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EXHIBIT 4.1
Form of Amended and Restated Pledge Agreement and Irrevocable Proxy
The following document is the form of Amended and Restated Pledge
Agreement and Irrevocable Proxy in favor of NBD Bank (now known as Bank One,
Michigan) executed by the Registrant and the following subsidiaries of the
Registrant: Concept Management Corporation, Lobdell Emery Corporation, RPI
Holdings, Inc., and BMG Holdings, Inc. The agreements are substantially the same
in all material respects except as to the identity of the parties thereto and
the shares pledged. The agreements provide for the pledge of 100% of the shares
of the following subsidiaries, as applicable, of the parties: Creative
Fabrication Corporation, Concept Management Corporation, Lobdell Emery
Corporation, OASP, Inc., OASP II, Inc., Winchester Fabrication Corporation,
Parallel Group International, Inc., Laserweld International, L.L.C., Lewis Emery
Capital Corporation, RPI Holdings, Inc., RPI, Inc., Prudenville Manufacturing,
Inc. Oxford Suspension, Inc., Howell Industries, Inc., BMG North America
Limited, and BMG Holdings Inc. The agreement executed by OASP, Inc., also a
subsidiary of the Registrant, is substantially the same in all material respects
as the other agreements, except that it is dated June 28, 1999 and relates to
the pledge of only 65% of the shares of Oxford Automotive Europe ApS.
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AMENDED AND RESTATED PLEDGE AGREEMENT
AND IRREVOCABLE PROXY
THIS AMENDED AND RESTATED PLEDGE AGREEMENT dated as of May 14, 1999
(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") has entered into a Pledge Agreement and Irrevocable Proxy dated as
of June 24, 1997 in favor of the Agent for the benefit of the Lenders in
connection with that certain Credit Agreement dated as of June 24, 1997 and a
Pledge Agreement and Irrevocable Proxy dated as of February 4, 1999 in favor of
the Agent for the benefit of the Lenders (the "Prior Pledge Agreements"), in
connection with that certain Amended and Restated Credit Agreement dated as of
February 4, 1999 (the Credit Agreement dated as of June 24, 1997 and the Amended
and Restated Credit Agreement dated as of February 4, 1999 being referred to
collectively as the "Prior Credit Agreements") both Prior Credit Agreements
being among the Borrower and the Borrowing Subsidiaries identified from time to
time therein (the "Borrowing Subsidiaries" and collectively with the Borrower,
the "Borrowers") 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 Subsidiaries.
B. The Borrowers have entered into an Amended and Restated Credit
Agreement of even date herewith (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 Subsidiaries.
C. As a condition precedent to the effectiveness of the Lenders'
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 Borrower and the Borrowing Subsidiaries 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, or any other Loan Document, (b) the
prompt and complete payment of all Hedging Obligations of any Borrower or
Guarantor owing to any Lender or any Affiliate of any Lender and (c) the prompt
and complete payment
AMENDED AND RESTATED PLEDGE AGREEMENT
AND IRREVOCABLE PROXY
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of all indebtedness and obligations of the Borrower pursuant to the
Mexican Facility Tranche A Guaranty, and (d) the prompt and complete
payment of all indebtedness of the Company and any other guarantor
under any Guaranty, in all cases, of any kind or nature, howsoever
created or evidenced and whether now or hereafter existing, direct or
indirect (including without limitation any participation interest
acquired by any Lender in any such indebtedness, obligations or
liabilities of the Borrower or any Borrowing Subsidiary to any other
person), absolute or contingent, joint and/or several, secured or
unsecured, arising by operation of law or otherwise, and whether
incurred by the Borrower or any Borrowing Subsidiary as principal,
surety, endorser, guarantor, accommodation party or otherwise,
including without limitation all principal and all interest (including
any interest accruing subsequent to any petition filed by or against
the Borrower or any Borrowing Subsidiary under the U.S. Bankruptcy
Code), indemnity and reimbursement obligations, charges, expenses,
fees, attorneys' fees and disbursements and any other amounts owing
thereunder (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 herewith is
delivering to the Agent for the benefit of the Lenders originals of all
stock certificates of the Pledged Stock or is 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 (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.
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AND IRREVOCABLE PROXY
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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 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 Lender.
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 any
Borrowing Subsidiary within fifteen (15) days after the Borrower or any
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
Lender 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 marshalling 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 Lender 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
AMENDED AND RESTATED PLEDGE AGREEMENT
AND IRREVOCABLE PROXY
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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 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
AMENDED AND RESTATED PLEDGE AGREEMENT
AND IRREVOCABLE PROXY
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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.
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
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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. Effect of Agreement. This Pledge Agreement and the security
afforded hereby is in addition to and not in substitution for any other
security now or hereafter held by Agent and is, and is intended to be,
a continuing Pledge Agreement and shall remain in full force and effect
until the Secured Obligations have been paid and satisfied in full.
12. 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.
13. Severability. If any one or more provisions of this Pledge
Agreement should be invalid, illegal or unenforceable in any respect
under any applicable law, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be
affected, impaired or prejudiced thereby.
14. 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.
15. 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.
16. 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
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AND IRREVOCABLE PROXY
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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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AND IRREVOCABLE PROXY
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SCHEDULE 1
PERCENTAGE
OF TOTAL COMMON
JURISDICTION NUMBER NUMBER OF SHARES OF
NAME OF OF OF ISSUED STOCK PLEDGED PERCENTAGE
SUBSIDIARY INCORPORATION SHARES CERTIFICATES SUBSIDIARY OWNED
Lobdell Emery Corp. Michigan 100 No. 2 100% 100%
BMG Holdings, Inc. Ontario 100 No. 1 100% 100%
RPI Holdings, Inc. Michigan 736.8 No. 32 100% 100%
Oxford Suspension, Michigan 100 No. 1 100% 100%
Inc.
Howell Industries, Inc. Michigan 1,000 No. 1 100% 100%
(survivor by merger w/HI Acquisition, Inc.)
OASP, Inc. Michigan 1,000 No. 1 100% 100%
OASP II, Inc. Michigan 1,000 No. 1 100% 100%
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AND IRREVOCABLE PROXY
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