Exhibit 10.1
FLOORPLAN AND SECURITY
AGREEMENT (“Agreement”)
December 15, 2008
(DATED)
This Floorplan and Security
Agreement is entered into by and between:
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BORROWER:
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MANITEX
INTERNATIONAL, INC.
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7402 W.
100 th
Place
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Bridgeview, IL
60455
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(“
Borrower ”)
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And
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SECURED
PARTY:
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HCA EQUIPMENT
FINANCE LLC
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800 Connecticut
Avenue
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Norwalk, CT
06854
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(“
Secured Party ”)
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1. Extensions of
Credit.
(a) Borrower hereby requests Secured
Party, and Secured Party hereby agrees pursuant to the terms and
conditions hereof, to extend credit to Borrower from time to time
(each an “Extension of Credit” and collectively
“Extensions of Credit” ), the proceeds of which
will be used by Borrower to acquire a portion of the
Borrower’s inventory. Any Extensions of Credit shall be made
in amounts to be determined by Secured Party, in Secured
Party’s sole discretion, and shall be conditioned upon
Borrower’s delivery of such documents, agreements and
instruments that Secured Party may require in its sole discretion,
all in the form and substance satisfactory to Secured Party.
Borrower acknowledges that no Extension of Credit previously made
shall require Secured Party to make any future Extensions of
Credit.
(b) Upon submission by Borrower of a
Request for Extension of Credit in the form attached hereto as
Exhibit A, Secured Party is hereby authorized and requested to pay
on Borrower’s behalf, the cost of the item(s) of
Borrower’s inventory set forth in such Request for Extension
of Credit upon receipt by Secured Party of such notes, purchase
orders, invoices, and other sale, lease or consignment agreements,
documents, and other instruments ( “Underlying
Agreement” ) required by Secured Party to evidence the
Extension of Credit and the Collateral (as defined below) securing
such Extension of Credit. NOTWITHSTANDING ANYTHING CONTAINED HEREIN
TO THE CONTRARY, SECURED PARTY, IN ITS SOLE DISCRETION, SHALL
DETERMINE THE
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ELIGIBILITY OF ANY SUCH UNDERLYING AGREEMENT FOR
ADVANCES PURSUANT TO THIS AGREEMENT, AND SHALL BE ENTITLED TO
ASSUME THAT ALL SUCH UNDERLYING AGREEMENTS ARE GENUINE AND CORRECT,
AND THAT ALL INVENTORY HAS BEEN DELIVERED TO BORROWER IN
SATISFACTORY CONDITION. Payments, when so made by Secured Party for
an item of Borrower’s Inventory, shall be deemed to be an
Extension of Credit to Borrower and shall become due and payable by
Borrower pursuant to the terms of this Agreement or the Underlying
Agreement.
2. Collateral.
(a) The term
“Collateral” as used herein shall include all of
the following:
(1) All motor vehicles, machinery
and equipment of the Borrower, of any kind or nature, financed by
or leased from the Secured Party, wherever located, now or
hereafter existing, and all parts thereof and all accessions and
additions thereto and all replacements and substitutions therefor
financed by or leased from the Secured Party (collectively, the
“Equipment” );
(2) All inventory of the Borrower in
all of its forms, financed by or leased from the Secured Party,
wherever located, now or hereafter existing, including, but not
limited to, (i) goods in which the Borrower has any right or
interest of any kind, and (ii) goods which are returned to or
repossessed by the Borrower and all accessions to, products of, and
documents relating to any of the foregoing (collectively,
“Inventory” );
(3) All of the Borrower’s
accounts, contract rights, chattel paper, instruments, general
intangibles, payment intangibles and other obligations of any kind,
now or hereafter existing, arising out of or in connection with the
use, sale or lease of Equipment or Inventory or the rendering of
services related thereto, and all rights now or hereafter existing
in and to all security agreements, leases and other contract
rights, chattel paper, instruments, general intangibles and
obligations ( “Related Contracts” );
(4) All choses in action, causes of
action and all other intangible personal property, now or hereafter
existing, arising out of or in connection with Equipment or
Inventory, including, but not limited to, all contract rights,
corporate or other business records, customer lists, tax refund
claims on personal property, rights and claims against carriers and
shippers, and rights to indemnification.
(5) All proceeds, products and
profits of any and all of the foregoing Collateral and, to the
extent not otherwise included, all payments under insurance,
including returned or unearned premiums (whether or not the secured
party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Collateral.
(b) The Borrower hereby grants to
the Secured Party, a continuing security interest, first in time
and priority, in all of the Collateral specified in paragraph 2(a)
above. The security interest granted herein shall secure the
payment and performance of all
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Extensions of Credit and all other outstanding
debts, liabilities, and obligations of the Borrower to the Secured
Party of any kind or nature including such as may be evidenced by
the Underlying Agreements ( “Secured
Obligations” ).
(c) The Collateral shall be security
for the Secured Obligations. Until all of the Secured Obligations
have been paid in full, the Secured Party’s security interest
in the Collateral shall continue in full force and effect, except
for those individual units of Equipment and Inventory that have
been paid for by the Borrower in full.
The creation of any other security
interest by Borrower in the Collateral violates the rights of the
Secured Party.
3. Payment.
(a) Borrower shall repay, and does
hereby promise to pay to the order of Secured Party, all Secured
Obligations, together with interest thereon, in accordance with the
terms set forth in this Agreement and the Underlying Agreement.
Except as otherwise specified in any Underlying Agreement, interest
shall accrue on any Secured Obligation from the date of
disbursement by Secured Party and shall be computed on the basis of
the actual days elapsed over a year of 365 days. All payments of
principal and interest on any Secured Obligation shall be due and
payable in lawful money of the United States on the date stated in
the Underlying Agreement applicable to such Secured Obligation, and
the term of such Secured Obligation shall additionally be stated in
any such Underlying Agreement. All payments shall be applied first
to interest and then to principal. The acceptance by Secured Party
of any payment which is less than payment in full of all amounts
due and owing at time shall not constitute a waiver of Secured
Party’s right to receive payment in full at such time or any
prior or subsequent time.
(b) Borrower’s obligation to
pay Secured Party the entire amount of each Secured Obligation,
together with any and all Interest thereon, shall be absolute and
unconditional and shall not be subject to any offset, recoupment or
other reduction. All amounts payable pursuant hereto are payable at
Secured Party’s address set forth above or at such other
address as Secured Party may specify from time to time in
writing.
(c) Any payment of a Secured
Obligation not made when due shall, at the option of Secured Party,
bear late charges thereon calculated at the rate of 1-1/2% per
month, but in no event greater than the highest rate permitted by
applicable law; provided however if the Underlying Agreement
contains a late charge that is different from the late charge
contained in this paragraph 3(c), the late charge contained in such
Agreement shall control.
4. Representations, Agreements
and Covenants of Borrower.
(a) The Borrower hereby represents
and warrants as of the date hereof that except for the security
interest created by this Agreement, the Borrower is the owner of
the Collateral free and clear of any lien, security interest or
encumbrance, and that the Borrower will defend the Collateral
against all claims and demands of all persons at any time claiming
any interest therein.
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(b) Borrower shall not sell,
encumber, grant a security interest in or dispose of or permit the
sale, encumbrance or disposal of any of the Collateral without the
Secured Party’s prior written consent, except for sales of
the Collateral financed by the Secured Party in the ordinary course
of Borrower’s Business. The Borrower shall not transfer or
create chattel paper without placing a legend thereon indicating
Secured Party’s security interest therein.
(c) Borrower shall notify the
Secured Party within ten (10) days of any change in location
of the Collateral from its location as of the date of this
Agreement.
(d) Borrower shall perform any and
all steps requested or required by the Secured Party to perfect the
Secured Party’s security interest in the Collateral, such as
executing financing or continuation statements in form and
substance satisfactory to the Secured Party. Borrower authorizes
Secured Party, in its discretion, to file financing statements and
any other documents executed by Borrower or to take other action
required by the Uniform Commercial Code to perfect or maintain the
Secured Party’s security interest in the Collateral. Borrower
shall permit the Secured Party to inspect the Collateral during
normal business hours with or without notice. Borrower hereby
irrevocably appoints Secured Party its attorney-in-fact or agent to
execute any financing statements or documents in Borrower’s
name, in respect of this Security Agreement, to correct or render
acceptable for filing or recording such financing statements or
documents.
(e) Borrower hereby covenants that
(1) the Borrower will promptly pay any and all taxes,
assessments and governmental charges upon the Collateral prior to
the date penalties are attached thereto, except to the extent that
a protest of such taxes, assessments and charges shall be
instituted and diligently prosecuted in good faith by the Borrower
and (i) Borrower establishes a reserve with respect to such
obligation on the books of Borrower in an amount that is reasonably
satisfactory to the Secured Party, (ii) Borrower has given
Secured Party notice of any such contest, and (iii) Secured
Party is satisfied that while any such protest is pending there
will be no impairment of the enforceability, validity, or priority
of any of the Secured Party’s liens in and to the Collateral;
(2) the Borrower will immediately notify the Secured Party of
any event causing a substantial loss or diminution in the value of
all or any material part of the Collateral and an estimate of the
amount of such loss or diminution; and (3) the Borrower will
endeavor to collect or cause to be collected from its customers all
amounts owing under or on account of any customer
receivable.
5. Default.
Upon the occurrence of any default
in respect of the Secured Obligations, unless such default has been
waived in writing by the Secured Party, or upon the failure of
Borrower to observe or perform any of the provisions of this
Agreement, which default is not cured within ten (10) days of
written notice in the event of a monetary default and twenty
(20) days of written notice in the event of a non-monetary
default from the Secured Party to the Borrower, Borrower shall be
in default hereunder. In the event of such default, the Secured
Party may exercise any and all rights and remedies of a secured
party available under the Uniform Commercial Code and all other
applicable law. The Secured Party and/or the holder of a Secured
Obligation may be the purchaser of any or all of
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the Collateral sold at any public sale, and
thereafter hold the same absolutely free from any right or claim of
any kind. At any such sale or other disposition, the Collateral may
be sold in one lot as an entirety or in separate lots, as the
Secured Party may, in its sole discretion, determine. The Secured
Party shal