Exhibit 4.4
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SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of December 31, 2002, between Electric Fuel
Corporation, a Delaware corporation (the "PARENT"), Electric Fuel Transportation
Corp., a Delaware corporation ("EFT"), Electric Fuel B.V., a Netherlands
corporation ("EF-BV"), Instant Power Corporation, a Delaware corporation
("IPC"), I.E.S. Defense Services, Inc., a Delaware corporation ("IDS"), IES
Interactive Training, Inc. ("IES"), Electric Fuel GmbH, a German corporation
("EF-G"), Summit Training International, Inc., a Delaware corporation ("STI"),
Electric Fuel UK Ltd., a British corporation ("EF-UK") (each of EFT, EF-BV, IPC,
IDS, IES, EF-G, STI and EF-UK, a "SUBSIDIARY" and, together with Parent, the
"DEBTORS") and the investors signatory hereto (each investor including their
respective successors, endorsees, transferees and assigns, a "SECURED PARTY",
and collectively, the "SECURED PARTIES").
W I T N E S S E T H:
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WHEREAS, pursuant to the Securities Purchase Agreement, dated the date
hereof between the Parent and the Secured Parties (the "PURCHASE AGREEMENT"),
the Secured Parties have agreed to extend certain loans to the Parent which
shall be evidenced by the issuance to the Secured Parties of Secured Convertible
Debentures, due June 30, 2005 (the "DEBENTURES"); and
WHEREAS, in order to induce the Secured Parties to enter into the Purchase
Agreement, the Debtors have agreed to execute and deliver to the Secured Parties
this Agreement and a separate security agreement with respect to the Debtors'
intellectual property ("IP SECURITY AGREEMENT") for the benefit of the Secured
Parties and to grant to it a first priority security interest in certain
property of the Debtors to secure the prompt payment, performance and discharge
in full of all of the Parent's obligations under the Debentures, this Agreement
and the IP Security Agreement.
NOW, THEREFORE, in consideration of the agreements herein contained and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the meanings set forth in this Section 1. Terms used but not
otherwise defined in this Agreement that are defined in Article 9 of the UCC
(such as "GENERAL INTANGIBLES" and "PROCEEDS") shall have the respective
meanings given such terms in Article 9 of the UCC.
(a) "ACCOUNTS" shall mean all present and future rights of the Debtors to
payment for goods sold or leased or for services rendered, which are not
evidenced by instruments or chattel paper, and whether or not earned by
performance.
(b) "AGENT" means ZLP Master Technology Fund as agent for each of the
Secured Parties pursuant to this Agreement and the IP Security Agreement, or
such other Person as shall have been subsequently appointed as a successor agent
pursuant to this Agreement.
(c) "COLLATERAL" means the collateral in which the Secured Parties are
granted a first priority security interest by this Agreement and which shall
include the following, whether presently owned or existing or hereafter acquired
or coming into existence, and all additions and accessions thereto and all
substitutions and replacements thereof, and all proceeds, products and Accounts
thereof, including, without limitation, all proceeds from the sale or transfer
of the Collateral and of insurance covering the same and of any tort claims in
connection therewith:
(i) All Goods of the Debtors, including, without limitations, all
machinery, equipment, computers, motor vehicles, trucks, tanks, boats,
ships, appliances, furniture, special and general tools, fixtures, test and
quality control devices and other equipment of every kind and nature and
wherever situated, together with all documents of title and documents
representing the same, all additions and accessions thereto, replacements
therefor, all parts therefor, and all substitutes for any of the foregoing
and all other items used and useful in connection with the Debtors'
businesses and all improvements thereto (collectively, the "EQUIPMENT");
and
(ii) All Inventory of the Debtors; and
(iii) All of the Debtors' contract rights and general intangibles,
including, without limitation, all partnership interests, stock or other
securities, licenses, distribution and other agreements, computer software
development rights, leases, franchises, customer lists, quality control
procedures, grants and rights, goodwill, trademarks, service marks, trade
styles, trade names, patents, patent applications, copyrights, deposit
accounts, and income tax refunds (collectively, the "GENERAL INTANGIBLES");
and
(iv) All Accounts of the Debtors including all insurance proceeds, and
rights to refunds or indemnification whatsoever owing, together with all
instruments, all documents of title representing any of the foregoing, all
rights in any merchandising, goods, equipment, motor vehicles and trucks
which any of the same may represent, and all right, title, security and
guaranties with respect to each Receivable, including any right of stoppage
in transit;
(v) All Pledged Shares; and
(vi) All of the Debtors' documents, instruments and chattel paper,
files, records, books of account, business papers, computer programs and
the products and proceeds of all of the foregoing Collateral set forth in
clauses (i)-(v) above.
(d) "OBLIGATIONS" means all of the Debtors' obligations under this
Agreement, the Debentures and the IP Security Agreement, in each case, whether
now or hereafter existing, voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from the Secured Parties as a
preference, fraudulent transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to time.
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(e) "PLEDGED SHARES" means (i) all the shares of common stock of each of
the Subsidiaries of which the Parent is the direct or indirect beneficial and
record holder and set forth on Schedule C attached hereto, (ii) all additional
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shares of each of the Subsidiaries from time to time acquired by the Parent in
any manner; (ii) the certificates representing the shares referred to in clauses
(i) and (ii) above; and (iii) subject to Section 4, all dividends, cash,
instruments, options, rights and other property or proceeds, from time to time
received, receivable or otherwise distributed or distributable in respect of or
in exchange for any or all of the shares referred to in clauses (i) and (ii)
above.
(f) "UCC" means the Uniform Commercial Code and/or any other applicable law
of each jurisdiction in which any Debtor is incorporated or organized
(including, without limitation the State of Delaware) and any jurisdiction as to
any Collateral located therein.
2. Grant of Security Interest.
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(a) As an inducement for the Secured Parties to enter into the Purchase
Agreement and to secure the complete and timely payment, performance and
discharge in full, as the case may be, of all of the Obligations, each of the
Debtors hereby, unconditionally and irrevocably, pledges, grants and
hypothecates to the Secured Parties, a continuing first priority security
interest in, a first lien upon and a right of set-off against all of the
Debtors' right, title and interest of whatsoever kind and nature in and to the
Collateral (the "SECURITY INTEREST").
(b) Concurrently with or promptly following the execution of this
Agreement, all certificates or instruments representing or evidencing the
Pledged Shares shall be delivered to and held by the Secured Parties pursuant to
this Agreement and shall be accompanied by undated stock powers duly endorsed in
blank and irrevocable proxies; provided, however, that the Company shall use its
best effort to deliver the certificates evidencing its ownership of IDS as soon
as possible.
3. Representations, Warranties, Covenants and Agreements of the Debtors. The
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Debtors jointly and severally represent and warrant to, and covenant and
agree with, the Secured Parties as follows:
(a) Each Debtor has the requisite corporate power and authority to enter
into this Agreement and otherwise to carry out its obligations thereunder. The
execution, delivery and performance by each Debtor of this Agreement and the
filings contemplated therein have been duly authorized by all necessary action
on the part of such Debtor and no further action is required by such Debtor.
(b) Each Debtor represents and warrants that it has no place of business or
offices where its respective books of account and records are kept (other than
temporarily at the offices of its attorneys or accountants) or places where
Collateral is stored or located, except as set forth on Schedule A attached
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hereto;
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(c) (i) Except for the Security Interest and as set forth in Schedule
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3(c)(i) hereto, each Debtor is the sole owner of the Collateral (except for
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non-exclusive licenses granted by the Debtors in the ordinary course of
business), free and clear of any liens, security interests, encumbrances, rights
or claims, and is fully authorized to grant the Security Interest in and to
pledge the Collateral. There is not on file in any governmental or regulatory
authority, agency or recording office an effective financing statement, security
agreement, license or transfer or any notice of any of the foregoing (other than
those that have been filed in favor of the Secured Parties pursuant to this
Agreement) covering or affecting any of the Collateral. So long as this
Agreement shall be in effect, the Debtors shall not execute and shall not
knowingly permit to be on file in any such office or agency any such financing
statement or other document or instrument (except to the extent filed or
recorded in favor of the Secured Parties pursuant to the terms of this
Agreement).
(ii) The Parent is the record, direct and beneficial owner of the
Pledged Shares (other than STI, which is wholly-owned by IES). Except as set
forth in Schedule 3(c)(ii) hereto, all of the Pledged Shares are owned by the
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Parent or its subsidiary, as the case may be, free and clear of any lien, claim,
encumbrance, security interest, right or other charge, other than the Security
Interest granted to the Secured Parties hereunder. The Parent has the power,
authority and legal right to pledge, assign, transfer, deliver, deposit and set
over the Pledged Shares pledged to the Secured Parties as provided herein.
(d) No part of the Collateral has been judged invalid or unenforceable. No
written claim has been received that any Collateral or the Debtors' use of any
Collateral violates the rights of any third party. There has been no adverse
decision to the Debtors' claim of ownership rights in or exclusive rights to use
the Collateral in any jurisdiction or to the Debtors' right to keep and maintain
such Collateral in full force and effect, and there is no proceeding involving
said rights pending or, to the best knowledge of the Debtors, threatened before
any court, judicial body, administrative or regulatory agency, arbitrator or
other governmental authority.
(e) Each Debtor shall at all times maintain its books of account and
records relating to the Collateral at its principal place of business and its
Collateral at the locations set forth on Schedule A attached hereto and may not
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relocate such books of account and records or tangible Collateral unless it
delivers to each of the Secured Parties at least 30 days prior to such
relocation (i) written notice of such relocation and the new location thereof
(which must be within the United States) and (ii) evidence that appropriate
financing statements under the UCC and other necessary documents have been filed
and recorded and other steps have been taken to perfect the Security Interest to
create in favor of each of the Secured Parties a valid, perfected and continuing
first priority liens in the Collateral. The principal place of business of each
of the Debtors is located at the address set forth in Schedule Ahereto, and will
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not be moved without notice to each Secured Party.
(f) This Agreement creates in favor of the Secured Parties a valid security
interest in the Collateral securing the payment and satisfaction of the
Obligations and, upon making the filings described in the immediately following
sentence, a perfected first priority security interest in such Collateral.
Except for the filing of financing statements pursuant to the UCC with the
proper filing and recording agencies in the jurisdictions indicated on Schedule
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B, attached hereto, no authorization or approval of or filing with or notice to
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any governmental authority or regulatory body is required either (i) for the
grant by the Debtors of, or the effectiveness of, the Security Interest granted
hereby or for the execution, delivery and performance of this Agreement by the
Debtors or (ii) for the perfection of or exercise by the Secured Parties of its
rights and remedies hereunder.
(g) The Debtors acknowledge and agree that on the date of execution of this
Agreement, the Secured Parties will file one or more financing statements under
the UCC with respect to the Security Interest with the proper filing and
recording agencies in the jurisdictions indicated on Schedule B, attached hereto
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and in such other jurisdictions as the Secured Parties may deem necessary.
(h) The execution, delivery and performance of this Agreement does not
conflict with or cause a breach or default, or an event that with or without the
passage of time or notice, shall constitute a breach or default, under any
agreement to which the Debtors are a party or by which the Debtors are bound.
No consent (including, without limitation, from stock holders or creditors of
the Debtors) is required for the Debtors to enter into and perform their
obligations hereunder.
(i) The Debtors shall at all times maintain the liens and Security Interest
provided for hereunder as valid and perfected first priority liens and security
interests in the Collateral in favor of each of the Secured Parties to ensure
that such liens and Security Interest are and remain senior to all not existing
and hereafter created security interests and liens. The Collateral will be kept
free of all liens, security interest, claims and encumbrances whatsoever. Each
Debtor hereby agrees to defend the same against any and all persons. Each Debtor
shall safeguard and protect all Collateral for the account of the Secured
Parties. At the request of the Agent and/or the Secured Parties, the Debtors
will sign and deliver to the Secured Parties at any time or from time to time
one or more financing statements pursuant to the UCC in form reasonably
satisfactory to the Secured Parties and will pay the cost of filing the same in
all public offices wherever filing is, or is deemed by the Secured Parties to
be, necessary or desirable to effect the rights and obligations provided for
herein. Without limiting the generality of the foregoing, the Debtors shall pay
all fees, taxes and other amounts necessary to maintain the Collateral and the
Security Interest hereunder, and the Debtors shall obtain and furnish to the
Secured Parties from time to time, upon demand, such releases and/or
subordinations of claims and liens which may be required to maintain the
priority of the Security Interest hereunder.
(j) The Debtors will not allow any Collateral to be abandoned, forfeited or
dedicated to the public without the prior written consent of the Secured
Parties. The Debtors will not transfer, pledge, hypothecate, encumber, license
(except for non-exclusive licenses granted by the Debtors in the ordinary course
of business), sell or otherwise dispose of any of the Collateral without the
prior written consent of the Secured Parties.
(k) Each Debtor shall keep and preserve its Equipment, Inventory and other
tangible Collateral in good condition, repair and order and shall not operate or
locate any such Collateral (or cause to be operated or located) in any area
excluded from insurance coverage.
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(l) Each Debtor shall, within ten (10) days of obtaining knowledge thereof,
advise the Agent, in sufficient detail, of any substantial change in the
Collateral, and of the occurrence of any event which would have a material
adverse effect on the value of the Collateral or on the Secured Parties'
security interest therein.
(m) Each Debtor shall promptly execute and deliver to the Secured Parties
such further deeds, mortgages, assignments, security agreements, financing
statements or other instruments, documents, certificates and assurances and take
such further action as the Secured Parties may from time to time request and may
in its sole discretion deem necessary to perfect, protect or enforce its
security interest in the Collateral including, without limitation, the IP
Security Agreement in which each the Secured Parties has been granted a security
interest hereunder, substantially in a form acceptable to the Secured Parties,
which IP Security Agreement, other than as stated therein, shall be subject to
all of the terms and conditions hereof.
(n) The Debtors shall permit the Secured Parties and its representatives
and agents upon reasonable prior notice to inspect the Collateral at any time
during normal business hours, and to make copies of records pertaining to the
Collateral as may be requested by the Secured Parties from time to time.
(o) Each Debtor will, at its own expense, take all steps reasonably
necessary to diligently pursue and seek to preserve, enforce and collect any
rights, claims, causes of action and accounts receivable in respect of the
Collateral.
(p) Each Debtor shall promptly notify the Secured Parties in sufficient
detail upon becoming aware of any attachment, garnishment, execution or other
legal process levied against any Collateral and of any other information
received by the Debtors that may materially affect the value of the Collateral,
the Security Interest or the rights and remedies of the Secured Parties
hereunder.
(q) Each Debtor shall not use or permit any Collateral to be used
unlawfully or in violation of any provision of this Agreement or any applicable
statute, regulation or ordinance or any policy of insurance covering the
Collateral where violation is reasonably likely to have a material adverse
effect on the Secured Parties' rights in the Collateral or Secured Parties'
ability to foreclose on the Collateral.
(r) The Debtors shall not grant to any person or entity any rights or
interests in or to any of the Collateral that are senior to, or pari passu with,
the Secured Parties.
(s) Each Debtor shall notify the Agent of any change in such Debtor's name,
identity, chief place of business, chief executive office or residence within 10
days prior to such change.
(t) All information heretofore, herein or hereafter supplied to the Secured
Parties by or on behalf of the Debtors with respect to the Collateral is
accurate and complete in all material respects as of the date furnished.
4. Voting Rights; Dividends; Etc.
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(a) As long as no Event of Default (as defined in Section 5) shall have
occurred and be continuing and, in the case of Section 4(b)(i), as long as no
notice thereof shall have been given by the Secured Parties to the Parent):
(i) The Parent shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Shares pledged by it hereunder or
any part thereof for any purpose not inconsistent with the terms of this
Agreement or the Debenture; provided, however, that the Parent shall not
exercise or refrain from exercising any such right if such action would have an
adverse effect on the value of the Pledged Shares or any part thereof.
(ii) The Parent shall be entitled to receive and retain any and all
dividends paid in respect of the Pledged Shares pledged by it hereunder, other
than any and all:
(1) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Shares;
(2) dividends and other distributions paid or payable in cash in
respect of any Pledged Shares in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus; and
(3) cash paid, payable or otherwise distributed in redemption of, or
in exchange for, any Pledged Shares,
all of which shall be, and all of which shall be forthwith delivered
to the Secured Parties to hold as Pledged Shares and shall, if received by the
Parent, be received in trust for the benefit of the Secured Parties, be
segregated from the other property or funds of the Parent, and be forthwith
delivered to the Secured Parties as Pledged Shares in the same form as so
received (with any necessary endorsement).
(iii) The Secured Parties shall execute and deliver (or cause to be
executed and delivered) to the Parent all such proxies and other instruments as
the Parent may reasonably request for the purpose of enabling the Parent to
exercise the voting and other rights which it is entitled to exercise pursuant
to subsection (a)(i) above and to receive the dividends which it is authorized
to receive and retain pursuant to subsection (a)(ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) All rights of the Parent to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise
pursuant to Section 4(a)(i) above shall cease upon notice from the
Secured Parties to the Parent, and all such rights shall thereupon
become vested in the Secured Parties who shall thereupon have the sole
right to exercise such voting and other consensual rights and any and
all rights of conversion, exchange, subscription or any other rights,
privileges or options pertaining to the Pledged Shares or any part
thereof, and Secured Parties may exercise such powers in such manner
as the Secured Parties may elect, but the Secured Parties shall have
no duty to exercise any of the aforesaid right, privileges or options
and shall not be responsible for any failure to do so or delay in
doing so.
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(ii) All rights of the Parent to receive the dividends which it
or he would otherwise be authorized to receive and retain pursuant to
Section 4(a)(ii) above shall cease, and all such rights shall
thereupon become vested in the Parent who shall thereupon have the
sole right to receive and hold as part of the Pledged Shares such
dividends.
(iii) All dividends which are received by the Parent contrary to
the provisions of paragraph (ii) of this Section 4(b) shall be
received in trust for the benefit of the Secured Parties, shall be
segregated from other funds of the Parent and shall be forthwith paid
over to the Secured Parties as Pledged Shares in the same form as so
received (with any necessary endorsement).
(c) In order to permit the Secured Parties to exercise the voting and
other rights which it may be entitled to exercise pursuant to Section
4(b)(i) above, and to receive all dividends and distributions which it may
be entitled Secured Parties, from time to time execute and deliver to the
Secured Parties appropriate proxies, dividend payment orders and other
instruments as the Secured Parties may reasonably request.
5. Defaults. The following events shall be "EVENTS OF DEFAULT":
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(a) The occurrence of an Event of Default (as defined in the
Debentures) under the Debentures;
(b) Any representation or warranty of the Debtors in this Agreement or
in the IP Security Agreement shall prove to have been incorrect in any
material respect when made; and
(c) The failure by a Debtor to observe or perform any of its
obligations hereunder or in the IP Security Agreement for ten (10) days
after receipt by a Debtor of notice of such failure from the Secured
Parties.
6. Duty To Hold In Trust. Upon the occurrence and the continuation of any
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Event of Default, the Debtors shall, upon receipt by it of any revenue, income
or other sums subject to the Security Interest, whether payable pursuant to the
Debentures or otherwise, or of any check, draft, note, trade acceptance or other
instrument evidencing an obligation to pay any such sum, hold the same in
trust for the Secured Parties and shall forthwith endorse and transfer any such
sums or instruments, or both, to the Secured Parties for application to the
satisfaction of the Obligations.
7. Rights and Remedies Upon Default. Upon the occurrence and during the
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continuation of any Event of Default, the Agent (on behalf of, and for the
benefit of, itself and each of the Secured Parties) shall have the right to
exercise all of the remedies conferred hereunder, under the Debentures and under
the IP Security Agreement, and the Agent and Secured Parties shall have all
the rights and remedies of a secured party under the UCC. Without limitation,
the Secured Parties shall have the following rights and powers:
(a) The Agent shall have the right to take possession of all tangible
manifestations or embodiments of the Collateral and, for that purpose,
enter, with the aid and assistance of any person, any premises where the
Collateral, or any part thereof, is or may be placed and remove the same,
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and the Debtors shall assemble the Collateral and make it available to the
Agent at places which the Agent shall reasonably select, whether at the
Debtors' premises or elsewhere, and make available to the Agent, without
rent, all of the Debtors' respective premises and facilities for the
purpose of the Agent taking possession of, removing or putting the
Collateral in saleable or disposable form.
(b) The Agent shall have the right to operate the business of the
Debtors using the Collateral and shall have the right to assign, sell,
lease or otherwise dispose of and deliver all or any part of the
Collateral, at public or private sale or otherwise, either with or without
special conditions or stipulations, for cash or on credit or for future
delivery, in such parcel or parcels and at such time or times and at such
place or places, and upon such terms and conditions as the Agent may deem
commercially reasonable, all without (except as shall be required by
applicable statute and cannot be waived) advertisement or demand upon or
notice to the Debtors or right of redemption of the Debtors, which are
hereby expressly waived. Upon each such sale, lease, assignment or other
transfer of Collateral, the Agent may, unless prohibited by applicable law
which cannot be waived, purchase all or any part of the Collateral being
sold, free from and discharged of all trusts, claims, right of redemption
and equities of the Debtors, which are hereby waived and released.
(c) The Agent may license or, to the same extent the Debtors are
permitted by law and contract to do so, sublicense, whether on an exclusive
or non-exclusive basis, any of the Collateral throughout the world for such
period, on such conditions and in such manner as the Secured Parties shall,
in its reasonable discretion, determine.
(d) The Agent may (without assuming any obligations or liabilities
thereunder), at any time, enforce (and shall have the exclusive right to
enforce) against licensee or sublicensee all rights and remedies of the
Debtors in, to and under any license agreement with respect to such
Collateral, and take or refrain from taking any action thereunder.
(e) The Agent may, in order to implement the assignment, license, sale
or other disposition of any of the Collateral pursuant to this Section,
pursuant to the authority provided for in Section 13, execute and deliver
on behalf of the Debtors one or more instruments of assignment of the
Collateral in form suitable for filing, recording or registration in any
jurisdictions as the Secured Parties may determine advisable.
(f) In the event that any Secured Party shall recover from the Debtors
or the Collateral more than its pro rata share of the Obligations owed to
all Secured Parties hereunder, whether by agreement, understanding or
arrangement with the Debtors or any other Person, set off or other means,
such Secured Party shall immediately deliver or pay over to the other
Secured Parties their pro rata portion of any such recovery in the form
received.
(g) Agent may, at any time or times that an Event of Default exists or
has occurred and is continuing, (i) notify any or all account debtors that
the Accounts have been assigned to Secured Parties and that Secured Parties
have a security interest therein and Agent may direct any or all accounts
debtors to make payment of Accounts directly to Secured Parties, (ii)
extend the time of payment of, compromise, settle or adjust for cash,
credit, return of merchandise or otherwise, and upon any terms or
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conditions, any and all Accounts or other obligations included in the
Collateral and thereby discharge or release the account debtor or any other
party or parties in any way liable for payment thereof without affecting
any of the Obligations, (iii) demand, collect or enforce payment of any
Accounts or such other obligations, but without any duty to do so, and
Agent and Secured Parties shall not be liable for its failure to collect or
enforce the payment thereof nor for the negligence of its agents or
attorneys with respect thereto and (iv) take whatever other action Agent
may deem necessary or desirable for the protection of its interests. At any
time that an Event of Default exists or has occurred and is continuing, at
Agent's request, all invoices and statements sent to any account debtor
shall state that the Accounts and such other obligations have been assigned
to Secured Parties and are payable directly and only to Secured Parties and
the Debtors shall deliver to Agent such originals of documents evidencing
the sale and delivery of goods or the performance of services giving rise
to any Accounts as Agent may require.
8. Applications of Proceeds. The proceeds of any such sale, lease, license
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or other disposition of the Collateral hereunder shall be applied (i) first, to
the expenses of retaking, holding, storing, processing and preparing for sale,
selling, and the like (including, without limitation, any taxes, fees and other
costs incurred in connection therewith) of the Collateral, (ii) to the
reasonable attorneys' fees and expenses incurred by the Agent and/or Secured
Parties in enforcing its rights hereunder and in connection with collecting,
storing and disposing of the Collateral, (iii) to satisfaction of the
Obligations, and (iv) to the payment of any other amounts required by applicable
law, after which the Secured Parties shall pay to the Debtors any surplus
proceeds. If, upon the sale, license or other disposition of the Collateral,
the proceeds thereof are insufficient to pay all amounts to which the Secured
Parties are legally entitled, the Debtors will be liable for the deficiency,
together with interest thereon, at the rate of 12% per annum or the lesser
amount permitted by applicable law (the "DEFAULT RATE"), and the reasonable fees
of any attorneys employed by the Agent and/or Secured Parties to collect such
deficiency. To the extent permitted by applicable law, each Debtor waives all
claims, damages and demands against the Secured Parties arising out of the
repossession, removal, retention or sale of the Collateral, unless due to the
gross negligence or willful misconduct of the Agent and/or Secured Parties.
9. Costs and Expenses. The Debtors agree to pay all out-of-pocket fees,
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costs and expenses incurred in connection with any filing required hereunder,
including without limitation, any financing statements pursuant to the UCC,
continuation statements, partial releases and/or termination statements related
thereto or any expenses of any searches reasonably required by the Agent. The
Debtors shall also pay all other claims and charges which in the reasonable
opinion of the Agent and/or Secured Parties might prejudice, imperil or
otherwise affect the Collateral or the Security Interest therein. The Debtors
will also, upon demand, pay to the Agent and/or Secured Parties the amount of
any and all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which the Agent and/or Secured
Parties may incur in connection with (i) the enforcement of this Agreement, (ii)
the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, or (iii) the exercise or enforcement of
any of the rights of the Secured Parties under the Debentures. Until so paid,
any fees payable hereunder shall be added to the principal amount of the
Debentures and shall bear interest at the Default Rate.
10. Responsibility for Collateral. Each Debtor assumes all liabilities and
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responsibility in connection with all Collateral, and the obligations of such
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Debtor hereunder, under the Debentures or under the IP Security Agreement shall
in no way be affected or diminished by reason of the loss, destruction, damage
or theft of any of the Collateral or its unavailability for any reason.
11. Security Interest Absolute. All rights of the Secured Parties and all
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Obligations of the Debtors hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Debentures, IP Security Agreement or any agreement entered into in
connection with the foregoing, or any portion hereof or thereof; (b) any change
in the time, manner or place of payment or performance of, or in any other term
of, all or any of the Obligations, or any other amendment or waiver of or any
consent to any departure from the Debentures or the IP Security Agreement or any
other agreement entered into in connection with the foregoing; (c) any exchange,
release or nonperfection of any of the Collateral, or any release or amendment
or waiver of or consent to departure from any other collateral for, or any
guaranty, or any other security, for all or any of the Obligations; (d) any
action by the Secured Parties to obtain, adjust, settle and cancel in its sole
discretion any insurance claims or matters made or arising in connection with
the Collateral; or (e) any other circumstance which might otherwise constitute
any legal or equitable defense available to the Debtors, or a discharge of all
or any part of the Security Interest granted hereby. Until the Obligations
shall have been paid and performed in full, the rights of the Secured Parties
shall continue even if the Obligations are barred for any reason, including,
without limitation, the running of the statute of limitations or bankruptcy.
Each Debtor expressly waives presentment, protest, notice of protest, demand,
notice of nonpayment and demand for performance. In the event that at any time
any transfer of any Collateral or any payment received by the Secured Parties
hereunder shall be deemed by final order of a court of competent jurisdiction to
have been a voidable preference or fraudulent conveyance under the bankruptcy or
insolvency laws of the United States, or shall be deemed to be otherwise due to
any party other than the Secured Parties, then, in any such event, the Debtors'
obligations hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or cancellation
of this Agreement, but shall remain a valid and binding obligation enforceable
in accordance with the terms and provisions hereof. Each Debtor waives all
right to require the Secured Parties to proceed against any other person or to
apply any Collateral which the Secured Parties may hold at any time, or to
marshal assets, or to pursue any other remedy. Each Debtor waives any defense
arising by reason of the application of the statute of limitations to any
obligation secured hereby.
12. Term of Agreement. This Agreement and the Security Interest shall
-------------------
terminate on the date on which all payments under the Debentures have been made
in full or otherwise converted pursuant to the terms thereof and all other
Obligations have been paid or discharged. Upon such termination, the Secured
Parties, at the request and at the expense of the Debtors, will join in
executing any termination statement with respect to any financing statement
executed and filed pursuant to this Agreement.
13. Power of Attorney; Further Assurances. (a) Each Debtor authorizes the
---------------------------------------
Secured Parties, and does hereby make, constitute and appoint it, and its
respective officers, agents, successors or assigns with full power of
substitution, as the Debtors' true and lawful attorney-in-fact, with power, in
its own name or in the name of the Debtors, to, after the occurrence and during
the continuance of an Event of Default, (i) endorse any notes, checks, drafts,
-11-
money orders, or other instruments of payment (including payments payable under
or in respect of any policy of insurance) in respect of the Collateral that may
come into possession of the Secured Parties; (ii) to sign and endorse any
financing statement pursuant to the UCC or any invoice, freight or express xxxx,
xxxx of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on or
threatened against the Collateral; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Collateral; and (v)
generally, to do, at the option of the Secured Parties, and at the Debtors'
expense, at any time, or from time to time, all acts and things which the
Secured Parties deems necessary to protect, preserve and realize upon the
Collateral and the Security Interest granted therein in order to effect the
intent of this Agreement, the Debentures and the IP Security Agreement all as
fully and effectually as the Debtors might or could do; and each Debtor hereby
ratifies all that said attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney is coupled with an interest and shall be
irrevocable for the term of this Agreement and thereafter as long as any of the
Obligations shall be outstanding.
(b) On a continuing basis, each Debtor will make, execute, acknowledge,
deliver, file and record, as the case may be, with the proper filing and
recording agencies in any jurisdiction, including, without limitation, the
jurisdictions indicated on Schedule B, attached hereto, all such instruments,
---------- and take all such action as may reasonably be deemed necessary or
advisable, or as reasonably requested by the Secured Parties, to perfect the
Security Interest granted hereunder and otherwise to carry out the intent and
purposes of this Agreement, or for assuring and confirming to the Secured
Parties the grant or perfection of a first priority security interest in all the
Collateral under the UCC.
(c) Each Debtor hereby irrevocably appoints the Secured Parties as such
Debtor's attorney-in--fact, with full authority in the place and stead of such
Debtor and in the name of such Debtor, from time to time in the Secured Parties'
discretion, to take any action and to execute any instrument which the Secured
Parties may deem necessary or advisable to accomplish the purposes of this
Agreement, including the filing, in its sole discretion, of one or more
financing or continuation statements and amendments thereto, relative to any of
the Collateral without the signature of such Debtor where permitted by law.
14. Agent.
-----
(a) Actions The Agent shall at all times act upon and in accordance with
-------
written instructions received from a Majority-in-Interest (as defined in Section
17) time to time. The Agent shall be deemed to be authorized on behalf of
each Secured Party to act on behalf of such Secured Party under this Agreement
and the IP Security Agreement and, in the absence of written instructions from a
Majority-in-Interest (with respect to which the Agent agrees that it will,
subject to the last two sentences of this Section, comply, except as otherwise
advised by counsel), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental thereto. The
Agent shall have no duty to ascertain or inquire as to the performance or
observance of any of the terms of this Agreement or the IP Security Agreement by
the Debtors. By accepting their Debentures each Secured Party shall be deemed to
-12-
have agreed to indemnify the Agent (which agreement shall survive any
termination of such Secured Party's percentage), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement, the Debentures and the IP Security
Agreement, including the reimbursement of the Agent for all out-of-pocket
expenses (including attorneys' fees) incurred by the Agent hereunder or in
connection herewith or in enforcing the Obligations of the Debtors under this
Agreement, the Debentures or the IP Security Agreement, in all cases as to which
the Agent is not reimbursed by the Debtors; provided that no Secured Party shall
--------
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the Agent's gross negligence or willful
misconduct. The Agent shall not be required to take any action hereunder, under
the Debentures or under IP Security Agreement, or to prosecute or defend any
suit in respect of this Agreement or under the Debentures or under IP Security
Agreement, unless the Agent is indemnified to its reasonable satisfaction by the
Secured Parties against loss, costs, liability and expense. If any indemnity in
favor of the Agent shall become impaired, it may call for additional indemnity
and cease to do the acts indemnified against until such additional indemnity is
given.
(b) Exculpation. Neither the Agent nor any of its directors, officers,
-----------
partners, members, shareholders, employees or agents shall be liable to any
Secured Party for any action taken or omitted to be taken by it under this
Agreement, the Debentures or the IP Security Agreement, or in connection
herewith or therewith, except for its own willful misconduct or gross negligence
or be responsible for the consequences of any error in judgment. Neither
the Agent nor any of its directors, officers, partners, members, shareholders,
employees or agents has any fiduciary relationship with any Secured Party by
virtue of this Agreement or the IP Security Agreement. The Agent shall not be
responsible to any Secured Party for any recitals, statements, representations
or warranties herein or in any certificate or other document delivered in
connection herewith or for the authorization, execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, or
sufficiency this Agreement, the Debentures or the IP Security Agreement, the
financial condition of the Debtors or the condition or value of any of the
Collateral, or be required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions of this Agreement,
the Debentures or the IP Security Agreement, the financial condition of the
Debtors or the existence or possible existence of any default or event of
default. The Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which it believes to be genuine and to have presented by a proper person.
(c) Obligations Held by the Agent. The Agent shall have the same rights and
-----------------------------
powers with respect to any Debentures held by it or any of its affiliates, as
any Secured Party and may exercise the same as if it were not the Agent. Each
of the Debtors and the Secured Parties hereby waives, and each successor to any
Secured Party shall be deemed to waive, any right to disqualify any Secured
Party from serving as the Agent or any claim against that Secured Party for
serving as Agent.
-13-
(d) Copies, etc. The Agent shall give prompt notice to each Secured Party
------------
of each notice or request required or permitted to be given to the Agent by the
Debtors pursuant to the terms of this Agreement. The Agent will distribute to
each Secured Party each instrument and other agreement received for its account
and copies of all other communications received by the Agent from a Debtor for
distribution to the Secured Parties by the Agent in accordance with the terms of
this Agreement. Notwithstanding anything herein contained to the contrary, all
notices to and communications with the Debtors under this Agreement shall be
effected by the Secured Parties through the Agent.
(e) Resignation of Agent. The Agent may resign as such at any time upon at
---------------------
least thirty (30) days' prior notice to the Debtors and all the Secured Parties,
such resignation not to be effective until a successor Agent is in place. If
the Agent at any time shall resign, a Majority-in-Interest may jointly appoint
another Secured Party as a successor Agent which shall thereupon become the
Agent hereunder. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and assignment as such successor Agent
may reasonably request, and shall thereupon succeed to and become vested with
all rights, powers, privileges, and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement.
(f) Replacement of Agent. A Majority-in-Interest may at any time and for
----------------------
any reason replace the Agent with a successor Agent jointly selected by them,
upon at least ten days written notice to the Debtors and the other Secured
Parties. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the
terminated Agent such documents of transfer and assignment as such successor
Agent may reasonably request, and shall thereupon succeed to and become vested
with all rights, powers, privileges, and duties of the retiring Agent, and the
terminated Agent shall be discharged from its duties and obligations under this
Agreement.
15. Notices. All notices, requests, demands and other communications
-------
hereunder shall be in writing, with copies to all the other parties hereto, and
shall be deemed to have been duly given when (i) if delivered by hand, upon
receipt, (ii) if sent by facsimile, upon receipt of proof of sending thereof,
(iii) if sent by nationally recognized overnight delivery service (receipt
requested), the next business day or (iv) if mailed by first-class registered or
certified mail, return receipt requested, postage prepaid, four days after
posting in the U.S. mails, in each case if delivered to the following addresses:
If to the Debtors: Electric Fuel Corporation
000 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Chief Financial Officer and General Counsel
With a copy to: Electric Fuel (E.F.L.) Ltd.
Western Industrial Xxxx
Xxxx Xxxxxxx 00000, Xxxxxx
Facsimile No.: 011-972-2-990-6688
Attn.: Chief Financial Officer and General Counsel
-14-
If to the Secured Parties: To the address set forth under such Secured Parties'
name on the signature pages hereto.
16. Other Security. To the extent that the Obligations are now or hereafter
--------------
secured by property other than the Collateral or by the guarantee,
endorsement or property of any other person, firm, corporation or other entity,
then the Secured Parties shall have the right, in its sole discretion, to
pursue, relinquish, subordinate, modify or take any other action with respect
thereto, without in any way modifying or affecting any of the Secured Parties'
rights and remedies hereunder.
17. Actions by Secured Parties. Any action required or permitted hereunder
---------------------------
to be taken by or on behalf of the Secured Parties shall, for such action to be
valid, require the approval of the Majority-in-Interest prior to the taking of
such action. If the consent, approval or disapproval of the Secured Parties is
required or permitted pursuant to this Agreement, such consent, approval or
disapproval shall only be valid if given by the Majority-in-Interest.
"MAJORITY-IN-INTEREST" means the Secured Party or Secured Parties (as the case
may be) holding in excess of a majority of the outstanding aggregate principal
amount under the Debentures, determined on a cumulative basis.
18. Miscellaneous.
-------------
(a) No course of dealing between the Debtors and the Secured Parties, nor
any failure to exercise, nor any delay in exercising, on the part of the Secured
Parties, any right, power or privilege hereunder, under the Debentures or under
the IP Security Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or
thereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
(b) All of the rights and remedies of the Secured Parties with respect to
the Collateral, whether established hereby, by the Debentures, by the IP
Security Agreement or by any other agreements, instruments or documents or by
law shall be cumulative and may be exercised singly or concurrently.
(c) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and is intended to supersede all prior
negotiations, understandings and agreements with respect thereto. Except as
specifically set forth in this Agreement, no provision of this Agreement may be
modified or amended except by a written agreement signed by the parties hereto.
(d) In the event that any provision of this Agreement is held to be
invalid, prohibited or unenforceable in any jurisdiction for any reason, unless
such provision is narrowed by judicial construction, this Agreement shall, as to
such jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited or
-15-
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other jurisdiction.
(e) No waiver of any breach or default or any right under this Agreement
shall be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default or right, whether of the same or similar nature or otherwise.
(f) This Agreement shall be binding upon and inure to the benefit of each
party hereto and its successors and assigns.
(g) Each party shall take such further action and execute and deliver such
further documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) This Agreement shall be construed in accordance with the laws of the
State of New York, except to the extent the validity, perfection or enforcement
of a security interest hereunder in respect of any particular Collateral which
are governed by a jurisdiction other than the State of New York in which case
such law shall govern. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of any New York State or United States Federal court
sitting in New York county over any action or proceeding arising out of or
relating to this Agreement, and the parties hereto hereby irrevocably agree that
all claims in respect of such action or proceeding may be heard and determined
in such New York State or Federal court. The parties hereto agree that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. The parties hereto further waive any objection to venue in the
State of New York and any objection to an action or proceeding in the State of
New York on the basis of forum non convenient. If either party shall commence an
action or a proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its attorney's fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
(i) EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY
-16-
ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING
SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT, NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS AND
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF A LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(j) This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
* * * * * * * * * * *
-17-
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed on the day and year first above written.
ELECTRIC FUEL CORPORATION
By:_____________________________________
Name:
Title:
ELECTRIC FUEL TRANSPORTATION CORP.
By:_____________________________________
Name:
Title:
I.E.S. DEFENSE SERVICES, INC.
By:_____________________________________
Name:
Title:
IES INTERACTIVE TRAINING, INC.
By:_____________________________________
Name:
Title:
ELECTRIC FUEL GMBH
By:_____________________________________
Name:
Title:
SUMMIT TRAINING INTERNATIONAL, INC.
By:_____________________________________
Name:
Title:
-18-
ELECTRIC FUEL UK LTD.
By:_____________________________________
Name:
Title:
ELECTRIC FUEL B.V.
By: _____________________________
Name:
Title:
INSTANT POWER CORPORATION
By: _____________________________
Name:
Title:
-19-
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed on the day and year first above written.
ZLP MASTER TECHNOLOGY FUND, LTD.
By:_____________________________________
Name:
Title:
Address for Notice:
00 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: ( )
Attn:
With a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed on the day and year first above written.
SMITHFIELD FIDUCIARY LLC
By:_____________________________________
Name:
Title:
Address for Notice:
c/o Highbridge Capital Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx / Xxxx X. Chill
Facsimile: 212-751-0755
Telephone: 000-000-0000
With a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed on the day and year first above written.
VERTICAL VENTURES INVESTMENTS, LLC
By:_________________________________
Name:
Title:
Address for Notice:
c/o Vertical Ventures, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx
With a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
-22-
Schedule A
----------
Principal Place of Business of the Debtors:
------------------------------------------------
Locations Where Collateral is Located or Stored:
-----------------------------------------------------
-23-
Schedule B
----------
Jurisdictions:
-------------
-24-
Schedule C
----------
Name/Address of Subsidiary Jurisdiction of Class of No. of Shares No. of Pledged
Incorporation Securities Outstanding Shares
----------------------------- ------------------- ------------- ---------------- --------------
I.E.S. Defense
Services, Inc.
----------------------------- ------------------- ------------- ---------------- --------------
IES Interactive
Training, Inc.
----------------------------- ------------------- ------------- ---------------- --------------
Electric Fuel
GmbH
----------------------------- ------------------- ------------- ---------------- --------------
Summit Training
International, Inc.
----------------------------- ------------------- ------------- ---------------- --------------
Electric Fuel
UK Ltd.
----------------------------- ------------------- ------------- ---------------- --------------
M.D.T. Protective
Services Ltd.
----------------------------- ------------------- ------------- ---------------- --------------
Electric Fuel Ltd.
----------------------------- ------------------- ------------- ---------------- --------------
-25-
