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EXHIBIT 10.75
SUBORDINATED SECURITY AGREEMENT
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JPE, INC, A MICHIGAN CORPORATION (THE "DEBTOR")
TAXPAYER I.D. NO.:
CHIEF EXECUTIVE OFFICE: 00000 XXXXXXXXX XXXX, XXXXX 000, XXXXXXX XXXXX, XXXXXXXX
00000
GRANT OF SECURITY INTEREST. The Debtor grants to ASC, INC., A MICHIGAN
CORPORATION, the secured party referred to as "Lender", whose address is Xxx
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, a continuing security
interest in the Collateral listed below, to secure the payment and performance
of all of the Debtor's debt to Lender.
Debt shall include each and every debt, liability and obligation of every type
and description now owed or arising at a later time, whether they are direct or
indirect, joint, several, or joint and several and whether or not of the same
type or class as presently outstanding, which shall collectively be referred to
as "Liabilities." Liabilities shall also include all interest, costs, expenses
and reasonable attorney's fees accruing to or incurred by Lender in collecting
the Liabilities or in the protection, maintenance or liquidation of the
Collateral.
COLLATERAL: Accounts Receivable, Inventory, Equipment, Instruments and Specific.
DESCRIPTION OF COLLATERAL. The Collateral covered by this agreement is all of
the Debtor's property indicated above and as defined below, present and future,
including but not limited to any items listed on any schedule or list attached.
Also included are all proceeds, including but not limited to stock rights,
subscription rights, dividends, stock dividends, stock splits, or liquidating
dividends, and all cash, instruments, accounts, chattel paper and general
intangibles arising from the sale, rent, lease, casualty loss or other
disposition of the Collateral, and any Collateral returned to, repossessed by or
stopped in transit by the Debtor. Also included are the Debtor's books and
records which relates to the Collateral. Where the Collateral is in the
possession of Lender, the Debtor agrees to deliver to Lender any property which
represents an increase in the Collateral or profits or proceeds of the
Collateral.
DEFINITIONS.
1. "ACCOUNTS RECEIVABLE" shall consist of accounts, chattel paper and general
intangibles as those terms are defined in the Michigan Uniform Commercial Code
("UCC"). Also included is any right to a refund of taxes paid at any time to any
governmental entity. Also included are letters of credit, and drafts under them,
given in support of Accounts Receivable. Debtor warrants that its chief
executive office is at the address shown above.
2. "INVENTORY" shall consist of all property held at any location by or for
Debtor for sale, rent, or lease, or furnished or to be furnished by the Debtor
under any contract of service, or raw materials or work in process and their
products, or materials used or consumed in its business, and shall include
containers and shelving useful for storing. Without limiting the security
interest granted, Inventory is presently located at, 00000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxx 00000.
3. "EQUIPMENT" shall consist of any goods at any time acquired, owned or held by
Debtor at any location primarily for use in its business, including, but not
limited to, machinery, fixtures, furniture, furnishings and vehicles, and any
accessions, parts, attachments, accessories, tools, dies, additions,
substitutions, replacements and appurtenances to them or intended for use with
them. Without limiting the security interest granted, Equipment is presently
located at, without limitation, 00000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxx 00000.
4. "INSTRUMENTS" shall consist of Debtor's interest of any kind in any
negotiable instrument or security as those terms are defined in the UCC, or any
other writing which evidences a right to payment of money and is of a type which
is, in the ordinary course of business, transferred by delivery alone or by
delivery with any necessary endorsement or assignment.
5. "SPECIFIC" shall consist of the following and all accessions, parts,
attachments, accessories, additions, substitutions, replacements, appurtenances
and their related rights: all documents, all earned and unearned insurance
premium refunds and all causes of action including, without limitation, causes
of action and recoveries under 11 U.S.C. ss.ss.542-550 and 553.
WARRANTIES AND COVENANTS. The Debtor warrants and covenants to Lender that:
1. It will pay its Liabilities to Lender secured by this agreement;
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2. It is or will become the owner of the Collateral free from any liens,
encumbrances or security interests, except for this security interest, and
existing liens disclosed to and accepted by Lender in writing, and will defend
the Collateral against all claims and demands of all persons at any time
claiming any interest in it;
3. It will keep the Collateral free of liens, encumbrances and other security
interests, unless Lender has approved such encumbrances, maintain it in good
repair, not use it illegally, and exhibit it to Lender on demand;
4. At its own expense, the Debtor will maintain comprehensive casualty insurance
on the Collateral against such risks, in such amounts, with such deductibles and
with such companies as may be satisfactory to Lender, and provide Lender with
proof of insurance acceptable to Lender. Each insurance policy shall contain a
lender's loss payable endorsement satisfactory to Lender and a prohibition
against cancellation or amendment of the policy or removal of Lender as loss
payee without at least 30 days prior written notice to Lender. In all events,
the amounts of such insurance coverages shall conform to prudent business
practices and shall be in such minimum amounts that the Debtor will not be
deemed a co-insurer;
5. It will not sell or offer to sell or otherwise transfer the Collateral, nor
change the location of the Collateral, without the written consent of Lender,
except in the ordinary course of business;
6. It will pay promptly when due all taxes and assessments upon the Collateral,
or for its use or operation;
7. No financing statement covering all or any part of the Collateral or any
proceeds is on file in any public office, unless Lender has approved that
filing. At Lender's request, Debtor will execute one or more financing
statements in form satisfactory to Lender and will pay the cost of filing them
in all public offices wherever filing is deemed by Lender to be desirable;
8. It will immediately notify Lender in writing of any name change or any change
in business organization;
9. It will provide any information that Lender may reasonably request, and will
permit Lender upon prior notice to inspect and copy its books and records during
normal business hours.
ACCOUNTS RECEIVABLE. The Debtor acknowledges that if the Collateral includes
"Accounts Receivable," then until Lender gives notice to Debtor to the contrary,
Debtor will, in the usual course of its business and at its own cost and
expense, on Lender's behalf but not as Lender's agent, demand and receive and
use its best efforts to collect all moneys due or to become due on the Accounts
Receivable. Until Lender gives notice to Debtor to the contrary or until the
Debtor is in default, it may use the funds collected in its business. Upon
notice from Lender or upon default, the Debtor agrees that all sums of money it
receives on account of or in payment or settlement of the Accounts Receivable
shall be held by it as trustee for Lender without commingling with any of its
funds, and shall immediately be delivered to Lender with endorsement to Lender's
order of any check or similar instrument. It is agreed that, at any time Lender
elects, it shall be entitled, in its own name or in the name of the Debtor or
otherwise, but at the expense and cost of the Debtor, to collect, demand,
receive, xxx for or compromise any and all Accounts Receivable, and to give good
and sufficient releases, to endorse any checks, drafts or other orders for the
payment of money payable to the Debtor in payment and, in its discretion, to
file any claims or take any action or proceeding which Lender may deem necessary
or advisable. It is expressly understood and agreed, however, that Lender shall
not be required or obligated in any manner to make any demand or to make any
inquiry as to the nature or sufficiency of any payment received by it or to
present or file any claim or take any other action to collect or enforce the
payment of any amounts which may have been assigned to it or to which it may be
entitled at any time or times. All notices required in this paragraph will be
immediately effective when sent. Such notices need not be given prior to Lender
taking action.
REPRESENTATIONS BY DEBTOR. Debtor represents: (a) that the execution and
delivery of this agreement and the performance of the obligations it imposes do
not violate any law, conflict with any agreement by which it is bound, or
require the consent or approval of any governmental authority or any third
party; (b) that this agreement is a valid and binding agreement, enforceable
according to its terms; and (c) that all balance sheets, profit and loss
statement, and other financial statements furnished to Lender are accurate and
fairly reflect the financial condition of the organizations and persons to which
they apply on their effective dates, including contingent liabilities of every
type, which financial condition has not changed materially and adversely since
those dates. Debtor, other than a natural person, further represents: (a) that
it is duly organized, existing and in good standing pursuant to the laws under
which it is organized; and (b) that the execution and delivery of this agreement
and the performance of the obligations it imposes (i) are within its powers and
have been duly authorized by all necessary action of its governing body; (ii) do
not contravene the terms of its articles of incorporation or organizations, its
by-laws, or any partnership, operating or other agreement governing its affairs.
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PLEDGE. Debtor agrees that:
(a) If any monies become available to Lender that it can apply to any Debt,
Lender may apply them to Debt not secured by this agreement.
(b) Without notice to or the consent of the Debtor, Lender may (i) take any
action it chooses against any Debtor, against any collateral for the Debt, or
against any other person liable for the Debt; (ii) release Debtor, any borrower
or any other person liable for the Debt, release any collateral for the Debt,
and neglect to perfect any interest in any such collateral; (iii) forbear or
agree to forbear from exercising any rights or remedies, including any right of
setoff, that it has against the Debtor, any other person liable for the Debt, or
any other collateral for the Debt; (iv) extend to the Debtor additional Debt to
be secured by this agreement; or (v) renew, extend, modify or amend any Debt,
and deal with Debtor or any other person liable for the Debt as it chooses.
(c) None of the Debtor's obligations under this agreement shall be affected by
(i) any act or omission of Lender; (ii) the voluntary or involuntary
liquidation, sale or other disposition of all or substantially all of the assets
of the Debtor, (iii) any receivership, insolvency, bankruptcy, reorganization or
other similar proceedings affecting the Debtor or any of its assets; or (iv) any
change in the composition or structure of any borrower or any Debtor, including
a merger or consolidation with any other entity.
(d) Lender's rights under this section and this agreement are unconditional and
absolute, regardless of the unenforceability of any provision of any agreement
between the Debtor and Lender, or the existence of any defense, setoff or
counterclaim that the Debtor may be able to assert against Lender.
(e) It waives all rights of subrogation, contribution, reimbursement, indemnity,
exoneration, implied contract, recourse to security, and any other claim (as
that term is defined in the federal Bankruptcy Code, as amended from time to
time) that it may have or acquire in the future against the Debtor, any other
person liable for the Debt, or any collateral for the Debt, because of the
existence of this agreement, the Debtor's performance under this agreement, or
Lender's availing itself of any rights or remedies under this agreement.
(f) If any payment to Lender on any Debt is wholly or partially invalidated, set
aside, declared fraudulent or required to be repaid to the Debtor or anyone
representing the Debtor or the Debtor's creditors under any bankruptcy or
insolvency act or code, under any state or federal law, or under common law or
equitable principles, then this agreement shall remain in full force and effect
or be reinstated, as the case may be, until payment in full to Lender of the
repaid amounts, and of the Debt. If this agreement must be reinstated, the
Debtor agrees to execute and deliver to Lender new agreements and financing
statements, if necessary, in form and substance acceptable to Lender, covering
the Collateral.
DEFAULT/REMEDIES. If the Debtor fails to pay any of the Liabilities when due, or
if a default by anyone occurs under the terms of any agreement related to any of
the Liabilities, or if the Debtor fails to observe or perform any term of this
agreement, or if any representation or warranty contained in this agreement is
untrue, or if there is a material change in the financial condition of the
Debtor which Lender in good faith determines to be materially adverse, then
Lender shall have the rights and remedies provided by law or this agreement,
including but not limited to the right to require the Debtor to assemble the
Collateral and make it available to Lender at a place to be designated by Lender
which is reasonably convenient to both parties, the right to take possession of
the Collateral with or without demand and with or without process of law, and
the right to sell and dispose of it and distribute the proceeds according to
law. In connection with the right of Lender to take possession of the
Collateral, Lender may take possession of any other items of property in or on
the Collateral at the time of taking possession, and hold them for the Debtor
without liability on the part of Lender. If there is any statutory requirement
for notice, that requirement shall be met if Lender sends notice to the Debtor
at least seven (7) days prior to the date of sale, disposition or other event
giving rise to the required notice. The Debtor shall be liable for any
deficiency remaining after disposition of the Collateral.
MISCELLANEOUS.
1. Where the Collateral is located at, used in or attached to a facility leased
by the Debtor, the Debtor will obtain from the lessor a consent to the granting
of this security interest and a subordination of the lessor's interest in any of
the Collateral, in form acceptable to Lender.
2. At its option Lender may, but shall be under no duty or obligation to,
discharge taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral, pay for insurance on the Collateral, and pay
for the maintenance and preservation of the Collateral, and the Debtor agrees to
reimburse Lender on demand for any payment made or expense incurred by Lender,
with interest at the maximum legal rate.
3. No delay on the part of Lender in the exercise of any right or remedy shall
operate as a waiver, no single or partial exercise by Lender of any right or
remedy shall preclude any other exercise of it or the exercise of any other
right or remedy, and no waiver or indulgence by Lender of any default shall be
effective unless in writing and signed by Lender, nor shall a waiver on one
occasion be construed as a waiver of that right on any future occasion.
4. If any provision of this agreement is invalid, it shall be ineffective only
to the extent of its invalidity, and the remaining provisions shall be valid and
effective.
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5. Notice from one party to another relating to this agreement shall be deemed
effective if made in writing (including telecommunications) and delivered to the
recipient's address, telex number or telecopier number set forth above by any of
the following means: (a) hand delivery, (b) registered or certified mail,
postage prepaid, with return receipt requested, (c) first class or express mail,
postage prepaid, (d) Federal Express, Purolator Courier or like overnight
courier service or (e) telecopy, telex or other wire transmission with request
for assurance of receipt in a manner typical with respect to communications of
that type. Notice made in accordance with this section shall be deemed delivered
on receipt if delivered by hand or wire transmission, on the third business day
after mailing if mailed by first class, registered or certified mail, or on the
next business day after mailing or deposit with an overnight courier service if
delivered by express mail or overnight courier.
6. All rights of Lender shall inure to the benefit of Lender's successors and
assigns; and all obligations of the Debtor shall bind the Debtor's heirs,
executors, administrators, successors and assigns. If there is more than one
Debtor, their obligations are joint and several.
7. A carbon, photographic or other reproduction of this agreement is sufficient,
and can be filed as a financing statement. Lender is irrevocably appointed the
Debtor's attorney-in-fact to execute any financing statement on Debtor's behalf
covering the Collateral.
8. The terms and provisions of this security agreement shall be governed by
Michigan law.
INFORMATION SHARING. Lender may provide, without any limitation whatsoever, any
information or knowledge Lender may have about the undersigned or any matter
relating to this agreement and any related documents to any of its subsidiaries
or affiliates or their successors, or to any one or more purchasers or potential
purchasers of this agreement or any related documents, and the undersigned
waives any right to privacy the undersigned may have with respect to such
matters. The Debtor agrees that Lender may at any time sell, assign or transfer
one or more interests or participations in all or any part of its rights or
obligations in this agreement to one or more purchasers whether or not related
to Lender.
WAIVER OF JURY TRIAL. Lender and the Debtor knowingly and voluntarily waive any
right either of them have to a trial by jury in any proceeding (whether sounding
in contract or tort) which is in any way connected with this or any related
agreement, or the relationship established under them. This provision may only
be modified in a written instrument executed by Lender and the Debtor.
SUBORDINATION. This agreement is subordinate to the Security Agreement granted
by this Debtor to Comerica Bank, Detroit, Michigan, which Security Agreement is
hereby agreed and declared by the Debtor and Lender to be prior and superior in
legal rights to this Security Agreement, in accordance with their respective
terms, regardless of the sequence of filing those security agreements and this
Security Agreement. In furtherance of the subordination commitment of Lender,
Lender has entered into a Subordination Agreement with Comerica Bank. This
Security Agreement is expressly subject to all terms and conditions of said
Agreements restricting Lender's exercise of rights hereunder.
DATED: February 7, 2001 DEBTOR:
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JPE, INC.,
A MICHIGAN CORPORATION
Xxxxx X. Xxxxxxxxx
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