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EXHIBIT 4.9
GUARANTEE
This Agreement of Guarantee, dated the 24th day of June, 1997
is by 976459 Ontario Limited, a corporation incorporated pursuant to the laws
of the Province of Ontario, 829500 Ontario Limited, a corporation incorporated
pursuant to the laws of the Province of Ontario, and BMG Holdings, Inc., a
corporation incorporated pursuant to the laws of the Province of Ontario
(individually a "Guarantor", and collectively the "Guarantors") in favour of
the Lenders (as defined below) and NBD Bank, as Agent for the Lenders (in such
capacity, the "Agent").
RECITALS
A. Oxford Automotive, Inc., a corporation incorporated
pursuant to the laws of the State of Michigan (the "Company") and BMG North
America Limited, a corporation incorporated pursuant to the laws of the
Province of Ontario or any other subsidiary designated as a Borrowing
Subsidiary (the "Borrowing Subsidiary") have entered into a Credit Agreement
dated as of the date hereof (as amended or modified from time to time, the
"Credit Agreement") among the lenders party thereto from time to time (the
"Lenders") and the Agent.
B. Each of the Guarantors has reviewed the Credit
Agreement, the Notes, the Security Documents, any Rate Hedging Agreements and
all other documents, agreements, instruments and certificates furnished by or
on behalf of the Company and the Borrowing Subsidiary in connection therewith
at any time, including without limitation all interest rate swap, cap and
similar agreements with any Lender (collectively, the "Swap Documents") and
together with any other documents, agreements, instruments and certificates
evidencing or otherwise pertaining to the Obligations (as hereinafter defined)
(collectively, the "Loan Documents"), and each of the Guarantors has determined
that it is in its interest and to its financial benefit that the parties to the
Loan Documents enter into the transactions contemplated hereby.
C. It is a condition to the Credit Agreement that the
Guarantors enter into this Agreement in order to assist the Company and the
Borrowing Subsidiary, for the benefit of the Company, the Borrowing Subsidiary
and the Guarantors.
In consideration of the premises hereof, the Guarantors
covenant and agree with the Agent and the Lenders as follows:
1. Guarantee
Each of the Guarantors, for good and valuable consideration
received, hereby absolutely, irrevocably and unconditionally binds and obliges
itself solidarily with the Company and the Borrowing Subsidiary in favour of
each of the Lenders and the Agent, for the fulfilment when due, whether at
stated maturity, by acceleration or otherwise, of any and all existing and
future indebtedness, obligation and liability of every kind, nature and
character, direct or indirect,
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absolute or contingent (including without limitation all indebtedness,
obligations and liabilities pursuant to any Loans, Letters of Credit, Bankers'
Acceptances and other Advances and all interest, fees, and other charges
thereon and all renewals, extensions and modifications thereof and all fees,
costs and expenses incurred by the Agent or any of the Lenders in connection
with the documentation, administration, collection or enforcement thereof), of
the Company and the Borrowing Subsidiary to the Agent or any of the Lenders or
any branch, subsidiary or affiliate thereof, howsoever and whensoever created,
arising, evidenced or acquired pursuant to the Credit Agreement, the Notes, the
Security Documents, any Rate Hedging Agreements, the Swap Documents or any
other Loan Document (all such indebtedness, obligations and liabilities being
herein collectively called the "OBLIGATIONS"). Each of the Guarantors shall be
considered as primarily liable to the Lenders and the Agent, and shall not be
released nor its liability hereunder limited or lessened by any variation or
departure from the provisions of this Agreement nor by the Lenders or the
Agent's granting time, taking or giving up securities, accepting compositions,
granting releases or discharges, or otherwise dealing with any Person, nor by
any other thing whatsoever, either of a like nature to the foregoing or
otherwise whereby as guarantor only, a Guarantor would or might be released,
and none of the Lenders or the Agent shall be bound to exhaust its recourses
against the Company, the Borrowing Subsidiary or any other Person or any
security it may hold before being entitled to payment from each of the
Guarantors. Each of the Guarantors hereby expressly waives all of its rights
to the benefits of division and of discussion. The Guarantors covenant and
agree that until such time as each of the Lenders and the Agent shall have been
indefeasibly paid in full all Obligations, no payment will be taken, demanded,
received or accepted by a Guarantor of or on account of the principal amount of
or interest of any indebtedness incurred by a Guarantor in fulfilment of its
obligations under this Agreement or on any other indebtedness payable by the
Company or the Borrowing Subsidiary, each of the Guarantors agreeing that this
said indebtedness shall, at all times, be fully subordinated to and rank in
time and right of payment junior to the Obligations, and each of the Guarantors
hereby renounces any rights of compensation and/or set-off and/or counterclaim.
Each of the Guarantors hereby expressly postpones all of its rights to the
benefit of subrogation until full repayment of the Obligations and the
termination of all Letters of Credit, Acceptances and Commitments. Each of the
Guarantors hereby determines and agrees that the execution, delivery and
performance of this Agreement by such Guarantor is necessary and convenient to
the conduct, promotion or attainment of the business of the Company, the
Borrowing Subsidiary and the Guarantor and in furtherance of the corporate
purposes of the Guarantor.
2. Guarantee Absolute
Each of the Guarantors guarantees that the Obligations will be
paid strictly in accordance with the terms of this Agreement, regardless of any
Law, regulation, or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or the Lenders with
respect thereto. The liability of each of the Guarantors under this Agreement
shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any
provisions of any Loan Document or any other agreement or
instrument relating to this Agreement;
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(ii) any change in the time, manner or place of payment of
or in any other term of, all or any of the Obligations or any
other amendment, restatement or waiver of or any consent to
departure from this Agreement;
(iii) any exchange, release or non-perfection of any
collateral or any release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the
Obligations;
(iv) the reconstruction, reorganization, consolidation,
amalgamation or merger of the Company or the Borrowing
Subsidiary with or into any other Person, or the transfer,
sale, lease or other disposition by the Company or the
Borrowing Subsidiary of all or substantially all of its assets
or business to any other Person, whether or not affected in
compliance with the provisions of this Agreement; or
(v) any other circumstance which might otherwise
constitute a defence available to, or a discharge of, the
Company, the Borrowing Subsidiary or a guarantor.
The liability of each of the Guarantors under this Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment of any of the Obligations is rescinded or must otherwise be
returned by the Agent or any Lender upon the insolvency, bankruptcy or
reorganization or otherwise of the Company or the Borrowing Subsidiary, all as
though such payment had not been made.
3. Waiver
Each of the Guarantors hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the
Obligations and its liability hereunder and any requirement that the Agent or
any Lender protect, secure, perfect or insure any Lien, if any, or any property
subject thereto or exhaust any right or take any action against the Company or
the Borrowing Subsidiary or any other Person or any collateral.
4. Continuing Guarantee
The obligations of each of the Guarantors under this Article
Agreement shall be a continuing guarantee and shall:
(vi) remain in full force and effect until payment in full
of the Obligations and all other amounts payable under this
Agreement;
(vii) be binding upon each of the Guarantors, their
successors and assigns; and
(viii) enure to the benefit of and be enforceable by the
Lenders, the Agent and their respective successors,
transferees and assigns.
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Without limiting the generality of the foregoing clause (iii),
upon any assignment by any Lender of all or any part of any interest in this
Agreement by it to any other Person in accordance with the terms of the Loan
Documents, such other Person shall thereupon become vested with all the rights
in respect thereof granted to such Lender herein or otherwise.
5. Miscellaneous
(a) This Agreement shall be construed in accordance with
and governed by the laws of the Province of Ontario.
(b) Each payment to be made by the Guarantors under this
Agreement in respect of the Obligations shall be made without set-off or
counterclaim and regardless of any other condition or contingency.
(c) If any one or more provisions of this 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, prejudiced or disturbed thereby. If at
any time any portion of the obligations of any Guarantor under this Agreement
shall be determined by a court of competent jurisdiction to be invalid,
unenforceable or avoidable, the remaining portion of the obligations of such
Guarantor under this Agreement shall not in any way be affected, impaired,
prejudiced or disturbed thereby and shall remain valid and enforceable to the
fullest extent permitted by applicable law.
(d) The amounts payable under this Agreement are payable
free and clear and without deduction for any and all present and future taxes,
levies, imposts, deductions, charges and withholdings of any federal,
provincial, local, foreign or other governmental authority. Any such amount
deducted or withheld from such payment shall not be deemed a realization of any
amount due hereunder. Each Guarantor agrees to pay to the Agent and the
Lenders, upon demand, additional amounts sufficient to compensate each of them
for such amounts deducted or withheld. A detailed statement as to the amounts
deducted or withheld, prepared in good faith and submitted by the Agent or any
Lender to the Guarantor, shall be conclusive and binding for all purposes,
absent manifest error in computation.
(e) As a separate, additional and continuing obligation,
each Guarantor unconditionally and irrevocably undertakes and agrees with the
Agent and the Lenders that, should the Obligations not be recoverable from the
Guarantor under Section 1 for any reason whatsoever (including, without
limitation, by reason of any provision of any Loan Document being or becoming
void, unenforceable, or otherwise invalid under any applicable law) then,
notwithstanding any knowledge thereof by the Agent or any of the Lenders at any
time, each Guarantor as sole, original and independent obligor, upon demand by
the Agent, will make payment to the Agent of the Obligations by way of a full
indemnity in such currency and otherwise in such manner as is provided in the
Credit Agreement or such other agreement or instrument, as the case may be.
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(f) Each of the Guarantors, after consulting or after
having the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waives any right any of them may have to a trial by jury in any
litigation based upon or arising out of this Agreement or any related
instrument or agreement or any of the transactions contemplated by this
Agreement or any course of conduct, dealing, statements or actions of any of
them. Guarantors shall not 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.
(g) No amendment or waiver of any provision of this
Agreement or consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Guarantor, the
Required Lenders and the Agent, and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
(h) Each Guarantor agrees to be bound by all covenants
and other agreements applicable to such Guarantor contained in the Credit
Agreement or any other Loan Document, and hereby agrees with and makes all
representations and warranties made by the Company in the Credit Agreement with
respect to such Guarantor. Capitalized terms used but not defined herein shall
have the meaning ascribed thereto in the Credit Agreement.
976459 ONTARIO LIMITED
By: John H. Ferguson
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Name: John H. Ferguson
Title: Treasurer
829500 ONTARIO LIMITED
By: John H. Ferguson
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Name: John H. Ferguson
Title: Treasurer
BMG HOLDINGS, INC.
By: John H. Ferguson
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Name: John H. Ferguson
Title Treasurer
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