EXHIBIT 10.3.3
SECURITY AGREEMENT (ALL ASSETS)
BY BSST LLC IN
FAVOR OF COMERICA BANK DATED AS
OF NOVEMBER 14, 2002
Security Agreement
(“Agreement”)
(All Assets)
As of November 14, 2002, for value
received, the undersigned BSST LLC, a Delaware limited liability
company (“Debtor”) grants to Comerica Bank, a Michigan
banking corporation (“Bank”), whose address is 39200
Six Mile Road, Livonia, Michigan 48152, Attention: Commercial Loan
Documentation, Mail Code 7578, a continuing security interest and
lien (any pledge, assignment, security interest or other lien
arising hereunder is sometimes referred to herein as a
“security interest”) in the BSST Collateral (as defined
below) to secure payment when due, whether by stated maturity,
demand, acceleration or otherwise, of all existing and future
indebtedness (“Indebtedness”) to the Bank of Debtor
under that certain Guaranty dated as of November 14, 2002 by
Debtor in favor of Bank, as amended, modified or supplemented from
time to time (the “Guaranty”). Indebtedness includes
without limit any and all obligations or liabilities of the Debtor
to the Bank, whether absolute or contingent, direct or indirect,
voluntary or involuntary, liquidated or unliquidated, joint or
several, known or unknown; any and all obligations or liabilities
for which the Debtor would otherwise be liable to the Bank were it
not for the invalidity or unenforceability of them by reason of any
bankruptcy, insolvency or other law, or for any other reason to the
extent permitted by applicable law; any and all amendments,
modifications, renewals and/or extensions of any of the above; all
costs incurred by Bank in establishing, determining, continuing, or
defending the validity or priority of its security interest, or in
pursuing its rights and remedies under this Agreement or under any
other agreement between Bank and Borrower and/or Debtor or in
connection with any proceeding involving Bank as a result of any
financial accommodation to Borrower and/or Debtor; and all other
costs of collecting Indebtedness, including without limit attorney
fees. Debtor agrees to pay Bank all such costs incurred by the
Bank, immediately upon demand, and until paid all costs shall bear
interest at the highest per annum rate applicable to any of the
Indebtedness, but not in excess of the maximum rate permitted by
law. Any reference in this Agreement to attorney fees shall be
deemed a reference to reasonable fees, costs, and expenses of both
in-house and outside counsel and paralegals, whether or not a suit
or action is instituted, and to court costs if a suit or action is
instituted, and whether attorney fees or court costs are incurred
at the trial court level, on appeal, in a bankruptcy,
administrative or probate proceeding or otherwise. References
herein to the Credit Agreement are to the Credit Agreement dated as
of November 14, 2002 between Amerigon Incorporated
(“Borrower”) and Bank, as amended, modified or
supplemented from time to time. Debtor further covenants, agrees
and represents as follows:
|
1.
|
BSST
Collateral shall mean all
of the following property Debtor now or later owns or has an
interest in, wherever located:
|
|
|
(a)
|
all Accounts
Receivable (for purposes of this Agreement, “Accounts
Receivable” consists of all accounts; general intangibles;
chattel paper (including without limit electronic chattel paper and
tangible chattel paper); contract rights; deposit accounts;
documents; instruments; rights to payment evidenced by chattel
paper, documents or instruments; health care insurance receivables;
commercial tort claims; letters of credit; letter of credit rights;
supporting obligations; and rights to payment for money or funds
advanced or sold),
|
|
|
(c)
|
all Equipment
and Fixtures,
|
|
|
(d)
|
all Software (for purposes of
this Agreement, “Software” consists of all
(i) computer programs and supporting information provided in
connection with a transaction relating to the program, and
(ii) computer programs embedded in goods and any supporting
information provided in connection with a transaction relating to
the program whether or not the program is associated with the goods
in such a manner that it customarily is considered part of the
goods, and whether or not, by
|
|
|
becoming the owner of the goods,
a person acquires a right to use the program in connection with the
goods, and whether or not the program is embedded in goods that
consist solely of the medium in which the program is
embedded),
|
|
|
(e)
|
specific items
listed below and/or on attached Schedule A, if any, is/are also
included in BSST Collateral:
|
|
|
(f)
|
all goods,
instruments, documents, policies and certificates of insurance,
deposits, money, investment property or other property (except real
property which is not a fixture) which are now or later in
possession or control of Bank, or as to which Bank now or later
controls possession by documents or otherwise, and
|
|
|
(g)
|
all additions,
attachments, accessions, parts, replacements, substitutions,
renewals, interest, dividends, distributions, rights of any kind
(including but not limited to stock splits, stock rights, voting
and preferential rights), products, and proceeds of or pertaining
to the above including, without limit, cash or other property which
were proceeds and are recovered by a bankruptcy trustee or
otherwise as a preferential transfer by Debtor.
|
|
|
(h)
|
the BSST Patent
and Trademark Collateral (as defined in the BSST Patent and
Trademark Security Agreement, dated as of November 14, 2002,
between the Debtor and Bank).
|
In the definition of BSST
Collateral, a reference to a type of collateral shall not be
limited by a separate reference to a more specific or narrower type
of that collateral.
Notwithstanding anything herein to
the contrary, “BSST Collateral” shall not include any
general intangible that is the subject of a written agreement which
specifically prohibits assignment thereof or grant of a security
interest therein but only to the extent of such prohibition, and
only to the extent that the terms and provisions of such written
agreement, document or instrument creating or evidencing such
property or any rights relating thereto expressly prohibit the
granting of a security interest therein or condition the granting
of a security interest therein on the consent of a third party
whose consent has not been. obtained or would cause, or allow a
third party to cause, forfeiture of such property upon the granting
of a security interest therein or a breach under any written
agreement relating thereto; provided, however, that immediately
upon the effectiveness, lapse or termination of such provision, the
BSST Collateral shall include, and Debtor shall be deemed to have
granted a security interest in all such general. intangibles as if
such term had never been in effect.
|
2.
|
Warranties,
Covenants and Agreements. Debtor warrants, covenants and agrees as
follows:
|
|
|
2.1
|
Debtor shall
furnish to Bank, in form and at intervals as Bank may request, any
information Bank may reasonably request and allow Bank to examine,
inspect, and copy any of Debtor’s books and records. Debtor
shall, at the request of Bank, mark its records and the BSST
Collateral to clearly indicate the security interest of Bank under
this Agreement.
|
|
|
2.2
|
At the time any BSST Collateral
becomes, or is represented to be, subject to a security interest in
favor of Bank, Debtor shall be deemed to have warranted that,
except as expressly provided in the Credit Agreement
(a) Debtor is the lawful owner of the BSST Collateral and has
the right and authority to subject it to a security interest
granted to Bank; (b) none of the BSST Collateral is subject to
any security interest other than that in favor of Bank and
Permitted Liens (as defined in
|
|
|
the Credit Agreement);
(c) there are no financing statements on file, other than in
favor of Bank and Permitted Liens; (d) no person, other than
Bank, has possession or control (as defined in the Uniform
Commercial Code) of any BSST Collateral of such nature that
perfection of a security interest may be accomplished by control;
and (e) Debtor acquired its rights in the BSST Collateral in
the ordinary course of its business.
|
|
|
2.3
|
Debtor will
keep the BSST Collateral free at all times from all claims, liens,
security interests and encumbrances other than those in favor of
Bank and Permitted Liens. Debtor will not, without the prior
written consent of Bank, sell, transfer or lease, or permit to be
sold, transferred or leased, any or all of the BSST Collateral,
except for Inventory in the ordinary course of its business or as
otherwise expressly permitted by the Credit Agreement. Bank or its
representatives may at all reasonable times inspect the BSST
Collateral and may enter upon all premises where the BSST
Collateral is kept or might be located.
|
|
|
2.4
|
Debtor will do
all acts and will execute or cause to be executed all writings
requested by Bank to establish, maintain and continue an exclusive,
perfected and first security interest of Bank in the BSST
Collateral subject only to Permitted Liens. Debtor agrees that Bank
has no obligation to acquire or perfect any lien on or security
interest in any asset(s), whether realty or personalty, to secure
payment of the Indebtedness.
|
|
|
2.5
|
Debtor will pay
within the time that they can be paid without interest or penalty
all taxes, assessments and similar charges which at any time are or
may become a lien, charge, or encumbrance upon any BSST Collateral,
except to the extent contested in good faith and bonded in a manner
satisfactory to Bank. If Debtor fails to pay any of these taxes,
assessments, or other charges in the time provided above, Bank has
the option (but not the obligation) to do so and Debtor agrees to
repay all amounts so expended by Bank immediately upon demand,
together with interest at the highest lawful default rate which
could be charged by Bank on any Indebtedness.
|
|
|
2.6
|
Debtor will
keep the BSST Collateral in good condition and will protect it from
loss, damage, or deterioration from any cause in all material
respects. Debtor has and will maintain at all times (a) with
respect to the BSST Collateral, insurance under an “all
risk” policy against fire and other risks customarily insured
against, and (b) public liability insurance and other
insurance as may be required by law or reasonably required by Bank,
all of which insurance shall be in amount, form and content, and
written by companies as may be satisfactory to Bank, containing a
lender’s loss payable endorsement acceptable to Bank. Debtor
will deliver to Bank immediately upon demand evidence satisfactory
to Bank that, the required insurance has been procured. If Debtor
fails to maintain satisfactory insurance, Bank has the option (but
not the obligation) to do so and Debtor agrees to repay all amounts
so expended by Bank immediately upon demand, together with interest
at the highest lawful default rate which could be charged by Bank
on any Indebtedness.
|
|
|
2.7
|
On each occasion on which Debtor
evidences to Bank the account balances on and the nature and extent
of the Accounts Receivable, Debtor shall be deemed to have
warranted that except as otherwise indicated (a) each of those
Accounts Receivable is valid and enforceable without performance by
Debtor of any act; (b) each of those account balances are in
fact owing, (c) there are no setoffs, recoupments, credits,
contra accounts, counterclaims or defenses asserted against any of
those Accounts Receivable, (d) as to any Accounts Receivable
represented by a note, trade acceptance, draft or other instrument
or by any chattel paper or document, the same have been endorsed
and/or delivered by Debtor to Bank, (e) Debtor has not
received with respect to any Account Receivable, any notice of the
death of the related account debtor, nor of the dissolution,
liquidation, termination of existence, insolvency, business
failure, appointment of a receiver for, assignment for the benefit
of creditors by, or filing of a petition in bankruptcy by or
against, the account debtor, and (f) as to each Account
Receivable, except as has been disclosed to Bank, the account
debtor is not an affiliate of Debtor, the United States of America
or any department, agency or instrumentality of it, or a citizen or
resident of any jurisdiction outside of the United States. Debtor
will do all acts and will execute all writings reasonably requested
by Bank to perform, enforce performance of, and collect all
Accounts Receivable. Debtor shall neither make
|
|
|
nor permit any material
modification, compromise or substitution for any Account Receivable
without the prior written consent of Bank. Debtor shall, at
Bank’s request, arrange for verification of Accounts
Receivable directly with account debtors or by other methods
acceptable to Bank.
|
|
|
2.8
|
Debtor at all
times shall be in compliance in all material respects with all
applicable laws, including without limit any laws, ordinances,
directives, orders, statutes, or regulations an object of which is
to regulate or improve health, safety, or the environment
(“Environmental Laws”) in all material
respects.
|
|
|
2.9
|
If Bank, acting
in its sole discretion, redelivers BSST Collateral to Debtor or
Debtor’s designee for the purpose of (a) the ultimate
sale or exchange thereof; or (b) presentation, collection,
renewal, or registration of transfer thereof; or (c) loading,
unloading, storing, shipping, transshipping, manufacturing,
processing or otherwise dealing with it preliminary to sale or
exchange; such redelivery shall be in trust for the benefit of Bank
and shall not constitute a release of Bank’s security
interest in it or in the proceeds or products of it unless Bank
specifically so agrees in writing. If Debtor requests any such
redelivery, Debtor will deliver with such request if requested by
Bank a duly executed financing statement in form and substance
satisfactory to Bank. Any proceeds of BSST Collateral coming into
Debtor’s possession as a result of any such redelivery shall
be held in trust for Bank and immediately delivered to Bank for
application on the Indebtedness. Bank may (in its sole discretion)
deliver any or all of the BSST Collateral to Debtor, and such
delivery by Bank shall discharge Bank from all liability or
responsibility for such BSST Collateral. Bank, at its option, may
require delivery of any BSST Collateral to Bank at any time with
such endorsements or assignments of the BSST Collateral as Bank may
request.
|
|
|
2.10
|
At any time and
without notice after the occurrence and during the continuance of
an Event of Default, Bank may (a) cause any or all of the BSST
Collateral to be transferred to its name or to the name of its
nominees; (b) receive or collect by legal proceedings or
otherwise all dividends, interest, principal payments and other
sums and all other distributions at any time payable or receivable
on account of the BSST Collateral, and hold the same as BSST
Collateral, or apply the same to the Indebtedness, the manner and
distribution of the application to be in the sole discretion of
Bank; and (c) enter into any extension, subordination,
reorganization, deposit, merger or consolidation agreement or any
other agreement relating to or affecting the BSST Collateral, and
deposit or surrender control of the BSST Collateral, and accept
other property in exchange for the BSST Collateral and hold or
apply the property or money so received pursuant to this Agreement.
In addition, at any time and without notice, Bank may take such
actions in its own name or in Debtor’s name as Bank, in its
sole discretion, deems necessary or appropriate to establish
exclusive control (as defined in the Uniform Commercial Code) over
any BSST Collateral of such nature that perfection of Bank’s
security interest may be accomplished by control.
|
|
|
2.11
|
Bank may assign
any of the Indebtedness and deliver any or all of the BSST
Collateral to its assignee, who then shall have with respect to
BSST Collateral so delivered all the rights and powers of Bank
under this Agreement, and after that Bank shall be fully discharged
from all liability and responsibility with respect to BSST
Collateral so delivered.
|
|
|
2.12
|
Debtor delivers
this Agreement based solely on Debtor’s independent
investigation of (or decision not to investigate) the financial
condition of Borrower and is not relying on any information
furnished by Bank. Debtor assumes full responsibility for obtaining
any further information concerning the Borrower’s financial
condition, the status of the Indebtedness or any other matter which
the undersigned may deem necessary or appropriate now or later.
Debtor waives any duty on the part of Bank, and agrees that Debtor
is not relying upon nor expecting Bank to disclose to Debtor any
fact now or later known by Bank, whether relating to the operations
or condition of Borrower, the existence, liabilities or financial
condition of any guarantor of the Indebtedness, the occurrence of
any default with respect to the Indebtedness, or otherwise,
notwithstanding any effect such fact may have upon Debtor’s
risk or Debtor’s rights against Borrower. Debtor knowingly
accepts the full range of risk encompassed in this Agreement, which
risk includes without limit the possibility that Borrower may incur
Indebtedness to Bank after the financial condition of Borrower, or
Borrower’s ability to pay debts as they mature, has
deteriorated.
|
|
|
2.13
|
Debtor shall
defend, indemnify and hold harmless Bank, its employees, agents,
shareholders, affiliates, officers, and directors from and against
any and all claims, damages, fines, expenses, liabilities or causes
of action of whatever kind, including without limit consultant
fees, legal expenses, and attorney fees, suffered by any of them as
a direct or indirect result of any actual or asserted violation of
any law that is or may be applicable to Debtor, including, without
limit, Environmental Laws, or of any remediation relating to any
property required by any law, including without limit Environmental
Laws.
|
|
3.
|
Collection
of Proceeds.
|
|
|
3.1
|
Debtor agrees
to collect and enforce payment of all BSST Collateral until Bank
shall direct Debtor to the contrary. Immediately upon notice to
Debtor by Bank after the occurrence and during the continuance of
an Event of Default (as defined in Section 4.1 hereof) and at
all times after that, Debtor agrees to fully and promptly cooperate
and assist Bank in the collection and enforcement of all BSST
Collateral and to hold in trust for Bank all payments received in
connection with BSST Collateral and from the sale, lease or other
disposition of any BSST Collateral, all rights by way of suretyship
or guaranty and all rights in the nature of a lien or security
interest which Debtor now or later has regarding BSST Collateral.
Immediately upon and after such notice, Debtor agrees to
(a) endorse to Bank and immediately deliver to Bank all
payments received on BSST Collateral or fro
|
|
