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Exhibit 4.17
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
THIS PLEDGE AGREEMENT dated as of February 4, 1999 (this "Pledge
Agreement"), is given by OASP, 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. Oxford Automotive, Inc., a Michigan corporation (the "Borrower") and
the Borrowing Subsidiaries identified from time to time therein (collectively,
the "Borrowing Subsidiary") have entered into an Amended and Restated Credit
Agreement, dated as of the date hereof, (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 (as hereinafter amended,
modified or restated, the "Guaranty").
D. 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 (or 65% in the case of a Foreign Subsidiary which
is not a Canadian Subsidiary) 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 other Loan
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 or any Subsidiary under any interest rate or currency swap
agreements or similar transactions with any Lender (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
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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 which is a Domestic Subsidiary and 65% of all of the issued and
outstanding shares of the Capital Stock of each Pledged Subsidiary which is a
Foreign 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 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
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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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 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 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 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.
PLEDGE AGREEMENT AND IRREVOCABLE PROXY
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(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 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
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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 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.
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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 under any applicable
law (including without limitation French law), the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected, impaired or prejudiced thereby. If there is any conflict between
the terms and provisions of this Pledge Agreement and French law, the terms and
provisions of the statement of pledge (declaration xx xxxx de compte d'
instruments financiers) (the "Statement of Pledge") and the certificate of
pledge (the "Certificate of Pledge") governed by French law and executed in
connection with the Loan Agreement shall control.
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 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
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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.
OASP, INC.
By:
Its:
Accepted and Agreed:
NBD BANK, as Agent
By:
Its:
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SCHEDULE 1
Name of Jurisdiction Total Number Total Number of Total Number
Subsidiary of of Issued Shares of Issued Shares
Incorporation Issued Shares Owned by the Pledged hereunder
Company
Oxford Automotive France 2,500 2,485 1,625
France SAS
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