1
EXHIBIT 4.11
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of June 24, 1997 (this "Guaranty"),
is made by LOBDELL EMERY CORPORATION, a Michigan corporation, WINCHESTER
FABRICATION CORPORATION, a Michigan corporation, CREATIVE FABRICATION
CORPORATION, a Tennessee corporation, PARALLEL GROUP INTERNATIONAL, INC., an
Indiana corporation, LASERWELD INTERNATIONAL, L.L.C., an Indiana limited
liability company, CONCEPT MANAGEMENT CORPORATION, a Michigan corporation, and
LEWIS EMERY CAPITAL CORPORATION, a Michigan corporation (the foregoing are
hereinafter sometimes referred to individually as a "Guarantor" and
collectively as the "Guarantors"), in favor of the lenders (the "Lenders")
which are parties to the Credit Agreement hereinafter defined and NBD BANK, a
Michigan banking corporation, as agent (in such capacity, the "Agent") for such
Lenders under the Credit Agreement.
RECITALS
A. Oxford Automotive, Inc., a Michigan corporation (the
"Borrower") and BMG North America Limited or any other subsidiary designated as
a Borrowing Subsidiary under the Credit Agreement identified herein (the
"Borrowing Subsidiary") have entered into a Credit Agreement, dated as of June
24, 1997 (as amended or modified from time to time, including any agreement
entered into in substitution therefor, the "Credit Agreement"), with the
Lenders and the Agent pursuant to which the Lenders may make Advances to the
Borrower and the Borrowing Subsidiary.
B. As a condition to the effectiveness of the obligations of the
Lenders under the Credit Agreement, each Guarantor is required to guarantee,
among other things, the obligations of the Borrower and the Borrowing
Subsidiary in respect of the Advances and other obligations of the Borrower and
the Borrowing Subsidiary under the Operative Documents (as hereinafter
defined).
C. Each Guarantor has reviewed the Credit Agreement, the Notes,
the Letters of Credit and all other documents, agreements, instruments and
certificates furnished by or on behalf of the Borrower and the Borrowing
Subsidiary in connection therewith, including without limitation all interest
rate swap, cap and similar agreements with any Lender (collectively, the "Swap
Documents") (all of the foregoing, as amended or modified from time to time and
together with any agreements or instruments in replacement thereof, being
herein collectively referred to as the "Operative Documents"), and each
Guarantor has determined that it is in its interest and to its financial
benefit that the parties to the Operative Documents enter into the transactions
contemplated thereby.
2
AGREEMENTS
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and as further consideration, and as an inducement to the
Lenders and the Agent to maintain the credit facilities established by the
Operative Documents, each Guarantor agrees with the Lenders and the Agent as
follows:
1. Guarantee of Obligations. (a) Each Guarantor hereby (i)
guarantees, as principal obligor and not as surety only, to the Lenders the
prompt payment of the principal of and any and all accrued and unpaid interest
(including interest which otherwise may cease to accrue by operation of any
insolvency law, rule, regulation or interpretation thereof) on the Advances and
all other obligations of the Borrower and the Borrowing Subsidiary to the
Lenders and the Agent under the Credit Agreement, the Notes, the Letters of
Credit, the Security Documents and the Swap Documents when due, whether by
scheduled maturity, acceleration or otherwise, all in accordance with the terms
of the Credit Agreement, the Swap Documents, the Notes and the other Operative
Documents, including, without limitation, default interest, all reimbursement
obligations in respect of any letters of credit, indemnification payments and
all reasonable costs and expenses incurred by the Lenders and the Agent in
connection with enforcing any obligations of the Borrower and the Borrowing
Subsidiary thereunder, including without limitation the reasonable fees and
disbursements of counsel, (ii) guarantees the prompt and punctual performance
and observance of each and every term, covenant or agreement contained in any
Operative Document to be performed or observed on the part of the Borrower and
the Borrowing Subsidiary and (iii) agrees to make prompt payment, on demand, of
any and all reasonable costs and expenses incurred by the Lenders or the Agent
in connection with enforcing the obligations of any Guarantor hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
(all of the foregoing being collectively referred to as the "Guaranteed
Obligations").
(b) If for any reason any duty, agreement or obligation
of the Borrower or the Borrowing Subsidiary contained in any Operative Document
shall not be performed or observed by the Borrower or the Borrowing Subsidiary
as provided therein, or if any amount payable under or in connection with any
Operative Document shall not be paid in full when the same becomes due and
payable, each Guarantor undertakes, but without duplication, to perform or
cause to be performed promptly each of such duties, agreements and obligations
and to pay forthwith each such amount to the Agent for the account of the
Lenders regardless of any defense or setoff or counterclaim which the Borrower
or the Borrowing Subsidiary or the Guarantor may have or assert, and regardless
of any other condition or contingency.
2. Nature of Guaranty. This Guaranty is an absolute and
unconditional and irrevocable guaranty of payment and not a guaranty of
collection and is wholly independent of and in addition to other rights and
remedies of the Lenders and the Agent and is not contingent upon the pursuit by
the Lenders and the Agent of any such rights and remedies, such pursuit being
hereby waived by each Guarantor.
-2-
3
3. Waivers and Other Agreements. Each Guarantor hereby
unconditionally (a) waives any requirement that the Lenders or the Agent, upon
the occurrence of an Event of Default first make demand upon, or seek to
enforce remedies against the Borrower or the Borrowing Subsidiary before
demanding payment under or seeking to enforce this Guaranty, (b) covenants that
this Guaranty will not be discharged except by complete performance of all
obligations of the Borrower or the Borrowing Subsidiary contained in the
Operative Documents, (c) agrees that this Guaranty shall remain in full force
and effect without regard to, and shall not be affected or impaired, without
limitation, by any invalidity, irregularity or unenforceability in whole or in
part of any of the Operative Documents or any of the Guaranteed Obligations, or
any limitation on the liability of the Borrower or the Borrowing Subsidiary
thereunder, or any limitation on the method or terms of payment thereunder
which may or hereafter be caused or imposed in any manner whatsoever
(including, without limitation, usury laws), (d) waives diligence, presentment
and protest with respect to, and any notice of default or dishonor in the
payment of any amount at any time payable by the Borrower or the Borrowing
Subsidiary under or in connection with any of the Operative Documents, and
further waives notice of any of the matters referred to in paragraph 4 below,
and further waives all notices which may be required by statute, rule of law or
otherwise to preserve any rights of the Lenders or the Agent, including without
limitation any requirement of notice of acceptance of, or other formality
relating to this Guaranty and (e) agrees that the Guaranteed Obligations shall
include any amounts paid by the Borrower or the Borrowing Subsidiary to the
Lenders or the Agent which may be required to be returned to the Borrower or
the Borrowing Subsidiary or to its representative or to a trustee, custodian or
receiver for the Borrower or the Borrowing Subsidiary.
4. Obligations Absolute. The obligations, covenants, agreements
and duties of any Guarantor under this Guaranty shall not be released, affected
or impaired by any of the following whether or not undertaken with notice to or
consent of any Guarantor: (a) an assignment or transfer, in whole or in part,
of any of the Guaranteed Obligations or any of the Operative Documents although
made without notice to or consent of any Guarantor, or (b) any waiver by any
Lender or the Agent or by any other person, of the performance or observance by
the Borrower or the Borrowing Subsidiary of any of the agreements, covenants,
terms or conditions contained in any of the Operative Documents, or (c) any
indulgence in or the extension of the time for payment by the Borrower or the
Borrowing Subsidiary of any amounts payable under or in connection with any of
the Operative Documents, or of the time for performance by the Borrower or the
Borrowing Subsidiary of any other obligations under or arising out of any of
the Operative Documents, or the extension or renewal thereof, or (d) the
modification, amendment or waiver (whether material or otherwise) of any duty,
agreement or obligation of the Borrower or the Borrowing Subsidiary set forth
in any of the Operative Documents (the modification, amendment or waiver from
time to time of any of the Operative Documents to which the Borrower or the
Borrowing Subsidiary is a party being expressly authorized without further
notice to or consent of any Guarantor), or (e) the voluntary or involuntary
liquidation, sale or other disposition of all or substantially all of the
assets of the Borrower or the Borrowing Subsidiary or any receivership,
insolvency, bankruptcy, reorganization, or other similar proceedings, affecting
the Borrower or any of its assets or the Borrowing Subsidiary or any of its
assets, or (f) the merger or consolidation of the Borrower or the Borrowing
Subsidiary with or into any other person or any transfer or other disposition
of any shares of capital stock of the
-3-
4
Borrower or the Borrowing Subsidiary by the holder thereof, or (g) the release
of discharge of the Borrower, the Borrowing Subsidiary or any other obligor
from the performance or observance of any agreement, covenant, term or
condition contained in any Operative Document, by operation of law, (h) the
release of any security, if any, for the obligations of the Borrower or the
Borrowing Subsidiary under any of the Operative Documents, or the impairment of
or failure to perfect an interest in any such security, or (i) the running of
any limitations period otherwise applicable, or (j) any exercise or
non-exercise of any right, remedy, power or privilege in respect of this
Guaranty or any of the Operative Documents, including without limitation the
release, discharge, or variance of the liability of any Guarantor, or (k) any
other cause whether similar or dissimilar to the foregoing which would release,
affect or impair the obligations, covenants, agreements or duties of the
Guarantor hereunder.
5. Joint and Several Obligations. The obligations of the
Guarantors hereunder shall be several and also joint each with all or with any
one or more of the other parties now or hereafter guaranteeing any of the
Guaranteed Obligations, and such obligations of the Guarantors may be enforced
against each Guarantor separately or against any two or more jointly, or
against some separately and some jointly.
6. No Investigation by Lenders or Agent. Each of the Guarantors
hereby waives unconditionally any obligation which, in the absence of such
provision, the Lenders or the Agent might otherwise have to investigate or to
assure that there has been compliance with the law of any jurisdiction with
respect to the Guaranteed Obligations recognizing that, to save both time and
expense, each Guarantor has requested that the Lenders and the Agent not
undertake such investigation. Each Guarantor hereby expressly confirms that
the obligations of such Guarantor hereunder shall remain in full force and
effect without regard to compliance or noncompliance with any such law and
irrespective of any investigation or knowledge of any Lender or the Agent of
any such law.
7. Indemnity. As a separate, additional and continuing
obligation, each Guarantor unconditionally and irrevocably undertakes and
agrees with the Lenders and the Agent that, should the Guaranteed Obligations
not be recoverable from any Guarantor under paragraph 1 hereof for any reason
whatsoever (including, without limitation, by reason of any provision of the
Operative Document being or becoming void, unenforceable, or otherwise invalid
under any applicable law) then, notwithstanding any knowledge thereof by any
Lender or the Agent at any time, each Guarantor as sole, original and
independent obligor, upon demand by the Agent, will make payment to the Agent
for the account of the Lenders and the Agent of the Guaranteed Obligations by
way of a full indemnity in such currency and otherwise in such manner as is
provided in the Operative Documents.
8. Subordination. Each Guarantor agrees that any present or
future indebtedness, obligations or liabilities of the Borrower and the
Borrowing Subsidiary to such Guarantor shall be fully subordinate and junior in
right and priority of payment to any present or future indebtedness,
obligations or liabilities of the Borrower and the Borrowing Subsidiary to the
Lenders and the Agent. Each Guarantor waives any right of subrogation to the
rights of any Lender or the Agent against any Borrower or any Borrowing
Subsidiary or any other person
-4-
5
obligated for payment of the Guaranteed Obligations and any right of
reimbursement or indemnity whatsoever arising or accruing out of any payment
which such Guarantor may make pursuant to this Guaranty and the Notes, and any
right of recourse to security for the debts and obligations of each Borrower
and any Borrowing Subsidiary, unless and until the entire principal balance of
and interest on the Guaranteed Obligations shall have been paid in full.
9. Representations, Warranties and Other Agreements. Each
Guarantor represents and warrants that (a) the execution, delivery and
performance by such Guarantor of this Guaranty are within its corporate powers,
have been duly authorized by all necessary corporate action, require no action
by or in respect of, or filing with, any governmental body, and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the articles of incorporation or other charter documents or
bylaws of such Guarantor, or of any agreement, judgment, injunction, order,
decree or other instrument binding upon such Guarantor or its property; (b)
this Guaranty has been duly executed and constitutes a legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights and except that the remedy of specific performance and
injunctive and other forms of equitable relief are subject to equitable
defenses and to the discretion of the court for which any proceedings may be
brought; and (c) as of the date hereof, each of the following is true and
correct for such Guarantor: (i) the fair saleable value and the fair valuation
of such Guarantor's property is greater than the total amount of its
liabilities (including contingent liabilities) and greater than the amount that
would be required to pay its probable aggregate liability on its existing debts
as they become absolute and matured, (ii) such Guarantor's capital is not
unreasonably small in relation to its current and/or contemplated business or
other undertaken transactions, and (iii) such Guarantor does not intend to
incur, or believe that it will incur, debt beyond its ability to pay such debts
as they become due; and (d) each of the representations and warranties set
forth in Article IV of the Credit Agreement are true and correct with respect
to such Guarantor.
10. Remedies. (a) Upon the occurrence and during the continuance
of any Event of Default, the Lenders, or the Agent on behalf of the Lenders,
may, in addition to the remedies provided in the Operative Documents, enforce
its rights either by suit in equity, or by action at law, or by other
appropriate proceedings, whether for the specific performance (to the extent
permitted by law) of any covenant or agreement contained in this Guaranty or in
aid of the exercise of any power granted in this Guaranty and may enforce
payment under this Guaranty and any of its other rights available at law or in
equity.
(b) Upon the occurrence and during the continuance of any
Event of Default hereunder, the Lenders are hereby authorized at any time and
from time to time, without notice to any Guarantor (any requirement for such
notice being expressly waived by each Guarantor) to set off and apply against
any and all of the obligations of the Guarantors now or hereafter existing
under this Guaranty any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by the Lenders to or for the credit or the account of the Guarantors and any
property of the Guarantors from time to time in possession of the Lenders,
irrespective of whether or not the Lenders shall have made any demand hereunder
-5-
6
and although such obligations may be contingent and unmatured. The rights of
the Lenders under this paragraph 10(b) are in addition to other rights and
remedies (including, without limitation, other rights of setoff) which the
Lenders may have.
(c) To the extent that it lawfully may, each Guarantor
agrees that it will not at any time insist upon or 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 the provisions of this Guaranty, or any of the Operative
Documents nor will it claim, take or insist upon any benefit or advantage of
any present or future law providing for the evaluation or appraisal of any
security for its obligations hereunder or the obligations of the Borrower and
the Borrowing Subsidiary under the Operative Documents prior to any sale or
sales thereof which may be made under or by virtue of any instrument governing
the same.
11. Amendments, Etc. This Guaranty may be amended from time to
time and 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 Guarantor
therefrom shall in any event be 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 for which given.
12. Notices. All notices, demands, requests, consents and other
communications hereunder shall be in writing and shall be delivered or sent to
all or any of the Guarantors and to the Lenders and the Agent at the respective
addresses for notice set forth in Section 8.2 of the Credit Agreement or to
such other address as may be designated by the Guarantors, the Agent or any
Lender by notice to the other parties hereto. All notices and other
communications shall be made in accordance with Section 8.2 of the Credit
Agreement.
13. Conduct No Waiver; Remedies Cumulative. The obligations of
each Guarantor under this Guaranty are continuing obligations and a separate
and independent cause of action shall arise in respect of each enforcement
hereunder and default hereunder or under the Credit Agreement. No course of
dealing on the part of any Lender or the Agent, nor any delay or failure on the
part of any Lender or the Agent in exercising any right, power or privilege
hereunder shall operate as a waiver of such right, power or privilege or
otherwise prejudice the rights and remedies of the Lenders and the Agent
hereunder; nor shall any single or partial exercise thereof preclude any
further exercise thereof or the exercise of any other right, power or
privilege. No right or remedy conferred upon or reserved to the Lenders or the
Agent under this Guaranty 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 given by this Guaranty or by applicable
law to the Lenders or the Agent may be exercised from time to time and as often
as may be deemed expedient by them.
-6-
7
14. Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of each Guarantor made
herein or in any certificate or other document delivered pursuant hereto shall
be deemed to be material and to have been relied upon by the Lenders and the
Agent, notwithstanding any investigation heretofore or hereafter made by any
Lender or the Agent or on its behalf.
15. Successors and Assigns. The rights and remedies of the
Lenders and the Agent hereunder shall inure to the benefit of the Lenders and
the Agent and their respective successors and assigns, and the duties and
obligations of each Guarantor hereunder shall be binding upon such Guarantor
and its successors and assigns. No assignment of this Guaranty by any
Guarantor shall be permitted unless the prior written consent of the Required
Lenders is obtained.
16. Survival of Lenders' Rights and Remedies. Notwithstanding any
provision of this Guaranty to the contrary, the execution and delivery by the
Guarantors of this Guaranty, and the Lenders' and the Agent's acceptance
thereof, shall not be deemed to (a) be a consent to any action, whether
heretofore or hereafter taken, by the Borrower or the Borrowing Subsidiary in
violation of any provision of any Operative Document, (b) be a waiver of any
provision of any Operative Document or (c) prejudice any rights or remedies
which the Lenders and the Agent may now have or have in the future under or in
connection with any Operative Document, including without limitation any such
rights or remedies with respect to any Event of Default or event causing or
permitting acceleration under any Operative Document which may heretofore have
occurred and be continuing or may hereafter occur.
17. Governing Law; Consent to Jurisdiction. This Guaranty is a
contract made under, and the rights and obligations of the parties hereunder,
shall be governed by and construed in accordance with, the laws of the State of
Michigan applicable to contracts to be made and to be performed entirely with
such State. Each Guarantor further agrees that any legal action or proceeding
brought with respect to this Guaranty or the transactions contemplated hereby
may be brought in any court of the State of Michigan, or any court of the
United States of America sitting in Michigan, and each Guarantor hereby
irrevocably submits to and accepts generally and unconditionally the
jurisdiction and venue of those courts with respect to its person and property.
18. Definitions; Headings. Terms used but not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
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.
19. Integration; Severability; Enforceability. This Guaranty
embodies the entire agreement and understanding among the Guarantors, the
Lenders and the Agent, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. If any one or more provisions of this
Guaranty 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 Guaranty shall be determined by a court of competent jurisdiction to be
invalid, unenforceable or avoidable, the remaining portion of the obligations
of
-7-
8
such Guarantor and each other Guarantor under this Guaranty 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. If at
any time all or any portion of the obligations of any Guarantor under this
Guaranty would otherwise be determined by a court of competent jurisdiction to
be invalid, unenforceable or avoidable under Section 548 of the federal
Bankruptcy Code or under a similar applicable law of any jurisdiction, then
notwithstanding any other provisions of this Guaranty to the contrary such
obligation or portion thereof of such Guarantor under this Guaranty shall be
limited to the greatest of (i) the value of any quantifiable economic benefits
accruing to such Guarantor as a result of this Guaranty, (ii) an amount equal
to 95% of the excess on the date the relevant Guaranteed Obligations were
incurred of the present fair saleable value of the assets of such Guarantor
over the amount of all liabilities of such Guarantor, contingent or otherwise,
other than under this Guaranty and (iii) the maximum amount for which this
Guaranty is determined to be enforceable.
20. Reinstatement. This Guaranty shall remain in full force and
effect and continue to be effective in the event any petition be filed by or
against the Borrower, the Borrowing Subsidiary or any Guarantor for liquidation
or reorganization, in the event the Borrower, the Borrowing Subsidiary or any
Guarantor becomes insolvent or makes an assignment for the benefit of creditors
or in the event a receiver or trustee be appointed for all or any significant
part of any Borrower's, any Borrowing Subsidiary's or any Guarantor's assets,
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Guaranteed Obligations, or any part
thereof, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by the Agent or any Lender, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though
such payment or performance had not been made. In the event that any payment,
or any part thereof, is rescinded, reduced, restored or returned, the
Guaranteed Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
21. Counterpart Execution. This Guaranty may be signed upon any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Guaranty shall become effective as to each Guarantor when a counterpart
hereof shall have been signed by such Guarantor.
22. Waiver of Jury Trial. The Agent, the Lenders and each of the
Guarantors, 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
Guaranty or any related instrument or agreement or any of the transactions
contemplated by this Guaranty. Neither the Agent, any Lender nor any Guarantor
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 any
Guarantor except by a written instrument executed by all of them.
-8-
9
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered as of the day and year first above written.
LOBDELL EMERY CORPORATION
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
WINCHESTER FABRICATION CORPORATION
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
CREATIVE FABRICATION CORPORATION
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
PARALLEL GROUP INTERNATIONAL, INC.
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
LASERWELD INTERNATIONAL, L.L.C.
By: Lobdell Emery Corporation, its
sole member
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
-9-
10
CONCEPT MANAGEMENT CORPORATION
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
LEWIS EMERY CAPITAL CORPORATION
By: John H. Ferguson
------------------------------------
Its: Assistant Treasurer
-----------------------------------
-10-