR HEREBY
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO
THIS AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED TO THIS
TRANSACTION.
Section
7.9
Entire
Agreement.
From time
to time after the date of this Agreement and without further consideration from
the Secured Parities, the Grantor shall execute and deliver, or cause to be
executed and delivered, to the Secured Parities such further documents and
instruments and take such other action as the Secured Parities may reasonably
request in order to more effect the transactions contemplated
hereby.
Section
7.10 Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties and supersedes any
prior agreement or understanding among them with respect to the subject matter
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
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GRANTOR:
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/s/ Li Xxxxxx
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Xx
Xuemei
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SECURED
PARTIES:
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Hyundai
Light and Electronic (Huizhou) Co., Ltd.
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By:
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/s/ Xx Xxxxxx
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Name: Xx
Xxxxxx
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Title: Chairman
and CEO
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China
Intelligent Electronic Holding Limited
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By:
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/s/ Xx Xxxxxx
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Name: Xx
Xxxxxx
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Title: Chairman
and
CEO
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EXHIBIT
A
DEFINITION OF PLEDGED
PROPERTY
For the
purpose of securing prompt and complete payment and performance by the Grantor
of all of the Obligations, the Grantor unconditionally and irrevocably hereby
grant to each of the Secured Parties a continuing security interest in and to,
and lien upon, the following Pledged Property of Grantor:
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Land
location:
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Fuzhou
road, Shazui, Xiantao City, Hubei province, China
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Area:
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89,687,79
m2
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Price:
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RMB
1003.9 per m2
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Total
market value:
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RMB
90,000,080.
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Assessing
date:
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December
20, 2009
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10
