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EXHIBIT 4.10
GUARANTEE
This Agreement of Guarantee, dated the 24th day of June, 1997
is by BMG North America Limited, a corporation incorporated pursuant to the
laws of the Province of Ontario (the "Guarantor") 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 the Guarantor
or any other Borrowing Subsidiary designated as such therein 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. The Guarantor has reviewed the Credit Agreement, the
Notes, the Security Documents and all other documents, agreements, instruments
and certificates furnished by or on behalf of the Company 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 the Guarantor 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
Guarantor enter into this Agreement in order to assist the Company, for the
mutual benefit of the Company and the Guarantor.
In consideration of the premises hereof, the Guarantor
covenants and agrees with the Agent and the Lenders as follows:
1. Guarantee
Guarantor, for good and valuable consideration received,
hereby absolutely, irrevocably and unconditionally binds and obliges itself
solidarily with the Company 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, 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 to the Agent or any of the Lenders or any branch, subsidiary or
affiliate thereof, howsoever and whensoever created, arising, evidenced or
acquired
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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"). Guarantor 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,
Guarantor would or might be released, and none of the Lenders or the Agent
shall be bound to exhaust its recourses against the Company or any other Person
or any security it may hold before being entitled to payment from the
Guarantor. Guarantor hereby expressly waives all of its rights to the benefits
of division and of discussion. Guarantor covenants and agrees 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 Guarantor of or on account of the principal amount of or interest of any
indebtedness incurred by Guarantor in fulfilment of its obligations under this
Agreement or on any other indebtedness payable by the Company, Guarantor
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
Guarantor hereby renounces any rights of compensation and/or set-off and/or
counterclaim. Guarantor 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. Guarantor
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 and the Guarantor and in furtherance of the
corporate purposes of the Guarantor.
2. Guarantee Absolute
Guarantor 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 Guarantor 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;
(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;
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(iv) the reconstruction, reorganization, consolidation,
amalgamation or merger of the Company with or into any other
Person, or the transfer, sale, lease or other disposition by
the Company 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 or a guarantor.
The liability of Guarantor 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 of
the Company or otherwise, all as though such payment had not been made.
3. Waiver
Guarantor 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 any other Person or
any collateral.
4. Continuing Guarantee
The obligations of Guarantor 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 Guarantor, its 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.
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.
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(b) Each payment to be made by Guarantor 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 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. 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,
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, 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.
(f) Guarantor, after consulting or after having 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 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. Guarantor 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 Guarantor therefrom shall be effective
unless the same shall be in writing and
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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) 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 Guarantor. Capitalized terms used but not defined herein shall have
the meaning ascribed thereto in the Credit Agreement.
BMG NORTH AMERICA LIMITED
By: John H. Ferguson
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Name: John H. Ferguson
Title: Treasurer
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