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EXHIBIT 4.3
AMENDED AND RESTATED GUARANTY
AMENDED AND RESTATED GUARANTY dated as of August 1, 2000 by OXFORD
AUTOMOTIVE, INC. (the "Company") and each of its Subsidiaries set forth on the
signature pages hereof or which becomes a party hereto pursuant to Section 22
hereof (the "Subsidiary Guarantors" and together with the Company, collectively,
the "Guarantors" and individually a "Guarantor"), in favor of the Administrative
Agent, the Collateral Agent, each Lender, each Issuer and each other holder of
an Obligation (as each such term is defined in the Credit Agreement referred to
below) (each, a "Guarantied Party" and, collectively the "Guarantied Parties").
W I T N E S S E T H:
WHEREAS, the Borrowers (as defined below) and the lenders party thereto
are parties to a Second Amended and Restated Credit Agreement dated as of May
14, 1999 (as amended the "Existing Credit Agreement") among the Borrowers, the
lenders party thereto, the issuers party thereto and Bank One, Michigan,
formerly known as NBD Bank, as Agent (the "Existing Agent");
WHEREAS, the Borrowing Subsidiaries (as defined below) have entered
into certain Amended and Restated Guaranty Agreements, each dated as of May 14,
1999 (as amended, the "Existing Guaranty Agreements"), in favor of the Existing
Agent for the benefit of the Existing Agent and the lenders party to the
Existing Credit Agreement, in connection with the Existing Credit Agreement;
WHEREAS, (a) the Borrowers, the Existing Agent, the lenders party to
the Existing Credit Agreement, Citicorp USA, Inc. ("Citicorp") and Citibank
Canada (together with Citicorp, the "Existing Lenders"), as assignees have
concurrently herewith entered into the Master Assignment and Acceptance dated as
of the date hereof pursuant to which the lenders party to the Existing Credit
Agreement have assigned all their right, title and interest in, to and under the
Existing Credit Agreement and such other documents and delegated all their
respective obligations thereunder to the Existing Lenders and the Existing
Lenders have accepted such assignment and assumed such obligations, and (b) Bank
One, Michigan it its individual capacity, as the Existing Agent and as
Collateral Agent under the Mexican Intercreditor Agreement (as defined therein),
Bank One, Canada, as collateral agent for the lender's party to the Existing
Credit Agreement (the "Existing Canadian Agent"), Citicorp, as Administrative
Agent and Collateral Agent, The Bank of Montreal, as the Funding Agent and the
Borrowers have concurrently herewith entered in to the Assignment and Release
Agreement dated the date hereof pursuant to which the Existing Agent and the
Existing Canadian Agent have resigned as agents for the lender's party to the
Existing Credit Agreement and have each assigned all its rights, title and
interest in, to and under the Existing Credit Agreement and the "Loan Documents"
(as defined in the Existing Credit Agreement) and delegated all its obligations
thereunder with respect thereto to the Administrative Agent or the Collateral
Agent, as the case may be, and the Administrative Agent or the Collateral Agent,
as the case may be, has accepted such assignment and delegation;
WHEREAS, the Borrowers, the Existing Lenders and the Administrative
Agent have agreed to amend and restate the Existing Credit Agreement to provide
for such amendments on the terms set forth in the Third Amended and Restated
Credit Agreement dated as of July ,
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2000 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"; capitalized terms defined therein and
used herein having the meanings given to them in the Credit Agreement) among the
Company and each of its Subsidiaries set forth on the signature pages thereto
(the "Borrowing Subsidiaries" and together with the Company, the "Borrowers"),
the Lenders and Issuers party thereto, Citicorp USA, Inc., as administrative
agent for the Lenders and Issuers and as collateral agent for the Secured
Parties, Comerica Bank, as syndication agent for the Lenders and Issuers and
Credit Suisse First Boston, as documentation agent for the Lenders and Issuers,
pursuant to which the Lenders and Issuers have severally agreed to make and
continue certain extensions of credit to the Borrowers upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrowing Subsidiaries, the Existing Lenders and the
Administrative Agent have agreed to amend and restate the Existing Guaranty
Agreements to provide for such amendments on the terms set forth in this
Guaranty, which Guaranty shall become effective upon the Effective Date;
WHEREAS, it is the intent of the parties hereto that this Guaranty not
constitute a novation of the obligation and liabilities existing under the
Existing Guaranty Agreements or evidence payment of all or any of such
obligations and liabilities, that this Guaranty amend and restate in its
entirety the Existing Guaranty Agreements, and that from and after the Effective
Date the Existing Guaranty Agreements be of no further force or effect except as
to evidence the incurrence of the obligations of the Guarantors thereunder and
the representations and warranties made thereunder;
WHEREAS, the Company is the sole direct or indirect shareholder of each
Subsidiary Guarantor and each Subsidiary Guarantor is an affiliate of each
Borrowing Subsidiary; and
WHEREAS, each Guarantor that is a Borrower will receive substantial
direct and indirect benefits from the making of the Loans, the issuance of the
Letters of Credit and the granting of the other financial accommodations to
itself and the other Borrowers under the Credit Agreement and each other
Guarantor will receive substantial direct and indirect benefits from the making
of the Loans, the issuance of the Letters of Credit and the granting of the
other financial accommodations to the Borrowers under the Credit Agreement; and
WHEREAS, as a condition to the making of the Loans and the issuance of
the Letters of Credit and Bankers' Acceptances that each Guarantor execute and
deliver this Guaranty for the benefit of the Guarantied Parties;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. GUARANTY.
(a) To induce the Lenders to make the Loans and issue the Bankers'
Acceptances and the Issuers to issue Letters of Credit, each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees, as primary obligor and
not merely as surety, the full and punctual payment when due, whether at stated
maturity or earlier, by reason of acceleration, mandatory prepayment or
otherwise in accordance herewith or any other Loan Document, all of
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the Guaranteed Obligations (as defined below) of such Guarantor, whether or
not from time to time reduced or extinguished or hereafter increased or
incurred, whether or not recovery may be or hereafter may become barred by any
statute of limitations, and whether enforceable or unenforceable as against the
Borrowers, now or hereafter existing, or due or to become due, including
principal, interest (including interest at the contract rate applicable upon
default accrued or accruing after the commencement of any proceeding under the
Bankruptcy Code, whether or not such interest is an allowed claim in such
proceeding), fees and costs of collection. This Guaranty constitutes a guaranty
of payment and not of collection.
(b) "Guarantied Obligations" of any Guarantor means (i) in the case of
the Company, the Obligations of the Borrowing Subsidiaries, (ii) in the case of
each Canadian Borrower, (A) prior to the Canadian Subsidiary Release Date, the
Obligations of each of the other Borrowers and (B) from and after the Canadian
Subsidiary Release Date, the Obligations of the other Canadian Borrower, (iii)
in the case of each Guarantor that is a Domestic Subsidiary of the Company, the
Obligations of all the Borrowers and (iv) in the case of each Guarantor that is
a Canadian Subsidiary of the Company, (A) prior to the Canadian Subsidiary
Release Date, the Obligations of all the Borrowers and (B) from and after the
Canadian Subsidiary Release Date, the Obligations of the Canadian Borrowers.
(c) Each Guarantor further agrees that, if any payment made by the
Borrowers or any other person and applied to the Guarantied Obligations of such
Guarantor is at any time annulled, avoided, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be refunded
or repaid, or the proceeds of Collateral are required to be returned by any
Guarantied Party to any Borrower, its estate, trustee, receiver or any other
party, including any Guarantor, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or repayment,
any such Guarantor's liability hereunder (and any Lien or other Collateral
securing such liability) shall be and remain in full force and effect, as fully
as if such payment had never been made or, if prior thereto this Guaranty shall
have been cancelled or surrendered (and if any Lien or other Collateral securing
such Guarantor's liability hereunder shall have been released or terminated by
virtue of such cancellation or surrender), this Guaranty (and such Lien or other
Collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of such Guarantor in respect of the amount of
such payment (or any Lien or other Collateral securing such obligation).
SECTION 2. LIMITATION OF GUARANTY. Any term or provision of this
Guaranty or any other Loan Document to the contrary notwithstanding, the maximum
aggregate amount of the Guarantied Obligations for which any Subsidiary
Guarantor shall be liable shall not exceed the maximum amount for which such
Subsidiary Guarantor can be liable without rendering this Guaranty or any other
Loan Document, as it relates to such Subsidiary Guarantor, subject to avoidance
under applicable law relating to fraudulent conveyance or fraudulent transfer
(including section 548 of the Bankruptcy Code or any applicable provisions of
comparable state law) (collectively, "Fraudulent Transfer Laws"), in each case
after giving effect (a) to all other liabilities of such Subsidiary Guarantor,
contingent or otherwise, that are relevant under such Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such Subsidiary Guarantor
in respect of intercompany Indebtedness to the Borrowers to the extent that such
Indebtedness would be discharged in an amount equal to the amount paid by such
Subsidiary Guarantor hereunder) and (b) to the value as assets of such
Subsidiary Guarantor (as determined under the applicable provisions of such
Fraudulent Transfer Laws) of any rights to subrogation,
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contribution, reimbursement, indemnity or similar rights held by such Subsidiary
Guarantor pursuant to (i) applicable law, (ii) Section 3 of this Guaranty or
(iii) any other agreement providing for an equitable allocation among such
Subsidiary Guarantor and other Subsidiaries or Affiliates of the Company of
obligations arising under this Guaranty or other guaranties of the Obligations
by such parties.
SECTION 3. CONTRIBUTION. To the extent that any Subsidiary Guarantor
shall be required hereunder to pay a portion of the Guarantied Obligations which
shall exceed the greater of (i) the amount of the economic benefit actually
received by such Subsidiary Guarantor from the Loans, Letters of Credit and
Bankers' Acceptances (other than, in the case of Guarantors that are Borrowers,
any such benefit received directly as a Borrower) and (ii) the amount which such
Subsidiary Guarantor would otherwise have paid if such Subsidiary Guarantor had
paid the aggregate amount of the Guarantied Obligations (excluding the amount
thereof repaid by the Borrowers) in the same proportion as such Subsidiary
Guarantor's net worth at the date enforcement hereunder is sought bears to the
aggregate net worth of all the Subsidiary Guarantors at the date enforcement
hereunder is sought, then such Guarantor shall be reimbursed by such other
Subsidiary Guarantors for the amount of such excess, pro rata, based on the
respective net worths of such other Subsidiary Guarantors at the date
enforcement hereunder is sought; provided however, that no Subsidiary Guarantor
shall reimburse any other Guarantor for any amount which does not relate to such
Subsidiary Guarantor's Guarantied Obligations.
SECTION 4. AUTHORIZATION; OTHER AGREEMENTS. The Guarantied Parties are
hereby authorized, without notice to or demand upon any Guarantor, which notice
or demand is expressly waived hereby, and without discharging or otherwise
affecting the obligations of such Guarantor hereunder (which shall remain
absolute and unconditional notwithstanding any such action or omission to act),
from time to time, to:
(a) supplement, renew, extend, accelerate or otherwise change the time
for payment of, or other terms relating to, the Obligations, or any part of
them, or otherwise modify, amend or change the terms of any promissory note or
other agreement, document or instrument (including, without limitation, the
other Loan Documents) now or hereafter executed by the Borrowers and delivered
to the Guarantied Parties or any of them, including, without limitation, any
increase or decrease of principal or the rate of interest thereon;
(b) waive or otherwise consent to noncompliance with any provision of
any instrument evidencing the Obligations, or any part thereof, or any other
instrument or agreement in respect of the Obligations (including the other Loan
Documents) now or hereafter executed by the Borrowers and delivered to the
Guarantied Parties or any of them;
(c) accept partial payments on the Obligations;
(d) receive, take and hold additional security or collateral for the
payment of the Obligations or any part of them and exchange, enforce, waive,
substitute, liquidate, terminate, abandon, fail to perfect, subordinate,
transfer, otherwise alter and release any such additional security or
collateral;
(e) settle, release, compromise, collect or otherwise liquidate the
Obligations or accept, substitute, release, exchange or otherwise alter, affect
or impair any security or collateral for the Obligations or any part of them or
any other guaranty therefor, in any manner;
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(f) add, release or substitute any one or more other guarantors, makers
or endorsers of the Obligations or any part of them and otherwise deal with the
Borrowers or any other guarantor, maker or endorser;
(g) apply to the Obligations any and all payments or recoveries from
the Borrowers, from any other guarantor, maker or endorser of the Obligations or
any part of them or from any Guarantor to the Obligations in such order as
provided herein whether such Obligations are secured or unsecured or guaranteed
or not guaranteed by others;
(h) apply any and all payments or recoveries from any Guarantor of the
Guarantied Obligations or sums realized from security furnished by such
Guarantor upon its indebtedness or obligations to the Guarantied Parties, or any
of them, whether or not such indebtedness or obligations relate to the
Guarantied Obligations; and
(i) refund at any time any payment received by any Guarantied Party in
respect of any of the Obligations, and payment to such Guarantied Party of the
amount so refunded shall be fully guaranteed hereby even though prior thereto
this Guaranty shall have been cancelled or surrendered (or any release or
termination of any Collateral by virtue thereof), and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect the
obligations of any Guarantor hereunder in respect of the amount so refunded (and
any Collateral so released or terminated shall be reinstated with respect to
such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including, without limitation, any election of remedies by reason of any
judicial, non-judicial or other proceeding in respect of the Obligations which
impairs any subrogation, reimbursement or other right of such Guarantor).
SECTION 5. GUARANTY ABSOLUTE AND UNCONDITIONAL. Each Guarantor hereby
agrees that its obligations under this Guaranty are absolute and unconditional
and shall not be discharged or otherwise affected as a result of:
(a) the invalidity or unenforceability of any of the Borrowers'
obligations under the Credit Agreement or any other Loan Document or any other
agreement or instrument relating thereto, or any security for, or other guaranty
of the Guarantied Obligations or any part of them, or the lack of perfection or
continuing perfection or failure of priority of any security for the Guarantied
Obligations or any part of them;
(b) the absence of any attempt to collect the Guarantied Obligations or
any part of them from any Borrower or other action to enforce the same;
(c) failure by any Guarantied Party to take any steps to perfect and
maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding instituted under
chapter 11 of the Bankruptcy Code, of the application of Section 1111(b)(2) of
the Bankruptcy Code;
(e) any agreement or stipulation as to the provision of adequate
protection in any bankruptcy proceeding;
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(f) the avoidance of any Lien in favor of the Guarantied Parties or any
of them for any reason;
(g) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against any Borrower, any Guarantor or any of the Company's other Subsidiaries,
including without limitation, any discharge of, or bar or stay against
collecting, all or any of the Obligations (or any part of them or interest
thereon) in or as a result of any such proceeding;
(h) any action taken by any Guarantied Party that is authorized hereby;
(i) any election following the occurrence of an Event of Default by any
Guarantied Party to proceed separately against the personal property Collateral
in accordance with such Guarantied Party's rights under the UCC or, if the
Collateral consists of both personal and real property, to proceed against such
personal and real property in accordance with such Guarantied Party's rights
with respect to such real property; or
(j) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor or any other obligor on
any obligations, other than the payment in full of the Obligations.
SECTION 6. WAIVERS. Each Guarantor hereby waives diligence, promptness,
presentment, demand for payment or performance and protest and notice of
protest, notice of acceptance and any other notice in respect of the Obligations
or any part of them, and any defense arising by reason of any disability or
other defense of any Borrower. Each Guarantor shall not, until the Obligations
are irrevocably paid in full and the Commitments have been terminated, assert
any claim or counterclaim it may have against any Borrower or set off any of its
obligations to any Borrower against any obligations of such Borrower to it. In
connection with the foregoing, each Guarantor covenants that its obligations
hereunder shall not be discharged, except by complete performance.
SECTION 7. RELIANCE. Each Guarantor hereby assumes responsibility for
keeping itself informed of the financial condition of each Borrower and any and
all endorsers and/or other guarantors of all or any part of the Obligations, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations, or any part thereof, that diligent inquiry would reveal, and each
Guarantor hereby agrees that no Guarantied Party shall have any duty to advise
any Guarantor of information known to it regarding such condition or any such
circumstances. In the event any Guarantied Party, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
any Guarantor, such Guarantied Party shall be under no obligation (i) to
undertake any investigation not a part of its regular business routine, (ii) to
disclose any information which such Guarantied Party, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (iii) to make any other or future disclosures of such
information or any other information to any Guarantor.
SECTION 8. WAIVER OF SUBROGATION AND CONTRIBUTION RIGHTS. Until the
Obligations have been irrevocably paid in full and the Commitments have been
terminated, the Guarantors shall not enforce or otherwise exercise any right of
subrogation to any of the rights of the Guarantied Parties or any part of them
against any Borrower or any right of reimbursement or contribution or similar
right against any Borrower by reason of this Agreement or by any payment made by
Guarantor in respect of the Guarantied Obligations.
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SECTION 9. SUBORDINATION. Each Guarantor hereby agrees that any
Indebtedness of any Borrower now or hereafter owing to any Guarantor, is hereby
subordinated to all of the Obligations, whether heretofore, now or hereafter
created (the "Guarantor Subordinated Debt"), and that, except as permitted under
Section 6.7 of the Credit Agreement, the Guarantor Subordinated Debt shall not
be paid in whole or in part until the Obligations have been paid in full and
this Guaranty is terminated and of no further force or effect. No Guarantor
shall accept any payment of or on account of any Guarantor Subordinated Debt at
any time in contravention of the foregoing. Upon the occurrence and during the
continuance of an Event of Default, each Borrower shall pay to the
Administrative Agent any payment of all or any part of the Guarantor
Subordinated Debt and any amount so paid to the Administrative Agent shall be
applied to payment of the Guarantied Obligations as provided in Section 2.14(f)
of the Credit Agreement. Each payment on the Guarantor Subordinated Debt
received in violation of any of the provisions hereof shall be deemed to have
been received by such Guarantor as trustee for the Guarantied Parties and shall
be paid over to the Administrative Agent immediately on account of the
Guarantied Obligations, but without otherwise affecting in any manner such
Guarantor's liability hereof. Each Guarantor agrees to file all claims against
the Borrowers in any bankruptcy or other proceeding in which the filing of
claims is required by law in respect of any Guarantor Subordinated Debt, and the
Administrative Agent shall be entitled to all of such Guarantor's rights
thereunder. If for any reason a Guarantor fails to file such claim at least ten
Business Days prior to the last date on which such claim should be filed, such
Guarantor hereby irrevocably appoints the Administrative Agent as its true and
lawful attorney-in-fact and is hereby authorized to act as attorney-in-fact in
such Guarantor's name to file such claim or, in the Administrative Agent's
discretion, to assign such claim to and cause proof of claim to be filed in the
name of the Administrative Agent or its nominee. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to pay
such claim shall pay to the Administrative Agent the full amount payable on the
claim in the proceeding, and, to the full extent necessary for that purpose,
each Guarantor hereby assigns to the Administrative Agent all of such
Guarantor's rights to any payments or distributions to which such Guarantor
otherwise would be entitled. If the amount so paid is greater than such
Guarantor's liability hereunder, the Administrative Agent shall pay the excess
amount to the party entitled thereto. In addition, each Guarantor hereby
appoints the Administrative Agent as its attorney-in-fact to exercise all of
such Guarantor's voting rights in connection with any bankruptcy proceeding or
any plan for the reorganization of any Borrower.
SECTION 10. DEFAULT; REMEDIES. The obligations of each Guarantor
hereunder are independent of and separate from the Guarantied Obligations. If
any of the Guarantied Obligations is not paid when due, or upon any Event of
Default hereunder or upon any default by any Borrower as provided in any other
instrument or document evidencing all or any part of the Guarantied Obligations,
the Administrative Agent may, at its sole election, proceed directly and at
once, without notice, against any Guarantor to collect and recover the full
amount or any portion of the Guarantied Obligations then due, without first
proceeding against such Borrower or any other guarantor of the Obligations, or
against any Collateral under the Loan Documents or joining such Borrowers or any
other guarantor in any proceeding against any Guarantor. At any time after
maturity of the Obligations, the Administrative Agent may (unless the
Obligations have been irrevocably paid in full), without notice to any Guarantor
and regardless of the acceptance of any Collateral for the payment hereof,
appropriate and apply toward the payment of the Guarantied Obligations of any
Guarantor (i) any indebtedness due or to become due from any Guarantied Party to
such Guarantor and (ii) any moneys, credits or other
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property belonging to such Guarantor at any time held by or coming into the
possession of any Guarantied Party or any of its respective Affiliates.
SECTION 11. IRREVOCABILITY. This Guaranty shall be irrevocable as to
any and all of the Obligations until the Commitments have been terminated and
all monetary Obligations then outstanding have been irrevocably repaid in cash,
at which time this Guaranty shall automatically be cancelled. Upon such
cancellation and at the written request of any Guarantor or its successors or
assigns, and at the cost and expense of such Guarantor or its successors or
assigns, the Administrative Agent shall execute in a timely manner a
satisfaction of this Guaranty and such instruments, documents or agreements as
are necessary or desirable to evidence the termination of this Guaranty.
SECTION 12. SETOFF. Upon the occurrence and during the continuance of
an Event of Default, each Guarantied Party and each Affiliate of a Guarantied
Party may, without notice to any Guarantor and regardless of the acceptance of
any security or collateral for the payment hereof, appropriate and apply toward
the payment of all or any part of the Guarantied Obligations of such Guarantor
(i) any indebtedness due or to become due from such Guarantied Party or
Affiliate to such Guarantor, and (ii) any moneys, credits or other property
belonging to such Guarantor, at any time held by or coming into the possession
of such Guarantied Party or Affiliate.
SECTION 13. NO MARSHALLING. Each Guarantor consents and agrees that no
Guarantied Party or Person acting for or on behalf of any Guarantied Party shall
be under any obligation to marshal any assets in favor of any Guarantor or
against or in payment of any or all of the Guarantied Obligations of such
Guarantor.
SECTION 14. ENFORCEMENT; AMENDMENTS; WAIVERS. No delay on the part of
any Guarantied Party in the exercise of any right or remedy arising under this
Guaranty, the Credit Agreement, any of the other Loan Documents or otherwise
with respect to all or any part of the Obligations, the Collateral or any other
guaranty of or security for all or any part of the Obligations shall operate as
a waiver thereof, and no single or partial exercise by any such Person of any
such right or remedy shall preclude any further exercise thereof. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon any Guarantied Party, except as expressly set forth in a writing
duly signed and delivered by the party making such modification or waiver.
Failure by any Guarantied Party at any time or times hereafter to require strict
performance by any Borrowers or any other guarantor of all or any of the
Obligations, or any Guarantor of all or any part of the Guarantied Obligations
or any other Person of any of the provisions, warranties, terms and conditions
contained in any of the Loan Documents now or at any time or times hereafter
executed by such Persons and delivered to any Guarantied Party shall not waive,
affect or diminish any right of any Guarantied Party at any time or times
hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived by any act or knowledge of any Guarantied Party, or
its respective agents, officers or employees, unless such waiver is contained in
an instrument in writing, directed and delivered to such Borrower or such
Guarantor, as applicable, specifying such waiver, and is signed by the party or
parties necessary to give such waiver under the Credit Agreement. No waiver of
any Event of Default by any Guarantied Party shall operate as a waiver of any
other Event of Default or the same Event of Default on a future occasion, and no
action by any Guarantied Party permitted hereunder shall in any way affect or
impair any Guarantied Party's rights and remedies or the obligations of any
Guarantor under this Guaranty. Any determination by a court of competent
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jurisdiction of the amount of any principal and/or interest owing by any
Borrower to a Guarantied Party shall be conclusive and binding on each Guarantor
irrespective of whether such Guarantor was a party to the suit or action in
which such determination was made.
SECTION 15. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon
each Guarantor and upon the successors and assigns of such Guarantors and shall
inure to the benefit of the Guarantied Parties and their respective successors
and assigns; all references herein to the Borrowers and to the Guarantors shall
be deemed to include their respective successors and assigns. The successors and
assigns of the Guarantors and the Borrowers shall include, without limitation,
their respective receivers, trustees and debtors-in-possession. All references
to the singular shall be deemed to include the plural where the context so
requires.
SECTION 16. REPRESENTATIONS AND WARRANTIES; COVENANTS. Each Guarantor
that is not a Borrower hereby (a) represents and warrants that the
representations and warranties as to it made by the Borrowers in Article IV of
the Credit Agreement are true and correct on each date as required by Section
3.2(b)(i) of the Credit Agreement and (b) agrees to take, or refrain from
taking, as the case may be, each action that is necessary to be taken or not
taken, as the case may be, so that no Default or Event of Default is caused by
the failure to take such action or to refrain from taking such action by such
Guarantor.
SECTION 17. GOVERNING LAW. This Guaranty and the rights and obligations
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
SECTION 18. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS.
(a) Any legal action or proceeding with respect to this Guaranty, and
any of the other Loan Documents, may be brought in the courts of the State of
New York or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Agreement, each Guarantor hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, which any of them may now
or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) Each Guarantor that is a Canadian Subsidiary hereby irrevocably
designates, appoints and empowers CT Corporation System (telephone no: 212 894
8440) (telecopy no: 212 894 8790) (the "Process Agent"), in the case of any
suit, action or proceeding brought in the United States of America as its
designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and in respect of its property, service of any and all legal process,
summons, notices and documents that may be served in any action or proceeding
arising out of or in connection with this Guaranty or any of the other Loan
Documents. Such service may be made by mailing (by registered or certified mail,
postage prepaid) or delivering a copy of such process to such Guarantor in care
of the Process Agent at the Process Agent's above address, and such Guarantor
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. As an alternative method of service, each Guarantor
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing (by registered or certified mail, postage prepaid) of
copies of such process to the Process Agent or such Guarantor care of the
Company at its address specified in Section 9.8 of the Credit Agreement. Each
Guarantor agrees that a final judgment in any such action or proceeding shall
9
<PAGE> 10
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
(c) Nothing contained in this Section 18 shall affect the right of the
Administrative Agent or any other Guarantied Party to serve process in any other
manner permitted by law or commence legal proceedings or otherwise proceed
against a Guarantor in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
SECTION 19. WAIVER OF JURY TRIAL. Each of the Administrative Agent, the
other Guarantied Parties and each Guarantor irrevocably waives trial by jury in
any action or proceeding with respect to this Guaranty and any of the other Loan
Documents.
SECTION 20. NOTICES. Any notice or other communication herein required
or permitted shall be given as provided in Section 9.8 of the Credit Agreement
and, in the case of any Subsidiary Guarantor, to such Guarantor in care of the
Company.
SECTION 21. SEVERABILITY. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 22. ADDITIONAL GUARANTORS. Each of the Guarantors agrees that,
if pursuant to Section 5.7 of the Credit Agreement the Borrowers shall be
required to cause any Subsidiary that is not a Guarantor to become a Guarantor
hereunder, or if for any reason the Borrowers desire any such Subsidiary to
become a Guarantor hereunder, such Subsidiary shall execute and deliver to the
Administrative Agent a Guaranty Supplement in substantially the form of Exhibit
A attached hereto and shall thereafter for all purposes be a party hereto and
have the same rights, benefits and obligations as a Guarantor party hereto on
the Closing Date.
SECTION 23. COLLATERAL. Each Guarantor hereby acknowledges and agrees
that its obligations under this Guaranty are secured pursuant to the terms and
provisions of the Collateral Documents executed by it in favor of the Collateral
Agent, for the benefit of the Secured Parties, and covenants that it shall not
grant any Lien with respect to all or any portion of its business, assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
in favor, or for the benefit, of any Person other than the Collateral Agent, for
the benefit of the Secured Parties, except as permitted by the Credit Agreement.
SECTION 24. COSTS AND EXPENSES. Each Guarantor agrees to pay or
reimburse the Administrative Agent and each of the other Guarantied Parties upon
demand for all out-of-pocket costs and expenses, including, without limitation,
reasonable attorneys' fees (including allocated costs of internal counsel and
costs of settlement), incurred by the Administrative Agent and such
10
<PAGE> 11
other Guarantied Parties in enforcing this Guaranty or any security therefor or
exercising or enforcing any other right or remedy available in connection
herewith or therewith.
SECTION 25. WAIVER. Each Guarantor hereby irrevocably and
unconditionally waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover any special, exemplary, punitive or
consequential damage in any legal action or proceeding in respect of this
Guaranty or any of the other Loan Documents.
SECTION 26. ENTIRE AGREEMENT. This Guaranty, taken together with all of
the other Loan Documents executed and delivered by the Guarantors, represents
the entire agreement and understanding of the parties hereto and supersedes all
prior understandings, written and oral, relating to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
11
<PAGE> 12
IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantors as of the day and year first set forth above.
Borrowers:
OXFORD AUTOMOTIVE, INC.
By:
-----------------------------------
Name:
Title:
BMG NORTH AMERICA LIMITED
By:
-----------------------------------
Name:
Title:
OXFORD SUSPENSION LTD.
By:
-----------------------------------
Name:
Title:
Subsidiary Guarantors:
LOBDELL EMERY CORPORATION
LEWIS EMERY CAPITAL CORPORATION
PARALLEL GROUP INTERNATIONAL, INC.
LASERWELD INTERNATIONAL, L.L.C.
CONCEPT MANAGEMENT CORPORATION
CREATIVE FABRICATION CORPORATION
WINCHESTER FABRICATION CORPORATION
OASP, INC.
OASP II, INC.
RPI HOLDINGS, INC.
RPI, INC.
PRUDENVILLE MANUFACTURING INC.
OXFORD SUSPENSION, INC.
HOWELL INDUSTRIES, INC.
CE TECHNOLOGIES, INC.
TOOL AND ENGINEERING COMPANY
SIGNATURE PAGE TO GUARANTY
<PAGE> 13
BMG HOLDINGS, INC.
976459 ONTARIO LIMITED
829500 ONTARIO LIMITED
By:
--------------------------------
Name:
Title:
Acknowledged and agreed to
as of the date first above written:
CITICORP USA, INC.,
as Administrative Agent
By:
--------------------------------
Name:
Title:
SIGNATURE PAGE TO GUARANTY
<PAGE> 14
EXHIBIT A
GUARANTY SUPPLEMENT
The undersigned hereby agrees to be bound as a Guarantor for
purposes of the Guaranty dated as of , (the "Guaranty"), among
Oxford Automotive, Inc. (the "Company") and certain Subsidiaries of the Company
listed on the signature pages thereof and acknowledged by Citicorp USA, Inc., as
Administrative Agent, and the undersigned hereby acknowledges receipt of a copy
of the Guaranty. Capitalized terms used herein but not defined herein are used
with the meanings given them in the Guaranty.
Agreed to this day of , .
--- ------------- ----
[NAME OF SUBSIDIARY GUARANTOR]
By:
-------------------------------------
Name:
Title:
Acknowledged and agreed to
as of the date set forth above:
CITICORP USA, INC.,
as Administrative Agent
By:
-----------------------------
Name:
Title:
GUARANTY SUPPLEMENT
