EXHIBIT 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") is dated as of the 5th day of
October, 2001 between Valence Technology, Inc. (previously Ultracell, Inc.), a
Delaware corporation ("BORROWER"), and Xxxx & Xxxx Enterprises, LLC ("LENDER").
RECITALS
WHEREAS, Lender has made certain loans to Borrower prior to the date hereof
and has agreed to make available to Borrower a $20,000,000 non-revolving loan
facility pursuant to that certain Loan Agreement, dated as of October 5, 2001
between the Lender and the Borrower, as amended from time to time (the "LOAN
AGREEMENT," and capitalized terms used herein without definitions shall have the
meanings given to them in the Loan Agreement); and
WHEREAS, in connection with the previous loans made to Borrower by Lender
and the transactions contemplated by the Loan Agreement, Borrower has agreed to
grant a security interest in its assets to Borrower, upon and subject to the
terms, provisions and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meaning:
"ACCOUNT DEBTOR" shall mean any Person who is or who may become obligated
under, with respect to or on account of an Account.
"ACCOUNTS" shall mean all of Borrower's currently existing and hereafter
arising accounts, as defined in the UCC, including any contract rights to
payment arising out of the sale or lease of goods or the rendition of services
by Borrower, irrespective of whether earned by performance, and any and all
credit insurance, guarantees or security therefor.
"COLLATERAL" shall mean all current and hereafter acquired personal
property of Borrower, including all insurance relating thereto, and including
all Accounts, Deposit Accounts, Equipment, General Intangibles, Inventory and
Negotiable Collateral, and any and all proceeds, as defined in the UCC, thereof.
"DEPOSIT ACCOUNTS" shall mean all deposit accounts, as defined in the UCC,
now or hereafter held in Borrower's name.
"EQUIPMENT" shall mean all of Borrower's present and hereafter acquired
machinery, machine tools, motors, computers, equipment, furniture, furnishings,
fixtures, vehicles (including motor vehicles and trailers), tools, parts, goods,
wherever located, including all attachments, accessories, accessions,
replacements, substitutions, additions and improvements to any of the foregoing.
"GENERAL INTANGIBLEs" shall mean all of Borrower's present and future
general intangibles and other personal property (including contract rights,
rights arising under common law, statutes or regulations, choses or other things
in action, goodwill, patents, trade names, trade secrets, trademarks, service
marks, copyrights, blueprints, drawings, purchase orders, customer lists, monies
due or recoverable from pension funds, route lists, rights to payment, and other
rights under any royalty or licensing agreements, infringement claims, computer
programs, information contained on computer disks or tapes, literature, reports,
catalogs, deposit accounts, insurance premium rebates, tax refunds and tax
refund claims), other than goods, Accounts and Negotiable Collateral.
"INVENTORY" shall mean all present and future inventory in which Borrower
has any interest, including goods held for sale or lease or to be furnished
under a contract of service and all of Borrower's present and future raw
materials, work in process, finished goods and packing and shipping materials,
wherever located.
"NEGOTIABLE COLLATERAL" shall mean all of Borrower's present and future
letters of credit, letter of credit rights, notes, drafts, instruments,
investment property, securities (including the shares of capital stock or other
equity or membership interests of United States subsidiaries of Borrower),
documents, personal property leases (wherein Borrower is the lessor) and chattel
paper. (Any terms used in the preceding sentence that are defined in the UCC
shall have the meanings set forth therein.) Negotiable Collateral shall also
include all of the shares of each class of capital stock of Valence Technology
Cayman Islands, Inc., a Cayman Islands corporation and wholly owned subsidiary
of Borrower.
"PERMITTED LIENS" means the following types of liens:
(i) the security interests granted pursuant to this Agreement;
(ii) Liens for taxes assessments or governmental charges or claims (a) for
amounts not yet overdue or (b) for amounts that are overdue and that (in the
case of any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as (A) such reserves
or other appropriate provisions, if any, as shall be required by generally
accepted accounting principles (GAAP) shall have been made for any such
contested amounts and (B) in the case of a lien with respect to any portion of
the Collateral, such contest proceedings conclusively operate to stay the sale
of any portion of the Collateral on account of such lien;
(iii) statutory liens of landlords, statutory liens and rights or set-off
of banks, statutory liens of carriers, warehousemen, mechanics, repairmen,
workmen and materialmen, and other liens imposed by law, in each case incurred
in the ordinary course of business (a) for amounts not yet overdue for a period
in excess of five days) are being contested in good faith by
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appropriate proceedings, so long as (A) such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made for any
such contested amounts and (B) in the case of a lien with respect to any portion
of the Collateral, such contest proceedings conclusively operate to stay the
sale of any portion of the Collateral on account of such lien;
(iv) liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security or to secure the performance of tenders, statutory obligations,
bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of the Collateral on
account thereof;
(v) any attachment or judgment lien not constituting an Event of Default;
(vi) leases or subleases granted to third parties and not interfering in
any material respect with the ordinary conduct of the business of Borrower or
any of its Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor under any lease
not prohibited by this Agreement, (b) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease to any
restriction or encumbrance referred to in the preceding clause (b), so long as
the holder of such restriction or encumbrance agrees to recognize the rights of
such lessee or sublessee under such lease;
(viii) liens arising from filing UCC financing statements relating solely
to leases not prohibited by this Agreement;
(ix) liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods; and
(x) licenses of intellectual property Collateral granted by Borrower or any
of its Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of Borrower or
such Subsidiary.
"UCC" shall mean the Uniform Commercial Code, as in effect from time to
time, of the State of California or of any other state the laws of which are
required as a result thereof to be applied in connection with the issue of
perfection of security interests.
2. CREATION OF SECURITY INTEREST; COLLATERAL.
2.1 GRANT OF SECURITY INTEREST. Borrower hereby pledges and grants to
Lender a first priority (other than Permitted Liens) continuing security
interest in all Collateral in order to secure prompt payment and performance of:
(i) all debts, liabilities and obligations of Borrower to Lender, now
existing or hereafter incurred, arising out of or related to the Loan Agreement,
any and all Notes, this Agreement or any other Loan Documents;
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(ii) all debts, liabilities and obligations of Borrower to Lender, now
existing or hereafter incurred, arising out of or relating to that certain Loan
Agreement dated as of July 17, 1990 (and all amendments and modifications
thereto), any and all promissory notes made by Borrower to Lender pursuant
thereto (a list of which is attached as Exhibit A) and any security agreements
securing any of the foregoing.
(iii) any and all other obligations of Borrower to Lender, direct or
indirect, whether or not secured, and whether now existing or hereafter
incurred.
The debts, obligations and liabilities described in the above clauses (i), (ii),
and (iii) above are herein referred to as the "OBLIGATIONS." Lender's security
interest in the Collateral shall attach to all Collateral without further action
on the part of Lender or Borrower.
2.2 TRANSFER OF COLLATERAL. Anything contained in this Agreement or any
other Loan Document to the contrary notwithstanding, Borrower shall not dispose
of any item or portion of the Collateral without the prior written consent of
Lender, other than (i) the sale of Inventory to buyers in the ordinary course of
business, (ii) the non-exclusive license of General Intangibles in the ordinary
course of business and (iii) the sale of worn-out or surplus Equipment.
2.3 NEGOTIABLE COLLATERAL. In the event that any Collateral is evidenced by
or consists of Negotiable Collateral, Borrower will, immediately upon request of
Lender, endorse and deliver physical possession of such Negotiable Collateral to
Lender.
2.4 COLLECTION OF ACCOUNTS, GENERAL INTANGIBLES AND NEGOTIABLE COLLATERAL.
LICENSE/SALE OF COLLATERAL. At any time that an Event of Default has occurred
and is continuing, Lender or Lender's designee may (a) notify customers or any
Account Debtors of Borrower that the Accounts, General Intangibles or Negotiable
Collateral have been assigned to Lender or that Lender has a security interest
therein; (b) collect the Accounts, General Intangibles and Negotiable Collateral
directly and charge the reasonable collection costs and expenses to the account
of the Borrower and treat the same as a Loan hereunder; (c) prepare for license
or sale, advertise for license or sale, and license or sell (in the manner
provided for herein) the Collateral and Lender is hereby granted a license or
other right, solely pursuant to the provisions of this Section 2.4, to use,
without charge, Borrower's intellectual property as it pertains to the
Collateral, in completing production of, advertising for license or sale, and
licensing or selling any Collateral and, in connection with Lender's exercise of
its rights under this Section 2.4, Borrower's rights under all Collateral shall
inure to Lender's benefit; and (d) license or sell the Collateral at either a
public or private sale, or both, by way of one or more contracts or
transactions, for cash or on terms, in such manner and at such places (including
Borrower's premises) as Lender determines is commercially reasonable, and apply
any proceeds to the Loan obligations in whatever manner or order Lender deems
appropriate. Lender may disclaim any warranties in connection therewith.
2.5 DELIVERY OF ADDITIONAL DOCUMENTATION REQUIRED. At any time upon the
request of Lender, Borrower shall at its sole expense execute and deliver to
Lender all financing statements, continuation financing statements, fixture
filings, security agreements, pledges, assignments, control agreements,
endorsements of certificates of title, applications for title, affidavits,
reports, notices, schedules of accounts, letters of authority and all other
documents
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that Lender reasonably may request, in form satisfactory to Lender, to perfect
and continue perfected Lender's security interests in the Collateral, and in
order to fully consummate all of the transactions contemplated hereby.
2.6 POWER OF ATTORNEY. Borrower hereby irrevocably makes, constitutes and
appoints Lender (and any of Lender's officers, employees or agents designated by
Lender) as Borrower's true and lawful attorney in fact, with power to (a) if
Borrower refuses to, or fails timely to execute and deliver any of the documents
described in Section 2.5, sign the name of Borrower to any of the documents
described in Section 2.5, (b) at any time that an Event of Default has occurred
and is continuing, sign Borrower's name on any invoice or xxxx of lading
relating to any Account, drafts against Account Debtors, schedules and
assignments of Accounts, verifications of Accounts, and notices to Account
Debtors, (c) send requests for verification of Accounts, (d) at any time that an
Event of Default has occurred and is continuing, endorse Borrower's name on any
Collateral in the possession of the Lender, (e) at any time that an Event of
Default has occurred and is continuing, notify the post office authorities to
change the address for delivery of Borrower's mail to an address designated by
Lender, to receive and open all mail addressed to Borrower, and to retain all
mail relating to the Collateral and forward all other mail to Borrower, (f) at
any time that an Event of Default has occurred and is continuing, make, settle
and adjust all claims under Borrower's policies of insurance and make all
determinations and decisions with respect to such policies of insurance, and (g)
at any time that an Event of Default has occurred and is continuing, settle and
adjust disputes and claims in respect of the Accounts directly with Account
Debtors, for amounts and upon terms that Lender determines to be reasonable, and
Lender may cause to be executed and delivered any documents and releases that
Lender determines to be necessary. The appointment of Lender as Borrower's
attorney, and each and every one of Lender's rights and powers, being coupled
with an interest, is irrevocable until all of the Obligations have been fully
paid and performed and Lender's obligations to extend credit under the Loan
Agreement have terminated.
2.7 RIGHT TO INSPECT. Lender (through any of its officers, employees or
agents) shall have the right, from time to time hereafter, during regular
business hours and upon reasonable prior notice, to inspect any of Borrower's
books and records and to check, test and appraise the Collateral in order to
verify Borrower's financial condition or the amount, quality, value, condition
of or any other matter relating to the Collateral.
3. TITLE; PERMITTED LIENS.
Borrower represents and warrants and agrees that, other than Permitted
Liens, Borrower and each Subsidiary is or will be lawfully possessed and the
sole owner of its Property, free and clear of any mortgage, pledge or other
secured debt and, all such Property is free and clear of any lien or encumbrance
of any kind or character, legal or equitable, other than Permitted Liens.
4. LOCATION OF COLLATERAL.
Borrower represents and warrants to Lender that: (a) Exhibit B is a correct
and complete list of the location of Borrower's chief executive office, the
location of its books and records, the locations of the Collateral, and the
locations of all of its other places of business; and (b) Exhibit B correctly
identifies any of such facilities and locations that are not owned by Borrower
and sets
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forth the names of the owners and lessors or sublessors of such facilities and
locations. Borrower covenants and agrees that it will not (i) maintain any
Collateral at any location other than those locations listed for Borrower on
Exhibit B, (ii) otherwise change or add to any of such locations, or (iii)
change the location of its principal office from the location identified in
Exhibit B, unless it gives Lender at least 30 days' prior written notice thereof
and executes any and all financing statements and other documents that Lender
reasonably requests in connection therewith. Without limiting the foregoing,
Borrower represents that all of its Inventory (other than Inventory in transit)
is, and covenants that all of its Inventory will be, located either (a) on
premises owned by Borrower, (b) on premises leased by Borrower, provided that
Lender has received an executed landlord waiver from the landlord of such
premises in form and substance satisfactory to Lender, or (c) in a warehouse or
with a bailee, provided that Lender has received an executed bailee letter in
form and substance satisfactory to Lender.
5. NAME; JURISDICTION OF ORGANIZATION.
Borrower represents and warrants that (a) it is a corporation duly
organized, validly existing and in good standing under the laws of Delaware, (b)
is qualified to do business and is in good standing in all jurisdictions in
which such qualification is required for the conduct of its business, (c) has
all requisite power and authority to own and operate its properties and carry on
its business as now conducted or presently proposed to be conducted, and (d) its
exact legal name is as set forth on the first page hereof. Borrower shall not
change its name or reorganize itself under the laws of any jurisdiction other
than the jurisdiction in which it is organized as of the date hereof or change
its type of entity.
6. ACCOUNTS.
6.1 VALIDITY. Borrower hereby represents and warrants, with respect to its
Accounts, that: (a) each existing Account represents, and each future Account
will represent, a bona fide sale or lease and delivery of goods by Borrower, or
rendition of services by Borrower, in the ordinary course of Borrower's
business; (b) each existing Account is, and each future Account will be, for a
liquidated amount payable by the Account Debtor thereon on the terms set forth
in the invoice therefor or in the schedule thereof delivered to Lender, without
any offset, deduction, defense, or counterclaim except those known to Borrower
and disclosed to Lender pursuant to this Agreement; (c) each copy of an invoice
delivered to Lender by Borrower will be a genuine copy of the original invoice
sent to the Account Debtor named therein; and (d) all goods described in any
invoice representing a sale of goods will have been delivered to the Account
Debtor and all services of Borrower described in each invoice will have been
performed.
6.2 CERTAIN ACTIONS. Borrower shall not re-date any invoice or sale or make
sales on extended dating beyond that customary in Borrower's business or extend
or modify any Account. If Borrower becomes aware of any matter adversely
affecting the collectibility of any Account involving an amount greater than
$100,000, including information regarding the Account Debtor's creditworthiness,
Borrower will promptly so advise Lender.
6.3 DISPUTES; ALLOWANCES. Upon request of Lender, Borrower shall notify
Lender promptly of all disputes and claims in excess of $25,000 with any Account
Debtor, and
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agrees to settle, contest, or adjust such dispute or claim at no expense to
Lender. No discount, credit or allowance shall be granted to any Account Debtor,
except for discounts, credits and allowances made or given in the ordinary
course of Borrower's business when no Event of Default exists hereunder.
7. REMEDIES.
Upon the occurrence of any Event of Default, Lender, in addition to
availing itself of any remedies conferred upon it by law or equity or by the
terms of the Notes or any of the other Loan Documents, may pursue any available
remedy under the UCC.
8. RIGHT TO CURE.
Lender may, in its discretion, pay any amount or do any act required of
Borrower hereunder in order to preserve, protect, maintain or enforce the
Obligations, the Collateral or Lender's Liens therein, and which Borrower fails
to pay or do, including payment of any judgment against Borrower, any insurance
premium, any warehouse charge, any finishing or processing charge, any
landlord's or bailee's claim, and any other lien upon or with respect to the
Collateral. All payments that Lender makes under this Section 8 and all
out-of-pocket costs and expenses that Lender pays or incurs in connection with
any action taken by it hereunder shall be charged to Borrower. Any payment made
or other action taken by Lender under this Section 8 shall be without prejudice
to any right to assert the occurrence of an Event of Default hereunder and to
proceed thereafter as herein provided.
9. LENDER'S RIGHTS, DUTIES AND LIABILITIES.
9.1 NO IMPAIRMENT OF OBLIGATIONS. Borrower assumes all responsibility and
liability arising from or relating to the use, license, sale or other
disposition of the Collateral. The Obligations shall not be affected by any
failure of Lender to take any steps to perfect Lender's Liens or to collect or
realize upon the Collateral, nor shall loss of or damage to the Collateral
release Borrower from any of the Obligations.
9.2 BORROWER REMAINS LIABLE. Anything herein to the contrary
notwithstanding, Borrower 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. Lender shall not have any
obligation or liability under any contract or license by reason of or arising
out of this Agreement or the granting herein of a lien thereon or the receipt by
Lender of any payment relating to any contract or license pursuant hereto.
Lender shall not be required or obligated in any manner to perform or fulfill
any of the obligations of Borrower 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 claims, 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.
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10. INDEMNIFICATION.
In any suit, proceeding or action brought by Lender relating to any
Collateral for any sum owing with respect thereto or to enforce any rights or
claims with respect thereto, Borrower will save, indemnify and keep Lender
harmless from and against all expense (including reasonable attorneys' fees and
expenses), loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the Account
Debtor or other individual or entity obligated on the Collateral, arising out of
a breach by Borrower of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to, or in favor of, such
obligor or its successors from Borrower, except in the case of Lender, to the
extent such expense, loss, or damage is attributable solely to the gross
negligence or willful misconduct of Lender as finally determined by a court of
competent jurisdiction. All such obligations of Borrower shall be and remain
enforceable against and only against Borrower and shall not be enforceable
against Lender.
11. MISCELLANEOUS.
11.1 ADDITIONAL ACTS. Borrower shall, upon request, execute and deliver
such further instruments and documents and do such further acts and things as
may be reasonably required to provide to Lender the evidence of and security for
the Obligations as well as the perfection of Lender's security interest in the
Collateral and its priority against all other parties.
11.2 AMENDMENT: WAIVER; APPROVAL. This Agreement shall not be amended,
modified or supplemented without the written agreement of Borrower and Lender at
the time of such amendment, modification or supplement. No waiver of any
provision of this Agreement or any of the other Loan Documents shall be
effective unless set forth in writing signed by the party making such waiver,
and any such waiver shall be effective only to the extent therein set forth.
Failure by Lender to insist upon full and prompt performance of any provisions
of this Agreement or any of the other Loan Documents, or to take action upon the
occurrence of any Event of Default, shall not constitute a waiver of any rights
of Lender, and Lender may at any time thereafter exercise all available rights
and remedies with respect to such Event of Default. Receipt by Lender of any
instrument or document shall not constitute or be deemed to be an approval
thereof. Any approvals required under any of the Loan Documents must be in
writing, signed by Lender.
11.3 ENTIRE AGREEMENT. This Agreement and the other Loan Documents hereto
constitute the entire agreement and understanding among the Borrower and the
Lender, and supersede any prior agreement and understanding relating to the
subject matter of this Agreement; provided, however, that notwithstanding the
foregoing, this Agreement shall not supersede any previous security agreement,
or security interest or pledge, given by Borrower to secure any or all of the
Obligations.
11.4 NOTICE. Any notice which any party hereto gives to any other party
hereunder shall be in accordance with the provisions of the Loan Agreement
relating thereto.
11.5 BENEFIT; ASSIGNMENT. The rights, powers and remedies of Lender and
Borrower under this Agreement shall inure to their respective benefits and to
the benefit of their
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respective successors and permitted assigns. The rights and obligations of
either Borrower or Lender under this Agreement may not be assigned and any
purported assignment by one party shall be null and void without prior written
approval of the other party.
11.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, as applied to agreements
among residents made and to be performed entirely within the State of
California.
11.7 HEADINGS. The titles and headings of the articles, sections and
paragraphs of this Agreement have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions of this Agreement.
11.8 NO PARTNERSHIP OR JOINT VENTURE. Lender, by executing and performing
this Agreement (or any of the Loan Documents), shall not become a partner or
joint venturer with Borrower or any of its respective associates or affiliates
and all inspections herein provided for are for the sole benefit of Lender.
11.9 TIME IS OF THE ESSENCE. Time is of the essence for the payment of all
amounts due Lender under the Loan Documents and performance and observance by
Borrower of each covenant, agreement, provision and term of the Loan Documents.
11.10 INVALID PROVISIONS. In the event any one or more of the provisions
contained in this Agreement or in any of the other Loan Documents shall for any
reason be held to be invalid, illegal or unenforceable in any respect by a court
of competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement or any other Loan Document, and
this Agreement and the other Loan Document shall be construed as if such
invalid, illegal or unenforceable provision had never been in the Loan
Documents.
11.11 ACTS PROHIBITED UNDER LAW. Notwithstanding anything herein contained
to the contrary, Lender will not be required to make any disbursement or perform
any other act under this Agreement if, as a result thereof, Lender will violate
any law, statute, ordinance, rule, regulation or judicial decision applicable
thereto. Lender shall use its reasonable efforts to promptly notify Borrower of
Lender's inability to make such disbursement or perform such act due to such
violation.
11.12 COUNTERPARTS. This Agreement and the other Loan Documents may be
executed in counterparts, and all said counterparts when taken together shall
constitute one and the same Agreement.
11.13 NO THIRD PARTY BENEFICIARY. This Agreement and the other Loan
Documents are only for the benefit of the parties hereto and thereto and their
permitted successors and assigns. No other person or entity shall be entitled to
rely on any matter set forth herein or therein or shall gain any rights herein
whether by subrogation or otherwise without the prior written consent of such
parties.
* * *
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SIGNATURE PAGE OF SECURITY AGREEMENT
IN WITNESS WHEREOF, this Security Agreement has been entered into as of the
date first written above.
BORROWER:
VALENCE TECHNOLOGY, INC.
a Delaware corporation
By: /S/ XXXXXXX X. XXXXXXXX
--------------------------------
Its: CEO AND PRESIDENT
-------------------------------
LENDER:
XXXX & XXXX ENTERPRISES, LLC
By: /S/ XXXX X. XXXX
--------------------------------
Its: MEMBER
-------------------------------
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