EXECUTION
THE SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
OR AN EXEMPTION FROM REGISTRATION THEREUNDER. PRIOR TO ANY SALE OR TRANSFER OF
THIS CERTIFICATE, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT COVERING SUCH SALE OR TRANSFER, THE H OLDER HEREOF SHALL HAVE DELIVERED
TO THE ISSUER HEREOF (THE "COMPANY") AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM REGISTRATION UNDER THE ACT.
THE SECURITIES REPRESENTED BY THIS NOTE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER PURSUANT TO THE TERMS HEREOF. A COPY OF SUCH RESTRICTIONS SHALL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST.
J.L. FRENCH AUTOMOTIVE
CASTINGS, INC.
7.50 % CONVERTIBLE SUBORDINATED
PROMISSORY NOTE
--------------------------
Date of Issuance: October 15, 1999 $30,000,000
J.L. French Automotive Castings, Inc., a Delaware corporation (the
"COMPANY"), hereby promises to pay to the order of Tower Automotive, Inc. the
principal amount of $30,000,000 together with interest thereon calculated from
the date hereof in accordance with the provisions of this Note. For purposes
hereof, "NOTES" shall mean this Note and any Note issued upon transfer of all or
any portion of this Note.
1. PAYMENT OF INTEREST.
(a) INTEREST RATE. Interest shall accrue at the rate of seven and
one-half percent (7.50%) per annum (computed on the basis of a 360-day year
and the actual number of days elapsed in any year) on the unpaid principal
amount of this Note outstanding from time to time, or (if less) at the highest
rate then permitted under applicable law.
(b) PAYMENT. The Company shall pay to the holder of this Note all
accrued interest on the last day of each December, March, June and September,
beginning December 31,
1999; PROVIDED, HOWEVER, that, if a Constraining Circumstance exists and is
continuing on such payment date, only those funds which could be paid without a
Constraining Circumstance occurring and continuing shall be used to pay interest
to the holders of the Notes. Unless prohibited under applicable law, any
accrued interest which is not paid on the date on which it is due and payable
shall bear interest at the same rate at which interest is then accruing on the
principal amount of this Note until such interest is paid. Any accrued interest
which for any reason has not theretofore been paid shall be paid in full on the
date on which the final principal payment on this Note is made. Interest shall
accrue on any principal payment due under this Note until such time as payment
therefor is actually delivered to the holder of this Note.
2. PAYMENT OF PRINCIPAL ON NOTE.
(a) SCHEDULED PAYMENTS. The Company shall pay the principal amount
of this Note (or if the principal amount then outstanding on this Note is less
than such amount, the remaining principal then outstanding), together with all
accrued and unpaid interest on October 15, 2009. The obligation of the Company
to make payment on the foregoing date is hereinafter referred to as the
"SCHEDULED PAYMENT."
(b) PREPAYMENTS. The Company may, at any time and from time to time
without premium or penalty, prepay all or any portion of the outstanding
principal amount of the Notes; provided that (A) such prepayment is not
prohibited by the provisions of paragraph 3 hereof and (B) the Company has paid
all interest on the Notes accrued through the immediately preceding scheduled
interest payment date. In connection with each prepayment of principal
hereunder, the Company shall also pay all accrued and unpaid interest on the
principal amount of the Notes being repaid. To exercise its option to make any
optional prepayment hereunder, the Company must give the holder hereof written
notice of such prepayment not less than five days and not more than thirty days
prior to the date fixed for such prepayment, specifying the date of proposed
prepayment, the aggregate principal amount of all Notes to be prepaid on such
date, the aggregate amount of interest to be paid with such aggregate prepayment
of principal on such date, the principal amount of this Note to be prepaid on
such date, and the amount of interest to be paid with such prepayment of
principal on this Note. The holder of this Note may elect to convert all or a
portion of the principal amount of this Note rather than receive such
prepayment. In the event of such election, the holder shall deliver to the
Company in person or by registered or certified mail, return receipt requested,
such holder's Note on or prior to the date of prepayment and such conversion
shall be effected in accordance with the terms of paragraph 6 hereof.
3. SUBORDINATION.
(a) EXTENT OF SUBORDINATION.
(i) The Subordinated Obligations are expressly "subordinate and
junior in right of payment" (as that phrase is defined in paragraph (ii) below)
to all Senior Obligations.
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(ii) "SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT" means that:
(A) no part of the Subordinated Obligations shall have any
claim to the assets or securities of the Company on a parity with or
prior to the claim of the Senior Obligations; and
(B) unless and until the Senior Obligations have been paid in
full in cash and the Commitments under the Senior Credit Agreement
have been terminated, without the express prior written consent of the
Administrative Agent, the holders of this Note will not take, demand
or receive from the Company, and the Company will not make, give or
permit, directly or indirectly, by set-off, redemption, purchase or
in any other manner, any payment of or security for the whole or any
part of the Subordinated Obligations, including, without limitation,
any guarantee, letter of credit or similar credit support facility to
support payment of the Subordinated Obligations; PROVIDED, HOWEVER,
except upon the occurrence and during the continuance of a payment
default under the Senior Credit Agreement or an Event of Default (as
defined in the Senior Credit Agreement), the Company may make, and the
holder of this Note may receive, scheduled payments on account of
interest on this Note in accordance with the terms thereof as in
effect on the date hereof; and
(C) the holder of this Note will not accelerate for any reason
payment of any amount owing under this Note; PROVIDED; HOWEVER, that
upon the occurrence of an acceleration of all amounts owed under the
Senior Credit Agreement the holder of this Note may accelerate the
Schedule Payment, together with any accrued and unpaid interest.
(b) ADDITIONAL PROVISIONS CONCERNING SUBORDINATION
(i) Upon the occurrence of any Insolvency Event:
(A) all Senior Obligations shall be paid in full in cash before
any payment or distribution is made with respect to the Subordinated
Obligations; and
(B) any payment or distribution of assets or securities of the
Company, whether in cash, property or securities, to which the holder
of this Note would be entitled except for the provisions hereof, shall
be paid or delivered by the Company, or any receiver, trustee in
bankruptcy, liquidating trustee, disbursing agent or other Person
making such payment or distribution, directly to the Administrative
Agent, for the account of the Senior Lenders, to the extent necessary
to pay in full in cash all Senior Obligations, before any payment or
distribution shall be made to the holders of this Note.
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(ii) If any payment or distribution, whether consisting of
money, property or securities, shall be collected or received by the
Subordinated Lender or any other holder of this Note in respect of the
Subordinated Obligations, except payments permitted to be made at the time of
payment as provided in paragraph 3(a)(ii)(B), the Subordinated Lender or such
holder forthwith shall deliver the same to the Administrative Agent for the
account of the Senior Lenders, in the form received, duly indorsed to the
Administrative Agent, if required, to be applied to the payment or prepayment of
(or, in the case of unmatured obligations in respect of letters of credit, as
collateral for) the Senior Obligations until the Senior Obligations are paid in
full in cash. Until so delivered, such payment or distribution shall be held in
trust by the Subordinated Lender or such holder as the property of the Senior
Lenders, segregated from other funds and property held by the Subordinated
Lender or such holder.
(c) SUBROGATION. Subject to the payment in full in cash of the
Senior Obligations (other than any indemnification obligations under the Senior
Credit Agreement not due and payable), the Subordinated Lender shall be
subrogated to the rights of the Senior Lenders to receive payments or
distributions of assets or securities of the Company in respect of the Senior
Obligations until the Senior Obligations (other than any indemnification
obligations under the Senior Credit Agreement not due and payable) shall be paid
in full in cash. For the purposes of such subrogation, payments or distribution
to the Administrative Agent, for the account of the Senior Lenders, of any
money, property or securities to which the Subordinated Lender would be entitled
except for the provisions hereof shall be deemed, as between the Company and its
creditors other than the Senior Lenders and the Subordinated Lender, to be a
payment by the Company to or on account of Subordinated Obligations, it being
understood that the provisions hereof are, and are intended solely, for the
purpose of defining the relative rights of the Subordinated Lender, on the one
hand, and the Senior Lenders, on the other hand.
(d) The subordination provisions of this Note are not intended to
impact the rights of the holder of this Note to convert this Note into common
equity of the Company in accordance with Section 6 hereof.
4. EVENTS OF DEFAULT.
(a) DEFINITION. For purposes of this Note, an Event of Default shall
be deemed to have occurred if:
(i) the Company fails to pay when due and payable (whether at
maturity or otherwise) the full amount of any principal payment on any Note;
(ii) the Company fails to perform or observe any other provision
contained in the Notes, and such failure is not cured within 30 days after the
occurrence hereof;
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(iii) any representation or warranty, or any writing furnished by
the Company to any holder of the Notes, is false or misleading in any material
respect on the date made or furnished;
(iv) the Company or any Subsidiary makes an assignment for the
benefit of creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is entered
adjudicating the Company or any Subsidiary bankrupt or insolvent; or any order
for relief with respect to the Company or any Subsidiary is entered under the
Federal Bankruptcy Code; or the Company or any Subsidiary petitions or applies
to any tribunal for the appointment of a custodian, trustee, receiver or
liquidator of the Company or any Subsidiary, or of any substantial part of the
assets of the Company or any Subsidiary, or commences any proceeding (other than
a proceeding for the voluntary liquidation and dissolution of any Subsidiary)
relating to the Company or any Subsidiary under any bankruptcy reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction; or any such petition or application is filed, or any such
proceeding is commenced, against the Company or any Subsidiary and either
(A) the Company or any such Subsidiary by any act indicates its approval
thereof, consent thereto or acquiescence therein or (B) such petition,
application or proceeding is not dismissed within 60 days; or
(v) a Change of Control occurs.
The foregoing shall constitute Events of Default whatever the reason
or cause for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
(b) CONSEQUENCES OF EVENTS OF DEFAULT.
(i) Subject to the provisions of paragraph 3 (including
paragraph (a)(ii)(C) thereof), if an Event of Default of the type described in
subparagraph 5(a)(iv) has occurred, the aggregate principal amount of the Notes
(together with all accrued interest thereon and all other amounts due and
payable with respect thereto) shall become immediately due and payable without
any action on the part of the holders of the Notes, and the Company shall
immediately pay to the holders of the Notes all amounts due and payable with
respect to the Notes.
(ii) Subject to the provisions of paragraph 3 (including
paragraph (a)(ii)(C) thereof), if any Event of Default (other than under
subparagraph 5(a)(iv)) has occurred and is continuing, the holder may declare
all or any portion of the outstanding principal amount of this Note (together
with all accrued interest thereon and all other amounts due and payable with
respect thereto) to be immediately due and payable and may demand immediate
payment of all or any portion of the outstanding principal amount of this Note
(together with all such other amounts then due and payable). The Company shall
give prompt written notice of any such demand to the other holders of Notes,
each of which may demand immediate payment of all or any portion of such
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holder's Note. If any holder or holders of the Notes demand immediate payment
of all or any portion of the Notes, the Company shall immediately pay to such
holder or holders all amounts due and payable with respect to such Notes.
(iii) Each holder of the Notes shall also have any other rights
which such holder may have been afforded under any contract or agreement at any
time and any other rights which such holder may have pursuant to applicable law.
(iv) The Company hereby waives diligence, presentment, protest
and demand and notice of protest and demand, dishonor and nonpayment of this
Note, and expressly agrees that this Note, or any payment hereunder, may be
extended from time to time and that the holder hereof may accept security for
this Note or release security for this Note, all without in any way affecting
the liability of the Company hereunder.
5. RESTRICTION ON TRANSFER. No holder of any Note shall sell,
transfer, assign, pledge or otherwise dispose of (whether with or without
consideration and whether voluntarily or involuntarily or by operation of law)
any interest in a Note, other than to a wholly owned Subsidiary of such holder
without the prior written consent of the Company.
6. CONVERSION.
(a) CONVERSION PROCEDURE.
(i) At any time and from time to time prior to the payment of
this Note in full, the holder of this Note may convert all or any portion of the
outstanding principal amount of this Note and any accrued but unpaid interest
thereon into a number of shares of the Conversion Stock determined by dividing
the principal amount and any accrued but unpaid interest designated by such
holder to be converted, by the Conversion Price then in effect.
(ii) Except as otherwise expressly provided herein, each
conversion of this Note shall be deemed to have been effected as of the close of
business on the date on which this Note has been surrendered for conversion at
the principal office of the Company. At such time as such conversion has been
effected, the rights of the holder of this Note as such holder to the extent of
the conversion shall cease, and the Person or Persons in whose name or names any
certificate or certificates for shares of Conversion Stock are to be issued upon
such conversion shall be deemed to have become the holder or holders of record
of the shares of Conversion Stock represented thereby.
(iii) Notwithstanding any other provision hereof, if a conversion
of any portion of this Note is to be made in connection with a registered public
offering or a sale of the Company, the conversion of any portion of this Note
may, at the election of the holder hereof, be conditioned upon the consummation
of the public offering or the sale of the Company, in which case such conversion
shall not be deemed to be effective until the consummation of such transaction.
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(iv) As soon as possible after a conversion has been effected
(but in any event within five business days in the case of clause (A) below),
the Company shall deliver to the converting holder:
(A) a certificate or certificates representing the number of
shares of Conversion Stock issuable by reason of such conversion in such
name or names and such denomination or denominations as the converting
holder has specified; and
(B) a new Note representing any portion of the principal amount
which was represented by the Note surrendered to the Company in connection
with such conversion but which was not converted.
(v) The issuance of certificates for shares of Conversion Stock
upon conversion of this Note shall be made without charge to the holder hereof
for any issuance tax in respect thereof or other cost incurred by the Company in
connection with such conversion and the related issuance of shares of Conversion
Stock. Upon conversion of this Note, the Company shall take all such actions as
are necessary in order to insure that the Conversion Stock issuable with respect
to such conversion shall be validly issued, fully paid and nonassessable.
(vi) The Company shall not close its books against the transfer
of Conversion Stock issued or issuable upon conversion of this Note in any
manner which interferes with the timely conversion of this Note. The Company
shall assist and cooperate with any holder of this Note required to make any
governmental filings or obtain any governmental approval prior to or in
connection with the conversion of this Note (including, without limitation,
making any filings required to be made by the Company).
(vii) The Company shall at all times reserve and keep available
out of its authorized but unissued shares of Conversion Stock, solely for the
purpose of issuance upon the conversion of the Note, such number of shares of
Conversion Stock issuable upon the conversion of all outstanding Notes. All
shares of Conversion Stock which are so issuable shall, when issued, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges. The Company shall take all such actions as may be necessary to assure
that all such shares of Conversion Stock may be so issued without violation of
any applicable law or governmental regulation or any requirements of any
domestic securities exchange upon which shares of Conversion Stock may be listed
(except for official notice of issuance which shall be immediately delivered by
the Company upon each such issuance).
(b) CONVERSION PRICE. The initial Conversion Price shall be $5896.75
(the "CONVERSION PRICE").
(c) SUBDIVISION OR COMBINATION OF COMMON STOCK. If the Company at
any time subdivides (by any stock split, stock dividend or otherwise) one or
more classes of its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately
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prior to such subdivision shall be proportionately reduced, and if the Company
at any time combines (by reverse stock split or otherwise) one or more classes
of its outstanding shares of Common Stock into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(d) REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
Any recapitalization, reorganization, reclassification, consolidation, merger,
sale of all or substantially all of the Company's assets or other transaction,
which in each case is effected in such a manner that holders of Common Stock are
entitled to receive (either directly or upon subsequent liquidation) stock,
securities or assets with respect to or in exchange for Common Stock is referred
to herein as an "Organic Change." Prior to the consummation of any Organic
Change, the Company shall make lawful and adequate provision (in form and
substance satisfactory to the holders of a majority of the principal amount of
the Notes then outstanding) to insure that each of the holders of the Notes
shall thereafter have the right to acquire and receive, in lieu of or addition
to (as the case may be) shares of Conversion Stock immediately theretofore
acquirable and receivable upon the conversion of such holder's Note, such shares
of stock, securities or assets as may be issued or payable with respect to or in
exchange for the number of shares of Conversion Stock immediately theretofore
acquirable and receivable upon conversion of such holder's Note had such Organic
Change not taken place. In any such case, appropriate provision (in form and
substance satisfactory to the holders of a majority of the principal amount of
the Notes then outstanding) shall be made with respect to such holder's rights
and interests to insure that the provisions of this paragraph 6 shall thereafter
be applicable in relation to any shares of stock, securities or assets
thereafter deliverable upon the conversion of the Notes (including, in the case
of any such consolidation, merger or sale in which the successor entity or
purchasing entity is other than the Company, an immediate adjustment of the
Conversion Price to the value for the Common Stock reflected by the terms of
such consolidation, merger or sale, and a corresponding immediate adjustment in
the number of shares of Conversion Stock acquirable and receivable upon
conversion of the Notes, if the value so reflected is less than the Conversion
Price in effect immediately prior to such consolidation, merger or sale). The
Company shall not effect any such consolidation, merger or sale, unless prior to
the consummation thereof, the successor entity (if other than the Company)
resulting from consolidation or merger or the entity purchasing such assets
assumes by written instrument (in form reasonably satisfactory to the holders of
a majority of the principal amount of the Notes then outstanding), the
obligation to deliver to each such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder may be
entitled to acquire.
(e) NOTICES.
(i) Immediately upon any adjustment of the Conversion Price,
the Company shall send written notice thereof to the holder of this Note,
setting forth in reasonable detail and certifying the calculation of such
adjustment.
(ii) In order to permit the holder of this Note to exercise its
conversion rights set forth in this paragraph 6, the Company shall send written
notice to the holder of this Note
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at least 20 days prior to the date on which the Company closes its books or
takes a record (A) with respect to any dividend or distribution upon the Common
Stock, (B) with respect to any pro rata subscription offer to holders of Common
Stock or (C) for determining rights to vote with respect to any Organic Change,
dissolution or liquidation.
(f) The Company shall also give at least 20 days prior written notice
of the date on which any Organic Change, dissolution or liquidation shall take
place.
7. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the holder of this Note that as of the Date of
Issuance:
(i) ORGANIZATION, ETC. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to carry
on its businesses as now conducted and presently proposed to be conducted and to
carry out the transactions contemplated by this Agreement, except where the
failure to have such power and authority would not have a material adverse
effect upon the business or financial condition of the Company.
(ii) CAPITAL STOCK AND RELATED MATTERS.
(A) As of the Date of Issuance, (a) the authorized capital
stock of the Company will consist of 20,000 of Class A Common, 30,000
shares of Class B Common, 20,000 shares of Class C Common, 15,000 shares of
Class D-1 Common, 15,000 shares of Class D-2 Common and 20,000 shares of
Class E Common, (b) the Company will have issued, and there will be
outstanding, 9,763.75455 shares of Class A Common, 20,659.90688 shares of
Class B Common, 5,164.97674 shares of Class C Common, 6,590.18691 shares of
Class D-1 Common, 6,817.43451 shares of Class D-2 Common and 2,631.90538
shares of Class E Common, and (c) the Company will have reserved for
issuance upon conversion of the Notes 5,087.5480 shares of Class A Common.
(B) As of the Date of Issuance, the Company will not have
outstanding any stock or securities convertible or exchangeable for any
shares of its capital stock, nor will it have outstanding any rights,
subscriptions, warrants, agreements, commitments or options to subscribe
for or to purchase any capital stock or any stock or securities convertible
into or exchangeable for any capital stock, except for this Note and the
Stockholders Agreement and outstanding offers to members of the Company's
management to acquire shares of Common Stock. As of the Date of Issuance,
all of the outstanding shares of the Company's capital stock will have been
duly authorized, and upon payment therefore will be validly issued and will
be fully paid and nonassessable.
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(iii) AUTHORIZATION; NO BREACH. The execution, delivery and
performance of this Note has been duly authorized by the Company. This Note
constitutes the valid and binding obligation of the Company enforceable in
accordance with its terms, subject to the availability of equitable remedies and
to the laws of bankruptcy and other similar laws affecting creditors' rights
generally. The execution and delivery by the Company of this Note and all other
agreements and instruments contemplated hereby and thereby to be executed by the
Company and the offer, sale and issuance of the Notes, the Conversion Stock upon
conversion of the Notes do not and will not (i) conflict with or result in a
breach of the terms, conditions or provisions of, (ii) constitute a default
under, (iii) result in the creation of any lien, security interest, charge or
encumbrance upon the Company's capital stock or assets pursuant to, (iv) give
any third party the right to accelerate any obligation under, (v) result in a
violation of, or (vi) require any authorization, consent, approval, exemption or
other action by or notice to or filing with any court or administrative or
governmental body (other than in connection with certain state and federal
securities laws) or any other third party pursuant to, the Company's Certificate
of Incorporation or Bylaws, or any law, statute, rule, regulation, instrument,
order, judgment or decree to which the Company is subject or any agreement or
instrument to which the Company is a party, or by which its assets are bound,
except where the existence of any such conflict, breach, default, right to
accelerate or violation, or the creation of any such lien, security interest,
charge or encumbrance, or the failure to obtain, take or make any such
authorization, consent, approval, exemption, other action, notice or filing,
could not reasonably be expected to, individually or in the aggregate, have a
material adverse effect on the financial condition, operating results, assets,
operations or business prospects of the Company and its Subsidiaries taken as a
whole.
(b) REPRESENTATIONS AND WARRANTIES OF THE HOLDERS. Each holder of
Notes hereby severally represents and warrants to and covenants and agrees with,
the Company that:
(i) such holder has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the securities purchased
hereunder and has had full access to such other information concerning the
Company as such holder may have requested and that in making its decision to
invest in the securities being purchased hereunder it is not in any way relying
on the fact that any other person has decided to be a holder hereunder or to
invest in the securities; and
(ii) such holder (a) is an "accredited investor" as defined in
Rule 501(a) under the Securities Act or (b) by reason of its business and
financial experience, and the business and financial experience of those
retained by it to advise it with respect to its investment in the securities
being purchased hereunder, it, together with such advisors, has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of its prospective investment in such
securities, is able to bear the economic risk of such investment and, at the
present time, is able to afford a complete loss of such investment.
8. AMENDMENT AND WAIVER. Except as otherwise expressly provided
herein, the provisions of the Notes may be amended and the Company may take any
action herein prohibited,
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or omit to perform any act herein required to be performed by it, only if the
Company has obtained the written consent of the holders of a majority of the
outstanding principal amount of the Notes, and with respect to amendments to
paragraph 3 hereof and defined terms related thereto, the Administrative Agent.
9. DEFINITIONS. For purposes of the Notes, the following
capitalized terms have the following meaning.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, as
administrative agent under the Senior Credit Agreement, and any successor
thereto or the lead agent under the Senior Credit Agreement.
"AFFILIATES" means, with respect to any Person, each Person that
directly or indirectly controls, is controlled by, or is under common control
with such Person. "Affiliate" shall include all the partners of any Person
which is a partnership and with respect to any Person, all employees of such
Person.
"CLASS A COMMON STOCK" means the Company's Class A Common Stock, par
value $.01 per share.
"CLASS B COMMON STOCK" means the Company's Class B Common Stock, par
value $.01 per share.
"CLASS C COMMON STOCK" means the Company's Class C Common Stock, par
value $.01 per share.
"CLASS D-1 COMMON STOCK" means the Company's Class D-1 Common Stock,
par value $.01 per share.
"CLASS D-2 COMMON STOCK" means the Company's Class D-2 Non-Voting
Common Stock, par value $.01 per share.
"CLASS E COMMON STOCK" means the Company's Class E Common Stock, par
value $.01 per share.
"COMMON STOCK" means, collectively the Company's Class A Common Stock,
the Company's Class B Common Stock, Class C Common Stock, Class D-1 Common
Stock, Class D-2 Common Stock and Class E Common Stock and any capital stock of
any class of the Company hereafter authorized which is not limited to a fixed
sum or percentage of par or stated value in respect to the rights of the holders
thereof to participate in dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Company.
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"CHANGE OF CONTROL" means either (i) that Onex American Holdings LLC,
J2R Partners III and their respective Affiliates cease collectively to own 10%
of the then outstanding Common Stock of the Company or (ii) the Company and its
subsidiaries sell all or substantially all of their assets.
"CONVERSION STOCK" means shares of the Company's authorized but
unissued Class A Common Stock; provided that if there is a change such that the
securities issuable upon conversion of the Notes are issued by an entity other
than the Company or there is a change in the class of securities so issuable,
then the term "Conversion Stock" shall mean one share of the security issuable
upon conversion of this Note if such security is issuable in shares, or shall
mean the smallest unit in which such security is issuable if such security is
not issuable in shares.
"CONSTRAINING CIRCUMSTANCE" means either (i) the payment of interest
to the holder of this Note by the Company (or the payment by a Subsidiary of the
Company to the Company of funds for the purpose of paying interest to the holder
of this Note) would result in a breach by the Company (or such Subsidiary) of
one or more covenants in any agreement pursuant to which one or more financial
institutions or pension funds made loans to the Company and/or its Subsidiaries
of at least $10,000,000 or (ii) in the reasonable good faith judgment of the
Board, the Company does not have funds available to permit it to pay accrued but
unpaid interest in full to the holder of this Note.
"INSOLVENCY EVENT" means any of the events described in Section 9(f)
of the Senior Credit Agreement.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"SENIOR CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement, dated as of October 15, 1999, among the Company, Automotive
Components Investments Limited, Morris Ashby Limited, the several banks and
other financial institutions from time to time parties thereto, Bank of America
NA, as syndication agent, Chase Manhattan International Limited, as
administrative agent for the English Lenders and the Euro Lenders, and the
Administrative Agent, and all guarantees, security and collateral documents and
related documents delivered in connection therewith, as such Credit Agreement
may be amended, modified, supplemented or replaced from time to time, including,
without limitation, amendments, modifications, supplements and restatements
thereof giving effect to increases, renewals, extensions, refundings, deferrals,
restructurings, replacements or refinancings of, or additions to, the
arrangements provided in such Credit Agreement (whether provided by the original
Administrative Agent and Lenders under such Credit Agreement or a successor
Administrative Agent or other Lenders).
"SENIOR DEFAULT" means a Default as defined in the Senior Credit
Agreement.
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"SENIOR EVENT OF DEFAULT" means an Event of Default as defined in the
Senior Credit Agreement.
"SENIOR LENDERS" means the holders from time to time of Senior
Obligations.
"SENIOR OBLIGATIONS" means (i) the collective reference to the
Domestic Obligations and the Foreign Subsidiary Obligations (as defined in the
Senior Credit Agreement), (ii) all Indebtedness under the 11-1/2% Senior
Subordinated Notes Due 2009, and (iii) any other indebtedness of the Company
expressly senior by its terms to the Notes.
"STOCKHOLDERS AGREEMENT" means that certain investor stockholders
agreement, dated as of April 21, 1999 among the Company and certain stockholders
of the Company.
"SUBORDINATED LENDER" means Tower Automotive, Inc., a Delaware
corporation.
"SUBORDINATED LOAN" means the loan made by the Subordinated Lender
pursuant to this Note.
"SUBORDINATED LOAN DOCUMENTS" means the collective reference to this
Note and any other documents or instruments that from time to time evidence the
Subordinated Obligations or secure or support payment or performance thereof.
"SUBORDINATED OBLIGATIONS" means the collective reference to the
unpaid principal of and interest on the Subordinated Loan and all other
obligations and liabilities of the Company to the Subordinated Lender
(including, without limitation, interest accruing at the then applicable rate
provided in this Note after the maturity of the Subordinated Loan and interest
accruing at the then applicable rate provided in this Note after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Note, the Subordinated Loan, or any other Subordinated Loan
Documents, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Subordinated Lender
that are required to be paid by the Company pursuant to the terms of this Note
or any other Subordinated Loan Documents).
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or
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other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons shall be
deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control
any managing director or general partner of such limited liability company,
partnership, association or other business entity.
10. CANCELLATION. After all principal and accrued interest at any
time owed on this Note has been paid in full, this Note shall be surrendered to
the Company for cancellation and shall not be reissued.
11. PAYMENTS. All payments to be made to the holders of the Notes
shall be made in the lawful money of the United States of America in immediately
available funds.
12. PLACE OF PAYMENT. Payments of principal and interest shall be
delivered to holder hereof at the following address:
Tower Automotive, Inc.
6303 28th Street S.E.
Grand Rapids, Michigan 49546
or to such other address or to the attention of such other person as specified
by prior written notice to the Company.
13. GOVERNING LAW. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Note shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of New York.
14. BUSINESS DAYS. If any payment is due, or any time period for
giving notice or taking action expires, on a day which is a Saturday, Sunday or
legal holiday in the State of New York, the payment shall be due and payable on,
and the time period shall automatically be extended to, the next business day
immediately following such Saturday, Sunday or legal holiday, and interest shall
continue to accrue at the required rate hereunder until any such payment is
made.
* * * *
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IN WITNESS WHEREOF, the Company has executed and delivered this Note
on October 14, 1999.
J.L. FRENCH AUTOMOTIVE CASTINGS, INC.
By: /s/ Carl E. Nelson
Its: Vice President