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EXHIBIT 4.25
EXECUTION COPY
PURCHASE MONEY SECURITY AGREEMENT
This PURCHASE MONEY SECURITY AGREEMENT ("Security Agreement") is made as of
this 27th day of August, 1997 by and among Walbro Corporation, Delaware
corporation (the "Company"), and such Designated Borrowers (as defined below)
which from time to time become parties hereto (collectively, including the
Company, the "Debtors" and individually each a "Debtor") and Comerica Bank, a
Michigan banking corporation, as Agent for and on behalf of the Banks (as
defined below) ("Secured Party").
RECITALS
A. WHEREAS, pursuant to that certain Walbro Corporation Purchase Money Loan
Agreement dated as of August 27, 1997 (as amended or otherwise modified from
time to time, the "Purchase Money Loan Agreement"), among the Company, each of
the financial institutions party thereto (collectively, the "Banks") and Secured
Party, as Agent for the Banks, the Banks have agreed, subject to the
satisfaction of certain terms and conditions, to make Purchase Money Loans (as
therein defined) to the Company and to the Designated Borrowers (as defined in
the Purchase Money Loan Agreement to fund the purchase of certain items of
machinery, equipment, fixtures or other fixed assets, as provided therein; and
B. WHEREAS, the obligations of the Company and each of the Designated
Borrowers under the Purchase Money Loan Agreement (including without limitation
any future Designated Borrowers which deliver a joinder agreement in the form
attached hereto as Exhibit A) are to be secured pursuant to this Security
Agreement, such that, contemporaneously with the making of each Purchase Money
Loan to the Company or a Designated Borrower, the Company or such Designated
Borrower, as the case may be, shall grant a security interest to the Secured
Party, as Agent for the Banks, in the particular machinery, equipment, fixtures
or other fixed assets purchased with the proceeds of such loan, all on the terms
and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree as follows:
I. Creation of Security Interest
As security for each Purchase Money Loan funded by the Banks under the
Purchase Money Loan Agreement, Company or the applicable Designated Borrower, as
the case may be, shall, by delivery of Purchase Money Loan Initial Request as
referred to below, pledge, assign and transfer to the Secured Party, and grant
to Secured Party a first lien on, and security interest in, all of Company's or
such Designated Borrower's right, title and interest, as applicable, in and to
such machinery, equipment, fixtures or other fixed assets described in the
Purchase Money Loan Initial
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Request delivered by Company or the applicable Designated Borrower to the
Secured Party pursuant to Purchase Money Loan Agreement in connection with the
funding of the applicable Purchase Money Loan, as collateral security for the
full and prompt payment, when due (whether by acceleration or otherwise), by
Company or such Designated Borrower of the applicable Purchase Money Loan,
whether any such property is now owned or hereafter acquired or existing by such
Debtor, and all proceeds and all products of the foregoing, including insurance
proceeds, to the fullest extent permitted by law, subject in each case only to
the Lien granted hereunder (the "Collateral"). The pledge and grant of a
security interest in proceeds hereunder shall not be deemed to give the Debtors
any right to dispose of any of the Collateral.
II. Debtors' Obligations
A. Payment of Secured Indebtedness. Each security interest created
hereunder by a Debtor's delivery of a Purchase Money Loan Initial Request is
given as security for the discharge and performance of such Debtor's obligations
as principal obligor in connection with the Purchase Money Loan identified in
the applicable Purchase Money Loan Initial Request and funded pursuant to the
Purchase Money Loan Agreement, the Purchase Money Notes executed by such Debtor
and the other Purchase Money Loan Documents, whether such indebtedness is now or
hereafter existing, or due or to become due, together with interest thereon as
set forth therein; 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 "Purchase Money Indebtedness").
B. Protection of Collateral. Each Debtor shall take any and all reasonable
steps required to protect the Collateral encumbered by it pursuant to Section
II(A) hereof, and in pursuance thereof, each such Debtor agrees that:
(1) Such Collateral will not be misused, wasted or allowed to
deteriorate, except for the ordinary wear and tear of its intended primary use
or to the extent no longer useful or necessary to such Debtor's business, and
will at all times be maintained in accordance with the applicable terms of the
Purchase Money Loan Agreement.
(2) Such Collateral will be insured with insurance coverage by
financially sound and reputable insurers and in such forms and amounts and
against such risks as prudent business judgment and then current practice would
dictate for companies or professional enterprises engaged in the same or a
similar business and owning and operating similar properties. In the case of all
such insurance policies, each such Debtor shall designate the Secured Party, on
behalf of Banks, as mortgagee and loss payee and such policies shall provide
that any loss be payable to each such Debtor and Secured Party, on behalf of
Banks, as mortgagee and loss payee, as their respective interests may appear.
Further, upon the request of the Secured Party acting at the request of the
Banks, each such Debtor shall deliver copies of all said policies, including all
endorsements thereon and those required hereunder, or certificates evidencing
such policies and endorsements, to Secured
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Party; and each such Debtor assigns to Secured Party, on behalf of Banks, as
additional security hereunder (subject to the terms hereof), all its rights to
receive proceeds of insurance with respect to such Collateral. 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 Secured
Party of written notice from the applicable carrier. Each Debtor further shall
provide Secured Party upon request with evidence reasonably satisfactory to
Secured Party that each such Debtor is at all times in compliance with this
paragraph. Secured Party may act as each such Debtor's attorney-in-fact in
obtaining, adjusting, settling and compromising such insurance and endorsing any
drafts. Upon default in this covenant, Secured Party may procure such insurance
and its costs therefor shall be charged to Company or the applicable Designated
Borrower, as the case may be, payable on demand, with interest at the highest
rate set forth in the Purchase Money Loan Agreement and added to the Purchase
Money Indebtedness secured thereby. The disposition of proceeds of any insurance
on Collateral ("Insurance Proceeds") shall be governed by the following:
(i) provided that no Event of Default has occurred and is
continuing hereunder, (a) if the amount of Insurance Proceeds in respect of
any loss or casualty does not exceed Fifty Thousand Dollars ($50,000), the
applicable Debtor shall be entitled, in the event of such loss or casualty,
to receive all such Insurance Proceeds and to apply the same toward the
replacement of the Collateral affected thereby; and (b) if the amount of
Insurance Proceeds in respect of any loss or casualty exceeds Fifty
Thousand Dollars ($50,000), such Insurance Proceeds shall be paid to and
received by Secured Party, for release to such Debtor for the replacement
of the Collateral affected thereby or, upon written request of such Debtor
(accompanied by reasonable supporting documentation), for such other use or
purpose as approved by the Majority Banks, in their reasonable discretion,
it being understood and agreed in connection with any release of funds
under this subparagraph (B), that the Secured Party and Majority Banks may
impose reasonable and customary conditions on the disbursement of such
Insurance Proceeds; and
(ii) if an Event of Default has occurred and is continuing
hereunder or if a Call Option has been exercised (and remains outstanding)
in respect of the Purchase Money Loan relating to such Collateral, all
Insurance Proceeds from any loss or casualty shall be paid to and received
by the Secured Party, to be applied by the Secured Party against the
applicable Purchase Money Indebtedness and/or to be held by the Secured
Party as cash collateral for such Purchase Money Indebtedness, as the
Majority Banks may direct in accordance with the Purchase Money Loan
Agreement.
(3) Each item of Collateral encumbered by such Debtor is or
shall be located on the premises set forth in the Purchase Money Loan
Initial Request relating thereto, and will not be moved to premises other than
those set forth on such Purchase Money Loan Initial Request, and such other
locations with respect to which each such Debtor shall have executed and
delivered to Secured Party all financing statements and other documents and
instruments necessary to perfect or continue the perfection of the Secured
Party's security interest in such Collateral. Subject to the applicable
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terms of the Purchase Money Loan Agreement, each such Debtor will inform the
Secured Party in writing of the whereabouts of the Collateral encumbered by such
Debtor and upon request therefor by the Secured Party, will promptly arrange for
any inspections requested by the Secured Party, on behalf of Banks;
(4) Each such Debtor shall comply with all applicable laws, rules,
ordinances, regulations and orders of any governmental authority, whether
federal, state, local or foreign in effect from time to time with respect to the
Collateral, to the full extent required under the Purchase Money Loan Agreement.
(5) Secured Party, on behalf of the Banks, may, subject to the
applicable terms of the Purchase Money Loan Agreement, examine and inspect the
Collateral at any time wherever located.
C. Protection of Security Interest. Each Debtor agrees that:
(1) Except as permitted by the Purchase Money Loan Agreement, it will
not sell, transfer, lease or otherwise dispose of any of the Collateral
encumbered by such Debtor (or any interest therein) or offer to do so without
the prior written consent of Secured Party, given at the written direction or
with the written approval of the Banks, and will not create, incur, assume or
suffer to exist any mortgage, pledge, encumbrance, security interest, lien or
charge of any kind upon any of the Collateral encumbered by such Debtor (or any
interest therein or portion thereof), other than in favor of Secured Party, on
behalf of the Banks and liens permitted under the Purchase Money Loan Agreement.
(2) It will, to the full extent required under the Purchase Money Loan
Agreement, pay all taxes, assessments, governmental charges and levies upon the
Collateral encumbered by such Debtor or for its use or operation.
(3) It will sign and execute alone or with Secured Party any financing
statement or other document or procure any documents and pay all connected
costs, necessary to protect the security interest under this Security Agreement
against the rights or interests of third persons, including, without limitation,
with respect to any Collateral which constitutes or may constitute fixtures
under applicable law (as specified in the applicable Purchase Money Loan Initial
Request or as otherwise reasonably determined by the Majority Banks) UCC 1-A
fixture filings or other applicable documents or instruments reasonably required
to perfect a security interest in fixtures, accompanied by a description of the
real property upon which such items of Collateral are to be located or affixed
and the name(s) and address(es) of the owner(s) and mortgagee(s) of such real
property and, upon the reasonable request of the Majority Banks shall furnish
Secured Party with consents or disclaimers filed by all Persons having an
interest in such real property (including without limitation, owners, mortgage
holders and lessees) consenting to the security interests and liens established
hereunder in such Collateral and acknowledging or otherwise confirming the
priority of the Lien established hereunder in favor of the Banks.
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(4) It will reimburse Secured Party for all reasonable costs,
including reasonable attorneys' fees, incurred for any action taken by Secured
Party to remedy an Event of Default of Debtor which Secured Party elects to
remedy pursuant to its rights under Paragraph IV hereof.
(5) It will,
(i) subject to Sections 5.3 and 5.11 (incorporating by
reference Section 8.7 of the Revolving Credit Agreement) of the Purchase
Money Loan Agreement, allow Secured Party, or any Bank, to examine, audit
and inspect such Debtor's books, accounts, and other records relating to
Collateral wherever located at all reasonable times during normal business
hours, upon oral or written request of Secured Party, and to make and take
away copies of any and all such books, accounts, records and ledgers;
(ii) punctually and properly perform all of its covenants
and duties under any other security agreement, mortgage, collateral
document, pledge agreement or contract of any kind now or hereafter
existing as security for or in connection with payment of the Purchase
Money Indebtedness, or any part thereof;
(iii) perform its obligations under and comply with the
terms and provisions of the Purchase Money Loan Agreement and the other
Purchase Money Loan Documents to which it is or may become a party or
otherwise obligated thereunder;
(iv) keep, at the addresses designated on the Purchase
Money Loan Initial Request and such additional addresses as may be
provided from time to time for its records, all records concerning the
Collateral encumbered by such Debtor, which records will be of such
character as will enable Secured Party or its designees to determine at
any time the status of such Collateral;
(v) give Secured Party not less than 30 days prior written
notice of all contemplated changes in such Debtor's name, legal
structure, or chief executive office, or in the location of the Collateral
encumbered by such Debtor or such Debtor's records concerning same and,
prior to making any such changes, file or cause to be filed all financing
statements or amendments or other documents or instruments determined by
Secured Party to be necessary or appropriate to establish and maintain a
valid first priority security interest in all the Collateral encumbered by
such Debtor in accordance with the terms hereof;
(vi) promptly furnish Secured Party with any information in
writing which Secured Party may reasonably request concerning the
Collateral encumbered by such Debtor;
(vii) to the extent required under the Purchase Money Loan
Agreement, promptly notify Secured Party of any material claim, action or
proceeding affecting the
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Collateral encumbered by such Debtor and title therein, or in any part
thereof, or the security interest created herein, and, at the request of
the Secured Party, appear in and defend, at such Debtor's expense, any such
action or proceeding; and
(viii) promptly, after being requested by Secured Party, pay
to Secured Party the amount of all reasonable expenses, including
reasonable attorneys' fees and other legal expenses, incurred by Secured
Party pursuant to and in accordance with the Purchase Money Loan Agreement
in protecting and maintaining the Collateral encumbered by such Debtor or
its rights hereunder, or in connection with any audit or inspection of such
Collateral pursuant to the terms hereof, and in enforcing the security
interest created herein.
(6) With respect to any Collateral of a kind requiring an additional
security agreement, financing statement, or other writing to perfect a security
interest therein in favor of Secured Party, on behalf of Banks, such Debtor will
forthwith upon demand by Secured Party execute and deliver to Secured Party on
behalf of Banks, whatever documentation the Secured Party or the requisite Banks
shall reasonably deem necessary or proper for such purpose. Should any covenant,
duty or agreement of such Debtor fail to be performed in accordance with its
terms hereunder resulting in an Event of Default, Secured Party may, but shall
never be obligated to, perform or attempt to perform such covenant, duty or
agreement on behalf of such Debtor, and any amount expended by Secured Party in
such performance or attempted performance shall become part of the Purchase
Money Indebtedness, and, at the request of Secured Party, such Debtor agrees to
pay such amount to Secured Party upon demand at Secured Party's office in
Detroit, Michigan together with interest thereon at the highest rate at which
interest accrues on amounts after the same become due pursuant to the terms of
the Purchase Money Loan Agreement, from the date of such expenditure by Secured
Party until paid.
(7) It will hold the proceeds of any of the Collateral encumbered by
such Debtor which is sold as permitted under the Purchase Money Loan Agreement
or otherwise (subject to the terms thereof) in trust for Secured Party on behalf
of the Banks, will not commingle said proceeds with any other funds, and, after
an Event of Default, will deliver such proceeds to Secured Party immediately
upon its request. The provisions of this Section II(B)(7) shall not be deemed to
give the Debtors (or any of them) any right to dispose the Collateral.
(8) If Secured Party, acting in its sole discretion, redelivers any
Collateral to a Debtor or such Debtor's designee for the purpose of (i) the
ultimate sale or exchange thereof, or (ii)presentation, collection, renewal, or
registration of transfer thereof, or (iii) loading, unloading, storing,
shipping, transshipping, manufacturing, processing or otherwise dealing
therewith preliminary to sale or exchange; such redelivery shall not constitute
a release of Secured Party's security interest therein or in the proceeds
thereof unless Secured Party, with the consent of the Banks, specifically so
agrees in writing. If such Debtor requests any such redelivery, such Debtor will
deliver with such request a duly executed financing statement in form and
substance satisfactory to Secured Party.
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(9) Subject to the applicable terms of the Purchase Money Loan
Agreement, each Debtor shall take any and all other steps reasonably required
under applicable law to perfect the lien and security interest established
hereby in favor of Secured Party, on behalf of the Banks, including without
limitation the execution, delivery and/or performance of appropriate
acknowledgments, governmental acknowledgments, registrations or approvals,
financing statements and other documents and instruments, and the registration,
recording and/or filing of such instruments with such Persons and in such
jurisdictions as necessary to perfect the security interest and lien established
hereby.
III. Default
The terms "Default" and "Event of Default", as used herein, shall mean the
occurrence of a Default or an Event of Default, as the case may be, under the
Purchase Money Loan Agreement.
IV. Secured Party's Rights and Remedies.
In addition to its rights and remedies under the Purchase Money Loan
Agreement and the other Purchase Money Loan Documents, and under applicable law,
Secured Party shall have available to it the following rights and remedies upon
the occurrence and during the continuance of an Event of Default:
A. Right to Discharge Debtors' Obligations. Secured Party may, with the
approval of the Majority Banks, discharge taxes, liens or security interests or
other encumbrances at any time levied or placed on the Collateral, whether
senior or junior to the security interest herein granted, may remedy or cure any
default of a Debtor under the terms of any lease, rental agreement, land
contract, mortgage or other document which in any way pertains to or affects
such Debtor's title to or interest in any of the Collateral, may pay for
insurance on the Collateral, and may pay for the maintenance and preservation of
the Collateral, unless the applicable Debtor is contesting in good faith such
obligations, and such Debtor agrees to reimburse Secured Party, on demand, for
any payment made or any expense incurred by Secured Party pursuant to the
foregoing authorization, with interest, which payments and expenses shall be
secured by the Collateral affected thereby.
B. Remedies and Enforcement. Secured Party shall have and may exercise, at
the direction or with the approval of the Majority Banks, any and all rights of
enforcement and remedies afforded to a secured party under the Uniform
Commercial Code as adopted and in force in the State of Michigan or other
applicable uniform commercial code (or other applicable law), to the full extent
permitted by applicable law, on the date of this Security Agreement or the date
of a Default or Event of Default, together with any and all other rights and
remedies otherwise provided and available to Secured Party by applicable law
unless such application would result in the invalidity or unenforceability of
any provision hereof, in which case the law of the state in which any of the
Collateral is located shall apply to the extent necessary to render such
provision valid and enforceable; and, in conjunction with, in addition to, or
substitution for those rights, Secured Party
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may, at the direction or with the approval of the Majority Banks, or with
respect to subparagraph (3) below), all of the Banks:
(1) Enter upon such Debtor's premises to take possession of, assemble,
collect and/or dispose of the Collateral encumbered by such Debtor and, if
Secured Party elects to do, to apply any of such Collateral against any of
the Purchase Money Indebtedness secured thereby;
(2) Require each of the Debtors to assemble the Collateral encumbered
by such Debtor and make it available at a place Secured Party designates to
allow Secured Party to take possession or dispose of such Collateral;
(3) Waive any default, or remedy any default, without waiving its
rights and remedies upon default and without waiving any other prior or
subsequent default;
(4) Appoint any officer or agent of Secured Party as such Debtor's
true and lawful proxy and attorney-in-fact, with power, upon the occurrence
of any Event of Default (exercisable so long as such Event of Default is
continuing); to endorse such Debtor's name or any of its officers or agents
upon any notes, checks, drafts, money orders, or other instruments of
payment in respect of or constituting Collateral (including payments
payable under any policy of insurance on Collateral) that may come into
possession of the Secured Party in full or part payment of any amounts
owing to the Banks; to sign and endorse the name of such Debtor and/or any
of its officers or agents upon any invoice, freight or express xxxx, xxxx
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and any
instrument or document relating thereto or to such Debtor's rights therein;
to execute on behalf of such Debtor any financing statements, amendments,
subordinations or other filings pursuant to the Purchase Money Loan
Agreement, this Security Agreement or the other Purchase Money Loan
Documents; such Debtor hereby granting unto Secured Party on behalf of the
Banks, as the proxy and attorney-in-fact of such Debtor, full power to do
any and all things necessary to be done in and about the premises as fully
and effectually as such Debtor might or could do, and hereby ratifying all
that said proxy and attorney shall lawfully do or cause to be done by
virtue hereof. The proxy and power of attorney described herein shall be
deemed to be coupled with an interest and shall be irrevocable for the
entire term of the Purchase Money Loan Agreement, and all transactions
thereunder and thereafter as long as any Purchase Money Indebtedness or any
of the commitments to lend (whether optional or obligatory) remain
outstanding. The Secured Party shall have full power to collect,
compromise, endorse, sell or otherwise deal with Collateral or proceeds
thereof on behalf of the Banks in its own name or in the name of such
Debtor, provided that Secured Party shall act in a commercially reasonable
manner.
C. Right of Sale.
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(1) Each Debtor agrees that upon the occurrence and continuance of an
Event of Default, Secured Party may, at its option, sell and dispose of the
Collateral encumbered by such Debtor at public or private sale without any
previous demand of performance. Each Debtor agrees that notice of such sale
sent to such Debtor's address, as set forth on the signature pages attached
hereto (or in any Purchase Money Note delivered under the Purchase Money
Loan Agreement), by certified or registered mail sent at least five (5)
Business Days prior to such sale, shall constitute reasonable notice of
sale. The foregoing shall not require notice if none is necessary under
applicable law. The proceeds of sale shall be applied in the following
order:
(i) to all reasonable costs and charges incurred by
Secured Party in the taking and causing the removal and sale of said
property, including such reasonable attorneys' fees as shall have been
incurred by Secured Party;
(ii) to the Purchase Money Indebtedness secured by such
Collateral, including without limitation all accrued interest thereon,
premiums, breakage costs, and make whole amounts, if any, in the order
and manner set forth in the Purchase Money Loan Agreement; and
(iii) any surplus of such proceeds remaining shall be paid
to such Debtor, or to such other party who shall lawfully be entitled
thereto.
(2) At any sale or sales made pursuant to this Security Agreement or
in a suit to foreclose the same, the Collateral may be sold en masse or
separately, at the same or at different times, at the option of the Secured
Party or its assigns. Such sale may be public or private with notice as
required by the Uniform Commercial Code as then in effect in the state in
which the Collateral is located, and the Collateral need not be present at
the time or place of sale. At any such sale, the Secured Party may bid for
and purchase any of the property sold, notwithstanding that such sale is
conducted by the Secured Party or its attorneys, agents, or assigns.
D. Miscellaneous. Secured Party shall have the right at all times to
enforce the provisions of this Security Agreement, on behalf of the Banks, in
strict accordance with the terms hereof, notwithstanding any conduct or custom
on the part of Secured Party or any of the Banks in refraining from so doing at
any time or times. The failure of Secured Party or any of the Banks at any time
or times to enforce its rights under said provisions strictly in accordance with
the same shall not be construed as having created a custom in any way or manner
contrary to the specific provisions of this Security Agreement or as having in
any way or manner modified the same. All rights and remedies of Secured Party
and Banks hereunder shall be cumulative and concurrent, and the exercise of one
right or remedy shall not be deemed a waiver or release of any other right or
remedy.
VI. Representations, Warranties and Covenants of Debtors.
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Each Debtor represents and warrants, and, after the date hereof, covenants
so long as any of the Purchase Money Loan Agreement, the Purchase Money Notes or
the other Purchase Money Loan Documents remains in effect, that:
A. The Collateral does not comprise a part of the Company's or the
applicable Designated Borrower's inventory and it is and will only be used by
the Company or such Designated Borrower, as the case me be, in its business and
will not be held for sale or lease, or removed from the premises where presently
located, or otherwise disposed of by the Company or such Designated Borrower
without the prior written consent of the Majority Banks.
B. No financing statement covering the Collateral, or any part thereof, has
been or will be filed with any filing officer, except as permitted under the
Purchase Money Loan Agreement.
C. No other agreement, pledge or assignment covering the Collateral, or any
part thereof, has been or will be made and no security interest, other than the
one created hereby or pursuant to security agreements and pledges previously
made in favor of Secured Party on behalf of the Banks, has or will be attached
or has been or will be perfected in the Collateral or in any part thereof,
except as permitted under the Purchase Money Loan Agreement.
D. No material dispute, right of setoff, counterclaim or defenses exist
with respect to any part of the Collateral (excluding accounts, accounts
receivable and rights to payment for services rendered), except as permitted
under the Purchase Money Loan Agreement.
E. At the time Secured Party's security interest attaches to any of the
Collateral (or its proceeds), the applicable Debtor will be the lawful owner
thereof with the right to transfer any interest therein, such Collateral is free
and clear of all liens other than the one created hereby or permitted by the
Purchase Money Loan Agreement and that such Debtor will make such further
assurances to prove its title to the Collateral as may be reasonably required,
will keep such Collateral free and clear of all liens other than the one created
hereby and liens permitted by the Purchase Money Loan Agreement, and will take
such action to defend such Collateral and its proceeds against the lawful claims
and demands of all persons whomsoever.
F. The representations and warranties contained in the Purchase Money Loan
Agreement are incorporated by reference herein and are all made as of the date
hereof.
VII. Mutual Agreements.
Each Debtor and Secured Party mutually agree as follows:
A. "Debtor" and "Secured Party" as used in this Security Agreement include
the successors and permitted assigns of those parties, and, as used herein,
"Debtors" shall refer to the Debtors collectively, and each of them.
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B. To the extent permitted by applicable law, except as otherwise provided
herein, the law governing this Security Agreement shall be that of the State of
Michigan.
C. This Security Agreement includes all amendments and supplements hereto
and all assignments hereof, provided, that Debtors and Secured Party shall not
be bound by any amendment hereto unless such amendment is expressed in a writing
executed by each of them.
D. All capitalized or other terms not specifically defined herein are used
as defined in the Purchase Money Loan Agreement. To the extent not inconsistent
therewith, all such terms shall also be construed in conformity with the
Michigan or other applicable Uniform Commercial Code.
E. This Security Agreement shall remain in full force and effect for the
entire duration that the Purchase Money Loan Agreement remains effective and
until all of the Purchase Money Indebtedness has been repaid and discharged in
full.
F. THE PARTIES HERETO ACKNOWLEDGE THAT THIS SECURITY AGREEMENT IS SUBJECT
TO THE MUTUAL WAIVER OF JURY TRIAL CONTAINED IN THE APPLICABLE PROVISIONS OF THE
PURCHASE MONEY LOAN AGREEMENT.
G. Each of the Debtors hereby irrevocably submits to the non-exclusive
jurisdiction of any United States Federal Court or Michigan state court sitting
in Detroit, Michigan in any action or proceeding arising out of or relating to
this Security Agreement and hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in any such United
States Federal Court or Michigan state court. Each Debtor 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 such Debtor at its address specified in Schedule II hereto or by
certified mail directed to such address. Nothing in this paragraph shall affect
the right of the Banks and the Secured Party to serve process in any other
manner permitted by law or limit the right of the Banks or the Secured Party (or
any of them) to bring any such action or proceeding against any of the Debtors
or any of its or their property in the courts of any other jurisdiction. Each of
the Debtors hereby irrevocably waives any objection to the laying of venue of
any such suit or proceeding in the above described courts.
H. All notices and other communications to be made or given pursuant to
this Purchase Money Security Agreement shall be sufficient if made or given in
writing and delivered by messenger, reputable air courier or deposited in the
United States mails, registered or certified first class mail, or sent by
telecopy, receipt confirmed, addressed as provided in the Purchase Money Loan
Agreement, or at such other addresses as directed by any of such parties to the
others, as applicable, in compliance with this paragraph.
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
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IN WITNESS WHEREOF, each of the undersigned Debtors and Secured Party have
executed this Security Agreement as of the day and year first above written.
DEBTORS:
WALBRO CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Its: Chief Financial Officer
and Treasurer
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WALBRO AUTOMOTIVE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Its: Treasurer
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ACCEPTED BY SECURED PARTY:
COMERICA BANK, as Agent for the Banks
By: /s/ Xxxx X. Xxxxxx
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Its: Vice President
--------------------------
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JOINDER AGREEMENT
A. This Joinder Agreement is executed and delivered by the undersigned
Designated Borrower pursuant to that certain Walbro Corporation
Purchase Money Loan Agreement dated as of August 14, 1997, as amended
according to the terms thereof ("Purchase Money Loans Account").
B. All capitalized terms used herein shall, unless expressly defined to
the contrary in this Joinder Agreement, have their respective meanings
set forth in the Purchase Money Loan Agreement.
C. In accordance with Section 5.4 of the Purchase Money Loan Agreement,
the undersigned Designated Borrower shall, by executing and delivering
this Joinder Agreement, become immediately obligated as a Debtor under
the Purchase Money Security Agreement, attached hereto, as fully as
though an original signatory thereto.
[FUTURE DESIGNATED BORROWER]
By:____________________________
Its:___________________________
ACCEPTED BY SECURED PARTY:
COMERICA BANK, as Agent for the Banks
By:_____________________________
Its:____________________________
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