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EXHIBIT 4.14
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
THIS PLEDGE AGREEMENT dated as of June 24, 1997 (this "Pledge
Agreement"), is given by CONCEPT MANAGEMENT CORPORATION, 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. Oxford Automotive, Inc., a Michigan corporation (the
"Borrower") and the Borrowing Subsidiaries 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. The Company is a subsidiary of the Borrower, and is engaged in
a common enterprise with the Borrower and other subsidiaries of the Borrower.
C. The Company, together with the other subsidiaries of the
Company, has guaranteed the Borrower's and the Borrowing Subsidiary's
obligations under the Credit Agreement pursuant to a Guaranty Agreement dated
as of June 24, 1997 (as hereinafter amended, modified or restated, the
"Guaranty").
D. 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 and beneficial interests, 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 Borrower 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 Letter of Credit, notes or other
instruments issued to the Agent or any Lender 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, (c) the prompt and complete payment of all
obligations and performance of all covenants of the Borrower under any interest
rate or currency swap agreements or similar transactions with any Lender, and
(d) the prompt and complete payment of all indebtedness of the
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Company and any other guarantor under the Guaranty, (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.
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, (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
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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 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 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, 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
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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, 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
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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.
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
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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.
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
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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
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.
CONCEPT MANAGEMENT CORPORATION
By:
Its:
Accepted and Agreed:
NBD BANK, as Agent
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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By:
Its:
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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
- ------------------ --------------- ---------- ------------ ---------- ----------
Winchester Michigan 40,000 1 100% 100%
Fabrication
Corporation
Creative Tennessee 48,000 1 100% 100%
Fabrication
Corporation