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Icm Asset Management Inc/WA, et al. – ‘SC 13D’ on 3/18/04 re: Aura Systems Inc – EX-19

On:  Thursday, 3/18/04, at 3:58pm ET   ·   Accession #:  935836-4-112   ·   File #:  5-39865

Previous ‘SC 13D’:  ‘SC 13D’ on 6/27/03   ·   Next:  ‘SC 13D/A’ on 4/9/04   ·   Latest:  ‘SC 13D/A’ on 12/30/04

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 3/18/04  Icm Asset Management Inc/WA       SC 13D                28:588K Aura Systems Inc                  Shartsis Friese LLP
          James M. Simmons
          Koyah Ventures, LLC

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      General Statement of Beneficial Ownership           HTML     34K 
 2: EX-1        Agreement                                           HTML     24K 
 3: EX-2        Promissory Note                                     HTML     30K 
 4: EX-3        Promissory Note                                     HTML     28K 
 5: EX-4        Promissory Note                                     HTML     28K 
 6: EX-5        Promissory Note                                     HTML     28K 
 7: EX-6        Security Agreement                                  HTML     54K 
 8: EX-7        Amendment and Waiver Agreement                      HTML     27K 
 9: EX-8        Additional Advance Agreement                        HTML     23K 
10: EX-9        Stock Pledge Agreement                              HTML     29K 
11: EX-10       Amendment Agreement                                 HTML     22K 
12: EX-11       Second Amendment Agreement                          HTML     26K 
13: EX-12       Third Amendment Agreement                           HTML     27K 
14: EX-13       Fourth Amendment Agreement                          HTML     25K 
15: EX-14       Fifth Amendment Agreement                           HTML     26K 
16: EX-15       Sixth Amendment Agreement                           HTML     26K 
17: EX-16       Seventh Amendment Agreement                         HTML     28K 
18: EX-17       Eight Amendment Agreement                           HTML     30K 
19: EX-18       Ninth Amendment Agreement                           HTML     29K 
20: EX-19       Security Agreement Amendment                        HTML     54K 
21: EX-20       Warrant Amendment Agreemebnt                        HTML     34K 
22: EX-21       Warrant                                             HTML     38K 
23: EX-22       Warrant                                             HTML     38K 
24: EX-23       Warrant                                             HTML     38K 
25: EX-24       Warrant                                             HTML     38K 
26: EX-25       Tenth Amendment Agreement                           HTML     31K 
27: EX-26       Eleventh Amendment Agreement                        HTML     33K 
28: EX-31       Twelfth Amendment Agreement                         HTML     33K 

THIS SECURITY AGREEMENT AMENDMENT (this "Agreement") is entered into as of January 15, 2004 between AURA SYSTEMS, INC., a Delaware corporation ( the "Debtor"), KOYAH LEVERAGE PARTNERS, L.P., a Delaware limited partnership ("Koyah Leverage"), and KOYAH PARTNERS, L.P., a Delaware limited partnership ("Koyah" and together with Koyah Leverage, the "Lenders"). Koyah Leverage is entering into this Agreement in its capacity as a Lender and in its capacity as collateral agent for the Lenders (the "Secured Party").

WHEREAS, in connection with loans to the Debtor by the Lenders, (i) the Debtor and the Lenders entered into an Agreement dated as of July 24, 2003 (the "Agreement"), (ii) the Debtor executed in favor of the Lenders four Convertible Promissory Notes dated July 24, 2003 (collectively, the "Notes"), and (iii) the Debtor executed in favor of the Secured Party a Security Agreement dated as of July 24, 2003 (the "Security Agreement") granting the Secured Party a security interest in all personal property and fixtures of the Debtor except for a portion of its intellectual property;

WHEREAS, the Debtor and the Lenders also entered into an Amendment and Waiver Agreement dated as of August 6, 2003 (the "Amendment");

WHEREAS, the Lenders have made certain additional optional advances to the Debtor under (i) the Note in favor of Koyah Leverage in the maximum principal amount of Eight Hundred Thousand Dollars ($800,000) and (ii) the Note in favor of Koyah in the maximum principal amount of Two Hundred Thousand Dollars ($200,000) (collectively, the "Optional Advance Notes");

WHEREAS, (i) the Debtor and the Lenders also entered into an Additional Advance Agreement dated as of August 18, 2003 (the "Additional Advance Agreement") and (ii) the Debtor executed in favor of the Secured Party a Stock Pledge Agreement dated as of August 18, 2003 (the "Stock Pledge Agreement");

WHEREAS, in connection with the Additional Advance Agreement, the Lenders have made certain further additional optional advances to the Debtor under the Optional Advance Notes;

WHEREAS, the Debtor and Lenders also entered into nine (9) Amendment Agreements dated as of August 21, 2003 through January 8, 2004 (the "Amendment Agreements");

WHEREAS, in connection with the Amendment Agreements, the Lenders have made certain further additional optional advances to the Debtor under the Optional Advance Notes;

WHEREAS, the Debtor is seeking additional financing from certain third party lenders (the "Third Party Lenders");

WHEREAS, the Third Party Lenders require that the Debtor grant them a security interest in all personal property and fixtures of the Debtor;

WHEREAS, such security interest of the Third Party Lenders would be junior to the security interest of the Secured Party and the Lenders;

WHEREAS, the Third Party Lenders are unwilling to provide financing to the Debtor in the absence of intercreditor arrangements with the Secured Party and the Lenders providing for collateral sharing arrangements;

WHEREAS, such collateral sharing arrangements would reduce the collateral position of the Secured Party and the Lenders;

WHEREAS, in order to induce the Secured Party and the Lenders to negotiate with the Third Party Lenders and to enter into intercreditor arrangements with the Third Party Lenders (but only on terms and conditions acceptable to the Secured Party and the Lenders in their sole discretion), the Debtor is willing to grant the Secured Party and the Lenders a security interest in the remainder of the Debtor's intellectual property;

WHEREAS, the parties are entering into this Agreement to provide for the amendment of the Security Agreement and related matters, on the terms and conditions set forth herein.

NOW, THEREFORE, the parties do hereby agree as follows:

1. Amendments to Security Agreement.

a. The definition of "Collateral" set forth in Article I of the Security Agreement hereby is amended in its entirety to read as follows:

b. Schedule 1 to the Security Agreement hereby is amended, replaced and superseded by the Schedule 1 attached to this Agreement.

2. Debtor Acknowledgements. The Debtor confirms, acknowledges and agrees that the Security Agreement, as amended hereby, and the Stock Pledge Agreement secure all of the Debtor's obligations under the Transaction Documents (as defined below).

3. Further Assurances. If requested by the Lenders, the Debtor shall promptly execute and deliver amended and restated documents to replace the Security Agreement or any other Transaction Documents and appropriately reflect the amendments of the Security Agreement or any other Transaction Documents which are contained in this Agreement or any other Transaction Documents, as further evidence of the Debtor's obligations thereunder.

4. Reaffirmation and Survival of Representations. The Debtor hereby re-affirms and re-makes all of the representations and warranties contained in the Agreement, the Notes, the Security Agreement, the Amendment, the Additional Advance Agreement, the Stock Pledge Agreement, and the Amendment Agreements (collectively, the "Prior Transaction Documents") as of the date hereof. For purposes of this Agreement as well as re-affirming the representations and warranties contained in the Prior Transaction Documents, the term "Transaction Documents" as used herein and therein shall mean the Prior Transaction Documents together with this Agreement. All of such representations and warranties shall survive the closing of the transactions contemplated by the Prior Transaction Documents and this Agreement.

5. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Debtor and the Lenders in the case of an amendment and only with the written consent of the waiving party in the case of a waiver.

6. Entire Agreement. This Agreement, together with the Transaction Documents, constitute the entire agreement of the parties concerning the subject matter hereof and thereof, all prior discussions, proposals, negotiations and understandings having been merged herein and therein. Except as specifically modified by this Agreement, the Transaction Documents shall remain unchanged and in full force and effect.

7. Successors. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Debtor, the Secured Party and the Lenders. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective permitted successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as may be expressly provided in this Agreement.

8. Severability. If any part of this Agreement is determined to be illegal or unenforceable, all other parts shall remain in full force and effect.

9. Attorneys' Fees. The Debtor shall pay the reasonable attorneys' fees, costs and disbursements of the Secured Party and the Lenders in enforcing any terms of this Agreement, whether or not any action at law or in equity is brought.

10. Governing Law. The Agreement shall be governed by and construed and interpreted in accordance with the law of the State of Washington, without regard to that state's conflict of laws principles. All disputes between the parties hereto, whether sounding in contract, tort, equity or otherwise, shall be resolved only by state and federal courts located in Spokane, Washington, and the courts to which an appeal therefrom may be taken. All parties hereto waive any objections to the location of the above referenced courts, including but not limited to any objection based on lack of jurisdiction, improper venue or forum non-conveniens. Notwithstanding the foregoing, any party obtaining any order or judgment in any of the above referenced courts may bring an action in a court in another jurisdiction in order to enforce such order or judgment.

11. Miscellaneous. Any notice under this Agreement shall be given in writing and shall be addressed to the party to be notified at the address indicated below, or at such other address as such party may designate by written notice to the other party.

12. Lenders' Attorney Fees and Expenses in Connection with this Agreement. The Debtor shall pay the costs and expenses of legal counsel to the Secured Party and the Lenders in connection with the negotiation, execution and delivery of this Agreement, the other Transaction Documents, and any other related agreements with the Secured Party and the Lenders as well as the consummation of the transactions contemplated by such agreements, the administration of such agreements and any amendments or waivers of such agreements. The Debtor shall pay such costs and expenses immediately upon submittal, and the Secured Party and the Lenders may apply any retainer held by them or their legal counsel against such costs and expenses. Alternatively, the Secured Party and the Lenders may pay such costs and expenses directly and then the amounts so paid shall constitute advances made under the Optional Advance Notes to the extent such advances are within the maximum principal amount of the Optional Advance Notes and otherwise shall constitute amounts payable by the Debtor. Notwithstanding that the Debtor is paying such costs and expenses, the Debtor acknowledges and agrees that such legal counsel is representing only the Secured Party and the Lenders, and not the Debtor.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first set forth above.

"Debtor"

AURA SYSTEMS, INC.

"Lender"

KOYAH PARTNERS, L.P.

Name: Robert J. Law

Title: Vice President

[Remainder of Page Intentionally Left Blank]

1. Patents.

Any and all domestic and foreign patent registrations, patent applications, patentable invention rights or patent-related rights to current and future interests owned by Debtor or assigned to Debtor, including but not restricted to the following patent registrations and patent applications:

2. Trademarks.

Any and all domestic and foreign trademark registrations, trademark applications, trade and service mark rights, or other trademark-related rights to current and future interests owned by Debtor or assigned to Debtor, including but not restricted to the following trademark registrations and trademark applications:

3. Copyrights.

Any and all domestic and foreign copyright registrations, copyright applications or other copyright-related rights to current and future interests owned by Debtor or assigned to Debtor.

[Remainder of page intentionally left blank]

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Dates Referenced Herein

This ‘SC 13D’ Filing		Date		Other Filings
Filed on:		3/18/04		None on these Dates
		1/15/04
		8/18/03
		8/6/03
		7/24/03
				List all Filings

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Filing Submission 0000935836-04-000112   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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