1
EXHIBIT 4.2
Form of Amended and Restated Security Agreement
The following document is the form of Amended and Restated Security
Agreement in favor of NBD Bank (now known as Bank One, Michigan) executed by the
Registrant and the following subsidiaries of the Registrant: Creative
Fabrication Corporation, Concept Management Corporation, Xxxxxxx Xxxxx
Corporation, OASP, Inc., OASP II, Inc., Winchester Fabrication Corporation,
Parallel Group International, Inc., Laserweld International, L.L.C., Xxxxx Xxxxx
Capital Corporation, RPI Holdings, Inc., RPI, Inc., Prudenville Manufacturing,
Inc. Oxford Suspension, Inc., and Xxxxxx Industries, Inc. The agreements are
substantially the same in all material respects except as to the identity of the
parties thereto.
2
AMENDED AND RESTATED COMPANY SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT, dated as of May 14, 1999
(this "Security Agreement"), is made by OXFORD AUTOMOTIVE, INC., a Michigan
corporation, (the "Debtor"), in favor of NBD BANK, a Michigan banking
corporation, as agent (in such capacity, the "Agent") for the benefit of itself
and the lenders (the "Lenders") now or hereafter parties to the Credit Agreement
described below.
RECITALS
A. The Debtor has entered into a Security Agreement dated as of June
24, 1997 in favor of the Agent for the benefit of the Lenders (the "Prior
Security Agreement"), in connection with that certain Credit Agreement among the
Debtor and the Borrowing Subsidiaries identified from time to time therein (the
"Borrowing Subsidiaries" and collectively with the Debtor, the "Borrowers") with
the Lenders party thereto and the Agent, dated as of June 24, 1997.
B. The Borrowers have entered into an Amended and Restated Credit
Agreement of even date herewith (as amended or modified from time to time,
including any agreement entered into in substitution therefor, the "Credit
Agreement"), with the Lenders party thereto and the Agent pursuant to which the
Lenders may make Advances (as therein defined) to the Debtor and the Borrowing
Subsidiaries.
C. Under the terms of the Credit Agreement, the Debtor has agreed to
grant to the Agent, for the benefit of itself and the Lenders, a first-priority
security interest, subject only to security interests expressly permitted by the
Credit Agreement, in and to the Collateral hereinafter described.
AGREEMENTS
To secure (a) the prompt and complete payment of all indebtedness and
other obligations of the Debtor and the Borrowing Subsidiaries now or hereafter
owing to the Lenders or the Agent under or on account of the Credit Agreement,
any Security Document or any Letter of Credit,
SECURITY AGREEMENT
-1-
3
notes or other instruments issued to the Agent or any Lender pursuant thereto,
or any other Loan Document, (b) the prompt and complete payment of all Hedging
Obligations of any Debtor, Borrowing Subsidiary or Guarantor owing to any Lender
or any Affiliate of any Lender and (c) the prompt and complete payment of all
indebtedness and obligations of the Debtor pursuant to the Mexican Facility
Tranche A Guaranty, and (d) the prompt and complete payment of all indebtedness
of the Debtor and any other guarantor under any Guaranty, in all cases, of any
kind or nature, howsoever created or evidenced and whether now or hereafter
existing, direct or indirect (including without limitation any participation
interest acquired by any Lender in any such indebtedness, obligations or
liabilities of the Debtor or any Borrowing Subsidiary to any other person),
absolute or contingent, joint and/or several, secured or unsecured, arising by
operation of law or otherwise, and whether incurred by the Debtor or any
Borrowing Subsidiary as principal, surety, endorser, guarantor, accommodation
party or otherwise, including without limitation all principal and all interest
(including any interest accruing subsequent to any petition filed by or against
the Debtor or any Borrowing Subsidiary under the U.S. Bankruptcy Code),
indemnity and reimbursement obligations, charges, expenses, fees, attorneys'
fees and disbursements and any other amounts owing thereunder (all of the
aforesaid indebtedness, obligations and liabilities of the Company and its
Subsidiaries being herein called the "Secured Obligations", and all of the
documents, agreements and instruments among the Company, the Subsidiaries, the
Agent, the Lenders, or any of them, evidencing or securing the repayment of, or
otherwise pertaining to, the Secured Obligations being herein collectively
called the "Operative Documents") for value received and pursuant to the Credit
Agreement, the Debtor hereby grants, assigns and transfers to the Agent for the
benefit of the Lenders a first-priority security interest, subject only to
Permitted Liens, in and to the following described property whether now owned or
existing or hereafter acquired or arising and wherever located (all of which is
herein collectively called the "Collateral"):
(a) All of the Debtor's present and future accounts, documents,
instruments, general intangibles and chattel paper, including, but without
limitation, all accounts receivable, all contract rights, all deposit accounts
and all monies and claims for money due or to become due to the Debtor, all
security held or granted to the Debtor, and all assets described in clause (d)
below;
(b) All of the Debtor's furniture, fixtures, machinery and equipment,
whether now owned or hereafter acquired, and wherever located, and whether used
by the Debtor or any other person, or leased by the Debtor to any person and
whether the interest of the Debtor is as owner, lessee or otherwise;
(c) All of the Debtor's present and future inventory of every type,
wherever located, including but not limited to raw materials, work in process,
finished goods and all inventory that is available for leasing or leased to
others by the Debtor;
SECURITY AGREEMENT
-2-
4
(d) All other present and future assets of the Debtor (whether
tangible or intangible), including but not limited to all trademarks, trade
names, patents, industrial designs, masks, trade secrets, copyrights,
franchises, customer lists, computer programs, software, tax refund claims,
licenses and permits, and the good will associated therewith and all federal,
state, foreign and other applications and registrations therefor, all reissues,
divisions, continuations, renewals, extensions and continuations-in-part thereof
now or hereafter in effect, all income, license royalties, damages and payments
now and hereafter due or payable under and with respect thereto, including,
without limitation, any damages, proceeds or payments for past or future
infringements thereof and all income, royalties, damages and payments under all
licenses thereof, the right to xxx for past, present and future infringements
thereof, all right, title and interest of the Debtor as licensor under any of
the foregoing whether now owned and existing or hereafter arising, and all other
rights and other interests corresponding thereto throughout the world (all of
the assets described in this clause (d) collectively referred to as the
"Intellectual Property");
(e) All books, records, files, correspondence, computer programs,
tapes, disks, cards, accounting information and other data of the Debtor related
in any way to the Collateral described in clauses (a), (b), (c) and (d) above,
including but not limited to any of the foregoing necessary to administer, sell
or dispose of any of the Collateral;
(f) All substitutions and replacements for, and all additions and
accessions to, any and all of the foregoing; and
(g) All products and all proceeds of any and all of the foregoing,
and, to the extent not otherwise included, all payments under insurance (whether
or not the Agent is the loss payee thereof), and any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing.
1. Representations, Warranties, Covenants and Agreements. The Debtor
further represents and warrants to and covenants and agrees with the Agent for
the benefit of the Lenders as follows:
(a) Ownership of Collateral; Security Interest Priority. At the
time any Collateral becomes subject to a security interest of the Agent
hereunder, unless the Agent shall otherwise consent, the Debtor shall be deemed
to have represented and warranted that (i) the Debtor is the lawful owner of
such Collateral and has the right and authority to subject the same to the
security interest of the Agent hereunder; (ii) other than Permitted Liens (as
defined in the Credit Agreement) and lessors' interest with respect to any
security interest in any property leased by the Debtor as lessee, none of the
Collateral is subject to any Lien other than that in
SECURITY AGREEMENT
-3-
5
favor of the Agent for the benefit of the Lenders and there is no effective
financing statement or other filing covering any of the Collateral on file in
any public office, other than in favor of the Agent for the benefit of the
Lenders. This Security Agreement creates in favor of the Agent for the benefit
of the Lenders a valid first-priority security interest, subject only to
Permitted Liens, in the Collateral enforceable against the Debtor and all third
parties and securing the payment of the Secured Obligations. All financing
statements necessary to perfect such security interest in the Collateral have
been delivered by the Debtor to the Agent for filing.
(b) Location of Offices, Records and Facilities. The Debtor's
chief executive office and chief place of business and the office where the
Debtor keeps its records concerning its accounts, contract rights, chattel
paper, instruments, general intangibles and other obligations arising out of or
in connection with the sale or lease of goods or the rendering of services or
otherwise ("Receivables"), and all originals of all leases and other chattel
paper which evidence Receivables, is at the location listed on Schedule 1(b)(i)
hereto. The Debtor will provide the Agent with prior written notice of any
proposed change in the location of its chief executive office. The Debtor's only
other offices and facilities are at the locations set forth in Schedule 1(b)(ii)
hereto. The Debtor will provide the Agent with prior written notice of any
change in the locations of its other offices and the facilities at which any
assets of the Debtor are located. The tax identification number of the Debtor is
set forth on Schedule 1(b)(i). The name of the Debtor is correctly set forth on
the signature pages hereof, and the Debtor operates under no other names. The
Debtor shall not change its name without the prior written consent of the Agent.
(c) Location of Inventory, Fixtures, Machinery and Equipment.
(i) All Collateral consisting of inventory is, and will be, located at the
locations listed on Schedule 1(c)(i) hereto, and at no other locations without
the prior written consent of the Agent. (ii) All Collateral consisting of
fixtures, machinery or equipment, is, and will be, located at the locations
listed on Schedule 1(c)(ii) hereto, and at no other locations without the prior
written consent of the Agent. If the Collateral described in clauses (i) or (ii)
is kept at leased locations or warehoused, the Debtor has obtained appropriate
landlord's lien waivers or appropriate warehousemen's notices have been sent,
each satisfactory to the Agent, unless waived by the Agent.
(d) Liens, Etc. The Debtor will keep the Collateral free at all
times from any and all liens, security interests or encumbrances other than
those described in paragraph 1(a)(ii) and those consented to in writing by the
Required Lenders. The Debtor will not, without the prior written consent of the
Agent, sell, lease, license, transfer, assign or otherwise dispose of, or permit
or suffer to be sold, leased, licensed, transferred, assigned or otherwise
disposed of, any of the Collateral, except for, prior to an Event of Default
only (notwithstanding any other
SECURITY AGREEMENT
-4-
6
agreement), the following: inventory sold in the ordinary course of business and
other assets permitted to be sold, leased, licensed, transferred, assigned or
otherwise disposed under Section 5.2(f) of the Credit Agreement. The Agent or
its attorneys may at any and all reasonable times inspect the Collateral and for
such purpose may enter upon any and all premises where the Collateral is or
might be kept or located.
(e) Insurance. The Debtor shall keep the tangible Collateral
insured at all times against loss by theft, fire and other casualties. Said
insurance shall be issued by a company rated A or better by A.M. Best and shall
be in amounts sufficient to protect the Agent and the Lenders against any and
all loss or damage to the Collateral. The policy or policies which evidence said
insurance shall be delivered to the Agent upon request, shall contain a lender
loss payable clause in favor of the Agent for the benefit of the Lenders, shall
name the Agent for the benefit of the Lenders as an additional insured, as its
interest may appear, shall not permit amendment, cancellation or termination
without giving the Agent at least 30 days' prior written notice thereof, and
shall otherwise be in form and substance satisfactory to the Agent.
Reimbursement under any liability insurance maintained by the Debtor pursuant to
this paragraph 1(e) may be paid directly to the person who shall have incurred
liability covered by such insurance, provided that if there is no Default or
Event of Default (whether before or after any event which caused any
reimbursement under any liability insurance) the Debtor may use the proceeds of
such insurance solely to repair or replace the property damaged if the insurance
proceeds are less than $500,000 and if there is any Event of Default or Default,
and if such reimbursement is greater than $500,000 or there is any Default or
Event of Default such amounts shall be paid to the Agent for application to the
Secured Obligations.
(f) Taxes, Etc. The Debtor will pay promptly, and within the time
that they can be paid without interest or penalty, any taxes, assessments and
similar imposts and charges, not being contested in good faith, which are now or
hereafter may become a Lien upon any of the Collateral. If the Debtor fails to
pay any such taxes, assessments or other imposts or charges in accordance with
this paragraph, the Agent shall have the option to do so and the Debtor agrees
to repay forthwith all amounts so expended by the Agent with interest at the
Overdue Rate.
(g) Further Assurances. The Debtor will do all acts and things
and will execute all financing statements and writings reasonably requested by
the Agent to establish, maintain and continue a perfected and valid security
interest of the Agent for the benefit of the Lenders in the Collateral, and will
promptly on demand pay all reasonable costs and expenses of filing and recording
all instruments, including the costs of any searches deemed necessary by the
Agent, to establish and determine the validity and the priority of the Agent's
security interests for the benefit of the Lenders. A carbon, photographic or
other reproduction of this Security Agreement or any financing statement
covering the Collateral shall be sufficient as a financing statement.
SECURITY AGREEMENT
-5-
7
(h) List of Patents, Copyrights, Mask Works and Trademarks.
Attached hereto as Schedule 1(h)(i) is a list of all patents and patent
applications owned by the Debtor. Attached hereto as Schedule 1(h)(ii) is a list
of all registered copyrights and all mask works and applications therefor owned
by the Debtor. Attached hereto as Schedule 1(h)(iii) is a list of all trademarks
and service marks owned by the Debtor. If the Debtor at any time owns any
additional patents, copyrights, mask works, trademarks, service marks or any
applications therefor not listed on such schedules, the Debtor shall give the
Agent prompt written notice thereof and hereby authorizes the Agent to modify
this Agreement by amending Schedules 1(h)(i), 1(h)(ii) and 1(h)(iii) hereto to
include all future patents, copyrights, mask works, trademarks, service marks
and applications therefor and agrees to execute all further instruments and
agreements, if any, if requested by the Agent to evidence the Agent's interest
for the benefit of the Lenders therein.
(i) Maintenance of Tangible Collateral. The Debtor will cause
the tangible Collateral material to the conduct of its business to be maintained
and preserved in the same condition, repair and working order as when new,
ordinary wear and tear excepted, and in accordance with any manufacturer's
manual, and shall forthwith, or, in the case of any loss or damage to any of the
tangible Collateral as quickly as practicable after the occurrence thereof, make
or cause to be made all repairs, replacements, and other improvements which are
necessary or desirable to such end. The Debtor shall promptly furnish to the
Agent a statement respecting any loss or damage to any of the tangible
Collateral.
(j) Special Rights Regarding Receivables. The Agent or any of its
agents may, at any time and from time to time in its sole discretion and
irrespective of the existence of any Event of Default under this Security
Agreement, verify, directly with each person (collectively, the "Obligors")
which owes any Receivables to the Debtor, the Receivables in any manner. The
Agent or any of its agents may, at any time from time to time after and during
the continuance of an Event of Default under this Security Agreement, notify the
Obligors of the security interest of the Agent for the benefit of the Lenders in
the Collateral and/or direct such Obligors that all payments in connection with
such obligations and the Collateral be made directly to the Agent in the Agent's
name. If the Agent or any of its agents shall collect such obligations directly
from the Obligors, the Agent or any of its agents shall have the right to
resolve any disputes relating to returned goods directly with the Obligors in
such manner and on such terms as the Agent or any of its agents shall deem
appropriate. The Debtor directs and authorizes any and all of its present and
future account debtors to comply with requests for information from the Agent,
the Agent's designees and agents and/or auditors, relating to any and all
business transactions between the Debtor and the Obligors. The Debtor further
directs and authorizes all of its Obligors upon receiving a notice or request
sent by the Agent or the Agent's
SECURITY AGREEMENT
-6-
8
agents or designees to pay directly to the Agent any and all sums of money or
proceeds now or hereafter owing by the Obligors to the Debtor, as provided in
this paragraph 1(j) and any such payment shall act as a discharge of any debt of
such Obligor to the Debtor in the same manner as if such payment had been made
directly to the Debtor. The Debtor agrees to take any and all action as the
Agent may reasonably request to assist the Agent in exercising the rights
described in this paragraph 1(j).
(k) Maintenance of Intellectual Property and Other Intangible
Collateral. The Debtor shall preserve and maintain all rights of the Debtor and
the Agent for the benefit of the Lenders in all material Intellectual Property
and all other material intangible Collateral, including without limitation the
payment of all maintenance fees and filing fees and the taking of all
appropriate action at the Debtor's expense to halt the infringement of any of
the Intellectual Property or other Collateral, provided that, with respect to
halting the infringement of any Intellectual Property or other Collateral, the
Debtor does not need to take all such appropriate action if the Debtor has, or
after Event of Default the Agent has, reasonably determined that it is not in
its best interest to demand or enforce cessation of such infringement or other
conduct because it is either not material or because the adverse consequences to
the Debtor would outweigh the benefits gained by such demand or enforcement.
2. Events of Default. The occurrence of any Event of Default shall be
deemed an Event of Default under this Security Agreement.
3. Remedies. Upon the occurrence of any Event of Default, the Agent
shall have and may exercise any one or more of the rights and remedies provided
to it under this Security Agreement or any of the other Operative Documents or
provided by law, including but not limited to all of the rights and remedies of
a secured party under the Uniform Commercial Code, and the Debtor hereby agrees
to assemble the Collateral and make it available to the Agent at a place to be
designated by the Agent which is reasonably convenient to both parties,
authorizes the Agent to take possession of the Collateral with or without demand
and with or without process of law and to sell and dispose of the same at public
or private sale and to apply the proceeds of such sale to the costs and expenses
thereof (including reasonable attorneys' fees and disbursements, incurred by the
Agent) and then to the payment and satisfaction of the Secured Obligations. Any
requirement of reasonable notice shall be met if the Agent sends such notice to
the Debtor, by registered or certified mail, at least 10 days prior to the date
of sale, disposition or other event giving rise to a required notice. The Agent
may be the purchaser at any such sale. The Debtor expressly authorizes such sale
or sales of the Collateral in advance of and to the exclusion of any sale or
sales of or other realization upon any other collateral securing the Secured
Obligations. The Agent shall have no obligation to preserve rights against prior
parties.
SECURITY AGREEMENT
-7-
9
The Debtor hereby waives as to the Agent and each Lender any right of
subrogation or marshalling of such Collateral and any other collateral for the
Secured Obligations. To this end, the Debtor hereby expressly agrees that any
such collateral or other security of the Debtor or any other party which the
Agent or any Lender may hold, or which may come to the Agent or any Lender's
possession, may be dealt with in all respects and particulars as though this
Security Agreement were not in existence. The parties hereto further agree that
public sale of the Collateral by auction conducted in any county in which any
Collateral is located or in which the Agent or the Debtor does business after
advertisement of the time and place thereof shall, among other manners of public
and private sale, be deemed to be a commercially reasonable disposition of the
Collateral. The Debtor shall be liable for any deficiency remaining after
disposition of the Collateral. Such sale shall be on such terms as the Agent may
determine, for cash or credit or against future delivery in the discretion of
the Agent.
4. Special Remedies Concerning Certain Collateral.
(a) Upon the occurrence of any Event of Default, the Debtor
shall, if requested to do so in writing, and to the extent so requested (i)
promptly collect and enforce payment of all amounts due the Debtor on account
of, in payment of, or in connection with, any of the Collateral, (ii) hold all
payments in the form received by the Debtor as trustee for the Agent and the
Lenders, without commingling with any funds belonging to the Debtor, and (iii)
forthwith deliver all such payments to the Agent with endorsement to the Agent's
order of any checks or similar instruments.
(b) Upon the occurrence of any Event of Default, the Debtor
shall, if requested to do so, and to the extent so requested, notify all
Obligors and other persons with obligations to the Debtor on account of or in
connection with any of the Collateral of the security interest of the Agent for
the benefit of the Lenders in the Collateral and direct such account debtors and
other persons that all payments in connection with such obligations and the
Collateral be made directly to the Agent. The Agent itself may, upon the
occurrence of an Event of Default, so notify and direct any such account debtor
or other person that such payments are to be made directly to the Agent.
(c) Upon the occurrence of any Event of Default, for purposes of
assisting the Agent in exercising its rights and remedies provided to it under
this Security Agreement, the Debtor (i) hereby irrevocably constitutes and
appoints the Agent its true and lawful attorney, for and in the Debtor's name,
place and stead, to collect, demand, receive, xxx for, compromise, and give good
and sufficient releases for, any monies due or to become due on account of, in
payment of, or in connection with the Collateral, (ii) hereby irrevocably
authorizes the Agent to endorse the name of the Debtor, upon any checks, drafts,
or similar items which are received in
SECURITY AGREEMENT
-8-
10
payment of, or in connection with, any of the Collateral, and to do all things
necessary in order to reduce the same to money, (iii) with respect to any
Collateral, hereby irrevocably assents to all extensions or postponements of the
time of payment thereof or any other indulgence in connection therewith, to each
substitution, exchange or release of Collateral, to the addition or release of
any party primarily or secondarily liable, to the acceptance of partial payments
thereon and the settlement, compromise or adjustment (including adjustment of
insurance payments) thereof, all in such manner and at such time or times as the
Agent shall deem advisable and (iv) hereby irrevocably authorizes the Agent to
notify the post office authorities to change the address for delivery of the
Debtor's mail to an address designated by the Agent, and the Agent may receive,
open and dispose of all mail addressed to the Debtor. Notwithstanding any other
provisions of this Security Agreement, it is expressly understood and agreed
that the Agent shall have no duty, and shall not be obligated in any manner, to
make any demand or to make any inquiry as to the nature or sufficiency of any
payments received by it or to present or file any claim or take any other action
to collect or enforce the payment of any amounts due or to become due on account
of or in connection with any of the Collateral.
5. Remedies Cumulative. No right or remedy conferred upon or reserved
to the Agent under any Operative Document is intended to be exclusive of any
other right or remedy, and every right and remedy shall be cumulative and in
addition to every other right or remedy given hereunder or now or hereafter
existing under any applicable law. Every right and remedy of the Agent under any
Operative Document or under applicable law may be exercised from time to time
and as often as may be deemed expedient by the Agent. To the extent that it
lawfully may, the Debtor agrees that it will not at any time insist upon, plead,
or in any manner whatever claim or take any benefit or advantage of any
applicable present or future stay, extension or moratorium law, which may affect
observance or performance of any provisions of any Operative Document; nor will
it claim, take or insist upon any benefit or advantage of any present or future
law providing for the valuation or appraisal of any security for its obligations
under any Operative Document prior to any sale or sales thereof which may be
made under or by virtue of any instrument governing the same; nor will the
Debtor, after any such sale or sales, claim or exercise any right, under any
applicable law to redeem any portion of such security so sold.
6. Conduct No Waiver. No waiver shall be effective unless in writing
executed by the Agent and any waiver or forbearance on the part of the Agent in
enforcing any of its rights under this Security Agreement shall not operate as a
waiver of any other default or of the same default on a future occasion or of
such right.
7. Governing Law; Consent to Jurisdiction; Definitions. This Security
Agreement is a contract made under, and shall be governed by and construed in
accordance with, the law of the
SECURITY AGREEMENT
-9-
11
State of Michigan applicable to contracts made and to be performed entirely
within such State and without giving effect to choice of law principles of such
State. The Debtor agrees that any legal action or proceeding with respect to
this Security Agreement or the transactions contemplated hereby may be brought
in any court of the State of Michigan, or in any court of the United States of
America sitting in Michigan, and the Debtor hereby submits to and accepts
generally and unconditionally the jurisdiction of those courts with respect to
its person and property, and irrevocably appoints the President of the Debtor,
at the Debtor's address set forth in the Credit Agreement, as its agent for
service of process and irrevocably consents to the service of process in
connection with any such action or proceeding by personal delivery to such agent
or to the Debtor or by the mailing thereof by registered or certified mail,
postage prepaid to the Debtor at its address set forth in the Credit Agreement.
Nothing in this paragraph 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 the Debtor or its property in the courts
of any other jurisdiction. The Debtor hereby irrevocably waives any objection to
the laying of venue of any such suit or proceeding in the above described
courts. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement. Unless otherwise defined herein or in
the Credit Agreement, terms used in Article 9 of the Uniform Commercial Code in
the State of Michigan are used herein as therein defined on the date hereof. The
headings of the various subdivisions hereof are for convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8. Notices. All notices, demands, requests, consents and other
communications hereunder shall be delivered in the manner described in the
Credit Agreement.
9. Rights Not Construed as Duties. The Agent and the Lenders neither
assume nor shall any of them have any duty of performance or other
responsibility under any contracts in which the Agent has or obtains, for the
benefit of the Lenders, a security interest hereunder. If the Debtor fails to
perform any agreement contained herein, the Agent may but is in no way obligated
to itself perform, or cause performance of, such agreement, and the reasonable
expenses of the Agent incurred in connection therewith shall be payable by the
Debtor under paragraph 12 hereof. The powers conferred on the Agent hereunder
are solely to protect its interests for the benefit of the Lenders in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Collateral in its possession and accounting
for monies actually received by it hereunder, the Agent shall have no duty as to
any Collateral or as to the taking of any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Collateral.
10. Effect of Agreement. This Security Agreement and the security
afforded hereby is in addition to and not in substitution for any other security
now or hereafter held by Secured Party and is, and is intended to be, a
continuing Security Agreement and shall remain in full
SECURITY AGREEMENT
-10-
12
force and effect until the Obligations have been paid and satisfied in full.
11. Amendments. This Security Agreement may be amended from time to
time any provision hereof may be waived in accordance with the requirements of
Section 8.1 of the Credit Agreement. No such amendment or waiver of any
provision of this Guaranty nor consent to any departure by any Gurantor
therefrom shall in any event e effective unless the same shall be in writing and
signed by the Required Lenders or all of the Lenders, as the case may be, and,
to the extent any rights or duties of the Agent may be affected, the Agent, and
then such amendment, waiver of consent shall be effective only in the specific
instance and for the specific purpose of which given.
12. Severability. If any one or more provisions of this Security
Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected, impaired or prejudiced thereby.
13. Expenses. (a) The Debtor agrees to indemnify the Agent and the
Lenders from and against any and all claims, losses and liabilities growing out
of or resulting from this Security Agreement (including, without limitation,
enforcement of this Security Agreement), except claims, losses or liabilities
resulting from the Agent's or any Lender's gross negligence or willful
misconduct.
(b) The Debtor will, upon demand, pay to the Agent an amount of
any and all reasonable expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, which the Agent may incur in
connection with (i) the administration of this Security Agreement, (ii) the
custody, preservation, use or operation of, or the sale of, collection from or
other realization upon, any of the Collateral, (iii) the exercise or enforcement
of any of the rights of the Agent hereunder or under the Operative Documents, or
(iv) the failure of the Debtor to perform or observe any of the provisions
hereof.
14. Successors and Assigns; Termination. This Security Agreement shall
create a continuing security interest in the Collateral and shall be binding
upon the Debtor, its successors and assigns, and inure, together with the rights
and remedies of the Agent hereunder, to the benefit of the Agent, the Lenders
and their respective successors, transferees and assigns. The Debtor cannot
assign any of its obligations hereunder without the consent of the Lender. Upon
the payment in full in immediately available funds of all of the Secured
Obligations and the termination of all commitments to lend under the Operative
Documents, the security interest granted hereunder shall terminate and all
rights to the Collateral shall revert to the Debtor.
SECURITY AGREEMENT
-11-
13
15. Waiver of Jury Trial. The Agent and the Lenders, in accepting this
Security Agreement, and the Debtor, 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 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 actions
of any of them. Neither the Agent, the Lenders nor the Debtor 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, any Lender or the Debtor except by a
written instrument executed by each of them.
(space intentionally left blank)
SECURITY AGREEMENT
-12-
14
IN WITNESS WHEREOF, the Debtor has caused this Security Agreement to be
duly executed as of the day and year first set forth above.
OXFORD AUTOMOTIVE, INC.
By:
Its:
Accepted and Agreed:
NBD BANK, as Agent on behalf
of the Lenders
By:
Its:
SECURITY AGREEMENT
-13-
