EXHIBIT 4.4
March 29, 2004
X. X. Xxxxx Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxx 00000
EQUIPMENT SECURITY AGREEMENT
Gentlemen:
1. As security for the prompt payment in full of all loans and advances
made and to be made to you from time to time by us, in conjunction with the
factoring or accounts receivable financing agreement between us, as amended,
from time to time (herein the "Agreement"), as well as to secure the payment in
full of the other Obligations (hereinafter defined), you hereby pledge and grant
to us a continuing general lien upon and security interest (herein "Security
Interest") in the following described "Collateral":
All present and hereafter acquired machinery, equipment, furnishings
and fixtures, and all additions, substitutions and replacements
thereof, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed thereto,
and all proceeds of whatever sort.
All capitalized terms not defined herein shall have the meaning given such terms
in the Agreement.
2. This agreement is being executed by you to induce us to make
discretionary Advances to you or otherwise to extend credit or financial
accommodations to you in accordance with the provisions of the Agreement.
3. The amount of the Advances made or to be made by us to you, shall at
all times be in our sole discretion. The ratio of Collateral to such Advances
and to the other Obligations referred to herein must be satisfactory to us at
all times. We are to be at liberty, from time to time, without responsibility or
liability to you, to revise any limit placed by us on Advances or other
Obligations.
4. In addition to the loans and advances made or to be made by us to
you or to others for your account, "Obligations" shall include any and all
indebtedness which may at any time be owing by you to us howsoever arising.
Obligations shall include, without limitation, all indebtedness whether now in
existence or incurred by you from time to time hereafter; whether secured by
pledge, lien upon or security interest in any of your assets or property other
than the Collateral herein described, or by pledge, lien upon or security
interest in the assets or property of any other person, firm, entity or
corporation (herein "person"); whether such indebtedness is absolute or
contingent, joint or several, matured or unmatured, direct or indirect and
whether you are liable to us for such indebtedness as principal, surety,
endorser, guarantor or otherwise. Obligations shall also include, without
limitation, your liability to us for any balances owing in any account
maintained on our books under the Agreement or under any other agreement or
arrangement now or hereafter entered into between us; indebtedness for goods or
services purchased by you from any concern whose accounts receivable are
factored or financed by us; your liability to us as maker or endorser on any
promissory note or other instrument for the payment of money; your liability to
us under any instrument of guaranty or indemnity, or arising under any guaranty,
endorsement or undertaking which we may make or issue to others for your
account, including any accommodation extended with
respect to applications for letters of credit, our acceptance of drafts or our
endorsement of notes or other instruments for your account and benefit.
Obligations shall also include, without limitation, all interest, commissions,
financing and service charges, and expenses and fees chargeable to and due from
you under this agreement, the Agreement or any other agreement or arrangement
which may be now or hereafter entered into between us.
5. The Security Interest in the Collateral, unless expressly limited by
the provisions of paragraph 1 above, shall extend and attach to:
(a) The entire Collateral which is presently in existence and which
is owned by you or in which you have any interest, and all Collateral which you
may purchase or in which you may acquire any interest at any time and from time
to time in the future, whether such Collateral is in transit or in your or our
constructive, actual or exclusive occupancy or possession or otherwise, or is
held by you or others for your account, and whether your interest in such
Collateral is as owner or lessee or conditional vendee; and
(b) The entire Collateral wherever located, including without
limitation, all Collateral which may be located on your premises, or upon the
premises of any carriers, forwarding agents, truckers, warehousemen, vendors,
selling agents, finishers, converters, processors, or to other third persons who
may have possession of the Collateral; and
(c) The entire Collateral whether the same constitutes personal
property or fixtures, including, but without limiting the generality of the
foregoing, all dies, jigs, tools, benches, tables, accretions, component parts
thereof, and additions thereto, as well as all accessories, motors, engines and
auxiliary parts used in connection with or attached to the Collateral.
6. You agree, at your own cost and expense, to keep the Collateral in
as good and substantial repair and condition as the same is now or at the time
the lien and security interest granted herein shall attach thereto, reasonable
wear and tear excepted, making any and all repairs and replacements when and
where necessary. You also agree to safeguard, protect and hold all Collateral
for our account and make no disposition thereof unless you first obtain our
prior written approval. Any sale, exchange or other disposition of any
Collateral shall only be made by you with our prior written approval, and all
proceeds of any such sales shall not be commingled with your other property, but
shall be segregated, held by you in trust for us as our exclusive property, and
shall be delivered immediately by you to us in the identical form received by
you. Upon the sale, exchange, or other disposition of the Collateral, as herein
provided, the Security Interest provided for herein shall without break in
continuity and without further formality or act, continue in, and attach to, all
proceeds, including any instruments for the payment of money, accounts
receivable, contract rights, documents of title, shipping documents, chattel
paper and all other cash and non-cash proceeds of such sale, exchange or
disposition. As to any such sale, exchange or other disposition, we shall have
all of the rights of an unpaid seller, including stopping in transit, replevin,
rescission and reclamation; provided, however, and notwithstanding anything to
the contrary contained in this paragraph, you are authorized to sell, transfer
or otherwise dispose of machinery and equipment located in Mexico and you shall
be entitled to retain, at your option, the first $250,000 of proceeds generated
by such sale, transfer or disposition; and provided further that you shall
submit to us from time to time reports concerning the sale, transfer or
disposition of such machinery or equipment in such form as we may reasonably
request.
7. You hereby warrant and represent that you are solvent; and that
except as herein otherwise specifically provided, this Security Interest
constitutes, and shall, except for Permitted Liens, at all times constitute, a
first and only lien on the Collateral; that you are, or will be at the time
additional Collateral is acquired by you, the absolute owner of the Collateral
with full right to pledge, sell, consign, transfer and create a Security
Interest therein, free and clear of any and all claims or
liens in favor of others; that you will at your expense forever warrant and, at
or request, defend the same from any and all claims and demands of any other
person; that you will not grant, create or permit to exist, any lien upon or
security interest in the Collateral, or any proceeds, in favor of any other
person; and that the Collateral does not comprise a part of your inventory and
that it is and will only be used by you in your business and will not be held
for sale or lease, or removed from your premises, or otherwise disposed of by
you without our prior written approval.
8. You agree to maintain books and records pertaining to the Collateral
in such detail, form and scope as we shall reasonably require. You agree that we
or our agents may enter upon your premises at any time, and from time to time,
during normal business hours and upon reasonable prior notice (unless there has
occurred an Event of Default which is continuing) for the purpose of inspecting
the Collateral and any and all records pertaining thereto. You agree to notify
us promptly of any change in your name, mailing address, principal place of
business or the location of the Collateral. You are also to advise us promptly,
in sufficient detail, of any substantial change relating to the type, quantity
or quality of the Collateral, or any event which would have a Material Adverse
Effect on the value of the Collateral, or on the Security Interest granted to us
herein.
9. You agree to: execute and deliver to us, from time to time, solely
for our convenience in maintaining a record of the Collateral, such written
statements and schedules as we may reasonably require, designating, identifying
or describing the Collateral pledged to us hereunder. Your failure, however, to
promptly give us such statements or schedules shall not affect, diminish, modify
or otherwise limit our Security Interest in the Collateral.
10. You agree to comply with the requirements of all state and federal
laws in order to grant to us a valid and perfected first Security Interest in
the Collateral. To the extent permitted by applicable law, you irrevocably
authorize us to file financing statements and all amendments and continuations
with respect thereto, all in order to create, perfect or maintain our Security
Interest in the Collateral, and you hereby ratify and confirm any and all
financing statements, amendments and continuations with respect thereto
heretofore and hereafter filed by us pursuant to the foregoing authorization.
You agree to do whatever we may request, from time to time, by way of: leasing
warehouses; filing notices of lien, financing statements, amendments, renewals
and continuations thereof; cooperating with our custodians; keeping stock
records; transferring Collateral to our possession; obtaining waivers from
landlords and mortgagees; and performing such further acts as we may require in
order to effect the purposes of this agreement.
11. You agree to maintain insurance on the Collateral under such
policies of insurance, with such insurance companies, in such amounts and
covering such risks as are at all times reasonably satisfactory to us. All
policies covering the Collateral are to be made payable to us, in case of loss,
under a standard non-contributory "mortgagee", "lender" or "secured party"
clause and are to contain such other provisions as we may require to fully
protect our interest in the Collateral and to any payments to be made under such
policies. All original policies are to be delivered to us, premium prepaid, with
the loss payable endorsement in our favor, and shall provide for not less than
ten (10) days prior written notice to us of the exercise of any right of
cancellation. At your request, or if you fail to maintain such insurance, we may
arrange for such insurance, but at your expense and without any responsibility
on our part for: obtaining the insurance, the solvency of the insurance
companies, the adequacy of the coverage, or the collection of claims. Unless we
shall otherwise agree with you in writing, we shall have the sole right, in our
name or yours, to file claims under any insurance policies, to receive, receipt
and give acquittance for any payments that may be payable thereunder, and to
execute any and all endorsements, receipts, releases, assignments, reassignments
or other documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies.
12. You agree to pay, when due, all taxes, assessments, claims and
other charges (herein "taxes") lawfully levied or assessed upon the Collateral,
and if such taxes remain unpaid after the date fixed for the payment thereof, or
if any lien shall be claimed thereunder which in our opinion would be reasonably
likely to create a valid obligation having priority over the rights granted to
us herein, we may, without notice to you, but on your behalf, pay such taxes,
and the amount thereof shall be an Obligation secured hereby and due to us on
demand. Any and all fees, out of pocket costs and expenses, of whatever kind and
nature (including any taxes, attorneys' fees or costs for insurance of any
kind), which we may incur: in filing public notices; in preparing or filing
documents, making title examinations or rendering opinions; in protecting,
maintaining or preserving the Collateral; in enforcing or foreclosing the
Security Interest hereunder, whether through judicial procedures or otherwise;
or in defending or prosecuting any actions or proceedings arising out of or
related to our transactions with you under this arrangement, shall be borne and
paid by you. If same are not promptly paid by you, we may pay same on your
behalf, and the amount thereof shall be an Obligation secured hereby and due to
us on demand.
13. You agree to comply with all acts, rules, regulations, and orders
of any legislative, administrative or judicial body or official, applicable to
the Collateral or any part thereof, or to the operation of your business;
provided that you may contest any acts, rules, regulations, orders and
directions of such bodies or officials in any reasonable manner which will not,
in our opinion, adversely affect our rights or priority in the Collateral
hereunder.
14. Upon the occurrence and continuance of an Event of Default, if any
representation or warranty made by you hereunder is incorrect in any material
respect or if any covenant made by you hereunder is breached; then we shall have
the right, with or without notice to you, to foreclose the Security Interest
created herein by any available judicial procedure, or to take possession of the
Collateral without judicial process, and to enter any premises where the
Collateral may be located for the purpose of taking possession of or removing
the Collateral. We shall have the right without notice or advertisement, to
sell, lease, or otherwise dispose of all or any part of the Collateral, whether
in its then condition or after further preparation or processing, in your name
or in ours, or in the name of such party as we may designate, either at public
or private sale or at any broker's board, in lots or in bulk, for cash or for
credit, with or without warranties or representations, and upon such other terms
and conditions as we in our sole discretion may deem advisable, and we shall
have the right to purchase at any such sale. If notice of intended disposition
of any said Collateral is required by law, ten (10) days notice shall constitute
reasonable notification. If any Collateral shall require rebuilding, repairing,
maintenance or preparation, we shall have the right, at our option, to do such
of the aforesaid as is necessary, for the purpose of putting the Collateral in
such saleable form as we shall deem appropriate. You agree, at our request, to
assemble the Collateral and to make it available to us at places which we shall
select, whether at your premises or elsewhere, and to make available to us your
premises and facilities for the purpose of taking possession of, removing or
putting the Collateral in saleable form. The proceeds of any such sale, lease or
other disposition of the Collateral shall be applied first, to the expenses of
retaking, holding, storing, processing, preparing for sale, selling, and the
like, and then to the satisfaction of your Obligations to us, application as to
particular Obligations or as to principal or interest to be in our sole
discretion. You shall be liable to us for, and shall pay to us on demand, any
deficiency which may remain after such sale, lease or other disposition, and we
in turn agree to remit to you, or your successors or assigns, any surplus
resulting therefrom. The enumeration of the foregoing rights is not intended to
be exhaustive and the exercise of any right shall not preclude the exercise of
any other rights, all of which shall be cumulative.
15. The rights and Security Interest granted to us hereunder are to
continue in full force and effect, notwithstanding the termination of the
Agreement or the fact that the principal account maintained in your name on our
books may from time to time be temporarily in a credit position, until the final
payment to us in full of all Obligations due to us by you. Our delay, or
omission to exercise
any right hereunder, shall not be deemed a waiver thereof, or be deemed a waiver
of any other right, unless such waiver be in writing and signed by us. A waiver
on any one occasion shall not be construed as a bar to or waiver of any right or
remedy on any future occasion.
16. To the extent that your Obligations are now or hereafter secured by
any assets or property other than the Collateral, or by the guarantee,
endorsement, assets or property of any other person, then we shall have the
right, in our sole discretion, to determine which rights, security, liens,
security interests or remedies we shall at any time pursue, foreclose upon,
relinquish, subordinate, modify or take any other action with respect to,
without in any way modifying or affecting any of them, or of any of our rights
hereunder.
17. This agreement, which is subject to modification only in writing
signed by us, is supplementary to, and is to be considered as part of, the
Agreement. No course of dealing between us shall change or modify this
agreement. The validity, interpretation and enforcement of this agreement shall
be governed by the laws of the State of New York.
18. If the foregoing is in accordance with your understanding, please
so indicate by signing and returning to us the original and one copy of this
agreement. This agreement shall take effect as of the date set forth above,
after being accepted below by one of our officers in New York, after which, we
shall forward a copy to you with signatures completed for your files.
Very truly yours,
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Read and Agreed to:
X.X. XXXXX CORPORATION
By /s/ Xxxxxx X. Xxx Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxx Xxxxxx
Title: President and CEO
Accepted at: New York, New York
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By /s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Sr. Vice President
