EXECUTION COPY
ACS Security Agreement
SECURITY AGREEMENT
This SECURITY AGREEMENT (as the same may be amended, supplemented
or otherwise modified from time to time, this "Security
Agreement"), dated as of July 21, 1998, made by ACCENT COLOR
SCIENCES, a Connecticut corporation having its principal place of
business at 000 Xxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx
00000 (the "Company") to INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation with its principal place of
business at Xxx Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, as the
secured party hereunder (hereinafter referred to as "Lender").
WHEREAS, the Company and Lender are parties to a certain Loan
Agreement, dated as of the date hereof (the "Loan Agreement"),
pursuant to which Lender has agreed to make a Loan (as defined in
the Loan Agreement) to the Company up to a maximum principal
amount of $2,500,000 (two million five hundred thousand dollars),
evidenced by a promissory note of the Company (the "Note");
WHEREAS, the execution and delivery of this Security Agreement by
the Company is required pursuant to the terms of the Loan
Agreement; and
WHEREAS, the Company has duly authorized and directed its
appropriate officers to execute this Security Agreement and the
same is being executed as an inducement to Lender to make the
Loan provided for as set forth in the Loan Agreement.
Capitalized terms used but not defined herein have the meanings
attributed to them in the Loan Agreement.
NOW, THEREFORE, in consideration of these premises, and for other
good and valuable consideration, receipt of which is hereby
acknowledged, and in order to induce Lender to enter into the
Loan Agreement, it is hereby agreed as follows:
SECTION 1. Security.
As security for the payment and fulfilment of its obligations to
Lender hereunder and under the Loan Agreement, the Note, the
Warrant and the Registration Rights Agreement, the Company hereby
grants to Lender, and hereby mortgages, pledges, hypothecates,
assigns and delivers to Lender a first priority security interest
in, general lien upon and/or right of setoff against the
following (hereinafter the "Security" or "Collateral"), together
with all right, title and interest of the Company therein and all
rights and remedies which the Company might exercise with respect
thereto but for the execution of this Agreement: all personal
and real property of the Company whether now or hereafter
existing or now owned or hereafter acquired or created and
wherever located, of every kind and description, tangible or
intangible, including, without limitation, the balance of every
account of the Company now or hereafter existing with Lender and
every other claim of the Company against Lender, now or hereafter
existing, and all money, goods, equipment, intellectual property,
inventory, instruments, securities, documents, chattel paper,
accounts, promissory notes, credits, claims, demands, general
intangibles, and any other property, rights or interests of the
Company of any nature whatsoever, and shall include the products,
proceeds and accessions of and to any thereof; provided, however,
that the security interest granted to Lender hereunder in the
items of Collateral set forth on Schedule 1 hereto shall be
subordinate to any security interest, right to purchase or other
interest held by the respective party identified on such
Schedule.
SECTION 2. Representations and Warranties of the Company.
2.1Title and Authority. The Company has good and valid rights in
and title to the Collateral with respect to which it has
purported to grant a security interest hereunder and has full
authority and power to grant to Lender the security interest in
the Collateral pursuant hereto and to execute, deliver and
perform its obligations in accordance with the terms of this
Agreement, without the consent or approval of any other person
other than any consent or approval that has been obtained.
2.2Filings. Fully executed Uniform Commercial Code financing
statements have been filed in each governmental, municipal or
other office specified in Schedule 2.2 hereto, which are all the
filings, recordings and registrations that are necessary to
publish notice of, protect the validity of and establish a legal
valid and perfected security in favor of Lender in respect of all
Collateral in which the security interest granted hereby may be
perfected by filing, recording or registration in the United
States and no further or subsequent filing, recording or
registration is necessary in any such jurisdiction, except as
provided under applicable law with respect to the filing of
continuation statements.
2.3Validity of Security Interest. The security interest granted
hereby constitutes: (a) a legal and valid security interest in
all the Collateral securing the obligations of the Company under
the Note, the Loan Agreement, the Warrant and the Registration
Rights Agreement and (b) a perfected security interest in all
Collateral in which a security interest may be perfected by
filing, recording or registering a financing statement or similar
document.
2.4No Liens. The Collateral is owned by the Company free and
clear of any Lien, except for Liens expressly permitted by
Section 3.10 of the Loan Agreement.
SECTION 3.Covenants of the Company
3.1Change of Name, etc. The Company agrees promptly to notify
Lender of any change (i) in its corporate name or any trade name
used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of its chief
executive offices, its principal place of business, any office in
which it maintains books or records relating to Collateral owned
by it or any office or facility at which such Collateral owned by
it is located (including the establishment of any such new office
or facility), or (iii) in its identity or corporate structure.
The Company agrees not to effect or permit any such change unless
all filings have been made under the Uniform Commercial Code that
are required in order for Lender to continue at all times
following such change to have a valid, legal and perfected
security interest in all the Collateral. The Company agrees
promptly to notify Lender if any material portion of the
Collateral is damaged or destroyed.
3.2Records; Inspection. (a) The Company agrees to maintain, at
its own cost and expense, complete and accurate records with
respect to the Collateral owned by it and, at such time or times
as Lender may request, promptly to prepare and deliver to Lender
a duly certified schedule showing the identity, amount and
location of any and all Collateral.
(b)Lender shall have the right at any reasonable time or times to
inspect the Collateral, all records relating thereto and the
premises on which the Collateral is located, to discuss the
Company's affairs with the officers of the Company and its
independent accountants and to verify under reasonable procedures
the validity, amount, quality, quantity, value condition and
status of, or any other matter relating to, the Collateral.
3.3Protection of Security. The Company shall, at its own
expense, take any and all actions necessary to defend title to
the Collateral against all persons and to defend the security
interest in the Collateral granted hereby and the priority
thereof against any Lien not expressly permitted under the Loan
Agreement.
3.4Limitation on Modification of Accounts. The Company will not,
without Lender's prior written consent, grant any extension of
the time of payment of any account receivable, compromise,
compound or settle the same for less than the full amount
thereof, release, wholly or partly, any person liable for the
payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises
or settlements granted in the ordinary course of business. After
an Event of Default shall have occurred and during the
continuance thereof, the Company shall not to grant or make any
such extension, credit, discount, compromise or settlement under
any circumstances without Lender's prior written consent.
3.5Location of Inventory. The Company agrees that it shall not
permit any inventory to be in the possession of any warehouseman,
bailee or agent at any time unless such warehouseman, bailee or
agent shall have been notified of the security interest created
hereby and shall have agreed in writing to hold the inventory
subject to the security interest and to waive and release any
Lien held by it with respect to such inventory.
3.6Further Assurances. The Company agrees to execute and deliver
to Lender such additional agreements and instruments, in form
satisfactory to Lender's counsel, and do such further acts or
things of any nature, whether similar to the acts enumerated
above or not, as Lender or its counsel may require or deem
advisable to carry into effect the purposes of this Security
Agreement and the Loan Agreement, or to better assure and confirm
unto Lender its rights, powers and remedies hereunder and under
the Loan Agreement.
SECTION 4.Power of Attorney.
(a)The Company hereby constitutes and appoints Lender its true
and lawful attorney-in-fact, in the place and stead of the
Company with full power of substitution, either in Lender's own
name or in the name of the Company, to ask for, demand, xxx for,
collect, receive, and give acquittance for any and all money due
or to become due under and by virtue of the Collateral, to
endorse checks, drafts, orders and other instruments for the
payment of money payable to the Company on account thereof, to
settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto, and to sell, assign, pledge,
transfer and make any agreement respecting, or otherwise deal
with, the same or take any action or execute any instrument which
Lender may deem necessary or desirable to accomplish the purpose
hereof; provided, however, that nothing herein contained shall be
construed as requiring or obligating Lender to make any demand,
or to make any inquiry as to the nature or sufficiency of any
payment received by it, or to present or file any claim for the
moneys due or to become due thereunder, and no action taken by
Lender or omitted to be taken with respect to the said Collateral
shall give rise to any defense, counterclaim or offset in favor
of the Company or to any claim or action against Lender. The
appointment hereunder by the Company of Lender as attorney-in-
fact is irrevocable and coupled with an interest.
(b)The Company hereby irrevocably authorizes Lender, at the
Company's own expense, to file such notices, financing
statements, mortgages, deeds of trust and other documents as
Lender or its counsel may deem necessary for the perfection of
the security interest and liens of Lender hereunder, without the
Company's signature, and appoints Lender as the Company's
attorney-in-fact to execute any such statements in the Company's
name and to perform all other acts which Lender deems appropriate
to perfect and continue the security interest conferred hereby.
SECTION 5.Remedies.
5.1General. During the effective period of this Security
Agreement, Lender shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code (as said law may
at any time be amended), and in addition thereto, the rights and
remedies provided herein, in the Loan Agreement, the Warrant, the
Registration Rights Agreement and in any other instrument,
document or agreement executed by the Company in favor of Lender.
5.2Remedies Upon an Event of Default. Upon the occurrence and
during the continuation of an Event of Default, the Company
agrees to deliver each item of Collateral to Lender on demand and
it is agreed that Lender shall have the right (subject to
applicable law) to take any of or all the following actions at
the same or different times: (a) with respect to any Collateral
consisting of intellectual property, on demand to cause the
security interest granted hereby to become an assignment,
transfer and conveyance of all such Collateral by the Company to
Lender, or to license or, to the extent permitted by applicable
law, to sublicense, any such Collateral throughout the world on
such terms and in such manner as Lender shall determine (other
than in violation of any then-existing license arrangements to
the extent that waivers cannot be obtained); and (b) with or
without legal process and with or without previous notice or
demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the
Collateral may be located for the purpose of taking possession of
or removing the Collateral and generally to exercise any and all
rights afforded to a secured party under the Uniform Commercial
Code. Without limiting the generality of the foregoing, Lender
may, without being required to give any notice, except of
intention to sell or of time and place of sale (except such
notice as is required by applicable statute and cannot be
waived), sell the Collateral, or any part thereof, at a public or
private sale, for cash, upon credit or for future delivery, and
at such price or prices as Lender may deem satisfactory, and
Lender may be the purchaser of any and all of the Collateral so
sold, and thereafter hold the same, absolutely, free from any
right or claim of whatsoever kind, including any equity of
redemption of the Company. Upon any such sale, the purchaser
shall hold the property sold absolutely, free from any claim or
right of whatsoever kind, including any equity or right of
redemption of the Company, which hereby specifically waives all
rights of redemption, and any rights of stay or appraisal which
the Company has or may have under any rule of law or statute now
existing or hereafter adopted. Any such public or private sale
shall be held at such time or times within ordinary business
hours and at such place or places in the State where the
Collateral is located or otherwise assembled, or elsewhere, or as
may be required by applicable law, as Lender may fix in the
notice of such sale. At any such private or public sale, the
Collateral may be sold as an entirety or in separate parcels, as
Lender may determine. Lender shall not be obligated to make any
sale pursuant to any such notice. Lender may, without notice or
publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and
place fixed for such sale, and such sale may, without further
notice, be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so
sold may be retained by Lender until the selling price is paid by
the purchase thereof, but Lender shall not incur any liability in
case of the failure of such purchaser to take up and pay for the
Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice. Lender, however,
instead of exercising the power of sale herein conferred upon it,
may proceed by a suit or suits at law or in equity to foreclose
the security interest granted pursuant to this Security Agreement
and sell the Collateral, or any portion thereof, under a judgment
or decree of a court or courts of competent jurisdiction, the
Company having been given notice of all such action.
5.3Application of Proceeds. The proceeds of any sale or
enforcement of all or any part of the Collateral, and any other
case at the time held by Lender pursuant to the terms of this
Security Agreement, shall be applied by Lender:
(1) First, to the payment of all costs and expenses paid or
incurred by Lender in connection with this Security
Agreement, the Loan Agreement, the Note, the Warrant and the
Registration Rights Agreement or the exercise of any right
or remedy hereunder or thereunder, including, without
limitation, the costs and expenses of any sale or
enforcement hereunder and all reasonable compensation to
Lender and its agents and legal counsel;
(2)Second, to the payment of the principal of and the
accrued interest on the Note;
(3)Finally, to the payment to the Company, its successors or
assigns, or as a court of competent jurisdiction may direct,
of any surplus then remaining from such proceeds.
5.4Grant of License to Use Intellectual Property. For the
purpose of enabling Lender to exercise rights and remedies under
this Section 5 at such time as Lender shall be lawfully entitled
to exercise such rights and remedies, the Company hereby grants
to Lender an irrevocable, non-exclusive license (exercisable
without payment or royalty to the Company) to use, license or
sublicense any of the Collateral consisting of intellectual
property now owned or hereinafter acquired by the Company, and
wherever the same may be located, and including in such license
reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof. The use
of such license by Lender shall be exercised, at the option of
Lender, upon the occurrence and during the continuation of an
Event of Default, provided that any license, sublicense or other
transaction entered into by Lender in accordance herewith shall
be binding upon the Company notwithstanding any subsequent cure
of an Event of Default.
SECTION 6.Limitation of Liability.
Neither Lender nor any of its respective directors, officers,
agents or employees shall be liable for any action taken or
omitted to be taken by it or them under this Security Agreement,
except for its or their own gross negligence or willful
misconduct. Lender shall be entitled to rely upon any paper,
instrument or document which it in good faith believes to be
genuine and correct and to have been signed or sent by the proper
person or persons.
SECTION 7. Miscellaneous.
7.1Successors and Assigns. This Security Agreement shall be
binding upon and shall inure to the benefit of Lender and its
successors and assigns.
7.2Assignment. Lender may assign this instrument or any of its
rights and powers hereunder to any subsidiary or affiliate of
Lender or to any person or entity who acquires all, or any
significant portion of, the assets of IBM Printing Systems
Company, and may assign and/or deliver to any such assignee any
of the Collateral herefor and, in the event of such assignment,
the assignee hereof or of such rights and powers and of such
Collateral, if any of such Collateral be so assigned and/or
delivered, shall have the rights and remedies as if originally
named herein in place of Lender, and Lender shall be thereafter
fully discharged from all responsibility with respect to any such
Collateral so assigned and/or delivered.
7.3No Waiver. No failure on the part of Lender to exercise, and
no delay in exercising, any right, power or remedy hereunder,
shall operate as a waiver thereof; nor shall any single or
partial exercise by Lender of any right, power or remedy
hereunder, operate as a waiver thereof; nor shall any single or
partial exercise by Lender of any right, power or remedy
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies
herein provided are cumulative and are not exclusive of any
remedies provided by law.
7.4 Termination. When all of the indebtedness and obligations
referred to herein and in the Loan Agreement shall have been paid
and performed in full, this Security Agreement shall terminate,
and Lender shall forthwith assign, transfer and deliver to the
Company, against the Company's receipt and at the Company's
expense, the Security and all cash, if any, then held by Lender
hereunder.
7.5Governing Law; Jurisdiction. This Security Agreement, and all
rights, obligations and liabilities arising hereunder, shall be
governed by and construed in accordance with the law of the State
of New York, without reference to choice of law principles. Each
of the parties hereto irrevocably waives any and all right to a
trial by jury in any legal proceeding arising out of or related
to this Security Agreement. The parties agree to submit to the
exclusive jurisdiction and venue of the federal or state courts
of New York, County of Westchester, to resolve any and all issues
that may arise out of or relate to this Security Agreement.
7.6Other Agreements. Lender is entitled to all of the benefits
set forth in the Loan Agreement, the Warrant and the Registration
Rights Agreement, including all rights and remedies set forth
therein.
7.7Amendments. This Security Agreement may not be altered,
amended or modified except in writing, executed by the Company
and Lender.
IN WITNESS WHEREOF, this Security Agreement has been duly
executed as of the day and year first above written.
INTERNATIONAL BUSINESS MACHINES ACCENT COLOR SCIENCES, INC.
CORPORATION (Secured Party) (Debtor)
By: __________________________ By: _________________________
Name: ________________________ Name: _______________________
Title: _________________________ Title:
________________________
Witness: ______________________STATE OF ________________________
COUNTY OF ______________________
I, ____________________, a Notary Public in and for the said
County, in the State aforesaid, DO HEREBY CERTIFY THAT
_________________________, the ________________________ of Accent
Color Sciences, Inc., who is personally known to me to be the
same person whose name is subscribed to the foregoing instrument
as such, appeared before me this day in person and acknowledged
that he signed and delivered said instrument as his own free and
voluntary act, and as the free and voluntary act of Accent Color
Sciences, Inc., for the uses and purposes therein set forth.
Given under my hand and notarial seal this ___ day of __________,
1998.
________________________
Notary Public
My Commission Expires:
