SECOND AMENDMENT TO AMENDED AND RESTATED SECURED
LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED SECURED LOAN AGREEMENT
(the "AMENDMENT"), dated as of August 23, 1997, is among HILITE INDUSTRIES,
INC., a Delaware corporation ("BORROWER"), NORTH AMERICAN SPRING & STAMPING
CORP. (DELAWARE), a Delaware corporation ("GUARANTOR") and COMERICA BANK-TEXAS,
a Texas banking association ("LENDER").
RECITALS:
Borrower and Lender have entered into that certain Amended and
Restated Secured Loan Agreement dated as of July 21, 1995, as amended by that
certain First Amendment to Amended and Restated Secured Loan Agreement effective
as of June 30, 1997 (such Loan Agreement, as heretofore or hereafter amended or
otherwise modified from time to time, the "AGREEMENT").
Borrower and Lender desire to amend the Agreement.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS. Capitalized terms used in this Amendment,
to the extent not otherwise defined herein, shall have the same meanings as in
the Agreement, as amended hereby.
ARTICLE II
AMENDMENT
Section 2.1. AMENDMENT TO SECTION 1.1. Effective as of the date
hereof, SECTION 1.1 of the Agreement is hereby amended as follows:
(a) by deleting the reference to "$10,000,000" in the definition of
"Revolving Credit Commitment Amount" and substituting therefor
"$12,000,000"; and
SECOND AMENDMENT TO LOAN AGREEMENT - Page 1
(b) by deleting the reference to "July 21, 1998" in the definition of
"Termination Date" and substituting therefor "July 21, 1999."
Section 2.2. AMENDMENT TO SECTION 10.10. Effective as of the date
hereof, SECTION 10.10 is hereby amended by deleting the current address listed
for the Bank for notice purposes and substituting therefor:
"If to Bank: Comerica Bank-Texas
X.X. Xxx 000000
Mail Code 6528
Xxxxxx, Xxxxx 00000-0000
Attention: J. Xxxxxxx Xxxx
WITH A COPY TO: Winstead, Xxxxxxxx & Xxxxxx, P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxx X. Xxxx, Esq."
Section 2.3. REPLACEMENT OF EXHIBIT "C-1". EXHIBIT "C-1" of the
Agreement is hereby deleted in its current form and replaced with EXHIBIT "C-1"
attached hereto as ANNEX I.
ARTICLE III
CONDITIONS PRECEDENT
The effectiveness of this Amendment is subject to satisfaction of the
following conditions precedent:
(a) The Lender shall have received all of the following,
each dated (unless otherwise indicated) the date of this Amendment,
in form and substance satisfactory to the Lender:
(1) AMENDED AND RESTATED REVOLVING CREDIT NOTE.
The Fourth Amended and Restated Revolving Credit Note,
duly executed by the Borrower, in the original principal
amount of $12,000,000.
(2) COMMITMENT FEE. Payment of a commitment fee
in the amount of $10,000, in immediately available funds,
which commitment fee is non-refundable and shall be deemed
fully earned as of the date of the execution of this
Amendment.
(3) RATIFICATION OF GUARANTY. A Ratification of
Guaranty duly executed by North American Spring & Stamping
Corp. (Delaware).
SECOND AMENDMENT TO LOAN AGREEMENT - Page 2
(4) ADDITIONAL INFORMATION. The Lender shall
have received such additional documents, instruments and
information as the Lender or its legal counsel, Xxxxxxxx
Xxxxxxxx & Xxxxxx P.C., may reasonably request.
(b) The representations and warranties contained herein
and in all other Loan Documents, as amended hereby, shall be true and
correct as of the date hereof as if made on the date hereof.
(c) No Event of Default shall have occurred and be
continuing and no event or condition shall have occurred that with
the giving of notice or lapse of time or both would be an Event of
Default.
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments, and other legal matters incident thereto shall be
satisfactory to the Lender and its legal counsel, Xxxxxxxx Xxxxxxxx &
Xxxxxx P.C.
ARTICLE IV
RATIFICATIONS AND OTHER AGREEMENTS
Section 4.1. RATIFICATIONS. The terms and provisions set forth in
this Amendment shall modify and supersede all inconsistent terms and provisions
set forth in the Agreement and except as expressly modified and superseded by
this Amendment, the terms and provisions of all other documents executed in
connection with the Agreement are hereby ratified and confirmed and shall
continue in full force and effect. Borrower and Lender agree that the Agreement
as amended hereby and all other documents executed in connection with the
Agreement or this Amendment to which Borrower is a party shall continue to be
legal, valid, binding and enforceable in accordance with their respective terms.
Section 4.2. REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants to Lender that (a) the execution, delivery and
performance of this Amendment and any and all other documents executed and/or
delivered in connection herewith have been authorized by all requisite corporate
action on the part of Borrower and will not violate the articles of
incorporation or bylaws of Borrower or any agreement to which Borrower or any of
its properties is bound, (b) neither the articles of incorporation nor the
bylaws of Borrower have been amended or revoked since the date of the Agreement
and such articles of incorporation and bylaws are in full force and effect, (c)
the representations and warranties contained in the Agreement, as amended
hereby, and any other documents executed in connection therewith or herewith are
true and correct on and as of the date hereof as though made on and as of the
date hereof, (d) no Event of Default has occurred and is continuing and no event
or condition has occurred that with the giving of notice or lapse of time or
both would be an Event of Default, and (e) after giving effect to this
Amendment, Borrower is in full compliance with all covenants and agreements
contained in the Agreement as amended hereby.
SECOND AMENDMENT TO LOAN AGREEMENT - Page 3
ARTICLE V
MISCELLANEOUS
Section 5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other document
executed in connection herewith shall survive the execution and delivery of this
Amendment, and no investigation by Lender or any closing shall affect the
representations and warranties or the right of Lender to rely upon them.
Section 5.2. REFERENCE TO AGREEMENT. Each of the Agreement and any
and all other agreements, documents, or instruments now or hereafter executed
and delivered pursuant to the terms hereof or pursuant to the terms of the
Agreement as amended hereby, are hereby amended so that any reference in such
documents to the Agreement shall mean a reference to the Agreement as amended
hereby.
Section 5.3. EXPENSES OF LENDER. As provided in the Agreement,
Borrower agrees to pay on demand all reasonable costs and expenses incurred by
Lender in connection with the preparation, negotiation, and execution of this
Amendment and any other documents executed pursuant hereto and any and all
amendments, modifications, and supplements thereto, including without limitation
the costs and reasonable fees of Lender's legal counsel, and all costs and
expenses incurred by Lender in connection with the enforcement or preservation
of any rights under the Agreement, as amended hereby, or any other document
executed in connection therewith, including without limitation the costs and
reasonable fees of Lender's legal counsel.
Section 5.4. SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.5. APPLICABLE LAW. This Amendment and all other documents
executed pursuant hereto shall be deemed to have been made and to be performable
in Dallas, Dallas County, Texas and shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 5.6. SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of Lender, Borrower, Pledgor and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of Lender.
Section 5.7. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument.
Section 5.8. EFFECT OF WAIVER. No consent or waiver, express or
implied, by Lender to or for any breach of or deviation from any covenant,
condition or duty by Borrower or any
SECOND AMENDMENT TO LOAN AGREEMENT - Page 4
obligated party shall be deemed a consent or waiver to or of any other breach of
the same or any other covenant, condition or duty.
Section 5.9. HEADINGS. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 5.10. NON-APPLICATION OF CHAPTER 15 OF TEXAS CREDIT CODE. The
provisions of Chapter 15 of the Texas Credit Code (Vernon's Annotated Texas
Statutes, Article 5069-15) are specifically declared by the parties not to be
applicable to this Amendment or any of the Loan Documents or the transactions
contemplated hereby.
Section 5.11. ENTIRE AGREEMENT. THE AGREEMENT, THIS AMENDMENT AND ALL
OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION
WITH THE AGREEMENT OR THIS AMENDMENT REPRESENT THE FINAL AGREEMENTS AMONG THE
PARTIES HERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written above.
BORROWER:
HILITE INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title:Chief Executive Officer
LENDER:
COMERICA BANK-TEXAS
By: /s/ J. Xxxxxxx Xxxx
-----------------------
J. Xxxxxxx Xxxx
Vice President
DA972240513
082197 v3
316:3134-488
SECOND AMENDMENT TO LOAN AGREEMENT - Page 5
Annex 1
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REPLACEMENT EXHIBIT C-1
EXHIBIT C-1
FOURTH AMENDED AND RESTATED REVOLVING CREDIT NOTE
COMERICA Bank-Texas
$12,000,000.00 Dallas, Texas
August 23, 1997
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
COMERICA BANK-TEXAS (the "BANK") at 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, on the
Termination Date, the principal sum or so much of the principal sum of Twelve
Million and No/100ths Dollars ($12,000,000.00) as may from time to time have
been advanced and be outstanding hereunder, plus all accrued but unpaid interest
hereon.
All capitalized terms used but not defined herein, shall have the
meanings given to such terms in that certain Amended and Restated Secured Loan
Agreement, dated July 21, 1995, between the undersigned and Bank (as amended,
renewed, extended, modified and restated from time to time, the "AGREEMENT").
Bank may disburse the principal of this Note to Borrower in one or
more Revolving Loans from time to time, in accordance with the Agreement, so
long as the outstanding principal balance hereof never at any time exceeds the
lesser of (i) the Commitment Amount or (ii) the Borrowing Base in effect at such
time. Borrower shall pay to Bank, on demand, any amount by which the aggregate
unpaid principal amount of all Revolving Loans evidenced hereby exceeds the
lesser of (i) the Commitment Amount or (ii) the Borrowing Base in effect at such
time, together with all interest accrued and unpaid on the amount of such
excess. This Note is a Master Note under which sums may or must be repaid from
time to time and under which new Revolving Loans are to be made by Bank pursuant
to the terms and conditions of the Agreement, and the books and records of Bank
shall constitute the best evidence of the amount of the Indebtedness at any time
owing hereunder. This Note is the "REVOLVING CREDIT NOTE" referred to in the
Agreement, and is subject to the terms and provisions thereof, and the holder
hereof is entitled to the benefits thereof and may enforce the agreements
contained therein and exercise the remedies provided for thereby or otherwise in
respect thereof, all in accordance with the terms thereof.
The unpaid principal amount of this Note shall bear interest (i)
until maturity (whether by acceleration or otherwise) at all times during which
there has not occurred or then exist an Event of Default, at a fluctuating rate
per annum equal to the lesser of (a) the Applicable Rate or (b) the Legal Rate
(as hereinafter defined); and (ii) after maturity, as well as at all times
during which there has occurred or then exists an Event of Default, at a
fluctuating rate per annum equal to the lesser of (a) three percent (3.0%) per
annum above the Applicable Rate (the "DEFAULT RATE") or (b) the Legal Rate (the
Applicable Rate and the Default Rate, whichever is in effect at any particular
time, being hereinafter referred to as the "CONTRACT RATE"). Interest shall be
payable to the extent accrued on the first (1st) day of each consecutive
calendar month,
beginning September 1, 1997, until maturity (whether by acceleration or
otherwise) and from and after such maturity, on demand.
The term "APPLICABLE RATE" shall mean (i) with respect to any Prime
Rate Balance, a fluctuating per annum rate of interest equal to one-half of one
percent below the Prime Rate and (ii) with respect to any LIBOR Balance, a per
annum rate of interest equal to one and one-quarter of one percent above the
LIBOR Rate. Each determination by Bank of the LIBOR Rate or Prime Rate, as the
case may be, shall, in the absence of manifest error, be conclusive and binding.
The term "PRIME RATE" shall mean that annual rate of interest
designated by the Bank as its prime rate and which is changed by the Bank from
time to time. The Bank's prime rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged by the Bank to any of its
customers. The Bank may make commercial loans at rates of interest at, above or
below its prime rate.
The term "LIBOR RATE" shall mean, with respect to any LIBOR Interest
Period, the interest rate per annum conclusively determined by the Bank to be
the per annum, rate (as adjusted for any applicable reserve requirements
applicable to "eurocurrency liabilities" pursuant to Regulation D or any other
applicable regulation of the Board of Governors (or any successor) which
prescribes reserve requirements applicable to "eurocurrency liabilities" as
presently defined in Regulation D, or any eurocurrency funding) at which
deposits in immediately available funds in U.S. dollars are offered to the Bank
(at such time as the Bank elects on the first day of such LIBOR Interest Period)
by prime banks in the interbank eurodollar market selected by Bank for delivery
on the first day of such LIBOR Interest Period in an amount equal to the
principal amount of the corresponding LIBOR Balance for a period equal to the
length of such LIBOR Interest Period.
The term "LIBOR INTEREST PERIOD" shall mean a period commencing on
the date upon which, pursuant to an Interest Notice, the LIBOR Balance begins to
accrue interest at the LIBOR Rate (or, in the case of a rollover to a successive
LIBOR Interest Period, the last day of the immediately preceding LIBOR Interest
Period) and ending 30, 60, 90, 180 or 360 days (whichever is selected by the
undersigned in the applicable Interest Notice) after the commencement date;
provided, that, (i) any LIBOR Interest Period which would otherwise end on a day
which is not a LIBOR Business Day shall be extended to the next succeeding LIBOR
Business Day (unless such LIBOR Business Day falls in another calendar month, in
which case such LIBOR Interest Period shall end on the next preceding LIBOR
Business Day); and (ii) any LIBOR Interest Period which begins on the last LIBOR
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR Interest
Period) shall, subject to clause (i) above, end on the last LIBOR Business Day
of a calendar month.
The term "LIBOR BUSINESS DAY" shall mean a day on which dealings in
U.S. dollars are carried out in the interbank eurodollar market selected by
Bank.
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The term "INTEREST NOTICE" shall mean the written notice given by the
undersigned of the Interest Option selected hereunder and specifying the amount
of principal to bear interest at the rate selected.
Subject to the provisions hereof, the undersigned shall have the
option (an "INTEREST OPTION") exercisable from time to time to designate
portions of the unpaid principal balance of this Note to bear interest at the
Prime Rate (such portions being herein referred to as a "PRIME RATE BALANCE") or
at the LIBOR Rate (such portions being referred to as a "LIBOR BALANCE");
provided, however, that no LIBOR Balance designated for any LIBOR Interest
Period shall be less than $500,000. The Interest Option shall be exercisable,
subject to the other limitations in this Note, by the undersigned only in the
manner provided below:
(i) If the undersigned desires the initial Revolving Loan
made hereunder, or a portion thereof, to be a LIBOR Balance, the
undersigned shall give the Bank the initial Interest Notice and the
initial amounts of the Prime Rate Balance and LIBOR Balance at least
two (2) LIBOR Business Days prior to the date hereof. If the required
Interest Notice shall not have been timely received by the Bank or
the undersigned fails to designate all or any portion of the unpaid
principal balance of this Note as either a Prime Rate Balance or a
LIBOR Balance, the undersigned shall be deemed conclusively to have
designated such amounts to be Prime Rate Balances and to have given
the Bank notice of such designation.
(ii) At least two (2) LIBOR Business Days prior to the
termination of any LIBOR Interest Period for a LIBOR Balance, the
undersigned shall give the Bank an Interest Notice specifying the
Interest Option which is to be applicable to such LIBOR Balance upon
the expiration of such LIBOR Interest Period; provided, however, no
Interest Option specifying an interest rate based on the LIBOR Rate
shall end after the Termination Date. If the required Interest Notice
shall not have been timely received by the Bank prior to the
expiration of such LIBOR Interest Period, the undersigned shall be
deemed conclusively to have designated such LIBOR Balance to become a
Prime Rate Balance immediately upon the expiration of such LIBOR
Interest Period and to have given the Bank notice of such
designation.
(iii) The undersigned shall have the right to convert an
eligible portion of the Prime Rate Balance to a LIBOR Balance by
giving the Bank an Interest Notice of such designation at least two
(2) LIBOR Business Days prior to the effective date of such exercise.
An Interest Notice shall be irrevocable and binding on the
undersigned and the undersigned shall indemnify Bank against any loss
or expense incurred by Bank due to sums paid or payable to fund the
LIBOR Balance when such LIBOR Balance is not made on such date.
Each change in the interest rate applicable to the Prime Rate Balance
or the LIBOR Balance shall become effective without prior notice to the
undersigned automatically as of the opening of business on the date of such
change in the Prime Rate or the LIBOR Rate, as the case may be; provided, that,
the LIBOR Rate shall not change during any applicable LIBOR Interest
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Period. Interest on this Note shall be calculated on the basis of a 360-day year
for the actual number of days outstanding.
If the Bank determines that deposits in U.S. dollars (in the
applicable amounts) are not being offered to the Bank in the interbank
eurodollar market selected by the Bank for such LIBOR Interest Period, or that
the rate at which such dollar deposits are being offered will not adequately and
fairly reflect the cost to the Bank of making or maintaining a LIBOR Balance for
the applicable LIBOR Interest Period, the Bank shall forthwith give notice
thereof to the undersigned, whereupon until the Bank notifies the undersigned
that such circumstances no longer exist, (i) the right of the undersigned to
select an Interest Option based upon the LIBOR Rate shall be suspended, and (ii)
each LIBOR Balance in effect shall thereupon automatically be converted into a
Prime Rate Balance in accordance with the provisions hereof. If notice has been
given by the Bank to the undersigned requiring a LIBOR Balance to be repaid or
converted, then unless and until the Bank notifies the undersigned that the
circumstances giving rise to such repayment or conversion no longer apply, the
only Interest Option available shall be a rate based upon the Prime Rate. If the
Bank notifies the undersigned that the circumstances giving rise to such
repayment or conversion no longer apply, the undersigned may thereafter select a
rate based upon the LIBOR Rate in accordance with the terms of this Note.
If the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impractical for the Bank to make or maintain a LIBOR Balance, the Bank shall so
notify the undersigned and any then-existing LIBOR Balance shall automatically
convert to a Prime Rate Balance either (i) on the last day of the then-current
LIBOR Interest Period applicable to such LIBOR Balance, if the Bank may lawfully
continue to maintain and fund such LIBOR Balance to such day, or (ii)
immediately, if the Bank may not lawfully continue to maintain such LIBOR
Balance to such day.
If either (i) the adoption of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Bank
with any request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall subject the Bank to any
tax (including without limitation any United States interest equalization or
similar tax, however named), duty or other charge with respect to any LIBOR
Balance, this Note or the Bank's obligation to compute interest on the principal
balance of this Note at a rate based upon the LIBOR Rate, or shall change the
basis of taxation of payments to the Bank of the principal of or interest on any
LIBOR Balance or any other amounts due under this Note in respect of any LIBOR
Balance or the Bank's obligation to compute the interest on the balance of this
Note at a rate based upon the LIBOR Rate, or (ii) any governmental authority,
central bank or other comparable authority shall at any time impose, modify or
deem applicable any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System) other
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than as is included above, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, the Bank, or
shall impose on the Bank (or its eurodollar lending office) or any relevant
interbank eurodollar market any other condition affecting any LIBOR Balance,
this Note or the Bank's obligation to compute the interest on the balance of
this Note at a rate based upon the LIBOR Rate; and the result of any of the
foregoing is to increase the cost to the Bank of maintaining any LIBOR Balance,
or to reduce the amount of any sum received or receivable by the Bank under this
Note by an amount deemed by the Bank to be material, then upon demand by the
Bank, the undersigned shall pay to the Bank such additional amount or amounts as
will compensate the Bank for such increased cost or reduction. The Bank will
promptly notify the undersigned of any event of which it has knowledge,
occurring after the date hereof, which will entitle the Bank to compensation
pursuant to this paragraph. A certificate of the Bank claiming compensation
under this paragraph and setting forth the additional amount or amounts to be
paid to the Bank hereunder shall be conclusive in the absence of manifest error.
The undersigned may not repay any LIBOR Balance or convert all or any
portion of a LIBOR Balance to a Prime Rate Balance prior to the expiration of
the applicable LIBOR Interest Period, unless (i) such repayment or conversion is
specifically required by the terms of this Note, (ii) the Bank demands that such
repayment or conversion be made, or (iii) the Bank, in its sole discretion,
consents to such repayment or conversion. If for any reason any LIBOR Balance is
repaid or converted prior to the expiration of the corresponding LIBOR Interest
Period, the undersigned shall pay to the Bank on demand any amounts required to
compensate the Bank for any losses, costs or expenses which it may incur as a
result of such repayment or conversion. A certificate of the Bank claiming
compensation under this paragraph and setting forth the additional amount or
amounts to be paid to the Bank hereunder shall be conclusive in the absence of
manifest error.
This Note is secured by the Collateral described in the Agreement
(including, without limitation, all Accounts, Chattel Paper, Documents,
Equipment, Fixtures, Real Property, General Intangibles, Goods, Instruments and
Inventory of North American Spring & Stamping Corp. (Delaware) and the
undersigned), and reference is hereby made to the Agreement for, among other
things, the conditions under which this Note may or must be paid in whole or in
part prior to its due date or its due date accelerated. Bank is hereby granted a
security interest in all property of the undersigned at any time in the
possession of Bank or any Affiliate of Bank (or as to which Bank or any
Affiliate of Bank at any time controls possession by documents or otherwise) and
in all balances of deposit or other accounts (including, without limitation, an
account evidenced by a certificate of deposit) of the undersigned from time to
time with Bank or any Affiliate of Bank.
If an Event of Default occurs and is not cured within the time, if
any, provided for by the Agreement, or the undersigned or any indorser,
guarantor or accommodation party (or any of them) fails to pay this Note or any
Indebtedness when due (by demand, upon maturity, upon acceleration or
otherwise), Bank may at its option and without prior notice to the undersigned
or any indorser, guarantor or accommodation party (or any of them) exercise any
one or more of the rights and remedies granted by the Agreement or any document
contemplated thereby or
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given to a secured party under applicable law, including, without limitation,
the right to accelerate this Note and any other Indebtedness and the right to
sell or liquidate all or any portion of the Collateral, and may set off against
the principal of and interest on this Note or against any other Indebtedness (i)
any amount owing by Bank to the undersigned, (ii) any property of the
undersigned at any time in the possession of Bank or any Affiliate of Bank, and
(iii) any amount in any deposit or other account (including, without limitation,
an account evidenced by a certificate of deposit) of the undersigned with Bank
or any Affiliate of Bank.
If at any time the relevant Contract Rate exceeds the Legal Rate, the
interest payable hereunder shall be computed upon the basis of the Legal Rate,
but any subsequent reduction in the relevant Contract Rate shall not reduce the
applicable interest rate hereunder below the Legal Rate until the aggregate
amount of interest accrued and payable hereunder equals the total amount of
interest which would have accrued hereunder if the applicable interest rate
hereunder had been at all times computed solely on the basis of the relevant
Contract Rate.
No agreements, conditions, provisions or stipulations contained in
this Note, or the default of the undersigned, or the exercise by the holder
hereof of the right to accelerate the payment or the maturity of principal and
interest, or to exercise any option whatsoever contained herein, or in any other
agreements between the undersigned and Bank, or the arising of any contingency
whatsoever, shall entitle the holder of this Note to collect, in any event,
interest exceeding the maximum rate of nonusurious interest allowed from time to
time by applicable state or federal law as now or as may hereinafter be in
effect, including, as to article 5069-1.04 Vernon's Texas Civil Statutes (and as
the same may be incorporated by reference in other Texas statutes), but
otherwise without limitation, that rate based upon the "indicated rate ceiling"
(the "LEGAL RATE") and in no event shall the undersigned be obligated to pay
interest exceeding such Legal Rate; and all agreements, conditions or
stipulations, if any, which may in any event or contingency whatsoever operate
to bind, obligate or compel the undersigned to pay a rate of interest exceeding
the Legal Rate shall be without binding force or effect, at law or in equity, to
the extent only of the excess of interest over such Legal Rate. In the event any
interest is charged in excess of the Legal Rate (the "EXCESS"), the undersigned
acknowledges and stipulates that any such charge shall be the result of an
accidental and bona fide error, and such Excess shall be first applied to reduce
the principal then unpaid hereunder; second, applied to reduce any obligation
for other Indebtedness of the undersigned to Bank; and third, returned to the
undersigned, it being the intention of the parties hereto not to enter at any
time into an usurious or other illegal relationship. The undersigned recognizes
that such an unintentional result could inadvertently occur. By the execution of
this Note, the undersigned covenants that (i) the credit or return of any Excess
shall constitute the acceptance by the undersigned of such Excess, and (ii) the
undersigned shall not seek or pursue any other remedy, legal or equitable,
against Bank or any holder hereof based, in whole or in part, upon the charging
or receiving of any interest in excess of the Legal Rate. For the purpose of
determining whether or not any Excess has been contracted for, charged or
received by Bank or any holder hereof, all interest at any time contracted for,
charged or received by Bank or any holder hereof, in connection with this Note,
shall be amortized, prorated, allocated and spread in equal parts during the
entire term of the Notes. For the sole purpose of computing the extent of the
Indebtedness and obligations of the undersigned asserted hereunder by Bank or
any holder hereof, the figures set forth herein and the
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provisions hereof shall be automatically recomputed by the undersigned, and by
any court considering the same, to give effect to the adjustments or credits
required by this paragraph. Except for any applicable unused line fees incurred
pursuant to the terms of the Agreement, no interest shall accrue hereunder until
the date of the first Revolving Loan made by Bank; thereafter, interest on all
Revolving Loans shall accrue and be computed on the principal balance
outstanding from time to time hereunder until the same is paid in full.
All notices required or permitted under this Note shall be in writing
and shall be deemed to have been delivered when delivered in accordance with the
provisions of the Agreement.
THE UNDERSIGNED AND ALL ACCOMMODATION PARTIES, GUARANTORS AND
ENDORSERS, IF ANY, (I) WAIVE DEMAND AND NOTICE OF DEMAND, (II) WAIVE
PRESENTMENT, NOTICE OF INTENTION TO DEMAND, PROTEST AND NOTICE OF PROTEST,
NOTICE OF DISHONOR, NOTICE OF INTENTION TO ACCELERATE, NOTICE OF ACCELERATION,
AND ALL OTHER NOTICES OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, (III)
AGREE THAT NO EXTENSION OR INDULGENCE TO THE UNDERSIGNED OR RELEASE OR
NON-ENFORCEMENT OF ANY SECURITY, WHETHER WITH OR WITHOUT NOTICE, SHALL AFFECT
THE OBLIGATIONS OF ANY ACCOMMODATION PARTY, GUARANTOR OR ENDORSER, AND (IV)
AGREE TO REIMBURSE THE HOLDER OF THIS NOTE FOR ANY AND ALL COSTS AND EXPENSES
INCURRED IN COLLECTING OR ATTEMPTING TO COLLECT ANY AND ALL PRINCIPAL AND
INTEREST UNDER THIS NOTE (INCLUDING, BUT NOT LIMITED TO, COURT COSTS AND
REASONABLE ATTORNEYS' FEES, WHETHER IN-HOUSE OR OUTSIDE COUNSEL IS USED AND
WHETHER SUCH COSTS AND EXPENSES ARE INCURRED IN FORMAL OR INFORMAL COLLECTION
ACTIONS, FEDERAL BANKRUPTCY PROCEEDINGS, APPELLATE PROCEEDINGS, PROBATE
PROCEEDINGS, OR OTHERWISE).
THIS NOTE SHALL BE CONSTRUED UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF TEXAS AND APPLICABLE FEDERAL LAW, BUT IN ANY EVENT CHAPTER 15 OF TITLE
79, VERNON'S TEXAS CIVIL STATUTES (AND AS THE SAME MAY BE INCORPORATED BY
REFERENCE IN OTHER TEXAS STATUTES) SHALL NOT APPLY TO THE INDEBTEDNESS EVIDENCED
BY THIS NOTE.
The indebtedness evidenced by this Note is in renewal, extension and
modification, but not in extinguishment or novation, of the indebtedness
evidenced by that certain Third Amended and Restated Revolving Credit Note,
dated July 20, 1995, in the original principal amount of $10,000,000, executed
by the undersigned and payable to the order of Bank, and the provisions of this
Note are in renewal, extension, modification and replacement of the provisions
of such note.
This Note shall bind the undersigned and the undersigned's respective
heirs, personal representatives, successors and assigns.
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IN WITNESS WHEREOF, the undersigned has executed this Note this 23
day of August, 1997.
HILITE INDUSTRIES, INC.
By: /S/ Xxxxxx X. Xxxxx
-----------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
DA972250118
082197 v4
316:3134-488
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RATIFICATION OF GUARANTY
This RATIFICATION OF GUARANTY ("RATIFICATION") is made as of the 23rd
day of August, 1997 by NORTH AMERICAN SPRING & STAMPING CORP. (DELAWARE), a
Delaware corporation ("OBLIGATED PARTY"), for the benefit of COMERICA BANK-TEXAS
("LENDER").
R E C I T A L S:
WHEREAS, Lender has agreed to amend that certain Amended and Restated
Secured Loan Agreement dated as of July 21, 1995 executed by and between Lender
and Hilite Industries, Inc. ("BORROWER"), as amended by that certain First
Amendment to Amended and Restated Secured Loan Agreement, effective as of June
30, 1997 (as amended, the "LOAN AGREEMENT") in order to, among other things,
increase the amount of the Revolving Credit Commitment Amount and extend the
Termination Date;
WHEREAS, Lender has conditioned its obligation to amend the Loan
Agreement on the Obligated Party's execution of this Ratification;
NOW, THEREFORE, for and in consideration of the premises herein
contained, and for other good and valuable consideration, the receipt and
sufficiently of which are hereby acknowledged and confessed, Obligated Party
agrees as follows:
A G R E E M E N T S:
1. Obligated Party ratifies and confirms that certain Guaranty dated
as of July 21, 1995, executed by Obligated Party in favor of Lender
("GUARANTY"), and agrees that the Guaranty remains in full force and effect,
continues to be legal, valid, binding, and enforceable in accordance with its
terms, and guarantees the repayment of the Indebtedness (as defined in the
Guaranty), including, without limitation all indebtedness arising under the
Fourth Amended and Restated Revolving Credit Note, and all renewals, extensions,
and modifications thereof, in accordance with, and to the extent of, the
respective terms of the Guaranty.
2. The Obligated Party hereby acknowledges, agrees, and represents
that the Guaranty is a valid and subsisting agreement and that there are no
claims or offsets against, or defenses or counterclaims to, the terms and
provisions of the Guaranty. The Obligated Party further agrees, acknowledges and
represents that the Obligated Party has no claims, offsets or defenses or
counterclaims arising from any of the Lender's acts or omissions or the Lender's
performance under the Guaranty.
3. The representations and warranties of Obligated Party contained in
the Guaranty are true and correct representations of Obligated Party on and as
of the date hereof as though made on and as the date hereof.
4. The Obligated Party represents to Lender that Obligated Party is
not in default under the terms of the Guaranty or any other agreement and that
no event has occurred which, with the passage of time, giving of notice, or
both, would constitute a default under the terms
of the Guaranty. Obligated Party further represents that it is in compliance in
all material respects with all covenants and agreements contained in the
Guaranty.
5. To the extent the Obligated Party now has any claims, offsets,
defenses, or counterclaims against the Lender or the repayment of the Guaranteed
Indebtedness or any portion thereof, whether known or unknown, fixed or
contingent, the same are hereby forever irrevocably waived and released in their
entirety.
6. This Ratification shall be governed by, and construed in
accordance with, the laws of the State of Texas.
7. THE GUARANTY AS RATIFIED BY THIS RATIFICATION REPRESENTS THE FINAL
AGREEMENT BETWEEN OBLIGATED PARTY AND LENDER RELATING TO THE SUBJECT MATTER
HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF OBLIGATED PARTY AND LENDER.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OBLIGATED PARTY AND LENDER.
EXECUTED as of the 23rd day of August, 1997.
OBLIGATED PARTY:
NORTH AMERICAN SPRING &
STAMPING CORP. (DELAWARE),
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title:Chief Executive Officer
DA972330068
082297 v2
316:3134-488
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