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EXHIBIT 4.12
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
THIS PLEDGE AGREEMENT dated as of June 24, 1997 (this "Pledge
Agreement"), is given by OXFORD AUTOMOTIVE, INC., a Michigan corporation (the
"Company"), in favor of NBD Bank, a Michigan banking corporation, as agent (in
such capacity, the "Agent") for the benefit of itself and the lenders (the
"Lenders") now or hereafter parties to the Credit Agreement described below.
RECITALS
A. The Company (also occasionally referred to as the "Borrower")
and the Borrowing Subsidiary identified from time to time therein (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 parties thereto and the Agent pursuant to which the Lenders may make
Advances (as therein defined) to the Borrower and the Borrowing Subsidiary.
B. As a condition precedent to the effectiveness of the Bank's
obligations under the Credit Agreement, the Company has agreed to pledge to the
Agent, for the benefit of the Lenders, and grant a first-priority security
interest to the Agent, for the benefit of the Lenders, in and to the collateral
described herein and to execute this Pledge Agreement.
For value received and pursuant to the Credit Agreement, the Company
hereby grants a first-priority security interest to the Agent, for the benefit
of the Lenders, in and to all of the outstanding capital stock of the companies
listed on the schedule attached hereto as Schedule 1 (the "Pledged
Subsidiaries", and said shares of stock, together with any other shares and
securities from time to time receivable or otherwise distributed in respect of
or in exchange for any or all of such shares, being called the "Pledged
Stock"), to secure, (a) the prompt and complete payment of all indebtedness and
other obligations of the Company or any Subsidiary now or hereafter owing to
the Lenders or the Agent under or on account of the Credit Agreement, any
Security Document or any letters of credit, notes or other instruments issued
to the Agent or Lenders pursuant thereto, (b) the performance of the covenants
under the Credit Agreement and the Security Documents and any monies expended
by the Agent in connection therewith payable under the Credit Agreement and (c)
the prompt and complete payment of all obligations and performance of all
covenants of the Company under any interest rate or currency swap agreements or
similar transactions with any Bank (all of the aforesaid indebtedness,
obligations and liabilities of the Company and its Subsidiaries being herein
called the "Secured Obligations", and all of the documents, agreements and
instruments among the Company, the Subsidiaries, the Agent, the Lenders, or any
of them, evidencing or securing the repayment of, or otherwise pertaining to,
the Secured Obligations being herein collectively called the "Operative
Documents"). The Company is herewith delivering to the Agent for the benefit
of the Lenders originals of all stock certificates of the Pledged Stock or
taking such other action acceptable to the Agent and the Required Lenders to
perfect the security interest in the Pledged Stock granted hereby.
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The Company further represents and warrants to, and agrees with, the
Agent for the benefit of the Lenders as follows:
1. Representations and Warranties. The Company represents and
warrants that the Pledged Stock is represented by the stock certificate or
certificates or shares described on Schedule 1 hereto, and that such stock
certificate or certificates, accompanied by an instrument of assignment or
transfer duly executed in blank by the Company as the owner named in such stock
certificate or certificates, have been delivered to the Agent by the Company.
The Company further represents and warrants that (a) the Pledged Stock is duly
authorized and validly issued, fully paid and nonassessable and constitutes
100% of all of the issued and outstanding shares of the capital stock of each
Pledged Subsidiary (except with respect to Lobdell Emery Corporation which has
Preferred Stock outstanding), (b) the Company is the legal and beneficial owner
of the Pledged Stock, free and clear of all Liens other than the Lien of Agent
hereunder, with requisite right and power to deliver, pledge and assign the
Pledged Stock to the Agent hereunder, and (c) the pledge of the Pledged Stock
pursuant to this Pledge Agreement creates in favor of the Agent a valid and
perfected first-priority security interest in the Pledged Stock enforceable
against the Company and all third parties and securing the payment of the
Secured Obligations.
2. Title; Stock Rights, Dividends, Etc. The Company will warrant
and defend the Agent's title to the Pledged Stock, and the security interest
herein created, against all claims of all persons, and will maintain and
preserve such security interest. It is understood and agreed that the
collateral hereunder includes any stock rights, stock dividends, liquidating
dividends, new securities, payments, distributions and proceeds (including cash
dividends and sale proceeds) and other property to which the Company may become
entitled by reason of the ownership of the Pledged Stock during the existence
of this Pledge Agreement, and any such property received by the Company shall
be held in trust and forthwith delivered to the Agent to be held hereunder in
accordance with the terms of this Pledge Agreement.
3. Registration Rights. If any Pledged Subsidiary at any time or
from time to time proposes to register any of its securities under the
Securities Act of 1933, the Company will at each such time give notice to the
Agent of such Pledged Subsidiary's intentions so to do. Upon the request of
the Agent given 30 days after receipt of such notice, the Company will cause
all Pledged Stock of such Pledged Subsidiary to be included in the registration
statement proposed to be filed, all to the extent requisite to permit the
public sale or other public disposition of such Pledged Stock so registered by
the holders thereof. The costs and expenses of all such registrations and
qualifications under said Act shall be paid by the Company or such Pledged
Subsidiary, except that underwriting discounts and commissions in respect of
any Pledged Stock sold pursuant to any such registration statement shall be
borne by the sellers thereof. As expeditiously as possible after the effective
date of any such registration statement, the Company will deliver in exchange
for any certificates representing shares of Pledged Stock so registered
pursuant to such registration, which bear any restrictive legend, new Pledged
Stock certificates not bearing such legend or any similar legend. In the event
of any such registration, the Company hereby agrees to indemnify and hold
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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harmless the Agent and the Lenders as pledgee of the Pledged Stock against any
losses, claims, damages or liabilities to which the Agent and the Lenders may
become subject to the extent that such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any such registration statement, and any
preliminary prospectus or filed prospectus, or in any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse the Agent and
the Lenders for any legal or other expenses reasonably incurred by the Agent
and the Lenders in connection with investigating or defending any such loss,
claim, damage or liability. The indemnifications contained in this paragraph
shall include each person, if any, who controls the Agent or any Bank.
4. Events of Default; Remedies.
(a) Upon the occurrence of any Event of Default under the Credit
Agreement, which has not been remedied by the Company, the Borrower, or the
Borrowing Subsidiary within fifteen (15) days after the Borrower or the
Borrowing Subsidiary receives written notice of such occurrence from the Agent
(the "Cure Period"), an Event of Default shall be deemed to have occurred
hereunder and the Agent shall have all of the rights, remedies and
responsibilities provided by law and/or by this Pledge Agreement, including but
not limited to all of the rights, remedies and responsibilities of a secured
party under the Michigan Uniform Commercial Code, and the Company hereby
authorizes the Agent, in accordance with the Michigan Uniform Commercial Code,
to sell all or any part of the Pledged Stock at public or private sale and to
apply the proceeds of such sale to the costs and expenses thereof (including
the reasonable attorneys' fees and disbursements incurred by the Agent) and
then to the payment of the other Secured Obligations. Any requirement of
reasonable notice in connection with such sale shall be met if the Agent sends
such notice to the Company, by registered or certified mail, at least 5 days
prior to the date of sale, disposition or other event giving rise to the
required notice. The Agent or any Bank may be the purchaser at any such sale.
The Agent shall be under no obligation to preserve rights against prior
parties.
(b) The Company hereby waives as to the Agent and the Lenders any
right of subrogation or marshaling of such stock and other collateral for
indebtedness or other obligations owed to the Agent and the Lenders. To this
end, the Company hereby expressly agrees that any such collateral or other
security of the Company or any other party which the Agent or any Bank may
hold, or which may come to any of their possession, may be dealt with in all
respects and particulars as though this Pledge Agreement were not in existence.
The Company agrees and acknowledges that because of applicable securities laws,
the Agent may not be able to effect a public sale of the Pledged Stock and
sales at a private sale may be on terms less favorable than if such securities
were sold at a public sale and may be at a price less favorable than a public
sale.
(c) The Company irrevocably designates, makes, constitutes and
appoints the Agent (and all persons designated by the Agent) as its true and
lawful attorney (and agent-in-fact) and the Agent, or the Agent's agent, may,
upon and after an Event of Default hereunder which has not been waived,
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with notice to the Company if the Secured Obligations have not been accelerated
and without notice if the Secured Obligations have been accelerated, take any
action as the Agent reasonably deems necessary under the circumstances to
enforce or otherwise take action in respect to the Pledged Stock as required
hereby, or to carry out any other obligation or duty of the Company under this
Agreement.
(d) Notwithstanding the foregoing, the Agent, on behalf of the
Lenders, agrees that it shall not exercise any remedy hereunder, including the
remedies set forth in Section 5, until such time as Agent has exercised its
remedies under the Company Security Agreement and Guarantor Security Agreement
and has realized upon substantially all of the assets subject thereto to the
extent permitted by law; provided that the Agent and the Lenders may exercise
all rights and remedies hereunder immediately upon the occurrence of, and
nothing in this Section 4(d) shall limit or otherwise impair any of the Agent's
and the Lenders' interests, rights and remedies in, any bankruptcy, insolvency
or similar proceeding.
5. Additional Remedies; Irrevocable Proxy.
(a) After satisfaction of the sale provisions of Section 4 but
subject to Section 4(d) herein, the Agent may transfer into its name, or into
the name of its nominee or nominees, any or all of the Pledged Stock and may
vote any or all of the Pledged Stock (whether or not so transferred) and may
otherwise act with respect thereto as though it were the outright owner
thereof, the Company hereby irrevocably constituting and appointing the Agent
as the proxy and attorney-in-fact of the Company, with full power of
substitution, to do so.
(b) Upon the occurrence of the events described in Section 5(a)
above, the Agent may vote the Pledged Stock to remove the directors and
officers of any Pledged Subsidiary, and to elect new directors and officers of
any Pledged Subsidiary, who thereafter shall manage the affairs of such Pledged
Subsidiary, operate its properties and carry on its business and otherwise take
any action with respect to the business, properties and affairs of such Pledged
Subsidiary which such new directors shall deem necessary or appropriate,
including, but not limited to, the maintenance, repair, renewal or alteration
of any or all of the properties of such Pledged Subsidiary, the leasing,
subleasing, sale or other disposition of any or all of such properties, the
borrowing of money on the credit of such Pledged Subsidiary, and the employment
of attorneys, agents or other employees deemed by such new directors to be
necessary for the proper operation, conduct, winding up or liquidation of the
business, properties and affairs of such Pledged Subsidiary, and all revenues
from the operation, conduct, winding up or liquidation of the business,
properties and affairs of such Pledged Subsidiary after the payment of expenses
thereof shall be applied to the payment of the Secured Obligations.
(c) The Company agrees that the proxy granted in this paragraph 5
is coupled with an interest and is and shall be both valid and irrevocable so
long as the Pledged Stock is subject to this Pledge Agreement. The Company
further acknowledges that the term of said proxy may exceed three years from
the date hereof.
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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6. Remedies Cumulative. No right or remedy conferred upon or
reserved to the Agent and the Lenders under any Operative Document is intended
to be exclusive of any other right or remedy, and every right and remedy shall
be cumulative in addition to every other right or remedy given hereunder or now
or hereafter existing under any applicable law. Every right and remedy of the
Agent and the Lenders under any Operative Document or under applicable law may
be exercised from time to time and as often as may be deemed expedient by the
Agent and the Lenders. To the extent that it lawfully may, the Company agrees
that it will not at any time insist upon, 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 any provisions of any Operative Document; nor will it claim, take or insist
upon any benefit or advantage of any present or future law providing for the
valuation or appraisal of any security for its obligations under any Operative
Document prior to any sale or sales thereof which may be made under or by
virtue of any instrument governing the same; nor will it, after any such sale
or sales, claim or exercise any right, under any applicable law to redeem any
portion of such security so sold.
7. Conduct No Waiver. No waiver of default shall be effective
unless in writing executed by the Agent and waiver of any default or
forbearance on the part of the Agent in enforcing any of its rights under this
Pledge Agreement shall not operate as a waiver of any other default or of the
same default on a future occasion or of such right.
8. Governing Law; Definitions. This Pledge Agreement is a
contract made under, and shall be governed by and construed in accordance with,
the law of the State of Michigan applicable to contracts made and to be
performed entirely within such State and without giving effect to choice of law
principles of such State. The Company agrees that any legal action or
proceeding with respect to this Pledge Agreement or the transactions
contemplated hereby may be brought in any court of the State of Michigan, or in
any court of the United States of America sitting in Michigan, and the Company
hereby submits to and accepts generally and unconditionally the jurisdiction of
those courts with respect to its person and property, and irrevocably appoints
the Chief Financial Officer of the Company, at the Company's address set forth
in the Credit Agreement, as its agent for service of process and irrevocably
consents to the service of process in connection with any such action or
proceeding by personal delivery to such agent or to the Company or by the
mailing thereof by registered or certified mail, postage prepaid to the Company
at its address set forth in the Credit Agreement. Nothing in this paragraph
shall affect the right of the Agent to serve process in any other manner
permitted by law or limit the right of the Agent to bring any such action or
proceeding against the Company or its property in the courts of any other
jurisdiction. The Company hereby irrevocably waives any objection to the
laying of venue of any such suit or proceeding in the above described courts.
Terms used but not defined herein shall have the respective meanings ascribed
thereto in the Credit Agreement. Unless otherwise defined herein or in the
Credit Agreement, terms used in Article 9 of the Uniform Commercial Code in the
State of Michigan are used herein as therein defined on the date hereof. 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.
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9. Notices. All notices, demands, requests, consents and other
communications hereunder shall be delivered in the manner described in the
Credit Agreement.
10. Rights Not Construed as Duties. The Agent neither assumes nor
shall it have any duty of performance or other responsibility under any
contracts in which the Agent has or obtains a security interest hereunder. If
the Company fails to perform any agreement contained herein, the Agent may but
is in no way obligated to itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Agent incurred in connection
therewith shall be payable by the Company under paragraph 13. The powers
conferred on the Agent hereunder are solely to protect its interests in the
Pledged Stock and shall not impose any duty upon it to exercise any such
powers. Except for the safe custody of any Pledged Stock in its possession and
accounting for monies actually received by it hereunder, the Agent shall have
no duty as to any Pledged Stock or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Pledged Stock.
11. Amendments. None of the terms and provisions of this Pledge
Agreement may be modified or amended in any way except by an instrument in
writing executed by each of the parties hereto.
12. Severability. If any one or more provisions of this Pledge
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 or prejudiced thereby.
13. Expenses.
(a) The Company agrees to indemnify the Agent from and against any
and all claims, losses and liabilities growing out of or resulting from this
Pledge Agreement (including, without limitation, enforcement of this Pledge
Agreement), except claims, losses or liabilities resulting from the Agent's
gross negligence or willful misconduct.
(b) The Company will, upon written demand, pay to the Agent an
amount of any and all reasonable and documented expenses, including the
reasonable fees and disbursements of its counsel and of any experts and agents,
which the Agent may incur in connection with (i) the administration of this
Pledge Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from or other realization upon, any of the Pledged Stock,
(iii) the exercise or enforcement of any of the rights of the Agent hereunder
or under the Operative Documents, or (iv) the failure of the Company to perform
or observe any of the provisions hereof.
14. Successors and Assigns; Termination. This Pledge Agreement
shall create a continuing security interest in the Pledged Stock and shall be
binding upon the Company, its successors and assigns, and inure, together with
the rights and remedies of the Agent hereunder, to the benefit of the Agent and
its successors, transferees and assigns. Upon the payment in full in
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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immediately available funds of all of the Secured Obligations and the
termination of all commitments to lend under the Operative Documents, the
security interest granted hereunder shall terminate and upon such termination
the Agent shall assign, transfer and deliver without recourse and without
warranty the Pledged Stock to the Company (and any property received in respect
thereof) as has not theretofore been sold or otherwise applied pursuant to the
provisions of this Pledge Agreement.
15. Waiver of Jury Trial. The Agent and the Lenders, in accepting
this Pledge Agreement, and the Company, 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 Pledge Agreement or any related instrument or
agreement or any of the transactions contemplated by this Pledge Agreement or
any course of conduct, dealing, statements (whether oral or written) or actions
of any of them. Neither the Agent, the Lenders, nor the Company 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 either the Agent and the Lenders or
the Company except by a written instrument executed by all of them.
IN WITNESS WHEREOF, the Company has caused this Pledge Agreement to be
duly executed as of the day and year first above written.
OXFORD AUTOMOTIVE, INC.
By:
____________________________________
Its:
________________________________
Accepted and Agreed:
NBD BANK, as Agent
By:
____________________________________
Its:
___________________________________
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SCHEDULE 1
Percentage
of Total
Common
Number of Number of Shares of
Jurisdiction of Issued Stock Pledged Percentage
Name of Subsidiary Incorporation Shares Certificates Subsidiary Owned
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Lobdell Emery Michigan 100 1 100% 100%
Corporation
BMG Holdings, Ontario 100 1 100% 100%
Inc.