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EXHIBIT 10.57
SECURITY AGREEMENT AND ASSIGNMENT OF LEASE
This SECURITY AGREEMENT AND ASSIGNMENT OF LEASE, dated as of
____________, 2000, 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 Loan Financing
Agreement dated November 29, 1999 and Debtor has executed a Convertible
Operating Note (the "Note") in favor of Secured Party.
B. Debtor and Secured Party have entered into a License and Option
Agreement dated as of October 1, 1999 pursuant to which the Debtor has granted
to the Secured Party a license to Debtor's intellectual property rights as
described therein.
C. Debtor and Secured Party have entered into an Agreement and Plan of
Merger dated as of January 19, 2000 (the "Merger Agreement").
D. In order to induce Secured Party to extend the credit evidenced by the
Note and to provide collateral to Secured Party under the Bridge Loan Financing
Agreements, 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:
"Account Debtor" shall have the meaning given to that term in
Section 3 hereof.
"Collateral" shall have the meaning given to that term in Section 2
hereof.
"Equipment" shall have the meaning given to that term in Attachment
1 hereto.
"Event of Default" shall mean and include (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) the making of a general assignment for the benefit of any of its
creditors, (iii) the dissolution or liquidation of Debtor, (iv) the
commencement of a voluntary case or other proceeding seeking liquidation,
reorganization or other relief
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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, (v) 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 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, provided
in each of the foregoing cases the proceeding is not instituted by the
Secured Party, an affiliate of the Secured Party or a party acting in
conjunction with the Secured Party in circumstances in which LTC is not in
default under any of its agreements with the Secured Party.
"Inventory" shall have the meaning given to that term in the UCC.
"Obligations" shall mean and include all loans, advances, debts,
liabilities and obligations, howsoever arising, owed by Debtor to the
Secured Party of every kind and description (whether or not evidenced by
any note or instrument and whether or not for the payment of money), now
existing or hereafter arising, including, 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.
"Permitted Liens" shall mean and include: (i) liens for taxes or
other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith, provided
provision is made to the reasonable satisfaction of Secured Party for the
eventual payment thereof if subsequently found payable; (ii) liens of
carriers, warehousemen, mechanics, materialmen, vendors, and landlords
incurred in the ordinary course of business for sums not overdue or being
contested in good faith, provided provision is made to the reasonable
satisfaction of Secured Party for the eventual payment thereof if
subsequently found payable; (iii) deposits under workers' compensation,
unemployment insurance and social security laws or to secure the
performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, or to secure statutory obligations of surety
or appeal bonds or to secure indemnity, performance or other similar
bonds in the ordinary course of business; (iv) liens securing obligations
under a capital lease provided such liens do not extend to property other
than the property leased under such capital lease; (v) liens upon any
equipment acquired or held by Debtor to secure the purchase price of such
equipment (other than Debtor's packager) or indebtedness incurred solely
for the purpose of financing the acquisition of such equipment; (vi)
easements, reservations, rights of way, restrictions, minor defects or
irregularities in title and other similar charges or
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encumbrances affecting real property in a manner not materially or
adversely affecting the value or use of such property;(vii) liens in favor
of Secured Party; and (viii) liens set forth on the Disclosure Schedules
to the Merger Agreement.
"Receivables" shall have the meaning given to that term in
Attachment 1 hereto.
'"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 Attachment 1 hereto (collectively and severally, the
"Collateral"), which Attachment 1 is incorporated herein by this reference.
Notwithstanding the foregoing provisions of this Section 2, such grant of a
security interest shall not extend to and the term "Collateral" shall not
include that portion of Debtor's licenses of third party intellectual property
that, if included in the Collateral, would constitute a default under any
agreement, contract or document relating thereto or would require any consent
that has not yet been obtained.
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, other than Permitted Liens; (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, except for Permitted Liens; and (c) each Receivable is genuine and
enforceable against the party obligated to pay the same (an "Account Debtor").
4. Covenants Relating to Collateral. (a) 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, except for Permitted Liens; (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,
(i) not to change Debtor's name or place of business (or, if Debtor has more
than one place of business, its chief executive office), or the office in which
Debtor's records relating to Receivables are kept, and (ii) not to keep
Collateral consisting of chattel paper at any location other than its chief
executive office and in which account Secured Party has a perfected
first-priority security interest; (e) to procure, execute and deliver from time
to time any endorsements, assignments, financing statements and other writings
reasonably deemed necessary or
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appropriate by Secured Party to perfect, maintain and protect its lien hereunder
and the priority thereof and to deliver promptly to Secured Party all originals
of Collateral consisting of instruments; (f) to appear in and defend any action
or proceeding which may affect its title to or Secured Party's interest in the
Collateral; (g) 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; (h) 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; (i) 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 except Permitted Liens; (j) 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; (k) to
collect, enforce and receive delivery of the Receivables in accordance with past
practice until otherwise notified by Secured Party; and (1) to comply with all
material requirements of law relating to the production, possession, operation,
maintenance and control of the Collateral.
(b) Debtor agrees to take all actions reasonably requested by Secured
Party to assign Debtor's leasehold interest in the premises located at 0000
Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000 to the Secured Party and, if
and when requested by Secured Party, to use its best efforts to obtain the
landlord's written consent to such assignment.
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 dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on or on account of the Collateral; (b) enter
into any extension, reorganization, deposit, merger, consolidation or other
agreement pertaining to, or deposit, surrender, accept, hold or apply other
property in exchange for the Collateral; (c) insure, process and preserve the
Collateral; (d) make any compromise or settlement, and take any action it deems
advisable, with respect to the Collateral; (e) pay any indebtedness of Debtor
relating to the Collateral; and (f) 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.
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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 and provided there is no continuance of any PLL Default under
the Merger Agreement, 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 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.
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(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.
(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
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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 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.
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[Signature Page - Security Agreement and Assignment of Lease]
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________________________________________
Name: Xxxxx X. Xxxx,
Title: Chairman and Chief Executive Officer
ACCEPTED AND AGREED:
PACIFIC LITHIUM LIMITED
a New Zealand corporation
as Secured Party
By:_____________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
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ATTACHMENT 1
TO SECURITY AGREEMENT
All right, title and interest of Debtor now owned or hereafter acquired in and
to the following:
(a) All equipment and fixtures (including, without limitation,
furniture, vehicles and other machinery and office equipment), including the
Debtor's packager, together with all additions and accessions thereto and
replacements therefor (collectively, the "Equipment") and Inventory;
(b) All accounts, chattel paper, contract rights and rights to the
payment of money (collectively, the "Receivables");
(c) All general intangibles, including, without limitation, (i)
customer and supplier lists and contracts, books and records, insurance
policies, tax refunds, contracts for the purchase of real or personal property,
(ii) all patents, copyrights, trademarks, trade names, service marks and other
intellectual property rights, (iii) all licenses to use, applications for, and
other rights to, such patents, copyrights, trademarks, trade names and service
marks, and (iv) all goodwill of Debtor;
(d) All deposit accounts, money, certificated securities (but
excluding securities of foreign subsidiaries), uncertificated securities,
instruments and documents; and
(e) 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).
