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EXHIBIT 10.54
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of November 29, 1999, is
executed by LITHIUM TECHNOLOGY CORPORATION a Delaware corporation ("Debtor"), in
favor of PACIFIC LITHIUM LIMITED, a New Zealand corporation ("Secured Party").
RECITALS
A. Debtor and Secured Party have entered into a Bridge Financing Loan
Agreement dated the date hereof and Debtor has executed a Convertible Promissory
Note dated as of November 29, 1999 in the amount of $125,000 (the "Note") in
favor of Secured Party.
B. In order to induce Secured Party to extend the credit evidenced by
the Note, Debtor has agreed to enter into this Security Agreement and to grant
Secured Party the security interest in the Collateral described below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Debtor hereby agrees with Secured Party as follows:
1. Definitions and Interpretation. When used in this
Security Agreement, the following terms shall have the following respective
meanings:
"Collateral" shall have the meaning given to that term in
Section 2 hereof.
"Event of Default" shall mean and include (a) the failure of
Debtor to pay when due any principal payment on the due date hereunder
or any interest or other payment or performance of any obligation
required under the terms of the Note on the due date; or (b) (i) the
application or consent by Debtor to the appointment of a receiver,
trustee, liquidator or custodian of itself or of all or a substantial
part of its property, (ii) its inability to pay its debts generally as
they mature, (iii) the making of a general assignment for the benefit
of any of its creditors, (iv) the dissolution or liquidation of Debtor,
(v) the insolvency of Debtor (as such term may be defined or
interpreted under any applicable law), (vi) the commencement of a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or the consent to any such relief or to the appointment of or taking
possession of its property by any official in an involuntary case or
other proceeding commenced against it, (vii) the taking of any action
for the purpose of effecting any of the foregoing, or (viii)
proceedings for the appointment of a receiver, trustee, liquidator or
custodian of Debtor or of all or a
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substantial part of the property thereof, or an involuntary case or
other proceedings seeking liquidation, reorganization or other relief
with respect to Debtor or any of its subsidiaries or the debts thereof
under any bankruptcy, insolvency or other similar law now or hereafter
in effect which shall be commenced and an order for relief entered or
such proceeding shall not be dismissed or discharged within thirty (30)
days of commencement.
"Obligations" shall mean and include the loan arising under
the Note and owed by Debtor to the Secured Party and all interest,
fees, charges, expenses, attorneys' fees and costs and accountants'
fees and costs chargeable to and payable by Debtor hereunder and
thereunder, in each case, whether direct or indirect, absolute or
contingent, due or to become due, and whether or not arising after the
commencement of a proceeding under Title 11 of the United States Code
(11 U.S.C. Section 101 et seq ), as amended from time to time
(including post-petition interest) and whether or not allowed or
allowable as a claim in any such proceeding.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of Pennsylvania from time to time.
All capitalized terms not otherwise defined herein shall have the respective
meanings given in the Note. Unless otherwise defined herein, all terms defined
in the UCC shall have the respective meanings given to those terms in the UCC.
2. Grant of Security Interest. As security for the
Obligations, Debtor hereby pledges and assigns to Secured Party and grants to
Secured Party a security interest in all right, title and interests of Debtor in
and to the property described in Exhibit A hereto (collectively and severally,
the "Collateral"), which Exhibit A is incorporated herein by this reference.
3. Representations and Warranties. Debtor represents and
warrants to Secured Party that (a) Debtor is the owner of the Collateral (or, in
the case of after-acquired Collateral, at the time Debtor acquires rights in the
Collateral, will be the owner thereof) and that no other Person has (or, in the
case of after-acquired Collateral, at the time Debtor acquires rights thereto,
will have) any right, title, claim or interest (by way of lien or otherwise) in,
against or to the Collateral; and (b) Secured Party has (or in the case of
after-acquired Collateral, at the time Debtor acquires rights thereto, will
have) a first priority perfected security interest in the Collateral, which
Debtor will further confirm by obtaining and delivering to Secured Party as soon
as practicable, dated the date hereof, a release by Ben Franklin Technology
Center of Southeastern Pennsylvania of any and all security interests or claims
in the Collateral.
4. Covenants Relating to Collateral. Debtor hereby agrees (a)
to perform all acts that may be necessary to maintain, preserve, protect and
perfect the Collateral, the lien granted to Secured Party therein and the first
priority of such lien; (b) not to use or permit any Collateral to be used (i) in
violation of any applicable law, rule or regulation, or (ii) in violation of any
policy of insurance covering the Collateral; (c) to pay promptly when due all
taxes and other governmental charges, all liens and all other charges now or
hereafter imposed upon or affecting any Collateral; (d) without 30 days' written
notice to Secured Party, not to change
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Debtor's name or place of business (or, if Debtor has more than one place of
business, its chief executive office); (e) to appear in and defend any action or
proceeding which may affect its title to or Secured Party's interest in the
Collateral; (f) if Secured Party gives value to enable Debtor to acquire rights
in or the use of any Collateral, to use such value for such purpose; (g) to keep
separate, accurate and complete records of the Collateral and to provide Secured
Party with such records and such other reports and information relating to the
Collateral as Secured Party may reasonably request from time to time; (h) except
as permitted under the Note, not to surrender or lose possession of (other than
to Secured Party), sell, encumber, lease, rent, or otherwise dispose of or
transfer any Collateral or right or interest therein, and to keep the Collateral
free of all liens; (i) to type, print or stamp conspicuously on the face of all
original copies of all Collateral consisting of chattel paper a legend
satisfactory to Secured Party indicating that such chattel paper is subject to
the security interest granted hereby; and (j) to comply with all material
requirements of law relating to the production, possession, operation,
maintenance and control of the Collateral.
5. Authorized Action by Agent. Debtor hereby irrevocably
appoints Secured Party as its attorney-in-fact and agrees that Secured Party may
perform (but Secured Party shall not be obligated to and shall have no liability
to Debtor or any third party for failure so to do) any act which Debtor is
obligated by this Security Agreement to perform, and to exercise such rights and
powers as Debtor might exercise with respect to the Collateral, including the
right to (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all interest, payments, proceeds and other sums and property now or
hereafter payable on or on account of the Collateral; (b) insure, process and
preserve the Collateral; (c) make any compromise or settlement, and take any
action it deems advisable, with respect to the Collateral; (d) pay any
indebtedness of Debtor relating to the Collateral; and (e) execute UCC financing
statements and other documents, instruments and agreements required hereunder;
provided, however, that Secured Party shall not exercise any such powers prior
to the occurrence of an Event of Default and shall only exercise such powers
during the continuance of an Event of Default. Debtor agrees to reimburse
Secured Party upon demand for any reasonable costs and expenses, including
attorneys' fees, Secured Party may incur while acting as Debtor's
attorney-in-fact hereunder, all of which costs and expenses are included in the
Obligations. It is further agreed and understood between the parties hereto that
such care as Secured Party gives to the safekeeping of its own property of like
kind shall constitute reasonable care of the Collateral when in Secured Party's
possession; provided, however, that Secured Party shall not be required to make
any presentment, demand or protest, or give any notice and need not take any
action to preserve any rights against any prior party or any other person in
connection with the Obligations or with respect to the Collateral.
6. Default and Remedies. Debtor shall be deemed in default
under this Security Agreement upon the occurrence and during the continuance of
an Event of Default. Upon the occurrence and during the continuance of any such
Event of Default, Secured Party shall have the rights of a secured creditor
under the UCC, all rights granted by this Security Agreement and by law,
including the right to: (a) require Debtor to assemble the Collateral and make
it available to Secured Party at a place to be designated by Secured Party; and
(b) prior to the disposition of the Collateral, store, process, repair or
recondition it or otherwise prepare it for disposition in any manner and to the
extent Secured Party deems appropriate and in connection
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with such preparation and disposition, without charge, use any trademark, trade
name, copyright, patent or technical process used by Debtor. Debtor hereby
agrees that ten (10) days' notice of any intended sale or disposition of any
Collateral is reasonable. In furtherance of Secured Party's rights hereunder,
Debtor hereby grants to Secured Party an irrevocable, non-exclusive license
(exercisable without royalty or other payment by Secured Party, but only in
connection with the exercise of remedies hereunder) to use, license or
sublicense any patent, trademark, trade name, copyright or other intellectual
property which is included in the Collateral, together with the right of access
to all media in which any of the foregoing may be recorded or stored.
7. Miscellaneous.
(a) Notices. Except as otherwise provided herein,
all notices, requests,
demands, consents, instructions or other communications to or upon Debtor or
Secured Party under this Security Agreement shall be by telecopy or in writing
and telecopied, mailed or delivered to each party at the telecopier number or
its address as provided in accordance with the Bridge Financing Loan Agreement
(or to such other telecopy number or address as the recipient of any notice
shall have notified the other in writing). All such notices and communications
shall be effective (a) when sent by Federal Express or other overnight service
of recognized standing, on the Business Day following the deposit with such
service; (b) when mailed, by registered or certified mail, first class postage
prepaid and addressed as aforesaid through the United States Postal Service,
upon receipt; (c) when delivered by hand, upon delivery; and (d) when
telecopied, upon confirmation of receipt.
(b) Nonwaiver. No failure or delay on Secured
Party's part in exercising any right hereunder shall operate as a waiver thereof
or of any other right nor shall any single or partial exercise of any such right
preclude any other further excise thereof or of any other right.
(c) Amendments and Waivers. This Security Agreement
may not be amended or modified, nor may any of its terms be waived, except by
written instruments signed by Debtor and Secured Party. Such waiver or consent
under any provision hereof shall be effective only in the specific instances for
the purpose for which given.
(d) Assignments. This Security Agreement shall be
binding upon and inure to the benefit of Secured Party and Debtor and their
respective successors and assigns; provided, however, that Debtor may not sell,
assign or delegate rights and obligations hereunder without the prior written
consent of Secured Party.
(e) Cumulative Rights, Etc. The rights, powers and
remedies of Secured Party under this Security Agreement shall be in addition to
all rights, powers and remedies given to Secured Party by virtue of any
applicable law, rule or regulation of any governmental authority or any other
agreement, all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Secured Party's
rights hereunder. Debtor waives any right to require Secured Party to proceed
against any Person or to exhaust any Collateral or to pursue any remedy in
Secured Party's power.
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(f) Payments Free of Taxes, Etc. All payments made
by Debtor under this Security Agreement shall be made by Debtor free and clear
of and without deduction for any and all present and future taxes, levies,
charges, deductions and withholdings. In addition, Debtor shall pay upon demand
any stamp or other taxes, levies or charges of any jurisdiction with respect to
the execution, delivery, registration, performance and enforcement of this
Security Agreement. Upon request by Secured Party, Debtor shall furnish evidence
satisfactory to Secured Party that all requisite authorizations and approvals
by, and notices to and filings with, governmental authorities and regulatory
bodies have been obtained and made and that all requisite taxes, levies and
charges have been paid.
(g) Partial Invalidity. If at any time any
provision of this Security Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this
Security Agreement nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
(h) Expenses. Debtor shall pay on demand all
reasonable fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Secured Party in connection with custody, preservation or sale of,
or other realization on, any of the Collateral or the enforcement or attempt to
enforce any of the Obligations which is not performed as and when required by
this Security Agreement.
(i) Headings. Headings in this Security Agreement
are for convenience of reference only and are not part of the substance hereof
or thereof.
(j) Plural Terms. All terms defined in this
Security Agreement in the singular form shall have comparable meanings when used
in the plural form and vice versa.
(k) Construction. This Security Agreement is the
result of negotiations among, and has been reviewed by, Debtor, Secured Party
and their respective counsel. Accordingly, this Security Agreement shall be
deemed to be the product of all parties hereto, and no ambiguity shall be
construed in favor of or against Debtor or Secured Party.
(l) Entire Agreement; Counterparts. This Security
Agreement constitutes and contains the entire agreement of Debtor and Secured
Party and supersedes any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter hereof. This Security Agreement may be executed in
one or more counterparts, each of which shall constitute one and the same
instrument.
(m) Other Provisions. References in this Security
Agreement to any document, instrument or agreement (a) shall include all
exhibits, schedules and other attachments thereto, (b) shall include all
documents instruments or agreements issued or executed in replacement thereof,
and (c) shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to time and
in effect at any given time. The words "hereof," "herein" and "hereunder" and
words of similar import
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when used in this Security Agreement shall refer to this Security Agreement as a
whole and not to any particular provision of this Security Agreement. The words
"include" and "including" and words of similar import when used in this Security
Agreement shall not be construed to be limiting or exclusive.
(n) Governing Law. This Security Agreement shall be
governed by and construed in accordance with the laws of the State of
Pennsylvania without reference to conflicts of law rules (except to the extent
governed by the UCC).
(o) JURY TRIAL. EACH OF DEBTOR AND SECURED PARTY,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY
AGREEMENT.
(p) Termination. This Security Agreement shall
terminate upon the complete and indefeasible payment and performance in full of
the Obligations, and Secured Party agrees to take all such actions and execute
all such termination statements and similar instruments as are reasonably
necessary to evidence such termination.
IN WITNESS WHEREOF, Debtor has caused this Security Agreement
to be executed as of the day and year first above written.
LITHIUM TECHNOLOGY CORPORATION
a Delaware corporation
as Debtor
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx,
Title: Chairman & CEO
ACCEPTED AND AGREED:
PACIFIC LITHIUM LIMITED
a New Zealand corporation
as Secured Party
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
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EXHIBIT A
TO SECURITY AGREEMENT
All right, title and interest of Debtor now owned or hereafter acquired in and
to the following:
(a) One soft-pack cell packaging and filling machine (order
number 12105 per Arcotronics Offer Nbr 245/98 with revision Nbr 266/98)--- large
dimensions (cell size up to 8"x 8"); model number SPF 300A; serial number
300M674A; including, but not limited to, second lateral sealing unit, final
sealing under vacuum, additional antechamber, written documentation, operating
manual, spare parts catalogue, electrical drawings and raw materials for machine
testing.
(b) All proceeds of the foregoing (including, without
limitation, whatever is receivable or received when Collateral or proceeds is
sold, collected, exchanged, returned, substituted or otherwise disposed of,
whether such disposition is voluntary or involuntary, including rights to
payment and return premiums and insurance proceeds under insurance with respect
to any Collateral, and all rights to payment with respect to any course of
action affecting or relating to the Collateral).
