Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 28 91K
Pursuant to a Transaction
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 8 20K
3: EX-5.1 Opinion re: Legality 1 8K
4: EX-10.4 Material Contract 14 59K
5: EX-10.5 Material Contract 20 104K
6: EX-10.6 Material Contract 13 54K
7: EX-10.7 Material Contract 15 64K
8: EX-10.8 Material Contract 13 60K
9: EX-23.1 Consent of Experts or Counsel 1 6K
10: EX-27 Financial Data Schedule (Pre-XBRL) 1 7K
Exhibit 10.6
Form of Security Agreement
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of November ___ , 1998 ("Security
Agreement"), is made by SPATIALIGHT, INC., a New York corporation, and by
SPATIALIGHT OF CALIFORNIA, INC., a California corporation (Spatialight, Inc.,
and Spatialight of California, Inc. are hereinafter referred to collectively as
"Grantor"), in favor of Steven F. Tripp, as collateral agent for the lenders
listed on Schedule A annexed hereto (collectively the "Lenders"), as now
existing and as hereafter amended from time to time (Steven F. Tripp in his
capacity as collateral agent hereunder, and together with his successors and
assigns in such capacity, is hereinafter referred to as "Secured Party").
RECITALS
WHEREAS, Grantor and Lenders have entered into one or more Convertible
Secured Loan Agreements, dated of even date herewith (as the same may be
amended, modified, supplemented or renewed from time to time herein individually
and collectively called the "Loan Agreements"), pursuant to which the Lenders
have severally agreed to lend to Grantor an aggregate principal sum of up to
$2,000,000, and Grantor, to evidence its indebtedness to the Lenders under the
Loan Agreements, has executed and delivered to the Lenders its Convertible
Secured Notes, dated of even date herewith (herein collectively called the
"Notes"), in the aggregate principal amount of $2,000,000 to mature on December
31, 1998, (subject to extension by Grantor to December 31, 1999) said Notes
being payable to the order of the respective Lenders, bearing interest at the
rate provided for therein and containing provisions for payment of attorney's
fees and acceleration of maturity in the event of default, as therein set forth;
WHEREAS, as a condition precedent to the making of the loans under the
Loan Agreements, Grantor is required to execute and deliver this Security
Agreement; and
WHEREAS, Grantor has duly authorized the execution, delivery and
performance of this Security Agreement.
NOW, THEREFORE, in order to induce the Lenders to make the loans
provided for under the terms of the Loan Agreements and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, Grantor hereby represents,
warrants, covenants and agrees as follows:
1. Defined Terms. When used in this Security Agreement the
following terms shall have the following meanings (such meanings being equally
applicable to both the singular and plural forms of the terms defined):
"Collateral" shall have the meaning assigned to such term in Section 2
of this Security Agreement.
"Contracts" means all contracts, undertakings, franchise agreements or
other agreements in or under which Grantor now holds or hereafter acquires any
right, title or interest, including, without
limitation, with respect to an Account, any agreement relating to the terms of
payment or the terms of performance thereof.
"Copyright License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right in or to any
Copyright or Copyright registration (whether Grantor is the licensee or the
licensor thereunder) including, without limitation, licenses pursuant to which
Grantor has obtained the exclusive right to use a copyright owned by a third
party.
"Copyrights" means all of the following in which Grantor now holds or
hereafter acquires any interest: (a) all copyrights, whether registered or
unregistered, held pursuant to the laws of the United States, any State thereof
or any other country; (b) registrations, applications, recordings and
proceedings in the United States Copyright Office or in any similar office or
agency of the United States, any State thereof or any other country; (c) any
continuations, renewals or extensions thereof; (d) any registrations to be
issued in any pending applications; (e) prior versions of works covered by
copyright and all works based upon, derived from or incorporating such works;
(f) income, royalties, damages, claims and payments now and hereafter due and/or
payable with respect to copyrights, including, without limitation, damages,
claims and recoveries for past, present or future infringement; (g) rights to
sue for past, present and future infringements of any copyright; and (b) any
other rights corresponding to any of the foregoing rights throughout the world.
"Event of Default" means any "Event of Default" as defined in the
Notes;
"License" means any Copyright License, Patent License, Trademark
License or other license of intellectual property rights or interests now held
or hereafter acquired by Grantor.
"Lien" means any mortgage, lien, deed of trust, charge, pledge,
security interest or other encumbrance.
"Patent License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right with respect to any
invention on which a Patent is in existence (whether Grantor is the licensee or
the licensor thereunder).
"Patents" means all of the following in which Grantor now holds or
hereafter acquires any interest: (a) all letters patent of the United States or
any other country, all registrations and recordings thereof and all applications
for letters patent of the United States or any other country, including, without
limitation, registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
Sates, any State thereof or any other country; (b) all reissues, divisions,
continuations, renewals, continuations-in-part or extensions thereof; (c) all
petty patents, divisionals and patents of addition; and (d) all patents to issue
in any such applications; (e) income, royalties, damages, claims and payments
now and hereafter due and/or payable with respect to patents, including, without
limitation, damages, claims and recoveries for past, present or future
infringement; and (f) rights to sue for past, present and future infringements
of any patent.
"Secured Obligations" means (a) the obligation of Grantor to repay the
Lenders all of the unpaid principal amount of, and accrued interest on
(including any interest that accrues after the commencement of bankruptcy), any
amounts due pursuant to the Notes; (b) the obligations of Grantor to pay any
fees, costs and expenses of the Lenders under the Notes, and under Section 6.2
hereof; and (c) all other indebtedness, liabilities and obligations of Grantor
to the Lenders, whether now existing or hereafter incurred, and whether created
under, arising out of or in connection with any written agreement or otherwise.
"Trademark License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right in and to any
Trademark or Trademark registration (whether Grantor is the licensee or the
licensor thereunder).
"Trademarks" means any of the following in which Grantor now holds or
hereafter acquires any interest: (a) any trademarks, trade names, corporate
names, company names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof and any applications in connection therewith, including, without
limitation, registrations, recordings and applications in the United Sates
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country (collectively, the "Marks"); (b)
any reissues, extensions or renewals thereof; (c) the goodwill of the business
symbolized by or associated with the Marks; (d) income, royalties, damages,
claims and payments now and hereafter due and/or payable with respect to the
Marks, including, without limitation, damages, claims and recoveries for past,
present or future infringement; and (e) rights to sue for past, present and
future infringements of the Marks.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Secured Party's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
In addition, the following terms shall be defined terms having the
meaning set forth for such terms in the UCC: "Account Debtor"; "Accounts";
"Chattel Paper"; "Deposit Accounts"; "Documents"; "Equipment"; "Financial
Assets"; "Fixtures"; "General Intangibles"; "Instruments"; "Inventory";
"Investment Property"; "Proceeds". Each of the foregoing defined terms shall
include all of such items now owned, or hereafter acquired, by Grantor.
Unless otherwise defined herein, in the Loan Agreements or in the
Notes, all capitalized terms used herein shall have the respective meanings
given to them in the UCC.
2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all the Secured Obligations, Grantor
hereby assigns, conveys, mortgages, pledges, hypothecates and transfers to
Secured Party for the ratable benefit of the holders of the Secured Obligations,
and hereby grants to Secured Party for the ratable benefit of the holders of the
Secured Obligations, a security interest in all of Grantor's right, title and
interest in, to and under the following, whether now owned or hereafter acquired
(all of which being collectively referred to herein as the "Collateral"):
(a) All Accounts of Grantor;
(b) All Chattel Paper of Grantor,
(c) All Contracts of Grantor,
(d) All Deposit Accounts of Grantor,
(e) All Documents of Grantor,
(f) All Equipment of Grantor;
(g) All Financial Assets of Grantor;
(h) All Fixtures of Grantor;
(i) All General Intangibles of Grantor, including,
without limitation, all Copyrights, Patents, Trademarks, Licenses, designs,
drawings, technical information, marketing plans, customer lists, trade secrets,
proprietary or confidential information, inventions (whether or not patentable),
procedures, know-how, models and data;
(j) All Instruments of Grantor;
(k) All Inventory of Grantor;
(1) All Investment Property of Grantor,
(m) All property of Grantor held by Secured Party, or any
other party for whom Secured Party is acting as agent hereunder, including,
without limitation, all property of every description now or hereafter in the
possession or custody of or in transit to Secured Party or such other party for
any purpose, including, without limitation, safekeeping, collection or pledge,
for the account of Grantor, or as to which Grantor may have any right or power;
(n) All other goods and personal property of Grantor,
wherever located, whether tangible or intangible, and whether now owned or
hereafter acquired, existing, leased or consigned by or to Grantor; and
(o) To the extent not otherwise included, all Proceeds of
each of the foregoing and all accessions to, substitutions and replacements for
and rents, profits and products of each of the foregoing, as well as all
payments under insurance (whether or not Secured Party is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral.
3. Rights of Secured Party; Collection of Accounts.
3.1 Performance of Contracts and Licenses.
Notwithstanding anything contained in this Security Agreement to the contrary,
Grantor expressly agrees that it shall remain liable under each of its Contracts
and each of its Licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder and that it shall
perform all of its duties and obligations thereunder, all in accordance with and
pursuant to the terms and provisions of each such Contract or License. Secured
Party shall not have any obligation or liability under any Contract or License
by reason of or arising out of this Security Agreement or the granting to
Secured Party of a lien therein or the receipt by Secured Party of any payment
relating to any Contract or License pursuant hereto, nor shall Secured Party be
required or obligated in any manner to perform or fulfill any of the obligations
of Grantor under or pursuant to any Contract or License, or to make any payment,
or to make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party under any
Contract or License, or to present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
3.2 Collection of Accounts. Secured Party authorizes
Grantor to collect its Accounts, provided that such collection is performed in a
prudent and businesslike manner, and Secured Party may, upon the occurrence and
during the continuation of any Event of Default and without notice, limit or
terminate said authority at any time. Upon the occurrence and during the
continuance of any Event of Default, at the request of Secured Party, Grantor
shall deliver all original and other documents evidencing and relating to the
performance of labor or service which created such Accounts, including, without
limitation, all original orders, invoices and shipping receipts.
3.3 Notification to Third Parties. Secured Party may at
any time, upon the occurrence and during the continuance of any Event of
Default, after due notice to Grantor of its intention to do so, notify Account
Debtors of Grantor, parties to the Contracts of Grantor, obligors in respect of
Instruments of Grantor and obligors in respect of Chattel Paper of Grantor that
the Accounts and the right, title and interest of Grantor in and under such
Contracts, Instruments and Chattel Paper have been assigned to Secured Party and
that payments shall be made directly to Secured Party. Upon the request of
Secured Party, Grantor shall so notify such Account Debtors, parties to such
Contracts, obligors of such Instruments and obligors in respect of such Chattel
Paper. Upon the occurrence and during the continuance of any Event of Default,
Secured Party may, in its name or in the name of others, communicate with such
Account Debtors, parties to such Contracts, obligors in respect of such
Instruments and obligors in respect of such Chattel Paper to verify with such
parties, to Secured Party's satisfaction, the existence, amount and terms of any
such Accounts, Contracts, Instruments or Chattel Paper.
4. Representations and Warranties. Grantor, to its knowledge,
hereby represents and warrants as of the date hereof that:
4.1 Title. Except for the security interest granted to
Secured Party under this Security Agreement, and except as set forth on Schedule
4.1 hereto: (a) Grantor is the sole legal and equitable Owner of each item of
the Collateral in which it purports to grant a security interest hereunder,
having good and marketable title thereto, free and clear of any and all Liens;
and (b) no effective security agreement, financing statement, equivalent
security or lien instrument or continuation statement covering all or any part
of the Collateral exists, except such as may have been filed by Grantor in favor
of Secured Party pursuant to this Security Agreement.
4.2 Security Interest. This Security Agreement creates a
legal and valid security interest on and in all of the Collateral in which
Grantor now has rights. Upon the making of the
required filings, Secured Party will have a fully perfected security interest
for the ratable benefit of the holders of the Secured Obligations in all of the
Collateral in which Grantor now has rights. This Security Agreement will create
a legal and valid and fully perfected security interest in the Collateral in
which Grantor later acquires rights, when Grantor acquires those rights and
makes additional filings to be made with the United States Copyright and/or
Patent and Trademark Office as are necessary to perfect Secured Party's security
interest in subsequent ownership rights and interests of Grantor in Copyrights,
Patents, Trademarks and Licenses.
4.3 Location of Collateral. Grantor's chief executive
office, principal place of business and the place where the Grantor maintains
its records concerning the Collateral are presently located at the address set
forth on the signature page hereof. The Collateral is presently located at such
address and at such additional addresses set forth on Schedule 4.3 attached
hereto.
4.4 List of Intellectual Property. All Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses
now owned, held or in which Grantor otherwise has any interest are listed on
Schedule 4.4 attached hereto.
4.5 Intellectual Property Collateral. With respect to the
Copyrights, Patents, Trademarks and Licenses granted to Secured Party hereunder
(the "Intellectual Property Collateral"), the loss, impairment or infringement
of which might have a materially adverse effect on the financial condition,
operation, assets, business, properties or prospects of the Grantor:
(a) such Intellectual Property Collateral is
subsisting and has not been adjudged invalid or unenforceable, in whole or in
part;
(b) Grantor has made all necessary filings and
recordations to protect its interest in such Intellectual Property Collateral;
(c) Grantor is the Owner of the entire and
unencumbered right, title and interest in and to such Intellectual Property
Collateral and no claim has been made that the use of such Intellectual Property
Collateral does or may violate the asserted rights of any third party;
(d) Grantor has performed and will continue to
perform acts and has paid and will continue to pay all required fees and taxes
to maintain each and every item of Intellectual Property Collateral in full
force and effect throughout the world, as applicable.
(e) There are in full force and effect
confidentiality and noncompetition agreements between Grantor and its current
and former employees prohibiting the unauthorized disclosure or dissemination of
any information relating to the Intellectual Property Collateral, as well as
enforceable intellectual property ownership agreements between Grantor and its
current employees.
(f) Grantor will continue to take all reasonable
measures to protect against any unauthorized disclosure or dissemination of
information relating to the Intellectual Property Collateral by its current and
future employees.
4.6 Authorization, Approval, Etc. Except as set forth on
Schedule 4.6 hereto, no authorization, approval or other action by, and no
notice to or filing with, any governmental
authority or regulatory body is required either (a) for the grant by the Grantor
of the security interest granted hereby or for the execution, delivery, and
performance of this Security Agreement by the Grantor, or (b) for the perfection
of or the exercise by the Secured Party of its rights and remedies hereunder.
4.7 Compliance with Laws. Except as set forth on Schedule
4.7 hereto, the Grantor is in compliance with the requirements of all applicable
laws (including, without limitation, the provisions of the Fair Labor Standards
Act), rules, regulations and orders of every governmental authority, the
non-compliance with which might materially adversely affect the business,
properties, assets, operations, condition (financial or otherwise) or prospects
of the Grantor or the value of the Collateral or the worth of the Collateral as
collateral security.
4.8 List of Investment Property. All investment property
now owned, held or in which Grantor otherwise has any interest is listed on
Schedule 4.8 attached hereto.
4.9 No Conditions Precedent. There are no conditions
precedent to the effectiveness of this Security Agreement that have not been
satisfied or waived.
5. Covenants. Grantor covenants and agrees with Secured Party
that from and after the date of this Security Agreement and until the Secured
Obligations have been performed and paid in full:
5.1 Disposition of Collateral. Grantor shall not sell,
lease, transfer or otherwise dispose of any of the Collateral, or attempt to
contract to do so without the consent of the Secured Party, other than (a) the
sale of Inventory, (b) the granting of nonexclusive Licenses and (c) the
disposal of worn-out or obsolete Equipment, all in the ordinary course of
Grantor's business.
5.2 Relocation of Business or Collateral. Grantor shall
not relocate its chief executive office, principal place of business or its
records, or allow the relocation of any Collateral (except as allowed pursuant
to Section 5.1 immediately above) from such address(es) provided to Secured
Party pursuant to Section 4.3 above without twenty (20) days prior written
notice to Secured Party.
5.3 No Liens on Collateral. Grantor shall not, directly
or indirectly, create, permit or suffer to exist, and shall defend the
Collateral against and take such other action as is necessary to remove, any
Lien on the Collateral, except (i) the Lien granted to Secured Party under this
Security Agreement, and (ii) the Liens described on Schedule 4.1 hereto.
5.4 Insurance. Maintain insurance policies insuring the
Collateral against loss or damage from such risks and in such amounts and forms
and with such companies as are customarily maintained by businesses similar to
Grantor.
5.5 Taxes, Assessments. Etc. Grantor shall pay promptly
when due all property and other taxes, assessments and government charges or
levies imposed upon, and all claims (including claims for labor, materials and
supplies) against, the Equipment, Fixtures, or Inventory, except to the extent
the validity thereof is being contested in good faith and adequate reserves are
being maintained in connection therewith.
5.6 Maintenance of Records. Grantor shall keep and
maintain at its own cost and expense satisfactory and complete records of the
Collateral.
5.7 Registration of Intellectual Property Rights. Grantor
shall promptly register or cause to be registered (to the extent not already
registered) the most recent version of any Copyright and any Copyright License
and any Patent, Patent License, Trademark or Trademark License, which,
individually or in the aggregate, is material to the conduct of Grantor's
business, with the United States Copyright Office or Patent and Trademark
Office, applicable, including, without limitation, in all such cases the filing
of applications for renewal, affidavits of use, affidavits of noncontestability
and opposition and interference and cancellation proceedings. Grantor shall
register or cause to be registered with the United States Copyright Office or
Patent and Trademark Office, as applicable, those additional rights and
interests developed or acquired by Grantor, after the date of this Security
Agreement, including, without limitation, any additions to the rights and
interests of Grantor listed on Schedule 4.4 hereto, prior to the sale or
licensing of any product containing such rights and interests.
5.8 Notification Regarding Changes in Intellectual
Property. Grantor shall promptly advise Secured Party of any subsequent
ownership right or interest of the Grantor in or to any Copyright, Patent,
Trademark or License not specified on Schedule 4.4 hereto and hereby authorizes
and appoints Secured Party as Grantor's attorney-in-fact to modify or amend such
Schedule, as necessary, to reflect any addition or deletion to such ownership
rights.
5.9 Defense of Intellectual Property. Grantor shall (a)
protect, defend, and maintain the validity and enforceability of the Copyrights,
Patents and Trademarks, (b) use its best efforts to detect infringements of the
Copyrights, Patents and Trademarks and promptly advise Secured Party in writing
of material infringements detected and (c) not allow any Copyrights, Patents, or
Trademarks to be abandoned, forfeited, or dedicated to the public without the
written consent of Secured Party.
5.10 Further Assurances; Reimbursement. At any time and
from time to time, upon the written request of Secured Party, and at the sole
expense of Grantor, Grantor shall promptly and duly execute and deliver any and
all such further instruments and documents and take such action as Secured Party
may reasonably deem necessary or desirable to obtain the full benefits of this
Security Agreement, including, without limitation, facilitating the filing of
UCC-1 Financing Statements in all applicable jurisdictions and this Security
Agreement (and any amendment hereto) with the United States Copyright Office
and/or Patent and Trademark Office, as applicable. Grantor agrees to reimburse
Secured Party, upon demand, for any payment made or any expense incurred by
Secured Party in making any such filings or for the discharge of any taxes,
liens, or other encumbrances at any time levied or placed on the Collateral or
any part thereof or any other payment made by Secured Party for the maintenance
and preservation of the Collateral. Grantor agrees that a carbon or photostatic
copy of this Security Agreement may be filed as a financing statement in any
public office.
6. Rights and Remedies Upon Default.
6.1 General. Upon the occurrence of any Event of Default
and while such Event of Default is continuing, Secured Party may exercise in
addition to all other rights and remedies granted to it under this Security
Agreement, all rights and remedies of a secured party under the UCC.
6.2 Right to Fees, Costs and Expenses. Grantor also
agrees to pay all fees, costs and expenses of Secured Party, including, without
limitation, reasonable attorneys' fees, incurred in connection with the
enforcement of any of its rights and remedies hereunder, including, without
limitation, in any litigation, bankruptcy, or insolvency proceedings.
6.3 Priorities Upon Disposition of Collateral. The
proceeds of any sale, disposition or other realization upon all or any part of
the Collateral shall be distributed by Secured Party in the following order of
priorities:
(a) First, to Secured Party in an amount
sufficient to pay in full the reasonable costs of Secured Party in connection
with such sale, disposition or other realization, including all fees, costs,
expenses, liabilities and advances incurred or made by Secured Party in
connection therewith, including, without limitation, reasonable attorneys' fees;
(b) Second, to the Lenders in an amount equal to
the then unpaid Secured Obligations; and
(c) Finally, upon payment in full of the Secured
Obligations, to Grantor or its representatives, in accordance with the UCC or as
a court of competent jurisdiction may direct.
7. Secured Party Appointed Attorney-in-fact. Grantor hereby
appoints Secured Party the Grantor's attorney-in-fact, with full authority in
the place and stead of the Grantor and in the name of the Grantor or otherwise,
from time to time in the Secured Party's discretion, upon the occurrence and
during the continuance of an Event of Default, to take any action and to execute
any instrument which the Secured Party may deem necessary or advisable to
accomplish the purposes of this Security Agreement, including, without
limitation:
(a) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys due and to
become due under or in connection with the Collateral;
(b) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper, in connection therewith; and
(c) to file any claims or take any action or institute
any proceedings which Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Secured Party with respect to any of the Collateral.
8. Indemnity. Grantor agrees to defend, indemnify and hold
harmless Secured Party, and its officers, employees, attorney, agents, members,
and each person who controls any of the foregoing against (a) all obligations,
demands, claims and liabilities claimed or asserted by any
other party in connection with the transactions contemplated by this Security
Agreement and (b) all losses or expenses in any way suffered, incurred or paid
by Secured Party as a result of or in any way arising out of, following or
consequential to transactions between Secured Party and Grantor, whether under
this Security Agreement or otherwise (including, without limitation, reasonable
attorneys' fees and expenses), except for losses arising from or out of Secured
Party's gross negligence or willful misconduct.
9. Limitation on Secured Party's Duty in Respect of Collateral.
Secured Party shall be deemed to have acted reasonably in the custody,
preservation, and disposition of any of the Collateral if it takes such action
as Grantor requests in writing, but failure to comply with any such request
shall not in itself be deemed a failure to act reasonably and no failure of
Secured Party to do any act not so requested shall be deemed a failure to act
reasonably.
10. Reinstatement. This Security Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against Grantor for liquidation or reorganization, should Grantor become
insolvent or make an assignment for the benefit of creditors or should a trustee
or receiver be appointed for all or any significant part of Grantor's property
and assets and shall continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Secured Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount or
must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference," "fraudulent conveyance" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
11. Miscellaneous.
11.1 No Waiver; Cumulative Remedies. Secured Party shall
not by any act, delay, omission or otherwise be deemed to have waived any of its
respective rights or remedies hereunder, nor shall any single or partial
exercise of any right or remedy hereunder on any one occasion preclude the
further exercise thereof or the exercise of any other right or remedy. The
rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently and are not exclusive of any rights and remedies provided
by law.
11.2 Entire Agreement. This Security Agreement constitutes
the entire agreement between the parties relating to the subject matter hereof.
None of the terms or provisions of this Security Agreement may be waived,
altered, modified or amended except by an instrument in writing, duly executed
by Grantor and Secured Party.
11.3 Termination of this Security Agreement. Subject to
Section 10 hereof, this Security Agreement shall terminate upon the payment and
performance in full of the Secured Obligations, at which time all rights to the
Collateral shall revert to Grantor. Upon such a termination, the Secured Party
shall, at Grantor's sole expense, execute and deliver to Grantor such documents
as the Grantor shall reasonably request to evidence such termination.
11.4 Successors and Assigns. This Security Agreement and
all obligations of Grantor hereunder shall be binding upon the successors and
assigns of Grantor, and shall, together with the rights and remedies of Secured
Party hereunder, inure to the benefit of Secured Party, any
future holder of any of the indebtedness and their respective successors and
assigns. No sales of participations, other sales, assignments, transfers or
other dispositions of any agreement governing or instrument evidencing the
Secured Obligations or any portion thereof or interest therein shall in any
manner affect the Lien granted to Secured Party hereunder.
11.5 Headings. Section headings used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
11.6 Severability. Wherever possible each provision of
this Security Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
11.7 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. Execution and delivery by facsimile
shall constitute good and valid execution and delivery unless and until replaced
or substituted by an original executed instrument.
11.8 Governing Law. In all respects, including all matters
of construction, validity and performance, this Security Agreement and the
Secured Obligations arising hereunder shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, excluding
conflicts of laws principles.
11.9 Collateral Agent. Pursuant to the terms of a Note
Holders' Representative Agreement by and among the Lenders dated of even date
herewith, the Lenders have designated Steven F. Tripp to act as their collateral
agent hereunder, and the Lenders have reserved the right to designate or elect a
successor person or entity to serve as their collateral agent and as Secured
Party under this Security Agreement. Upon the appointment or designation of a
successor to serve as collateral agent for the Lenders hereunder, such successor
shall thereupon succeed to and become vested with all the rights, powers and
privileges of the Secured Party hereunder as collateral agent for the Lenders.
Lenders or the Secured Party shall notify Grantor of the designation or election
of any such person or entity to serve as the successor of the Secured Party
hereunder.
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
[Enlarge/Download Table]
Spatialight, Inc., a New York corporation Address of Spatialight, Inc., a Grantor:
By: Spatialight, Inc.
-------------------------------------- 8-C Commercial Blvd.
Michael H. Burney Novato, CA 94949
Chief Executive Officer
Spatialight of California, Inc., Address of Spatialight of California, Inc.,
a California corporation a Grantor:
By: Spatialight of California, Inc.
-------------------------------------- 8-C Commercial Blvd.
Michael H. Burney Novato, CA 94949
Chief Executive Officer
EXHIBIT A
Schedule of Lenders
[Enlarge/Download Table]
Lender Number of Shares Investment Amount
------ ---------------- -----------------
Ronald A. Weyers 111,110.67 $83,333.00
Jeffrey J. Weyers 111,110.67 $83,333.00
Robert J. Weyers 111,110.67 $83,333.00
Matthew A. King 50,000.00 $37,500.00
Robert O. Rolfe 66,666.67 $50,000.00
John W. Eakin 33,333.33 $25,000.00
Bryan B. Starr, Sr. 33,333.33 $25,000.00
Bryan B. Starr, Jr. 33,333.33 $25,000.00
Robert E. Woods 66,666.67 $50,000.00
Marcia K. Tripp 133,333.33 $100,000.00
Wayne Patrick Tripp Trust 66,666.67 $50,000.00
Lisa Marie Tripp Trust 66,666.67 $50,000.00
Steven Francis Tripp 133,333.33 $100,000.00
FBO Jimmie H. Harvey, M.D. 166,666.67 $125,000.00
Birmingham Hematology & Oncology Associates, SLB
Flex Prototype P/S Plan DTD 10-17-85
Jimmie H. Harvey, M.D. 166,666.67 $125,000.00
Hilliard Limited Partnership 200,000.00 $150,000.00
Dan Hilliard 133,333.33 $100,000.00
Wallace J. Hilliard Flint Trust 133,333.33 $100,000.00
Paul Klister 33,333.33 $25,000.00
Jefferson R. Cobb 100,000.00 $75,000.00
Dates Referenced Herein and Documents Incorporated by Reference
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