SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement"), dated as of September 24,
2002, is made between Amerigon Incorporated, a California corporation (the
"Borrower"), and Big Beaver Investments LLC, a Delaware limited liability
company (the "Lender").
The Borrower and the Lender are parties to a Credit Agreement dated as of
September 24, 2002 (as amended, modified, renewed or extended from time to time,
the "Credit Agreement"). It is a condition precedent to the borrowings under the
Credit Agreement that the Borrower enter into this Agreement and grant to the
Lender the security interests hereinafter provided to secure the obligations of
the Borrower described below.
Accordingly, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
(a) TERMS DEFINED IN CREDIT AGREEMENT. All capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned
to them in the Credit Agreement.
(b) CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
shall have the following meanings:
"ACCOUNTS" means any and all rights to payment or obligations owed to the
Borrower, whether or not earned by performance, whether now existing or
hereafter acquired or arising, and in any event includes all accounts
receivable, contract rights, rights to payment, and other obligations of any
kind owed to the Borrower, including obligations for property that has been or
is to be sold, leased, licensed, assigned, or otherwise disposed of, for
services rendered or to be rendered, for policies of insurance issued or to be
issued, for a secondary obligation incurred or to be incurred, for energy
provided or to be provided, for the use or hire of a vessel under a charter or
other contract, arising out of the use of a credit or charge card or information
contained on or for use with the card, as winnings in a lottery or other game of
chance, or arising from any other transaction, however evidenced, and all
guaranties, indemnities and security with respect to the foregoing, and all
letters of credit relating thereto, in each case whether now existing or
hereafter acquired or arising.
"BOOKS" means any and all books, records and other written, electronic or
other documentation in whatever form maintained now or hereafter by or for the
Borrower in connection with the ownership of its assets or the conduct of its
business or evidencing or containing information relating to the Collateral,
including: (i) ledgers; (ii) records indicating, summarizing, or evidencing the
Borrower's assets (including all accounts, books and proceeds), business
operations or financial condition; (iii) computer programs and software; (iv)
computer discs, tapes, files, manuals, spreadsheets; (v) computer printouts and
output of whatever kind; (vi) any other computer prepared or electronically
stored, collected or reported information and equipment of any kind; and (vii)
any and all other rights now or hereafter arising out of any contract or
agreement between the Borrower and any service bureau, computer or data
processing company or other Person charged with preparing or maintaining any of
the Borrower's books or records or with credit reporting, including with regard
to the Borrower's Accounts.
"COLLATERAL" has the meaning set forth at UCC Section 9102 and in any
event includes the meaning set forth in Section 2.
"FINANCING STATEMENTS" has the meaning set forth in Section 3.
"PROCEEDS" means whatever is receivable or received from or upon the sale,
lease, license, collection, use, exchange or other disposition, whether
voluntary or involuntary, of any Collateral or other assets of the Borrower,
including "proceeds" as defined at UCC Section 9102, any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to or for the account of the
Borrower from time to time with respect to any of the Collateral, any and all
payments (in any form whatsoever) made or due and payable to the Borrower from
time to time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any governmental
authority (or any Person acting under color of governmental authority), any and
all other amounts from time to time paid or payable under or in connection with
any of the Collateral or for or on account of any damage or injury to or
conversion of any Collateral by any Person, any and all other tangible or
intangible property received upon the sale or disposition of Collateral, and any
and all proceeds from the foregoing.
"SECURED OBLIGATIONS" means the indebtedness, liabilities and other
obligations of the Borrower to the Lender under or in connection with any of the
Credit Agreement, the Note and the other Loan Documents, including all unpaid
principal of the Loan, all interest accrued thereon, all fees due under the
Credit Agreement and all other amounts payable by the Borrower to the Lender
thereunder or in connection therewith, whether now existing or hereafter
arising, and whether due or to become due, absolute or contingent, liquidated or
unliquidated, determined or undetermined.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Michigan; PROVIDED, HOWEVER, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the security interest in any Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other than the State
of Michigan, the term "UCC" shall mean the Uniform Commercial Code as in effect
in such other jurisdiction for purposes of the provisions hereof relating to
such attachment, perfection or priority and for purposes of definitions related
to such provisions.
(c) TERMS DEFINED IN UCC. Where applicable and except as otherwise defined
herein or in the Credit Agreement, terms used in this Agreement shall have the
meanings assigned to them in the UCC.
(d) INTERPRETATION. The rules of interpretation set forth in Section 1.03 of the
Credit Agreement shall be applicable to this Agreement and are incorporated
herein by this reference.
SECTION 2. SECURITY INTEREST.
(a) GRANT OF SECURITY INTEREST. As security for the payment and performance of
the Secured Obligations, the Borrower hereby pledges, assigns, transfers,
hypothecates and sets over to the Lender, and hereby grants to the Lender a
security interest in, all of the Borrower's right, title and interest in, to and
under the following assets and property of the Borrower, wherever located and
whether now existing or owned or hereafter acquired or arising (collectively,
the "Collateral"): (i) all Accounts; (ii) all Books; and (iii) all products and
Proceeds of any and all of the foregoing.
(b) BORROWER REMAINS LIABLE. Anything herein to the contrary notwithstanding,
(i) the Borrower shall remain liable under any contracts, agreements and other
documents included in the Collateral, to the extent set forth therein, to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (ii) the exercise by the Lender of any of
the rights hereunder shall not release the Borrower from any of its duties or
obligations under such contracts, agreements and other documents included in the
Collateral and (iii) the Lender shall not have any obligation or liability under
any contracts, agreements and other documents included in the Collateral by
reason of this Agreement, nor shall the Lender be obligated to perform any of
the obligations or duties of the Borrower thereunder or to take any action to
collect or enforce any such contract, agreement or other document included in
the Collateral hereunder.
(c) CONTINUING SECURITY INTEREST. The Borrower agrees that this Agreement shall
create a continuing security interest in the Collateral which shall remain in
effect until terminated in accordance with Section 23.
SECTION 3. PERFECTION PROCEDURES.
(a) FINANCING STATEMENTS, ETC. The Borrower shall execute and deliver, as
appropriate, to the Lender concurrently with the execution of this Agreement,
and at any time and from time to time thereafter, all financing statements,
continuation financing statements, termination statements, security agreements,
assignments, affidavits, reports, notices, schedules of account, letters of
authority and all other documents and instruments, in form satisfactory to the
Lender (collectively, the "Financing Statements"), and take all other action, as
the Lender may request, to perfect and continue perfected, maintain the priority
of or provide notice of the Lender's security interest in the Collateral and to
accomplish the purposes of this Agreement. The Borrower shall not file or have
filed any Financing Statement, correction statement to any Financing Statement,
or other filings relative to any Financing Statement in connection with any
Collateral without the express prior written consent the Lender.
(b) CERTAIN AGENTS. Any third person at any time and from time to time holding
all or any portion of the Collateral, as agent of or as pledge holder for the
Lender, shall be deemed to, and shall, hold the Collateral for the Lender. At
any time and from time to time, the Lender may give notice to any third person
holding all or any portion of the Collateral that such third person is holding
the Collateral as the agent of, and as pledge holder for, the Lender.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In addition to the
representations and warranties of the Borrower set forth in the Credit
Agreement, which are incorporated herein by this reference, the Borrower
represents and warrants to the Lender that the following statements are true and
correct on and as of the date of this Agreement and will be true and correct on
and as of the date of each Loan Advance as if made on such date(s):
(a) JURISDICTION OF ORGANIZATION, LOCATION OF CHIEF EXECUTIVE OFFICE AND
LOCATION COLLATERAL. The Borrower's jurisdiction of organization, chief
executive office and principal place of business is located at the address set
forth in paragraph 1(a) of SCHEDULE 1, and all other locations where the
Borrower conducts business or where the Collateral is kept are set forth in
paragraph 1(c) of SCHEDULE 1.
(b) LOCATIONS OF BOOKS. All locations where Books pertaining to the Accounts are
kept, including all equipment necessary for accessing such Books and the names
and addresses of all service bureaus, computer or data processing companies and
other Persons keeping any Books or collecting Accounts for the Borrower, are set
forth in paragraph 2 of SCHEDULE 1.
(c) TRADE NAMES AND TRADE STYLES. All trademarks, trade names and trade styles
under which the Borrower presently conducts its business operations are set
forth in paragraph 3 of SCHEDULE 1, and, except as set forth in paragraph 3 of
SCHEDULE 1, the Borrower has not, at any time in the past: (i) been known as or
used any other trademark, trade name or trade style; (ii) changed its name;
(iii) been the surviving or resulting entity in a merger or consolidation; or
(iv) acquired through asset purchase or otherwise any business of any Person.
(d) OWNERSHIP OF COLLATERAL. The Borrower is, and, except as permitted by
Section 5(i), will continue to be, the sole and complete owner of the Collateral
(or, in the case of after-acquired Collateral, at the time the Borrower acquires
rights in such Collateral, will be the sole and complete owner thereof), free
from any Lien other than Permitted Liens.
(e) ENFORCEABILITY; PRIORITY OF SECURITY INTEREST. (i) Except as set forth in
Section 4.01(b) to the Borrower's Disclosure Letter to the Credit Agreement,
this Agreement creates a security interest against the Collateral in which the
Borrower now has rights and will create a security interest which is enforceable
against the Collateral in which the Borrower hereafter acquires rights at the
time the Borrower acquires any such rights; and (ii) the Lender has a perfected
and first priority security interest in the Collateral, in which the Borrower
now has rights, and will have a perfected and first priority security interest
in the Collateral in which the Borrower hereafter acquires rights at the time
the Borrower acquires any such rights, in each case securing the payment and
performance of the Secured Obligations except for Permitted Liens.
(f) OTHER FINANCING STATEMENTS. Other than (i) Financing Statements set forth in
paragraph 4 of Schedule 1 and (ii) Financing Statements in favor of the Lender,
no effective Financing Statement naming the Borrower as debtor, assignor,
grantor, mortgagor, pledgor or the like and covering all or any part of the
Collateral is on file in any filing or recording office in any jurisdiction.
(g) ACCOUNTS.
(1) The Accounts represent valid, binding and enforceable obligations of the
account debtors or other Persons obligated thereon, representing undisputed,
bona fide transactions completed in accordance with the terms and provisions
contained in any documents related thereto, and are and will be genuine, free
from Liens, and not subject to any adverse claims, counterclaims, setoffs,
defaults, disputes, defenses, discounts, retainages, holdbacks or conditions
precedent of any kind of character, except to the extent reflected by the
Borrower's reserves for uncollectible Accounts or to the extent, if any, that
such account debtors or other Persons may be entitled to normal and ordinary
course trade discounts, returns, adjustments and allowances in accordance with
Section 5(l), or as otherwise disclosed to the Lender in writing;
(2) to the best of the Borrower's knowledge and belief, all account debtors and
other obligors on all material Accounts are solvent and generally paying their
debts as they come due;
(3) all Accounts comply with all applicable laws in all material respects
concerning form, content and manner of preparation and execution, including
where applicable any federal and state consumer credit laws;
(4) the Borrower has not assigned any of its rights under the Accounts except as
provided in this Agreement or as set forth in the other Loan Documents;
(5) all statements made, all unpaid balances and all other information in the
Books and other documentation relating to the Accounts are true and correct in
all material respects and in all material respects are what they purport to be;
and
(6) the Borrower has no knowledge of any fact or circumstance which would impair
the validity or collectibility of any material Accounts.
(7) Paragraph 5 of Schedule 1 includes a complete list of the Accounts of
Borrower as of August 31, 2002, including any reserves relating thereto.
SECTION 5. COVENANTS. In addition to the covenants of the Borrower set
forth in the Credit Agreement, which are incorporated herein by this reference,
so long as any of the Secured Obligations remain unsatisfied or the Lender shall
have any Commitment, the Borrower agrees that:
(a) DEFENSE OF COLLATERAL. The Borrower will appear in and defend any action,
suit or proceeding which may affect to a material extent its title to, or right
or interest in, or the Lender's right or interest in, the Collateral.
(b) PRESERVATION OF COLLATERAL. The Borrower will do and perform all
reasonable acts that may be necessary and appropriate to maintain, preserve
and protect the Collateral.
(c) COMPLIANCE WITH LAWS, ETC. The Borrower will comply with all material
laws, regulations and ordinances, and all policies of insurance, relating to
the possession, operation, maintenance and control of the Collateral.
(d) LOCATION OF BOOKS AND CHIEF EXECUTIVE OFFICE. The Borrower will: (i) keep
all Books pertaining to the Accounts at the locations set forth in paragraph 2
of SCHEDULE 1; and (ii) give at least thirty (30) days' prior written notice to
the Lender of (A) any changes in any such location where Books pertaining to the
Accounts are kept, including any change of name or address of any service
bureau, computer or data processing company or other Person preparing or
maintaining any Books or collecting Accounts for the Borrower or (B) any changes
in the location of the Borrower's chief executive office or principal place of
business.
(e) LOCATION OF COLLATERAL. The Borrower will: (i) keep the Collateral at the
locations set forth in SCHEDULE 1 and not remove the Collateral from such
locations (other than disposals of Collateral permitted by subsection (i))
except upon at least thirty (30) days' prior written notice of any removal to
the Lender; and (ii) give the Lender at least thirty (30) days' prior written
notice of any change in the locations set forth in SCHEDULE 1.
(f) CHANGE IN NAME, IDENTITY OR STRUCTURE. The Borrower will give at least
thirty (30) days' prior written notice to the Lender of (i) any change in name,
(ii) any changes in, additions to or other modifications of its trade names and
trade styles set forth in SCHEDULE 1, and (iii) any changes in its identity or
structure in any manner which might make any Financing Statement filed hereunder
incorrect or misleading.
(g) MAINTENANCE OF RECORDS. The Borrower will keep separate, accurate and
complete Books with respect to the Collateral, disclosing the Lender's
security interest hereunder.
(h) INVOICING OF SALES. The Borrower will invoice all of its sales upon
forms customary in the industry and to maintain proof of delivery and
customer acceptance of goods.
(i) DISPOSITION OF COLLATERAL. The Borrower will not surrender or lose
possession of (other than to the Lender), sell, lease, rent, or otherwise
dispose of or transfer any of the Collateral or any right or interest therein,
except for sales of inventory in the ordinary course of business or to the
extent permitted by the Loan Documents.
(j) LIENS. The Borrower will keep the Collateral free of all Liens except
Permitted Liens.
(k) EXPENSES. The Borrower will pay all expenses of protecting and
insuring the Collateral.
(l) ACCOUNTS. The Borrower will:
(1) with such frequency as the Lender may require, furnish to the Lender full
and complete reports, in form and substance reasonably satisfactory to the
Lender, with respect to the Accounts, including information as to concentration,
aging, identity of account debtors, letters of credit securing Accounts,
disputed Accounts and other matters, as the Lender shall request;
(2) give only normal discounts, allowances and credits as to Accounts, in the
ordinary course of business, according to normal trade practices utilized by the
Borrower in the past, and enforce all Accounts strictly in accordance with their
terms in all material respects, and take all such action to such end as may from
time to time be reasonably requested by the Lender, except that the Borrower may
grant any extension of the time for payment or enter into any agreement to make
a rebate or otherwise to reduce the amount owing on or with respect to, or
compromise or settle for less than the full amount thereof, any Account, in the
ordinary course of business, according to normal trade practices utilized by the
Borrower in the past, and where the amount involved does not exceed Ten Thousand
Dollars ($10,000) or where the Account does not exceed Ten Thousand Dollars
($10,000) or would not be materially impaired;
(3) if any material discount, allowance, credit, extension of time for payment,
agreement to make a rebate or otherwise to reduce the amount owing on, or
compromise or settle, an Account exists or occurs, or if, to the knowledge of
the Borrower, any such dispute, setoff, claim, counterclaim or defense exists or
has been asserted or threatened with respect to an Account, disclose such fact
fully to the Lender in the Books relating to such Account and in connection with
any invoice or report furnished by the Borrower to the Lender relating to such
Account;
(4) if any Accounts arise from contracts with the United States or any
department, agency or instrumentality thereof, immediately notify the Lender
thereof and execute any documents and instruments and take any other steps
requested by the Lender in order that all monies due and to become due
thereunder shall be assigned to the Lender and notice thereof given to the
federal authorities under the Federal Assignment of Claims Act;
(5) in accordance with its sound business judgment perform and comply in all
material respects with its obligations in respect of the Accounts;
(6) upon the request of the Lender (A) at any time, notify all or any designated
portion of the account debtors and other obligors on the Accounts of the
security interest hereunder, and (B) upon the occurrence and during the
continuance of an Event of Default, notify the account debtors and other
obligors on the Accounts or any designated portion thereof that payment shall be
made directly to the Lender or to such other Person or location as the Lender
shall specify; and
(7) upon the occurrence and during the continuance of any Event of Default,
establish such lockbox or similar arrangements for the payment of the Accounts
as the Lender shall require.
(m) NOTICES, REPORTS AND INFORMATION. The Borrower will (i) notify the Lender of
any other modifications of or additions to the information contained in SCHEDULE
1; (ii) notify the Lender of any material claim made or asserted against the
Collateral by any Person and of any change in the composition of the Collateral
or other event which could materially adversely affect the value of the
Collateral or the Lender's Lien thereon; (iii) furnish to the Lender such
statements and schedules further identifying and describing the Collateral and
such other reports and other information in connection with the Collateral as
the Lender may reasonably request, all in reasonable detail; and (iv) upon
request of the Lender make such demands and requests for information and reports
as the Borrower is entitled to make in respect of the Collateral.
SECTION 6. ACCOUNTS.
(a) COLLECTION OF ACCOUNTS. Until the Lender exercises its rights hereunder to
collect Accounts, the Borrower shall endeavor in the first instance in
accordance with prudent business practice to diligently collect all material
amounts due or to become due on or with respect to the Accounts. At the request
of the Lender, upon and after the occurrence and during the continuance of any
Event of Default, all remittances received by the Borrower shall be held in
trust for the Lender to the extent permitted by applicable law and, in
accordance with the Lender's instructions, remitted to the Lender or deposited
to an account with the Lender in the form received (with any necessary
endorsements or instruments of assignment or transfer).
SECTION 7. AUTHORIZATION; LENDER APPOINTED ATTORNEY-IN-FACT. The Lender shall
have the right to, in the name of the Borrower, or in the name of the Lender or
otherwise, without notice to or assent by the Borrower, and the Borrower hereby
constitutes and appoints the Lender (and any of Lender's officers, employees or
agents designated by Lender) as the Borrower's true and lawful attorney-in-fact,
with full power and authority to:
(1) sign any of the Financing Statements which must be executed or filed to
perfect or continue perfected, maintain the priority of or provide notice of the
Lender's security interest in the Collateral; and
(2) Upon the occurrence and during the continuance of an Event of Default:
(A) take possession of and endorse any notes, acceptances, checks, drafts, money
orders or other forms of payment or security and collect any Proceeds of any
Collateral;
(B) sign and endorse any invoice or xxxx of lading relating to any of the
Collateral, warehouse or storage receipts, drafts against customers or other
obligors, assignments, notices of assignment, verifications and notices to
customers or other obligors;
(C) send requests for verification of Accounts to the customers or other
obligors of the Borrower;
(D) contact, or direct the Borrower to contact, all account debtors and other
obligors on the Accounts and instruct such account debtors and other obligors to
make all payments directly to the Lender;
(E) assert, adjust, xxx for, compromise or release any claims under any
policies of insurance;
(F) exercise dominion and control over, and refuse to permit further withdrawals
from, Deposit Accounts maintained with any financial institution or other
Person;
(G) notify each Person maintaining lockbox or similar arrangements for the
payment of the Accounts to remit all amounts representing collections on the
Accounts directly to the Lender;
(H) ask, demand, collect, receive and give acquittances and receipts for any and
all Accounts, enforce payment or any other rights in respect of the Accounts and
other Collateral, grant consents, agree to any amendments, modifications or
waivers of the agreements and documents governing the Accounts and other
Collateral, and otherwise file any claims, take any action or institute, defend,
settle or adjust any actions, suits or proceedings with respect to the
Collateral, as the Lender may deem necessary or desirable to maintain, preserve
and protect the Collateral, to collect the Collateral or to enforce the rights
of the Lender with respect to the Collateral;
(I) execute any and all endorsements, assignments or other documents and
instruments necessary to sell, lease, assign, convey or otherwise transfer title
in or dispose of the Collateral;
(J) execute and deliver to any securities intermediary or other Person any
entitlement order, account control agreement or other notice, document or
instrument which the Lender may deem necessary of advisable to maintain,
protect, realize upon and preserve the Collateral and the Lender's security
interest therein; and/or
(K) execute any and all such other documents and instruments, and do any and all
acts and things for and on behalf of the Borrower, which the Lender may deem
necessary or advisable to maintain, protect, realize upon and preserve the
Collateral and the Lender's security interest therein and to accomplish the
purposes of this Agreement.
The foregoing power of attorney is coupled with an interest and
irrevocable so long as the Lender has any Commitment or the Secured Obligations
have not been paid and performed in full. The Borrower hereby ratifies, to the
extent permitted by law, all that the Lender shall lawfully and in good faith do
or cause to be done by virtue of and in compliance with this Section 7.
SECTION 8. LENDER PERFORMANCE OF BORROWER OBLIGATIONS. The Lender may
perform or pay any obligation which the Borrower has agreed to perform or pay
under or in connection with this Agreement, and the Borrower shall reimburse the
Lender on demand for any amounts paid by the Lender pursuant to this Section 8
to the extent permitted by applicable law.
SECTION 9. LENDER'S DUTIES. Notwithstanding any provision contained in this
Agreement, the Lender shall have no duty to exercise any of the rights,
privileges or powers afforded to them and shall not be responsible to the
Borrower or any other Person for any failure to do so or delay in doing so.
Beyond the exercise of reasonable care to assure the safe custody of Collateral
in the Lender's possession and the accounting for moneys actually received by
the Lender hereunder, the Lender shall have no duty or liability to exercise or
preserve any rights, privileges or powers pertaining to the Collateral to the
extent permitted by applicable law.
SECTION 10. REMEDIES.
(a) REMEDIES. Upon the occurrence and during the continuance of any Event of
Default, the Lender shall have, in addition to all other rights and remedies
granted to them in this Agreement, the Credit Agreement or any other Loan
Document, all rights and remedies of a secured party under the UCC and other
applicable laws. Without limiting the generality of the foregoing, the Borrower
agrees that to the extent permitted by applicable law:
(1) The Lender may peaceably and without notice enter any premises of the
Borrower, take possession of any the Collateral, remove or dispose of all or
part of the Collateral on any premises of the Borrower or elsewhere, and
otherwise collect, receive, appropriate and realize upon all or any part of the
Collateral, and demand, give receipt for, settle, renew, extend, exchange,
compromise, adjust, or xxx for all or any part of the Collateral, as the Lender
may determine.
(2) The Lender may require the Borrower to assemble all or any part of the
Collateral and make it available to the Lender at any place and time designated
by the Lender.
(3) The Lender may secure the appointment of a receiver of the Collateral or any
part thereof (to the extent and in the manner provided by applicable law).
(4) The Lender may withdraw (or cause to be withdrawn) any and all funds from
any Deposit Accounts or securities accounts.
(5) The Lender may sell, resell, lease, use, assign, transfer or otherwise
dispose of any or all of the Collateral in its then condition or following any
commercially reasonable preparation or processing (utilizing in connection
therewith any of the Borrower's assets, without charge or liability to the
Lender therefor) at public or private sale, by one or more contracts, in one or
more parcels, at the same or different times, for cash or credit, or for future
delivery without assumption of any credit risk, all as the Lender deems
advisable; PROVIDED, HOWEVER, that the Borrower shall be credited with the net
proceeds of sale only when such proceeds are finally collected by the Lender.
The Lender shall have the right upon any such public sale, and, to the extent
permitted by law, upon any such private sale, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption, which
right or equity of redemption the Borrower hereby releases, to the extent
permitted by law. The Borrower hereby agrees that the sending of notice by
ordinary mail, postage prepaid, to the address of the Borrower set forth in the
Credit Agreement, of the place and time of any public sale or of the time after
which any private sale or other intended disposition is to be made, shall be
deemed reasonable notice thereof if such notice is sent ten (10) days prior to
the date of such sale or other disposition or the date on or after which such
sale or other disposition may occur, PROVIDED that the Lender may provide the
Borrower shorter notice or no notice, to the extent permitted by the UCC or
other applicable law. The Borrower recognizes that the Lender may be unable to
make a public sale of any or all of the Collateral, by reason of prohibitions
contained in applicable securities laws or otherwise, and expressly agrees that
a private sale to a restricted group of purchasers for investment and not with a
view to any distribution thereof shall be considered a commercially reasonable
sale.
(b) LICENSE. For the purpose of enabling the Lender to exercise its rights and
remedies under this Section 10 or otherwise in connection with this Agreement,
the Borrower hereby grants to the Lender an irrevocable, non-exclusive and
assignable license (exercisable without payment or royalty or other compensation
to the Borrower) to use, license or sublicense any intellectual or other
property of Borrower, except to the extent a grant of such license would violate
the terms of an existing agreement to which the Borrower is a party.
(c) APPLICATION OF PROCEEDS. The cash proceeds actually received from the sale
or other disposition or collection of Collateral, and any other amounts received
in respect of the Collateral the application of which is not otherwise provided
for herein, shall be applied (i) first, to any fees, costs, expenses and other
amounts (other than principal and interest) then due to the Lender under the
Loan Documents; (ii) second, to accrued and unpaid interest due the Lender; and
(iii) third, to principal due the Lender. Any surplus thereof which exists after
payment and performance in full of the Secured Obligations shall be promptly
paid over to the Borrower or otherwise disposed of in accordance with the UCC or
other applicable law. The Borrower shall remain liable to the Lender for any
deficiency which exists after any sale or other disposition or collection of
Collateral to the extent permitted by applicable law.
SECTION 11. CERTAIN WAIVERS. The Borrower waives, to the fullest extent
permitted by law, (i) any right of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of marshalling
of the Collateral or other collateral or security for the Secured Obligations;
(ii) any right to require the Lender (A) to proceed against any Person, (B) to
exhaust any other collateral or security for any of the Secured Obligations, (C)
to pursue any remedy in the Lender's power, or (D) to make or give any
presentments, demands for performance, notices of nonperformance, protests,
notices of protests or notices of dishonor in connection with any of the
Collateral; (iii) all claims, damages, and demands against the Lender arising
out of the repossession, retention, sale or application of the proceeds of any
sale of the Collateral; and (iv) any right of Borrower to require the Secured
Obligations to be equitably subordinated.
SECTION 12. NOTICES. All notices or other communications hereunder shall be
given in the manner and to the addresses specified in the Credit Agreement. All
such notices and other communications shall be effective (i) if delivered by
hand, when delivered; (ii) if sent by mail, upon the earlier of the date of
receipt or five Business Days after deposit in the mail, first class (or air
mail, with respect to communications to be sent to or from the United States);
and (iii) if sent by facsimile transmission, when sent.
SECTION 13. NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of the
Lender to exercise, and no delay in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to the Lender.
SECTION 14. COSTS AND EXPENSES; INDEMNIFICATION; OTHER CHARGES.
(a) COSTS AND EXPENSES. The Borrower agrees to pay on demand:
(1) the reasonable out-of-pocket costs and expenses of the Lender and any of its
Affiliates, and the reasonable fees and disbursements of counsel to the Lender,
in connection with the negotiation, preparation, execution, delivery and
administration of this Agreement together with the costs associated with the
preparation of the Loan Documents, and any amendments, modifications or waivers
of the terms thereof, and the custody of the Collateral;
(2) all appraisal (including the allocated costs of internal appraisal
services), audit, consulting, search, recording, filing and similar costs, fees
and expenses incurred or sustained by the Lender or any of its Affiliates in
connection with this Agreement or the Collateral; and
(3) all costs and expenses of the Lender and its Affiliates, and the reasonable
fees and disbursements of counsel, in connection with the enforcement or
attempted enforcement of, and preservation of any rights or interests under,
this Agreement, including any out-of-court workout or other refinancing or
restructuring or in any bankruptcy case, and the protection, sale or collection
of, or other realization upon, any of the Collateral, including all expenses of
taking, collecting, holding, sorting, handling, preparing for sale, selling, or
the like, and other such expenses of sales and collections of Collateral, and
any and all losses, costs and expenses sustained by the Lender as a result of
any failure by the Borrower to perform or observe its obligations contained
herein.
(b) INDEMNIFICATION. The Borrower hereby agrees to indemnify the Lender, any
Affiliate thereof, and their respective directors, officers, employees, agents,
counsel and other advisors (each an "Indemnified Person") against, and hold each
of them harmless from, any and all liabilities, obligations, losses, claims,
damages, demands, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, including the reasonable fees
and disbursements of counsel to an Indemnified Person, which may be imposed on,
incurred by, or asserted against any Indemnified Person, in any way relating to
or arising out of this Agreement or the transactions contemplated hereby or any
action taken or omitted to be taken by it hereunder (the "Indemnified
Liabilities"); PROVIDED that the Borrower shall not be liable to any Indemnified
Person for any portion of such Indemnified Liabilities to the extent they are
found by a final decision of a court of competent jurisdiction to have resulted
from such Indemnified Person's gross negligence or willful misconduct. If and to
the extent that the foregoing indemnification is for any reason held
unenforceable, the Borrower agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
(c) OTHER CHARGES. The Borrower agrees to indemnify the Lender against and hold
it harmless from any and all present and future stamp, transfer, documentary and
other such taxes, levies, fees, assessments and other charges made by any
jurisdiction by reason of the execution, delivery, performance and enforcement
of this Agreement.
(d) INTEREST. Any amounts payable to the Lender under this Section 14 or
otherwise under this Agreement if not paid upon demand shall bear interest from
the date of such demand until paid in full, at the rate of interest set forth in
Section 2.04 of the Credit Agreement.
SECTION 15. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Borrower, the Lender and
their respective permitted successors and permitted assigns. The Borrower shall
not have the right to assign its rights or obligations or any interest herein
without the prior written consent of the Lender. The Lender reserves the right
to freely sell, assign, transfer or grant participations in all or any portion
of the Lender's rights and obligations hereunder (i) to one or more Affiliates
of the Lender and/or (ii) with the prior consent of the Borrower (which consent
shall not be unreasonably withheld) to any other Person.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF MICHIGAN, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND TO THE EXTENT THE VALIDITY OR
PERFECTION OF THE SECURITY INTERESTS HEREUNDER, OR THE REMEDIES HEREUNDER, IN
RESPECT OF ANY COLLATERAL ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN
MICHIGAN.
SECTION 17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF MICHIGAN. BY
EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT
TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDER RETAINS THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 7.10 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER MICHIGAN LAW OR OTHERWISE
SECTION 18. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other Loan
Documents contain the entire agreement of the parties with respect to the
subject matter hereof and shall not be amended except by the written agreement
of the parties as provided in the Credit Agreement.
SECTION 19. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
SECTION 21. INCORPORATION OF PROVISIONS OF THE CREDIT AGREEMENT. To the
extent the Credit Agreement contains provisions of general applicability to the
Loan Documents, such provisions are incorporated herein by this reference.
SECTION 22. NO INCONSISTENT REQUIREMENTS. The Borrower acknowledges that
this Agreement and the other Loan Documents may contain covenants and other
terms and provisions variously stated regarding the same or similar matters, and
agrees that all such covenants, terms and provisions are cumulative and all
shall be performed and satisfied in accordance with their respective terms.
SECTION 23. TERMINATION. Upon termination of the Commitment of the Lender
and payment and performance in full of all Secured Obligations, this Agreement
shall terminate and the Lender shall promptly execute and deliver to the
Borrower such documents and instruments reasonably requested by the Borrower as
shall be necessary to evidence termination of all security interests given by
the Borrower to the Lender hereunder; PROVIDED, HOWEVER, that the obligations of
the Borrower under Section 14 shall survive such termination.
[Remainder of page intentionally left blank; signatures follow]
IN WITNESS WHEREOF, the parties hereto have duly executed this Security
Agreement, as of the date first above written.
THE BORROWER
AMERIGON INCORPORATED, a California
corporation
By: /s/ X.X. Xxxx, III
-------------------
Name: X.X. Xxxx, III
Its: Chairman
THE LENDER
BIG BEAVER INVESTMENTS LLC, a Delaware
limited liability company
By: /s/ X. X. Xxxx
------------------
Name: X. X. Xxxx
Title: President
---------------------------------
