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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K/A No. 1
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 30, 1996
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TOWER AUTOMOTIVE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-24644 41-1746238
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
4508 IDS Center, Minneapolis, Minnesota 55402
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 332-2335
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
4.1 First Amendment to Third Amended and Restated Credit Agreement,
dated as of May 30, 1996, by and among R.J. Tower Corporation,
the financial institutions parties thereto and Comerica Bank, as
agent.
4.2 $39,000,000 Revolving Credit Note, dated as of May 30, 1996,
issued by R.J. Tower Corporation, a Michigan corporation, to
Comerica Bank.
4.3 $18,000,000 Revolving Credit Note, dated as of May 30, 1996,
issued by R.J. Tower Corporation, a Michigan corporation, to Bank
of America Illinois.
4.4 $18,000,000 Revolving Credit Note, dated as of May 30, 1996,
issued by R.J. Tower Corporation, a Michigan corporation, to
First Bank National Association.
4.5 Second Amended and Restated Guaranty (Tower-Michigan Debt),
dated as of May 30, 1996, made by R.J. Tower Corporation, an
Indiana corporation, Edgewood Manufacturing Corp., a Delaware
corporation, R.J. Tower Corporation, a Kentucky corporation,
Kalamazoo Stamping and Die Company, a Michigan corporation,
Trylon Corporation, a Michigan corporation and MascoTech Stamping
Technologies, Inc., a Delaware corporation, in favor of Comerica
Bank, as agent.
4.6 Joinder Agreement to Amended and Restated Guaranty (Tower Indiana
Debt), dated as of May 30, 1996, made by MascoTech Stamping
Technologies, Inc., a Delaware corporation, in favor of Comerica
Bank, as agent.
4.7 Joinder Agreement to Amended and Restated Guaranty (Tower
Kentucky Debt), dated as of May 30, 1996, made by MascoTech
Stamping Technologies, Inc., a Delaware corporation, in favor of
Comerica Bank, as agent.
4.8 Form of Second Amended and Restated Security Agreement, dated as
of May 30, 1996, made by each of R.J. Tower Corporation, a
Michigan corporation, R.J. Tower Corporation, a Kentucky
corporation, R.J. Tower Corporation, an Indiana corporation,
Kalamazoo Stamping and Die Company, a Michigan corporation,
Edgewood Manufacturing Corp., a Delaware corporation, in favor of
Comerica Bank, as agent.
4.9 Amended and Restated Security Agreement, dated as of May 30,
1996, made by Trylon Corporation, a Michigan corporation, in
favor of Comerica Bank, as agent.
4.10 Form of Second Amended and Restated Continuing Collateral
Mortgage, dated as of May 30, 1996, made by each of R.J. Tower
Corporation, a Michigan corporation, R.J. Tower Corporation, an
Indiana corporation, Kalamazoo Stamping and Die Company, a
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Michigan corporation, Edgewood Manufacturing Corp., a Delaware
corporation, in favor of Comerica Bank, as agent.
4.11 Second Amended and Restated Security Agreement (Third Party
Pledge), dated as of May 30, 1996, made by Tower Automotive,
Inc., a Delaware corporation, in favor of Comerica Bank, as
agent.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TOWER AUTOMOTIVE, INC.
Date: June 4, 1996 By: /S/ Anthony A. Barone
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Anthony A. Barone
Chief Financial Officer
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EXHIBIT 4.1
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
--------------------------------
THIS AMENDMENT dated as of May 30, 1996, by and among the Banks signatory
hereto, Comerica Bank, as Agent for the Banks ("Agent"), and R.J. Tower
Corporation, a Michigan corporation ("Company").
RECITALS:
A. Company, Banks and Agent entered into that certain Third Amended and
Restated Credit Agreement dated as of January 16, 1996 (the "Credit Agreement").
B. Company, Banks and Agent desire to amend the Credit Agreement as set
forth below.
NOW, THEREFORE, the parties agree as follows:
1. The definitions of each of the following terms set forth in Section 1
of the Credit Agreement are amended to read in their entireties as follows:
"'Guarantors' shall mean Edgewood, Tower (Indiana), Tower (Kentucky),
Trylon, MascoTech and Kalamazoo and each other Person who shall become a
Subsidiary of Company after the date hereof and shall have delivered to
Agent on behalf of the Banks a guaranty of the Indebtedness in the form of
the Company Guaranty (or a joinder agreement) and shall have delivered to
the Collateral Agent on behalf of Banks a security agreement in form
satisfactory to the Collateral Agent and the Lenders and such other
documents as are reasonably determining by the Collateral Agent and the
Lenders to be necessary to grant to the Collateral Agent and the Lenders a
security interest (except as otherwise not required under this Agreement)
in all of such Person's assets, whether then owned or thereafter acquired,
together with all replacements thereof, substitutions therefor, accessions
thereto and all proceeds and products of all of the foregoing.
'Mortgages' shall mean the amended and restated mortgages dated as of
the date hereof, and all mortgages executed and delivered after the date
hereof by any Person who becomes a Subsidiary after the date hereof,
executed and delivered to the Collateral Agent on behalf of the Lenders as
of the date hereof by Company, Tower
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(Indiana), Edgewood, Kalamazoo and other Subsidiaries granting the
Collateral Agent and the Lenders first priority mortgages on all of the
real property owned by each of the Subsidiaries (other than real property
described on Exhibit 'N' annexed hereto) subject only to such encumbrances
as are acceptable to the Collateral Agent and the Lenders, and the Kentucky
Bond Mortgage and the Indiana Bond Mortgage.
'Revolving Credit Aggregate Commitment' shall mean Seventy Five
Million Dollars ($75,000,000) subject to reduction or termination under
Section 2.13 or 10.2 hereof.
'Security Agreements' shall mean amended and restated security
agreements dated as of the date hereof, and all security agreements
executed and delivered after the date hereof by any person which becomes a
Subsidiary after the date hereof, pursuant to which Company and each
Subsidiary grants to the Collateral Agent and Lenders a first priority
security interest in all accounts, chattel paper, documents, equipment,
fixtures, general intangibles, goods, instruments and inventory, wherever
located and whether now owned or hereafter acquired, together with all
replacements thereof, substitutions therefor, accessions thereto and all
proceeds and products of all the foregoing, as may be amended from time to
time.
'Tower Pledge' shall mean the Amended and Restated Security Agreement
(Third Party Pledge) dated as of the date hereof pursuant to which Parent
grants to the Collateral Agent and the Lenders a first priority security
interest in all of the issued and outstanding stock of Company, as may be
amended from time to time."
1.A Subparagraph (a) of the definition of Permitted Encumbrances is
amended to add the words "for the equal and ratable benefit of the Lenders"
after the words "Loan Documents".
2. Section 1 of the Credit Agreement is amended to add the following
definitions in alphabetical order:
"'Acquisition Note" shall mean the promissory note dated May 31, 1996
by Company payable to MascoTech, Inc. in the original principal amount of
$5,000,000 bearing interest at a rate of 7% per annum.
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'Collateral Agent' shall mean Comerica Bank, acting in its capacity as
Collateral Agent for the Lenders under the Intercreditor Agreement.
'Consolidated EBITA' shall mean for any period of determination,
Consolidated Net Income for such period, plus the aggregate amounts
deducted in determining Consolidated Net Income in respect of (a) income
taxes for such period, (b) interest expense for such period, and (c)
amortization expense for such period in each case determined on a
Consolidated basis in accordance with GAAP.
'Equity Transactions' shall mean any sale of any shares of the capital
stock of Parent or any warrants, options or other equivalents of the
capital stock of Parent.
'Hedging Transaction' means each interest rate swap transaction, basis
swap transaction, forward rate transaction, commodity swap transaction,
equity transaction, equity index transaction, foreign exchange transaction,
cap transaction, floor transaction (including any option with respect to
any of these transactions and any combination of any of the foregoing)
entered into by the Company from time to time pursuant to an Interest Rate
Protection Agreement; provided that such transaction is entered into for
risk management purposes and not for speculative purposes.
'Intercreditor Agreement' shall mean that certain Intercreditor and
Collateral Agency Agreement dated as of May 31, 1996 as the same may be
amended or otherwise modified from time to time, by and among Company, the
Collateral Agent and the Lenders.
'Interest Coverage Ratio' shall mean as of any date of determination a
ratio the numerator of which is Consolidated EBITA for the four preceding
fiscal quarters ending on such date of determination and the denominator of
which is Projected Interest Expense.
'Interest Rate Protection Agreement' means any interest rate swap,
cap, floor, collar, forward rate agreement, or other rate protection
transaction, or any combination of such transaction or agreements or any
option with respect to any such transactions or
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agreements now existing or hereafter entered into between Company and any
Bank or an Affiliate of a Bank.
'Lenders' shall mean each of the Banks and each of the Senior Note
Purchasers, and their respective successors and assigns.
'MascoTech' shall mean MascoTech Stamping Technologies, Inc., a
Delaware corporation.
'MascoTech Acquisition' shall mean the acquisition by Company of all
of the issued and outstanding stock of MascoTech pursuant to the
Acquisition Agreement.
'Maximum Leverage Ratio' shall mean as of any date of determination, a
ratio the numerator of which is Funded Debt as of such date of
determination and the denominator of which is the sum of Funded Debt as of
such date and Consolidated Net Worth as of such date.
'Net Proceeds from Equity Transactions' shall mean for any Equity
Transaction the amount of cash proceeds received by Company from such
Equity Transaction.
'Parent Letter Agreement' shall mean that certain letter agreement
dated May 31, 1996 and addressed to the Banks pursuant to which Parent
agrees to downstream to Company 100% of the net cash proceeds received from
the Secondary Offering.
'Permitted Guaranties' shall mean the guaranty executed and delivered
by the Company's Subsidiaries as of May 31, 1996 (and those guaranties
delivered by Subsidiaries which become guarantors subsequent to the date
hereof) in favor of the Senior Note Purchasers, as security for the Senior
Debt held by such Lenders, as such guaranties may be amended from time to
time.
'Projected Interest Expense' shall mean as of any date of
determination the aggregate of the payments to be made in respect of
interest on all Funded Debt of Company and its Consolidated Subsidiaries
during the four fiscal quarters following such date of determination. In
determining interest expense for variable rate indebtedness, the amount of
interest to be taken into account for such period and for which the actual
interest rate cannot be determined shall be computed at an assumed annual
interest rate equal to the
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interest rate in effect for the applicable variable rate indebtedness on
the applicable date of determination.
'Secondary Offering' shall mean a public offering of stock of the
Parent pursuant to which the Parent receives net proceeds in an amount not
less than $30,000,000 and which proceeds are downstreamed to Company
pursuant to the terms of the Parent Letter Agreement.
'Senior Debt' shall mean the senior debt to be issued by the Company
pursuant to the Senior Debt Documents in an aggregate principal amount of
Sixty Five Million Dollars ($65,000,000).
'Senior Debt Documents' shall mean those certain note purchase
agreements to be entered into concurrently herewith between the Company and
the respective Senior Note Purchasers with respect to the Senior Debt, and
the Senior Notes to be issued thereunder (all in form and substance
acceptable to Agent and the Majority Banks), together with any and all
other documents, instruments and certificates executed and delivered
pursuant thereto, including without limitation the Permitted Guaranties,
the Mortgages, the Security Agreements and the Tower Pledge, as the same
may be amended from time to time (subject to the terms hereof), and all
other documents executed in exchange therefor or in replacement or renewal
thereof.
'Senior Note Purchasers' shall mean the note purchasers which become
signatories to the Senior Debt Documents, and their respective successors
and assigns.
'Senior Notes' shall mean the 7.65% Senior Secured Notes, Series A,
Due June 1, 2006 and the 7.82% Senior Secured Notes, Series B, Due June 1,
2008 to be issued by Company to the Senior Note Purchasers."
3. Section 8.11 of the Credit Agreement is amended to read in its
entirety as follows:
"8.11 Maintain Consolidated Net Worth. Maintain at all times a
Consolidated Net Worth of not less than the Minimum Consolidated Net Worth.
'Minimum Consolidated Net Worth' initially shall mean Eighty-Five Million
Dollars ($85,000,000). On December 31 of each year, commencing December 31,
1996, the Minimum Consolidated
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Net Worth shall be increased (but not decreased) by an amount equal to
fifty percent (50%) of Consolidated Net Income (but not loss) for the
fiscal year ending on such date. In addition, on the date of any Equity
Transaction, Minimum Consolidated Net Worth shall increase by an amount
equal to one hundred percent (100%) of Net Proceeds from Equity
Transactions related to such Equity Transaction."
4. Section 8.12 of the Credit Agreement is amended to read in its
entirety as follows:
"8.12 Maintain Maximum Leverage Ratio. Maintain at all times a
Maximum Leverage Ratio of not more than the following amounts during the
periods specified below:
Present through June 29, 1997 .60 to 1.0
June 30, 1997 and thereafter .55 to 1.0"
5. Section 8.13 of the Credit Agreement is amended to read in its
entirety as follows:
"8.13 Maintain Interest Coverage Ratio. Maintain as of the end of
each fiscal quarter of Company an Interest Coverage Ratio of not less than
2.5 to 1.0."
6. Section 8.14 of the Credit Agreement is amended to read in its
entirety as follows:
"8.14 Maintain Cashflow Leverage Ratio. Maintain at all times a
Cashflow Leverage Ratio of not more than 3.5 to 1.0."
7. Section 8.16 of the Credit Agreement is amended to read in its
entirety as follows
"8.16 Subsidiaries; Guaranties. With respect to each Person which
becomes a Subsidiary subsequent to the date of this Agreement, within ten
days of the date of a new Subsidiary is created or acquired, as the case
may be, cause each such Subsidiary to execute and deliver to Agent, for and
on behalf of each of the Banks, (i) joinder agreements in the form attached
as Exhibit `A' to each of the Guaranties whereby each Subsidiary becomes
obligated as a Guarantor under the Guaranties and (ii) Security Agreements
and Mortgages, as applicable, together with such supporting documentation,
including without limitation corporate authority, items,
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certificates and opinions of counsel, as reasonably required by Agent and
the Majority Banks. Notwithstanding the foregoing, MascoTech shall not be
obligated to take the actions specified in the foregoing subclause (ii)
until September 1, 1996 and then only if the Secondary Offering shall not
have been completed on or before such date."
8. The following Section 8.17 is hereby added to the Agreement:
"8.17 Amendment of Senior Debt Documents. Upon any amendments,
modifications or alterations of the Senior Debt Documents, promptly (but no
later than five (5) Business Days following the effective date thereof)
notify Agent of the occurrence thereof, furnishing Agent with copies of all
such amendments, modifications or alterations. If the Majority Banks shall
determine, in their sole discretion, that any such amendment, modification
or alteration contains any new covenant, or makes any existing covenant in
the Senior Debt Documents more restrictive than the covenants contained in
this Agreement, Company shall forthwith upon demand by Majority Banks enter
into such amendments or modifications of this Agreement as reasonably
determined by the Majority Banks to be necessary to make this Agreement
(and the covenants contained herein) more restrictive than such documents
in proportion to the levels of restrictions existing immediately prior to
such amendment, modification or alteration to the Senior Debt Documents."
9. Section 9.3 of the Credit Agreement is amended to read in its entirety
as follows:
"9.3 Guaranties. Guarantee, endorse, or otherwise become secondarily
liable for or upon the obligations of others, except (a) by endorsement for
deposit in the ordinary course of business, (b) guaranties in favor of
Agent and the Banks, (c) the Letter of Credit Guaranty, (d) the Letter of
Credit Guaranty (Kentucky), (e) unsecured guaranties by Company or one or
more Subsidiaries of indebtedness of the Company or one or more
Subsidiaries, and (f) the Permitted Guaranties."
10. Section 9.4 of the Credit Agreement is amended to delete the word
"and" at the end of subparagraph (f), change the period at
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the end of subparagraph (g) to a semi-colon and to add the following
subparagraphs (h), (i), (j), (k), and (l):
"(h) the Senior Debt and any renewals or refinancing of the Senior
Debt in amounts not exceeding the original principal amount thereof (less
any required amortization according to the terms thereof), on substantially
the same terms as the Senior Debt;
(i) unsecured indebtedness of Company to MascoTech, Inc. evidenced by
the Acquisition Note;
(j) the Earnout Amount (as defined in the Acquisition Agreement;
(k) indebtedness incurred in connection with Hedging Transactions;
(l) the Permitted Guaranties."
11. Section 9.5 of the Credit Agreement is amended by adding the words
"Except for the MascoTech Acquisition," at the beginning of such Section and
changing the word "Purchase" to "purchase".
12. Section 9.8 of the Credit Agreement is amended to delete the words
"except to Agent on behalf of the Banks" and to substitute therefor the words
"except to Collateral Agent for the equal and ratable benefit of the Lenders".
13. Section 9.12 of the Credit Agreement is amended to add the following
sentence to the end thereof:
"Nothing contained in this Section 9.12 shall be deemed to prohibit
the Parent Letter Agreement".
14. Section 9.11 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"[Reserved]"
15. Section 10.2 of the Credit Agreement is amended to change the
reference to "subsection 10.1(l)" in the ninth line thereof to "subsection
10.1(m)".
16. The first sentence of Section 11.2 of the Credit Agreement is amended
to read in its entirety as follows:
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"Notwithstanding anything to the contrary in this Agreement, but
subject to the Intercreditor Agreement (if then in effect), after an Event
of Default, the proceeds of any offsets or voluntary payments by Company or
any Guarantor or others and any other sums received or collected in respect
of the Indebtedness, shall be applied, first, to the Notes on a pro rata
basis (in such order and manner as determined by the Majority Banks;
subject, however, to the applicable Percentages of the Advances and the
Term Loan held by each of the Banks), next, to any other Indebtedness on a
pro rata basis, and then, if there is any excess, to Company."
17. Section 11.3 of the Credit Agreement is amended to add the words
"Subject to the Intercreditor Agreement (if then in effect)" before the word
"If" in the first line thereof and to change such word "If" to "if".
18. Section 1 of the Credit Agreement is amended to delete the definitions
of "Debt to Worth Ratio" and "Debt Service Coverage Ratio".
19. Schedules 7.4, 7.11, 9.4 and 9.7 of the Credit Agreement are deleted
and attached Schedules 7.4, 7.11, 9.4 and 9.7 are substituted therefor.
20. This Amendment shall be effective upon (a) execution of this Amendment
by Company, Agent and the Banks, (b) execution of the Acknowledgment attached to
this Amendment by the Guarantors, (c) delivery by Company to Agent of new
Revolving Credit Notes for the Banks in the form of Exhibit "B" attached hereto
completed to reflect the commitments of each Bank as modified hereby, (c)
delivery by MascoTech to Agent of joinder agreements with respect to each of the
Guaranties, (d) payment to the Agent for pro rata distribution to the Banks of
an amendment fee of $37,500, (e) simultaneous consummation of the closing of the
issuance of the Senior Notes, (f) execution of the Intercreditor Agreement by
Company, Agent, the Senior Note Purchasers and the Guarantors, (g) delivery by
Company to Agent of an opinion of counsel to the Company and the Guarantors in
form and substance acceptable to the Agent and the Banks, and (h) the
simultaneous payment in full by Company of the Term Loans.
21. All references to the term "Agreement" and to the terms "hereof",
"hereunder" and similar referential terms in the Credit Agreement shall be
deemed to mean or refer to the Credit Agreement as amended by this Amendment.
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22. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement.
23. This Amendment may be executed in counterparts, in accordance with
Section 14.10 of the Credit Agreement.
24. Except as expressly modified hereby, all of the terms and conditions
of the Credit Agreement shall remain in full force and effect.
25. Company hereby represents and warrants that, after giving effect to
the amendments contained herein, (a) execution, delivery and performance of this
Amendment and any other documents and instruments required under this Amendment
or the Credit Agreement are within Company's corporate powers, have been duly
authorized, are not in contravention of law or the terms of Company's Articles
of Incorporation or Bylaws, and do not require the consent or approval of any
governmental body, agency, or authority; and this Amendment and any other
documents and instruments required under this Amendment or the Credit Agreement,
will be valid and binding in accordance with their terms; (b) the continuing
representations and warranties of Company set forth in Sections 7.1 through 7.6
and Sections 7.8 through 7.15 of the Credit Agreement are true and correct on
and as of the date hereof with the same force and effect as made on and as of
the date hereof; (c) the continuing representations and warranties of Company
set forth in Section 7.7 of the Credit Agreement are true and correct as of the
date hereof with respect to the most recent financial statements furnished to
Agent and Banks by Company in accordance with Section 8.1 of the Agreement; and
(d) no Event of Default, or condition or event which, with the giving of notice
or the running of time, or both, would constitute an Event of Default under the
Credit Agreement, has occurred and is continuing as of the date hereof.
26. This Amendment may be executed in several counterparts, and each
executed copy shall constitute an original instrument, but such counterparts
shall together constitute but one and the same instrument.
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The parties execute this Amendment as of the date set forth above.
COMERICA BANK, as Agent R.J. TOWER CORPORATION, a Michigan
corporation
By: /s/ David B. Marvin By: /s/ Anthony A. Barone
_____________________________ ____________________________
Its:____________________________ Its:___________________________
REVOLVING CREDIT BANKS: COMERICA BANK
By: /s/ David B. Marvin
____________________________
Its:___________________________
BANK OF AMERICA ILLINOIS
By: /s/ Guy Stapleton
____________________________
Its:___________________________
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Mark R. McDonald
____________________________
Its:___________________________
SWING LINE BANK: COMERICA BANK
By: /s/ David B. Marvin
____________________________
Its:___________________________
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ACKNOWLEDGMENT OF GUARANTORS
----------------------------
Each of the undersigned accepts and agrees to the First Amendment to the
Third Amended and Restated Credit Agreement dated as of January 16, 1996, and
ratifies and confirms its obligations under the Amended and Restated Guaranty
dated as of January 16, 1996, to which each of the undersigned is a party either
by execution thereof or by execution of a Joinder Agreement, and each of the
undersigned agrees that such Guaranty continues to be in full force and effect.
R.J. TOWER CORPORATION, an Indiana
corporation
By: /s/ Anthony A. Barone
____________________________
Its:___________________________
R.J. TOWER CORPORATION, a Kentucky
corporation
By: /s/ Anthony A. Barone
____________________________
Its:___________________________
KALAMAZOO STAMPING AND DIE COMPANY
By: /s/ Anthony A. Barone
____________________________
Its:___________________________
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TRYLON CORPORATION
By: /s/ Anthony A. Barone
____________________________
Its:___________________________
EDGEWOOD MANUFACTURING CORP.
By: /s/ Anthony A. Barone
____________________________
Its:___________________________
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Exhibit 4.2
REVOLVING CREDIT NOTE
---------------------
$39,000,000 May 30, 1996
On the Revolving Credit Maturity Date, FOR VALUE RECEIVED, R.J. Tower
Corporation, a Michigan corporation ("Company") promises to pay to the order of
Comerica Bank ("Bank") care of Comerica Bank, as Agent, at 500 Woodward Avenue,
Detroit, MI 48226, in lawful money of the United States of America, the sum of
Thirty Nine Million Dollars ($39,000,000), or so much of said sum as may from
time to time have been advanced and then be outstanding hereunder pursuant to
the R.J. Tower Corporation Third Amended and Restated Credit Agreement dated as
of January 16, 1996, made by and among the Company, certain banks, including the
Bank, and Comerica Bank as Agent for such banks, as the same may be amended from
time to time (the "Agreement"), together with interest thereon as hereinafter
set forth.
Each of the Advances made hereunder shall bear interest at the Applicable
Interest Rate from time to time applicable thereto under the Agreement or as
otherwise determined thereunder, and interest shall be computed, assessed and
payable as set forth in the Agreement.
This Note is a note under which advances (including refundings and
conversions), repayments and readvances may be made from time to time, but only
in accordance with the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in accordance with, and
may be accelerated or matured under, the terms of the Agreement, to which
reference is hereby made. Definitions and terms of the Agreement are hereby
incorporated by reference herein.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Company hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
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This Note replaces in part (by renewal) that certain Revolving Credit Note
dated January 16, 1996, made in the principal amount of Twenty Six Million
Dollars by Company payable to Comerica Bank.
R.J. TOWER CORPORATION, a Michigan
corporation
/s/ Anthony A. Barone
By:___________________________
Its:__________________________
<PAGE>
Exhibit 4.3
REVOLVING CREDIT NOTE
---------------------
$18,000,000 May 30, 1996
On the Revolving Credit Maturity Date, FOR VALUE RECEIVED, R.J. Tower
Corporation, a Michigan corporation ("Company") promises to pay to the order of
Bank of America Illinois ("Bank") care of Comerica Bank, as Agent, at 500
Woodward Avenue, Detroit, MI 48226, in lawful money of the United States of
America, the sum of Eighteen Million Dollars ($18,000,000), or so much of said
sum as may from time to time have been advanced and then be outstanding
hereunder pursuant to the R.J. Tower Corporation Third Amended and Restated
Credit Agreement dated as of January 16, 1996, made by and among the Company,
certain banks, including the Bank, and Comerica Bank as Agent for such banks, as
the same may be amended from time to time (the "Agreement"), together with
interest thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at the Applicable
Interest Rate from time to time applicable thereto under the Agreement or as
otherwise determined thereunder, and interest shall be computed, assessed and
payable as set forth in the Agreement.
This Note is a note under which advances (including refundings and
conversions), repayments and readvances may be made from time to time, but only
in accordance with the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in accordance with, and
may be accelerated or matured under, the terms of the Agreement, to which
reference is hereby made. Definitions and terms of the Agreement are hereby
incorporated by reference herein.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Company hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
<PAGE>
This Note replaces in part (by renewal) that certain Revolving Credit Note
dated January 16, 1996, made in the principal amount of Twelve Million Dollars
by Company payable to Bank.
R.J. TOWER CORPORATION, a Michigan
corporation
/s/ Anthony A. Barone
By:___________________________
Its:__________________________
<PAGE>
Exhibit 4.4
REVOLVING CREDIT NOTE
---------------------
$18,000,000 May 30, 1996
On the Revolving Credit Maturity Date, FOR VALUE RECEIVED, R.J. Tower
Corporation, a Michigan corporation ("Company") promises to pay to the order of
First Bank National Association ("Bank") care of Comerica Bank, as Agent, at 500
Woodward Avenue, Detroit, MI 48226, in lawful money of the United States of
America, the sum of Eighteen Million Dollars ($18,000,000), or so much of said
sum as may from time to time have been advanced and then be outstanding
hereunder pursuant to the R.J. Tower Corporation Third Amended and Restated
Credit Agreement dated as of January 16, 1996, made by and among the Company,
certain banks, including the Bank, and Comerica Bank as Agent for such banks, as
the same may be amended from time to time (the "Agreement"), together with
interest thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at the Applicable
Interest Rate from time to time applicable thereto under the Agreement or as
otherwise determined thereunder, and interest shall be computed, assessed and
payable as set forth in the Agreement.
This Note is a note under which advances (including refundings and
conversions), repayments and readvances may be made from time to time, but only
in accordance with the terms and conditions of the Agreement. This Note
evidences borrowings under, is subject to, is secured in accordance with, and
may be accelerated or matured under, the terms of the Agreement, to which
reference is hereby made. Definitions and terms of the Agreement are hereby
incorporated by reference herein.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Company hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
<PAGE>
Nothing herein shall limit any right granted Bank by any other instrument
or by law.
<PAGE>
This Note replaces in part (by renewal) that certain Revolving Credit Note
dated January 16, 1996, made in the principal amount of Twelve Million Dollars
by Company payable to Bank.
R.J. TOWER CORPORATION, a Michigan
corporation
/s/ Anthony A. Barone
By:___________________________
Its:__________________________
<PAGE>
Exhibit 4.5
SECOND AMENDED AND RESTATED GUARANTY
------------------------------------
(Tower-Michigan Debt)
This SECOND AMENDED AND RESTATED GUARANTY is made as of this 30th day of
May, 1996 by the undersigned, R.J. Tower Corporation, an Indiana corporation,
Edgewood Manufacturing Corp., a Delaware corporation, R.J. Tower Corporation, a
Kentucky corporation, Kalamazoo Stamping and Die Company, a Michigan
corporation, Trylon Corporation, a Michigan corporation, MascoTech Stamping
Technologies, Inc., a Delaware corporation and any other Person which becomes
obligated as a guarantor hereunder pursuant to Section 6.7 below (individually a
"Guarantor" collectively "Guarantors") to Comerica Bank, as Agent ("Agent") for
and on behalf of the Banks (as defined below).
RECITALS
--------
A. The undersigned (other than MascoTech Stamping Technologies, Inc.)
executed and delivered to Comerica Bank, as Agent for the Banks (as defined
below) that certain Amended and Restated Guaranty dated as of January 16, 1996
(the "Prior Guaranty") guaranteeing payment of all obligations of R.J. Tower
Corporation, a Michigan corporation ("Borrower") to Comerica Bank, as Agent for
the Banks under that certain Third Amended and Restated Credit Agreement dated
as of January 16, 1996, among the Borrower, each of the financial institutions,
including any of such financial institutions acting as the Swing Line Bank
thereunder (collectively, the "Banks") and Agent.
B. Pursuant to the First Amendment to the Third Amended and Restated
Credit Agreement, dated as of May 30, 1996 among the Borrower, the Banks and the
Agent (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") the Banks and the Agent have agreed to amend the Credit
Agreement by, among other things, increasing the Revolving Credit Aggregate
Commitment and making certain other amendments.
C. The Guarantors and the Agent desire to amend and restate the Prior
Guaranty to reflect the events set forth in these recitals.
D. Guarantors desire to see the success of Borrower and furthermore,
Guarantors shall receive direct and/or indirect benefits from extensions of
credit made or to be made pursuant to the Credit Agreement to Borrower.
E. Agent is acting as Agent for the Banks pursuant to Section 13 of the
Credit Agreement.
<PAGE>
NOW, THEREFORE, as a continuing inducement to Agent and the Banks to enter
into and perform their obligations under the Credit Agreement, the Guarantors
have executed and delivered this guaranty ("Guaranty").
1. Definitions. Unless otherwise provided herein, all capitalized or other
terms in this Guaranty shall have the meanings specified in the Credit
Agreement. The term "Banks" as used herein shall include any successors or
assigns of the Banks, in accordance with the Credit Agreement.
2. Guaranty. Each of the Guarantors hereby guarantees to the Banks the due
and punctual payment to the Banks when due, whether by acceleration or
otherwise, of all amounts, including, without limitation, principal, interest
(including interest accruing on or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding by Borrower or any Account Party, whether or not a claim for post-
filing or post-petition interest is allowed in such a proceeding), and all other
liabilities and obligations, direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with:
(a) any and all Notes made or to be made to the order of the Banks (or
any of them) by Borrower from time to time pursuant to the terms and
conditions of the Credit Agreement;
(b) any and all Letter of Credit Agreements executed or to be executed
by the Account Parties from time to time pursuant to the Credit Agreement,
and any Letters of Credit issued or to be issued thereunder;
(c) all other Indebtedness (as defined in the Credit Agreement) of
Borrower and/or any Account Party under or in connection with the Credit
Agreement or the Loan Documents, whether such Indebtedness is now existing
or hereafter arising;
(d) all extensions, renewals and amendments of or to such Notes,
Letter of Credit Agreements, Letters of Credit or such other Indebtedness,
or any replacements or substitutions therefor; and
(e) All obligations of Borrower under any and all Hedging Transactions
(as defined in the Credit Agreement) entered into by the Borrower pursuant
to an Interest Rate Protection Agreement (as defined in the Credit
Agreement)
2
<PAGE>
entered into between the Borrower and any Bank or any Affiliate of a Bank;
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, and reasonable costs and expenses (including without limitation,
all reasonable fees and disbursements of counsel to the Agent or any Bank) or
otherwise, and hereby agrees that if Borrower or any other Account Party shall
fail to pay any of such amounts when and as the same shall be due and payable,
or shall fail to perform and discharge any covenant, representation or warranty
in accordance with the terms of the Notes, the Credit Agreement, or any of the
other Loan Documents (subject, in each case, to any applicable periods of grace
or cure), it will forthwith pay to the Agent, on behalf of the Banks, an amount
equal to any such amount and will pay any and all damages that may be incurred
or suffered in consequence thereof by Agent or any of the Banks and all
reasonable expenses, including reasonable attorneys' fees, that may be incurred
by Agent in enforcing such covenant, representation or warranty of Borrower, or
such Account Party and in enforcing the covenants and agreements of this
Guaranty.
3. Unconditional Character of Guaranty. The obligations of each Guarantor
under this Guaranty shall be absolute and unconditional, and shall be a guaranty
of payment and not of collection, irrespective of the validity, regularity or
enforceability of the Notes, the Credit Agreement, the Letter of Credit
Agreements, the Letters of Credit or any of the other Loan Documents, or any
provision thereof, the absence of any action to enforce the same, any waiver or
consent with respect to or any amendment of any provision thereof, the recovery
of any judgment against any Person or action to enforce the same, any failure or
delay in the enforcement of the obligations of Borrower or any Account Party
under the Notes, the Credit Agreement, or any of the other Loan Documents, or
any setoff, counterclaim, recoupment, limitation, defense or termination,
whether with or without notice to any of the Guarantors. Each of the Guarantors
hereby waives diligence, demand for payment, filing of claims with any court,
any proceeding to enforce any provision of the Notes executed by Borrower, or
the Credit Agreement, the Letter of Credit Agreements, the Letters of Credit or
any of the other Loan Documents, any right to require a proceeding first against
Borrower, any Account Party, or against any other guarantor or other party
providing collateral, or to exhaust any security for the performance of the
obligations of Borrower or any Account Party, any protest, presentment, notice
or demand whatsoever, and each of the Guarantors hereby covenants that this
Guaranty shall not be terminated, discharged or released except, subject to
Section 6.8 hereof, upon final payment in full subject to no revocation or
rescission of all amounts due and to
3
<PAGE>
become due from Borrower or any Account Party, as and to the extent described in
Section 2 above, and only to the extent of any such payment, performance and
discharge. Each of the Guarantors further covenants that no security now or
subsequently held by the Agent or the Banks for the payment of the Indebtedness
evidenced by the Notes made by Borrower under the Credit Agreement, or for the
payment of any other Indebtedness of Borrower or any Account Party to the Agent
or the Banks under the Credit Agreement, any Letter of Credit Agreement or
Letter of Credit or the other Loan Documents, whether in the nature of a
security interest, pledge, lien, assignment, setoff, suretyship, guaranty,
indemnity, insurance or otherwise, and no act, omission or other conduct of
Agent or the Banks in respect of such security (excluding fraud, gross
negligence or willful misconduct), shall affect in any manner whatsoever the
unconditional obligation of this Guaranty, and that Agent and each of the Banks,
in their respective sole discretion and without notice to any of the Guarantors,
may release, exchange, enforce, apply the proceeds of and otherwise deal with
any such security without affecting in any manner the unconditional obligation
of this Guaranty.
Without limiting the generality of the foregoing, such obligations, and the
rights of the Agent to enforce the same on behalf of the Banks, by proceedings,
whether by action at law, suit in equity or otherwise, shall not be in any way
affected by (i) any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding up or other proceeding involving
or affecting Borrower or any Account Party or others, or (ii) any change in the
ownership of any of the capital stock of Borrower, any Account Party or any
other party providing collateral for any indebtedness covered by this Guaranty,
or any of their respective Affiliates.
Each of the Guarantors hereby waives to the fullest extent possible under
applicable law:
(a) any defense based upon the doctrine of marshalling of assets or
upon an election of remedies by Agent or the Banks, including, without
limitation, an election to proceed by non-judicial rather than judicial
foreclosure;
(b) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(c) any duty on the part of Agent or any of the Banks to disclose to
the Guarantors any facts Agent or the Banks may now or hereafter know about
Borrower or any Account Party regardless of
4
<PAGE>
whether Agent or any Bank has reason to believe that any such facts materially
increase the risk beyond that which each of the Guarantors intends to assume or
has reason to believe that such facts are unknown to any of the Guarantors or
has a reasonable opportunity to communicate such facts to the each of the
Guarantors, since each of the Guarantors acknowledges that it is fully
responsible for being and keeping informed of the financial condition of
Borrower and the Account Parties and of all circumstances bearing on the risk of
non-payment of any Indebtedness hereby guaranteed;
(d) any claim for reimbursement, contribution, exoneration, indemnity
or subrogation, or any other similar claim, which any such Guarantor may have or
obtain against Borrower or any Account Party by reason of the existence of this
Guaranty, or by reason of the payment by any of the Guarantors of any
Indebtedness or the performance of this Guaranty or of any other Loan Documents;
and
(e) any other event or action (excluding any of the Guarantors'
compliance with the provisions hereof) that would result in the discharge by
operation of law or otherwise of any of the Guarantors from the performance or
observance of any obligation, covenant or agreement contained in this Guaranty.
The Agent and each of the Banks may deal with Borrower and the Account
Parties and any security held by them for the obligations of Borrower or the
Account Parties (as aforesaid), in the same manner and as freely as if this
Guaranty did not exist and Agent shall be entitled, on behalf of Banks, without
notice to any of the Guarantors, among other things, to grant to Borrower and
the Account Parties such extension or extensions of time to perform any act or
acts as may seem advisable to Agent (on behalf of the Banks) at any time and
from time to time, and to permit Borrower or the Account Parties to incur
additional indebtedness to Agent, the Banks, or any of them, without
terminating, affecting or impairing the validity or enforceability of this
Guaranty or the obligations of the Guarantors hereunder.
The Agent may proceed, either in its own name (on behalf of the Banks) or
in the name of one or more of the Guarantors, or otherwise, to protect and
enforce any or all of its rights under this Guaranty by suit in equity, action
at law or by other appropriate proceedings, or to take any action authorized or
permitted under applicable law, and shall be entitled to require and enforce the
performance of all acts and things required to be performed hereunder by the
Guarantors. Each and every remedy of the Agent and of the Banks shall, to the
extent permitted by law, be
5
<PAGE>
cumulative and shall be in addition to any other remedy given hereunder or now
or hereafter existing at law or in equity.
No waiver or release shall be deemed to have been made by the Agent or any
of the Banks of any of its rights hereunder unless the same shall be in writing
and signed by all of the Banks or on behalf of the Banks by the Agent, and any
such waiver shall be a waiver or release only with respect to the specific
matter involved and shall in no way impair the rights of the Agent or any of the
Banks or the obligations of the Guarantors under this Guaranty in any other
respect at any other time.
At the option of the Agent, each of the Guarantors may be joined in any
action or proceeding commenced by the Agent against Borrower or any Account
Party or any of the other parties providing collateral for any indebtedness
covered by this Guaranty in connection with or based upon the Notes made by
Borrower, the Credit Agreement, the Letter of Credit Agreements, the Letters of
Credit or any of the other Loan Documents or other Indebtedness, or any
provision thereof, and recovery may be had against each of the Guarantors in
such action or proceeding or in any independent action or proceeding against
each of the Guarantors, without any requirement that the Agent or the Banks
first assert, prosecute or exhaust any remedy or claim against Borrower, any
Account Party and/or any other party providing collateral for any Indebtedness
covered by this Guaranty.
As a separate, additional and continuing obligation, each of the Guarantors
unconditionally and irrevocably undertakes and agrees with Agent that, should
the amounts referred to in Section 2 of this Guaranty not be recoverable from
such Guarantor in its capacity as a guarantor under this Guaranty for any reason
whatsoever (including, without limitation, by reason of any provision of the
Notes, the Credit Agreement, any Letter of Credit Agreement or Letter of Credit,
or any of the other Loan Documents being or becoming void, unenforceable, or
otherwise invalid under any applicable law) then, notwithstanding any knowledge
thereof by Agent and the Banks or any of them at any time, such Guarantor as
sole, original and independent obligor, upon demand by Agent, will make payment
to Agent of all such amounts, by way of a full indemnity.
4. Benefit of the Credit. Each of the Guarantors is a Subsidiary of
Borrower. The Borrower has requested that the Banks make credit available to it
primarily for the purposes of allowing Borrower to provide working capital to
its Subsidiaries and to provide a letter of credit facility for the issuance of
Letters of Credit for the benefit of Borrower and the Account Parties, including
the Guarantors. Each of Borrower and the Guarantors is
6
<PAGE>
expecting to derive benefit, directly or indirectly, from the credit extended by
the Banks to Borrower and the Account Parties.
5. Collateral for Guaranty. The obligations of the Guarantors under this
Guaranty shall be secured by the security agreements, collateral assignments,
and other Loan Documents executed and delivered to Agent, pursuant to the Credit
Agreement, together with such other Loan Documents as required to be executed
and delivered by one or more of the Guarantors concurrently with or subsequent
to the date hereof, all pursuant to the terms and conditions of the Credit
Agreement or any of the other Loan Documents.
6. Miscellaneous.
6.1 Governing Law. This Guaranty has been delivered in Michigan and
shall be interpreted and the rights of the parties hereunder shall be determined
under the laws of, and be enforceable in, the State of Michigan.
6.2 Severability. If any term or provision of this Guaranty or the
application thereof to any circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Guaranty, or the application of such term
or provision to circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Guaranty shall be valid and enforceable to the fullest extent permitted by
law.
6.3 Notice. All notices and other communications to be made or given
pursuant to this Guaranty shall be sufficient if made or given in writing and
shall be given by personal delivery, by mail, by reputable overnight courier, by
telex or by facsimile and addressed or delivered to it at its address set forth
on the signature pages hereof or at such other address as may be designated by
such party in a notice to the other party that complies as to deliver with the
terms of this Section 6.3. Any notice, if personally delivered or if mailed and
properly addressed with postage prepaid and sent by registered or certified
mail, shall be deemed given when received or when delivery is refused; any
notice, if given to a reputable overnight courier and properly addressed, shall
be deemed given two (2) Business Days after the date on which it was sent,
unless it is actually received sooner by the named addressee; and any notice, if
transmitted by telex or facsimile, shall be deemed given when received
(answerback confirmed in the case of telexes and receipt confirmed in the case
of telecopies).
7
<PAGE>
6.4 Right of Offset. Each of the Guarantors acknowledges the rights
of the Agent and of each of the Banks, upon the occurrence and during the
continuance of an Event of Default, to offset against the Indebtedness of
Guarantors to the Banks under this Guaranty, any amount owing by the Agent or
the Banks, or either or any of them to any of the Guarantors, whether
represented by any deposit of any Guarantor with the Agent or any of the Banks
or otherwise.
6.5 Right to Cure. Each of the Guarantors shall have the right to
cure any Event of Default under the Credit Agreement or the Loan Documents with
respect to obligations of Borrower or any Account Party thereunder; provided
that such cure is effected within the applicable grace period or period for
cure, if any; and provided further that such cure can be effected in compliance
with the Credit Agreement. Except to the extent of payments of principal,
interest and/or other sums actually received by the Agent (or the Banks)
pursuant to such cure, the exercise of such right to cure by any of the
Guarantors shall not reduce or otherwise affect the liability of such guarantor
or any of the other Guarantors under this Guaranty.
6.6 Consent to Jurisdiction. Each of the Guarantors and Agent hereby
irrevocably submit to the non-exclusive jurisdiction of any United States
Federal or Michigan state court sitting in Detroit in any action or proceeding
arising out of or relating to this Guaranty and each of the Guarantors and Agent
hereby irrevocably agree that all claims in respect of such action or proceeding
may be heard and determined in any such United States Federal or Michigan state
court. Each of the Guarantors irrevocably consents to the service of any and all
process in any such action or proceeding brought in any court in or of the State
of Michigan by the delivery of copies of such process to each Guarantor at its
address specified on the signature page hereto or by certified mail directed to
such address or such other address as may be designated by Guarantor in a notice
to the other parties that complies as to delivery with the terms of Section 6.3.
Nothing in this Section shall affect the right of the Agent to serve process in
any other manner permitted by law or limit the right of the Agent to bring any
such action or proceeding against any of the Guarantors or any of its property
in the courts of any other jurisdiction. Each of the Guarantors hereby
irrevocably waives any objection to the laying of venue of any such suit or
proceeding in the above described courts.
6.7 Amendments. The terms of this Guaranty may not be waived,
altered, modified, amended, supplemented or terminated in any manner whatsoever
except as provided herein and in accordance with the Credit Agreement. In
accordance with Section 8.16 of the
8
<PAGE>
Credit Agreement, all Subsidiaries of the Borrower acquired after the date
hereof shall become obligated as Guarantors hereunder (each as fully as though
an original signatory hereto) by executing and delivering to Agent and the Banks
that certain joinder agreement in the form attached to this Guaranty as Exhibit
"A".
6.8 Release. Upon payment in full of the Indebtedness or the
satisfaction by Guarantors of their obligations hereunder and any Loan Documents
executed by any of the Guarantors pursuant to the Credit Agreement thereto, and
when Guarantors are no longer subject to any obligation hereunder or thereunder,
the Agent shall deliver to each of the Guarantors, upon written request
therefor, (i) a written release of this Guaranty and (ii) appropriate discharges
of any Collateral provided by such Guarantor for this Guaranty; provided however
that the effectiveness of this Guaranty and such Collateral shall continue or be
reinstated, as the case may be, in the event: (x) that any payment received or
credit given by the Agent or the Banks, or any of them, is returned, disgorged,
rescinded or required to be recontributed to any Person as an avoidable
preference, impermissible setoff, fraudulent conveyance, restoration of capital
or otherwise under any applicable state, federal or national law of any
jurisdiction, including without limitation laws pertaining to bankruptcy or
insolvency, and this Guaranty shall thereafter be enforceable against each of
the Guarantors as if such returned, disgorged, recontributed or rescinded
payment or credit had not been received or given by the Agent or the Banks, and
whether or not the Agent or any Bank relied upon such payment or credit or
changed its position as a consequence thereof or (y) that any liability is
imposed, or sought to be imposed against the Agent or the Banks, or any of them,
relating to the environmental condition of any of property mortgaged or pledged
to Agent on behalf of the Banks by any of the Guarantors, Borrower, or any other
party as collateral (in whole or part) for any indebtedness or obligation
evidenced or secured by this Guaranty, whether such condition, claim or matter
is known or unknown, now exists or subsequently arises (excluding only
conditions which arise from and after acquisition by Agent or any Bank of any
such property, in lieu of foreclosure or otherwise and not caused by Company,
any of its Subsidiaries or any of their agents, employees or representatives) in
which event this Guaranty shall thereafter be enforceable against each of the
Guarantors to the extent of all liabilities, and all reasonable costs and
expenses (including reasonable attorneys fees) incurred by Agent or Banks as the
direct or indirect result of any such environmental condition. For purposes of
this Guaranty "environmental condition" includes, without limitation, conditions
existing with respect to the surface or ground water, drinking water supply,
land surface or subsurface strata and the ambient air.
9
<PAGE>
6.9 Joint and Several Obligation, etc. The obligation of each of the
Guarantors under this Guaranty shall be several and also joint, each with all
and also each with any one or more of the others, and may be enforced against
each severally, any two or more jointly, or some severally and some jointly. Any
one or more of the Guarantors may be released from its obligations hereunder
with or without consideration for such release and the obligations of the other
Guarantors hereunder shall be in no way affected thereby. Agent, on behalf of
Banks, may fail or elect not to prove a claim against any bankrupt or insolvent
Guarantor and thereafter, Agent and the Bank may, without notice to any
Guarantors, extend or renew any part or all of any indebtedness of any of the
Guarantors, and may permit any of the Guarantors to incur additional
indebtedness, without affecting in any manner the unconditional obligation of
the remaining Guarantors. Such action shall not affect any right of contribution
among the Guarantors.
6.10 Waiver of Jury Trial. AGENT AND EACH OF THE GUARANTORS AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY
JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY RELATED
INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY
OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTION OF ANY OF THEM. NEITHER THE AGENT NOR ANY OF THE GUARANTORS SHALL SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL
HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE AGENT OR ANY OF THE GUARANTORS EXCEPT BY A
WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
6.11 Special Provisions. The maximum aggregate principal liability of
the Guarantors under this Guaranty shall be $250,000,000 and the date on which
this Guaranty terminates shall be December 31, 2025.
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<PAGE>
IN WITNESS WHEREOF, each of the undersigned Guarantors has executed this
Guaranty as of the date set forth above.
GUARANTORS:
R.J. TOWER CORPORATION, an Indiana
corporation
WITNESSES:
/s/ Anthony A. Barone
______________________________ By:___________________________
Anthony A. Barone
Its: Vice President
EDGEWOOD MANUFACTURING CORP., a Delaware
corporation
/s/ Anthony A. Barone
______________________________ By:___________________________
Anthony A. Barone
Its: Vice President
R.J. TOWER CORPORATION, a Kentucky
corporation
/s/ Anthony A. Barone
______________________________ By:___________________________
Anthony A. Barone
Its: Vice President
KALAMAZOO STAMPING AND DIE COMPANY, a
Michigan corporation
/s/ Anthony A. Barone
______________________________ By:___________________________
Anthony A. Barone
Its: Vice President
TRYLON CORPORATION
/s/ Anthony A. Barone
______________________________ By:___________________________
Anthony A. Barone
Its: Vice President
11
<PAGE>
MASCOTECH STAMPING TECHNOLOGIES,
INC.
/s/ Anthony A. Barone
______________________________ By:___________________________
Anthony A. Barone
Its: Vice President
GUARANTORS' ADDRESS:
c/o Tower Automotive, Inc.
4508 IDS Center
Minneapolis, MN 55402
Attention: Robert R. Hibbs
Scott Rued
ACCEPTED BY:
COMERICA BANK, as Agent,
on behalf of the Banks
/s/ David B. Marvin
By:____________________________
David B. Marvin
Its: Vice President
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<PAGE>
EXHIBIT "A"
JOINDER AGREEMENT
-----------------
THIS JOINDER AGREEMENT is dated as of ______________, 199_ by
_____________________, a ______________________ corporation ("New Guarantor").
WHEREAS, pursuant to Section 8.17 of that certain Third Amended and
Restated Credit Agreement dated as of January 16, 1996 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement") by and among
R.J. Tower Corporation, a Michigan corporation ("Company"), the Banks signatory
thereto and Comerica Bank, as Agent for the Banks (in such capacity, "Agent"),
and pursuant to Section 6.7 of that certain Second Amended and Restated Guaranty
(Tower-Michigan Debt) dated as of May ___, 1996 (the "Guaranty") executed and
delivered by the Guarantors named therein ("Guarantors") in favor of Agent, for
and on behalf of the Banks, the New Guarantor must execute and deliver a joinder
agreement in accordance with the Credit Agreement and the Guaranty.
NOW THEREFORE, as a further inducement to Banks to continue to provide
credit accommodations to Company and the Account Parties (as defined in the
Credit Agreement), New Guarantor hereby covenants and agrees as follows:
1. All capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement unless expressly defined to the contrary.
2. New Guarantor hereby enters into this Joinder Agreement in order to
comply with Section 8.17 of the Credit Agreement and Section 6.7 of
the Guaranty and does so in consideration of the Advances made or to
be made from time to time under the Credit Agreement (and the other
Loan Documents, as defined in the Credit Agreement), from which New
Guarantor shall derive direct and indirect benefit as with the other
Guarantors (all as set forth and on the same basis as in the
Guaranty).
3. New Guarantor shall be considered, and deemed to be, for all purposes
of the Credit Agreement, the Guaranty and the other Loan Documents, a
Guarantor under the Guaranty as fully as though New Guarantor had
executed and delivered the Guaranty at the time originally executed
and delivered under the Credit Agreement and hereby ratifies and
confirms its obligations under the Guaranty, all in accordance with
the terms thereof.
<PAGE>
4. No Default or Event of Default (each such term being defined in the
Credit Agreement) has occurred and is continuing under the Credit
Agreement.
5. This Joinder Agreement shall be governed by the laws of the State of
Michigan and shall be binding upon New Guarantor and its successors and assigns.
IN WITNESS WHEREOF, the undersigned New Guarantor has executed and
delivered this Joinder Agreement as of __________________, 199_.
[NEW GUARANTOR]
By:______________________________
Its:_____________________________
2
<PAGE>
EXHIBIT 4.6
JOINDER AGREEMENT
-----------------
AMENDED AND RESTATED GUARANTY
(TOWER-INDIANA DEBT)
THIS JOINDER AGREEMENT is dated as of May 30, 1996 by MASCOTECH
STAMPING TECHNOLOGIES, INC., a Delaware corporation ("New Guarantor").
WHEREAS, pursuant to Section 8.16 of that certain Third Amended and
Restated Credit Agreement dated as of January 16, 1996 (as amended, modified or
otherwise supplemented from time to time the "Credit Agreement") by and among
R.J. Tower Corporation, a Michigan corporation ("Company"), the Banks signatory
thereto and Comerica Bank, as Agent for the Banks (in such capacity, "Agent"),
and pursuant to Section 6.7 of that certain Amended and Restated Guaranty
(Tower-Indiana Debt) dated as of January 16, 1996 (as amended, modified or
otherwise supplemented from time to time the "Guaranty") executed and delivered
by the Guarantors named therein ("Guarantors") in favor of Agent, for and on
behalf of the Banks, the New Guarantor must execute and deliver a joinder
agreement in accordance with the Credit Agreement and the Guaranty.
NOW THEREFORE, as a further inducement to Banks to continue to provide
credit accommodations to Company and the Account Parties (as defined in the
Credit Agreement), New Guarantor hereby covenants and agrees as follows:
1. All capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement unless expressly defined to the contrary.
2. New Guarantor hereby enters into this Joinder Agreement in order to
comply with Section 8.16 of the Credit Agreement and Section 6.7 of
the Guaranty and does so in consideration of the Advances made or to
be made from time to time under the Credit Agreement (and the other
Loan Documents, as defined in the Credit Agreement), from which New
Guarantor shall derive direct and indirect benefit as with the other
Guarantors (all as set forth and on the same basis as in the
Guaranty).
3. New Guarantor shall be considered, and deemed to be, for all purposes
of the Credit Agreement, the Guaranty and the other Loan Documents, a
Guarantor under the Guaranty as fully as though New Guarantor had
executed and delivered the Guaranty at the time originally executed
and delivered under the Credit Agreement and hereby
<PAGE>
ratifies and confirms its obligations under the Guaranty, all in
accordance with the terms thereof.
4. No Default or Event of Default (each such term being defined in the
Credit Agreement) has occurred and is continuing under the Credit
Agreement.
5. This Joinder Agreement shall be governed by the laws of the State of
Michigan and shall be binding upon New Guarantor and its successors
and assigns.
IN WITNESS WHEREOF, the undersigned New Guarantor has executed and
delivered this Joinder Agreement as of May 30, 1996.
MASCOTECH STAMPING TECHNOLOGIES, INC.
By: /s/ Anthony A. Barone
______________________________
Its:_____________________________
2
<PAGE>
EXHIBIT 4.7
JOINDER AGREEMENT
-----------------
AMENDED AND RESTATED GUARANTY
(TOWER KENTUCKY DEBT)
THIS JOINDER AGREEMENT is dated as of May 30, 1996 by MASCOTECH
STAMPING TECHNOLOGIES, INC., a Delaware corporation ("New Guarantor").
WHEREAS, pursuant to Section 8.17 of that certain Third Amended and
Restated Credit Agreement dated as of January 16, 1996 (as amended, modified or
otherwise supplemented from time to time, the "Credit Agreement") by and among
R.J. Tower Corporation, a Michigan corporation ("Company"), the Banks signatory
thereto and Comerica Bank, as Agent for the Banks (in such capacity, "Agent"),
and pursuant to Section 6.7 of that certain Amended and Restated Guaranty
(Tower-Kentucky Debt) dated as of January 16, 1996 (as amended, modified or
otherwise supplemented from time to time, the "Guaranty") executed and delivered
by the Guarantors named therein ("Guarantors") in favor of Agent, for and on
behalf of the Banks, the New Guarantor must execute and deliver a joinder
agreement in accordance with the Credit Agreement and the Guaranty.
NOW THEREFORE, as a further inducement to Banks to continue to provide
credit accommodations to Company and the Account Parties (as defined in the
Credit Agreement), New Guarantor hereby covenants and agrees as follows:
1. All capitalized terms used herein shall have the meanings assigned to
them in the Credit Agreement unless expressly defined to the contrary.
2. New Guarantor hereby enters into this Joinder Agreement in order to
comply with Section 8.17 of the Credit Agreement and Section 6.7 of
the Guaranty and does so in consideration of the Advances made or to
be made from time to time under the Credit Agreement (and the other
Loan Documents, as defined in the Credit Agreement), from which New
Guarantor shall derive direct and indirect benefit as with the other
Guarantors (all as set forth and on the same basis as in the
Guaranty).
3. New Guarantor shall be considered, and deemed to be, for all purposes
of the Credit Agreement, the Guaranty and the other Loan Documents, a
Guarantor under the Guaranty as fully as though New Guarantor had
executed and delivered the Guaranty at the time originally executed
and delivered under the Credit Agreement and hereby
<PAGE>
ratifies and confirms its obligations under the Guaranty, all in
accordance with the terms thereof.
4. No Default or Event of Default (each such term being defined in the
Credit Agreement) has occurred and is continuing under the Credit
Agreement.
5. This Joinder Agreement shall be governed by the laws of the State of
Michigan and shall be binding upon New Guarantor and its successors
and assigns.
IN WITNESS WHEREOF, the undersigned New Guarantor has executed and
delivered this Joinder Agreement as of May 30, 1996.
MASCOTECH STAMPING TECHNOLOGIES, INC.
By: /s/ Anthony A. Barone
______________________________
Its:_____________________________
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<PAGE>
EXHIBIT 4.8
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
----------------------------------------------
THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT is made as of this
30th day of May, 1996, by ______________________, a __________ corporation
("Obligor") to COMERICA BANK, a Michigan banking corporation, in its capacity as
collateral agent for the Lenders (as defined below) of 500 Woodward Avenue,
Detroit, Michigan 48226 (in such capacity, "Collateral Agent").
RECITALS
--------
A. Obligor executed and delivered to Comerica Bank, as agent for the Banks
(defined below) ("Agent"), an Amended and Restated Security Agreement dated as
of January 16, 1996 (the "Prior Security Agreement"), granting Comerica Bank, as
Agent, a security interest in and lien on Obligor's personal property as
security for the obligations of R.J. Tower Corporation, a Michigan corporation
(the "Borrower") to Comerica Bank, as Agent for the Banks under that certain
Third Amended and Restated Credit Agreement dated as of January 16, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, each of the financial institutions, including
any of such financial institutions acting as the Swing Line Bank thereunder
(collectively, the "Banks") and Agent.
A. Pursuant to the First Amendment to the Third Amended and Restated
Credit Agreement, dated as of May 30, 1996 among the Borrower, the Banks and the
Agent, the Banks and the Agent have agreed to amend the Credit Agreement by,
among other things, increasing the Revolving Credit Aggregate Commitment and
making certain other amendments.
B. Pursuant to the separate Note Agreements dated as of May __, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Note
Agreements"), between the Borrower and the Purchasers named in Schedule I
thereto (the "Purchasers") relating to the sale by the Obligor of (a) its
$40,000,000 7.65% Senior Secured Notes, Series A, due June 1, 2006 and (b) its
$25,000,000 7.82% Senior Secured Notes, Series B, due June 1, 2008 issued
thereunder (together, the "Senior Notes") named therein (such Purchasers,
together with all subsequent holders of the Senior Notes, the "Senior Note
Holders"), the Borrower has agreed to sell to such Purchasers the Senior Notes
from Borrower in the aggregate principal amount of Sixty Five Million Dollars
($65,000,000).
<PAGE>
C. Pursuant to and in accordance with the Credit Agreement and the Note
Agreements (together, the "Agreements"), the Banks and the Senior Note Holders
(collectively, with their respective successors and assigns, the "Lenders") have
required that Obligor provide to Agent, as Collateral Agent for the Lenders
according to the terms of the Intercreditor Agreement (as defined below), a
security interest in and lien on Obligor's personal property as security for
Borrower's obligations under the Revolving Credit, the Swing Line, the Credit
Agreement (including any Letters of Credit issued thereunder), the Note
Agreements, the Senior Notes, and the other documents, instruments, certificates
or agreements executed by Borrower pursuant to or in connection with any such
document or the Agreements, as such documents may be amended or otherwise
modified from time to time (collectively herein, the "Loan Documents").
D. Obligor and Agent desire to amend and restate the Prior Security
Agreement to reflect the events set forth in the foregoing recitals.
E. Agent is acting as Collateral Agent for the Lenders pursuant to Section
___ of that certain Intercreditor and Collateral Agency Agreement dated as of
the date hereof by and among Borrower, Agent as Collateral Agent and the Lenders
(as amended supplemented or otherwise modified from time to time, the
"Intercreditor Agreement"). The Intercreditor Agreement sets forth the relative
rights and priorities of the Lenders in and to the Collateral.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS. Unless expressly defined herein, all capitalized terms
used but not defined herein shall have the meanings set forth in the
Intercreditor Agreement and if not defined therein, then as defined in the
Agreements or the other Loan Documents, as applicable. When used herein, the
following terms shall have the following meanings:
"Account Debtor" shall mean the party who is obligated on or under any
Account or Chattel Paper.
"Account" shall mean any right of Obligor to payment for goods sold or
leased or for services rendered, whether or not such right to payment has been
earned by performance, and all interest and service charges thereon, and any
other account of Obligor as such
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<PAGE>
term is defined in Article 9 of the Michigan Uniform Commercial Code.
"Chattel Paper" shall mean any writing or writings owned by Obligor which
evidence (a) both a monetary obligation and a security interest in specific
goods or (b) a lease of specific goods, and Obligor's rights to payments
thereunder, and any other chattel paper of Obligor as such term is defined in
Article 9 of the Michigan Uniform Commercial Code.
"Collateral" shall mean all property or rights in which a security interest
is granted hereunder or arises pursuant hereto.
"General Intangibles" shall mean any personal property (including things in
action) of Obligor, other than goods, accounts, chattel paper, documents,
instruments and money, and any other general intangibles of Obligor as such term
is defined in Article 9 of the Michigan Uniform Commercial Code.
"Inventory" shall mean all goods, merchandise and other personal property,
now owned or hereafter produced, manufactured or acquired by Obligor which are
held for sale or lease or are furnished or to be furnished under a contract of
service or are raw materials, work in process or materials used or consumed or
to be used or consumed in Obligor's business, and any other inventory of Obligor
as such term is defined in Article 9 of the Michigan Uniform Commercial Code.
"Liabilities" shall mean:
(1) All of Borrower's obligations contained in or arising under or in
connection with the Credit Agreement and the Notes issued by it from time to
time pursuant to the Credit Agreement, the Note Agreements and the Senior Notes
and all obligations of the Borrower and each of the Account Parties contained in
or arising under the other Loan Documents executed by it;
(2) All obligations of Obligor under that certain Second Amended and
Restated Guaranty (Tower-Michigan Debt) dated as of May ___, 1996 and, that
certain Amended and Restated Guaranty (Tower-Indiana Debt) and that certain
Amended and Restated Guaranty (Tower-Kentucky Debt) each executed as of January
16, 1996 by Obligor and others, as each may be amended, restated, supplemented
or replaced from time to time;
(3) All obligations of Obligor under the Subsidiary Guaranties (as defined
in the Note Agreements);
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<PAGE>
(4) All obligations of Borrower under any and all Hedging Transactions (as
defined in the Credit Agreement) entered into by the Borrower pursuant to an
Interest Rate Protection Agreement (as defined in the Credit Agreement) entered
into between the Borrower and any Bank or any Affiliate of a Bank; and
(5) The obligations of Obligor, Borrower or any Account Party for payment
of all sums hereafter loaned, paid out, expended or advanced by or for the
account of the Lenders (or any of them) or by the Collateral Agent under the
terms of this Security Agreement, the Credit Agreement, the Note Agreements, the
Senior Notes, or the other Loan Documents, in connection with the Collateral or
any of the documents or instruments described in this Security Agreement, the
Credit Agreement, the Note Agreement or the other Loan Documents; together with
interest thereon; and also as security for all other indebtedness and
liabilities, whether direct, indirect, absolute or contingent, owing by the
Borrower or any Account Party to the Collateral Agent or the Lenders in any
manner under the Credit Agreement, the Note Agreements, the Senior Notes or the
other Loan Documents, which hereafter become due, or that may hereafter be
incurred by the Borrower or any Account Party to or acquired (pursuant to the
Credit Agreement, the Note Agreements, the Senior Notes or the other Loan
Documents) by the Collateral Agent or the Lenders, and all other future
obligations of the Borrower or any Account Party to the Collateral Agent or the
Lenders, their successors and assigns, howsoever created, arising or evidenced,
whether joint or several, direct or indirect, absolute or contingent, primary or
secondary, and any judgments that may hereafter be rendered on such indebtedness
or any part thereof, with interest according to the rates and terms specified,
or as provided by law, and any and all replacements, consolidations, amendments,
renewals or extensions of the foregoing.
"Michigan Uniform Commercial Code" shall mean Act 174 of the Michigan
Public Acts of 1962, as amended from time to time.
"Obligated Party" shall mean Obligor, Borrower and each Account Party, and
either or any of them.
"Permitted Liens" - see Section 3.
"Tangible Property" shall mean all machinery, equipment, furniture and
other tangible personal property and fixtures of Obligor (including without
limitation any specific items of such property described on any exhibit attached
hereto), together with
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<PAGE>
all accessions, additions, accessories, parts and equipment now or hereafter
affixed thereto or used in connection therewith.
Except as otherwise provided herein, all other terms used in this Security
Agreement shall have the meanings given under Article 9 of the Michigan Uniform
Commercial Code, or in any other article if not defined in Article 9.
2. GRANT OF SECURITY INTEREST. As security for the payment of all
Liabilities, Obligor hereby agrees that Collateral Agent, for the equal and
ratable benefit of the Lenders, shall have and, to that end, assigns and grants
to Collateral Agent, for the equal and ratable benefit of the Lenders, a
continuing security interest in the following: all Tangible Property, Accounts,
General Intangibles, Instruments and Chattel Paper of Obligor, whether now or
hereafter existing or acquired, including, without limitation, all present and
future claims of Obligor for tax refunds, all other present and future
obligations due Obligor and all present and future interests of Obligor in any
goods the sale or lease of which shall have given or shall give rise to any
Accounts, Chattel Paper or Instruments; all present and future Inventory of
Obligor and all documents of title covering any Tangible Property or Inventory;
all records (including computer software) pertaining to the Collateral; and all
products and proceeds (whether cash or non-cash proceeds) of any of the
foregoing, including without limitation insurance and condemnation proceeds.
This grant of a security interest includes, but is not limited to, any specific
Accounts, or other Collateral listed or specified on any schedule now or
hereafter annexed hereto and the proceeds thereof. The creation of a security
interest in proceeds shall not be deemed to give Obligor any right to dispose of
any of the Collateral.
3. WARRANTIES. Obligor warrants to Collateral Agent and the Lenders that:
(a) the Liabilities and every portion thereof will be paid as and when the same
become due; (b) no financing statement (other than any which may have been filed
on behalf of Collateral Agent and financing statements filed with respect to
liens and encumbrances permitted pursuant to the terms of the Agreements (the
"Permitted Liens")) covering any of the Collateral is on file in any public
office; (c) Obligor is and will be the lawful owner of all Collateral, free of
all liens and claims whatsoever, other than the security interest granted
hereunder and the Permitted Liens, and with good right to subject the same to
said security interest and Obligor will not permit any tax lien or other lien or
other security interest other than in favor of Collateral Agent and the Lenders
and the Permitted Liens to attach to the Collateral; (d) all information with
respect to Accounts and Account Debtors set forth in any schedule, certificate
or other writing and all other
5
<PAGE>
written information at any time heretofore or hereafter furnished by Obligor to
Collateral Agent or the Lenders is and will be true and correct as of the date
furnished; (e) the value of the Collateral is as has been represented to
Collateral Agent and the Lenders and the Accounts and Chattel Paper are not
subject to offsets, counterclaims or defaults by the Account Debtors obligated
thereunder materially reducing the aggregate value thereof; (f) the Collateral
and all records concerning the Collateral are located at the place(s) set forth
in Section 10; (g) Obligor's chief executive office is located at the address
set forth opposite Obligor's signature hereto; and (h) all items of Collateral
which are fixtures under applicable law or which are in fact attached to real
estate (including without limitation any specific fixtures described on an
exhibit annexed hereto if applicable) are attached to the real estate described
on an exhibit annexed hereto (if applicable), which exhibit also states the
name(s) and address(es) of the owner(s) of such real estate if not owned by
Obligor.
4. NON-REMITTANCE BASIS LOANS. Unless Collateral Agent (acting in its sole
discretion following any Default) shall notify Obligor that the Liabilities
shall henceforth be on a Remittance Basis, Obligor:
(a) will, at its own expense, endeavor to collect, as and when due,
all amounts due Obligor under the Collateral, including the
taking of such action with respect to such collection as
Collateral Agent may reasonably request, or in the absence of
such request, as Obligor may deem advisable, and may use such
amounts collected in the ordinary course of its business, and
(b) may, in the ordinary course of business, grant to any party
obligated on any of the Collateral, any rebate, refund or
adjustment to which such party may be lawfully entitled, may
accept, in connection therewith, the return of goods, the sale or
lease of which shall have given rise to such Collateral, and may
dispose of such returned goods.
5. REMITTANCE BASIS LOANS. If Collateral Agent shall notify Obligor at
any time following the occurrence of any Default that the Liabilities shall
henceforth be on a Remittance Basis:
(a) Unless Collateral Agent otherwise agrees in writing, Obligor
shall at its sole expense establish and maintain, during the
entire term of this Security Agreement (or until Collateral Agent
6
<PAGE>
acting in its sole discretion, shall notify Obligor that the
Liabilities are no longer required to be on a Remittance Basis) a
United States post office lock box (the "Lock Box"), to which
Collateral Agent shall have exclusive access, and to which
Obligor shall have no access. Obligor expressly authorizes
Collateral Agent, from time to time, to remove all contents from
the Lock Box, for disposition in accordance with this Security
Agreement and the Intercreditor Agreement. Obligor agrees to
notify all Account Debtors and other parties obligated to it that
all payments made on any account, invoice or other Collateral
(other than payments by electronic funds transfers) shall be
remitted, for the credit of Borrower, to the Lock Box, and
Obligor shall include a like statement on all invoices. Payments
made by electronic funds transfer shall be made directly to the
Cash Collateral Account (defined below), and Obligor shall so
instruct its Account Debtors and other parties obligated to it.
Obligor further shall execute all documents, authorizations and
other agreements necessary to establish the Lock Box, and
Collateral Agent's exclusive access thereto.
(b) Whether or not Obligor is required by Collateral Agent to
maintain a Lock Box under this paragraph, any and all cash,
checks, drafts and other instruments for the payment of money
received by Obligor at any time, in full or partial payment of
any of the Collateral (properly endorsed, where required, so that
such items may be collected by Collateral Agent), shall
forthwith, upon receipt, be transmitted and delivered to
Collateral Agent in the form received. Any such items received by
Obligor shall not be commingled with any other of Obligor's funds
or property, but will be held separate and apart from Obligor's
own funds or property, and upon express trust for the benefit of
Collateral Agent until delivery is made to Collateral Agent.
(c) All items or amounts which are remitted to the Lock Box or
otherwise delivered by or for the benefit of Obligor to
Collateral Agent on account of partial or full payment of, or any
other amount payable with respect to, any of the Collateral
shall, at
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<PAGE>
the option of the Collateral Agent and subject to the terms of
the Intercreditor Agreement, (i) be applied to the payment of the
Liabilities, whether then due or not, in such order of
application as set forth in the Intercreditor Agreement, or, (ii)
shall be deposited to the credit of a non-interest bearing
deposit account (the "Cash Collateral Account") to be established
by Obligor with Collateral Agent pursuant to this paragraph, as
security for payment of the Liabilities. Obligor shall have no
right whatsoever to withdraw any funds so deposited. Obligor
further grants to Collateral Agent, for the equal and ratable
benefit of the Lenders, a first security interest in and lien on
all funds on deposit in such account. Collateral Agent shall, on
a daily basis (to the extent Collateral Agent is open for the
conduct of full banking business), apply any collected funds in
the Cash Collateral Account toward payment of the Liabilities,
whether or not then due, in such order of application as set
forth in the Intercreditor Agreement. To the extent collected
funds remain at any time on deposit in the Cash Collateral
Account after payment and discharge in full of the Liabilities
(provided there is then no Default hereunder), Collateral Agent
shall release such surplus collected funds to Obligor. Obligor
hereby irrevocably authorizes and directs Collateral Agent to
endorse all items received for deposit to the Cash Collateral
Account, notwithstanding the inclusion on any such item of a
restrictive notation, e.g., "paid in full", "balance of account",
or other restriction.
(d) Obligor agrees that neither Collateral Agent nor any of the
Lenders shall be liable for any loss or damage which Obligor
suffers or may suffer as a result of Collateral Agent's
processing of items or its exercise of any other rights or
remedies under this Security Agreement, including without
limitation indirect, special or consequential damages, loss of
revenues or profits, or any claim, demand or action by any third
party arising out of or in connection with the processing of
items or the exercise of any other rights or remedies hereunder.
Obligor further agrees to indemnify and hold Collateral Agent and
each of the Lenders harmless from and against all such third
party
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<PAGE>
claims, demands or actions, including without limitation
litigation costs and reasonable attorney fees, provided, however,
the Obligor shall not be obligated to indemnify Collateral Agent
or any Lender with respect to any such claims, demands or actions
arising solely as a result of the gross negligence or willful
misconduct of the Collateral Agent or such Lender, respectively.
6. AGREEMENTS OF OBLIGOR. Obligor will:
(a) take or cause to be taken and execute or cause to be executed all
financing statements, endorsements, assignments and other
writings and do such other acts and things as Collateral Agent or
Majority Lenders may from time to time reasonably request to
establish, maintain and/or continue the perfected and first
priority status of the security interest of Collateral Agent in
the Collateral (free of all other liens (other than Permitted
Liens) and claims whatsoever) to secure payment of the
Liabilities or to implement or further effectuate the terms or
purpose of this Security Agreement, and will on demand pay all
costs and expenses of filing and recording, including the costs
of any record searches, deemed necessary by Collateral Agent from
time to time, to establish or determine the validity and the
priority of Collateral Agent's security interest. Obligor further
makes, constitutes and appoints Collateral Agent its true and
lawful attorney-in-fact with full power of substitution to take
any action in furtherance of this Security Agreement, including,
but not limited to, the signing of financing statements,
endorsing of instruments, and the execution and delivery of all
documents and agreements necessary to obtain or accomplish any
protection for or collection or disposition of any part of the
Collateral. Such appointment shall be deemed irrevocable and
coupled with an interest and may be exercised solely following
the occurrence and during the continuance of a Default hereunder;
(b) keep, at the address designated below for its records, all
records concerning the Collateral, which records will be of such
character as will enable Collateral Agent or its designees to
determine at any time the status of the Collateral,
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<PAGE>
and Obligor will not, unless Collateral Agent shall otherwise
consent in Section 10 below or other writing, duplicate any such
records at any other address;
(c) give Collateral Agent not less than 30 days prior written notice
of all contemplated changes in Obligor's name, legal structure,
or chief executive office, or in the location of the Collateral
or Obligor's records concerning same and, prior to making any
such changes, file or cause to be filed all financing statements
or amendments necessary or appropriate to establish and maintain
a valid first priority security interest in all the Collateral
for Collateral Agent;
(d) furnish Collateral Agent such information concerning Obligor, the
Collateral and the Account Debtors as Collateral Agent may from
time to time reasonably request, including but not limited to
agings of the Accounts and schedules, certificates and reports
respecting the Collateral in such form and detail as Collateral
Agent may specify;
(e) permit Collateral Agent and the Lenders and their designees at
any time and from time to time during normal business hours upon
reasonable notice, to inspect the Collateral and to inspect,
audit and make copies of and extracts from all records and all
other papers in the possession of Obligor pertaining to the
Collateral and the Account Debtors whether the same are located
on Obligor's premises or elsewhere and to take any other
reasonable actions necessary to confirm or ascertain the
existence, condition and value of the Collateral; upon request of
Collateral Agent, deliver to Collateral Agent all such records
and papers; and permit Collateral Agent in accordance with its
normal collateral audit procedures or at any time following the
occurrence and during the continuance of a Default hereunder to
obtain confirmations and information from the Account Debtors as
to the Accounts and Chattel Paper and Obligor's performance with
respect thereto;
(f) upon request of Collateral Agent at any time, or from time to
time, stamp on the Chattel Paper and on Obligor's records
concerning the other
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<PAGE>
Collateral, a notation, in form satisfactory to Collateral Agent,
of the security interest of Collateral Agent hereunder;
(g) immediately upon Collateral Agent's request deliver to Collateral
Agent, appropriately endorsed to the order of Collateral Agent,
any Chattel Paper, note, trade acceptance, check, draft or other
instrument or writing for the payment of money which shall be
received by Obligor and which may at any time evidence any
obligation to Obligor for payment for goods sold or leased or
services rendered;
(h) not create or permit to exist any lien on or security interest in
any Collateral (or any interest therein) to or in favor of anyone
other than Collateral Agent and the Permitted Liens;
(i) not sell, lease, assign, dispose of or agree to dispose of or
otherwise transfer any of the Collateral (or any interest
therein) or remove the same from its present location as set
forth in Section 10 or change the location of its chief executive
office without the written consent of Collateral Agent, except,
prior to any Default, for the sale or lease of Inventory in the
ordinary course of its business and for new value, provided, that
Collateral Agent shall not unreasonably withhold or delay its
consent to any removal of the Collateral or change in the
location of the chief executive office of Obligor and provided
further that Obligor may without the consent of Collateral Agent
sell, transfer or dispose of machinery and equipment which is
obsolete or no longer used in the conduct of Obligor's business
to the extent the book value of the machinery and equipment so
disposed does not exceed $500,000 in the aggregate during any
single calendar year and the net proceeds of such disposition are
paid by Obligor to Collateral Agent for application to the
Liabilities in such order and manner as provided in the
Intercreditor Agreement;
(j) to the extent that a security interest in Inventory or Tangible
Property is granted hereunder, keep such Collateral in good
condition and protect such Collateral from loss, damage or
deterioration and will not materially alter or modify such
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Collateral, and Obligor will maintain insurance on such
Collateral with a company reasonably satisfactory to Collateral
Agent against such risks and in such form and amounts as
Collateral Agent may reasonably require (or if Collateral Agent
shall make no specific requirement, against such risks and in
such amounts as are customary and prudent for businesses similar
to Obligor in size and nature and at least equal to the full
insurable value thereof), such insurance to be payable to Obligor
and Collateral Agent as their interests appear pursuant to loss
payee and/or mortgagee clauses as specified by, and in form
satisfactory to, Collateral Agent. All such insurance shall, by
its terms, provide that no cancellation, lapse (including without
limitation any lapse for non-payment of premiums) or material
change in coverage shall become effective until thirty (30) days
after receipt by Collateral Agent of written notice from the
applicable carrier. Obligor further shall provide Collateral
Agent with evidence satisfactory to Collateral Agent that Obligor
is at all times in compliance with this paragraph. Upon the
occurrence and during the continuance of a Default hereunder or
if Obligor fails to do so diligently and in good faith as
reasonably determined by Collateral Agent, Collateral Agent may
act as Obligor's attorney-in-fact in obtaining, adjusting,
settling and compromising such insurance and endorsing any
drafts. If Obligor fails to provide insurance as above required,
Collateral Agent may, at its option, purchase the same and the
cost thereof (with interest thereon at the highest per annum rate
of interest then borne by any part of the Liabilities) shall be
added to the Liabilities secured hereby. The proceeds of any
insurance on such Collateral may, at the Collateral Agent's
option, be applied to replacement of such Collateral or payment
of the Liabilities, whether due or not;
(k) pay all taxes and assessments applicable to the Collateral before
the assessment of any penalties or interest by any taxing
authority;
(l) reimburse Collateral Agent, on demand, for all costs and
expenses, including without limitation reasonable attorneys' fees
and legal expenses,
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<PAGE>
incurred by Collateral Agent in seeking to perfect, collect,
administer, maintain or enforce any rights or remedies under this
Security Agreement or in respect of the Collateral, the Lock Box
or the Cash Collateral Account, or in connection with any audit
or inspection of the Collateral, and in case of Default, incurred
by Collateral Agent in collecting or attempting to collect the
Liabilities or enforcing or attempting to enforce its rights and
remedies hereunder;
(m) if any of the Collateral (or any records concerning the
Collateral) is located or kept by Obligor on leased premises, (i)
provide a complete and correct copy of all applicable leases to
Collateral Agent, (ii) furnish or cause to be furnished to
Collateral Agent from each landlord under such leases an estoppel
certificate and acknowledgment in form satisfactory to Collateral
Agent confirming the terms of all such leases and authorizing, on
Default, Collateral Agent's entry on such premises to enforce its
rights and remedies under this Security Agreement, and (iii)
comply with all such leases. Obligor's rights under all such
leases shall further be part of the Collateral, and included in
the security interest granted to Collateral Agent hereunder;
(n) not use or permit the use of any of the Collateral for any
unlawful purpose, and will register, use, operate and control the
Collateral in accordance with statutes, laws, ordinances and
regulations relating thereto. Obligor further shall comply in all
material respects at all times with all federal, state and local
environmental protection, toxic substance and other similar laws
and regulations applicable to Obligor's business or to any of the
Collateral or any premises where any of the Collateral is located
(Obligor hereby representing and warranting that, to its
knowledge, after due inquiry, as of the date hereof, it is in
compliance with all such laws and regulations) where such failure
to so comply would reasonably be likely to materially adversely
effect its business or the value of its property or assets (taken
as a whole), and hold harmless and indemnify Collateral Agent
from and against any and all liability or claims asserted against
or suffered by Collateral
13
<PAGE>
Agent as a result of any failure by Obligor to comply with this
paragraph (or any misrepresentation or breach of warranty
hereunder), such indemnity to survive any payoff and discharge of
the Liabilities.
(o) promptly notify Collateral Agent of any after-acquired Collateral
which may be or become fixtures under applicable law, and in such
notice shall state the name(s) and address(es) of the owner(s) of
such real estate if not owned by Obligor. Obligor, at the request
of Collateral Agent, shall furnish Collateral Agent with consents
or acknowledgments from all persons having an interest in the
real estate (such as owners, mortgage holders and lessees,
excluding, however holders of any mortgage which secures
obligations with respect to the Indiana Bonds), consenting to
Collateral Agent's security interest and acknowledging the
priority of Collateral Agent's security interest or disclaiming
any interest in any Collateral described in this paragraph or
Section 3(h).
7. DEFAULT. There shall be a default ("Default") under this Security
Agreement if there shall occur an Event of Default (as such term is defined in
either of the Agreements).
8. REMEDIES UPON DEFAULT. Upon the occurrence of any Default hereunder,
then, or at any time thereafter, unless such Default is remedied, Collateral
Agent may, subject to the terms and conditions of the Intercreditor Agreement:
(a) declare each of the Liabilities (notwithstanding any provisions
thereof), without demand or notice of any kind, immediately due and
payable;
(b) without notice to Obligor, notify any parties obligated on any of
the Collateral to make payment to Collateral Agent, for the ratable
benefit of the Lenders, of any amounts due or to become due thereunder
and enforce collection of any of the Collateral by suit or otherwise
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any indebtedness thereunder or evidenced
thereby. Upon request of Collateral Agent, Obligor will, at its own
expense, notify all Account Debtors and any other parties obligated to
Obligor on any of the
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Collateral to make payment to Collateral Agent of any amounts due or
to become due thereunder; and
(c) take possession of the Collateral and any records concerning same
wherever they may be found, with or without process of law, and at its
option, apply any Collateral against the Liabilities or leave the
Collateral on Obligor's premises (rendering it unusable by any
reasonable means which causes no damage to the Collateral) and dispose
of the Collateral from said premises. Further, if Collateral Agent so
demands, Obligor will, at its own expense, forthwith assemble and
deliver the Collateral or any designated portions thereof (and any
records concerning same) to Collateral Agent at a place designated by
Collateral Agent reasonably convenient for Obligor. Collateral Agent
may, dispose of the Collateral or any portion thereof by public or
private sale (and bid at such sale) or otherwise in any manner
permitted by the Michigan Uniform Commercial Code or other applicable
law. Obligor agrees that Collateral Agent shall have given reasonable
and sufficient notice of such intended disposition if Collateral
Agent, at least seven (7) days prior to the specified date of
disposition, deposits in the mail a letter addressed to Obligor at the
address indicated below, postage prepaid, giving notice of the time,
place and manner of disposition, provided that Obligor agrees that
Collateral Agent shall otherwise be subject to no obligation, express
or implied, to give notice to Obligor of any action taken or withheld
by Collateral Agent. Obligor further acknowledges and agrees that no
such notice need be given by Collateral Agent if Collateral Agent in
its sole discretion determines in good faith that the Collateral is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market.
Collateral Agent shall apply the proceeds of any collection or disposition
of the Collateral (i) to the reasonable expenses of retaking, conserving,
collecting (by suit or otherwise) holding, disposing, preparing for sale,
selling and the like, including reasonable attorneys' fees and legal expenses
incurred, and (ii) then to the satisfaction of the Liabilities to Collateral
Agent and the Lenders secured by the Collateral, the application of proceeds to
the Liabilities to be in such order and manner as set forth in the Intercreditor
Agreement. Collateral Agent shall not be required to examine into the validity
of or to exchange or to collect on any Collateral or to take any action
necessary to hold any corporation,
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issuer or other person or party liable on the Collateral; and diligence in
looking after, preserving, or acting with respect to the Collateral or
collecting the same is hereby waived by Obligor, Collateral Agent's sole duty
with respect thereto being limited to the exercise of reasonable custodial care
of any Collateral in its possession.
9. GENERAL. All notices hereunder shall be provided (and shall be deemed
given) in accordance with Section 11 of the Intercreditor Agreement.
If Collateral Agent has been advised that any of the Collateral is being
acquired with any proceeds of the borrowings secured hereby, Collateral Agent is
hereby authorized to disburse said proceeds directly to the seller of the
Collateral.
Obligor makes, constitutes and appoints Collateral Agent its true and
lawful attorney-in-fact with full power of substitution to take any action in
furtherance of this Security Agreement, including, but not limited to, the
signing of financing statements, endorsing of instruments, and the execution and
delivery of all documents and agreements necessary to obtain or accomplish any
protection for or collection or disposition of any part of the Collateral. Such
appointment shall be deemed irrevocable and coupled with an interest and may be
exercised solely following the occurrence and during the continuance of a
Default hereunder. Without limiting the foregoing Obligor hereby specifically
authorizes Collateral Agent to endorse, negotiate and reduce to cash in the name
of Obligor, any check or other item, howsoever received by Collateral Agent and
whether received before or after any Default, representing any payment on or
other proceeds of any of the Collateral.
Collateral Agent shall not be required to examine into the validity of or
to exchange or to collect on any Collateral or to take any action necessary to
hold any corporation, issuer or other person or party liable on the Collateral;
and diligence in looking after, preserving, or acting with respect to the
Collateral or collecting the same is hereby waived by Obligor, Collateral
Agent's sole duty with respect thereto being limited to the exercise of
reasonable custodial care over any Collateral in its possession.
No delay on the part of Collateral Agent or any Lender in the exercise of
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by Collateral Agent or any Lender of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy.
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<PAGE>
If more than one party shall execute this Security Agreement, the term
"Obligor" shall mean all parties signing this Security Agreement and each or any
of them, and all such parties shall be jointly and severally obligated
hereunder. When used herein, the neuter pronoun shall include the masculine and
feminine and also the plural, and "herein", "hereof" and words of similar import
shall refer to this Security Agreement in its entirety and not to any particular
section or paragraph. If this Security Agreement is not dated when executed by
Obligor, Collateral Agent is authorized, without notice to Obligor, to date this
Security Agreement. Collateral Agent is further authorized to correct obvious or
patent errors in this Security Agreement (provided that it notify Obligor
promptly of such corrections).
This Security Agreement may be amended or modified only in writing duly
signed by Obligor and Collateral Agent. This Security Agreement shall be a
continuing Agreement in every respect (whether or not the outstanding balance
under the Liabilities is reduced to zero) and Collateral Agent's security
interest in the Collateral as granted herein shall continue in full force and
effect until all of the Liabilities are paid in full in cash, no commitment on
the part of any of the Lenders to make advances (whether optional or obligatory)
or loans to any Obligated Party remains in effect or outstanding.
This Security Agreement has been delivered at Detroit, Michigan and shall
be construed in accordance with the laws of the State of Michigan. Whenever
possible each provision of this Security Agreement shall be interpreted in such
manner as to be effective and valid under applicable law but if any provision of
this Security Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Security Agreement.
The rights and privileges granted Collateral Agent hereunder shall inure to
the benefit of its successors and assigns. The rights granted hereunder are
cumulative and in addition to any other rights Collateral Agent may have by
agreement or under applicable law.
10. COLLATERAL AND RECORDS LOCATION(S) (Specify Street Address, County and
State): See attached Exhibit "A".
11. WAIVER OF JURY TRIAL. THE OBLIGOR AND THE COLLATERAL AGENT AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
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<PAGE>
WITH COUNSEL, AND EACH OF THE LENDERS BY THEIR ACCEPTANCE OF THE BENEFITS
HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
SECURITY AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS SECURITY AGREEMENT OR ANY COURSE OF CONDUCT,
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM. NEITHER
THE OBLIGOR NOR THE COLLATERAL AGENT SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM
OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY THE OBLIGOR OR THE COLLATERAL AGENT EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY ALL OF THEM.
12. Obligor and Collateral Agent hereby irrevocably submit to the non-
exclusive jurisdiction of any United States Federal or Michigan state court
sitting in Detroit in any action or proceeding arising out of or relating to
this Security Agreement and Obligor and Collateral Agent hereby irrevocably
agree that all claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state court. Obligor
irrevocably consents to the service of any and all process in any such action or
proceeding brought in any court in or of the State of Michigan by the delivery
of copies of such process to Obligor at its address specified on the signature
page hereto or by certified mail directed to such address or such other address
as may be designated by Obligor in a notice to the other parties that complies
as to delivery with the terms of Section 9. Nothing in this Section shall affect
the right of the Collateral Agent to serve process in any other manner permitted
by law or limit the right of the Collateral Agent to bring any such action or
proceeding against Obligor or any of its property in the courts of any other
jurisdiction. Obligor hereby irrevocably waives any objection to the laying of
venue of any such suit or proceeding in the above described courts.
This Security Agreement amends and restates in its entirety the Prior
Security Agreement, provided, however, nothing contained herein shall impair the
liens and security interests established or continued thereby which liens and
security interests shall continue in full force and effect.
In the event of any conflict between the terms and conditions of this
Security Agreement and the terms and conditions of the Agreements, the terms and
conditions of the Agreements (and, as
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<PAGE>
among the Lenders, but not otherwise, the Intercreditor Agreement) shall govern
and control.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
Chief Executive Office Address:
[ADDRESS] [OBLIGOR], a
__________ corporation
By:___________________________
Anthony A. Barone
County: _________________ Its: Vice President
Accepted and Approved:
COMERICA BANK, as Collateral Agent
By:__________________________
David B. Marvin
Its: Vice President
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<PAGE>
EXHIBIT A
LOCATION OF COLLATERAL AND RECORDS
<TABLE>
<CAPTION>
Owned or If leased,
Address County Leased Landlord
------- ------ -------- ----------
<S> <C> <C> <C> <C>
</TABLE>
21
<PAGE>
EXHIBIT 4.9
Trylon
AMENDED AND RESTATED SECURITY AGREEMENT
---------------------------------------
THIS AMENDED AND RESTATED SECURITY AGREEMENT is made as of this 30th day
of May, 1996, by TRYLON CORPORATION, a Michigan corporation ("Obligor") to
COMERICA BANK, a Michigan banking corporation, in its capacity as collateral
agent for the Lenders (as defined below) of 500 Woodward Avenue, Detroit,
Michigan 48226 (in such capacity, "Collateral Agent").
RECITALS
--------
A. Obligor executed and delivered to Comerica Bank, as agent for the Banks
(defined below) ("Agent"), a Security Agreement dated as of January 16, 1996
(the "Prior Security Agreement"), granting Comerica Bank, as Agent, a security
interest in and lien on Obligor's personal property as security for the
obligations of R.J. Tower Corporation, a Michigan corporation (the "Borrower")
to Comerica Bank, as Agent for the Banks under that certain Third Amended and
Restated Credit Agreement dated as of January 16, 1996, among the Borrower, each
of the financial institutions, including any of such financial institutions
acting as the Swing Line Bank thereunder (collectively, the "Banks") and Agent.
A. Pursuant to the First Amendment to the Third Amended and Restated
Credit Agreement, dated as of May 30, 1996 among the Borrower, the Banks and the
Agent (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), the Banks and the Agent have agreed to amend the Credit
Agreement by, among other things, increasing the Revolving Credit Aggregate
Commitment and making certain other amendments.
B. Pursuant to the separate Note Agreements dated as of May __, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Note
Agreements"), between the Borrower and the Purchasers named in Schedule I
thereto (the "Purchasers") relating to the sale by the Obligor of (a) its
$40,000,000 7.65% Senior Secured Notes, Series A, due June 1, 2006 and (b) its
$25,000,000 7.82% Senior Secured Notes, Series B, due June 1, 2008 issued
thereunder (together, the "Senior Notes") named therein (such Purchasers,
together with all subsequent holders of the Senior Notes, the "Senior Note
Holders"), the Borrower has agreed to sell to such Purchasers the Senior Notes
from Borrower in the aggregate principal amount of Sixty Five Million Dollars
($65,000,000).
<PAGE>
C. Pursuant to and in accordance with the Credit Agreement and the Note
Agreements (together, the "Agreements"), the Banks and the Senior Note Holders
(collectively, with their respective successors and assigns, the "Lenders") have
required that Obligor provide to Agent, as Collateral Agent for the Lenders
according to the terms of the Intercreditor Agreement (as defined below), a
security interest in and lien on Obligor's personal property as security for
Borrower's obligations under the Revolving Credit, the Swing Line, the Credit
Agreement (including any Letters of Credit issued thereunder), the Note
Agreements, the Senior Notes, and the other documents, instruments, certificates
or agreements executed by Borrower pursuant to or in connection with any such
document or the Agreements, as such documents may be amended or otherwise
modified from time to time (collectively herein, the "Loan Documents").
D. Obligor and Agent desire to amend and restate the Prior Security
Agreement to reflect the events set forth in the foregoing recitals.
E. Agent is acting as Collateral Agent for the Lenders pursuant to Section
___ of that certain Intercreditor and Collateral Agency Agreement dated as of
the date hereof by and among Borrower, Agent as Collateral Agent and the Lenders
(as amended supplemented or otherwise modified from time to time, the
"Intercreditor Agreement"). The Intercreditor Agreement sets forth the relative
rights and priorities of the Lenders in and to the Collateral.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS. Unless expressly defined herein, all capitalized terms
used but not defined herein shall have the meanings set forth in the
Intercreditor Agreement and if not defined therein, then as defined in the
Agreements or the other Loan Documents, as applicable. When used herein, the
following terms shall have the following meanings:
"Account Debtor" shall mean the party who is obligated on or under any
Account or Chattel Paper.
"Account" shall mean any right of Obligor to payment for goods sold or
leased or for services rendered, whether or not such right to payment has been
earned by performance, and all interest and service charges thereon, and any
other account of Obligor as such
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<PAGE>
term is defined in Article 9 of the Michigan Uniform Commercial Code.
"Chattel Paper" shall mean any writing or writings owned by Obligor which
evidence (a) both a monetary obligation and a security interest in specific
goods or (b) a lease of specific goods, and Obligor's rights to payments
thereunder, and any other chattel paper of Obligor as such term is defined in
Article 9 of the Michigan Uniform Commercial Code.
"Collateral" shall mean all property or rights in which a security interest
is granted hereunder or arises pursuant hereto.
"General Intangibles" shall mean any personal property (including things in
action) of Obligor, other than goods, accounts, chattel paper, documents,
instruments and money, and any other general intangibles of Obligor as such term
is defined in Article 9 of the Michigan Uniform Commercial Code.
"Inventory" shall mean all goods, merchandise and other personal property,
now owned or hereafter produced, manufactured or acquired by Obligor which are
held for sale or lease or are furnished or to be furnished under a contract of
service or are raw materials, work in process or materials used or consumed or
to be used or consumed in Obligor's business, and any other inventory of Obligor
as such term is defined in Article 9 of the Michigan Uniform Commercial Code.
"Liabilities" shall mean:
(1) All of Borrower's obligations contained in or arising under or in
connection with the Credit Agreement and the Notes issued by it from time to
time pursuant to the Credit Agreement, the Note Agreements and the Senior Notes
and all obligations of the Borrower and each of the Account Parties contained in
or arising under the other Loan Documents executed by it;
(2) All obligations of Obligor under that certain Second Amended and
Restated Guaranty (Tower-Michigan Debt) executed as of May ___, 1996 and that
certain Amended and Restated Guaranty (Tower-Indiana Debt) and that certain
Amended and Restated Guaranty (Tower-Kentucky Debt) each executed as of January
16, 1996 by Obligor and others, as each may be amended, restated, supplemented
or replaced from time to time;
(3) All obligations of Obligor under the Subsidiary Guaranties (as defined
in the Note Agreements);
3
<PAGE>
(4) All obligations of Borrower under any and all Hedging Transactions (as
defined in the Credit Agreement) entered into by the Borrower pursuant to an
Interest Rate Protection Agreement (as defined in the Credit Agreement) entered
into between the Borrower and any Bank or any Affiliate of a Bank; and
(5) The obligations of Obligor, Borrower or any Account Party for payment
of all sums hereafter loaned, paid out, expended or advanced by or for the
account of the Lenders (or any of them) or by the Collateral Agent under the
terms of this Security Agreement, the Credit Agreement, the Note Agreements, the
Senior Notes, or the other Loan Documents, in connection with the Collateral or
any of the documents or instruments described in this Security Agreement, the
Credit Agreement, the Note Agreement or the other Loan Documents; together with
interest thereon; and also as security for all other indebtedness and
liabilities, whether direct, indirect, absolute or contingent, owing by the
Borrower or any Account Party to the Collateral Agent or the Lenders in any
manner under the Credit Agreement, the Note Agreements, the Senior Notes or the
other Loan Documents, which hereafter become due, or that may hereafter be
incurred by the Borrower or any Account Party to or acquired (pursuant to the
Credit Agreement, the Note Agreements, the Senior Notes or the other Loan
Documents) by the Collateral Agent or the Lenders, and all other future
obligations of the Borrower or any Account Party to the Collateral Agent or the
Lenders, their successors and assigns, howsoever created, arising or evidenced,
whether joint or several, direct or indirect, absolute or contingent, primary or
secondary, and any judgments that may hereafter be rendered on such indebtedness
or any part thereof, with interest according to the rates and terms specified,
or as provided by law, and any and all replacements, consolidations, amendments,
renewals or extensions of the foregoing.
"Michigan Uniform Commercial Code" shall mean Act 174 of the Michigan
Public Acts of 1962, as amended from time to time.
"Obligated Party" shall mean Obligor, Borrower and each Account Party, and
either or any of them.
"Permitted Liens" - see Section 3.
"Tangible Property" shall mean all machinery, equipment, furniture and
other tangible personal property and fixtures of Obligor (including without
limitation any specific items of such property described on any exhibit attached
hereto), together with
4
<PAGE>
all accessions, additions, accessories, parts and equipment now or hereafter
affixed thereto or used in connection therewith.
Except as otherwise provided herein, all other terms used in this Security
Agreement shall have the meanings given under Article 9 of the Michigan Uniform
Commercial Code, or in any other article if not defined in Article 9.
2. GRANT OF SECURITY INTEREST. As security for the payment of all
Liabilities, Obligor hereby agrees that Collateral Agent, for the equal and
ratable benefit of the Lenders, shall have and, to that end, assigns and grants
to Collateral Agent, for the equal and ratable benefit of the Lenders, a
continuing security interest in the following: all Tangible Property, Accounts,
General Intangibles, Instruments and Chattel Paper of Obligor, whether now or
hereafter existing or acquired, including, without limitation, all present and
future claims of Obligor for tax refunds, all other present and future
obligations due Obligor and all present and future interests of Obligor in any
goods the sale or lease of which shall have given or shall give rise to any
Accounts, Chattel Paper or Instruments; all present and future Inventory of
Obligor and all documents of title covering any Tangible Property or Inventory;
all records (including computer software) pertaining to the Collateral; and all
products and proceeds (whether cash or non-cash proceeds) of any of the
foregoing, including without limitation insurance and condemnation proceeds.
This grant of a security interest includes, but is not limited to, any specific
Accounts, or other Collateral listed or specified on any schedule now or
hereafter annexed hereto and the proceeds thereof. The creation of a security
interest in proceeds shall not be deemed to give Obligor any right to dispose of
any of the Collateral.
3. WARRANTIES. Obligor warrants to Collateral Agent and the Lenders that:
(a) the Liabilities and every portion thereof will be paid as and when the same
become due; (b) no financing statement (other than any which may have been filed
on behalf of Collateral Agent and financing statements filed with respect to
liens and encumbrances permitted pursuant to the terms of the Agreements (the
"Permitted Liens")) covering any of the Collateral is on file in any public
office; (c) Obligor is and will be the lawful owner of all Collateral, free of
all liens and claims whatsoever, other than the security interest granted
hereunder and the Permitted Liens, and with good right to subject the same to
said security interest and Obligor will not permit any tax lien or other lien or
other security interest other than in favor of Collateral Agent and the Lenders
and the Permitted Liens to attach to the Collateral; (d) all information with
respect to Accounts and Account Debtors set forth in any schedule, certificate
or other writing and all other
5
<PAGE>
written information at any time heretofore or hereafter furnished by Obligor to
Collateral Agent or the Lenders is and will be true and correct as of the date
furnished; (e) the value of the Collateral is as has been represented to
Collateral Agent and the Lenders and the Accounts and Chattel Paper are not
subject to offsets, counterclaims or defaults by the Account Debtors obligated
thereunder materially reducing the aggregate value thereof; (f) the Collateral
and all records concerning the Collateral are located at the place(s) set forth
in Section 10; (g) Obligor's chief executive office is located at the address
set forth opposite Obligor's signature hereto; and (h) all items of Collateral
which are fixtures under applicable law or which are in fact attached to real
estate (including without limitation any specific fixtures described on an
exhibit annexed hereto if applicable) are attached to the real estate described
on an exhibit annexed hereto (if applicable), which exhibit also states the
name(s) and address(es) of the owner(s) of such real estate if not owned by
Obligor.
4. NON-REMITTANCE BASIS LOANS. Unless Collateral Agent (acting in its sole
discretion following any Default) shall notify Obligor that the Liabilities
shall henceforth be on a Remittance Basis, Obligor:
(a) will, at its own expense, endeavor to collect, as and when due,
all amounts due Obligor under the Collateral, including the
taking of such action with respect to such collection as
Collateral Agent may reasonably request, or in the absence of
such request, as Obligor may deem advisable, and may use such
amounts collected in the ordinary course of its business, and
(b) may, in the ordinary course of business, grant to any party
obligated on any of the Collateral, any rebate, refund or
adjustment to which such party may be lawfully entitled, may
accept, in connection therewith, the return of goods, the sale or
lease of which shall have given rise to such Collateral, and may
dispose of such returned goods.
5. REMITTANCE BASIS LOANS. If Collateral Agent shall notify Obligor at
any time following the occurrence of any Default that the Liabilities shall
henceforth be on a Remittance Basis:
(a) Unless Collateral Agent otherwise agrees in writing, Obligor
shall at its sole expense establish and maintain, during the
entire term of this Security Agreement (or until Collateral Agent
6
<PAGE>
acting in its sole discretion, shall notify Obligor that the
Liabilities are no longer required to be on a Remittance Basis) a
United States post office lock box (the "Lock Box"), to which
Collateral Agent shall have exclusive access, and to which
Obligor shall have no access. Obligor expressly authorizes
Collateral Agent, from time to time, to remove all contents from
the Lock Box, for disposition in accordance with this Security
Agreement and the Intercreditor Agreement. Obligor agrees to
notify all Account Debtors and other parties obligated to it that
all payments made on any account, invoice or other Collateral
(other than payments by electronic funds transfers) shall be
remitted, for the credit of Borrower, to the Lock Box, and
Obligor shall include a like statement on all invoices. Payments
made by electronic funds transfer shall be made directly to the
Cash Collateral Account (defined below), and Obligor shall so
instruct its Account Debtors and other parties obligated to it.
Obligor further shall execute all documents, authorizations and
other agreements necessary to establish the Lock Box, and
Collateral Agent's exclusive access thereto.
(b) Whether or not Obligor is required by Collateral Agent to
maintain a Lock Box under this paragraph, any and all cash,
checks, drafts and other instruments for the payment of money
received by Obligor at any time, in full or partial payment of
any of the Collateral (properly endorsed, where required, so that
such items may be collected by Collateral Agent), shall
forthwith, upon receipt, be transmitted and delivered to
Collateral Agent in the form received. Any such items received by
Obligor shall not be commingled with any other of Obligor's funds
or property, but will be held separate and apart from Obligor's
own funds or property, and upon express trust for the benefit of
Collateral Agent until delivery is made to Collateral Agent.
(c) All items or amounts which are remitted to the Lock Box or
otherwise delivered by or for the benefit of Obligor to
Collateral Agent on account of partial or full payment of, or any
other amount payable with respect to, any of the Collateral
shall, at
7
<PAGE>
the option of the Collateral Agent and subject to the terms of
the Intercreditor Agreement, (i) be applied to the payment of the
Liabilities, whether then due or not, in such order of
application as set forth in the Intercreditor Agreement, or, (ii)
shall be deposited to the credit of a non-interest bearing
deposit account (the "Cash Collateral Account") to be established
by Obligor with Collateral Agent pursuant to this paragraph, as
security for payment of the Liabilities. Obligor shall have no
right whatsoever to withdraw any funds so deposited. Obligor
further grants to Collateral Agent, for the equal and ratable
benefit of the Lenders, a first security interest in and lien on
all funds on deposit in such account. Collateral Agent shall, on
a daily basis (to the extent Collateral Agent is open for the
conduct of full banking business), apply any collected funds in
the Cash Collateral Account toward payment of the Liabilities,
whether or not then due, in such order of application as set
forth in the Intercreditor Agreement. To the extent collected
funds remain at any time on deposit in the Cash Collateral
Account after payment and discharge in full of the Liabilities
(provided there is then no Default hereunder), Collateral Agent
shall release such surplus collected funds to Obligor. Obligor
hereby irrevocably authorizes and directs Collateral Agent to
endorse all items received for deposit to the Cash Collateral
Account, notwithstanding the inclusion on any such item of a
restrictive notation, e.g., "paid in full", "balance of account",
or other restriction.
(d) Obligor agrees that neither Collateral Agent nor any of the
Lenders shall be liable for any loss or damage which Obligor
suffers or may suffer as a result of Collateral Agent's
processing of items or its exercise of any other rights or
remedies under this Security Agreement, including without
limitation indirect, special or consequential damages, loss of
revenues or profits, or any claim, demand or action by any third
party arising out of or in connection with the processing of
items or the exercise of any other rights or remedies hereunder.
Obligor further agrees to indemnify and hold Collateral Agent and
each of the Lenders harmless from and against all such third
party
8
<PAGE>
claims, demands or actions, including without limitation
litigation costs and reasonable attorney fees, provided, however,
the Obligor shall not be obligated to indemnify Collateral Agent
or any Lender with respect to any such claims, demands or actions
arising solely as a result of the gross negligence or willful
misconduct of the Collateral Agent or such Lender, respectively.
6. AGREEMENTS OF OBLIGOR. Obligor will:
(a) take or cause to be taken and execute or cause to be executed all
financing statements, endorsements, assignments and other
writings and do such other acts and things as Collateral Agent or
Majority Lenders may from time to time reasonably request to
establish, maintain and/or continue the perfected and first
priority status of the security interest of Collateral Agent in
the Collateral (free of all other liens (other than Permitted
Liens) and claims whatsoever) to secure payment of the
Liabilities or to implement or further effectuate the terms or
purpose of this Security Agreement, and will on demand pay all
costs and expenses of filing and recording, including the costs
of any record searches, deemed necessary by Collateral Agent from
time to time, to establish or determine the validity and the
priority of Collateral Agent's security interest. Obligor further
makes, constitutes and appoints Collateral Agent its true and
lawful attorney-in-fact with full power of substitution to take
any action in furtherance of this Security Agreement, including,
but not limited to, the signing of financing statements,
endorsing of instruments, and the execution and delivery of all
documents and agreements necessary to obtain or accomplish any
protection for or collection or disposition of any part of the
Collateral. Such appointment shall be deemed irrevocable and
coupled with an interest and may be exercised solely following
the occurrence and during the continuance of a Default hereunder;
(b) keep, at the address designated below for its records, all
records concerning the Collateral, which records will be of such
character as will enable Collateral Agent or its designees to
determine at any time the status of the Collateral,
9
<PAGE>
and Obligor will not, unless Collateral Agent shall otherwise
consent in Section 10 below or other writing, duplicate any such
records at any other address;
(c) give Collateral Agent not less than 30 days prior written notice
of all contemplated changes in Obligor's name, legal structure,
or chief executive office, or in the location of the Collateral
or Obligor's records concerning same and, prior to making any
such changes, file or cause to be filed all financing statements
or amendments necessary or appropriate to establish and maintain
a valid first priority security interest in all the Collateral
for Collateral Agent;
(d) furnish Collateral Agent such information concerning Obligor, the
Collateral and the Account Debtors as Collateral Agent may from
time to time reasonably request, including but not limited to
agings of the Accounts and schedules, certificates and reports
respecting the Collateral in such form and detail as Collateral
Agent may specify;
(e) permit Collateral Agent and the Lenders and their designees at
any time and from time to time during normal business hours upon
reasonable notice, to inspect the Collateral and to inspect,
audit and make copies of and extracts from all records and all
other papers in the possession of Obligor pertaining to the
Collateral and the Account Debtors whether the same are located
on Obligor's premises or elsewhere and to take any other
reasonable actions necessary to confirm or ascertain the
existence, condition and value of the Collateral; upon request of
Collateral Agent, deliver to Collateral Agent all such records
and papers; and permit Collateral Agent in accordance with its
normal collateral audit procedures or at any time following the
occurrence and during the continuance of a Default hereunder to
obtain confirmations and information from the Account Debtors as
to the Accounts and Chattel Paper and Obligor's performance with
respect thereto;
(f) upon request of Collateral Agent at any time, or from time to
time, stamp on the Chattel Paper and on Obligor's records
concerning the other
10
<PAGE>
Collateral, a notation, in form satisfactory to Collateral Agent,
of the security interest of Collateral Agent hereunder;
(g) immediately upon Collateral Agent's request deliver to Collateral
Agent, appropriately endorsed to the order of Collateral Agent,
any Chattel Paper, note, trade acceptance, check, draft or other
instrument or writing for the payment of money which shall be
received by Obligor and which may at any time evidence any
obligation to Obligor for payment for goods sold or leased or
services rendered;
(h) not create or permit to exist any lien on or security interest in
any Collateral (or any interest therein) to or in favor of anyone
other than Collateral Agent and the Permitted Liens;
(i) not sell, lease, assign, dispose of or agree to dispose of or
otherwise transfer any of the Collateral (or any interest
therein) or remove the same from its present location as set
forth in Section 10 or change the location of its chief executive
office without the written consent of Collateral Agent, except,
prior to any Default, for the sale or lease of Inventory in the
ordinary course of its business and for new value, provided, that
Collateral Agent shall not unreasonably withhold or delay its
consent to any removal of the Collateral or change in the
location of the chief executive office of Obligor and provided
further that Obligor may without the consent of Collateral Agent
sell, transfer or dispose of machinery and equipment which is
obsolete or no longer used in the conduct of Obligor's business
to the extent the book value of the machinery and equipment so
disposed does not exceed $500,000 in the aggregate during any
single calendar year and the net proceeds of such disposition are
paid by Obligor to Collateral Agent for application to the
Liabilities in such order and manner as provided in the
Intercreditor Agreement;
(j) to the extent that a security interest in Inventory or Tangible
Property is granted hereunder, keep such Collateral in good
condition and protect such Collateral from loss, damage or
deterioration and will not materially alter or modify such
11
<PAGE>
Collateral, and Obligor will maintain insurance on such
Collateral with a company reasonably satisfactory to Collateral
Agent against such risks and in such form and amounts as
Collateral Agent may reasonably require (or if Collateral Agent
shall make no specific requirement, against such risks and in
such amounts as are customary and prudent for businesses similar
to Obligor in size and nature and at least equal to the full
insurable value thereof), such insurance to be payable to Obligor
and Collateral Agent as their interests appear pursuant to loss
payee and/or mortgagee clauses as specified by, and in form
satisfactory to, Collateral Agent. All such insurance shall, by
its terms, provide that no cancellation, lapse (including without
limitation any lapse for non-payment of premiums) or material
change in coverage shall become effective until thirty (30) days
after receipt by Collateral Agent of written notice from the
applicable carrier. Obligor further shall provide Collateral
Agent with evidence satisfactory to Collateral Agent that Obligor
is at all times in compliance with this paragraph. Upon the
occurrence and during the continuance of a Default hereunder or
if Obligor fails to do so diligently and in good faith as
reasonably determined by Collateral Agent, Collateral Agent may
act as Obligor's attorney-in-fact in obtaining, adjusting,
settling and compromising such insurance and endorsing any
drafts. If Obligor fails to provide insurance as above required,
Collateral Agent may, at its option, purchase the same and the
cost thereof (with interest thereon at the highest per annum rate
of interest then borne by any part of the Liabilities) shall be
added to the Liabilities secured hereby. The proceeds of any
insurance on such Collateral may, at the Collateral Agent's
option, be applied to replacement of such Collateral or payment
of the Liabilities, whether due or not;
(k) pay all taxes and assessments applicable to the Collateral before
the assessment of any penalties or interest by any taxing
authority;
(l) reimburse Collateral Agent, on demand, for all costs and
expenses, including without limitation reasonable attorneys' fees
and legal expenses,
12
<PAGE>
incurred by Collateral Agent in seeking to perfect, collect,
administer, maintain or enforce any rights or remedies under this
Security Agreement or in respect of the Collateral, the Lock Box
or the Cash Collateral Account, or in connection with any audit
or inspection of the Collateral, and in case of Default, incurred
by Collateral Agent in collecting or attempting to collect the
Liabilities or enforcing or attempting to enforce its rights and
remedies hereunder;
(m) if any of the Collateral (or any records concerning the
Collateral) is located or kept by Obligor on leased premises, (i)
provide a complete and correct copy of all applicable leases to
Collateral Agent, (ii) furnish or cause to be furnished to
Collateral Agent from each landlord under such leases an estoppel
certificate and acknowledgment in form satisfactory to Collateral
Agent confirming the terms of all such leases and authorizing, on
Default, Collateral Agent's entry on such premises to enforce its
rights and remedies under this Security Agreement, and (iii)
comply with all such leases. Obligor's rights under all such
leases shall further be part of the Collateral, and included in
the security interest granted to Collateral Agent hereunder;
(n) not use or permit the use of any of the Collateral for any
unlawful purpose, and will register, use, operate and control the
Collateral in accordance with statutes, laws, ordinances and
regulations relating thereto. Obligor further shall comply in all
material respects at all times with all federal, state and local
environmental protection, toxic substance and other similar laws
and regulations applicable to Obligor's business or to any of the
Collateral or any premises where any of the Collateral is located
(Obligor hereby representing and warranting that, to its
knowledge, after due inquiry, as of the date hereof, it is in
compliance with all such laws and regulations) where such failure
to so comply would reasonably be likely to materially adversely
effect its business or the value of its property or assets (taken
as a whole), and hold harmless and indemnify Collateral Agent
from and against any and all liability or claims asserted against
or suffered by Collateral
13
<PAGE>
Agent as a result of any failure by Obligor to comply with this
paragraph (or any misrepresentation or breach of warranty
hereunder), such indemnity to survive any payoff and discharge of
the Liabilities.
(o) promptly notify Collateral Agent of any after-acquired Collateral
which may be or become fixtures under applicable law, and in such
notice shall state the name(s) and address(es) of the owner(s) of
such real estate if not owned by Obligor. Obligor, at the request
of Collateral Agent, shall furnish Collateral Agent with consents
or acknowledgments from all persons having an interest in the
real estate (such as owners, mortgage holders and lessees,
excluding, however holders of any mortgage which secures
obligations with respect to the Indiana Bonds), consenting to
Collateral Agent's security interest and acknowledging the
priority of Collateral Agent's security interest or disclaiming
any interest in any Collateral described in this paragraph or
Section 3(h).
7. DEFAULT. There shall be a default ("Default") under this Security
Agreement if there shall occur an Event of Default (as such term is defined in
either of the Agreements).
8. REMEDIES UPON DEFAULT. Upon the occurrence of any Default hereunder,
then, or at any time thereafter, unless such Default is remedied, Collateral
Agent may, subject to the terms and conditions of the Intercreditor Agreement:
(a) declare each of the Liabilities (notwithstanding any provisions
thereof), without demand or notice of any kind, immediately due and
payable;
(b) without notice to Obligor, notify any parties obligated on any of
the Collateral to make payment to Collateral Agent, for the ratable
benefit of the Lenders, of any amounts due or to become due thereunder
and enforce collection of any of the Collateral by suit or otherwise
and surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer
than the original period) any indebtedness thereunder or evidenced
thereby. Upon request of Collateral Agent, Obligor will, at its own
expense, notify all Account Debtors and any other parties obligated to
Obligor on any of the
14
<PAGE>
Collateral to make payment to Collateral Agent of any amounts due or
to become due thereunder; and
(c) take possession of the Collateral and any records concerning same
wherever they may be found, with or without process of law, and at its
option, apply any Collateral against the Liabilities or leave the
Collateral on Obligor's premises (rendering it unusable by any
reasonable means which causes no damage to the Collateral) and dispose
of the Collateral from said premises. Further, if Collateral Agent so
demands, Obligor will, at its own expense, forthwith assemble and
deliver the Collateral or any designated portions thereof (and any
records concerning same) to Collateral Agent at a place designated by
Collateral Agent reasonably convenient for Obligor. Collateral Agent
may, dispose of the Collateral or any portion thereof by public or
private sale (and bid at such sale) or otherwise in any manner
permitted by the Michigan Uniform Commercial Code or other applicable
law. Obligor agrees that Collateral Agent shall have given reasonable
and sufficient notice of such intended disposition if Collateral
Agent, at least seven (7) days prior to the specified date of
disposition, deposits in the mail a letter addressed to Obligor at the
address indicated below, postage prepaid, giving notice of the time,
place and manner of disposition, provided that Obligor agrees that
Collateral Agent shall otherwise be subject to no obligation, express
or implied, to give notice to Obligor of any action taken or withheld
by Collateral Agent. Obligor further acknowledges and agrees that no
such notice need be given by Collateral Agent if Collateral Agent in
its sole discretion determines in good faith that the Collateral is
perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market.
Collateral Agent shall apply the proceeds of any collection or disposition
of the Collateral (i) to the reasonable expenses of retaking, conserving,
collecting (by suit or otherwise) holding, disposing, preparing for sale,
selling and the like, including reasonable attorneys' fees and legal expenses
incurred, and (ii) then to the satisfaction of the Liabilities to Collateral
Agent and the Lenders secured by the Collateral, the application of proceeds to
the Liabilities to be in such order and manner as set forth in the Intercreditor
Agreement. Collateral Agent shall not be required to examine into the validity
of or to exchange or to collect on any Collateral or to take any action
necessary to hold any corporation,
15
<PAGE>
issuer or other person or party liable on the Collateral; and diligence in
looking after, preserving, or acting with respect to the Collateral or
collecting the same is hereby waived by Obligor, Collateral Agent's sole duty
with respect thereto being limited to the exercise of reasonable custodial care
of any Collateral in its possession.
9. GENERAL. All notices hereunder shall be provided (and shall be deemed
given) in accordance with Section 11 of the Intercreditor Agreement.
If Collateral Agent has been advised that any of the Collateral is being
acquired with any proceeds of the borrowings secured hereby, Collateral Agent is
hereby authorized to disburse said proceeds directly to the seller of the
Collateral.
Obligor makes, constitutes and appoints Collateral Agent its true and
lawful attorney-in-fact with full power of substitution to take any action in
furtherance of this Security Agreement, including, but not limited to, the
signing of financing statements, endorsing of instruments, and the execution and
delivery of all documents and agreements necessary to obtain or accomplish any
protection for or collection or disposition of any part of the Collateral. Such
appointment shall be deemed irrevocable and coupled with an interest and may be
exercised solely following the occurrence and during the continuance of a
Default hereunder. Without limiting the foregoing Obligor hereby specifically
authorizes Collateral Agent to endorse, negotiate and reduce to cash in the name
of Obligor, any check or other item, howsoever received by Collateral Agent and
whether received before or after any Default, representing any payment on or
other proceeds of any of the Collateral.
Collateral Agent shall not be required to examine into the validity of or
to exchange or to collect on any Collateral or to take any action necessary to
hold any corporation, issuer or other person or party liable on the Collateral;
and diligence in looking after, preserving, or acting with respect to the
Collateral or collecting the same is hereby waived by Obligor, Collateral
Agent's sole duty with respect thereto being limited to the exercise of
reasonable custodial care over any Collateral in its possession.
No delay on the part of Collateral Agent or any Lender in the exercise of
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by Collateral Agent or any Lender of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy.
16
<PAGE>
If more than one party shall execute this Security Agreement, the term
"Obligor" shall mean all parties signing this Security Agreement and each or any
of them, and all such parties shall be jointly and severally obligated
hereunder. When used herein, the neuter pronoun shall include the masculine and
feminine and also the plural, and "herein", "hereof" and words of similar import
shall refer to this Security Agreement in its entirety and not to any particular
section or paragraph. If this Security Agreement is not dated when executed by
Obligor, Collateral Agent is authorized, without notice to Obligor, to date this
Security Agreement. Collateral Agent is further authorized to correct obvious or
patent errors in this Security Agreement (provided that it notify Obligor
promptly of such corrections).
This Security Agreement may be amended or modified only in writing duly
signed by Obligor and Collateral Agent. This Security Agreement shall be a
continuing Agreement in every respect (whether or not the outstanding balance
under the Liabilities is reduced to zero) and Collateral Agent's security
interest in the Collateral as granted herein shall continue in full force and
effect until all of the Liabilities are paid in full in cash, no commitment on
the part of any of the Lenders to make advances (whether optional or obligatory)
or loans to any Obligated Party remains in effect or outstanding.
This Security Agreement has been delivered at Detroit, Michigan and shall
be construed in accordance with the laws of the State of Michigan. Whenever
possible each provision of this Security Agreement shall be interpreted in such
manner as to be effective and valid under applicable law but if any provision of
this Security Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Security Agreement.
The rights and privileges granted Collateral Agent hereunder shall inure to
the benefit of its successors and assigns. The rights granted hereunder are
cumulative and in addition to any other rights Collateral Agent may have by
agreement or under applicable law.
10. COLLATERAL AND RECORDS LOCATION(S) (Specify Street Address, County and
State): See attached Exhibit "A".
11. WAIVER OF JURY TRIAL. THE OBLIGOR AND THE COLLATERAL AGENT AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT
17
<PAGE>
WITH COUNSEL, AND EACH OF THE LENDERS BY THEIR ACCEPTANCE OF THE BENEFITS
HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
SECURITY AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS SECURITY AGREEMENT OR ANY COURSE OF CONDUCT,
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM. NEITHER
THE OBLIGOR NOR THE COLLATERAL AGENT SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM
OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE
PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY THE OBLIGOR OR THE COLLATERAL AGENT EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY ALL OF THEM.
12. Obligor and Collateral Agent hereby irrevocably submit to the non-
exclusive jurisdiction of any United States Federal or Michigan state court
sitting in Detroit in any action or proceeding arising out of or relating to
this Security Agreement and Obligor and Collateral Agent hereby irrevocably
agree that all claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state court. Obligor
irrevocably consents to the service of any and all process in any such action or
proceeding brought in any court in or of the State of Michigan by the delivery
of copies of such process to Obligor at its address specified on the signature
page hereto or by certified mail directed to such address or such other address
as may be designated by Obligor in a notice to the other parties that complies
as to delivery with the terms of Section 9. Nothing in this Section shall affect
the right of the Collateral Agent to serve process in any other manner permitted
by law or limit the right of the Collateral Agent to bring any such action or
proceeding against Obligor or any of its property in the courts of any other
jurisdiction. Obligor hereby irrevocably waives any objection to the laying of
venue of any such suit or proceeding in the above described courts.
This Security Agreement amends and restates in its entirety the Prior
Security Agreement, provided, however, nothing contained herein shall impair the
liens and security interests established or continued thereby which liens and
security interests shall continue in full force and effect.
In the event of any conflict between the terms and conditions of this
Security Agreement and the terms and conditions of the Agreements, the terms and
conditions of the Agreements (and, as
18
<PAGE>
among the Lenders, but not otherwise, the Intercreditor Agreement) shall govern
and control.
19
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
Chief Executive Office Address:
1974 Cass-Hartman Court TRYLON CORPORATION, a Michigan
Traverse City, MI corporation
By: /s/ Anthony A. Barone
___________________________
Anthony A. Barone
County: _________________ Its: Vice President
Accepted and Approved:
COMERICA BANK, as Collateral Agent
By: /s/ David B. Marvin
__________________________
David B. Marvin
Its: Vice President
20
<PAGE>
EXHIBIT A
LOCATIONS OF COLLATERAL AND RECORDS
<TABLE>
<CAPTION>
If Leased,
Owned or name of
Address County Leased Landlord
------- ------ -------- ----------
<S> <C> <C> <C>
1974 Cass-Hartman Grand Traverse Owned
Traverse City, MI
6303 28th St. S.E. Kent Leased Wolverine
Grand Rapids, MI 49546 Corp.
Lansing, MI
</TABLE>
21
<PAGE>
EXHIBIT 4.10
SECOND AMENDED AND RESTATED CONTINUING COLLATERAL MORTGAGE
----------------------------------------------------------
This Second Amended and Restated Continuing Collateral Mortgage
("Mortgage") is made as of May 30, 1996 by _________________________________, a
______________ corporation ("Mortgagor"), located at [ADDRESS], to Comerica
Bank, in its capacity as Collateral Agent for and on behalf of the Lenders (as
defined below) ("Mortgagee"), located at 500 Woodward Avenue, Detroit, Michigan
48226.
RECITALS:
---------
A. Mortgagor executed and delivered to Comerica Bank a certain Continuing
Collateral Mortgage dated as of _______________ and recorded on _______________,
in _________________________________________________________, granting Comerica
Bank a security interest in and mortgage lien on certain real property described
on attached Exhibit "A", as security for the obligations of Tower Acquisition
Corp., a Delaware corporation ("Acquisition") to Comerica Bank under that
certain Credit Agreement dated as of April 15, 1993 by and between Acquisition
and Comerica Bank, which was amended and restated in its entirety by that
certain Amended and Restated Credit Agreement dated as of May 4, 1994 by and
between R.J. Tower Corporation, a Michigan corporation ("Company"), as successor
in interest by reason of merger to Acquisition, and Comerica Bank, which was
subsequently amended and restated in its entirety by that certain Second Amended
and Restated Credit Agreement dated as of June 29, 1994, as amended (the "Prior
Credit Agreement").
B. Thereafter Mortgagor executed and delivered to Comerica Bank, as agent
for the Banks (defined below) ("Agent"), an Amended and Restated Continuing
Collateral Mortgage dated as of January 16, 1996 and recorded on _____________,
in ____________________________________________________, (the "Prior Mortgage"),
granting Comerica Bank, as Agent, a security interest in and mortgage lien on
the real property described on attached Exhibit "A" for the obligations of
Company to Comerica Bank, as Agent for the lenders under that certain Third
Amended and Restated Credit Agreement dated as of January 16, 1996 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Company, each of the financial institutions, including any of such
financial institutions acting as the Swing Line Bank thereunder (collectively,
the "Banks") and Agent.
C. Pursuant to the First Amendment to the Third Amended and Restated
Credit Agreement dated as of May 30, 1996 among the Company, the Banks and the
Agent, the Banks and the Agent have
<PAGE>
agreed to amend the Credit Agreement by, among other things, increasing the
Revolving Credit Aggregate Commitment and making certain other amendments.
D. Pursuant to the separate Note Agreements dated as of May 31, 1996 (as
such agreements may be amended, supplemented or otherwise modified from time to
time, the "Note Agreements"), between the Company and the Purchasers named in
Schedule I thereto (the "Purchasers") relating to the sale by the Company (a)
its $40,000,000 7.65% Senior Secured Notes, Series A, due June 1, 2006 and (b)
its $25,000,000 7.82% Senior Secured Notes, Series B, due June 1, 2008 issued
thereunder (together, the "Senior Notes") named therein (such Purchasers,
together with all subsequent holders of the Senior Notes, the "Senior Note
Holders"), the Company has agreed to sell to such Purchasers the Senior Notes
from Company in the aggregate principal amount of Sixty Five Million Dollars
($65,000,000).
E. Pursuant to and in accordance with the Credit Agreement and the Note
Agreements (together, the "Agreements"), the Banks and the Senior Note Holders
(collectively, with their respective successors and assigns, the "Lenders") have
required that Mortgagor provide to Agent, as Collateral Agent for the Lenders
according to the terms of the Intercreditor Agreement (as defined below), a
security interest in and mortgage lien on the real estate described on attached
Exhibit "A" as security for Company's obligations under the Revolving Credit,
the Swing Line, the Credit Agreement (including any Letters of Credit issued
thereunder), the Note Agreements, the Senior Notes, and the other documents,
instruments, certificates or agreements executed by Company pursuant to or in
connection with any such document or the Agreements, as such documents may be
amended or otherwise modified from time to time (collectively herein, the "Loan
Documents").
F. Mortgagor and Collateral Agent desire to amend and restate the Prior
Mortgage to reflect the events set forth in the foregoing recitals.
G. Agent is acting as Collateral Agent for the Lenders pursuant to Section
___ of that certain Intercreditor and Collateral Agency Agreement dated as of
May 31, 1996 by and among Company, Agent as Collateral Agent and the Lenders
(as amended from time to time, the "Intercreditor Agreement").
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
2
<PAGE>
THIS IS A FUTURE ADVANCE MORTGAGE.
This Mortgage is made to secure all of the following (individually and
collectively the "Several Obligations"):
1. All of Company's obligations contained in or arising under or in
connection with the Credit Agreement and the Notes issued by it from time to
time pursuant to the Credit Agreement, the Note Agreements and the Senior Notes
and all obligations of the Company and each of the Account Parties contained in
or arising under the other Loan Documents executed by it;
2. All obligations of Company under any and all Hedging Transactions
(as defined in the Credit Agreement) entered into by the Company pursuant to an
Interest Rate Protection Agreement (as defined in the Credit Agreement) entered
into between the Company and any Bank or any Affiliate of a Bank;
3. All obligations of Mortgagor under that certain Second Amended and
Restated Guaranty (Tower-Michigan Debt) executed as of May 30, 1996 and that
certain Amended and Restated Guaranty (Tower-Kentucky Debt) executed as of
January 16, 1996 by Mortgagor and others, as each may be amended, restated,
supplemented or replaced from time to time;
4. All obligations of Mortgagor under the Subsidiary Guaranties (as
such term is defined in the Note Agreement); and
5. The obligations of Company or any Account Party for payment of all
sums hereafter loaned, paid out, expended or advanced by or for the account of
the Lenders (or any of them) or by the Mortgagee under the terms of this
Mortgage, the Credit Agreement, the Note Agreements, the Senior Notes or the
other Loan Documents, in connection with any of the documents or instruments
described in this Mortgage, the Credit Agreement, the Note Agreements or the
other Loan Documents; together with interest thereon; and also as security for
all other indebtedness and liabilities, whether direct, indirect, absolute or
contingent, owing by the Company or any Account Party to the Collateral Agent or
the Lenders in any manner under the Credit Agreement, the Note Agreements, the
Senior Notes or the Loan Documents, which hereafter become due, or that may
hereafter be incurred by the Company or any Account Party to or acquired
(pursuant to the Credit Agreement, the Note Agreements, the Senior Notes or the
other Loan Documents) by the Collateral Agent or the Lenders, and all other
future obligations of the Company or any Account Party to the Collateral Agent
or the Lenders, their
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successors and assigns, howsoever created, arising or evidenced, whether joint
or several, direct or indirect, absolute or contingent, primary or secondary,
and any judgments that may hereafter be rendered on such indebtedness or any
part thereof, with interest according to the rates and terms specified, or as
provided by law, and any and all replacements, consolidations, amendments,
renewals or extensions of the foregoing.
As security for the purposes stated above and elsewhere in this Mortgage, the
Mortgagor mortgages and warrants to the Mortgagee, its successors and assigns,
the lands, premises and property in the City of Auburn, County of Dekalb, in the
State of Indiana, described as follows:
Legal Description:
See Exhibit A
Commonly known as: ________________________________.
Together with:
(a) all of Mortgagor's interest, if any, in and to related easements, rights-
of-way, licenses and privileges;
(b) all of Mortgagor's interest, if any, in and to buildings and improvements
now or later situated under, upon or over the above described land or any
part of it;
(c) all of Mortgagor's interest, if any, in and to the tenements,
hereditaments, appurtenances, reversions and remainders belonging or
pertaining to the above described land and also all other estate, right,
title, and interest of the Mortgagor in and to the above described land;
(d) all the rents, issues, profits, license fees, revenues, charges, accounts
and general intangibles arising from the above described land, or
relating to any business conducted by the Mortgagor on it, under present
or future leases, licenses or otherwise, which are specifically assigned
and transferred to the Mortgagee including, without limit, all rights
conferred by Indiana law;
(e) all right, title and interest of the Mortgagor, if any, in and to the
land lying in the bed of any street, road, avenue, alley or walkway,
opened or proposed or vacated, adjoining the above described land;
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(f) all machinery, apparatus, equipment, goods, fittings, fixtures, and
articles of personal property of every kind and nature to the extent
constituting fixtures under applicable law, now or later located in or
upon the above described land and used or useable in connection with any
present or future operation of the land or any building or buildings now
or later on the land and now owned or later acquired by the Mortgagor
(individually and collectively the "equipment") including, without limit,
all lighting, heating, cooling, ventilating, air-conditioning,
incinerating, refrigerating, plumbing, sprinkling, communicating and
electrical systems, and the related machinery, appliances, fixtures and
equipment, and all of the right, title and interest of the Mortgagor in
and to any equipment which may be subjected to any title retention or
security agreement superior in lien to the lien of this Mortgage. It is
understood and agreed that all equipment is part and parcel of the
mortgaged premises and appropriated to the use of the said real estate
and, whether affixed or annexed or not, shall for the purposes of this
Mortgage, unless the Mortgagee shall otherwise elect, be deemed
conclusively to be real estate and mortgaged under this Mortgage; and
(g) subject to Paragraphs 4, 8 and 41 hereof, any and all awards or payments,
including without limit interest on them, and the right to receive them,
which may be made with respect to the mortgaged premises as a result of
(i) the exercise of the right of eminent domain, (ii) the alteration of
the grade of any street, (iii) any loss of or damage to any building or
other improvement on the above described land, (iv) any other injury to
or decrease in the value of the mortgaged premises, (v) any refund due on
account of the payment of real estate taxes, assessments or other charges
levied against or imposed upon the mortgaged premises or (vi) any refund
of utility deposits or right to any tenant deposit. The reasonable
attorneys fees, costs and disbursements incurred by the Mortgagee in
connection with the collection of these awards or payments shall be
additional Several Obligations secured by this Mortgage. The Mortgagor
agrees to execute and deliver, from time to time, further instruments as
reasonably may be requested by the Mortgagee to confirm the assignment to
the Mortgagee, for the equal and ratable benefit of the Lenders, of these
awards and payments.
Any reference in this Mortgage to the "mortgaged premises" shall, unless the
context requires otherwise, be deemed to include and
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apply to the above described land, buildings, improvements, equipment, rents,
issues, profits, leases, easements, tenements, hereditaments, and appurtenances,
awards, payments and all other rights, privileges and interests described above.
Without limiting in any way the Several Obligations secured by this Mortgage, it
is agreed that this Mortgage secures future advances under Act No. 348 of the
Michigan Public Acts, as amended. The Mortgagor, on a continuing basis,
warrants, covenants and agrees to and with the Mortgagee for the benefit of the
Lenders, which covenants, warranties and agreements, to the extent permitted by
law, shall be deemed to run with the land, as follows:
1. The Mortgagor will pay to the Lenders all Several Obligations, subject to
the terms of the Intercreditor Agreement, according to the terms of the
relevant instruments or agreements evidencing it, and the Mortgagor
agrees that this Mortgage is a continuing mortgage securing the payment
of the Several Obligations; provided, however, upon final and irrevocable
payment in full of the Several Obligations and termination of any
commitment on the part of the Lenders to extend credit accommodations to
or on behalf of Mortgagor, Mortgagee agrees to execute and deliver to
Mortgagor a release of this Mortgage in recordable form.
2. The Mortgagor has good and indefeasible title to the entire mortgaged
premises in fee simple and with good right and full power to sell,
mortgage and convey it; the mortgaged premises are free and clear of all
easements, restrictions, liens, leases and encumbrances whether now
existing or later created, except for Permitted Encumbrances and those
matters listed on attached Exhibit B (if any) to which this Mortgage is
expressly subject, and the Mortgagor will warrant and defend the
mortgaged premises against all other claims and demands whatsoever.
Subject to the terms of the Intercreditor Agreement, the Mortgagee shall
have the right, at such time or times as it, in its reasonable
discretion, deems necessary, to take whatever action it may deem
necessary to defend or uphold the lien of this Mortgage or otherwise
enforce any of the rights of the Mortgagee and the Lenders under this
Mortgage or any obligation secured by this Mortgage including, without
limit, the right to institute appropriate legal proceedings for these
purposes.
3. Except as otherwise provided in the Agreements or the Intercreditor
Agreement, the Mortgagor shall pay prior to becoming delinquent and
before any interest, collection fees or penalties accrue or default
occurs, all taxes, assessments, encumbrances, liens, mortgages, water or
sewer
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charges and other charges and impositions levied, assessed or existing
with respect to the mortgaged premises or any part of it, and will
deliver to the Mortgagee without demand official receipts showing these
payments. Subject to Mortgagor's right to contest payment of these
amounts in accordance with the terms of the Agreements and the
Intercreditor Agreement, if the Mortgagor fails to pay these taxes,
assessments, encumbrances, liens, mortgages, charges and impositions when
due, or if the Mortgagor fails to pay all interest, collection fees and
penalties accrued on them, the Mortgagee, at its sole option, may,
subject to the terms of the Intercreditor Agreement, (but is not
obligated to) pay them and the monies paid shall be a lien upon the
mortgaged premises added to the amount secured by this Mortgage and
payable immediately by the Mortgagor to the Mortgagee, with interest at
the higher of (i) the interest rate, if any, charged by the particular
entity levying or assessing the tax, assessment or imposition or holding
the encumbrance or lien, or (ii) the highest rate charged by the Lenders
on any of the Several Obligations (but in either case not to exceed the
maximum interest rate permitted by applicable law).
At the request of the Mortgagee, subject to the terms of the
Intercreditor Agreement, made any time following the occurrence of an
event of default under this Mortgage, the Mortgagor shall pay to the
Mortgagee in advance on the first day of each month a pro rata portion
(as reasonably determined by the Mortgagee) of all taxes, assessments,
liens, encumbrances, mortgages, and other charges levied, assessed or
existing on the mortgaged premises. In the event that sufficient funds
have been deposited with the Mortgagee to cover the amount of these
taxes, assessments, liens, encumbrances, mortgages, and other charges
when they become due and payable, the Mortgagee shall pay the same when
due and payable. In the event that sufficient funds have not been
deposited to cover the amount of these taxes, assessments, liens,
encumbrances, mortgages and other charges at least thirty (30) days prior
to the time when they become due and payable, the Mortgagor shall
immediately upon request by the Mortgagee pay the amount of the
deficiency to the Mortgagee. The Mortgagee shall not be required to keep
any such deposits in a separate account or to pay the Mortgagor any
interest or earnings whatever on the funds held by the Mortgagee for the
payment of taxes, assessments, liens, encumbrances, mortgages, or other
charges pursuant to this paragraph or for the payment of insurance
premiums under paragraph (4) below, or on any
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other funds deposited with the Mortgagee in connection with this
Mortgage. If an event of default occurs under this Mortgage, any funds
then remaining on deposit with the Mortgagee may be applied in a manner
consistent with the terms of the Intercreditor Agreement, against the
Several Obligations immediately upon or at any time after the event of
default occurs, and without notice to the Mortgagor. Further, the
Mortgagee may, subject to the terms of the Intercreditor Agreement, make
payments from any funds on deposit with the Mortgagee for taxes,
assessments, liens, encumbrances, mortgages, or other charges on or with
respect to the mortgaged premises notwithstanding that subsequent owners
of the premises may benefit as a result. The Mortgagor shall not, and
nothing in this Mortgage shall be construed to give the Mortgagor the
right to, mortgage or pledge the mortgaged premises or any part of it as
security for any other indebtedness or obligations. Nothing in this
paragraph shall be considered a consent by the Mortgagee or the Lenders
to any lien, mortgage or encumbrance on the mortgaged premises except the
Permitted Encumbrances and those matters set forth on attached Exhibit B,
if any.
4. The Mortgagor shall keep the buildings and all other improvements now or
later existing on the mortgaged premises constantly insured for the
benefit of the Mortgagee and the Lenders against fire and other hazards
and risks, including without limit vandalism and malicious mischief, as
the Mortgagee may reasonably require and shall further provide flood
insurance (if the mortgaged premises are situated in an area which is
considered a flood risk area by the United States Department of Housing
and Urban Development, and in which flood insurance has been made
available under the National Flood Insurance Act of 1968, as amended),
loss of rents insurance, public liability and product liability insurance
and any other insurance as the Mortgagee may reasonably require from time
to time, all in amounts and in forms and with companies as are reasonably
satisfactory to the Mortgagee and the Lenders. The Mortgagor shall
deliver to the Mortgagee the policies evidencing the required insurance
with premiums fully paid for one year in advance and with standard
mortgagee clauses (making all loss payable to the Mortgagee on behalf of
the Lenders) satisfactory to the Mortgagee and the Lenders. Renewals of
the required insurance (together with evidence of premium prepayment for
one year in advance) shall be delivered to the Mortgagee at least thirty
(30) days before the expiration of any existing policies. All policies
and renewals shall provide that they may not be canceled or amended
without giving the Mortgagee
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<PAGE>
thirty (30) days prior written notice of cancellation or amendment. All
policies and renewals shall be held by, and are pledged to, the Mortgagee
for the equal and ratable benefit of the Lenders, along with all
insurance premium rebates, as additional security for the Several
Obligations. Should the Mortgagor fail to insure or fail to pay the
premiums on any required insurance or fail to deliver the policies or
renewals of them as provided above, the Mortgagee may (but is not
obligated to) have the insurance issued or renewed (and pay the premiums
on it for the account of the Mortgagor) in amounts and with companies and
at premiums as the Mortgagee and the Lenders reasonably deem appropriate.
If the Mortgagee elects to have insurance issued or renewed to insure the
Mortgagee's interest, the Mortgagee shall have no duty or obligation of
any kind to also insure the Mortgagor's interest. Any premiums or other
sums paid by the Mortgagee for insurance as provided above shall be a
lien upon the mortgaged premises added to the amount secured by this
Mortgage and payable immediately, with interest on those sums at the
highest rate charged by the Lenders on any of the Several Obligations
(but not to exceed the maximum interest rate permitted by applicable
law). In the event of loss or damage, the proceeds of all required
insurance shall be paid to the Mortgagee for the equal and ratable
benefit of the Lenders, alone. No loss or damage shall itself reduce the
Several Obligations. The Mortgagee and any of its employees is each
irrevocably appointed attorney-in-fact for the Mortgagor and is
authorized to adjust and compromise each loss without the consent of the
Mortgagor, to collect, receive and receipt for the insurance proceeds in
the name of the Mortgagee and the Mortgagor and to endorse the
Mortgagor's name upon any check in payment of the loss. The proceeds
shall be applied first toward reimbursement of all costs and expenses of
the Mortgagee in collecting the proceeds (including, without limit, court
costs and reasonable attorneys' fees), and then, subject to the terms of
the Intercreditor Agreement, toward payment of the Several Obligations or
any portion of it, whether or not then due or payable, or the Mortgagee,
at its option, with the consent of the Lenders pursuant to the terms of
the Intercreditor Agreement, may apply the insurance proceeds, or any
part of them, to the repair or rebuilding of the mortgaged premises. In
the event of a foreclosure of this Mortgage, or the giving of a deed in
lieu of foreclosure, the purchaser or grantee of the mortgaged premises
shall succeed to all of the rights of the Mortgagor under said insurance
policies including, without limit, any right to unearned premiums and to
receive the
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proceeds. At the request of the Mortgagee made any time following the
occurrence of an event of default under this Mortgage, the Mortgagor
shall pay to the Mortgagee in advance on the first day of each month the
equivalent of one-twelfth (1/12th) of the annual premiums (as reasonably
estimated by the Mortgagee) due on the required insurance, but with an
initial payment which together with subsequent monthly payments will be
sufficient to pay the estimated annual premiums as provided in this
paragraph. In the event that sufficient funds have been deposited with
the Mortgagee to cover the amount of the insurance premiums for required
insurance when the premiums become due and payable, the Mortgagee shall
pay the premiums when the same are due and payable. In the event that
sufficient funds have not been deposited with the Mortgagee to pay the
insurance premiums at least thirty (30) days prior to the time when they
become due and payable, the Mortgagor shall immediately upon request pay
the amount of this deficiency to the Mortgagee.
5. [Reserved]
6. The Mortgagor shall abstain from commission of waste upon the mortgaged
premises, keep the buildings, improvements and equipment on the mortgaged
premises in good repair, ordinary wear and tear, damage by fire or other
casualty and takings by eminent domain excepted and promptly comply in
all material respects with all laws, regulations and requirements of all
governmental bodies affecting the mortgaged premises the enforcement of
which, if Mortgagor were not in compliance, would reasonably be expected
to materially adversely affect the value or use of the mortgaged
premises. If the Mortgagee determines that the mortgaged premises, or any
part of it, requires inspection, testing, appraisal, repair, care,
alteration or attention of any kind or nature, not provided to the
Mortgagee's satisfaction by the Mortgagor, the Mortgagee after such
notice to Mortgagor as is reasonable under the circumstances as
determined in good faith by the Mortgagee, may (but is not obligated to)
enter or cause entry to be made upon the mortgaged premises, and inspect,
test, appraise, repair, alter or maintain the mortgaged premises as the
Mortgagee may deem necessary, and the Mortgagor shall reimburse the
Mortgagee upon demand for all resulting costs and expenses incurred by
the Mortgagee. Following the occurrence and during the continuance of an
event of default hereunder, the Mortgagee may pay sums of money as the
Mortgagee deems essential for the preservation of the mortgaged premises,
and these sums shall be additional Several Obligations
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secured by this Mortgage, shall be payable by the Mortgagor to the
Mortgagee for the equal and ratable benefit of the Lenders upon demand,
and shall bear interest at the highest rate charged by the Lenders to the
Mortgagor on any of the Several Obligations (but not to exceed the
maximum interest rate under applicable law). The failure of Mortgagor to
pay any taxes or assessments assessed against the mortgaged premises, or
any installment of them, or any premiums payable with respect to any
insurance policy covering the mortgaged premises, shall constitute waste
(although the meaning of "waste" shall not be limited to this
nonpayment). The Mortgagor consents to the appointment of a receiver
should the Mortgagee seek this relief. The Mortgagor shall not make or
permit any other party to make any alterations, additions or improvements
of any type to the mortgaged premises the cost of which, individually or
in the aggregate exceeds $500,000 (individually and collectively the
"Improvements"), regardless of whether the Improvements would increase
the value of the mortgaged premises, without the Mortgagee's and the
Lenders' prior written consent, which consent shall not unreasonably be
withheld, conditioned or delayed. If the Mortgagee and the Lenders
consent to the making of any Improvements on the mortgaged premises, and
the Improvements are not completed with due diligence in accordance with
the plans and specifications approved in writing by the Mortgagee and the
Lenders, or if construction of the Improvements should cease before
completion for a period of thirty (30) days, then and in either event it
shall be an event of default under this Mortgage and the Mortgagee shall
have all the rights and remedies provided in this Mortgage upon an event
of default, and all the rights and remedies set forth in this paragraph
6, including without limitation, the right (but not the obligation) to
enter or cause entry to be made upon the mortgaged premises and complete
the Improvements, with full power and authority to enter into such
contracts or agreements as the Mortgagee may deem necessary to complete
the Improvements.
7. Subject to Mortgagor's right to contest payment of these amounts in
accordance with the terms of the Credit Agreement and the Note
Agreements, and subject to the terms of the Intercreditor Agreement, the
Mortgagor shall pay (before the same become liens, encumbrances or
charges against the mortgaged premises) any and all obligations,
liabilities or debts for repairs or improvements to the mortgaged
premises or for any other goods, services, or utilities furnished to the
mortgaged premises. The Mortgagor shall not mortgage or
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<PAGE>
pledge the mortgaged premises or any part of it as security for any other
indebtedness or obligations.
8. In the event the mortgaged premises, or any part of it, is taken under
power of eminent domain, or by condemnation, the entire proceeds of the
award shall be paid directly to the Mortgagee for the equal and ratable
benefit of the Lenders and applied first toward reimbursement of all the
Mortgagee's costs and expenses incurred in connection with collecting the
award (including, without limit, court costs and reasonable attorneys'
fees), and the second, balance applied upon the Several Obligations
whether or not then due or payable as set forth in the Intercreditor
Agreement. During the continuance of an event of default hereunder or if
Mortgagor fails to take such action as the Mortgagee reasonably may
require with respect thereto, the Mortgagee or any of its employees is
irrevocably appointed attorney-in-fact and is duly authorized and
empowered to receive, receipt for, discharge and satisfy any condemnation
award and judgment, whether joint or several, on behalf of the Mortgagor,
his legal representatives and assigns. This receipt, discharge and
satisfaction shall be as legally effective and binding as if given
directly by the Mortgagor; provided, however, that neither the Mortgagee
nor any Lender shall be liable for failure to collect any condemnation
award, regardless of the cause of such failure.
9. The Several Obligations secured by this Mortgage shall become due and
payable immediately, without notice, at the option of the Mortgagee and
the Lenders, if the Mortgagor shall convey, assign or transfer the
mortgaged premises or any part of it by deed, land contract or other
instrument without the consent of Mortgagee and the Lenders, which
consent may be withheld in the sole discretion of Mortgagee and the
Lenders, or if title to the mortgaged premises or any part of it shall
become vested in any other person or party in any manner whatsoever
without the consent of Mortgagee and the Lenders, which consent may be
withheld in the sole discretion of the Mortgagee and the Lenders. In the
event ownership of the mortgaged premises or any part of it becomes
vested in a person or persons other than the Mortgagor (without the prior
written approval of the Mortgagee and the [Lenders] as aforesaid), the
Mortgagee may (but shall not be obligated to) deal with and may enter
into any contract or agreement with the successor or successors in
interest with reference to this Mortgage in the same manner as with the
Mortgagor, without in any manner vitiating, discharging or otherwise
affecting the lien of
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this Mortgage or the Mortgagor's liability under this Mortgage or upon
the Several Obligations.
10. This Mortgage shall, as to any equipment, fixtures and other personal
property constituting fixtures under applicable law, be deemed to grant a
security interest in the equipment, fixtures, accounts, general
intangibles and other personal property pursuant to the Uniform
Commercial Code. The Mortgagor agrees, upon request of the Mortgagee from
time to time, to promptly furnish a list of personal property owned by
the Mortgagor and subject to this Mortgage and, upon request by the
Mortgagee, to immediately execute, deliver and/or file any mortgage and
any amendments to this Mortgage, any separate security agreement and any
financing statements to include specifically this list of personal
property. Upon the occurrence of any event of default under this
Mortgage, the Mortgagee shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code or otherwise provided by
law or by this Mortgage including, without limit, the right to require
the Mortgagor to assemble the personal property and make it available to
the Mortgagee at a place to be designated by the Mortgagee which is
reasonably convenient to both parties, the right to take possession of
the personal property with or without demand and with or without process
of law and the right to sell and dispose of it and distribute the
proceeds according to law. The Mortgagor agrees that any requirement of
reasonable notice shall be met if the Mortgagee sends notice to the
Mortgagor at least five (5) days prior to the date of sale, disposition
or other event giving rise to the required notice. The Mortgagor agrees
that the proceeds of any disposition of the personal property may be
applied by the Mortgagee first to the Mortgagee's reasonable expenses in
connection with the disposition including, without limit, reasonable
attorneys' fees and legal expenses, and then to payment of the Several
Obligations as set forth in the Intercreditor Agreement.
11. As additional security for the payment of the Several Obligations and
performance of this Mortgage, the Mortgagor assigns to the Mortgagee for
the equal and ratable benefit of the Lenders all its right, title and
interest in and to all written and oral leases and occupancy agreements,
now or later existing, covering the mortgaged premises or any part of it
(but without an assumption by the Mortgagee or the Lenders of liabilities
of the Mortgagor under any of these leases or occupancy agreements by
virtue of this assignment), and the Mortgagor assigns to the Mortgagee
for
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the equal and ratable benefit of the Lenders, the rents, issues and
profits of the mortgaged premises. Prior to the occurrence of an event of
default under this Mortgage, Mortgagor shall have a license to collect
all rents arising from the mortgaged premises. If an event of default
occurs under this Mortgage, the Mortgagee may receive and collect the
rents, issues and profits personally or through a receiver so long as the
event of default exists and during the pendency of any foreclosure
proceedings and during any redemption period. The Mortgagor agrees to
consent to the appointment of a receiver if this is believed necessary or
desirable by the Mortgagee to enforce its rights under this Mortgage. The
Mortgagee shall at no time have any obligation whatever to attempt to
collect rent or other amounts from any tenant or occupier of the
mortgaged premises notwithstanding that such tenants and occupiers may
not be paying rent or other amounts to either the Mortgagor or to the
Mortgagee. Further, the Mortgagee shall at no time have any obligation
whatever to enforce any other obligations owed by tenants or occupiers of
the mortgaged premises to the Mortgagor. No action taken by the Mortgagee
or any Lender under this Mortgage shall make the Mortgagee or any Lender
a "mortgagee in possession." The Mortgagor shall at no time collect
advance rent more than thirty (30) days in advance under any lease or
occupancy agreement pertaining to the mortgaged premises or any part of
it in excess of one month (other than as a security deposit) and the
Mortgagee shall not be bound in any respect by any rent prepayment made
or received in violation of this prohibition. As additional security for
the Several Obligations, the Mortgagor assigns to the Mortgagee for the
benefit of the Lenders all of the Mortgagor's rights and interest, if
any, in all licenses and permits affecting the mortgaged premises. This
assignment shall not be construed as a consent by the Mortgagee to any
license or permit so assigned, or to impose upon Mortgagee any
obligations with respect to any license or permit. The Mortgagor shall
not cancel or amend any of the licenses and permits assigned (nor permit
any of them to terminate if they are necessary or desirable for the
operation of the mortgaged premises) without first obtaining the written
approval of the Mortgagee and the Lenders, which approval shall not
unreasonably be withheld, conditioned or delayed. This paragraph shall
not be applicable to any license or permit that terminates if it is
assigned without the consent of another party (other than the Mortgagor)
or its issuer, unless this consent has been obtained or this assignment
is ratified by the other party or issuer; nor shall this
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paragraph be construed as a present assignment of any license or permit
that the Mortgagor is required by law to hold in order to operate the
mortgaged premises.
12. As additional security for the Several Obligations, the Mortgagor grants
a security interest to the Mortgagee and the Lenders in all deposit or
other accounts with the Mortgagee and the Lenders.
13. In the event any tax shall be due with respect to the execution and
delivery or recordation of this Mortgage or any note or other instrument
evidencing or securing repayment of the Several Obligations or the
interest of the Mortgagee in the mortgaged premises, whether levied
against the Mortgagee or otherwise, the Mortgagor shall pay this tax at
the time and in the manner required by applicable law. The Mortgagor
shall hold the Mortgagee and the Lenders harmless and shall indemnify the
Mortgagee and the Lenders against all liability of any nature whatever as
a result of the imposition of this tax. In the event payment by the
Mortgagor of this tax would result in the payment of interest in excess
of the permitted rate, then the Mortgagor shall have no obligation to pay
the portion of the tax resulting in this excess; provided, however, that
in this event the Lenders may declare the entire principal balance of the
Several Obligations, premium, if any, and accrued interest on it,
immediately due and payable.
14. (a) In the event this Mortgage is foreclosed or the Mortgagor tenders a
deed in lieu of foreclosure, the Mortgagor shall deliver the
mortgaged premises to the Mortgagee, purchaser or grantee, as the
case may be, in material compliance with all Environmental Laws.
(b) Upon the Mortgagee's receipt of any notice from any source asserting
the release of any Hazardous Materials or an Environmental Complaint
pertaining to the mortgaged premises which, if true, could
reasonably be expected to result in an order, suit or other action
against the Mortgagor and/or any part of the mortgaged premises
which could reasonably be expected to materially jeopardize
Mortgagee's and the Lenders' security under this Mortgage and upon
ten (10) days notice to the Mortgagor (except in an emergency or
where not practical under applicable law, in which case notice is
waived), and without limitation of the Mortgagee's other rights
under this Mortgage or elsewhere, the Mortgagee has the right,
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<PAGE>
but not the obligation, to enter on the mortgaged premises and to
take other actions as it deems appropriate to investigate or test
for, clean up, remove, resolve, minimize the impact of or, as
required by law, advise governmental agencies of the possible
release of any Hazardous Materials or a notice of any violation of
Environmental Laws ("Environmental Complaint"). All reasonable costs
and expenses incurred by the Mortgagee in the exercise of any of
these rights shall be secured by this Mortgage and shall be payable
by the Mortgagor upon demand. Any such actions conducted by the
Mortgagee shall be solely for the benefit of and to protect the
interests of the Mortgagee and the Lenders and shall not be relied
upon by the Mortgagor or any third party for any purpose whatsoever.
By conducting any such actions, the Mortgagee does not assume
control over the environmental affairs or operations of the
Mortgagor nor assume any liability of the Mortgagor or any third
party.
(c) The provisions of this paragraph (14) shall be in addition to any
and all other obligations and liabilities the Mortgagor may have to
the Mortgagee and the Lenders at common law or pursuant to any other
agreement. The indemnification obligations contained in part (b) of
this paragraph (14) shall survive (i) the repayment of all sums due
under any note or other loan documents executed in connection with
this Mortgage and the repayment of all other Several Obligations,
(ii) the satisfaction of all other obligations of the Mortgagor
under this Mortgage and under the other loan documents and
evidence(s) of indebtedness, (iii) the discharge of this Mortgage,
and (iv) the foreclosure of this Mortgage or acceptance of a deed in
lieu of foreclosure.
(d) For purposes of this Mortgage, (i) "Hazardous Materials" means each
and all of the following: hazardous materials and/or substances as
defined in any Environmental Law, petroleum, petroleum by-products,
natural gas, flammable explosives, radioactive materials, and toxic
materials, and (ii) "Environmental Laws" mean any and all federal,
state, local or other laws (whether under common law or by
legislative action), rules, ordinances, court or agency, orders,
statutes, or regulations an object of which is to regulate or
improve health, safety, or the
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environment including, without limit, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 USC 9601 et seq.), the Resource Conservation and
Recovery Act, as amended (42 USC 6901 et seq.).
15. The Mortgagor shall comply with and perform in the time required all
obligations and restrictions imposed upon the Mortgagor or the mortgaged
premises under applicable deed restrictions, restrictive covenants,
easements or other agreements affecting the mortgaged premises the
enforcement of which, if Mortgagor were not in compliance, would
reasonably be expected to materially adversely affect the
value or use of the mortgaged premises, but this is not a consent by the
Mortgagee to take subject to any of these agreements unless specifically
set forth on attached Exhibit B, if any, and the Mortgagee does not
assume any obligations under these agreements.
16. If the Mortgagor fails to perform in the time and manner (subject to any
applicable cure periods) required the covenants and agreements contained
in this Mortgage, or if any action or proceeding is threatened or
commenced which materially and adversely affects the Mortgagee's and the
Lenders' interest in the mortgaged premises including, without limit,
eminent domain, environmental, bankruptcy, insolvency, building, or
zoning proceedings, then the Mortgagee, upon such notice as is reasonable
under the circumstances as determined in good faith by the Mortgagee, at
its option may make such appearances, disburse such sums and take such
action as is deemed necessary by the Mortgagee to protect the Mortgagee's
and the Lenders' interest and the Mortgagor will reimburse the Mortgagee
upon demand for all reasonable sums disbursed and costs incurred
including, without limit, reasonable attorneys' fees and costs of entry
upon the mortgaged premises to effect repairs. The Mortgagee shall not be
liable in any case for failure to exercise its rights or for failure to
continue exercising its rights once having exercised them.
17. No waiver or forbearance by the Mortgagee of any right or remedy under
this Mortgage shall affect or extend to or be deemed a waiver of any
other right or remedy of the Mortgagee or any Lender under this Mortgage
nor affect or impair the subsequent exercise of the same right or remedy
by the Mortgagee or any Lender for any future or subsequent default by
the Mortgagor under this Mortgage.
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18. All remedies provided in this Mortgage are distinct and cumulative to any
other right or remedy under this Mortgage, any other agreement or
afforded by law, and may be exercised concurrently, independently or
successively.
19. The occurrence of any of the following events shall be deemed an event of
default under this Mortgage and shall entitle the Mortgagee to exercise
its remedies under this Mortgage or as otherwise provided by law:
(a) Default by the Mortgagor in making payment when due, by acceleration
or otherwise, of any principal portion of or interest on the Several
Obligations or any part of it and continuation beyond any applicable
period of cure;
(b) The occurrence of an Event of Default, as defined in the Credit
Agreement or the Note Agreements;
(c) Any warranty or representation made, given or furnished to the
Mortgagee or any of the Lenders by or on behalf of the Mortgagor or
any guarantor shall be, or shall prove to be or have been materially
false or materially misleading when made, given or furnished.
20. If the Mortgagee at any time(s) shall incur or expend any sums in
accordance with the terms of this Mortgage, including, without limit,
court costs and reasonable attorneys' fees, whether or not in connection
with any suit, action or proceeding, to sustain the lien of this Mortgage
or its priority, or to protect the value of the mortgaged premises, or to
protect or enforce or otherwise administer any of its rights under this
Mortgage, or to recover any of the Several Obligations, or for any
appraisal, environmental audit, title examination or title insurance
policy relating to the mortgaged premises, or otherwise in any way
relating to this Mortgage or the Several Obligations including, without
limit, sums reasonably expended in connection with any suit involving the
conduct of the Mortgagor or the Mortgagee with respect to this Mortgage
or the Several Obligations, all of these sums shall on demand be paid by
the Mortgagor to the Mortgagee, together with the interest on these sums
at the highest rate charged by the Lenders on any of the Several
Obligations (but not to exceed the maximum interest rate permitted by
applicable law), and shall be a lien on the mortgaged premises and
secured by this Mortgage.
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21. In the event of any foreclosure or other sale under this Mortgage by
virtue of judicial proceedings, advertisement, or otherwise, the
mortgaged premises may be sold in one parcel and as an entirety, or in
such parcels, manner or order as the Mortgagee may subject to the terms
of the Intercreditor Agreement, elect.
22. Without limiting when a prepayment premium may be due, it is agreed that
at any time after acceleration a tender of payment of the amount
necessary to satisfy all Several Obligations by the Mortgagor, or by
anyone on behalf of the Mortgagor or otherwise, must include any
applicable prepayment premium or formula.
23. Immediately upon the occurrence of any Event of Default (as defined in
the Agreements) and during the continuance thereof, the Mortgagee shall
have the option, in addition to and not in substitution for all other
rights and remedies provided in this Mortgage or other agreement or by
law, and is authorized by the Mortgagor, subject to the terms of the
Intercreditor Agreement, to do any or all of the following:
(a) Declare the entire unpaid amount of the Several Obligations,
together with accrued and unpaid interest on it and any applicable
prepayment premium or formula, and any and all other charges payable
by the Mortgagor to the Mortgagee or the Lenders to be immediately
due and payable and, at the Mortgagee's option (i) to bring suit for
the same, (ii) to bring suit for any delinquent payment of or upon
the Several Obligations, or (iii) to take any and all steps and
institute any and all other proceedings that the Mortgagee deems
necessary to enforce payment of the Several Obligations and
performance of other obligations secured under this Mortgage and to
protect the lien of this Mortgage.
(b) Commence foreclosure proceedings against the mortgaged premises
through judicial proceedings or by advertisement, at the option of
the Mortgagee, pursuant to applicable law. The commencement by the
Mortgagee of foreclosure proceedings shall be deemed an exercise by
the Mortgagee of its option to accelerate the Several Obligations,
unless such proceedings on their face specifically indicate
otherwise. The Mortgagor grants power to the Mortgagee to sell the
mortgaged premises or to cause the same to be sold at public sale,
and to convey the same to the
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<PAGE>
purchaser, in accordance with
applicable statutes in a single parcel or in several parcels at the
option of the Mortgagee.
WARNING: THIS MORTGAGE CONTAINS A POWER OF SALE AND UPON DEFAULT MAY BE
FORECLOSED BY ADVERTISEMENT. IN FORECLOSURE BY ADVERTISEMENT AND THE
RELATED SALE OF THE MORTGAGED PREMISES, NO HEARING IS REQUIRED AND THE
ONLY NOTICE REQUIRED IS TO PUBLISH NOTICE IN A LOCAL NEWSPAPER AND TO
POST A COPY OF THE NOTICE ON THE MORTGAGED PREMISES. THE MORTGAGOR WAIVES
ALL RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES AND UNDER
THE CONSTITUTION AND LAWS OF THE STATE OF INDIANA TO A HEARING PRIOR TO
SALE IN CONNECTION WITH FORECLOSURE BY ADVERTISEMENT AND ALL NOTICE
REQUIREMENTS EXCEPT AS SET FORTH IN THE INDIANA STATUTE PROVIDING FOR
FORECLOSURE BY ADVERTISEMENT.
(c) Cause to be updated an abstract or abstracts and tax histories of
the mortgaged premises, procure title insurance or title reports and
procure new abstracts and tax histories.
(d) Obtain a receiver to manage the mortgaged premises and collect the
rents, profits and income from it.
(e) Enter upon the mortgaged premises and take other actions as the
Mortgagee reasonably deems appropriate to investigate or test for
the presence of any Hazardous Materials and/or to appraise the
mortgaged premises. Without limiting what other rights and remedies
of the Mortgagee are specifically enforceable, the Mortgagor agrees
that the Mortgagee's rights under this paragraph (23)(e) are
specifically enforceable since there is no adequate monetary remedy
available to the Mortgagee.
(f) Contest the amount or validity of any taxes applicable to the
mortgaged premises by appropriate proceedings either in the
Mortgagee's name, the Mortgagor's name or jointly with the
Mortgagor. The Mortgagor shall execute and deliver to the Mortgagee,
upon demand, whatever documents and information the Mortgagee
determines may be necessary or proper to so contest the taxes or to
secure payment of any resulting refund. The Mortgagor shall
reimburse the Mortgagee for all reasonable costs and expenses,
including without limit reasonable attorneys' fees, incurred in
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connection with each tax contest proceeding. All refunds resulting
from each tax contest proceeding shall belong to the Mortgagee to be
applied against the Several Obligations in the manner provided in
the Intercreditor Agreement with the surplus, if any, to be paid to
the Mortgagor. The Mortgagee and any of its employees is each
irrevocably appointed attorney- in-fact for the Mortgagor and is
authorized to execute and deliver in the name of the Mortgagor those
documents deemed necessary or proper by the Mortgagee to carry out
any tax contest proceeding or receive the resulting refunds, if any.
(g) In the event of any sale of the mortgaged premises by foreclosure,
through judicial proceedings, by advertisement or otherwise, apply
the proceeds of any such sale in the manner provided in the
Intercreditor Agreement.
24. If any provision of this Mortgage is in conflict with any statute or rule
of law or is otherwise unenforceable for any reason, then that provision
shall be deemed null and void to the extent of the conflict or
unenforceability and shall be deemed severable, but shall not invalidate
any other provision of this Mortgage.
25. In the event of foreclosure of this Mortgage or the enforcement by the
Mortgagee of any other rights and remedies under this Mortgage, the
Mortgagor waives any right otherwise available in respect to marshalling
of assets which secure the Several Obligations or to require the
Mortgagee to pursue its remedies against any other assets or any other
party which may be liable for any of the Several Obligations.
26. Promptly upon the reasonable request of the Mortgagee, the Mortgagor
shall execute, acknowledge and deliver any and all further conveyances,
documents, mortgages and assurances, and do or cause to be done all
further acts as the Mortgagee may reasonably require in its sole
discretion to confirm and protect the lien of this Mortgage or otherwise
to accomplish the purposes of this Mortgage.
27. If more than one person or party has executed this Mortgage as the
mortgagor, the term "Mortgagor" shall include each of the mortgagors
individually and collectively, and all warranties, covenants, rights and
powers given to or
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<PAGE>
conferred upon the Mortgagee are made or given jointly and severally.
28. Nothing contained in this Mortgage is intended, nor should it be
construed, to preclude the Mortgagee or any Lender from pursuing any
other remedy provided by law for the collection of the Several
Obligations or any portion of it, or for the recovery of any other sum to
which the Mortgagee or any Lender may be or become entitled for breach of
this Mortgage by the Mortgagor, nor shall anything contained in this
Mortgage reduce or release in any manner any rights, security interests
or liens in favor of the Mortgagee for the benefit of the Lenders
contained in any existing or future agreement between the Mortgagor and
the Mortgagee.
29. Any reference in this Mortgage to attorneys' fees shall be deemed a
reference to the reasonable fees, charges, costs and expenses of both in-
house and outside counsel and paralegals, whether or not a suit or
proceeding is instituted, and whether incurred at the trial court level,
on appeal, in a bankruptcy, administrative or probate proceeding, in a
workout, in consultation with counsel, or otherwise. All reasonable
costs, expenses and fees of any nature for which the Mortgagor is
obligated to reimburse or indemnify the Mortgagee and the Lenders are
part of the Several Obligations secured by this Mortgage and are payable
upon demand, unless expressly provided otherwise, with interest until
repaid at the highest rate charged by the Lenders on any of the Several
Obligations (but not to exceed the maximum rate permitted by applicable
law).
30. With respect to the right, title, interest or lien of any person or
entity which is superior to the lien of this Mortgage (other than
Permitted Encumbrances), the Mortgagee has the right, (upon fifteen (15)
days prior notice to the Mortgagor), but not the obligation, to acquire
and/or pay off the holder of such right, title, interest or lien and add
the amount so paid to the Several Obligations and charge interest on that
amount at the highest rate charged by the Lenders to the Mortgagor on any
of the Several Obligations (but not to exceed the maximum interest rate
permitted under applicable law).
31. Subject to the provisions of paragraph 41, this Mortgage constitutes the
entire agreement of the Mortgagor and the Mortgagee with respect to the
subject matter of this Mortgage. No waiver, consent, modification or
change of the terms of this Mortgage shall bind the Mortgagor or the
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Mortgagee unless in writing and signed by the party, or an authorized
officer of the party, against whom enforcement is sought. Each waiver,
consent, modification or change shall be effective only for the specific
purpose given.
32. This Mortgage shall be binding on the Mortgagor and the Mortgagee and on
the Mortgagor's and the Mortgagee's heirs, legal representatives,
successors and assigns including, without limit, any debtor in possession
or trustee in bankruptcy for the Mortgagor. This shall not be deemed a
consent by the Mortgagee to a conveyance by the Mortgagor of all or part
of the mortgaged premises or of any ownership interest in the Mortgagor.
33. The Mortgagor has entered into this Mortgage in good faith for the
purpose of inducing the Mortgagee to extend credit or make other
financial accommodations to or at the request of the Mortgagor.
34. Upon request by the Mortgagee, if the mortgaged premises are then leased
by Mortgagor to any third party, the Mortgagor shall promptly provide the
Mortgagee with certificates of occupancy, licenses, rent rolls, income
and expense statements and other documents and information pertaining to
the mortgaged premises and its operations as the Mortgagee, from time to
time, may request.
35. At the sole option of the Mortgagee, this Mortgage shall become
subordinate, in whole or in part (but not with respect to priority as to
insurance proceeds or any eminent domain award) to any or all leases
and/or occupancy agreements of all or part of the mortgaged premises upon
the execution by the Mortgagee, and recording in the appropriate official
county records where the premises are located, of a unilateral
declaration to that effect.
36. All notices and demands required or permitted to be given to the
Mortgagor shall be deemed given when delivered to the Mortgagor or when
placed in an envelope addressed to the Mortgagor at the address above, or
at such other address as the Mortgagee may have on its records, and
deposited, with postage, in a post office or other depository under the
custody of the United States Postal Service. The mailing may be
certified, first class or registered mail.
37. Any inspection, audit, appraisal or examination by the Mortgagee, any
Lender or its agents of the mortgaged premises or of information or
documents pertaining to the
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<PAGE>
mortgaged premises is for the sole purpose of protecting the Mortgagee's
and the Lenders' interests under this Mortgage and is not for the benefit
or protection of the Mortgagor or any third party. Neither the Mortgagee
nor any Lender has any obligation to provide the Mortgagor or any third
party designated by the Mortgagor with information concerning or results
of any inspection, audit, appraisal or examination by the Mortgagee or
its agents. If the Mortgagee or a Lender, in its sole discretion,
discloses information to the Mortgagor this disclosure is for the sole
protection of the Mortgagee or the Lenders, does not constitute an
agreement to further disclosure and does not create a warranty by the
Mortgagee or the Lenders as to the accuracy, sufficiency or any other
aspect of the disclosure.
38. Upon full and final payment of the Several Obligations in cash and
performance by the Mortgagor of all its other obligations under this
Mortgage, except as otherwise provided in paragraph 14 of this Mortgage,
the parties shall automatically each fully, finally and forever release
and discharge the other from any claim, liability or obligation in
connection with this Mortgage and the Several Obligations.
39. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ________.
40. WAIVER OF JURY TRIAL. THE MORTGAGOR AND THE MORTGAGEE AFTER CONSULTING OR
HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, AND THE LENDERS, BY
THEIR ACCEPTANCE OF THE BENEFITS HEREOF, KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED
INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE MORTGAGOR, NOR MORTGAGEE
SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION
IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE
MORTGAGOR AND/OR MORTGAGEE EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL
OF THEM.
41. Notwithstanding any provision in paragraph 4 or paragraph 8 hereof to the
contrary, in the event any proceeds become
24
<PAGE>
available as a result of the condemnation of all or any part of the
mortgaged premises, or any insurance proceeds become available as a
result of any hazard insurance loss, Mortgagee will make such proceeds
available to Mortgagor for use in the repair and restoration of the
mortgaged premises to the condition existing immediately prior to the
condemnation or loss, or such other condition as Mortgagee may approve in
writing, upon the following terms and conditions:
(a) There shall be no default under this Mortgage;
(b) Mortgagee shall approve in writing plans and specifications of an
architect satisfactory to Mortgagee and contractor's cost estimates
by contractors satisfactory to Mortgagee, which approval shall not
be withheld unreasonably;
(c) Such proceeds are deemed sufficient by Mortgagee to pay all costs
of, and expenses incidental to, such repair or restoration and, if
such proceeds shall be deemed insufficient to pay same, Mortgagor
shall deposit with Mortgagee such additional sums as Mortgagee deems
necessary, in its reasonable judgment, when combined with such
proceeds, to pay such costs and expenses;
(d) Such proceeds shall be disbursed by advances conforming to the
requirements for advances ordinarily set forth in construction loan
agreements then in use by Mortgagee, and to such other requirements
as Mortgagee may reasonably impose;
(e) Mortgagee shall be entitled to deduct from each such advance all
costs reasonably incurred by Mortgagee in connection therewith; and
(f) Mortgagor shall not be entitled to any interest on any such proceeds
while held by Mortgagee pending disbursement in accordance
therewith.
42. Unless expressly defined herein, all capitalized terms used herein shall
have the meanings set forth in the Intercreditor Agreement.
Notwithstanding anything herein to the contrary, in the event of any
conflict between the terms and provisions of this Mortgage and the terms
and provisions of the Agreements (and, as among the Lenders, but not
otherwise, the Intercreditor Agreement) shall control.
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<PAGE>
43. This Mortgage amends, restates, consolidates and replaces in its entirety
the Prior Mortgage, and nothing herein contained shall impair or
otherwise affect the liens and mortgage interest established thereby,
which liens and mortgage interest shall continue in full force and
effect.
44. Notwithstanding anything to the contrary contained herein, it is
understood that all actions to be taken by the Mortgagee hereunder shall
be taken in accordance with the terms of the Intercreditor Agreement.
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<PAGE>
IN WITNESS WHEREOF, the Mortgagor has signed and delivered this Mortgage
the day and year first written above.
WITNESS: MORTGAGOR:
[MORTGAGOR], a
________________ corporation
________________________________ By:___________________________
Anthony A. Barone
________________________________ Its: Vice President
MORTGAGEE:
COMERICA BANK, as Collateral Agent
________________________________ By:___________________________
David B. Marvin
________________________________ Its: Vice President
27
<PAGE>
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
The foregoing instrument was acknowledged before me this _____ day of May
1996, by Anthony A. Barone, the ________________ of ___________________, a
_________ corporation, on behalf of said entity.
___________________________________
Notary Public
_________________ County, _________
My commission expires:_____________
STATE OF MICHIGAN )
) SS
COUNTY OF WAYNE )
The foregoing instrument was acknowledged before me this _____ day of May
1996, by David B. Marvin, the Vice President of Comerica Bank, a Michigan
banking corporation, on behalf of said entity.
___________________________________
Notary Public
_________________ County, _________
My commission expires:_____________
This instrument was prepared by
and when recorded return to:
Laurie E. Phelan, Esq.
Bodman, Longley & Dahling
34th Floor
100 Renaissance Center
Detroit, Michigan 48243
(313) 259-7777
28
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EXHIBIT A
The following described real estate situated in _____________, ________________,
to-wit:
29
<PAGE>
EXHIBIT B
Permitted Exceptions
30
<PAGE>
EXHIBIT 4.11
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
----------------------------------------------
(Third Party Pledge)
THIS AMENDED AND RESTATED SECURITY AGREEMENT ("Security Agreement"), made
as of this 30th day of May, 1996, by and between Tower Automotive, Inc., f/k/a
Tower Holding Corp., a Michigan corporation ("Company"), and Comerica Bank, a
Michigan banking corporation, in its capacity as Collateral Agent for and on
behalf of the Lenders (as defined below) (in such capacity, the "Collateral
Agent") located at 500 Woodward Avenue, Detroit, Michigan 48226.
RECITALS:
A. Company executed and delivered to Comerica Bank, as agent for the Banks
(defined below) ("Agent"), an Amended and Restated Security Agreement dated as
of January 16, 1996 (the "Prior Security Agreement"), granting Comerica Bank, as
Agent, a security interest in and lien on Company's shares of the capital stock
of Borrower (as defined below) a security for the obligations of R.J. Tower
Corporation, a Michigan corporation ("Borrower") to Comerica Bank, as Agent
under that certain Third Amended and Restated Credit Agreement dated as of
January 16, 1996, among the Borrower, each of the financial institutions,
including any of such financial institutions acting as the Swing Line Bank
thereunder (collectively, the "Banks") and Agent.
B. Company is the direct owner of 100% of the outstanding common stock of
Borrower.
C. Pursuant to the First Amendment to the Third Amended and Restated
Credit Agreement dated as of May 30, 1996 among the Borrower, the Banks and the
Agent (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), the Banks and the Agent have agreed to amend the Credit
Agreement by, among other things, increasing the Revolving Credit Aggregate
Commitment and making certain other amendments.
D. Pursuant to the separate Note Agreements dated as of May 31, 1996 (as
such agreements may be amended, supplemented or otherwise modified from time to
time, the "Note Agreements"), between the Borrower and the Purchasers named in
Schedule I thereto (the "Purchasers") relating to the sale by the Mortgagor of
(a) its $40,000,000 7.65% Senior Secured Notes, Series A, due June 1, 2006 and
(b) its $25,000,000 7.82% Senior Secured Notes, Series B, due June 1, 2008
issued thereunder (together, the "Senior Notes") named therein (such Purchasers,
together with all subsequent holders of the Senior Notes, the "Senior Note
Holders"), the Borrower has
<PAGE>
agreed to sell to such purchasers the Senior Notes in the aggregate principal
amount of Sixty Five Million Dollars ($65,000,000).
E. Pursuant to and in accordance with the Credit Agreement and the Note
Agreements (together, the "Agreements"), the Banks and the Senior Note Holders
(collectively, with their respective successors and assigns, the "Lenders") have
required that Company provide to Agent, as Collateral Agent for the equal and
ratable benefit of the Lenders according to the terms of the Intercreditor
Agreement (as defined below), a security interest in and lien on Company's
shares of the capital stock of Borrower as security for Borrower's obligations
under the Revolving Credit, the Swing Line, the Credit Agreement (including any
Letters of Credit issued thereunder), the Note Agreements, the Senior Notes, and
the other documents, instruments, certificates or agreements executed by
Borrower pursuant to or in connection with any such document or the Agreements,
as such documents may be amended or otherwise modified from time to time
(collectively herein, the "Loan Documents").
F. Company and Agent desire to amend and restate the Prior Security
Agreement to reflect the events set forth in the foregoing recitals.
G. Agent is acting as Collateral Agent for the Lenders pursuant to Section
___ of that certain Intercreditor and Collateral Agency Agreement dated as of
May 31, 1996 by and among Borrower, Agent as Collateral Agent and the Lenders
(as amended from time to time, the "Intercreditor Agreement").
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
Company hereby assigns, transfers, delivers and pledges to the Collateral
Agent, for the equal and ratable benefit of the Lenders, the following
securities and stocks:
1,723 shares of the capital stock of R.J. Tower Corporation, a Michigan
corporation ("Borrower") and all other shares of Borrower now owned or
hereafter acquired by Company.
Company grants the Collateral Agent, for the equal and ratable benefit of
the Lenders, a security interest in all of the above property, and all property
substituted therefor or for any part thereof, all records (including computer
software) pertaining thereto and all interest, dividends, increase, profits, new
2
<PAGE>
securities or other increments, distributions or rights of any kind received on
account of this property, products or proceeds thereof (whether cash or non-cash
proceeds) resulting from any sale or exchange or transfer thereof or arising by
virtue of ownership thereof (such as, but not limited to, the rights to
additional or other securities or property upon any corporate reorganization,
merger, consolidation, liquidation or dissolution, offering of stock rights,
stock split or stock or liquidating dividend or the rights to any goods
evidenced by such property or insurance proceeds with respect thereto), and all
subscription, voting and preferential rights, all said property, products and
proceeds herein called the "Collateral." The creation of a security interest in
proceeds is not to be construed to give Company any right to dispose of the
Collateral. Company warrants that Company has clear title to the Collateral,
free from any liens, claims or encumbrances except the security interest created
by this Security Agreement, and has full power and authority to execute and
perform this Security Agreement.
The security interest created herein is given as security for:
1. All of Borrower's obligations contained in or arising under or in
connection with the Credit Agreement and the Notes issued by it from time to
time pursuant to the Credit Agreement, the Note Agreements and the Senior Notes
and all obligations of the Borrower and each of the Account Parties contained in
or arising under the other Loan Documents executed by it;
2. All obligations of Borrower under any and all Hedging Transactions (as
defined in the Credit Agreement) entered into by the Borrower pursuant to an
Interest Rate Protection Agreement (as defined in the Credit Agreement) entered
into between the Borrower and any Bank or any Affiliate of a Bank; and
3. The obligations of Company, Borrower or any Account Party for payment
of all sums hereafter loaned, paid out, expended or advanced by or for the
account of the Lenders (or any of them) or by the Collateral Agent under the
terms of this Security Agreement, the Credit Agreement, the Note Agreements, the
Senior Notes, or the other Loan Documents, in connection with the Collateral or
any of the documents or instruments described in this Security Agreement, the
Agreements or the other Loan Documents; together with interest thereon; and also
as security for all other indebtedness and liabilities, whether direct,
indirect, absolute or contingent, owing by the Borrower or any Account Party to
the Collateral Agent or the Lenders in any manner under the Credit Agreement,
the Note Agreements, the Senior Notes or the other Loan
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Documents, which hereafter become due, or that may hereafter be incurred by
the Borrower or any Account Party to or acquired (pursuant to the Credit
Agreement, the Note Agreements, the Senior Notes or the other Loan Documents) by
the Collateral Agent, the Agent or the Lenders, and all other future obligations
of the Company or any Account Party to the Collateral Agent, or the Lenders,
their successors and assigns, howsoever created, arising or evidenced, whether
joint or several, direct or indirect, absolute or contingent, primary or
secondary, and any judgments that may hereafter be rendered on such indebtedness
or any part thereof, with interest according to the rates and terms specified,
or as provided by law, and any and all replacements, consolidations, amendments,
renewals or extensions of the foregoing (collectively herein called the "Several
Obligations").
All capitalized terms used but not defined herein shall have the meaning
set forth in the Intercreditor Agreement and if not defined therein, then as
defined in the Credit Agreement or the Note Agreements or the other Loan
Documents, as applicable. Except as otherwise provided herein, all other terms
used in this Security Agreement shall have the meanings given under Article 9 of
the Michigan Uniform Commercial Code, or in any other article, if not defined in
Article 9. Michigan Uniform Commercial Code shall mean Act 174 of the Michigan
Public Acts of 1962, as amended from time to time.
Company agrees to keep the Collateral free at all times from any and all
claims, liens, security interests, and encumbrances other than those in favor of
Collateral Agent, for the equal and ratable benefit of the Lenders.
Company will execute such endorsements or assignments of the Collateral as
Collateral Agent may reasonably request.
Collateral Agent agrees to use reasonable care in the custody and
preservation of Collateral in its possession but assumes no duty to take steps
necessary to preserve rights against prior parties.
So long as no Default (as defined below) shall have occurred and be
continuing, Company shall be entitled to receive and 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 Collateral.
At any time following the occurrence and during the continuance of Default
(as defined below) and without notice, Collateral Agent may, subject to the
terms of the Intercreditor
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Agreement (a) cause the Collateral or any portion of it to be transferred to its
name or to the name of its nominee or 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 Collateral, and hold the same as Collateral, or apply the same to the
Several Obligations, the manner and distribution of the application to be in
accordance with the terms of the Intercreditor Agreement; (c) enter into any
extension, subordination, reorganization, deposit, merger or consolidation
agreement or any other agreement relating to or affecting the Collateral, and
deposit or surrender control of the Collateral, and accept other property in
exchange for the Collateral and apply the property or money so received in
accordance with the provisions of the Intercreditor Agreement.
There shall be a default ("Default") under this Security Agreement if there
shall occur an Event of Default, as such term is defined in either the Credit
Agreement or the Note Agreements. Following the occurrence and during the
continuation of a Default, the Collateral Agent may, subject to the terms of the
Intercreditor Agreement, to the extent permitted by applicable law, enforce its
security interest in the Collateral by retaining the Collateral in satisfaction
of the Several Obligations, by public or private sale of all or any part of the
Collateral or by exercising any other remedy provided by law or applicable
agreement. The parties agree that five days written notice sent by ordinary mail
to Company at the address designated below shall be deemed reasonable notice of
any disposition of the Collateral, should notice be required by law.
Subject to the terms of the Credit Agreement, the Note Agreements and the
Intercreditor Agreement, as the case may be, the Lenders may assign any of the
Several Obligations and Collateral Agent may assign its interest as Collateral
Agent and deliver all or any part of the Collateral to its assignee, who then
shall have with respect to the Collateral so delivered all the rights and powers
of the Collateral Agent under this Security Agreement and after that the
Collateral Agent shall be fully discharged from all liability and responsibility
with respect to the Collateral so delivered.
If Collateral Agent redelivers Collateral to Company or Company's designee
for the purpose of
(a) the ultimate sale or exchange thereof, or
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<PAGE>
(b) presentation, collection, renewal, or registration of transfer thereof,
such redelivery shall be in trust for the benefit of Collateral Agent and the
Lenders and shall not constitute a release of Collateral Agent's security
interest therein or in the proceeds or products thereof unless Collateral Agent
specifically so agrees in writing. If Company requests any such redelivery,
Company will deliver with such request a duly executed financing statement in
form and substance satisfactory to Collateral Agent. Any proceeds of Collateral
coming into the Company's possession as a result of any such redelivery shall be
held in trust for Collateral Agent for the equal and ratable benefit of the
Lenders and forthwith delivered to Collateral Agent for application on the
Several Obligations in accordance with the terms of the Intercreditor Agreement.
Subject to the terms of the Intercreditor Agreement, Collateral Agent may
deliver the Collateral or any part of the Collateral to Company, and such
delivery by Collateral Agent shall discharge Collateral Agent from any and all
liability or responsibility for such Collateral.
Company waives notice of acceptance of this Security Agreement and
presentment, demand, protest, notice of protest, dishonor, notice of dishonor,
notice of demand, notice of intent to demand, notice of acceleration, notice of
intent to accelerate, notice of default and diligence in collecting any Several
Obligations, and agrees that the Collateral Agent and the Lenders may modify the
terms of borrowing, compromise, extend, increase, accelerate, renew or forbear
to enforce payment of any part or all of any Several Obligations, or permit the
Borrower to incur additional Several Obligations, all without notice to Company
and without affecting in any manner the Collateral Agent's rights under this
Security Agreement. Company further waives any and all other notices to which
Company might otherwise be entitled. Company acknowledges and agrees that the
Collateral Agent's rights under this Security Agreement are not conditioned upon
pursuit by the Collateral Agent of any remedy the Collateral Agent or any of the
Lenders may have against the Borrower or any other person or any other security.
No invalidity, irregularity or unenforceability of any part or all of the
Several Obligations or any documents evidencing the same, by reason of any
bankruptcy, insolvency or other law or order of any kind or for any other
reasons, and no defense or setoff available at any time to the Borrower, shall
impair, affect or be a defense or setoff to the Collateral Agent's rights under
this Security Agreement.
Company delivers this Security Agreement based solely on the Company's
independent investigation of (or decision not to
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<PAGE>
investigate) the financial condition of the Borrower and the Account Parties and
is not relying on any information furnished by the Collateral Agent or any of
the Lenders. Company assumes full responsibility for obtaining any further
information concerning the Borrower's and each of the Account Parties' financial
condition, the status of the Several Obligations or any other matter which
Company may deem necessary or appropriate now or later. Company waives any duty
on the part of the Collateral Agent and each of the Lenders, and agrees that it
is not relying upon nor expecting the Collateral Agent or any of the Lenders, to
disclose to Company any fact now or later known by the Collateral Agent, whether
relating to the operations or condition of the Borrower or any Account Party,
the existence, liabilities or financial condition of any guarantor of the
Several Obligations, the occurrence of any default with respect to the Several
Obligations, or otherwise, notwithstanding any effect such fact may have upon
Company's risk under this Security Agreement or the Company's rights against the
Borrower or any Account Party. Company knowingly accepts the full range of risk
encompassed in this Security Agreement, which risk includes without limit the
possibility that Borrower or any Account Party may incur Several Obligations to
the Collateral Agent or any of the Lenders after the financial condition of the
Borrower or any Account Party, or Borrower's or any Account Party's ability to
pay debts as they mature, has deteriorated.
Company represents that: (a) neither the Collateral Agent nor any Lender
has made any representation to Company as to the creditworthiness of the
Borrower or any Account Party; and (b) Company has established adequate means of
obtaining from the Borrower or any Account Party on a continuing basis financial
and other information pertaining to the Borrower's or any Account Party's
financial condition. Company acknowledges that neither Collateral Agent nor any
Lender has any obligation to keep Company adequately informed of any facts,
events or circumstances which might in any way affect the risks of Company under
this Security Agreement.
Company acknowledges that the effectiveness of this Security Agreement is
not conditioned on any or all of the Several Obligations being guaranteed by
anyone else. Subject to the terms of the Intercreditor Agreement, Collateral
Agent, in its sole discretion, without notice to Company, may release, exchange,
enforce and otherwise deal with any security now or later held by the Collateral
Agent for payment of the Several Obligations without affecting in any manner the
Collateral Agent's rights under this Security Agreement. Company acknowledges
and agrees that neither the Collateral Agent nor any of the Lenders has any
obligation to acquire or perfect any lien on or security interest in any
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<PAGE>
asset(s), whether realty or personalty, to secure payment of the Several
Obligations, and Company is not relying upon assets in which Collateral Agent or
any of the Lenders has or may have a lien or security interest for payment of
the Several Obligations.
Company irrevocably and absolutely waives any and all rights of
subrogation, contribution, indemnification, recourse, reimbursement and any
similar rights against the Borrower or any Account Party (or any other
guarantor) with respect to this Security Agreement, whether these rights arise
under an express or implied contract or by operation of law. It is the intention
of the parties that Company shall not be (or be deemed to be) a "creditor" (as
defined in Section 101 of the Federal Bankruptcy Code, as the same may be
amended) of the Borrower or any Account Party (or any other guarantor) by reason
of the existence of this Security Agreement in the event that the Borrower or
any Account Party becomes a debtor in any proceeding under the Federal
Bankruptcy Code. This waiver is given to induce the Collateral Agent and the
Lenders to enter into certain written contracts with the Borrower and the
Account Parties included in the Several Obligations. Company warrants and agrees
that none of Collateral Agent's or any of the Lenders' rights, remedies or
interests shall be directly or indirectly impaired because of any of Company's
status as an "insider" or "affiliate" of the Borrower or any Account Party, and
Company shall take any action or refrain from taking any action, and shall
execute any document, which the Collateral Agent may request in order to
effectuate this warranty to the Collateral Agent.
Company may terminate the Collateral Agent's rights under this Security
Agreement as to future extensions of credit which would otherwise constitute
Several Obligations (except as provided below) by (and only by) delivering
written notice to an officer of the Collateral Agent and receiving from an
officer of the Collateral Agent written acknowledgment of the delivery;
provided, the termination shall not be effective until the opening of business
on the forty-fifth (45th) day following written acknowledgment of delivery. Any
termination shall not affect in any way the Collateral Agent's or any Lender's
rights under this Security Agreement as to any Several Obligations existing at
the effective date of termination of any Several Obligations created after that
pursuant to any commitment or agreement of the Collateral Agent or any Lender or
any Borrower or any Account Party loan with the Collateral Agent or any Lender
existing at the effective date of this termination (whether later advances or
readvances by the Lender are optional or obligatory), or any modifications,
extensions or renewals of any Several Obligations, whether in whole or in part,
and as to all this Several Obligations and
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<PAGE>
modifications, renewals and extensions of it, this Security Agreement shall
continue to be effective until the same shall have been fully paid in cash.
Notwithstanding any prior revocation, termination, surrender, or discharge
of this Security Agreement in whole or part, the effectiveness of this Security
Agreement shall automatically continue or be reinstated, as the case may be, in
the event that (a) any payment received or credit given by the Collateral Agent
or any of the Lenders in respect of the Several Obligations is returned,
disgorged, or rescinded as a preference, impermissible setoff, fraudulent
conveyance, diversion of trust funds, or otherwise under any applicable state or
federal law, including, without limitation, laws pertaining to bankruptcy or
insolvency, in which case this Security Agreement shall be enforceable against
Company as if the returned, disgorged, or rescinded payment or credit had not
been received or given by the Collateral Agent or such Lender, and whether or
not the Collateral Agent or such Lender relied upon this payment or credit or
changed its position as a consequence of it; or (b) any liability is imposed, or
sought to be imposed, against the Collateral Agent or any of the Lenders
relating to the environmental condition of, or the presence of hazardous or
toxic substances on, in or about, any property given as collateral to the
Collateral Agent or any of the Lenders for the Several Obligations, whether this
condition is known or unknown, now exists or subsequently arises (excluding only
conditions which arise after any acquisition by the Collateral Agent or any of
the Lenders of any such property, by foreclosure, in lieu of foreclosure or
otherwise, to the extent due to the wrongful act or omission of the Collateral
Agent or any of the Lenders), in which case this Security Agreement shall be
enforceable to the extent of all liability, costs and expenses (including
without limit reasonable attorneys' fees) incurred by the Collateral Agent or
any of the Lenders as the direct or indirect result of any environmental
condition or hazardous or toxic substances. For purposes of this Security
Agreement, "environmental condition" includes, without limitation, conditions
existing with respect to the surface or ground water, drinking water supply,
land surface or subsurface and the air; and "hazardous or toxic substances"
shall include any and all substances now or subsequently determined by any
federal, state or local authority to be hazardous or toxic, or otherwise
regulated by any of these authorities. Company will comply in all material
respects with all statutes, laws, ordinances and regulations relating to the
Collateral, including without limitation any registration requirements and all
federal, state and local environmental protection, toxic substance and other
similar laws and regulations applicable to Company's business or to any of the
Collateral or any premises where any of the Collateral is
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<PAGE>
located (Company hereby representing and warranting that, as of the date hereof,
it is in compliance with all such laws and regulations), and hold harmless and
indemnify Collateral Agent and each of the Lenders from and against any and all
liability or claims asserted against or suffered by Collateral Agent or any of
the Lenders as a result of any failure by Company to comply with this paragraph
(or any misrepresentation or breach of warranty hereunder), such indemnity to
survive any payoff and discharge of the Several Obligations.
Company shall take or cause to be taken and execute or cause to be executed
all financing statements, endorsements, assignments and other writings requested
by Collateral Agent to establish, maintain, reinstate, and/or continue the
perfected and first priority status of the security interest of Collateral Agent
in the Collateral or implement or further effectuate the terms or purpose of
this Security Agreement, although the failure of Company to do so shall not
affect in any way Collateral Agent's perfected and first priority security
interest in the Collateral, and will on demand pay all costs and expenses of
filing and recording, including the costs of any record searches, deemed
necessary by Collateral Agent from time to time, to establish or determine the
validity and the priority of Lender's security interest. Company further makes,
constitutes and appoints Collateral Agent its true and lawful attorney-in-fact
with full power of substitution to take any action in furtherance of this
Security Agreement, including, without limitation, the signing of financing
statements, endorsing of instruments, and the execution and delivery of all
documents and agreements necessary to obtain or accomplish any protection for or
collection or disposition of any part of the Collateral. Such appointment shall
be deemed irrevocable and coupled with an interest and may be exercised only at
any time following the occurrence and during the continuance of a Default.
Company waives any right to require the Collateral Agent or any of the
Lenders to: (a) proceed against any person, including without limit the Borrower
or any Account Party (b) proceed against or exhaust any security held from the
Borrower or any Account Party or any other person; (c) pursue any other remedy
in the Collateral Agent's or any of the Lenders' power; or (d) make any
presentments or demands for performance, or give any notices of nonperformance,
protests, notices of protest or notices of dishonor in connection with any
obligations or evidences of Several Obligations held by the Collateral Agent or
any of the Lenders as security, in connection with any other obligations or
evidences of Several Obligations which continues in whole or in part of the
Several Obligations secured under this Security Agreement, or in connection with
the creation of new or additional Several Obligations.
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Company waives any defense based upon or arising by reason of (a) any
disability or other defense of the Borrower, any Account Party or any other
person; (b) the cessation or limitation from any cause, other than final and
irrevocable payment in full, of the Several Obligations; (c) any lack of
authority of any officer, director, partner, agent or any other person acting or
purporting to act on behalf of the Borrower or any Account Party or any defect
in the formation of the Borrower or any Account Party; (d) the application by
the Debtor of the proceeds of any Several Obligations for purposes other than
the purposes represented by the Borrower or any Account Party to Collateral
Agent or any of the Lenders or intended or understood by the Collateral Agent or
any Account Party, the Lenders or Company; (e) any act or omission by the
Collateral Agent or any of the Lenders which directly or indirectly result in or
aids the discharge of the Borrower or any Account Party or any Several
Obligations by operation of law or otherwise; or (f) any modification of the
Several Obligations, in any form, including without limit the renewal,
extension, acceleration or other change in time for payment of the Several
Obligations, or other change in the terms of Several Obligations or any part of
it, including without limit increase or decrease of the rate of interest.
Company waives any defense Company may have based upon any election of remedies
by the Collateral Agent or any of the Lenders which destroys Company's
subrogation rights or Company's right to proceed against the Borrower or any
Account Party for reimbursement, including without limit any loss of rights
Company may suffer by reason of any rights, powers or remedies of the Borrower
of any Account Party in connection with any anti-deficiency laws or any other
laws limiting, qualifying or discharging the Several Obligations.
Company acknowledges that the Collateral Agent, subject to the terms of the
Intercreditor Agreement, has the right to sell, assign, transfer, negotiate or
grant participations or any interest in, any or all of the Several Obligations
and any related obligations, including without limit this Security Agreement. To
the extent and in connection with the above, but without limiting its ability to
make other disclosures to the full extent allowable, the Collateral Agent or any
of the Lenders may disclose all documents and information which the Collateral
Agent or any of the Lenders now has or later acquires relating to Company, the
Several Obligations or this Security Agreement, however obtained. Company
further agrees that the Collateral Agent or any of the Lenders may disclose the
documents and information to the Borrower or any Account Party.
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This Security Agreement constitutes the entire agreement of Company and the
Collateral Agent with respect to the subject matter of this Security Agreement.
No waiver, consent, modification, or change of the terms of this Security
Agreement shall bind Company or Collateral Agent unless in writing and signed by
the waiving party or an authorized officer of the waiving party, and then this
waiver, consent, modification, or change shall be effective only in the specific
instance and for the specific purpose given. This Security Agreement shall inure
to the benefit of Collateral Agent, each of the Lenders and their successors and
assigns. This Security Agreement shall be binding on Company and Company's
successors, and assigns, including without limit any debtor in possession or
trustee in bankruptcy for Company. Company has entered into this Security
Agreement in good faith for the purpose of inducing the Lenders to extend credit
to make other financial accommodations to Borrower and the Account Parties and
Company acknowledges that the terms of this Security Agreement are reasonable.
If any provision of this Security Agreement is unenforceable in whole or in part
for any reason, the remaining provisions shall continue to be effective. THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF MICHIGAN.
Company agrees to reimburse the Collateral Agent for any and all costs and
expenses (including without limit court costs, legal fees, and reasonable
attorney fees whether inside or outside counsel is used, whether or not suit is
instituted and, if instituted, whether at the trial court level, appellate
level, in a bankruptcy, probate or administrative proceeding or otherwise and
audit expenses) incurred in enforcing any of the duties and obligations of
Company or rights of the Collateral Agent under this Security Agreement, except,
however, costs and expenses arising solely as a result of the gross negligence
or willful misconduct by Collateral Agent.
Company's chief executive office is located at the address specified below.
Company will give Collateral Agent not less than 30 days prior written notice of
all contemplated changes in Company's name, legal structure, chief executive
office, or in the location of the Collateral or Company's records concerning
same and, prior to making any such changes, file or cause to be filed all
financing statements or amendments necessary or appropriate to establish and
maintain a valid first priority security interest in all the Collateral for
Collateral Agent.
Notices to the parties under this Security Agreement shall be given (and
shall be deemed given) in accordance with Section 11 of the Intercreditor
Agreement, at address for each party set forth
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herein or at such other address of a party as designated in writing by such
party.
In the event of any express conflict between the terms and provisions of
this Security Agreement and the terms and provisions of the Agreements, the
terms and provisions of the Agreements (and, as among the Lenders, but not
otherwise, the Intercreditor Agreement) shall control.
WAIVER OF JURY TRIAL. THE COLLATERAL AGENT AND THE COMPANY AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, AND THE LENDERS BY THEIR
ACCEPTANCE OF THE BENEFITS HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED
UPON OR ARISING OUT OF THIS SECURITY AGREEMENT OR ANY RELATED INSTRUMENT OR
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS SECURITY AGREEMENT OR
ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTION
OF ANY OF THEM. NEITHER THE COLLATERAL AGENT, NOR COMPANY SHALL SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL
HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY THE COLLATERAL AGENT OR COMPANY EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY ALL OF THEM.
This Security Agreement amends and restates in its entirety the Prior
Security Agreement, provided, however, nothing contained herein shall impair the
liens and security interests established or continued thereby which liens and
security interests shall continue in full force and effect.
Company hereby irrevocably submits to the non-exclusive jurisdiction of any
United States Federal or Michigan state court sitting in Detroit in any action
or proceeding arising out of or relating to this Security Agreement and Company
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in any such United States Federal or
Michigan state court. Company irrevocably consents to the service of any and all
process in any such action or proceeding brought in any court in or of the State
of Michigan by the delivery of copies of such process to Company at its address
specified below or by certified mail directed to such address or such other
address as may be designated by Company in any notice to that complies as to
delivery with the terms of Section 14.6 of the Credit Agreement. Nothing in this
paragraph shall affect the right of the Lenders and the Collateral Agent to
serve process in any other manner permitted
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by law or limit the right of the Lenders or the Collateral Agent (or any of
them) to bring any such action or proceeding against Company or any of its
property in the courts of any other jurisdiction. Company hereby irrevocably
waives any objection to the laying of venue of any such suit or proceeding in
the above described courts.
Notwithstanding anything to the contrary set forth in this Security
Agreement, the total obligations of Company hereunder shall be limited to
Collateral Agent's enforcement of its rights and remedies under this Security
Agreement with respect to its liens and security interests in the Collateral.
TOWER AUTOMOTIVE, INC., f/k/a Tower Holding
Corp., a Michigan corporation
By: /s/ Anthony A. Barone
___________________________
Anthony A. Barone
Its:
Address:
4508 IDS Center
Minneapolis, MN 55402
Attention: Scott Rued
Robert R. Hibbs
Accepted and Approved:
COMERICA BANK, as Collateral Agent for the Lenders
By: /s/ David B. Marvin
__________________________________
David B. Marvin
Its: Vice President
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